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Valentine v. State (3/9/2007) ap-2088

Valentine v. State (3/9/2007) ap-2088

                             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


DOUGLAS L. VALENTINE, )
) Court of Appeals No. A-9491
Appellant, ) Trial Court No. 4FA-05-1998 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2088 March 9, 2007
)
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,  Fairbanks,  and  Lawrence  F.
          Reger,  Law  Office  of Lawrence  F.  Reger,
          Fairbanks, for the Appellant.  Tamara E.  de
          Lucia, Assistant Attorney General, Office of
          Special Prosecutions and Appeals, Anchorage,
          and  David  W.  M rquez,  Attorney  General,
          Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and Mannheimer
          and Stewart, Judges.

          STEWART, Judge.
          MANNHEIMER, Judge, dissenting.
          
          In  2004,  the Alaska legislature made two  significant
changes to AS 28.35.030, the law prohibiting driving while  under
the influence.  Before that time,
to  convict a motorist of driving while under the influence based
solely  on the result of a chemical test of the motorists  breath
or  blood, the jury had to find that the motorists blood  alcohol
level  was  at or above the legal limit at the time of  driving.1
The  legislature  in  2004  redefined the  offense  so  that  the
defendants  blood  alcohol level at the time  of  driving  is  no
longer  determinative   now, to find a motorist  guilty  of  that
offense,  the  jury need only find that a chemical test  properly
administered within four hours of driving showed a blood  alcohol
level at or above the legal limit at the time of the test.
          Second,  the legislature prohibited defendants  in  all
prosecutions for driving while under the influence from  offering
evidence to show that they were less intoxicated at the  time  of
driving  than  at  the  time  of a  later  chemical  test.   (The
legislature made one exception to this prohibition: the defendant
may  offer evidence to show that he consumed alcohol between  the
time of driving and the time of the chemical test.)  That is, the
legislature  barred defendants from offering expert testimony  or
other  evidence to show that the alcohol they had consumed before
driving had not been fully absorbed into their bloodstream at the
time  of  driving because, for instance, they ate  a  large  meal
right  before  drinking, or consumed the  alcohol  in  big  gulps
shortly before they got in their car.
          Douglas L. Valentine was convicted under this new  law.
He  argues  that his conviction should be overturned because  the
2004 changes to the driving while under the influence law violate
due process and equal protection, are vague and overbroad, create
impermissible presumptions, violate the constitutional  right  to
an independent test, and
violate  the  supreme courts rule-making power.  Having  reviewed
the  record in Valentines case and the legislative history of the
2004  amendments, we conclude that the statute  survives  all  of
Valentines constitutional challenges.

          Facts and proceedings
          On  June 18, 2005, at about 8:45 p.m., Fairbanks Police
Sergeant  Dan  Welborn stopped Valentine for speeding.   When  he
contacted  Valentine, he noticed that he had a moderate  odor  of
alcohol  and  that  his  eyes  were  watery  and  bloodshot.   He
administered three field sobriety tests, which Valentine  failed,
and then arrested him.  At the station, Valentine submitted to  a
breath  test, which showed a blood alcohol level of .099 percent.
Valentine  requested an independent test, which  he  obtained  at
9:45  p.m.  That blood test showed a blood alcohol level of  .119
percent.  The State charged Valentine under both theories  in  AS
28.35.030:  it alleged that Valentine was under the influence  at
the  time of driving under subsection (a)(1), and that a chemical
test  showed  that his 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  AS
28.35.  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  M.
Funk  rejecting the same constitutional claims in a  consolidated
          Fairbanks case, State v. Baxley, Marshall & Tyler.2 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  Judge
Donald  D. Hopwood.  At trial, Valentine argued that he had  only
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 in  a  general  verdict
(that is, a verdict that did not specify whether he was convicted
under  subsection (a)(1) or (a)(2)).  Valentine now  appeals  the
denial  of  his motion to dismiss. He supplemented the record  on
appeal  with  the  expert  testimony  presented  in  Judge  Funks
consolidated case, State v. Baxley.
               
