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Phillips v. State (7/3/2014) ap-2420

Phillips v. State (7/3/2014) ap-2420

                                                                NOTICE  

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                                                         Appellate Courts.
  

                                                                                    



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                    IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



MICHAEL WAYNE PHILLIPS,                                          )  

                                                                 )            Court of Appeals No. A-11173 

                                      Appellant,                 )            Trial Court No. 3AN-10-5982 CR  

                                                                 ) 

                  v.                                             )                         O P I N I O N  

                                                                 )  

STATE OF ALASKA,                                                 )  

                                                                 )  

                                      Appellee.                  )                 No. 2420 - July 3, 2014  

                                                                 )  



                      Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                      Anchorage, David Stewart, Judge.  



                      Appearances:  Catherine Boruff, Assistant Public Defender, and  

                                                                                        

                      Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                      Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                      Special Prosecutions and Appeals, Anchorage, and Michael C.                     

                      Geraghty, Attorney General, Juneau, for the Appellee.  



                      Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                      District Court Judge.*  

                                                         



                      Judge ALLARD.  



                      A  jury  convicted  Michael  Wayne  Phillips  of  felony  driving  under  the  



influence, a class C felony. Phillips's offense was a felony because he had two prior out- 

                                                                                                            



      *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

of-state convictions for driving under the influence - a 2004 conviction in Texas and         



a 2007 conviction in California.  



                     Phillips  argues  that  his  Texas  conviction  should  not  count  as  a  prior  

                                                                                                                              



conviction under Alaska law because the Texas statute under which he was convicted is  

                                                                            



not sufficiently similar to the Alaska statute.  Phillips contends that the Texas statute  



criminalizes a much broader range of conduct than the Alaska statute because Alaska law  



prohibits driving while under the influence of "an alcoholic beverage, intoxicating liquor,  

inhalant, or any controlled substance, singly or in combination,"1  whereas Texas law  

                                                                                                           

prohibits driving while intoxicated by "any ... substance."2  

                                                                                               



                     For the reasons explained below, we conclude that the elements of the  



Texas statute are sufficiently similar to the Alaska statute for a person convicted under  



the Texas statute to be "previously convicted" under AS 28.35.030(u)(4)(A).  



          Factual background and prior proceedings  



                     On  June  2,  2010,  the  police  received  reports  that  a  motorcyclist  (later  

                            



identified as Phillips) was driving recklessly on the Glenn Highway between Palmer and  

                                          



Anchorage. After stopping Phillips, the police discovered that he smelled of alcohol and  

                                                                                                       



had bloodshot and watery eyes.  Phillips performed field sobriety tests, which he failed,  

                                                                                                                 



and he submitted to a breath test, which showed a blood-alcohol content of .129 percent,  

                                                               



well over the legal limit of .08 percent.  



                     Because Phillips had two prior out-of-state DUI convictions -  a 2004  

                                                                                                                              



Texas conviction and a 2007 California conviction - he was indicted for felony driving  

                                                                                                 



      1    AS 28.35.030(a)(1).  



     2     Tex. Penal Code Ann.  49.01(2)(A) (emphasis added).  



                                                                    2                                                                2420  


----------------------- Page 3-----------------------

under the influence.  Phillips moved to dismiss the indictment, arguing that Texas law  



recognizes a much broader range of potential intoxicating substances than Alaska law,  

                                                                                                                



and that the Texas statute was therefore not "similar" to the Alaska statute for purposes  

                                                                  



of establishing that he was "previously convicted" of driving under the influence under  

                                         



AS 28.35.030(u)(4)(A).  



                    Superior Court Judge pro tempore  David Stewart denied the motion to  

                                                                                                                  



dismiss, concluding that "any arguable difference between Texas law and Alaska law  



would apply only to a narrow spectrum of unusual cases."  The judge concluded that the  

                                                                           



Texas statute was sufficiently similar to Alaska's statute and that Phillips's 2004 Texas  

                            



conviction therefore qualified as a prior conviction under Alaska law.  



                    Following trial, a jury found Phillips guilty of felony driving under the  

                                     



influence.   This appeal followed.  

