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Lampley v. Municipality of Anchorage (5/4/2007) ap-2095

Lampley v. Municipality of Anchorage (5/4/2007) ap-2095

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


JIMMY A. LAMPLEY, )
) Court of Appeals No. A-8994
Appellant, ) Trial Court No. 3AN-04-3441CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) No. 2095 May 4, 2007
)
          Appeal  from the District Court,  Third  Judi
          cial  District,  Anchorage, Nancy  J.  Nolan,
          Judge.

          Appearances: David R. Weber, Vasquez & Weber,
          P.C.,  Anchorage, for the Appellant.   Rachel
          Plumlee, Assistant Municipal Prosecutor, John
          E.    McConnaughy   III,   Deputy   Municipal
          Attorney,  and Frederick H. Boness, Municipal
          Attorney, Anchorage, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Jimmy  A.  Lampley  was  convicted  of  violating   the
Anchorage  ordinances that prohibit driving under  the  influence
(DUI),  refusal to submit to a chemical test, and  driving  while
ones  license is suspended or revoked.1  In this appeal,  Lampley
challenges various aspects of his trial, his sentencing, and  his
re-sentencing.
          As  we  explain  in  this opinion, we  reject  most  of
Lampleys  claims of error.  However, we agree with  Lampley  with
respect  to  two claims.  First, Lampleys jury was  misinstructed
regarding the culpable mental state that the Municipality had  to
prove  to  establish  the municipal offense  of  driving  with  a
suspended  or  revoked  license.   Second,  the  district   court
violated  the  Alaska  Constitutions  guarantee  against   double
jeopardy when, at Lampleys second sentencing, the court increased
Lampleys time to serve.
          For  these reasons, we affirm Lampleys convictions  for
DUI  and  for breath-test refusal, but we reverse his  conviction
for  driving  with a suspended or revoked license.  In  addition,
regardless  of  whether Lampley is re-tried and  re-convicted  of
this  latter  crime,  the  district court  must  reduce  Lampleys
sentence  so  that it does not exceed the composite  sentence  he
originally received.

     Underlying facts and proceedings
     
               In  the  early  morning of  April  10,  2004,
     Anchorage  Police  Sergeant  Robert  Glen  (driving  an
     unmarked  police  car)  found  himself  stopped  behind
     Lampley at a red light at the corner of Concrete Street
     and  Fifth  Avenue.   While the light  was  still  red,
     Lampley spun his tires and made a left turn onto  Fifth
     Avenue.   Sergeant  Glen followed and  caught  up  with
     Lampley.   Because  Lampley was  speeding  and  driving
     aggressively,  Glen turned on his flashing  lights  and
     pulled  him over.  Glen also summoned a backup officer,
     and Officer Michael E. Wisel responded.
          During their contact with Lampley, both  Glen
and  Wisel observed that Lampley had watery eyes,  that
his  speech  was slurred, and that he had  an  odor  of
alcoholic  beverages.  Lampley admitted to drinking  at
several bars, and he also said he was taking medication
for back pain.
          Wisel  administered field sobriety  tests  to
Lampley,  and  Lampley did poorly on these  tests.   At
this  point,  Wisel  placed Lampley  under  arrest  for
driving under the influence.
          Wisel  drove  Lampley to  the  Fourth  Avenue
Police   Substation   for  DUI  processing.    At   the
substation,  Wisel  waited  for  fifteen  minutes  (the
prescribed  observation period), and he  then  notified
Lampley that Lampley was required to submit to a breath
test.   When Wisel asked Lampley if he would submit  to
the test, Lampley first refused to respond, and then he
shook his head to indicate that he would not submit  to
the  test.  Based on this conduct, Lampley was  charged
with breath-test refusal.
          At the time of these events, Lampleys drivers
license was suspended.  Kerry Hennings from the  Alaska
Division  of  Motor Vehicles testified  at  trial  that
Lampleys drivers license had expired on June 10,  1995,
and  that  his  license was suspended on  September  2,
1999.
          The  Division  of  Motor  Vehicles  mailed  a
notice  of suspension to the address that they had  for
Lampley  in their records, but this notice was returned
to   them  as  undeliverable.   However,  Alaska  State
Trooper David Herrell testified at Lampleys trial that,
on  July  6, 2003, he advised Lampley that his  drivers
license was suspended.
          Lampley  took  the  stand at  his  trial  and
testified that he was incarcerated at the Spring  Creek
Correctional  Center  when his license  was  suspended,
which  would  potentially explain why the DMVs  written
notice  of  suspension was returned to  them.   Lampley
also denied that Trooper Herrell had ever told him that
his  license was suspended.  Lampley conceded  that  he
had been cited for driving with a suspended license  in
September of 2003, but he claimed that someone  at  the
Anchorage Municipal Attorneys office told him that this
charge  was  dismissed because he in fact had  a  valid
license.
          Nevertheless,  on cross-examination,  Lampley
admitted that he had been convicted of driving  with  a
suspended license in 1992 and again in 1993,  and  that
he  had  never gone to get a new drivers license  since
then.   Further,  Lampley  admitted  that  he  did  not
possess  a physical drivers license when he was  pulled
over by Sergeant Glen on April 10, 2004.
          With regard to the other two charges (driving
under  the influence, and refusal to submit to a breath
test),  Lampley  denied  that he  had  been  under  the
influence and he further denied that he had refused the
breath  test.   Lampley  testified  that  he  had  been
driving  normally  and that he had only  drunk  half  a
beer,  several  hours before he was  pulled  over.   He
claimed  that  he  had  trouble  performing  the  field
sobriety  tests  because  of  his  bad  back,  and   he
explained  that  he  ran  the  red  light  because  his
passenger  pushed the gas pedal.  In addition,  Lampley
testified  that  he  never entered  the  Fourth  Avenue
police  substation and that he was never  offered   and
thus, did not refuse  a breath test.
          The  jury  convicted  Lampley  on  all  three
counts.
          Lampley was originally sentenced as a  second
DUI  offender.  At that first sentencing, the  district
court  imposed  a sentence of 200 days  with  170  days
suspended (30 days to serve) for the DUI, a consecutive
sentence  of 200 days with 170 days suspended (30  days
to   serve)   for  the  breath-test  refusal,   and   a
consecutive  sentence  of  180  days  with   150   days
suspended  (30  days  to  serve)  for  driving  with  a
suspended license.  All told, Lampley received 90  days
to serve.
          Later,  while  this appeal was  pending,  the
Municipality  discovered that  Lampley  had  two  prior
convictions  for DUI or breath-test refusal,  not  just
one.   This meant that Lampley was subject to a  higher
mandatory  minimum sentence  60 days  imprisonment   on
both  the  DUI  and  the breath-test refusal  charges.2
Accordingly, the Municipality filed a motion asking  us
to  remand Lampleys case to the district court so  that
his  sentence  could  be corrected.   We  granted  that
motion.
            On  remand,  the  district court  sentenced
Lampley  to consecutive sentences of 60 days  to  serve
(200 days with 140 days suspended) on both the DUI  and
the  breath-test refusal convictions.  This meant  that
Lampleys composite time to serve now equaled 150  days.
In  other  words, the district court increased Lampleys
time to serve by 60 days.