          Background on the 2004 amendments to AS 28.35
          In  Conrad v. State,3 this court addressed the question
of  whether  the pre-2004 version of AS 28.35.030(a)(2)  required
the State to prove that the defendants blood alcohol level met or
exceeded  the legal limit at the time of driving, or  whether  it
was  enough  for the State to show that a chemical test  properly
administered within four hours of driving showed a blood  alcohol
level that met or exceeded the legal limit.4
          Conrad  submitted to a breath test about one  hour  and
fifteen minutes after he was stopped by the police.  That  breath
test  showed  a  blood alcohol level of .154  percent.5    Thirty
minutes  later,  an  independent blood test showed  that  Conrads
blood   alcohol  level  was  .131  percent.6   At  trial,  Conrad
presented what he called a big gulp defense:  he claimed  he  had
quickly  consumed two beers right before he drove  and  that  the
alcohol  from  these beers had not been fully absorbed  into  his
bloodstream at the time he was stopped.7  Therefore,  he  argued,
he  was  below  the legal limit at the time he was  driving  even
though  a  breath test more than one hour later  showed  a  blood
alcohol level above the legal limit.8
          Although  Conrad was able to argue his defense  to  the
jury,  the  trial judge in effect instructed the  jury  that  his
defense was no defense   the judge told the jury that, under  the
version  of  AS  28.35.030(a)(2) in effect at that time,  Conrads
guilt hinged on the result of his breath test, not on his alcohol
level at the time he was driving.  The jury convicted Conrad.9
          On  appeal,  Conrad argued that the courts  instruction
was  error.   We  agreed,  ruling 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.10   We observed that a number  of  states  had
defined  the offense in terms of the defendants test result   and
we suggested that the Alaska legislature might have the authority
to  do  so  as  well.11  But we concluded that  the  wording  and
legislative  history of former AS 28.35.030(a)(2) yield  no  such
expression of legislative intent.12
          We  elaborated on this ruling when we denied the States
petition  for  rehearing.13   The  statute  at  issue  in  Conrad
provided  that  a person committed the offense of  driving  while
          intoxicated if the person operated or controlled a motor vehicle
when,  as  determined by a chemical test taken within four  hours
after the alleged offense was committed, there [was] 0.08 percent
or  more  by weight of alcohol in the persons blood.14  We  found
the  statutes  use  of  when  ambiguous,  and  we  resolved  that
ambiguity against the State:
          The  problem here is the ambiguous reference
          of the adverb
          when.   Does the statute mean that a  person
          is guilty if they operate or control a motor
          vehicle when ... [their blood contains] 0.08
          percent or more ... alcohol [by weight]?  Or
          does  the  statute  mean that  a  person  is
          guilty  if they operate or control  a  motor
          vehicle  [and  later], as  determined  by  a
          chemical  test taken within four hours  [of]
          the   alleged  offense  ...,  [their   blood
          contains]  0.08 percent or more ...  alcohol
          [by
          weight]?[15]

          Several   years   later,  in  2004,   the   legislature
responded  to  the  Conrad  decision by  amending  AS  28.35.030.
First,  the  legislature  eliminated  the  adverb  when  from  AS
28.35.030(a) to resolve the ambiguity identified in Conrad:
          (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 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[.][16]

          Under  the  amended  statute,  a  person  commits   the
offense  of  driving while under the influence if (1) the  person
operates  or drives a motor vehicle while under the influence  or
if  (2) the person operates or drives a motor vehicle and if,  as
determined by a chemical test taken within four hours  after  the
alleged  operating or driving, there is  0.08 percent or more  by
weight  of alcohol in the persons blood or 80 milligrams or  more
of  alcohol  per 100 milliliters of blood, or if  there  is  0.08
grams  or more of alcohol per 210 liters of the persons breath.17
Thus,  under  the  plain  language of the  amended  statute,  the
defendants  guilt  under  subsection (a)(2)  now  hinges  on  the
chemical  test result, not on the defendants blood alcohol  level
at  the  time  of driving.  (Guilt under subsection (a)(1)  still
hinges  on  the  motorists impairment at the  time  of  driving.)
During  House  Judiciary Committee discussion of this  amendment,
representatives  of  the Department of Law  emphasized  that  the
amendment  was  designed to remove the ambiguity in  the  statute
that we identified in Conrad.18
          At   the  same  time,  the  legislature  added  a   new
subsection,  AS  28.35.030(s), which prohibited  defendants  from
raising  a  big  gulp or other delayed absorption  defense  to  a
charge  of  driving  while under the influence  under  subsection
(a)(1) or subsection (a)(2):
          (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.[19]

          Deputy  Attorney  General Susan Parkes  explained  that
this amendment was designed to eliminate the big gulp defense  in
driving while under the influence prosecutions:
          [The   amendment]  addresses  the  big  gulp
          defense[.]  The current law says if a person
          is  given [a breath] test within four  hours
          of  driving and [the result] is .08 [percent
          blood  alcohol]  or above,  that  person  is
          legally  intoxicated.  However,  the  courts
          have  allowed people to argue that they took
          a big gulp right before driving and although
          the [chemical test] was accurate at the time
          taken,  the persons blood alcohol level  was
          lower  than  that [at the time of  driving].
          [The Department of Law] does not believe the
          intent  of the legislation was to  get  into
          the  middle of a battle of experts, so  [the
          amendment]  would do away with that  defense
          and overturn a case called Conrad, issued by
          the Court of Appeals.[20]

