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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Valentine v. State (08/28/2009) sp-6405

Valentine v. State (08/28/2009) sp-6405

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

DOUGLAS LEROY VALENTINE, )
) Supreme Court No. S- 12692
Petitioner, )
) Court of Appeals No. A-9491
v. ) Superior Court No. 4FA-05-01998 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6405 August 28, 2009
)
Petition   from    the
          Court  of Appeals of the State of Alaska,  on
          Appeal   from  the  District  Court,   Fourth
          Judicial  District,  Fairbanks,  Winston   S.
          Burbank and Donald D. Hopwood, Judges.

          Appearances:  Robert  John,  Law  Office   of
          Robert John, and Lawrence F. Reger, McConahy,
          Zimmerman    &   Wallace,   Fairbanks,    for
          Petitioner.   Eric  A.  Ringsmuth,  Assistant
          Attorney    General,   Office   of    Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for Respondent.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Carpeneti, Winfree, and Christen, Justices.

          FABE, Chief Justice.


I.   INTRODUCTION
          In  2004  the  Alaska Legislature made two  significant
changes to the driving under the influence (DUI) law.  First, the
legislature amended subsection (a)(2) of AS 28.35.030 to  provide
that  a  person  commits  a DUI offense if  the  person  takes  a
chemical test within four hours of driving that detects  a  blood
alcohol level of at least 0.08 percent, regardless of the persons
blood alcohol at the time of driving.  This is known as the blood-
alcohol-level  theory  of DUI.  Second,  the  legislature  barred
defendants  charged with DUI from presenting a delayed-absorption
defense  claiming that the results of their post-arrest  chemical
tests  did not accurately indicate their blood alcohol  level  at
the  time they were driving.  These two amendments did not revise
the language of subsection (a)(1) of AS 28.35.030, which makes it
a crime to drive while under the influence of alcohol, regardless
of  blood  alcohol,  and is known as the under-the-influence  DUI
theory.
          Douglas  Valentine was convicted under the amended  DUI
law  in  a  general verdict that did not specify whether  he  was
convicted  under the blood-alcohol-level theory,  the  under-the-
influence  theory,  or both.  The court of appeals  affirmed  his
conviction upon concluding that the 2004 amendments survived  all
of   Valentines  constitutional  challenges.   But  Judge   David
Mannheimer  dissented  in part, concluding  that  defendants  are
denied  due  process  of law when they are barred  from  offering
delayed-absorption evidence in prosecutions that rely on chemical
test  results  and  are  brought  under  the  under-the-influence
theory.   He  reasoned  that because DUI convictions  under  this
theory  continue to require proof that the defendants were  under
the influence at the time of driving, the evidentiary prohibition
codified  in AS 28.35.030(s) violates a defendants right  to  due
process of law.1
          We   granted  Valentines  petition  for  hearing.    We
conclude  that  the  legislature  properly  exercised  its  broad
authority to redefine the blood-alcohol-level theory of  the  DUI
offense.  But we agree with Judge Mannheimer that defendants  are
denied  due  process if they are barred from presenting  delayed-
absorption  evidence  in prosecutions relying  on  chemical  test
results  to  prove  that they are guilty of a DUI  offense  under
subsection (a)(1)s under-the-influence theory.  Because the jurys
general  verdict did not specify which theory provided the  basis
for  Valentines conviction, we reverse the conviction and  remand
for a new trial.
II.  FACTS AND PROCEEDINGS
          On  June 18, 2005, at about 8:45 p.m., Fairbanks Police
Sergeant Dan Welborn stopped Douglas Valentine for speeding.2  He
noticed  that Valentine had a moderate odor of alcohol  and  that
his   eyes   were   watery  and  bloodshot.    Sergeant   Welborn
administered three field sobriety tests, which Valentine  failed,
and  then  placed  Valentine under arrest.   At  the  station  at
9:20  p.m., Valentine submitted to a breath test, which showed  a
blood  alcohol  level of 0.099 percent.  Valentine  requested  an
independent test, which he obtained at 9:45 p.m.  That blood test
showed a blood alcohol level of 0.119 percent.  The State charged
Valentine under both AS 28.35.030 theories for committing  a  DUI
offense: it alleged that Valentine was under the influence at the
time  of driving under subsection (a)(1) and that a chemical test
showed  that Valentines blood alcohol level was above  the  legal
limit under subsection (a)(2).
          Before  trial,  Valentine filed a  motion  to  dismiss,
challenging the constitutionality of the 2004 amendments  to  the
DUI  law.   District  Court Judge Winston S. Burbank  denied  the
motion  to  dismiss.  In his decision, Judge Burbank incorporated
by   reference  an  earlier  ruling  by  District   Court   Judge
Raymond  Funk  rejecting  the  same constitutional  claims  in  a
consolidated Fairbanks case, State v. Baxley, Marshall &  Tyler.3
The  effect  of  the  district  courts  ruling  was  to  prohibit
Valentine  from  offering evidence to show that even  though  his
blood alcohol level was above the legal limit at the time of  his
two  chemical tests, he was not guilty of driving while under the
influence  under either theory because at the time he  drove  the
alcohol he had consumed had not yet been fully absorbed into  his
bloodstream.
          Valentines case then proceeded to trial before Superior
Court  Judge Donald D. Hopwood, who was sitting pro tem  for  the
district  court.  At trial, Valentine argued that he had consumed