Lampleys Batson challenge during jury selection

          During  jury  selection,  Lampley  raised   a
Batson   objection   when  the   municipal   prosecutor
exercised  a  peremptory  challenge  against  a  Native
American  juror.   In Batson v. Kentucky,3  the  United
States  Supreme  Court held that the  equal  protection
clause  of  the federal constitution bars a  prosecutor
from  challenging a juror on the basis  of  the  jurors
race.4  This juror stated during voir dire that he  had
been  convicted  of DUI three times, and  that  he  was
recovering  from alcohol and drug abuse.  The  district
court rejected Lampleys Batson objection:
     
          The  Court:  [T]he explanation that  was
     given  to  me  [by  the  prosecutor]  at  the
     sidebar  [conference] was that  [this  juror]
     has  three  prior DUIs, and  this  is  a  DUI
     trial.    I   think  thats  a  [race-]neutral
     explanation.   And thats why Im  denying  the
     Batson challenge ... .
     
          Lampley  argues that  the  district
court erred by failing to decide whether  the
prosecutor was being honest in offering  this
explanation  for  the  peremptory  challenge.
But   though  the  district  judge  did   not
expressly   state  that  she   believed   the
prosecutors  explanation,  we  conclude  that
this finding is implicit in her remarks.   It
is  undisputed that the prospective juror had
three prior convictions for DUI, and there is
no indication that the judge had any doubt as
to whether this was the honest reason for the
prosecutors peremptory challenge.  We find no
error.

Lampleys  challenges to the prosecutors statements
during   the   rebuttal  portion  of  the   States
summation

     Lampley contends that he is entitled to a new
trial  because the prosecutor engaged in  improper
argument  during  the  rebuttal  portion  of   the
Municipalitys  summation, and  because  the  trial
judge failed to give curative instructions to  the
jury.
     A  prosecutors statements to the jury  during
summation  will  require reversal  of  a  criminal
conviction  only  if the prosecutors  comments  so
infected the trial with unfairness as to make  the
resulting  conviction a denial  of  due  process.5
Here,  none of the prosecutors challenged comments
created   or   even  threatened  this   level   of
unfairness.
     Lampley  objects to the following  statements
of  the  prosecutor, made in response to  Lampleys
argument that much of the evidence against him had
been fabricated:
[I]f  you  ... find [that there has  been]  a
conscious  effort to mislead you,  [then  you
should] find [Lampley] not guilty of all  the
charges, because thats the right thing to do.
And  I  can stand here and say that,  because
there is no misleading.  This officer is  not
misleading anybody.

A few minutes later, the prosecutor returned to this theme:

We  ... know [that] there were other officers
[too].  That means all of them were in on it.
The  magistrate,  hes in  on  it;  the  tape,
fabricating  evidence.  By the  time  we  get
done  here,  ...  Ill be prosecuting  Officer
Wisel.  Its just not true.  Tell him its  not
true.  Find him guilty.

          Lampley argues that the prosecutors
statements  invited the  jury  to  shift  the
burden of proof to the defense.  We disagree.
Nothing  in  these statements  addressed  the
burden of proof.
          Lampley also argues that, in  these
two statements, the prosecutor was improperly
vouching   for   the   veracity   of   police
witnesses.  The prosecutors remarks were made
in  the  context of Lampleys  attack  on  the
various  law enforcement officers  testimony.
As  explained above, Lampley testified  that,
on  the  night of his arrest, he  never  went
into  the Fourth Avenue substation, much less
refused the breath test.  And Lampley further
insisted that Trooper Herrell was lying  when
he  testified  that he informed Lampley  that
          his license was suspended.  Given Lampleys
assertions  at  trial, the  prosecutor  could
properly  argue  that the officers  had  been
telling  the truth, so long as the prosecutor
did   not  declare  or  insinuate  that   his
argument   rested   on   his   own   personal
assessment of the officers credibility, or on
information  that had not been  presented  as
evidence during Lampleys trial.
          See  Darling v. State, 520 P.2d 793
(Alaska   1974),  where  our  supreme   court
stated:

     [The   defendant]  asserts  [that]   the
prosecutors [summation] exceeded  the  bounds
of  propriety.  On three occasions[,] counsel
for  the government alluded to the fact  that
[the] states chief witness was a sworn police
officer[,]   and   on   one   occasion   [the
prosecutor] argued that this undercover agent
was absolutely truthful.  We find nothing  in
these   statements,   standing   either    by
themselves  or in the full context  in  which
they were made, which constitutes a violation
of  the  rule barring counsel from personally
vouching  for the credibility or  reliability
of a witness.

