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Fyfe v. State (8/29/2014) ap-2425

Fyfe v. State (8/29/2014) ap-2425

                                                     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  



LINDEN KARL FYFE,                                     )  

                                                      )            Court of Appeals No. A-11058 

                                      Appellant,      )            Trial Court No. 3PA-10-3464 CR  

                                                      ) 

                  v.                                  )                         O P I N I O N  

                                                      )  

STATE OF ALASKA,                                      )  

                                                      ) 

                                      Appellee.       )               No. 2425 - August 29, 2014       

                                                      )  



                  Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                     

                  David L. Zwink, Judge.  



                  Appearances:  Kelly  Taylor,  Assistant  Public  Defender,  and  

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

                  Mary A. Gilson, 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.  



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



Constitution and Administrative Rule 24(d).  


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

                    Linden Karl Fyfe was charged with felony driving under the influence  



based,  in  part,  on  a  Datamaster  test  showing  that  his  blood  alcohol  level  was  .117  

                                                          



percent.    At  trial  Fyfe  raised  the  defense  of  necessity,  arguing  that  his  driving  was  

                            



justified  because  his  girlfriend's  daughter  had  been  rushed  to  the  hospital  after  an  



apparent seizure.  The jury rejected that defense and convicted Fyfe.   



                    The superior court sentenced Fyfe to 20 months with 16 months suspended.  

                                                                                           



The court also imposed a $20,000 fine - double the mandatory minimum fine for felony  

                                                              



driving under the influence - based on the State's allegation that the offense took place  

                                                                                                  



in a traffic safety corridor.  



                    Fyfe contends that the $20,000 fine is illegal. He argues that the legislature  

                                                                                                              



did not intend to require courts to impose a double fine for felony driving under the  

                                                                                



influence in a traffic safety corridor.  Based on the legislative history of the statute, we  

                                                                        



agree and therefore vacate Fyfe's $20,000 fine. Because the sentencing judge's remarks  

                                                                                          



make clear that he would have imposed the $10,000 mandatory minimum fine for Fyfe's  



offense if he believed he had the discretion to do so, we direct the superior court to  

                                                                                                        



modify the judgment to reflect this mandatory minimum fine.  



                    Fyfe also argues that his Sixth Amendment right to confront the witnesses  

                                                                                             



against  him  was  violated  because  the  court  allowed  the  State  to  introduce  reports  

                                                             



verifying the calibration of the Datamaster machine used for his breath test even though  

                                                                                                                



Fyfe had no opportunity to cross-examine the author of the reports.  Fyfe concedes that  



the admission of these hearsay reports was authorized under our decision in Abyo v.  

State,1  

           but he argues that Abyo and the cases that follow it should be overruled.  We  



decline to overrule Abyo and find no violation of Fyfe's confrontation rights.  



     1     166 P.3d 55 (Alaska App. 2007).  



                                                                2                                                            2425  


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

           Why we conclude that the legislature did not intend AS 28.90.030(a) to  

          double the range of fines for felony driving under the influence  



                    Under AS 28.90.030(a), a person is subject to a double fine if the person  

                                                                                        



"violates a provision of [Title 28] or a regulation adopted under the authority of [Title  

28] within a ... traffic safety corridor."2  

                                                                This provision,  on  its face, would seem to  

                                                                                               



mandate a double fine for any driving under the influence offense committed in a traffic  

                                                                                                                         



safety corridor because the offense of driving under the influence is a provision of Title  

                                                       



28.  However, the plain meaning of a statute does not necessarily control in Alaska:  



                    In interpreting a statute, we look to the plain meaning of the  

                     statute, the legislative purpose, and the intent of the statute.  

                    We have declined to mechanically apply the plain meaning  

                    rule  when  interpreting  statutes,  adopting  instead  a  sliding  

                     scale  approach:  The  plainer  the  statutory  language  is,  the  

                              

                    more convincing the evidence of contrary legislative purpose  

                                                

                    or intent must be.  We apply this sliding scale approach even  

                                                 

                    if a statute is facially unambiguous.3  

                                                                              



                                                 4 

                                                    

                    In Johnnie v. State ,  an unpublished case, we assumed that the double-fine 



requirement  in  AS  28.90.030(a)  applied  to  a  person  convicted  of  driving  under  the  



influence.  But the issue was not actually litigated in that case:  Johnnie did not contest  

                                                                             



that  he  would  be  subject  to  a  double  fine  if  his  offense  occurred  in  a  traffic  safety  

                                                                                          



corridor; instead, he contested the trial court's finding that he admitted, as part of his plea  

                                                                                                                     



     2    "[A] 'traffic safety corridor' means a portion of a highway on which signs have been   



erected   designating   that   portion   as   a   traffic   safety   corridor   under   AS   19.10.075."  