two  beers,  that people absorb alcohol at different rates,  that
there was ample evidence that he was not impaired at the time  he
performed  the field sobriety tests, and that the  State  had  no
evidence  of  his  actual blood alcohol  level  at  the  time  of
driving.   The  jury convicted Valentine using a general  verdict
form  that  did  not  specify  whether  he  was  convicted  under
subsection (a)(1), subsection (a)(2), or both.
          Valentine appealed the denial of his motion to dismiss.
The  court  of appeals affirmed Valentines conviction, concluding
that  the  amendments to the DUI law withstood all of  Valentines
constitutional challenges.4  The court of appeals determined that
(1)  the  amendments are not unconstitutionally  vague;  (2)  the
amendments   are  not  unconstitutionally  overbroad;   (3)   the
amendments do not impose criminal liability without any proof  of
mens  rea; (4) the amendments do not violate Valentines right  to
due  process  by  creating impermissible  presumptions;  (5)  the
amendments  do not deny Valentines right to an independent  test;
(6)  the  amendments  do  not violate  the  Alaska  Constitutions
guarantee  of  equal protection; and (7) the  amendments  do  not
unconstitutionally  infringe on our  rule-making  power.5   Judge
David   Mannheimer   dissented  in   part.6    Judge   Mannheimer
conclude[d]  that  the  evidentiary prohibition  codified  in  AS
28.35.030(s)  violates a defendants right to due process  of  law
when the defendant is prosecuted for DUI under AS 28.35.030(a)(1)
and  the  government  relies  on the  result  of  a  post-driving
chemical test.7  We granted Valentines petition for hearing.8
III. STANDARD OF REVIEW
          We   apply   our  independent  judgment  to   questions
involving  the constitutionality of a statute and will adopt  the
rule  of  law  which  is most persuasive in light  of  precedent,
reason, and policy.9
IV.  DISCUSSION
     A.   The 2004 Amendments to the DUI Law
          The Alaska Legislature amended AS 28.35.030 in 200410 in
response  to  the court of appeals decision in Conrad  v.  State,
which held that former AS 28.35.030(a)(2) required the government
to prove that the defendants blood alcohol level was 0.08 percent
          or higher at the time that the defendant was operating or
controlling a motor vehicle.11  In Conrad, the defendant presented
a  delayed-absorption defense, claiming that the results  of  his
post-arrest chemical tests did not accurately indicate his  blood
alcohol at the time that he was driving.12  Charles Conrad alleged
that  he had quickly consumed two beers just before he drove  and
that  his  bloodstream had not fully absorbed  the  alcohol  from
those beers at the time that he was driving.13  Conrad maintained
that his blood alcohol was below the allowable level while he was
driving  even  though his post-arrest chemical test results  were
above the legal limit.14  The trial court, however, instructed the
jury  that  Conrads  guilt  under the  pre-amendment  version  of
AS  28.35.030(a)(2) hinged on whether the government  had  proved
that  a  properly administered chemical test had yielded a result
that was above the legal limit.15  The jury convicted Conrad.16
          The  court of appeals reversed the conviction and ruled
that  Conrad  was  entitled to a new trial, conclud[ing]  that  a
defendants guilt under [former] AS 28.35.030(a)(2) hinges on  the
defendants  blood  alcohol  content at  the  time  the  defendant
operated  or controlled a motor vehicle.17  The court of  appeals
reasoned  that  the legislature had not intended  to  define  the
offense  in terms of the defendants blood alcohol at the time  of
the chemical test but noted that it appeared that the legislature
had  the  authority  to  do so, as other state  legislatures  had
explicitly done.18  In addition, the court of appeals interpreted
AS  28.33.033  as  authorizing the  government  to  rely  on  the
rebuttable presumption that the defendants blood alcohol  content
while  driving was at least as high as the result of  a  properly
administered chemical test.19  The court of appeals held that this
presumption was sufficient to support a conviction.20
          The  effect  of  the court of appeals decision  was  to
permit  a  defendant to present a delayed-absorption  defense  to
show that a chemical test result was not an accurate indicator of
the  defendants  blood  alcohol at the  time  the  defendant  was
driving.   According  to  the  experts  who  testified   at   the
evidentiary hearing before District Court Judge Funk,21 there is a
delay between a persons consumption of alcohol and the absorption
of  alcohol  into the persons bloodstream.  Typically  within  an
hour  after a person has stopped drinking, the persons  body  has
absorbed much of the alcohol consumed and is eliminating  alcohol
from the bloodstream faster than it is absorbing it  that is, the
point of peak blood alcohol level has passed.  But in some people
this  peak  point may not be reached for up to four  hours  after
drinking  because  the  rate at which the  body  absorbs  alcohol
depends  on a variety of factors, including consumption of  food,
having  an  upset  stomach,  and the type  of  alcohol  consumed.
Therefore,  it  is possible that a persons blood alcohol  at  the
time of driving was lower than at the time the person took a post-
arrest  chemical test.  In offering a delayed-absorption defense,
a  defendant could argue that even though a post-arrest  chemical
test  result  was  illegally high, the defendants  blood  alcohol
level  when  the  defendant was stopped was below  the  allowable
limit.
          In  response to Conrad, the Alaska Legislature made two
          significant changes to AS 28.35.030.22  First, the legislature