Darling, 520 P.2d at 794 n. 6.
          Lampley   argues  that   when   the
prosecutor  stated, By the time we  get  done
here,  ... Ill be prosecuting Officer  Wisel,
the  prosecutor was implicitly  assuring  the
jurors that the officer was telling the truth
(because the officer was not being prosecuted
for perjury or other misconduct).  But taking
this  remark in context, it is doubtful  that
the  jurors understood the prosecutor  to  be
personally   vouching   for   the    officers
testimony.   Rather,  it  appears  that   the
prosecutor  was  emphasizing  the  fact  that
Lampleys  defense rested on the  questionable
assumption  of  a far-ranging  conspiracy  to
distort the truth and fabricate evidence.
          Lampley    also   challenges    the
prosecutors  comment during  summation   that
[d]enial has been a tradition since Cain, and
that  the jurors had seen another example  of
denial in Lampleys case.  Lampley argues that
the   prosecutor  was  improperly   comparing
Lampley to Cain, and that the prosecutor  was
also   improperly  arguing  that  the   Bible
somehow showed that Lampley was guilty.
          We   disagree.   As  noted   above,
Lampley  testified  that he  was  not  intoxi
cated,  that  he never was taken  inside  the
police substation and offered a breath  test,
and  that  he never received any notice  that
his  license  was  suspended.   The  officers
testified  otherwise.  The  prosecutor  could
properly argue that the jurors should believe
the officers and should conclude that Lampley
was falsely denying his guilt.
          In   sum,  the  trial  judge  could
properly overrule Lampleys objections to  the
foregoing  arguments and could properly  deny
Lampleys requests for curative instructions.
          Finally,  Lampley  objects   to   a
portion of the rebuttal argument in which the
prosecutor  addressed the  issue  of  whether
Lampley  had received notice that his drivers
license  was suspended or revoked.   Lampleys
objections to this portion of the prosecutors
summation  are  now  moot   because,  as   we
explain   later  in  this  opinion,  Lampleys
conviction  for  driving  with  a   suspended
license must be reversed.

The jury instructions on the meaning of reasonable
doubt,  the  elements of DUI, and the elements  of
breath-test refusal

     Lampley    challenges    several    of    the
instructions  given  to the jury.   The  first  of
these  is  the  instruction  on  the  concept   of
reasonable  doubt.   This instruction  stated,  in
pertinent part:

The  law  presumes a defendant to be innocent
of   crime.   Thus,  a  defendant,   although
accused, begins the trial with a clean  slate
with  no  evidence favoring conviction.   The
presumption of innocence alone is  sufficient
to   acquit  a  defendant,  unless  you   are
satisfied  beyond a reasonable doubt  of  the
defendants guilt, after careful and impartial
consideration  of  all the  evidence  in  the
case.

 This last-mentioned requirement, that you be
satisfied  beyond  a  reasonable   doubt   of
defendants  guilt,  is  what  is  called  the
burden of proof.  It is not required that the
prosecution  prove guilt beyond all  possible
doubt,  for  it is rarely possible  to  prove
anything  to an absolute certainty.   Rather,
the  test  is  one  of reasonable  doubt.   A
reasonable doubt is a doubt based upon reason
and  common sense.  Proof beyond a reasonable
doubt  must  be  proof of such  a  convincing
character  that,  after  consideration,   you
would  be  willing to rely and  act  upon  it
without hesitation in your important affairs.
A  defendant is never to be convicted on mere
suspicion or conjecture.

The  burden  of proving the defendant  guilty
beyond  a reasonable doubt always rests  upon
the  prosecution.  This burden  never  shifts
throughout  the  trial,  for  the  law  never
imposes  upon a defendant in a criminal  case
the burden or duty of calling any witness  or
producing any evidence.  ...

          Lampley     argues    that     this
instruction  undermines  the  presumption  of
innocence  by  telling  the  jurors  that   a
defendant  begins  a criminal  trial  with  a
clean  slate  and  with no evidence  favoring
conviction.   Lampley  contends   that   this
phrasing suggests that the scales are  evenly
balanced  at  the  beginning  of  a  criminal
trial,  rather than tipping heavily in  favor
of the defendant.
          Lampley   also   objects   to   the
statement   in  the  instruction   that   the
Municipality did not need to prove  its  case
to an absolute certainty.  Lampley recognizes
that  we  upheld this language in  Wilson  v.
State,6  but he argues that Wilson should  be
overruled.   Lampley  also  argues  that  the
instruction unlawfully shifted the burden  of
proof by telling the jurors that a reasonable
doubt is a doubt based upon reason and common
sense.   Lampley contends that this  language
seemingly  tells  the jurors  that  it  is  a
defendants burden to establish that any doubt
concerning    the   defendants    guilt    is
reasonable.
          We  decline to overrule Wilson.  We
further find that the challenged instruction,
taken  as  a  whole, accurately explains  the
presumption  of  innocence, the  prosecutions
burden  of  proving guilt beyond a reasonable
          doubt, and the definition of reasonable
doubt.
          Lampley next challenges the  judges
instruction on the elements of driving  under
the  influence.   The challenged  instruction
states  that it was the Municipalitys  burden
to  prove  that  Lampley  knowingly  consumed
alcoholic  beverages and  knowingly  drove  a
motor vehicle.  Lampley does not dispute that
this   is  an  accurate  statement  of  law.7
However, he points out that the Municipalitys
DUI  complaint contained different  language:
Jimmy   Aaron  Lampley  did  unlawfully   and
intentionally  drive  or  operate   a   motor
vehicle   ...  while  under  the   influence.
(Emphasis   added)   Lampley   argues   that,
because   the   Municipality  included   this
language  in  the complaint, the Municipality
was obliged to prove that Lampley intended to
drive while under the influence.
          It is true that the language of the
complaint  misdescribes the  culpable  mental
state  that  must be proved to establish  the
offense.   However, Lampley has  not  alleged
that he detrimentally relied on this language
or  that he was otherwise prejudiced  by  the
misstatement  in  the  complaint.   And,   as
explained in the preceding paragraph, Lampley
concedes that the challenged jury instruction
accurately  states the law.  Accordingly,  it
was  not  error for the judge  to  give  this
instruction to the jury.
          Lampley  also challenges  the  jury
instruction  on  the elements of  breath-test
refusal.  He argues that, under the Anchorage
Municipal Code, the government must prove  to
the  jury  that there was probable cause  for
the  defendants arrest and that the defendant
was otherwise lawfully arrested.
          Anchorage      Municipal       Code
9.28.021.A  states  that the  operator  of  a
motor  vehicle consents to the administration
of   a  chemical  test  for  the  purpose  of
determining the drivers blood alcohol content
if  [the  driver has been] lawfully  arrested
for an offense that occurred while the person
was  driving under the influence.  This  same
section further states that the chemical test
shall be administered at the direction  of  a
law  enforcement  officer  who  has  probable
cause to believe the person was driving under
the influence.
          However,  we  have repeatedly  held
that  the  legality of the drivers arrest  is
not  an  element of the crime of  breath-test
          refusal; rather, any question concerning the
legality of the arrest is a suppression issue
to  be  decided by the judge.   Patterson  v.
Anchorage,  815  P.2d 390, 392  (Alaska  App.
1991);  Brown  v. State, 739  P.2d  182,  187
(Alaska App. 1987); Skuse v. State, 714  P.2d
368, 372 (Alaska App. 1986).
          Lampley suggests that we should re-
examine  these  decisions  in  light  of  the
United  States  Supreme Courts  decisions  in
United   States   v.  Booker,8   Blakely   v.
Washington,9  and  Crawford v.  Washington.10
However, Lampley does not explain how any  of
these  cases  are relevant to  the  issue  of
statutory interpretation presented here.
          We   therefore  conclude  that  the
district court correctly instructed the  jury
on the elements of breath-test refusal.

