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Haywood v. State (10/16/2008) ap-2187

Haywood v. State (10/16/2008) ap-2187

                             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


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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