amended  subsection  (a)(2) to redefine  the  blood-alcohol-level
theory  of the DUI offense in terms of a defendants blood alcohol
at  the  time  that  the  defendant took a properly  administered
chemical test rather than at the time of driving.23  Now, a person
violates  subsection (a)(2) if the person takes a  chemical  test
within  four  hours of operating or driving a motor vehicle  that
yields  a  result  of a blood alcohol level of  0.08  percent  or
higher,  regardless of the persons blood alcohol at the  time  of
driving.
          But  in amending subsection (a)(2)s blood-alcohol-level
theory  of  the  DUI  offense,  the legislature  did  not  revise
subsection (a)(1)s under-the-influence theory, which makes  it  a
DUI  offense to drive or operate a motor vehicle while under  the
influence of alcohol or controlled substances.
          Second, the legislature added a new subsection  to  the
DUI law that prohibits defendants from raising delayed-absorption
defenses to DUI charges.24  Under AS 28.35.030(s), defendants are
permitted  to rebut the results of chemical tests by  introducing
evidence  concerning the quantity of alcohol consumed  before  or
after driving but the consumption of alcohol before operating  or
driving  may not be used as a defense that the chemical test  did
not  measure  the blood alcohol at the time of the  operating  or
driving.   Deputy  Attorney  General Parkes  explained  that  the
intent  of  adding  subsection (s) in conjunction  with  amending
subsection  (a)  was  to  do  away with [the  delayed-absorption]
defense  and  overturn  a case called Conrad.25   Senator  Hollis
French  voiced  his  support for the  changes  to  AS  28.35.030,
remarking  that  he  totally  support[ed]  the  intent   of   the
amendment, that being to keep someone from saying they  had  four
shots  of  whiskey  and drove home before  the  alcohol  had  any
effect.26
          As the court of appeals discussed, the dual purposes of
the amendments to the DUI law were to make a chemical test result
determinative of a defendants guilt under subsection  (a)(2)  and
to eliminate the delayed-absorption defense to prosecutions under
both subsections (a)(1) and (a)(2):
               This  legislative history, and the plain
          language  of  the amended statutes,  indicate
          that  the  legislature intended to accomplish
          two  things through this legislation.  First,
          it intended to hinge a defendants guilt in  a
          driving while under the influence prosecution
          under  subsection (a)(2) on the result  of  a
          chemical  test  properly administered  within
          four hours of driving (if the test result  is
          attributable  to alcohol ingested  before  or
          during  the  operation of a  motor  vehicle).
          And,  second,  it  intended  to  eliminate  a
          delayed absorption defense to any prosecution
          under subsection (a)(1) or (a)(2) that relies
          in  whole  or  in  part on the  result  of  a
          chemical  test,  so that defendants  may  not
          argue based on alcohol absorption rates  that
               the result of their chemical test did not
          reflect  their actual alcohol  level  at  the
          time of driving.[27]
          Thus,  as  subsection (s) is applied  to  a  subsection
(a)(2)  blood-alcohol-level prosecution, the question  whether  a
drivers blood alcohol while driving was above the legal limit  is
immaterial because the driver violates the subsection by taking a
properly  administered chemical test after driving that yields  a
result of at least 0.08 percent.
          But the delayed-absorption defense is still relevant to
prosecutions under subsection (a)(1).  A defendants  guilt  in  a
DUI  prosecution  under  this subsection  turns  on  whether  the
defendant  was under the influence while operating or  driving  a
motor  vehicle.  If the government offers evidence of the  result
of  a properly administered chemical test after the defendant was
stopped, this evidence does not directly prove that the defendant
was impaired while driving because the chemical test result shows
the  percentage of alcohol in the defendants bloodstream  at  the
time that the test was administered.  Yet under AS 28.35.033, the
statutory provision concerning presumptions arising from chemical
tests,  a  result of 0.08 percent or higher creates a  rebuttable
presumption that the defendant was under the influence of alcohol
at  the  time  of  driving.28   The statute  provides  that  this
presumption  may  be  rebutted by any  other  competent  evidence
bearing  upon whether the person was impaired.  Moreover,  Alaska
Rule  of  Evidence 303(a)(1) provides that the trial  court  must
instruct the jury that it may, but is not required to, infer  the
existence  of the presumed fact.  Thus, the government  may  rest
its  case  against a defendant solely on evidence of  a  chemical
test  result of at least 0.08 percent, though the jury  need  not
infer  that  the  chemical  test result accurately  reflects  the
defendants blood alcohol content at the time of driving.  But the
adoption of subsection (s) created an exception to the rule  that
competent evidence may be introduced to rebut the presumption and
bars  evidence of the consumption of alcohol before operating  or
driving that is introduced by the defendant as a defense that the
chemical  test did not measure the blood alcohol at the  time  of
the operating or driving.
     B.   Alaska  Statute  28.35.030(s)s  Exclusion  of  Delayed-
          Absorption   Evidence   in  a  Prosecution   Under   AS
          28.35.030(a)(1) that Relies on a Chemical  Test  Result
          Violates a Drivers Right to Due Process.
          
