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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| CLIFFORD C. HAYWOOD, | ) |
| ) Court of Appeals No. A-10026 | |
| Appellant, | ) Trial Court No. 3AN-05-4521 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2187 October 16, 2008 | |
Appeal from the
District Court, Third Judicial District,
Anchorage, Gregory Motyka, Judge.
Appearances: Stephanie Patel, Law Office of
Dan Allan, Anchorage, for the Appellant.
Joseph W. Kovac, Assistant District
Attorney, Adrienne P. Bachman, District
Attorney, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
Clifford C. Haywood was convicted under AS 28.35.030
of driving while under the influence. At sentencing, the
district court pursuant to former AS 28.33.140 disqualified him
from driving a commercial motor vehicle for a year. Haywood
appeals the disqualification. He contends that former AS
28.33.140 did not authorize the district court to disqualify him
from driving a commercial vehicle. For the reasons explained
here, we agree with Haywood.
Facts and proceedings
On May 22, 2005, an Anchorage police officer stopped a
Pontiac Grand Prix that was exceeding the speed limit. The
officer contacted the driver, Haywood, and saw indications that
he was intoxicated. Haywood admitted that he had been drinking.
He failed a series of field sobriety tests, and the results of a
DataMaster test showed an alcohol content of .110 percent.
Haywood held a commercial drivers license. Before
trial, Haywood raised the issue of whether former AS 28.33.140
authorized courts to revoke a commercial drivers license when the
conviction under AS 28.35.030 driving while under the influence
did not involve a commercial vehicle. Haywood argued that the
legislature did not intend to require revocation of a commercial
drivers license for a conviction under AS 28.35.030 unless the
motorist was operating a commercial vehicle at the time of the
offense. District Court Judge Gregory Motyka rejected Haywoods
argument. He ruled that the provisions of former AS 28.33.140(a)
included DUI offenses committed while operating a non-commercial
vehicle.
Haywood later entered a plea and was convicted of
violating AS 28.35.030. At sentencing, based on former AS
28.33.140(a), Judge Motyka disqualified Haywood from driving a
commercial motor vehicle for a year. Haywood appeals.
Why we find that former AS 28.33.140 did not
allow disqualification of a commercial
drivers license for convictions involving a
non-commercial motor vehicle
Alaska Statute 28.33.140(a) sets out the requirements
for disqualifying persons from driving commercial motor
vehicles.1 Of these, subsection (a)(1) requires disqualification
for a conviction under AS 28.33.030: driving a commercial motor
vehicle while under the influence or with a blood alcohol content
of .04 percent or higher. Subsection (a)(3) requires
disqualification for a conviction under AS 28.35.030: driving
any motor vehicle while under the influence or with a blood
alcohol content of .08 percent or higher. Although these two
provisions appear clear, at the time of Haywoods offense their
meaning was cast into doubt by another subsection, former AS
28.33.140(b). This subsection provided:
A finding by a court that there is proof by
a preponderance of the evidence that a person was
operating a commercial motor vehicle at the time
that the commercial motor vehicle was involved in
an offense listed in (a)(2) (6) of this section
is sufficient to disqualify the person under this
section.
(This subsection was repealed effective July 1, 2007.2)
Judge Motyka found that the plain language of
subsections (a)(1) and (a)(3) unambiguously showed that the
legislature intended to disqualify the commercial drivers license
of any person who was convicted under AS 28.35.030, even if the
offense did not involve a commercial motor vehicle. After
comparing the language in subsection (a)(1), which addresses
operating a commercial motor vehicle, with (a)(3), which
addresses operating a motor vehicle, Judge Motyka concluded that
[i]t is difficult to imagine a clearer expression of legislative
intent to include conviction of operating [any] motor vehicle
while under the influence as grounds for mandatory revocation of
a commercial drivers license.