                   



          To count as a prior conviction under Alaska law, an out-of-state conviction  

                                       

          must have "similar" elements  



                    Under  Alaska  law,  a  person  commits  the  offense  of  driving  under  the  

                                                                                                      



influence if the person "operates or drives a motor vehicle ... while under the influence  



of  an  alcoholic  beverage,  intoxicating  liquor,  inhalant,  or  any  controlled  substance,  



singly or in combination" or, in the alternative, if the person has a blood- or breath- 

alcohol content of .08 percent within four hours of operating or driving a motor vehicle.3  

                                                                       



                                                                                            4 

Driving under the influence is normally a class A misdemeanor.   The offense is elevated  



                                                                                    

to a class C felony, however, if the defendant has been "previously convicted" two or  



     3    AS 28.35.030(a)(1), (2).  



     4    AS 28.35.030(b).  



                                                               3                                                            2420  


----------------------- Page 4-----------------------

more times within the past ten years of either driving under the influence or refusing to   

submit to a chemical test.5  



                       Under AS 28.35.030(u)(4)(A), the term "previously convicted" is defined  



to include a driving under the influence or refusal conviction from another jurisdiction  

                                                                                        

if  the  offense  has  "similar  elements"  to  the  Alaska  statute  defining  the  offense.6  

     



                                                                                                                            

Although the elements must be "similar" to the Alaska statute, they need not be identical;  



                                                                                                                                                    7  

                                                                                                                              

there may be "some acts covered by one statute that will not be covered by the other." 



                       The legislative history of the "previously convicted" provision underscores  



this point.  Prior to 1995, AS 28.35.030 required the elements of the out-of-state DUI  



                      

statute to be "substantially similar" to its Alaska counterpart.  But following our decision  

in Burnette  v.  Anchorage ,8  the  legislature  deleted  the  word  "substantially"  from  the  



                                                                                                     9  

statute.  The statute now requires only "similar" elements.     



                                                                         

                       In Burnette , we held that the Oregon DUI statute, which prohibited driving  



                                                                                                      

with a blood alcohol level of .08 percent or higher, was not "substantially similar" to the  



                                                                                                                                          

Alaska DUI statute, which (at the time) prohibited driving with a blood alcohol level of  



                                                                              

.10 percent or higher. Because Burnette was convicted of DUI in Oregon under a theory  



                                                                                                                            

that would not have required a similar conviction in Alaska, we held that his Oregon DUI  



      5     AS 28.35.030(n); AS 28.35.032(p).
  



      6     AS 28.35.030(u)(4)(A).
  



      7    Borja v. State , 886 P.2d 1311, 1314 (Alaska App. 1994) (applying this analysis for
  



presumptive sentencing purposes); see also State v. Simpson , 53 P.3d 165, 170 (Alaska App.   

2002) (using the Borja test for purposes of determining eligibility for a felony DUI).  



      8     823 P.2d 10 (Alaska App. 1991).  



      9     Ch. 80,  6, SLA 1995.  



                                                                          4                                                                   2420
  


----------------------- Page 5-----------------------

conviction could not count as a "prior conviction" for purposes of making his Alaska  

offense a felony (although it could be considered at sentencing).10  

                                                                                                   



                                                                                         

                    In   response   to   our   decision   in   Burnette ,   the   legislature   amended  



                      

AS 28.35.030 to delete the modifier "substantially" and to require only that the out-of- 

state statute be "similar" to the Alaska statute.11  

                                                                         The legislature also added language  



                                                                                             

specifically declaring that an out-of-state DUI conviction in a state with a lower blood  



                                                                                                   12  

alcohol limit qualified as a prior DUI conviction under Alaska law.                                    



                                            

                    Thus, when we assess whether an out-of-state DUI statute is sufficiently  



                                 

"similar" to Alaska's DUI statute under AS 28.35.030(u)(4)(A), we are mindful that the  



legislature intended this requirement to be construed broadly, and that out-of-state DUI  



                                                                                  

convictions  may  qualify  as  prior  convictions  under  Alaska  law  even  if  there  are  



differences in how the other state defines the crime.  



          Why we conclude that the Texas statute is similar to the Alaska statute even  

                                                                                                            

          though it penalizes driving while intoxicated by "any substance"  



                                                                                                     

                    Texas law makes it a crime to be "intoxicated while operating a motor  

vehicle in a public place." 13  

                                           The Texas statute defines "intoxicated," in pertinent part,  



as  "not  having  the  normal  use  of  mental  or  physical  faculties  by  reason  of  the  



     10   See  Burnette 823 P.2d at 13-14.   



     11   Ch. 80,  6, SLA 1995.  



     12   AS 28.35.030(u)(4)(A) ("operating a motor vehicle ... in violation of this section or  

                                                                                                                   

in violation of another law or ordinance with similar elements, except that the other law or  

                                                                                                          

ordinance may provide for a lower level of alcohol in the person's blood or breath than  

imposed under (a)(2) of this section[.]"); ch. 80,  6, SLA 1995.  