          Under  the  United  States and Alaska Constitutions,  a
defendant has the right to present relevant exculpatory  evidence
in  a  criminal  trial.29  The United States  Supreme  Court  has
recognized  that criminal defendants are guaranteed a  meaningful
opportunity  to present a complete defense by the  United  States
Constitution, [w]hether rooted directly in the Due Process Clause
of  the  Fourteenth  Amendment or in the  Compulsory  Process  or
Confrontation  Clauses of the Sixth Amendment.30   Similarly,  we
have  held  that  a defendants right to present a  defense  is  a
fundamental element of due process.31  This right, however, is not
absolute  because it is properly limited by other considerations,
          such as relevance and Alaska Evidence Rule 403s balancing test.32
As  the  United States Supreme Court has explained, the  need  to
accommodate  other  legitimate interests in  the  criminal  trial
process  gives legislators broad latitude under the  Constitution
to establish rules excluding evidence from criminal trials.33  But
a  defendants  due process rights are denied when  a  legislative
enactment substantially limits the right to present a defense.34
          In  addressing  whether  the  Due  Process  Clause  was
violated by Montanas statutory prohibition on presenting evidence
of  voluntary intoxication to determine whether the defendant had
the  necessary  mental  state  to  commit  the  offense,  Justice
Ginsburg framed the issue as a question of characterization:
          If  [the  Montana statute] is simply  a  rule
          designed  to  keep out relevant,  exculpatory
          evidence,  [as]  Justice  OConnor  maintains,
          Montanas law offends due process.  If it  is,
          instead,  a  redefinition of the mental-state
          element  of  the offense, on the other  hand,
          Justice  OConnors due process  concern  would
          not  be  at  issue, for [a] state legislature
          certainly  has the authority to identify  the
          elements of the offenses it wishes to punish,
          and  to  exclude evidence irrelevant  to  the
          crime it has defined.[35]
          
