Burnette v. Municipality of Anchorage, 1187

• Decision Date: 20 December 1991
• Docket Number: No. 1187,1187
• Citation: 823 P.2d 10
• Parties: Douglas E. BURNETTE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
• Court: Alaska Court of Appeals

Page 10

823 P.2d 10

Douglas E. BURNETTE, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

No. 1187.

Court of Appeals of Alaska.

Dec. 20, 1991.

Michael B. Logue, Gorton & Oberly, Anchorage, for appellant.

Cesar O. Velasquez, Asst. Mun. Prosecutor, James F. Wolf, Mun. Prosecutor, and Richard McVeigh, Mun. Atty., Anchorage, for appellee.

Before BRYNER, C.J., and MANNHEIMER, J., and ANDREWS, Superior Court Judge. ^*

OPINION

BRYNER, Chief Judge.

Douglas E. Burnette pled no contest and was convicted of driving while intoxicated (DWI), in violation of Anchorage Municipal Code (AMC) § 09.28.020A. Because he had previously been convicted of DWI in Oregon in 1987, Burnette was sentenced as a second-time DWI offender. District Court Judge Glen C. Anderson imposed a sentence of 90 days with 70 days suspended and a $1,000 fine with $500 suspended. The 20 days Burnette was sentenced to serve and the $500 unsuspended portion of the fine coincide with the mandatory minimum penalties for second-time DWI offenders set forth in AMC § 09.28.020C.

Burnette argues that the court erred in sentencing him as a second offender based on his Oregon DWI conviction. The court imposed its sentence pursuant to the authority of AMC § 09.28.020C, which provided at the time of Burnette's sentencing:

Upon conviction under this section, the court shall impose a minimum sentence of:

....

2. Imprisonment not less than 20 consecutive days and a fine of not less than $500.00 if, within the preceding 10 years, the person has been previously convicted once in this or another jurisdiction of driving while intoxicated under this or another law or ordinance with substantially similar elements or refusal to submit to a chemical test under AS 28.35.032, AMC 9.28.022 or another law or ordinance with substantially similar elements. ¹

Burnette argues that his 1987 Oregon DWI should not have been treated as a previous conviction under AMC § 09.28.020C, because the elements set forth in the Oregon DWI statute are not substantially similar to those set forth in AMC § 09.28.020B. We agree, and accordingly reverse Burnette's sentence.

AMC § 09.28.020B provides:

A person commits the crime of driving while intoxicated if he or she operates, drives or is in actual physical control of a motor vehicle or operates an aircraft or a watercraft:

1. while under the influence of intoxicating liquor, depressant, hallucinogenic, stimulant or narcotic drugs as defined in AS 11.71.140-.190; or

2. when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10% or more by weight of alcohol in the person's blood or 100 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.10 gram or more of alcohol per 210 liters of the person's breath; or

3. while the person is under the combined influence of intoxicating liquor and a drug or drugs, or intoxicating liquor and another substance that when introduced into the body acts as a central nervous system depressant or stimulant, to a degree which renders the person incapable of driving safely; or

4. while the person is under the influence of a drug or drugs, or another substance that when introduced into the body acts as a central nervous system depressant or stimulant, to a degree which renders the person incapable of driving safely.

The corresponding Oregon statute, ORS 813.010, provides in relevant part:

(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

(a) Has .08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150;

(b) Is under the influence of intoxicating liquor or a controlled substance; or

(c) Is under the influence of intoxicating liquor and a controlled substance.

The parties' dispute as to the similarity of the elements set forth in these two provisions centers on the blood alcohol percentages set forth in AMC § 09.28.020(B)(2) and ORS 813.010(1)(a). The district court, although conceding that it was "a close question," found that the elements of the two offenses were substantially similar.

When determining whether a conviction from another jurisdiction is to be treated as a prior conviction for purposes of sentencing under Alaska law, the focus is not on the facts underlying the prior conviction, but rather on the language of the statute defining the offense. Walsh v. State, 677 P.2d 912, 915 (Alaska App.1984). ²

We have not previously interpreted the statutory phrase "substantially similar elements," which appears in both AMC § 09.28.020 and the corresponding state DWI statute, AS 28.35.030. However, we have applied the "substantially similar elements" standard in the context of Alaska's felony presumptive sentencing scheme. In Martin v. State, 704 P.2d 1341 (Alaska App.1985), we upheld the superior court's decision to treat Martin as a third-time felony offender for purposes of presumptive sentencing. Martin had argued that the Oklahoma statute under which he had been convicted for felony escape so differed from Alaska's felony escape statute that his Oklahoma conviction should not have been considered for presumptive sentencing purposes. AS 12.55.145(a)(2) provides:

A conviction in this or another jurisdiction of an offense having elements similar to those of a felony defined as such under Alaska law at the time the offense was committed is considered a prior felony conviction[.]

We agreed with the superior court in Martin that the standard to be applied under this statute was whether the elements of the prior offense were "substantially similar" to those of an Alaska felony. Martin, 704 P.2d at 1342. In that case, we rejected Martin's argument that Alaska's escape statute was more narrowly drawn than the Oklahoma escape statute. We held:

Although there are differences between the elements of the Oklahoma and Alaska statutes, those differences render the Oklahoma statute more restrictive than the Alaska statute. Accordingly, while it appears that there may be some cases where a defendant convicted under the Alaska statute would not be convicted under the Oklahoma law, the converse is not true: any offender who could be convicted under the Oklahoma law would be subject to conviction under the elements of the Alaska statute as well. Under these circumstances, any differences between the legislative schemes will not preclude a finding of substantial similarity.

Id. at 1342.

Here, we are faced with the converse of the situation presented in Martin. The Oregon DWI statute is less restrictive than the Anchorage ordinance. Under such circumstances, we have held that the earlier conviction cannot be treated as a prior conviction for purposes of enhanced or presumptive sentencing. See Harlow v. State, 820 P.2d 307 (Alaska App.1991) (Oregon felony conviction for "unauthorized use of a vehicle" is not a prior felony conviction for presumptive sentencing purposes, because unlike Alaska's felony joyriding statute, Oregon's statute does not require the state to prove that the defendant has been previously convicted of joyriding); Garroutte v. State, 683 P.2d 262 (Alaska App.1984) (prior conviction under former Alaska statute which penalized receiving and concealing stolen property as a felony, did not qualify as a prior felony conviction for presumptive sentencing purposes because the former statute did not require proof of the value of the stolen property, whereas the current statute provided for a $500 jurisdictional minimum for felony...