AS 28.90.990(a)(27).  



     3    State,  Dep't  of  Commerce,  Community  &  Economic  Development,  Div.  of  Ins.  v.  

                                                    

Alyeska Pipeline Service Co. , 262 P.3d 593, 597 (Alaska 2011) (internal quotation marks and  

                                                                                                        

citations omitted).  



     4    2013 WL 6410182 (Alaska App. Dec. 6, 2013) (unpublished).  



                                                                 3                                                           2425
  


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

agreement, that his offense occurred within a traffic safety corridor.                                          5  Consequently, the  



scope of the double-fine requirement in AS 28.90.030(a) is a question of first impression   



for this Court.  



                       The 1998 legislature intended the double-fine requirement to   

                      apply to traffic offenses  



                      Alaska Statute 28.90.030(a) has its origins in a statute enacted in 1999,  



former  AS  28.40.070,  which  required  double  fines  for  "offenses  committed  within  

highway work zones."6                                                                        

                                        The legislation that created that statute appears to have been first  



introduced in 1997 as House Bill 87.  That bill provided in pertinent part:  



                      Fines  for  speeding  offenses  committed  within  highway  

                      work   zones   doubled .   Whenever   a   person   violates   a  

                      provision of [Title 28] relating to speeding, or a regulation  

                                                                                          

                      adopted under the authority of [Title 28] relating to speeding,  

                      or is convicted of reckless driving under AS 28.35.040 or  

                      negligent driving under AS 28.35.045 within a highway work  

                                                                                

                      zone, notwithstanding the amount of the fine or the maximum  

                      fine set under this title, the fine, or maximum fine, is double  

                      the amount provided in this title.7  



      5    Id. at *1.  



      6    Ch. 64,  2, SLA 1998.   The statute enacted by this legislation, former AS 28.40.070,  



provided:  

                                                                           

                      Fines  for  offenses  committed  within  highway  work  zones  

                                                                                     

                      doubled.  Whenever a person violates a provision of this title or  

                      a regulation   adopted under the authority of this title within a  

                      highway work zone, notwithstanding the amount of the fine or  

                      the maximum fine set under this title, the fine, or maximum fine,  

                      is double the amount provided in this title.  



      7    H.B. 87, 20th Leg., 1st Sess. (as introduced).  



                                                                        4                                                                 2425
  


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

Thus, as originally conceived, the legislation would have doubled fines only for three  



specified offenses committed in highway work zones: speeding, negligent driving, and  

                                



reckless driving.  Although House Bill 87 was discussed in committee, it was never  

enacted into law.8  



                                                                                     

                      In 1998, some of the language from House Bill 87 was incorporated into  



                           9  

Senate Bill 304.    That legislation, as introduced, contained the same language as the  



current version of AS 28.90.030(a) (minus the 2006 amendment extending the statute to  

traffic safety corridors).10  

                                            Thus, instead of enacting the House bill, which was targeted  



at  three  specific  traffic  and  motor  vehicle  offenses,  the  legislature  opted  for  the  



seemingly broader language doubling fines "[w]henever a person violates a provision of  

                                                                                                  

[Title 28] or a regulation under the authority of [Title 28] within a highway work zone."11  

                                                    



                                                                                                      

                      Although this language on its face suggests that the legislature intended the  



                                                                                                                        

double-fine requirement to apply to  all  traffic infractions, equipment violations, and  



                                                       

motor vehicle criminal offenses enumerated in Title 28 of the Alaska Statutes, Title 13  



                                                                                                              

of the Alaska Administrative Code, and some Title 2 regulations, the legislative history  



                

does not support such a broad construction of the statute.  Sen. Dave Donley, the sponsor  



                                 

of Senate Bill 304, told the Senate Transportation Committee that the bill was intended  

to  "double  fines  for  moving  traffic  violations  in  construction  zones."12  

                                                                                                                                    Donley  



      8    See 1997 House Journal 137.
  



      9    S.B. 304, 20th Leg., 2nd Sess. (as introduced).
  



      10   Id. ; see also supra note 6.
  



      11   Ch. 64,  2, SLA 1998.
  



      12   Minutes of Senate Transportation Committee, S.B. 304, Tape 98-4, Side A (Feb. 24,
         



1998) (emphasis added).  