In reaching this conclusion, Judge Motyka found that
subsection (b) did not modify subsection (a). Instead, he found
that the legislative history of the statute indicated that
subsection (b) was intended to clarify that the evidentiary
burden for administrative hearings involving commercial drivers
licenses was the preponderance of the evidence
On appeal, Haywood renews his claim that former AS
28.33.140 did not authorize the district court to disqualify him
from driving a commercial motor vehicle. This claim presents a
question of statutory construction. The guiding principle of
statutory construction is to ascertain and implement the intent
of the legislature or agency that promulgated the statute or
regulation.3 Alaska courts apply a sliding scale approach [to
statutory interpretation] best summed up as, the plainer the
meaning of the language of the statute, the more convincing any
contrary legislative history must be.4
Legislative history of former AS 28.33.140
Former AS 28.33.140 was enacted in 1992 as part of
Senate Bill 261.5 The main purpose of Senate Bill 261 was to
bring Alaska into compliance with federal law regulating
commercial motor vehicles.6 The legislature wanted Alaska law to
conform with federal regulations for two reasons: to obtain
federal highway funds, and to ensure that Alaska residents could
operate commercial vehicles outside of Alaska.7
In 1992, federal regulations required that a person
convicted of a listed offense be disqualified from driving a
commercial motor vehicle if the offense was committed while
operating a commercial motor vehicle.8 The first of these listed
offenses was [d]riving a commercial motor vehicle while under the
influence of alcohol.9 This offense was defined as: (1) Driving
a commercial motor vehicle while the persons alcohol
concentration is 0.04 percent or more; (2) Driving under the
influence of alcohol, as prescribed under State law; or (3)
Refusal to undergo such testing as is required by any State ...
in the enforcement [of (1) or (2)].10 The federal government did
not require disqualification of a commercial drivers license for
a DUI offense committed in a non-commercial motor vehicle until
1999.11
Federal regulations also required disqualification for
driving a commercial vehicle while under the influence of a
controlled substance, for leaving the scene of an accident
involving a commercial motor vehicle, for committing a felony
involving the use of a commercial vehicle, for using a commercial
vehicle in the commission of a list of criminal drug offenses,
and for committing a serious traffic offense while operating a
commercial vehicle.12 Thus, under the federal regulations in
effect when Senate Bill 261 was pending, every one of the listed
disqualifying offenses involved the use of a commercial motor
vehicle.
To conform state law with these federal regulations,
Senate Bill 261 created AS 28.33.140. When signed into law, AS
28.33.140(a) listed six offenses that required disqualification
of a commercial drivers license. These offenses were essentially
the same as the six offenses listed in the 1992 Code of Federal
Regulations.
When Senate Bill 261 was considered by the Senate
State Affairs Committee, a Department of Law representative,
Assistant Attorney General Dean Guaneli, testified on two
occasions that the bills provisions matched the federal
regulations except in one respect: The bill created a new state
offense of operating a commercial vehicle when under the
influence of intoxicating liquor or with a blood alcohol level of
.04 percent or higher.13
As originally enacted, AS 28.33.140(a) made six
offenses grounds for immediate disqualification from driving a
commercial motor vehicle: (1) operating a commercial motor
vehicle while intoxicated in violation of AS 28.33.030; (2)
refusal to submit to a chemical test in violation of AS
28.35.032; (3) operating a motor vehicle while intoxicated in
violation of AS 28.35.030; (4) leaving the scene of an accident
in violation of AS 28.35.060, or failing to file, or providing
false information in, an accident report in violation of AS
28.35.110; (5) a felony under state or federal law, which was
facilitated because the person used a commercial motor vehicle;
or (6) a serious traffic violation. Of these, only (1) and (5)
specifically included a commercial motor vehicle as part of the
offense.14
Haywood contends that the legislature included AS
28.33.140(b) in Senate Bill 261 to limit the disqualifying
offenses in subsection (a). In Haywoods view, subsection (b) was
added to ensure that the statute would mirror the requirements
of the federal regulation by requiring disqualification ...
[only] for certain offenses involving operation of a [commercial]
motor vehicle. In other words, Haywood argues that the
legislature included subsection (b) to ensure that none of the
listed offenses would require disqualification of a commercial
drivers license unless the court finds by a preponderance of the
evidence that the defendant was operating a commercial vehicle at
the time of the offense.
When Senate Bill 261 was being considered, there were
no committee discussions about the purpose of AS 28.33.140(b) and
its relationship to subsection (a); nor did legislators discuss
this issue in 2007 when they repealed subsection (b). But as
already explained, there was uncontradicted testimony that Senate
Bill 261 differed from the federal regulations then in effect in
only one significant way it added the offense of driving a
commercial motor vehicle while under the influence.
Considering this legislative history particularly the
uncontradicted testimony that Senate Bill 261 matched the federal
regulations, with the sole exception of adding a new criminal
offense we find that Haywoods interpretation is not
unreasonable. That is, it is possible that when passing Senate
Bill 261 the legislature intended AS 28.33.140(a)-(b) to mirror
the federal regulations by requiring disqualification of a
commercial drivers license only when a commercial motor vehicle
was involved in the criminal offense.