Justice  Ginsburg cast the deciding vote to hold that the Montana
statute  did  not violate due process when she concluded  in  her
concurring opinion that the statute was not merely an evidentiary
prescription  but  the  judgment  that  two  people  are  equally
culpable  where one commits an act stone sober[]  and  the  other
engages in the same conduct after his voluntary intoxication  has
reduced his capacity for self-control.36
          The   Alaska  Legislature  properly  used   its   broad
discretion  to  redefine the elements of the  blood-alcohol-level
theory  of  the DUI offense when it amended subsection  (a)(2).37
The  legislative  amendment  to  subsection  (a)(2)  changed  the
conduct necessary to commit a DUI offense under the blood-alcohol-
level  theory.  Under the prior version of subsection  (a)(2),  a
driver committed a DUI offense if the drivers blood alcohol level
was 0.08 percent or higher at the time of driving.  Now, a driver
violates subsection (a)(2) if the drivers chemical test result is
0.08  percent or higher within four hours of driving.  In a House
Judiciary Committee discussion of the House version of  the  bill
amending  subsection (a)(2), Representative Les  Gara  recognized
that the amendment to subsection (a)(2) changed what behavior  is
punishable: were changing the substance of the crime . . . ; were
changing policy here.38  The redefinition of the conduct  element
of  the  blood-alcohol-level theory rendered a  defendants  blood
alcohol  at the time of driving irrelevant and thus inadmissible.
For  this reason, subsection (s)s exclusion of delayed-absorption
evidence  does not infringe upon the defendants right to  present
relevant   exculpatory  evidence  in  a  DUI  prosecution   under
subsection (a)(2).
          But  the  2004  amendments to  the  DUI  law  left  the
          substance of the subsection (a)(1) crime unchanged.  To prove a
DUI  charge using the under-the-influence theory, the prosecution
must  demonstrate that the driver was impaired  at  the  time  of
driving.   Whether a chemical test result accurately indicates  a
drivers blood alcohol content at the time of driving continues to
be  relevant to prosecutions under subsection (a)(1) if they rely
on  chemical test results.  Yet under subsection (s),  defendants
are denied the opportunity to present delayed-absorption evidence
to show that even though their chemical test result was above the
legal  limit  they were not impaired when they drove.   As  Judge
Mannheimer  concluded,  subsection (s)s prohibition  on  delayed-
absorption evidence in prosecutions under subsection (a)(1)  that
rely  on  chemical test results unjustifiably prevents defendants
from  introducing evidence that is both scientifically valid  and
directly  relevant to the question of whether the  defendant  was
impaired by alcohol at the time of driving.39
          At  Valentines trial, the jury was instructed  that  he
could  be  found  guilty  of driving under  the  influence  under
subsection   (a)(1)s  under-the-influence  theory  or  subsection
(a)(2)s  blood-alcohol-level theory.  Because the jury  convicted
Valentine  using a general verdict form, it is not known  whether
he  was  found guilty under subsection (a)(1), subsection (a)(2),
or  both.   As  we  concluded in Williford v.  State,40  we  must
therefore reverse the conviction and remand for a new trial.
V.   CONCLUSION
          Because a DUI conviction under subsection (a)(1) of  AS
28.35.030 continues to require proof that the defendant was under
the  influence at the time of driving, subsection (s)s  exclusion
of  delayed-absorption evidence in prosecutions under  subsection
(a)(1) that rely on chemical test results violates the defendants
right   to  due  process.   Accordingly,  we  REVERSE  Valentines
conviction and REMAND for a new trial.
_______________________________
     1     Valentine  v.  State, 155 P.3d 331, 352  (Alaska  App.
2007) (Mannheimer, J., dissenting).