The erroneous jury instruction on the elements  of
driving with a suspended or revoked license

          Lampley  also challenges the jury instruction
defining the elements of driving while ones license  is
suspended or revoked.  In this instruction, the  jurors
were  told  that the Municipality needed to prove  that
Lampley  was  negligent concerning the  fact  that  his
drivers license was suspended.  Lampley argues that the
true   culpable  mental  state  for  this  offense   is
recklessness rather than negligence.  We agree.
          When this issue was raised at Lampleys trial,
the  district court concluded the issue was  controlled
by  this Courts decision in Gregory v. State, 717  P.2d
428  (Alaska App. 1986).  In Gregory, we held that  the
required  culpable  mental state  for  the  offense  of
driving  with  a  suspended  or  revoked  license   was
criminal negligence.  Id. at 432.
          But  in  Gregory,  we  were  construing  this
offense  as  it  is  defined  under  state  law  in  AS
28.15.291.   Lampley  was  not charged  with  violating
AS 28.15.291; rather, he was charged with violating the
corresponding Anchorage ordinance, AMC 9.28.019.B.
          The   Anchorage   Municipal  Code   expressly
provides  that  [i]f  a provision of  law  defining  an
offense does not prescribe a culpable mental state, the
culpable mental state that must be proved with  respect
to  ...  a  circumstance or result is recklessly.   AMC
8.05.010.C.
          Unlike  the  corresponding rule of  statutory
construction codified in AS 11.81.610(b), which applies
only  to the criminal offenses defined in Title  11  of
the   Alaska   Statutes,11  the   rule   of   statutory
construction codified in AMC 8.05.010.C applies to  all
offenses  defined  under municipal  law.   Accordingly,
Anchorage  municipal law specifies that  recklessly  is
          the culpable state that the government must prove to
convict  someone of driving with a suspended or revoked
license as defined in AMC 09.28.019.B.
          The  Municipality concedes that its municipal
law   apparently  calls  for  this  result.   But   the
Municipality argues that, in this situation,  the  rule
of statutory construction codified in AMC 8.05.010.C is
inconsistent  with state law on the same  subject,  and
thus  AMC 8.05.010.C is unlawful to the extent that  it
requires  a  higher  culpable mental  state  (proof  of
recklessness  rather  than proof of  negligence).   The
Municipality urges us to declare that, because criminal
negligence  is the culpable mental state that  must  be
proved  under  state  law,  no  municipality  has   the
authority  to  enact  a  corresponding  ordinance  that
requires proof of a higher culpable mental state.
          The  Municipalitys  argument  hinges  on   AS
28.01.010(a), which declares that [a] municipality  may
not  enact an ordinance that is inconsistent  with  the
provisions of [Title 28 of the Alaska Statutes] or  the
regulations adopted under [that] title.
          It  is  true  that  there  is  a  discrepancy
between  the  state  and municipal definitions  of  the
offense of driving with a suspended or revoked license.
But  not  every discrepancy between state and municipal
law  amounts  to  an inconsistency for purposes  of  AS
28.01.010(a).
          To determine whether a municipal ordinance is
inconsistent  with  state  law  for  purposes   of   AS
28.01.010(a), we assess the totality of the legislative
framework  within  which  the municipal  ordinance  and
state          statute         are          included.12
The  question  is  not  merely whether  there  is  some
discrepancy  between the two laws, but  rather  whether
any  discrepancy ... impedes or frustrates  [a]  policy
expressed by state law.13
          For example, in Adkins v. Lester, 530 P.2d 11
(Alaska  1974),  the  Alaska Supreme  Court  considered
whether   there   was  an  impermissible  inconsistency
between  a  state  traffic  regulation  that  permitted
drivers  of  emergency vehicles to forego  the  use  of
audible   signals  and  warning  lights  under  certain
circumstances, and a Fairbanks ordinance that  required
the use of audible signals at all times.14  The supreme
court held that the ordinance was inconsistent with the
statute  and, therefore, adoption of the ordinance  was
prohibited under state law.15
          Likewise, in Simpson v. Anchorage,  635  P.2d
1197  (Alaska  App.  1981), this Court  considered  the
discrepancy   between  the  state  statute  prohibiting
driving  while  under  the  influence  of  intoxicating
liquor and the corresponding Anchorage ordinance  which
provided an alternative way of proving the crime  proof
that  the  operator of the vehicle had a blood  alcohol
level  of .10 percent or greater.16  We concluded  that
          the municipal ordinances blanket prohibition against
driving  with a blood alcohol level of .10  percent  or
greater,  without  regard to  whether  the  driver  was
actually   under   the  influence,  was   impermissibly
inconsistent with the corresponding state statute.17  We
therefore struck down the ordinance.
          But  in  Cremer v. Anchorage,  575  P.2d  306
(Alaska 1978), the Alaska Supreme Court concluded  that
there  was  no  impermissible inconsistency  between  a
state  statute that prohibited driving a motor  vehicle
on  a  public highway while ones license was suspended,
and a corresponding municipal ordinance that prohibited
driving   a   motor   vehicle   anywhere   within   the
municipality  while ones license was suspended.18   The
supreme  court  concluded that the discrepancy  between
the  statute and the ordinance  i.e., the fact that the
ordinance  covered  the driving of  motor  vehicles  on
private property as well as public highways  was not so
inconsistent  with state law as to be prohibited  under
AS 28.01.010(a).19
          In  the present case, Anchorage municipal law
requires  the  government to prove that  a  driver  was
reckless, and not just negligent, with respect  to  the
fact  that  the  drivers  license  was  suspended.   By
requiring proof of a higher culpable mental state,  the
Municipality has made it harder to prosecute people for
driving  with  a  suspended or  revoked  license  under
municipal law than it would be to prosecute these  same
people  under  state law.  But we do not  believe  that
this    discrepancy   amounts   to   an   impermissible
inconsistency.
          As  explained above, the question is  whether
the Municipalitys enactment of a higher culpable mental
state impedes or frustrates state policy.20  It does not
appear  to.   The State retains concurrent jurisdiction
over  traffic  offenses  within  the  Municipality   of
Anchorage;  that  is,  the  state  statute  prohibiting
driving  while  ones  license is suspended  or  revoked
continues   to   apply  within  the   Municipality   of
Anchorage.   Thus, drivers who negligently  ignore  the
fact  that  their license is suspended or  revoked  can
still  be  prosecuted under state law, AS 28.15.291(a),
even if they could not be successfully prosecuted under
the municipal ordinance.
          In  Salt  Lake City v. Newman, 113 P.3d  1007
(Utah  App. 2005),21 the Utah Court of Appeals recently
considered  this same issue:  whether a city government
might properly enact a criminal ordinance that required
a  higher  culpable mental state than the corresponding
state  statute.  The state statute defined  assault  as
recklessly  creating a risk of injury, while  the  city
ordinance  defined  assault as  willfully  using  force
against  another.22  The court concluded that the  city
ordinance was not impermissibly inconsistent  with  the
state  statute  because the state statute continued  to
          apply, and because the municipal ordinance did not
purport  to authorize people to engage in conduct  that
was forbidden under the state statute.23
            In  Spokane  v. White, 10 P.3d 1095  (Wash.
App.  2000),  the Washington Court of Appeals  recently
considered  the converse of the situation presented  in
Lampleys case  a local ordinance that required proof of
a  lesser  culpable mental state than the corresponding
state  statute.  The state statute defined  assault  as
requiring proof of intent, but the city ordinance  only
required  proof that the defendant acted  willfully  or
knowingly.24  The Washington court concluded  that  the
statute   and  the  ordinance  were  not  impermissibly
inconsistent.  The court noted that the local ordinance
     does  not attempt to authorize what  the
     Legislature has forbidden; nor  does  it
     forbid   what   the   Legislature    has
     expressly   licensed,   authorized,   or
     required.  The ordinance merely  differs
     from  the state statute in the scope  of
     the required mental culpability.
     