As noted earlier, Judge Motyka found instead that
subsection (b) was intended to establish the standard of proof in
administrative hearings. But the discussion in the committee
minutes that Judge Motyka relied on to support this
interpretation did not address subsection (b); rather, that
discussion concerned the section of Senate Bill 261 that amended
AS 28.15.166(g) and (j).15 Those subsections address
administrative license-revocation hearings and the standard of
proof for those hearings.16
The State offers an alternative explanation: That
subsection (b) was added to allow prosecutors to seek
disqualification of a commercial drivers license in cases in
which the State has failed to prove the underlying offense beyond
a reasonable doubt.17 It is also possible that subsection (b)
was meant to allow courts in certain civil law suits to
disqualify a persons commercial drivers license as part of a
civil remedy.
Given the language of AS 28.33.140(a)(1) and (a)(3),
and the lack of any legislative history explaining the purpose of
subsection (b), none of these interpretations of the legislatures
intent when it passed Senate Bill 261is patently unreasonable.
Because these subsections are susceptible to more than one
conflicting but reasonable interpretation, they are ambiguous.18
If a statute establishing a penalty is susceptible of
more than one meaning, it should be construed so as to provide
the most lenient penalty.19 Likewise, [w]here legislative intent
is ambiguous, the rule of lenity must prevail.20 Under the rule
of lenity, courts resolve the ambiguity by adopting the meaning
most favorable to the defendant.
Applying this rule in Haywoods case, the most lenient
construction is that under former AS 28.33.140(a) and (b), a
conviction under AS 28.35.030 would not result in
disqualification of a commercial drivers license unless a
commercial motor vehicle was involved. This construction does
not lead to patently absurd results or to defeat of the obvious
legislative purpose behind the statute.21
Accordingly, we conclude that the district court did
not have the authority to disqualify Haywood from driving a
commercial motor vehicle.
Conclusion
The portion of the district court judgment
disqualifying Haywood from driving a commercial motor vehicle is
VACATED. The remainder of the judgment is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to clarify our analysis of the
statute at issue in this case, the pre-2007 version of AS
28.33.140.
Under subsection (a) of that statute, if the holder of
a commercial drivers license was convicted of one of eight types
of traffic offenses, the sentencing court was obliged to impose
an immediate disqualification from driving a commercial motor
vehicle.
Of the eight types of traffic offenses listed in
subsection (a), the first, fifth, seventh, and eighth types
i.e., those listed in subsections (a)(1), (a)(5), (a)(7), and
(a)(8) of statute expressly referred to offenses involving the
operation of commercial vehicles. The remaining four types
those listed in subsections (a)(2) through (a)(6), with the
exception of (a)(5) did not expressly refer to the operation of
commercial vehicles.
Haywoods case involves the relationship between the
offenses described in subsections (a)(1) and (a)(3) of the
statute:
(1) operating a commercial motor
vehicle while under the influence of an
alcoholic beverage ... in violation of
AS 28.33.030 [i.e., the special DUI provision
that covers commercial drivers; this special
statute contains a lower threshold blood
alcohol level .04 percent]; [or]
. . .
(3) operating a motor vehicle while
under the influence of an alcoholic beverage
... in violation of AS 28.35.030 [i.e., the
normal DUI provision that covers all drivers]
Haywood argues that even though
subsection (a)(3) did not expressly refer to
operating a commercial vehicle while under
the influence, that requirement or limitation
is implicit. In other words, Haywood argues
that former AS 28.33.140 did not authorize a
sentencing court to disqualify a defendant
from operating commercial vehicles unless the
defendants violation of subsection (a)(3)
involved an act of driving a commercial
vehicle while under the influence.
At first glance, Haywoods
restrictive interpretation of subsection
(a)(3) appears implausible, because the
statute contains a separate provision
subsection (a)(1) that explicitly deals with
DUI offenses that involve commercial
vehicles. There would seem to be no reason
for the legislature to include subsection
(a)(3) in the statute unless the legislature
intended subsection (a)(3) to apply to
situations not already covered by subsection
(a)(1) in other words, situations where the
defendants DUI offense did not involve a
commercial vehicle.
But the meaning of former AS
28.33.140(a) is clouded by the wording of the
very next portion of the statute, subsection
(b):
A finding by a court that there is
proof by a preponderance of the evidence that
a person was operating a commercial motor
vehicle at the time that the [person] was
involved in an offense listed in
[subsections] (a)(2) (a)(6) ... is
sufficient to disqualify the person [from
operating commercial vehicles] under this
[statute].
Subsection (b) supports Haywoods
interpretation of the statute because
subsection (b) appears to be premised on the
concept that a violation of one of the types
of traffic offenses listed in subsections
(a)(2) through (a)(6) is not enough, by
itself, to trigger the drivers
disqualification from future operation of
commercial vehicles. Rather, subsection (b)
appears to say that the drivers
disqualification hinges on proof of an
additional element: that the defendant was
operating a commercial vehicle at the time of
the offense.
