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Walters v. State3/25/1999
4016 NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
[No. 4016 - March 25, 1999]
Appeal from the Superior Court, Third Judicial District, Kodiak, Eric T. Sanders, Judge.
The superior court, sitting without a jury, convicted Jason W. Walters of felony driving while intoxicated (DWI), a class C felony if the defendant has been previously convicted two or more times in the preceding five years. Walters appeals, raising several contentions. We affirm.
At Walters' bench trial, the parties presented stipulated facts to Superior Court Judge Eric T. Sanders. In the early morning of November 17, 1996, Kodiak Police Officer William Pyles stopped Walters while he was driving and arrested him for DWI. After his arrest, Walters submitted to a breath test that showed a blood alcohol level of 0.183. Still later, a blood test registered an alcohol level of 0.204. Based on the stipulated facts, Judge Sanders found that Walters was guilty of DWI.
The parties did not stipulate to the remaining element of felony DWI: that Walters had "been previously convicted two or more times within the five years preceding the date of the present offense." The prosecutor submitted into evidence certified copies of two judgments and attached paperwork showing that Walters had been convicted of DWI in California in 1994 and 1995. Based on the certified judgments of the two previous convictions of DWI in California, Judge Sanders found that Walters was guilty of felony DWI.
Walters' first contention on appeal is that it is unconstitutional - a violation of due process and equal protection rights - to use the California prior convictions for purposes of Alaska's felony DWI offense because the specified alcohol limit for DWI is lower in California than it is in Alaska.
The judgments from California showed that Walters had been previously convicted twice of violating California Vehicle Code § 23152(b), which provides in part: "It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." The corresponding provision of Alaska's DWI law, AS 28.35.030(a)(2), specifies a higher alcohol level: "0.10 percent or more by weight of alcohol in the person's blood." However, AS 28.35.030(o)(4)(A) provides that a conviction under a DWI law in another jurisdiction that provides a lower alcohol level is counted as a previous conviction:
"`previously convicted' means having been convicted in this or another jurisdiction . . . of . . ."
"(A) operating a motor vehicle, aircraft, or watercraft while intoxicated, in violation of this section or in violation of another law or ordinance with similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person's blood or breath than imposed under (a)(2) of this section[.]" (Emphasis added.)
Walters' argument that the latter portion of AS 28.35.030(o)(4)(A) violates due process and equal protection is unpersuasive. Walters cites Burnette v. Anchorage, in which we held that an Oregon conviction for DWI did not count as a previous conviction because the Oregon DWI law, which specified an alcohol level of 0.08, did not have "substantially similar elements" to Anchorage's DWI ordinance, which specified an alcohol level of 0.10. However, ou
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