                                                                        5                                                                 2425
  


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

emphasized   that   the   legislation   "does   not   deal   with   criminal    law,    only   traffic  



                 13  

violations."                    

                     In this context, a state trooper informed the committee that the maximum  



                                                                                                              14 

                                                                                                

fine for a traffic infraction (unless otherwise provided by statute) was $300.                                    From this  



                                                                               

discussion, it appears that the legislature anticipated that the doubled fines that would  



result from enacting Senate Bill 304 would generally not exceed $600.  



                    At   the   same   time,   and   in   the   same   bill,   the   legislature   amended  

                                



AS 28.05.151, the statute that directs the supreme court to set bail, and municipalities to  

                                                                          



establish fines, for motor vehicle and traffic offenses that are amenable to disposition  

                             

without  court  appearance.15                                                  

                                              The  legislature  added  the  following  subsection  to  that  



statute:  



                    (d)  The supreme court, in establishing scheduled amounts of  

                                                      

                    bail under this section, and each municipality that establishes  

                    or  has  established  a  fine  schedule  under  this  section  shall  

                    provide   that  the  scheduled  amount  of  bail  or  fine,  as  

                                                                      

                    applicable,  for  a  motor  vehicle  or  traffic  offense  that  is  

                                                            

                    committed  in  a  highway  work  zone  shall  be  double  the  

                    amount of the bail or fine for the offense if it had not been  



                                                                         16  

                    committed in a highway work zone.                        

(In 2006, the legislature amended this subsection to add traffic safety corridors.17)  



     13   Id .  



     14   Minutes  of  Senate  Transportation  Committee,  S.B.  304,  testimony  of  Capt.  Ted  



Bachman, Alaska State Troopers, Tape 98-4, Side B (Feb. 24, 1998).  



     15   See   Putnam  v.  State,  930  P.2d  1290,  1293  (Alaska  App.  1996)  (statutes  enacted  



together are read in pari materia).  



     16   Ch. 64,  1, SLA 1998.  



     17   Ch. 45,  2, SLA 2006.  



                                                               6                                                         2425
  


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

                        Thus,  at   a  minimum,  the  1998  legislature  intended  the  double-fine  



requirement to apply to offenses listed in the bail and fine schedules established under   



AS 28.05.151(a) - that is, to non-criminal offenses amenable to disposition without  



                                18  

court appearance.  

                                                                                                    

                                    Because the sponsor of Senate Bill 304 clearly expressed an intent  



                                                                                                                                            

to limit double fines in highway work zones to non-criminal traffic offenses, it seems  



likely that the legislature understood the double-fine requirement to apply only to the  



offenses included in these schedules - that is, only to offenses amenable to disposition  

                                                                               



without court appearance - and not to fines imposed as part of a sentence for a criminal  

                                                                                                                



offense.  But we do not need to resolve that broader issue in this case, because the only  

                                                                                                            



question before us is whether the legislature intended the statute to double fines for  



felony driving under the influence.  Based on our review of the legislative history, we  

                                                                                                                   



conclude that the 1998 legislature did not intend to double fines for felony driving under  

                                                                          



the influence in highway work zones.  



      18    The bail amounts and fines established under AS 28.05.151(a) are the maximum fines     



for  those  offenses,  notwithstanding  the  higher  maximum  fines  that  might  be  authorized  

elsewhere in the Alaska Statutes.  Under AS 12.25.230(c), "[i]f a person cited for an offense   

for which an amount of scheduled bail or fine has been established appears in court and is  

found guilty, the penalty imposed for the offense may not exceed the bail or fine established   

for   the   offense."      The   bail   amounts   established   by   the   Alaska   Supreme   Court   in  

Administrative Rule 43.1, and the fines established by the Municipality of Anchorage in   

                                                                                                                                          

AMC 9.48.130, do not exceed $300 (the statutory maximum for an infraction under AS  

28.90.010(d)).  