     2     This  description  of  the facts  and  proceedings  is
largely  drawn from the court of appeals decision in  this  case.
See id. at 335-36 (majority opinion).

     3     4FA-04-770  CR,  4FA-04-2284 CR, and  4FA-04-2695  CR,
respectively.

     4    Valentine, 155 P.3d at 335, 348.

     5    Id. at 339-48.

     6    Id. at 348 (Mannheimer, J., dissenting).

     7    Id. at 352.

     8    Valentine petitioned for hearing on all of the court of
appeals  holdings  except for its decision concerning  our  rule-
making  power, and the parties briefed each of these issues.   We
conclude that the petition for hearing was improvidently  granted
on  each  issue  except for the question whether a  defendant  is
denied  due  process  of  law  by subsection  (s)s  exclusion  of
delayed-absorption  evidence  in a prosecution  under  subsection
(a)(1) that relies on a chemical test result.

     9     State  v.  Murtagh, 169 P.3d 602,  606  (Alaska  2007)
(internal quotation marks omitted).

     10    Ch. 124,  25, 27, SLA 2004.

     11     54  P.3d  313, 313 (Alaska App. 2002), superseded  by
statute,  ch. 124,  25, 27, SLA 2004, as recognized in Valentine,
155  P.3d  at 337.  AS 28.35.030(a)(2) defines the offense  using
three  metrics.  Under this subsection, a person commits the  DUI
offense  when  a  properly administered chemical  test  yields  a
result  of (1) 0.08 percent or more by weight of alcohol  in  the
persons  blood,  (2)  80 milligrams or more of  alcohol  per  100
milliliters  of blood, or (3) 0.08 grams or more of  alcohol  per
210  liters of the persons breath.  References to a result of  at
least  0.08 percent blood alcohol content incorporate  the  other
two metrics by which the subsection (a)(2) offense is defined.

     12     54  P.3d  at 314.  In Conrad and the 2004 legislative
hearings,  this  defense was described as the big  gulp  defense,
which  was  a  reference to the possibility  that  a  driver  had
quickly  drunk a large quantity of alcohol shortly  before  being
stopped by the police.  See, e.g., id.; Minutes, H. Finance Comm.
Hearing  on  S.B.  170,  23d  Leg., 2d  Sess.  8  (May  5,  2004)
(statement of Susan Parkes, Deputy Atty Gen., Criminal Div., Dept
of  Law);  Minutes, S. Judiciary Comm. Hearing on S.B.  170,  23d
Leg.,  2d  Sess. 26 (March 24, 2004) (statement of Susan  Parkes,
Deputy  Atty  Gen.,  Criminal Div., Dept of  Law).   But  delayed
absorption  is  a better description of the defense  because  the
critical element of the defense is that the absorption of alcohol
in  the  drivers bloodstream was delayed for one of many possible
reasons,  including taking a big gulp, eating a large  meal,  and
being  ill.   Valentine,  155 P.3d at 349  n.1  (Mannheimer,  J.,
dissenting).