White, 10 P.3d at 1099.25
          Like  these  cases from Utah and  Washington,
the  Anchorage municipal ordinance at issue in Lampleys
case   does  not  authorize  conduct  that  the  Alaska
legislature  has forbidden, nor does it forbid  conduct
that  the  Alaska  legislature  has  authorized.    The
Anchorage ordinance does not declare that it  is  legal
to  drive  if  you are merely negligent concerning  the
possibility that your license is suspended or  revoked.
Nor  does  the Anchorage ordinance purport to  prohibit
the  State  from enforcing its stricter statute  within
the   geographic  limits  of  the  Municipality.    The
ordinance  simply makes it harder for the  Municipality
to prosecute someone for the same conduct.
          We  therefore  conclude that  the  challenged
ordinance does not impede or frustrate state policy  or
the  enforcement of state law  and, thus, there  is  no
unlawful  inconsistency between the Anchorage ordinance
and  the corresponding state statute.  The Municipality
of Anchorage may lawfully require proof of recklessness
in  prosecutions  for  driving while  ones  license  is
suspended or revoked.
          This  means  that  the  jury  instruction  in
Lampleys case erroneously described the culpable mental
state  that the Municipality was obliged to prove.   As
explained  above,  the  jurors  were  told   that   the
Municipality  only needed to prove that  Lampley  acted
with  criminal  negligence concerning  the  possibility
that his license was suspended.  In fact, however,  the
Municipality  needed to prove that Lampley  acted  with
recklessness.
          This   error   was  not  harmless.    Lampley
actively disputed the Municipalitys claim that  he  had
          been notified that his license was suspended.  Lampley
testified  that  he  was in Spring  Creek  Correctional
Center  when his license was suspended and that he  did
not receive the notification from the Division of Motor
Vehicles.   Lampley  also denied that  Trooper  Herrell
ever told him that his license was suspended.
          Lampley  admitted that he had been  convicted
of  driving with a suspended license in 1992 and  1993,
that  he  had  never gone to get a new drivers  license
since then, and that he had been cited for driving with
a  suspended  license in September of  2003.   However,
Lampley claimed that someone at the Anchorage Municipal
Attorneys  office  told  him that  his  2003  suspended
license  charge was dismissed because the  Municipality
determined that he had a valid drivers license.
          Given  this  record, the jurys  decision  may
well have hinged on the fact that they were erroneously
told  that  the Municipality needed only to  prove  the
lesser culpable mental state of negligence rather  than
the   more   exacting   culpable   mental   state    of
recklessness.    Accordingly,   we   reverse   Lampleys
conviction for this offense.  He is entitled to  a  new
trial  on  the  charge of driving with a  suspended  or
revoked license.