     13   Tex. Penal Code Ann.  49.04(a).  



                                                               5                                                         2420
  


----------------------- Page 6-----------------------

introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination                  



                                                                                                                        14  

of two or more of those substances, or any other substance into the body[.]"                                                 



                     In Alaska, by contrast, a person may only be convicted for operating or  



driving under the influence of "an alcoholic beverage, intoxicating liquor, inhalant, or  

any controlled substance, singly or in combination[.]"15  

                                                                                           

                                                                                      A "controlled substance" means  

any substance defined as a controlled substance under Alaska or federal law.16  



                                                                          

                     Phillips argues that the Texas and Alaska statutes are not similar - and that  



                                  

his Texas conviction therefore cannot be relied on to convict him of a felony - because  



                                                                                      

in Texas a person can be convicted of driving while intoxicated by "any substance,"  



                                                                                            

while in Alaska a person must be under the influence of specific substances: mainly,  



alcohol and controlled substances.  



                     We  agree  that  the  phrase  "any  other  substance"  in  the  Texas  statute  

                                                                 



potentially encompasses a wide range of intoxicants.  Under this statute, individuals  

                                                                   



could  potentially  be  prosecuted  for  driving  under  the  influence  of  non-controlled  

                              



substance  prescription  medication,  over-the-counter  cold  and  allergy  medications,  

                                                                                                       



nonprescription sleep aids, food, or nonalcoholic beverages. As one Texas judge opined,  

                                                                                               



the statute theoretically could support a prosecution for driving under the influence of  

M&Ms.17  

                 



                                                                                                  

                     But it does not necessarily follow from the broad reach of the Texas statute  



that   a   Texas   DWI   conviction   cannot   qualify   as   a   "prior   conviction"   under  



     14    Tex. Penal Code Ann.  49.01(2)(A). 
 



     15   AS 28.35.030(a)(1).
  



     16   AS 28.35.039(2); AS 28.33.190(5).
  



     17    Gray v. State, 152 S.W.3d 125, 136 (Tex. Crim. App. 2004) (Cochran, J., dissenting).
                    



                                                                   6                                                             2420
  


----------------------- Page 7-----------------------

AS  28.35.030(u)(4)(A).  As we already noted, for these purposes the out-of-state statute             



need not be identical, or even "substantially similar" to the Alaska statute; it need only               



be "similar."  So the question is not whether the Texas statute reaches a broader range  



of conduct - it clearly does - but whether the difference is significant enough to place  

                                                          



the statute outside the Alaska Legislature's definition of a "similar" offense.  



                         In  this  analysis,  our  task  is  not  to  compare  all  the  conduct  that  could  

                                                                                                                           



potentially be criminal under the Alaska and Texas statutes, but to compare the great  

                                                                                                                                               



majority of cases that will be prosecuted under these statutes.  Differences in the reach  

                                                  



of the statutes will not defeat a finding of similarity if the differences "apply only to a  

                                                                              

narrow spectrum of unusual cases." 18  

                                                                        



                        We  have  previously  found  an  out-of-state  DUI  statute  "similar"  to  the  



                                                                                                                                        

Alaska statute even though a person could potentially be convicted in the other state of  



                                                                                                                             19 

                                                                       

conduct that would not be a crime in Alaska.  In State v. Simpson,                                                              for example, the  



                                                                                    

defendant argued that his prior Montana DUI conviction could not be counted as a prior  



conviction under Alaska law because (Simpson contended) an involuntarily intoxicated  



driver had a defense to driving under the influence  under Alaska law but not under  



Montana  law.    We  held  that  even  if  Simpson's  contention  regarding  the  scope  of  



Montana DUI law was correct, the Montana statute was still "similar" to the Alaska  

                                                                                                           

statute because prosecutions for involuntary intoxication "are rare."20  

                                                                                                                                  



                         Likewise, in an unpublished case, Streiff v. State, we held that a Washington  



                                                               

statute that made it illegal to drive under the influence of "any drug" was "similar" to the  



      18    Simpson , 53 P.3d at 170.   



      19    53 P.3d 165.  