     13    Conrad, 54 P.3d at 314.

     14    Id.

     15    Id.

     16    Id.

     17    Id. at 315.

     18    Id.

     19    Id.

     20    Id.

     21    The court of appeals permitted the record in this case
to  be  supplemented with the expert testimony presented in Judge
Funks  consolidated case, State v. Baxley.  Valentine  v.  State,
155 P.3d 331, 336 (Alaska App. 2007).

     22    Ch. 124,  25, 27, SLA 2004.

     23     Chapter  124,  section 25  of  SLA  2004  amended  AS
28.35.030(a) by adding the underlined text and deleting the  text
in brackets:

               (a)   A  person  commits  the  crime  of
          driving  while  under  the  influence  of  an
          alcoholic  beverage, inhalant, or  controlled
          substance if the person operates or drives  a
          motor  vehicle or operates an aircraft  or  a
          watercraft
          
                    (1)   while under the influence  of
          an  alcoholic beverage, intoxicating  liquor,
          inhalant, or any controlled substance, singly
          or in combination; or
          
                    (2)   and  if [WHEN], as determined
          by  a  chemical test taken within four  hours
          after   the  alleged  operating  or   driving
          [OFFENSE  WAS  COMMITTED],  there   is   0.08
          percent or more by weight of alcohol  in  the
          persons blood or 80 milligrams or 08 more  of
          alcohol per 100 milliliters of blood,  or  if
          [WHEN] there is 0.08 grams or more of alcohol
          per 210 liters of the persons breath [; OR
          
                    (3)   WHILE THE PERSON IS UNDER THE
          COMBINED  INFLUENCE OF AN ALCOHOLIC BEVERAGE,
          AN  INTOXICATING LIQUOR, AN INHALANT,  AND  A
          CONTROLLED SUBSTANCE].
          
     24     Chapter  124,  section 27  of  SLA  2004  amended  AS
28.35.030 by adding a new subsection (s), which provides:

               (s)   In a prosecution under (a) of this
          section,  a person may introduce evidence  on
          the  amount  of  alcohol consumed  before  or
          after operating or driving the motor vehicle,
          aircraft,  or watercraft to rebut or  explain
          the  results  of  a chemical  test,  but  the
          consumption  of alcohol before  operating  or
          driving may not be used as a defense that the
          chemical  test  did  not  measure  the  blood
          alcohol  at  the  time of  the  operating  or
          driving.    Consumption  of   alcohol   after
          operating  or  driving  the  motor   vehicle,
          aircraft, or watercraft may be used to  raise
          such a defense.
          
In recognition of this new subsection, chapter 124, section 29 of
SLA  2004  added  the  underlined text and deleted  the  text  in
brackets in AS 28.35.033(c):

               (c)    Except   as   provided   in    AS
          28.35.030(s), the [THE] provisions of (a)  of
          this  section may not be construed  to  limit
          the   introduction  of  any  other  competent
          evidence bearing upon the question of whether
          the person was or was not under the influence
          of intoxicating liquor.
          
     25     Minutes, S. Judiciary Comm. Hearing on S.B. 170,  23d
Leg.,  2d  Sess. 26 (March 24, 2004) (statement of Susan  Parkes,
Deputy  Atty Gen., Criminal Div., Dept of Law) (typeface  altered
and  internal  quotation  marks  omitted);  accord  Minutes,   H.
Judiciary Comm. Hearing on H.B. 244, 23d Leg., 2d Sess. 9  (April
2,  2004)  (statement  of Dean J. Guaneli, Chief  Assistant  Atty
Gen.,  Legal Servs. Section-Juneau, Criminal Div., Dept  of  Law)
(The  intent of these entire provisions [is] to prevent  the  big
gulp  defense,  so to speak, and that arose as a result  of  [an]
Alaska Court of Appeals opinion. (alterations in original)).

     26     Minutes, S. Judiciary Comm. Hearing on S.B. 170,  23d
Leg.,  2d  Sess.  22 (March 31, 2004) (statement of  Sen.  Hollis
French).