          Subsection  (s)  was amended several times  before  the
legislature arrived at the final language.  Language was added to
clarify  that defendants may introduce evidence that  they  drank
after  driving.21   Language  was  also  added  to  clarify  that
defendants  may  introduce  evidence of  how  much  alcohol  they
consumed  before driving to rebut or explain the results  of  the
chemical test  for instance, a defendant may offer evidence  that
he only had two drinks before driving, and that the chemical test
therefore  must have been inaccurate  but not to argue  that  the
alcohol  he  consumed before driving had not been fully  absorbed
into his bloodstream at the time of driving.22
          During  House  Judiciary Committee  discussion  of  the
House   version   of  the  bill,  Representative  Max   Gruenberg
questioned  whether  judges, rather than legislators,  should  be
deciding  what evidence is relevant in a driving while under  the
influence prosecution.  Representative Les Gara interjected  that
the  committee was changing the substance of the crime. ...  This
isnt really a relevance issue; were changing policy here.
Representative Gruenberg then noted that the bill would make it a
crime  to  have a blood alcohol level above the legal limit  even
though a person might potentially have not been behind the  wheel
at  that  moment in time.  Representatives Gara and Ralph Samuels
agreed  with that assessment, and Samuels added:  If its in  your
stomach,  its  as  good  as being in your  blood,  is  what  were
saying.23  Susan Parkes of the Department of Law echoed:  [W]hats
being prohibited is people [who have an illegal] level of alcohol
in their bodies getting into a car and driving.24
          Finally,  the  legislature amended AS  28.35.033(c)  to
add the following underlined language:
          Except  as provided in AS 28.35.030(s),  the
          provisions   of   (a)   of   this    section
          [providing,  inter alia, that a .08  percent
          blood   alcohol  level  gives  rise   to   a
          presumption  that  a  person  is  under  the
          influence] 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]
          The effect of this amendment to AS 28.35.033(c) was  to
prohibit  defendants  from offering big  gulp  or  other  delayed
absorption  evidence  to rebut a chemical  test  result  that  is
offered  to  show that the defendant was  under the influence  at
the time of driving under AS 28.35.030(a)(1).
          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.

          The amended statutes are not void for vagueness
          Valentine  argues  that  the  amended  version  of  the
driving  while  under  the influence law is  void  for  vagueness
because   guilt   hinges  on  the  result  of  a  chemical   test
administered  within  four hours of driving,  rather  than  on  a
motorists blood alcohol level at the time of driving.
          When  no  First  Amendment  rights  are  at  stake,  we
consider   two   factors  in  determining   if   a   statute   is
unconstitutionally vague.  The first is whether the statute gives
adequate  notice  to  the ordinary citizen  of  what  conduct  is
prohibited.26  A statute may not be so vague that men  of  common
intelligence must necessarily guess at its meaning and differ  as
to  its  application.27  The second consideration is whether  the
statute  invites arbitrary enforcement because it gives too  much
discretion  to  prosecuting  authorities.28   To  establish  this
second  factor,  the  defendant must show  a  history  or  strong
likelihood of uneven application.29
          Valentine  argues  that  the statute  is  impermissibly
vague  because it is difficult for a motorist to predict  if,  or
when,  within a four-hour period his alcohol level will reach  or
exceed the legal limit.  He claims that the only way to prevent a
driving   while   under   the  influence   statute   from   being
impermissibly vague is to rest guilt on the motorists  impairment
at the time of driving.
          To    support   this   claim,   Valentine   cites   the
Pennsylvania Supreme Courts decision in Commonwealth v.  Barud.30
The  statute  at  issue  in that case barred  operating  a  motor
vehicle  if the amount of alcohol by weight in the blood  of  the
person  is 0.10% or greater at the time of a chemical test  of  a
sample  ...  obtained within three hours after the person  drove,
operated,  or  was in actual physical control of  the  vehicle.31
The  Pennsylvania court struck down the statute, concluding  that
it did not provide a reasonable standard to guide conduct because
it  was  too difficult for a motorist to predict when, or if,  he
would reach a .10 percent blood alcohol level within a three-hour
period.32
          At  the  outset, we note that Valentines claim  is  not
really a vagueness challenge.  Valentine is not arguing that  the
language  of  the  statute is unconstitutionally  imprecise   nor
could  he persuasively, since the statute unambiguously prohibits
          a blood alcohol level of .08 percent or more as measured by a
chemical test properly administered within four hours of driving.
Valentines  real claim is that the statute violates  due  process
because  it is too difficult for a motorist who chooses to  drink
alcohol  before  driving  to gauge if,  or  precisely  when,  his
conduct will violate the statute.
          Regardless    of    how    Valentines    argument    is
characterized, other courts that have addressed this issue  (with
the  exception  of the Pensylvania Supreme Court in  Barud)  have
rejected  this  claim.33  As one court explained in  upholding  a
statute that made it illegal to have a blood alcohol level of .10
percent  as determined by a chemical test taken within two  hours
of driving:
          While  it certainly must be hard to  predict
          if  ones BAC has reached or will reach  0.10
          percent within any time frame, this does not
          mean  that  the  two-hour rule  provides  no
          notice  of the prohibited conduct.   To  the
          contrary,  the two-hour rule,  just  as  the
          former  time-of-driving  rule,  gives   fair
          notice that, although driving after drinking
          is  not  illegal  per  se,  driving  becomes
          illegal    after   a   certain   level    of
          consumption;  the  fact that  people  cannot
          sense exactly what their BAC is at any given
          moment  or  will  be in two hours  does  not
          change  this.  As the Arizona State  Supreme
          Court  put it, [w]here a statute gives  fair
          notice of what is to be avoided or punished,
          it should not be declared void for vagueness
          simply  because it may be difficult for  the
          public  to  determine how far  they  can  go
          before they are in actual violation.[34]