                                                                            7                                                                     2425
  


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

                      The 2006 legislature did not express an intent to change the       

                      1999  law  to  double  fines  for  felony  driving  under  the  

                      influence  



                     In 2006, the legislature amended the 1999 statute to extend the double-fine  

                                                                                 

requirement to traffic safety corridors.19  

                                                                   Otherwise the statute remained unchanged.  



This suggests that the 2006 legislature did not intend to alter the meaning or reach of the  

                                                                                                                          



1999 statute - other than to extend it to traffic safety corridors.  "It is a general rule in  

                                                                                                         



the interpretation of statutes that provisions of an original act which are repeated in an  

                                                                                                     

amendment are considered as a continuation of the original act."20  



                      This   conclusion   is   supported   by   the   governor's   transmittal   letter  



accompanying the 2006 legislation.  Referring to the 1999 statute, AS 28.40.070, the  



governor stated that:  



                     the  provisions  of  ...  AS  28.40.070  currently  provide  for  

                                                                                                   

                      double fines or bail for motor vehicle or traffic offenses in  

                                                                                                     

                      areas designated as highway work zones.  These provisions  

                     would  be  amended  by  adding  references  to  traffic  safety  

                      corridors.21  



      19   See Ch. 45,  4, SLA 2006.  The underlined text was added:  



                     Fines  for  offenses  committed  within  highway  work  zones  

                      and  traffic  safety  corridors  doubled .    Whenever  a  person  

                                                                          

                     violates a provision of this title or a regulation adopted under the  

                      authority  of  this  title  within  a  highway  work  zone  or  traffic  

                      safety corridor, notwithstanding the amount of the fine or the   

                     maximum fine set under this title, the fine, or maximum fine, is   

                      double the amount provided in this title.  



     20    Green v. State, 462 P.2d 994, 1000 (Alaska 1969); see also Warren v. Thomas , 568  

                                                                   

P.2d 400, 403 (Alaska 1977).  



     21    January 31, 2006, governor's transmittal letter for S.B. 261, 2006 Senate  Journal  

                                                                                                            

                                                                                                                       (continued...)  



                                                                     8                                                              2425
  


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

                          As recounted above, the only explicit change the 2006 legislature made to                         



the  statutory  subsection  at  issue  -   AS  28.40.070  at  the  time  of  enactment,  now  



renumbered AS 28.90.030(a) - was to extend its application to traffic safety corridors.   



                          At the same time, the legislature enacted AS 19.10.075(a), which gave the   



Department of Transportation and Public Facilities the authority to create traffic safety                                                           

corridors.22  

                        That subsection provides in pertinent part:  



                          Designation  of  traffic  safety  corridors;  fines.  (a)  To  

                          promote  traffic  safety,  the  department  may  designate  a  

                          portion  of  a  highway  to  be  a  traffic  safety  corridor.    The  

                                                                                                                   

                           commissioner shall establish criteria for the designation and  

                           continuation of traffic safety corridors. ...  A motor vehicle or  

                                                       23  

                           traffic  offense    committed  in  a  traffic  safety  corridor  is  

                                                                                                                                  24 

                                                                               

                           subject to a double fine as provided in AS [28.90.030   ].  The  

                           department   shall   erect   signs   designating   traffic   safety  

                                                                                           

                           corridors and alerting the public that motor vehicle and traffic  

                                                                                                               

                           offenses committed within a corridor are subject to double  

                           fines.25  



                           The State argues that this language in AS 19.10.075(a) (in particular, the  



                                                                                                         

language characterizing the double-fine requirement in AS 28.90.030 as applying to any  



                                                                                                    

"motor vehicle or traffic offense")  expresses  the legislature's intent to require double  



       21    (...continued)  



2037.  



       22    Ch. 45,  1, SLA 2006.  



       23    Emphasis added.  The sentence containing this italicized language was included in the   



bill as originally introduced.  S.B. 261, 24th Leg., 2nd Sess. (as introduced, Feb. 1, 2006).  



       24    In  2007, "AS               28.90.030" was substituted for "AS                                      28.40.070" to reflect the                        2006  



renumbering of AS 28.40.070.  See Revisor's notes following AS 19.10.075.  



