Opinion
Court of Appeals No. A-11924 No. 6412
12-21-2016
JEREMY J. WELSH, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David T. McGee, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
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 as binding authority for any proposition of law. Trial Court No. 3PA-13-882 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: David T. McGee, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. June Stein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d). --------
The question presented in this appeal is whether Jeremy J. Welsh's two prior DUI convictions from Utah count as "previous convictions" under AS 28.35.030(u)(4). If so, then Welsh was properly convicted of a felony in his current DUI prosecution. If not, then Welsh's current offense was only a misdemeanor. See AS 28.35.030(a) and (n).
Under AS 28.35.030(u)(4), the Utah convictions qualify as "previous convictions" if the Utah DUI statute under which Welsh was prosecuted has elements that are "similar" to the elements of DUI as defined under Alaska law, AS 28.35.030(a).
Utah's DUI statute, UCA § 41-6a-502(1), defines three ways in which a person may commit DUI. Paraphrasing this statute, it is unlawful for a person to operate a motor vehicle or be in actual physical control of a motor vehicle if:
(a) the person has a sufficient amount of alcohol in their body that a subsequent chemical test shows that the person's blood alcohol level is .08 percent or higher at the time of the test; or
(b) the person is under the influence of alcohol and/or drugs to a degree that renders them incapable of safely operating a vehicle; or
(c) the person's blood alcohol level at the time of operating or controlling the vehicle is .08 percent or higher.
Alaska's DUI statute, AS 28.35.030(a), defines two ways of committing the crime of driving under the influence. Again paraphrasing the statute, it is a crime to:
(1) operate a motor vehicle while under the influence of alcohol and/or controlled substances, or
(2) operate motor vehicle and, within four hours afterwards, have a blood alcohol level of .08 percent or higher.
At first blush, these two statutes appear to be fairly consistent in their definition of the crime. But Welsh argues that the Utah law differs from the Alaska law in two significant respects.
First, Welsh points out that, under Alaska law, if a person is prosecuted for DUI under the "blood alcohol" theory (i.e., under the theory that a subsequent chemical test showed that their blood alcohol level was .08 percent or higher), the person may defend the charge by showing that their blood alcohol reading was a result of their consumption of alcohol after they stopped operating the vehicle. See AS 28.35.030(s).
Welsh contends that Utah law does not recognize this defense. In essence, he argues that Utah defines the crime of DUI as (1) operating or controlling a motor vehicle, and (2) having a blood alcohol level of .08 percent or higher at some subsequent time — even when that blood alcohol reading is due to the person's consumption of alcohol after they stopped operating the vehicle. But our review of the Utah case law shows that Welsh is wrong.
In Rajo v. State, 245 P.3d 219, 220 (Utah App. 2010), the Utah Court of Appeals declared that the offense is defined as "[having] sufficient alcohol in [one's] body at the time [one] is in control of a vehicle ... that a chemical test at any subsequent time reveals a blood alcohol content of 0.08% [or greater]." (Emphasis added.)
And later, in State v. Manwaring, 268 P.3d 201 (Utah App. 2011), the Utah Court of Appeals confronted a case where the defendant expressly argued that Utah's DUI law was unconstitutional because it defined the crime as (1) operating or controlling a motor vehicle and (2) having a blood alcohol level of .08 percent or higher at any subsequent time, regardless of when the motorist consumed the alcohol.
The Utah court rejected this interpretation of their DUI statute:
[T]he DUI statute ... [is] not concerned with regulating the conduct of an individual after he or she ceases operating
or controlling a vehicle. ... [A]lcohol consumed by an individual after he or she has ceased driving does not affect how that person drove prior to consuming alcohol. ... Accordingly, subsection (1)(a) [of Utah's DUI statute] ... is clearly aimed at preventing a person from driving after that person has consumed enough alcohol that the person's [blood alcohol content] will eventually reach .08 [percent] or greater.Manwaring, 268 P.3d at 213 (emphasis added).
Based on these decisions of the Utah Court of Appeals, we conclude that, under Utah law, a motorist who is prosecuted for DUI under the "blood alcohol" theory codified in subsection (1)(a) of the Utah statute may defend the charge by introducing evidence that the motorist's subsequent blood alcohol level was the result of the motorist's consumption of alcohol after they stopped operating or controlling the vehicle.
Welsh is incorrect when he asserts that this defense is available in Alaska but not in Utah. The laws of Alaska and Utah are the same in this respect.
Welsh makes one other argument as to how Utah DUI law differs from Alaska DUI law.
Welsh points out that, in Alaska, when a person is prosecuted for violating the "under the influence" provision of the statute, AS 28.35.030(a)(1), rather than the "blood alcohol" theory of the offense codified in AS 28.35.030(a)(2), a blood alcohol reading of .08 percent or higher does not automatically establish that the motorist was under the influence. Rather, a blood alcohol reading of .08 percent or higher merely gives rise to a presumption that the motorist was under the influence — a presumption that can be rebutted with evidence that the motorist was not impaired. See AS 28.35.033(a); Valentine v. State, 215 P.3d 319, 325 (Alaska 2009).
Welsh argues that Utah law is substantially different from Alaska law because, under subsection (1)(a) of Utah's DUI statute, a blood alcohol reading of .08 percent or higher will, by law, establish a motorist's guilt, regardless of any evidence that the motorist was not actually too impaired to drive.
But Welsh's argument relies on a false analogy. Subsection (1)(a) of the Utah statute is not the counterpart to our "under the influence" provision, AS 28.-35.030(a)(1). Rather, subsection (1)(a) of the Utah statute is the counterpart to our "blood alcohol" provision, AS 28.35.030(a)(2). And under both of these provisions, a blood alcohol reading of .08 percent or higher establishes a motorist's guilt, regardless of any evidence that the motorist was not actually impaired.
The portion of the Utah statute that is analogous to our "under the influence" provision is subsection (1)(b) — the subsection that makes it a crime to operate a motor vehicle when the person is under the influence of alcohol and/or drugs to a degree that renders them incapable of safely operating a vehicle.
Our research reveals that, prior to 2005, Utah had a statute that corresponded to our AS 28.35.033(a) — a statute which, based on a motorist's blood alcohol level, specified various presumptions as to whether the motorist was or was not "under the influence". See former Utah Statute 41-6-44.
But in 2005, this statute was re-enacted and renumbered as § 41-6a-502. (See Utah Laws 2005, chapter 2, § 58.) And when the Utah legislature enacted the amended statute in 2005, the legislature dropped the various presumptions based on a motorist's blood alcohol level.
Thus, if a motorist is prosecuted in Alaska under the "under the influence" provision of our DUI statute, and if the motorist's blood alcohol reading was .08 percent or higher, AS 28.35.033(a) creates a rebuttable presumption that the motorist was under the influence. But similarly situated motorists in Utah do not face this presumption. These motorists are actually in a better position under Utah law.
For all of these reasons, we conclude that Welsh's two Utah convictions for DUI constitute "previous convictions", and that Welsh's current offense was properly classified as a felony.
Conclusion
The judgement of the superior court is AFFIRMED.