     Lampleys motion for a new trial
     
               Three  weeks  following his  conviction,
     Lampley  filed a motion for a new trial.  In  this
     motion,  Lampley alleged that corrections officers
     had     illicitly    monitored    his    telephone
     communications  with  his  lawyer,  and  that  the
     Municipality  had therefore obtained  an  improper
     advantage when preparing for trial.  The  district
     court denied this motion without a hearing.
               Alaska Criminal Rule 33(c) states that a
     motion  for  a new trial must be made within  five
     days of the verdict unless the motion is based  on
     newly  discovered  evidence  (in  which  case  the
     motion  must be made within 180 days of the  final
     judgment).   Lampley filed his motion three  weeks
     after  the  verdict.   Thus, at  that  point,  his
     motion was untimely on any ground other than newly
     discovered evidence.
               A  motion for a new trial based on newly
     discovered   evidence  must  meet  the   following
     requirements:  (1) It must appear from the  motion
     that  the  evidence relied on is, in  fact,  newly
     discovered, i.e., discovered after the trial;  (2)
     the  motion must allege facts from which the court
     may   infer   diligence  on  the   part   of   the
     [defendant]; (3) the evidence relied on  must  not
     be  merely  cumulative  or  impeaching;  (4)  [the
     evidence] must be material to the issues involved;
     and  (5) [the evidence] must be such as, on a  new
     trial, would probably produce an acquittal.26
          In  his  motion  for  a  new  trial,  Lampley
asserted  that his attorney-client communications  were
monitored by corrections officers:
     This  was  made  plain  to  Mr.  Lampley   by
     correctional officers mimicking and repeating
     information  and  statements  emanating  from
     counsels  side  of a privileged conversation.
     ...   This is not the first time Mr. Lampleys
     attorney-client  communications   have   been
     monitored unlawfully.
     We  conclude  that the district court did not  have  to
decide  whether  Lampleys allegation was true   because  the
record  discloses that Lampley was aware of  this  potential
problem during his trial.  On the morning of August 5,  2004
that  is,  on  the  second  day of Lampleys  four-day  trial
Lampley  told  the  trial  judge  that  he  had  heard  jail
personnel making comments that indicated they were aware  of
the  contents  of Lampleys conversations with his  attorney.
But  instead  of  asking the court to  declare  a  mistrial,
Lampley  simply asked for an order directing jail  personnel
to  stop monitoring his attorney-client conversations.   The
district  court granted this request, ordering that  all  of
Lampleys attorney contact [shall] be unmonitored.
     Given  this  record, Lampleys motion for  a  new  trial
under  Criminal Rule 33(a) was untimely  because  his  claim
was  not  based on newly discovered evidence.  The  district
court could deny the motion on this basis alone.
          Moreover,  the record shows that Lampley was  aware  of
the  potential problem during his trial, and yet he  only  sought
(and  obtained)  relief short of a mistrial.  Under  Alaska  law,
Lampley was not entitled to gamble on the jurys verdict and then,
three  weeks after being convicted, raise this issue again  in  a
motion for a new trial. In such circumstances, Alaska law bars  a
defendant  from withholding a request for mistrial or  new  trial
until  the defendant has heard the jurys decision.  See Owens  v.
State, 613 P.2d 259, 261 (Alaska 1980) (a defendant should not be
allowed  to take a gamblers risk and complain only if  the  cards
[fall]  the  wrong  way); Turpin v. State, 890  P.2d  1128,  1130
(Alaska App. 1995).
          As  this Court said in Allen v. State, 51 P.3d 949, 953
(Alaska App. 2002):
          
          When  a  [defendant] believes that  an  error
          requires  early termination of the  trial  or
          other extraordinary relief (such as summoning
          a  new jury panel), the [defendant] must  ask
          the trial judge to take action when action is
          still  possible.  The claim of error can  not
          be deferred until appeal.
          
          This   same   principle   applies   to    the
          circumstances of Lampleys post-verdict motion
          for  a  new  trial.  We accordingly  conclude
          that  the district court could properly  deny
          Lampleys motion without holding a hearing  on
          the merits of Lampleys claim.
          
     The  district court could properly determine the number
     of  Lampleys prior convictions without submitting  this
     issue to a jury
     
               As  explained  above, Lampley  was  initially
     sentenced  as  a second offender.  Later, the  district
     court  concluded that Lampley had two prior convictions
     for DUI or breath-test refusal, and the court therefore
     re-sentenced Lampley as a third offender.
               Lampley  argues  that a  jury,  and  not  the
     sentencing judge, should have decided the issue of  how
     many  prior convictions he had.  Lampley concedes  that
     we  held the opposite in Huitt v. State, 678 P.2d  415,
     422-23  (Alaska App. 1984), but he asks us to  overrule
     Huitt.
          Lampley  has  not provided us any  convincing
reason   to   revisit  Huitt.   He  cites  Blakely   v.
Washington,27  a  decision  which  expanded  the  Sixth
Amendment  right  to  jury  trial  in  the  context  of
presumptive sentencing.  But this right to  jury  trial
only  comes into play when the resolution of a disputed
factual  issue  will  determine the defendants  maximum
sentence.   There is no Sixth Amendment right  to  jury
trial when resolution of the factual issue affects only
the defendants mandatory minimum sentence, and does not
alter the defendants potential maximum sentence.
          The  United  States Supreme  Court  explained
this  point in Harris v. United States, 536  U.S.  545,
122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), where the Court
held  that  a  legislature does not violate  the  Sixth
Amendment   right  to  jury  trial  by   increasing   a
defendants  mandatory minimum sentence (as  opposed  to
the  defendants maximum sentence) based on  aggravating
facts that are tried to, and decided by, the sentencing
judge.28
          Under  the  Anchorage  Municipal  Code,   all
defendants   convicted  of  DUI  and   all   defendants
convicted of breath-test refusal face the same  maximum
penalty:  1 years imprisonment.  See AMC 09.48.010.D.2.
A   defendants  prior  convictions  affect   only   the
mandatory  minimum penalty to which  the  defendant  is
subject.   See  AMC  09.28.020.C and  AMC  09.28.022.D.
Thus, a defendant has no Sixth Amendment right to  jury
trial  with regard to these prior convictions, even  if
they are disputed.

