 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Baker v. State8/24/2001
Fred A. Baker was convicted of felony refusal to submit to a breath test and felony driving while intoxicated (DWI), both class C felonies. Baker was a third felony offender for purposes of presumptive sentencing, so he faced a three-year presumptive term of imprisonment for each offense. In addition, because Baker had two prior DWI convictions, he faced a 120-day minimum sentence for each offense. Superior Court Judge Jonathan H. Link sentenced Baker to the three-year presumptive term for each offense.
This appeal requires us to interpret a portion of the breath test refusal statute, AS 28.35.032(p)(5), which states that "the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person." Judge Link interpreted this provision to mean that Baker's sentence for breath test refusal had to run consecutively to his sentence for DWI - and, accordingly, he sentenced Baker to consecutive three-year terms, for a composite six years of imprisonment.
Baker contends that the phrase "shall run consecutively" applies only to the mandatory minimum sentences specified in the breath test refusal statute. In Baker's case, the applicable mandatory minimum sentence was 120 days. Baker concedes that Judge Link was obliged to impose 120 days of the breath test refusal sentence consecutively to the DWI sentence, but Baker argues that Judge Link had the authority to order concurrent sentencing with respect to the remainder of the breath test refusal sentence. We agree.
"The guiding principle of statutory construction is to ascertain and implement the intent of the legislature." Here, the question is to ascertain the legislature's intent when it declared in AS 28.35.032(p)(5) that "the sentence imposed . . . under this subsection shall run consecutively with any other sentence of imprisonment."
Based on a reading of AS 28.35.032(p), the reference to "this subsection" appears to be ambiguous. Clearly, "this subsection" does not refer to paragraph (5) itself, for paragraph (5) does not specify any sentences. Rather, the phrase "this subsection" must therefore refer to subsection (p) as a whole. But what did the legislature mean when it referred to "the sentence imposed . . . under" subsection (p)? The state argues that this language refers to any sentence imposed on a defendant convicted of felony breath test refusal. Baker, on the other hand, argues that this language refers to the various mandatory minimum sentences specified in AS 28.35.032(p)(1).
To resolve this question, we have examined the 1982 enactment that is the source of the questioned language. In 1982, the Alaska Legislature decided to make breath test refusal a separate crime. This new crime carried the same penalties as DWI, so that (theoretically, at least) an arrested motorist would have little incentive to refuse to take the breath test.
The result was chapter 117, section 17, of the 1982 session laws. This session law added subsections (f) through (i) to the breath test refusal statute, AS 28.35.032. Subsection (f) declared simply that " efusal to submit to the chemical test of breath authorized by AS 28.35.031 is a class A misdemeanor." The next subsection, (g), specified a series of mandatory minimum sentences for this new crime:
(g) Upon conviction of a person under this section, the court shall impose a minimum sentence of imprisonment of not less than 72 consecutive hours. Upon a subsequent conviction within five years after a conviction under this section or [a conviction for] driving while intoxicated in this or any other state, the court shall impose a minimum sentence of imprisonme
Page 1 2 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|