       25    AS 19.10.075(a) (emphasis added).  



                                                                                     9                                                                             2425
  


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

fines   in  traffic  safety  corridors  for  all  motor  vehicle  and  traffic  offenses,  including  



driving under the influence, regardless of the 1998 legislature's intent.  



                    We are not persuaded by this argument.  As we explained earlier, when the  

                                     



legislature added subsection (d) to AS 28.05.151 in 1998, it used the phrase "motor  

                           



vehicle  or  traffic  offense"  to  refer  to  offenses  the  supreme  court  and  municipalities  



determined were amenable to disposition without court appearance.  This same language  



was carried over into the 2006 version of AS 28.05.151(d).  Thus, both legislatures used  

                                                             



the phrase "motor vehicle or traffic offense" in reference to these schedules of non- 

                                             



criminal traffic and motor vehicle offenses.  Moreover, we think if the 2006 legislature  

                                                                                                   



had intended to significantly expand AS 28.90.030(a) to include motor vehicle criminal  

                                                                                



offenses such as felony driving under the influence, as the State argues, it would have  



done so explicitly in AS 28.90.030(a), rather than indirectly in AS 19.10.075(a).  



                    It might be that legislators in 2006 assumed - incorrectly, but reasonably  

                                                           



given the broad language of the statute - that the 1999 statute already doubled fines for  

                                                                    



criminal  motor  vehicle  offenses  committed  in  highway  work  zones.    If  the  2006  



legislature misconstrued the 1999 law in this manner and believed that this was the law  

                                                                                                         

it was extending to traffic safety corridors, that intent would seem to control.26  



                    But the legislative history of the 2006 legislation does not support this view.  



That history contains multiple direct references to doubling fines for moving traffic  



                                                                                                                

violations, particularly speeding, but there is no direct reference to the bill, in the form  



     26   Cf. McKinley v. State, 275 P.3d 567, 573 (Alaska App. 2012).  



                                                              10                                                           2425  


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

that was enacted,27 doubling fines for driving under the influence or other criminal motor                                                                                        



vehicle offenses.28  



                                 As the State points out, committee debate did touch on the enforcement of  

                                                                                           



drunk driving laws.  But because a portion of the fines collected from the traffic safety  

                                                                                                                           

corridor program was earmarked for increased enforcement efforts,29 we do not read  



        27      As  noted  below,  there  was  discussion  about  extending  the  bill  to  criminal  motor  



vehicle offenses in Title 11, but this idea was rejected and no amendment was offered.  



        28      See Fiscal Note No. 4, H.C.S. C.S.S.B. 261, 24th Leg., 2nd Sess. (published Apr. 26,   



2006) (noting that the legislation "provides for enhanced fines related to motor vehicle traffic                                    

offenses committed within a designated safety corridor"); Minutes of Senate Transportation                                                                  

Committee, S.B. 261, testimony of Lt. James Helgoe, Alaska State Troopers, 2:08:24 p.m.         

(Feb. 9, 2006) (stating that the legislation "would act as a deterrent for speeders"); Minutes                                      

of  House  Transportation  Committee,  S.B.  261,  testimony  of  John  MacKinnon,  Deputy  

Commissioner of Highways and Public Facilities, 2:14:32 p.m. (Mar. 21, 2006) and Minutes                                                                                  

of Senate Finance Committee, S.B. 261, testimony of MacKinnon, 9:07:11 a.m. (Mar. 21,  

2006)  (stating   that  the  legislation   would  allow   double  "traffic  fines"  in  traffic  safety  

corridors);  Minutes  of  House  Judiciary  Committee,  S.B.  261,  testimony  of  MacKinnon,  

                                                                                                 

2:30:01 p.m. (Apr. 12, 2006) (noting that speeding fines generally ranged from $75 to $100,  

and that "doubling those fines [would] result in a lot of money"); Minutes of Senate Finance   

                                                                                                                 

Committee, S.B. 261, questioning by Co-Chair Lyda Green, 9:33:15 a.m. (Mar. 21, 2006)  

(asking  whether  doubling  fines  in   highway  construction  zones  had  made  a  "notable  

difference" in speeding); Minutes of House Finance Committee, S.B. 261, statement of Co-                                                                                                               

Chair  Mike  Chenault,  3:51:38  p.m.  (Apr.  25,  2006)  (suggesting   that  the  intent  of  the  

legislation was to "fine careless drivers"); Minutes of Senate Transportation Committee, S.B.  