The  district court violated the double jeopardy clause
when,  at  Lampleys re-sentencing, the court  increased
Lampleys  composite  sentence for DUI  and  breath-test
refusal

          After  the  district  court  concluded   that
Lampley  had two prior convictions for DUI  or  breath-
test  refusal  in other words, that Lampley was a third
offender   for   purposes  of  the  mandatory   minimum
sentences  set  forth  in  AMC  09.28.020.C.1  and  AMC
09.28.022.D.1  the district court re-sentenced Lampley.
          Lampley had originally received only 30  days
to  serve for each of  the offenses of DUI and  breath-
test   refusal.   But  AMC  09.28.020.C.1.c  (the   DUI
ordinance)  and  AMC 09.28.022.D.1.c  (the  breath-test
refusal  ordinance)  both require a  mandatory  minimum
sentence  of 60 days imprisonment if a defendant  is  a
third  offender.  Accordingly, after the district court
discovered that Lampley was a third offender, the court
re-sentenced   Lampley   and  imposed   these   greater
penalties.  This was proper.
          Nevertheless,  when  a  court   corrects   an
illegally lenient sentence, the court can increase  the
sentence  only to the extent necessary to  correct  the
illegality.29    The  district  court   violated   this
principle in Lampleys case.
          Under Alaska state law, a defendant convicted
of  both  DUI  and  breath-test  refusal  must  receive
consecutive  sentences for these offenses.30   However,
the   Anchorage   Municipal   Code   has   no   similar
requirement.   When a defendant is convicted  of  these
two   crimes   under  Anchorage  municipal   law,   the
sentencing   judge   may  impose  the   two   sentences
concurrently.
          It  is  true that Lampley originally received
consecutive sentences for these two offenses.  But, for
present  purposes,  the important  thing  is  that  the
district  court  had the discretion to impose  the  two
sentences concurrently.  Thus, when the district  court
discovered that Lampley was a third offender and  that,
as  a  consequence, Lampleys sentences  for  these  two
crimes  would have to be increased to 60 days to serve,
the  district  court had the authority to impose  these
greater  mandatory minimum sentences but to  make  them
concurrent   thus giving Lampley the mandatory  minimum
sentences   that  the  law  prescribed,   but   without
increasing Lampleys total time to serve.
          Altering  the judgement in this manner  would
satisfy  the  municipal  laws  requirement  of   60-day
minimum sentences for the two offenses, but at the same
time  it would honor the double jeopardy clause of  the
Alaska  Constitution  by preserving  Lampleys  original
composite sentence of 90 days to serve.
          The  Municipality does not dispute  that  the
Anchorage  Municipal Code permits  a  judge  to  impose
concurrent  sentences for DUI and breath-test  refusal.
But  again,  the  Municipality invokes AS  28.01.010(a)
arguing  that  this aspect of its municipal  sentencing
law  is illegal because (according to the Municipality)
the   imposition  of  concurrent  sentences   in   this
          situation would be inconsistent with state sentencing
law.
          We   have  already  explained  the  test  for
deciding  whether a discrepancy between state  law  and
municipal  law  renders the two laws  inconsistent  for
purposes  of AS 28.01.010(a).  Applying that  test,  we
conclude  that  this  discrepancy  between  state   and
municipal law is not a fatal inconsistency.
          The core goal of AS 28.01.010(a)  the statute
that requires statewide uniformity of traffic laws   is
to  ensure  that motorists will not be subjected  to  a
patchwork  of  differing traffic laws  as  they  travel
within  this  state.  The fact that the district  court
may  have differing sentencing authority, depending  on
whether  a motorist is charged under state or municipal
law, does not affect this statutory goal.
          It  is possible to argue that state policy is
defeated when a municipality enacts a penalty  that  is
different  from the one provided by state law  for  the
same  underlying traffic misconduct.  But our  research
of  the  case  law  in this area shows that,  generally
speaking,   when  a  municipal  ordinance  provides   a
different  penalty for criminal conduct, the  ordinance
will  be  invalidated  only if it  provides  a  greater
penalty than the corresponding state statute.31  That is
not the case here.
          Finally,   one  could  argue  that,   because
Anchorage sentencing law allows the district  court  to
impose concurrent sentences for the two offenses of DUI
and  breath-test refusal, the Anchorage  law  undercuts
the  state policy of encouraging arrested motorists  to
submit to a breath test.
          Even though motorists in Alaska are deemed to
have  impliedly consented to a chemical test  of  their
breath if they are lawfully arrested for driving  under
the  influence,32 the police in most instances have  no
authority to physically force the motorist to submit to
the  test.33  Instead, the legislature has made breath-
test  refusal a separately punishable crime,34 and  has
made  breath-test  refusal an  independent  ground  for
administrative   revocation  of  a  motorists   drivers
license.35  The purpose of these laws, as we  noted  in
Bass  v.  Anchorage, was to provide[] extremely  strong
incentives to [an arrestee] to take a breath test.36
          It appears that the legislature had a similar
purpose when it mandated consecutive sentences for  the
separate  offenses  of  DUI  and  breath-test  refusal.
Because   of   the   mandated  consecutive   sentences,
defendants who are convicted of both offenses know that
they  will  serve additional jail time for the  act  of
refusing  the  test.  If a defendant knows  about  this
sentencing provision, it becomes one more component  of
the  governments effort to induce (or coerce)  arrested
motorists to take the breath test.
          But  although the requirement of  consecutive
          sentencing might further the goal of having arrested
motorists take the breath test, it operates in  a  much
more attenuated fashion than the provisions of law that
make breath-test refusal a separate crime and that make
breath-test   refusal   an   independent   ground   for
administrative  revocation  of  the  arrestees  drivers
license.   These latter two provisions exert  immediate
pressure  on  the  arrestee  to  take  the  test.   The
requirement  of  consecutive sentences,  on  the  other
hand, makes a difference only in the long run  and only
if the defendant is indeed convicted of both offenses.
          The   legislature  itself  appears  to   have
recognized  this  distinction in AS  28.35.032(a),  the
statute  that  specifies  the  warnings  that  arrested
motorists must receive before they can be charged  with
the  separate offense of refusing a breath test.   This
statute  says that, before an arrested motorist refuses
the breath test, the motorist must be advised
     
     that the refusal will result in the denial or
     revocation   of   the   [arrestees]   drivers
     license,  ... that the refusal  may  be  used
     against the [arrestee] in a civil or criminal
     action  ... arising out of an act alleged  to
     have  been  committed  by  the  person  while
     operating  a motor vehicle or aircraft  while
     under the influence of an alcoholic beverage,
     ... and that the refusal is a crime ...  .
     