      20    Id. at 170.  



                                                                              7                                                                            2420  


----------------------- Page 8-----------------------

Alaska  driving  under  the  influence  statute,  even  though  the  term  "any  drug"  could  



include non-controlled substances that would not support a conviction under Alaska  

                                                             

law.21  We emphasized that "the requirement for similar elements necessarily implies that  



'there will be some acts that are covered by one statute that are not covered by the other  

[statute].'"22  



                    Thus,  as  a  practical  matter  -  that  is,  considering  the  conduct  that  is  

                                                                      



actually, rather than theoretically, prosecuted - the Texas DWI statute is similar to the  

                                                                                



Alaska DUI statute.  We have found only one Texas appellate case in which a defendant  

                                      



was convicted of driving while intoxicated by a non-controlled substance that would not  

                           

have supported a conviction under Alaska law.23 

                                                                          Phillips cites additional cases, but they  



involve defendants who were prosecuted for driving while intoxicated by one or more  

non-controlled  substances  in  combination  with  alcohol  or  a  controlled  substance.24  



     21   Streiff  v.  State,  1998  WL  670605,   at  *1   (Alaska  App.  Sept.  30,  1998)  (citation  



omitted).  



     22   Id. (citations omitted).  



     23  

                 

          See Harkins v. State , 268 S.W.3d 740, 743 (Tex. App. 2008) (defendant under the  

influence of Soma, also known as carisoprodol).  Note, however, that Soma/carisoprodol is  

now  a  Schedule  IV  controlled  substance.    See  Schedules  of  Controlled  Substances:  

Placement of Carisoprodol into  Schedule IV, 76 Fed. Reg. 7730 (Dec. 12, 2011) (to be  

codified  at  21  CFR  pt.  1308)  (placing  Soma/carisoprodol  as  a  Schedule  IV  controlled  

substance, effective January 11, 2012).  



     24   See  Gray, 152 S.W.3d at 126 (alcohol, Klonopin); Kiffe v. State                          , 361 S.W.3d 104, 109  



(Tex. App. 2011) (Xanax, Valium, Vicodin); Paschall v. State , 285 S.W.3d 166, 170, 177-78   

                                                                                                          

(Tex. App. 2009) (alcohol); Bryant v. State , No. 2-08-294-CR, 2010 WL 2813494, at *1, *9  

(Tex. App. July 15, 2010) (unpublished) (alcohol);                        Dodson v. State , No. 05-08-01252-CR,  

2009 WL 3418140, at *1 (Tex. App. Oct. 26, 2009) (unpublished) (alcohol); Carter v. State,  

                                      

No. 14-08-00662-CR, 2009 WL 2998534, at *1 (Tex. App. Aug. 11, 2009) (unpublished)  

                                                                

(alcohol, hydrocodone); Romero v. State , No. 07-05-0466-CR, 2007 WL 4531967, at *1  

                                                                                                                             

                                                                                                                (continued...)  



                                                                 8                                                           2420
  


----------------------- Page 9-----------------------

While proving the causal relationship between the various intoxicants and the resulting   



impairment  might  be  different  in  Alaska  than  it  would  be  in   Texas,  the  underlying  



conduct for which the defendant is prosecuted remains similar. We note that Phillips has    



made  no  claim  that  the  particular  facts  underlying  his  Texas  conviction  would  not  

support  a  conviction  under  Alaska  law25 

                                                                  or  that  his  conviction  would  be  otherwise  



                                                                    26  

constitutionally defective under Alaska law.                                



                                                        

                    Thus, because the vast majority of defendants who are convicted of driving  



while  intoxicated  in  Texas  have  consumed  alcohol  or  a  controlled  substance,  we  



                                                                                                                   

conclude that the broader reach of the Texas statute is limited to "a narrow spectrum of  



              

unusual cases" and the Texas DWI statute is therefore "similar" to the Alaska DUI  



                                                                                      27  

statute as that term is defined in AS 28.35.030(u)(4)(A).                                 



                                                                                         

                    In urging us to reach a contrary conclusion, Phillips points to  Williford v.  



         28  

State,                                                                                                        

            an Alaska Supreme Court case holding that a former version of the Alaska DUI  



                                                         

statute that prohibited driving under the combined influence of intoxicating liquor and  



     24   (...continued)  



(Tex. App. Dec. 20, 2007) (unpublished) (alcohol); Eaton v. State , No. 06-05-00153-CR,  

2006 WL 1702286, at *1 (Tex. App. June 22, 2006) (unpublished) (alcohol); Lightcap v.  

State,  No.  01-00-01218-CR,  2002   WL   1822067,  at  *1   (Tex.  App.  Aug.  8,   2002)  

                                                                                                                       

(unpublished) (alcohol, Xanax).  