On appeal, the State suggests an
alternative explanation for the legislatures
enactment of subsection (b). The State
argues that subsection (b) was intended to
codify an alternative, lower standard of
proof for cases where the defendants DUI
offense involved the operation of a
commercial vehicle. According to the States
brief,
[t]he preponderance of the evidence standard
[specified in subsection (b)] is to be used
[by the sentencing court] when a commercial
vehicle is involved in an offense listed in
[subsections] (a)(2) (a)(6); [in contrast,]
the beyond a reasonable doubt standard is
used when a non-commercial vehicle is
involved in an offense listed in
[subsections] (a)(2) (a)(6).
(Emphasis added)
The problem with the States
proposed interpretation of subsection (b) is
that it would render the statute
unconstitutional.
The suspension or lifetime
revocation of a commercial drivers license
pursuant to AS 28.33.140(c) and (d) is a
criminal punishment. Both subsection (c) and
subsection (d) begin with the phrase, A court
convicting a person of an offense ... shall.
In other words, the license suspension or
revocation is imposed by the sentencing court
as a consequence of the criminal conviction.1
Under Alaska law, when a defendant
faces the loss of a valuable license such as
a commercial drivers license as punishment
for committing an offense, this potential
punishment triggers the defendants right to
the basic procedural protections guaranteed
to criminal defendants under the Alaska
Constitution.2 One of those basic procedural
protections is the requirement that the State
prove its case beyond a reasonable doubt;
another is the right to trial by jury.
Under the States interpretation of
subsection (b), a court would be allowed
indeed, would be required to revoke a
defendants commercial drivers license if the
court, acting without a jury, found by a
preponderance of the evidence that the
defendant had committed DUI while operating a
commercial vehicle. So interpreted, the
statute clearly violates the Alaska
Constitution. It also violates the Sixth
Amendment right to jury trial as interpreted
in Blakely v. Washington,3 because the
defendants maximum penalty for the DUI would
be increased based on a finding of fact (1)
made by a judge (2) using a standard of proof
less demanding than beyond a reasonable
doubt.
For this reason, I reject the
States proposed interpretation of subsection
(b). Instead, I conclude that subsection (b)
indeed means what it says: when a defendant
is convicted of the offense specified in
subsection (a)(3) i.e., driving under the
influence as defined in AS 28.35.030 this
conviction will mandate the suspension of the
defendants commercial drivers license only if
the State proves the additional element that
the vehicle involved in the offense was a
commercial vehicle.
It is true that this
interpretation seems to be at odds with the
fact that subsection (a) of AS 28.33.140
contains one provision (subsection (a)(1))
for commercial vehicle DUI as defined in AS
28.33.030, and another separate provision
(subsection (a)(3)) for regular DUI as
defined in AS 28.35.030. But the legislative
history of this statute a history detailed
in Judge Stewarts lead opinion suggests that
this problem stems from a drafting error in
subsection (a)(1).
As explained in the lead opinion,
the Alaska legislature intended to enact a
statute that would parallel the 1992 version
of 49 C.F.R. 383.51, the federal regulation
dealing with this same matter. Under that
federal regulation, a person lost their
commercial drivers license if (1) they
operated a commercial vehicle while their
blood alcohol level was .04 percent or
greater, or (2) they operated a commercial
vehicle while under the influence of alcohol
as defined by applicable state law
(regardless of their blood alcohol level).
But when the Alaska Legislature
drafted subsection (a)(1) of former
AS 28.33.140, they departed from the wording
of the corresponding federal regulation.
Instead of wording subsection (a)(1) as
driving a commercial motor vehicle while the
persons blood alcohol concentration is .04
percent or greater, the legislature worded
subsection (a)(1) as operating a commercial
motor vehicle while under the influence of an
alcoholic beverage ... in violation of
AS 28.33.030.
To the Alaska drafters, these two
wordings may have seemed equivalent at first
glance because AS 28.33.030 contains a
provision that forbids a person from
operating a commercial vehicle when their
blood alcohol level is .04 percent or
greater.
But AS 28.33.030 contains a second
clause that forbids a person from operating a
commercial vehicle while under the influence
of alcohol or other intoxicants, regardless
of the persons blood alcohol content. This
second provision of AS 28.33.030 overlaps
with the under the influence clause of
AS 28.35.030 (the normal DUI statute). And
this overlap engenders the statutory
ambiguity that lies at the heart of this
appellate litigation because, on account of
this overlap, former AS 28.33.140 might
reasonably be construed to encompass DUI
offenses that do not involve the operation of
a commercial vehicle.