Notably lacking here is any requirement  that
the arrested motorist be advised that, if the
motorist is ultimately convicted of both  DUI
and breath-test refusal, the sentencing judge
will  be  obliged  to impose  the  applicable
mandatory  minimum sentences of  imprisonment
consecutively.
          We  conclude  that the  legislature
omitted  this warning because the legislature
concluded  that  any  conditional  threat  of
consecutive sentences is simply too remote to
have  any  substantial effect on the arrested
motorists    decision-making     that    this
conditional threat is unlikely to  alter  the
motorists decision to refuse the test if  the
motorist  has  already been apprised  of  the
three   major  consequences  listed  in   the
statute.
          For  similar  reasons, we  conclude
that  the municipal sentencing provision that
allows   concurrent   sentences   in    these
circumstances  is  not  fatally  inconsistent
with   state   law   for   purposes   of   AS
28.01.010(a).  Although one could argue  that
the possibility of concurrent sentences might
conceivably  reduce the pressure on  arrested
defendants to take the breath test, any  such
effect  appears to be speculative and remote.
The main pressure to take the test comes from
the  more  immediate consequences  listed  in
AS   28.35.032(a):   being  charged  with   a
separate  crime, having ones drivers  license
revoked, and the fact that the refusal can be
used against the arrestee in a later civil or
criminal action.
          We  conclude  that this discrepancy
between  state  and municipal sentencing  law
does not significantly impede or frustrate  a
policy  under state law  and that, therefore,
this  discrepancy does not rise to the  level
of   an  inconsistency  for  purposes  of  AS
28.01.010(a).
          Because  the  municipal  sentencing
provision   is  valid   i.e.,   because   the
district court could lawfully impose Lampleys
sentences  for  DUI  and breath-test  refusal
concurrently  the district court was  obliged
to exercise this authority when the court re-
sentenced Lampley.
          As  explained above, Lampley had to
be re-sentenced because his initial sentences
for   these  two  offenses   two  consecutive
sentences of 30 days  were illegally lenient.
The  district court was obliged to  fix  this
sentencing  problem in a way  that  increased
Lampleys   sentence  to  the   least   extent
possible.
          Because concurrent sentences are an
option  under  municipal  law,  the  district
court   could  impose  the  mandated   60-day
minimum  sentences  for DUI  and  breath-test
refusal without increasing Lampleys composite
time   to  serve   by  making  these   60-day
sentences   concurrent.   And  because   this
option   existed,  the  district  court   was
constitutionally required to follow it.

The district court did not violate the due process
clause,  the  double  jeopardy  clause,   or   the
doctrines of equitable estoppel or laches when the
court  re-sentenced Lampley after he  had  already
finished serving his original sentence

     Finally,   Lampley  argues   that   his   re-
sentencing  violated the guarantee against  double
jeopardy,  as  well  as  the  principles  of   due
process,  equitable estoppel, and laches,  because
he  had already served his sentence at the time he
was  re-sentenced.   These claims  are  moot.   As
explained  in  the  preceding  section,   we   are
directing  the district court to impose concurrent
sentences for Lampleys offenses of DUI and breath-
test  refusal.   That  is, we  are  directing  the
district court to impose a sentence that does  not
increase Lampleys composite time to serve.

Conclusion

     Lampleys  convictions for driving  under  the
influence and refusing to submit to a breath  test
are  AFFIRMED.   Lampleys conviction  for  driving
while  his  license  was  suspended  is  REVERSED.
Further,  we direct the district court  to  MODIFY
Lampleys sentences for DUI and breath-test refusal
by making the 60-day time-to-serve portions of the
two sentences concurrent.

_______________________________
     1  AMC  9.28.020.A,  AMC  9.28.022.C,  and  AMC  9.28.019.B,
respectively.

2 AMC 9.28.020.C.1.c; AMC 9.28.022.D.1.c.

3 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

4 Id., 476 U.S. at 89, 106 S.Ct. at 1719.

5 Darden v. Wainwright, 477 U.S. 168, 169; 106 S.Ct. 2464,
2466; 91 L.Ed.2d 144 (1986).

6 967 P.2d 98, 100-01 (Alaska App. 1998).

7 See State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002)
(citing  Morgan v. Anchorage, 643 P.2d 691, 692 (Alaska
App. 1982)).

8 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

9 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

10 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

11 AS 11.81.640.

12  Simpson  v. Anchorage, 635 P.2d 1197, 1200 (Alaska  App.
1981).

13 Id. at 1204.  See also Cremer v. Anchorage, 575 P.2d 306,
307-08  (Alaska 1978); Adkins v. Lester, 530 P.2d 11,  13-15
(Alaska 1974).

14 Lester, 530 P.2d at 13-14.

15 Id. at 15.

16 635 P.2d at 1200-08.

17 Id. at 1206-08.

18 575 P.2d at 307-08.

19 Id. at 308.

20 Simpson, 635 P.2d at 1204; Cremer, 575 P.2d at 307-08.

21 Affirmed,148 P.3d 931 (Utah 2006).

22 Newman, 113 P.3d at 1010-11.

23 Id. at 1011.

24 White, 10 P.3d at 1098.

25  But  see State v. Lopez-Vega, 826 P.2d 48, 50 (Or.  App.
1992)  (noting  that it is at least arguable  that  a  local
ordinance  that  does  not require a culpable  mental  state
would be preempted by state statute that requires intent).

     26 Garroutte v. State, 683 P.2d 262, 267-68 (Alaska App.
1984)  (quoting Salinas v. State, 373 P.2d 512, 514  (Alaska
1961)).

27 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

28 536 U.S. at 557-569, 122 S.Ct. at 2414-2420.

29  Curtis  v. State, 831 P.2d 359, 360 (Alaska App.  1992);
Love  v.  State,  799  P.2d 1343, 1346 (Alaska  App.  1990);
Dunham  v.  Juneau,  790 P.2d 239, 241 (Alaska  App.  1990),
receded from on other grounds in Curtis, 831 P.2d 359.

30 See AS 28.35.032(g)(5) and 032(p)(5).

31 See, e.g., Rockford v. Floyd, 243 N.E.2d 837, 842-43 (Ill.
App.  1968);  Louisiana v. Suire, 319 So.2d  347,  350  (La.
1975).

32 AS 28.35.031(a).

33  See  Bass  v. Anchorage, 692 P.2d 961, 964 (Alaska  App.
1984) (In the implied consent statutes, the legislature  has
gone  to  great lengths to avoid authorizing the  police  to
forcibly  [administer] blood alcohol tests  [on]  defendants
charged  with driving while intoxicated [except as  provided
in AS 28.35.035].).

34 AS 28.35.032(f).

35 AS 28.15.165.

36 692 P.2d at 964.

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