     25   Indeed, the record indicates that Phillips's Texas conviction was alcohol-related.  



     26   Cf.  Peel v. State , 843 P.2d 1249 (Alaska App. 1992) (defendant's sentence cannot be  



enhanced   based   on   prior   uncounseled   out-of-state   DUI   conviction   that   would   be  

unconstitutional under Alaska Constitution); Goins v. State, 2004 WL 1737602, at *1 (Alaska  

App. Aug. 4, 2004) (unpublished) (defendant has the burden to offer evidence that the prior       

conviction is constitutionally infirm under the Alaska Constitution).  



     27   Simpson , 53 P.3d at 170.  

                                                



     28   674 P.2d 1329 (Alaska 1983).  



                                                                 9                                                            2420
  


----------------------- Page 10-----------------------

                                                                        29  

"another substance" was unconstitutionally vague.                            But the Williford decision does not  



actually support Phillips's due process argument.  In  Williford, the Alaska Supreme  



Court specifically addressed the Texas DWI statute and a similar California statute,  



noting   that   those   statutes   had   been   upheld   against   challenges   that   they   were  

                                          

unconstitutionally  vague.30  

                                            The  Court  then  distinguished  the  Texas  and  California  

statutes from the Alaska statute it held was invalid.31  

                                                                              Thus,  Williford actually contains  



an implicit validation of the Texas statute's constitutionality by our supreme court.  



                                                                                                  

          Why we reject Phillips's claim that the Texas statute does not require proof  

          that the defendant was under the influence of an intoxicant  



                                                                                                      

                   Phillips next argues that the Texas statute is not similar to the Alaska statute  



                                        

because a defendant can be convicted of driving while intoxicated in Texas without proof  



that he ingested an intoxicant.  



                   This argument is based on a misreading of the Texas Court of Criminal  

                                                                                                             

Appeals' decision in Gray v. State.32                                                           

                                                      In Gray, the court ruled that the precise substance  



                                                                       

that caused the defendant's intoxication is not an element of the offense of driving while  



                                          33  

intoxicated under Texas law.                                                                               

                                              The court explained that it would be bad public policy  



     29   Id.  at 1331.
  



     30   674 P.2d at 1331. 
 



     31   Id.  at 1331-32.
  



     32   152 S.W.3d 125 (Tex. Crim. App. 2004).
  



     33   Id. at 132.
  



                                                             10                                                        2420
  


----------------------- Page 11-----------------------

to allow a defendant to secure an acquittal by proving that he  was  intoxicated by a  

substance other than that alleged by the state.34  



                     This ruling did not relieve the government of its burden to prove that the   



defendant ingested an intoxicant.  The Texas statute requires the State to show that the                       



defendant  was  intoxicated  "by  reason  of  the  introduction  of  a  drug,  a  controlled  



substance, a combination of two or more controlled substances or drugs, or any other  

                                                                  

substance into his body."35  

                                            Under  Gray, the government is not required to prove the  



                                                                               

specific substance that caused the intoxication, but it still must prove that the defendant's  



                                                                          

intoxication was caused by the introduction of a substance into the body - as opposed  

to by some other physical or medical condition.36  



                                                                          

                     Phillips acknowledges that under Alaska law the State must prove that the  



defendant  was  driving  or  operating  under  the  influence  "of  an  alcoholic  beverage,  



                                                                                                                                37  

                                                                                                        

intoxicating liquor, inhalant, or any controlled substance, singly or in combination"                                              -  



        

and  that  it  need  not  prove,  as  an  element  of  the  offense,  which  of  these  prohibited  



                                                                                                            

substances  caused  the  defendant's  impairment.    We  accordingly  find  no  merit  to  



Phillips's claim that the Texas and Alaska statutes are dissimilar on this basis.  



           Conclusion  



                     We AFFIRM the judgment of the superior court.  



     34   Id.  



     35   Delane v. State , 369 S.W.3d 412, 424 (Tex. App. 2012) (internal quotation marks  



omitted); see also State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008).  



     36   See   Gray, 152 S.W.3d at 137.  



     37   AS 28.35.030(a)(1).  



                                                                  11                                                               2420  

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