 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Baker v. State8/24/2001
nt of not less than 10 consecutive days unless the subsequent conviction is within one year of the previous conviction, in which case the court shall impose a minimum sentence of imprisonment of not less than 20 consecutive days . . . . The sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the committed person.
In this, its original form, the meaning of "sentence imposed . . . under this subsection" is much clearer. With regard to the phrase "under this subsection," the only possible reference is to subsection (g) itself. And the sole function of subsection (g) was to specify a series of mandatory minimum sentences. Thus, when the legislature declared that a "sentence imposed . . . under this subsection shall run consecutively with any other sentence," the clear reference is to the mandatory minimum sentences set out in subsection (g).
Since 1982, the legislature has increased the mandatory minimum sentences for misdemeanor breath test refusal and it has enacted felony penalties for certain repeat offenders. But although the misdemeanor and the felony provisions of the statute have been amended, and the mandatory minimum sentences increased, both subsections still carry forward the language from 1982 - the declaration that a "sentence imposed . . . under this subsection shall run consecutively with any other sentence."
In 1982, this language referred to the mandatory minimum sentences spelled out in the newly-enacted subsection (g). Even though AS 28.35.032 has been amended several times since then, there is no indication that the legislature ever intended to alter the meaning of this language. We conclude that the language concerning a "sentence imposed . . . under this subsection" still refers to the mandatory minimum sentences now specified in AS 28.35.032(g)(1) and (p)(1).
Because Baker was subject to a 120-day mandatory minimum sentence for breath test refusal, Judge Link was obliged under AS 28.35.032(p)(5) to impose 120 days of Baker's breath test refusal sentence consecutively to Baker's DWI sentence. However, with respect to the remaining 2 years, 245 days of Baker's breath test refusal sentence, Judge Link had the discretion to impose all or a portion of this remainder concurrently with the DWI sentence.
Accordingly, we VACATE Baker's breath test refusal sentence and we direct the superior court to resentence Baker in accordance with this opinion.
Page 1 2 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|