261, testimony of Director Jeff Ottesen, Division of Program Development, Department of  

Transportation and Public Facilities, 1:36:40 p.m. (Feb. 9, 2006) (stating that the intent of  

                                                                                      

the  legislation  was  to  "keep  [the]  numbers  of  accidents  down");    Minutes  of  Senate  

Transportation Committee, S.B. 261, testimony of Senator Gene Therriault, 1:38:53 p.m.  

(Feb.  9,  2006)  (noting  that  Virginia  had  set  a  maximum  fine  of  $500  in  traffic  safety  

corridors, on the theory that a definite fine would be a more effective deterrent).  



        29      AS  19.10.075(b);  Minutes  of  Senate  Finance  Committee,  S.B.  261,  testimony  of  



Deputy Commissioner of Highways and Public Facilities John MacKinnon, 9:07:11 a.m.  

(Mar.  21,  2006)  (stating  that  the  legislation  would  "couple  increased  enforcement  with  

                                                                                                                                                                                      (continued...)  



                                                                                                        11                                                                                                2425
  


----------------------- Page 12-----------------------

these discussions as demonstrating a legislative intent to double fines for driving under   



the influence in traffic safety corridors.  Although legislators were told that an estimated  



twenty to thirty percent of motor vehicle accidents were known to involve alcohol or  

controlled substances,30 the legislative history is silent on the substantial fines that might  



be  collected  for  driving  under  the  influence  offenses  committed  in  traffic  safety  

                                       



corridors.  (In 2006, as now, a first misdemeanor DUI offense carried a fine of not less  

                                                                                                       



                                                                                                        31 

than $1500 and a felony offense carried a fine of not less than $10,000.  ) 



                   We  acknowledge  that,  in  the  House  Judiciary  Committee,  Rep.  Max  

                                                                                             



Gruenberg questioned whether the requirement of double fines in traffic safety corridors  

                                                                          



should be extended beyond Title 28 to vehicular crimes penalized in Title 11, such as  



vehicular homicide (criminally negligent homicide committed by means of a vehicle) or  

assault with a dangerous instrument (third-degree assault).32  

                                                                                          This discussion suggests  



that Rep. Gruenberg, at least, viewed the bill as applying to all motor vehicle offenses  



listed in Title 28.  But the Department of Law's response to this inquiry conveyed that,  

                                       



contrary to this assumption, it did not understand the legislation to double fines for  



     29   (...continued)  



double  traffic  fines"  and  the  resulting  increased  revenue  would  "be  funneled  to  the  

Department of Public Safety to provide for the expense of the increased enforcement" in  

                                          

traffic safety corridors); Minutes of House Transportation Committee, S.B. 261, testimony  

                                                

of MacKinnon, 2:14:32 p.m. (Mar. 21, 2006) (stating  that the legislation was "aimed at  

                                                                               

getting a handle on driver behavior by allowing the increase of enforcement and collecting  

double traffic fines"); January 31, 2006, governor's transmittal letter for S.B. 261, 2006  

Senate Journal 2037 (noting that 50 percent of the fines would be allocated to highway safety  

                                                                                                        

programs).  



     30   Minutes  of  Senate  Transportation  Committee,  S.B.  261,  testimony  of  Lt.  James  



Helgoe, Alaska State Troopers, 2:15:46 p.m. (Feb. 9, 2006).  



     31   Former AS 28.35.030(b)(1)(A), (n)(1) (2006).  



     32   Minutes of House Judiciary Committee, S.B. 261, 2:43:00 p.m. (Apr. 12, 2006).  



                                                              12                                                        2425
  


----------------------- Page 13-----------------------

felony  motor  vehicle  offenses,  which  the  Department  pointed  out  already  carried  

substantial fines.33  

                           



                  Because the legislative history of the 2006 bill demonstrates no intent to  



change existing law (beyond extending it to traffic safety corridors), we conclude that  

                              



the intent of the 1998 legislature controls.  We therefore hold that AS 28.90.030(a) does  

                                                                                           



not double the range of fines for felony driving under the influence in a traffic safety  

                                                                    



corridor.  



                  We accordingly vacate Fyfe's $20,000 fine.  Because the judge's comments  



at sentencing make clear that the judge would have imposed the $10,000 mandatory  

     



minimum fine for Fyfe's offense if he believed he had the discretion to do so, we direct  



the superior court to modify the judgment to reflect this mandatory minimum fine.  