Given the legislative history, I
suspect that the legislature did not intend
to expand the scope of the statute in this
fashion. But even if the legislature might
have intended this result, the fact remains
that the statute is irreconcilably ambiguous
on this issue because of the tension between
subsection (a) and subsection (b) described
above.
Because these two provisions of
the statute can not be reconciled, it is
impossible to say with any certainty whether
the statute is limited to DUI offenses
involving the operation of commercial
vehicles or whether, on the other hand, it
applies to all DUI offenses. This being so,
the law requires us to resolve this ambiguity
against the government.4
For these reasons, I agree with my
colleagues that we must construe AS 28.33.140
as applying only to DUI offenses involving
the operation of commercial vehicles.
Accordingly, the district court should not
have taken action against Haywoods commercial
drivers license.
_______________________________
1 AS 28.33.140 was significantly amended in 2007. See SLA
2007, ch. 23, 16-23, 31 (effective July 1, 2007). Haywood was
sentenced under the 2004 version of the statute.
2 SLA 2007, ch. 23, 31, 34.
3 Millman v. State, 841 P.2d 190, 194 (Alaska App. 1992).
4 Progressive Ins. Co. v. Simmons, 953 P.2d 510, 516 (Alaska
1998) (quoting Peninsula Mktg. Assn v. State, 817 P.2d 917, 922
(Alaska 1991)).
5 SLA 1992, ch. 3, 19.
6 See April 22, 1991, Governors Transmittal Letter for
Senate Bill 261, 1991 Senate Journal 954-55.
7 See Committee Minutes, Senate State Affairs Committee
(April 26, 1991) (testimony of Juanita Hensley, Division of Motor
Vehicles, Department of Public Safety, on Senate Bill 261). See
also April 22, 1991, Governors Transmittal Letter for Senate Bill
261, 1991 Senate Journal 954-55.
8 49 C.F.R. 383.51 (b)(1) (1992).
9 49 C.F.R. 383.51(b)(2)(i) (1992).
10 49 C.F.R. 383.51(b)(2)(i)(A)-(C) (1992).
11 Commercial Motor Vehicle and Driver Safety, Pub. L. No.
106-159, 201, 113 Stat. 1758-59 (1999).
12 49 C.F.R. 383.51(b)(2)(ii)-(v) and 383.51(c) (1992).
13 See Committee Minutes, Senate State Affairs Committee
(April 16, 1991 and May 10, 1991) (testimony of Assistant
Attorney General Dean Guaneli, Criminal Division, Department of
Law, on Senate Bill 261); SLA 1992, ch. 3, 15.
14 SLA 1992, ch. 3, 19.
15 See Letter dated May 13, 1991, from Assistant District
Attorney General Dean Guaneli to Senator Pat Rodey, Senate State
Affairs Committee.
16 SLA 1992, ch. 3, 4 and 5.
17 We acknowledge that both Haywoods and the States
interpretation of subsection (b) appear to allow disqualification
of a defendants commercial drivers license in violation of the
United States Supreme Courts decision in Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). That is,
both interpretations would allow the court to increase punishment
during the penalty phase using a preponderance standard of proof
rather than the beyond a reasonable doubt standard of proof
required by Blakely.
18 See State v. Andrews, 707 P.2d 900, 908 (Alaska App.
1985).
19 State v. Stafford, 129 P.3d 927, 933 (Alaska App.
2006).
20 George v. State, 988 P.2d 1116, 1117 (Alaska App.
1999).
21 See McDole v. State, 121 P.3d 166, 169 (Alaska App.
2005).
1 See Wik v. Department of Public Safety, 786 P.2d 384
(Alaska 1990), and Carter v. State, 625 P.2d 313
(Alaska 1981), both of which construed the companion
statute, AS 28.15.181, as a penal statute.
2 See Alexander v. Anchorage, 490 P.2d 910, 912-13 (Alaska
1971) (right to counsel at public expense); Baker v.
Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970) (right to
trial by jury); State v. Auliye, 57 P.3d 711, 714
(Alaska App. 2002) (same).
3 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
4 See Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); Ned
v. State, 119 P.3d 438, 446-47 (Alaska App. 2005);
Wells v. State, 102 P.3d 972, 976 (Alaska App. 2004);
Whitesides v. State, 88 P.3d 147, 151 (Alaska App.
2004); State v. ABC Towing, 954 P.2d 575, 579 (Alaska
App. 1998); Magnuson v. State, 843 P.2d 1251, 1253
(Alaska App. 1992).
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