     27     Valentine  v. State, 155 P.3d 331, 339  (Alaska  App.
2007).

     28     See  AS 28.35.033(a)(3) (providing that at  the  time
alleged  that  the person violated the DUI statute  it  shall  be
presumed  that the person was under the influence of an alcoholic
beverage  if the persons blood alcohol content was at least  0.08
percent); see also Doyle v. State, 633 P.2d 306, 307, 310 (Alaska
App.  1981)  (explaining that the presumptions  of  AS  28.35.033
apply  to the time that the defendant was allegedly driving under
the influence in violation of AS 28.35.030).

     29    See, e.g., Holmes v. South Carolina, 547 U.S. 319, 324
(2006) (Whether rooted directly in the Due Process Clause of  the
Fourteenth   Amendment   or   in  the   Compulsory   Process   or
Confrontation  Clauses of the Sixth Amendment,  the  Constitution
guarantees  criminal  defendants  a  meaningful  opportunity   to
present  a complete defense. (internal quotation marks omitted));
United  States v. Scheffer, 523 U.S. 303, 308 (1998)  (discussing
the  limits  imposed on an accuseds right to present a  defense);
Montana  v.  Egelhoff,  518  U.S.  37,  42-43  (1996)  (plurality
opinion)  ([T]o say that the right to introduce relevant evidence
is  not absolute is not to say that the Due Process Clause places
no   limits   upon  restriction  of  that  right.  (emphasis   in
original));  Smithart v. State, 988 P.2d 583, 586  (Alaska  1999)
([A]  defendants  right  to present a defense  is  a  fundamental
element  of  due process.); Keith v. State, 612 P.2d 977,  982-83
(Alaska  1980) (noting that if the courts exclusion  of  evidence
substantially limit[ed] the defendants opportunities to prove his
innocence  affirmatively, the due process right to a  fair  trial
would have been denied him).

     30     Holmes,  547  U.S. at 324 (internal  quotation  marks
omitted).

     31    Smithart, 988 P.2d at 586.

     32    Id. at 586 & n.7.

     33    Scheffer, 523 U.S. at 308.

     34     Cf.  Smithart, 988 P.2d at 568 (When a  trial  courts
evidentiary  rulings substantially infringe  upon  the  right  to
present  a defense, the court necessarily violates the defendants
due  process rights.); Keith, 612 P.2d at 982-83 (If the superior
courts  refusal to admit the journal did, in fact,  substantially
limit  Keiths opportunities to prove his innocence affirmatively,
the  due  process  right to a fair trial would have  been  denied
him.).

     35     Montana  v.  Egelhoff,  518  U.S.  37,  56-57  (1996)
(Ginsburg, J., concurring) (citations omitted).

     36    Id. at 57.

     37     See  Abruska v. State, 705 P.2d 1261, 1265-66 (Alaska
App.   1985)   (holding  that  it  was  within  the  legislatures
prerogative to define the element of knowledge of the  proscribed
conduct or relevant circumstances necessary for unlawful activity
to  exclude consideration of intoxication); Neitzel v. State, 655
P.2d  325,  334-35  (Alaska App. 1982) (We do  not  consider  the
legislative judgment to preclude consideration of intoxication in
determining  recklessness  so irrational  that  it  violates  due
process.).

     38     Minutes, H. Judiciary Comm. Hearing on H.B. 244,  23d
Leg.,  2d  Sess.  13-14 (April 2, 2004) (statement  of  Rep.  Les
Gara).

     39     Valentine  v. State, 155 P.3d 331, 351  (Alaska  App.
2007) (Mannheimer, J., dissenting).

     40    674 P.2d 1329, 1332 (Alaska 1983) (remanding for a new
trial  to determine whether the defendant was convicted under  AS
28.35.030(a)(1)  when  it  could not be ascertained  whether  the
defendant    was    convicted    under    this    provision    or
AS  28.35.030(a)(3),  which  was held  to  be  unconstitutionally
vague).
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