          Why we conclude that Fyfe's confrontation rights were not violated  



                  At trial, the State offered evidence that the calibration of the Datamaster  



machine had been verified before and after Fyfe's breath test as required to ensure that  



the  machine  was  functioning  properly.  Fyfe  argues  that  the  admission  of  these  



verification reports violated his Sixth Amendment right to confront the witnesses against  

                                                                             



him because the State did not present the testimony of the individual who performed the  



verifications and prepared the reports.  



     33  Minutes  of  House  Judiciary  Committee,  S.B.  261,  testimony  of  Senior  Assistant  



Attorney General Peter Putzier, Department of Law, 2:44:22 p.m. (Apr. 12, 2006).  The  

maximum fine for felony driving under the influence, a class C felony, is $50,000.   AS  

28.35.030(b); AS 12.55.035(b)(4). The highest possible fine under Title 28 appears to be for  

using an electronic device while driving and causing the death of a person, a class A felony  

that carries a maximum fine of $250,000. AS 28.35.161(f)(4); AS 12.55.035(b)(2).  



                                                           13                                                    2425
  


----------------------- Page 14-----------------------

                    In Crawford v. Washington,34 the United States Supreme Court held that the  



admission  of  out-of-court  "testimonial"  statements  violates  the  defendant's  Sixth  



Amendment right to confrontation unless the defendant (1) is able to cross-examine the  



person who made the testimonial statements, or (2) the person is unavailable and the  

                                                                                                     



defendant had a prior opportunity to cross-examine the person regarding the subject of  

                                                                                     

the statements.35  

                            



                    In  Crawford,  the  Supreme  Court  declared  that  statements  in  business  



                                                                               36  

                               

records are by their nature normally not testimonial.                              Subsequently, in Abyo v. State ,  



                                                                                                   37  

                                                                                                            

we held - in line with the weight of authority in other jurisdictions                                 - that verification  



                                                                                                

of calibration reports are non-testimonial business records under Crawford, and that such  



                                                                                     

reports may be admitted against the defendant even if the author of the report is not  

subject to cross-examination.38  



                    After we decided Abyo , a plurality of the Supreme Court held in Melendez  



                                   39  

-Diaz v. Massachusetts                                                       

                                      that the defendant's right to confrontation was violated by the  



admission of an affidavit by a laboratory analyst asserting that the substance seized from  



                                                                             

the defendant was cocaine; the Court reached this conclusion because it found that the  



                                          

affidavit was "testimonial" and that the defendant had no opportunity to cross-examine  



     34   541 U.S. 36 (2004).
  



     35   Id.  at 53-54.
  



     36   Id. at 56.
  



     37   Abyo , 166 P.3d  55, 60 & n.19 (Alaska App. 2007); see also McCarthy v. State                                    , 285
  



P.3d 285, 294 (Alaska App. 2012) (Mannheimer, J., concurring).  



     38   Abyo , 166 P.3d at 60.  



     39   557 U.S. 305 (2009).  



                                                                14                                                         2425
  


----------------------- Page 15-----------------------

                40  

the author.          In McCarthy v. State , we addressed whether our decision in                               Abyo was still  



                                                                                                   41  

good law in light of Melendez-Diaz , and we concluded that it was.                                     We noted that other  



                                                                 

courts that had considered the issue after Melendez-Diaz had almost uniformly agreed  



                                                                                                                         

that breath-test machine calibration records are non-testimonial records that may be  

admitted without the testimony of the person who prepared them.42  



                                                                                      

                    Fyfe argues that Abyo and McCarthy were wrongly decided and should be  



                                         

overruled.  We adhere to those decisions and uphold the superior court's decision to  



admit the verification of calibration reports in this case.  



          Conclusion  



                                                       

                    We VACATE Fyfe's $20,000 fine and direct the superior court to modify  



the  judgment  to  impose  a  fine  of  $10,000,  the  mandatory  minimum  fine  for  felony  



driving under the influence.  In all other respects, we AFFIRM the judgment of the  

             



superior court.  



     40   Id. at 307-11.  



     41   McCarthy , 285 P.3d at 289.  



     42   Id. at 289 & n.9.  



                                                                 15                                                             2425  

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