          The   Georgia   Supreme  Court  similarly   held   that
regardless  of whether a statute forbids a certain blood  alcohol
level at the time of driving or within three hours of driving,  a
person  who drinks a substantial amount of alcohol ... is put  on
notice that he chooses to drive at his own peril.35
          Valentine  argues  that Alaskas statute  is  especially
vague because the police have four hours from the time of driving
rather than the more typical two or three hours in states such as
Pennsylvania  and  Georgia  in which to obtain a  chemical  test.
Valentine has no standing to challenge the statute on this ground
because,  as  he  concedes,  his  breath  and  blood  tests  were
administered  within one hour of driving.36  But  in  any  event,
according  to  the expert testimony advanced by  Valentine,  most
people reach their peak alcohol level within one hour after  they
stop drinking.  Consequently, the fact that the police have four,
instead of two or three, hours in which to obtain a sample  would
not  make  it appreciably more difficult for the typical motorist
to evaluate whether they had consumed too much alcohol to legally
drive.
          We  find  the  view adopted by the majority  of  courts
persuasive and conclude that the amended driving while under  the
          influence statutes give adequate notice of what conduct is
prohibited.   Valentine  has not argued, much  less  shown,  that
there  is  a  history or strong likelihood that the law  will  be
unevenly  applied.  We therefore find no merit to his claim  that
the  statute  is impermissibly vague, and therefore violates  due
process.

          The   amended   statutes  are  not   unconstitutionally
overbroad
          Valentine  next argues that the amended  driving  while
under  the influence law is overbroad because it punishes  people
for  innocent conduct.  He argues that the law unconstitutionally
criminalizes  lawful conduct because a motorist can be  convicted
of  driving  while under the influence even if his blood  alcohol
level is below the legal limit at the time of driving.
          This  claim fails because, under the revised  statutes,
driving  with a blood alcohol level below the statutory limit  is
not  necessarily lawful conduct.  As discussed earlier, the plain
language and legislative history of the amended statutes indicate
that  it is now illegal to drive or operate a motor vehicle after
ingesting enough alcohol to register a blood alcohol level of .08
percent  or  more  at  the time of a chemical  test  administered
within   four  hours  of  driving.   As  Representative   Samuels
explained:  If its in your stomach, its as good as being in  your
blood.37  Or, as Representative Gara declared:
          We know that youre not a technician and that
          you  didnt time the amount you had to  drink
          to  get  you home before you got drunk   you
          essentially  just got lucky that  you  hadnt
          exceeded  .08 at the time you  got  in  your
          car,    but    you    had   been    drinking
          irresponsibly.   And  I  think  even  though
          youre  not technically at a .08 percent  [at
          the  time of driving], we want to punish you
          for having that much to drink and getting in
          your car, because I think the truth is, even
          at  .05 and .06, youre putting the public in
          danger.[38]

          To  the  extent  that  Valentine is  arguing  that  the
legislature  has no authority to penalize a motorist whose  blood
alcohol  level is lower than .08 percent at the time of  driving,
that  claim  is meritless.   The legislature violates substantive
due process by enacting a law that has no reasonable relationship
to a legitimate government purpose.39  The State has a legitimate
interest in preventing driving while under the influence40 and it
is  the  legislatures  role,  within  constitutional  limits,  to
determine the precise blood alcohol level or degree of impairment
that  makes operating a car unacceptably dangerous to the public.
Valentine has not argued that the legislatures judgment is wrong,
and  that a motorist who drives or operates a motor vehicle after
ingesting enough alcohol to register a blood alcohol level of .08
percent  within  the  next four hours poses no  risk  to  others.
Indeed,  the  legislature previously recognized, in  enacting  AS
28.33.030(a)(2), the statute prohibiting operating  a  commercial
          motor vehicle with a blood alcohol level of .04 percent or more,
that  driving with a blood alcohol level of less than .08 percent
might pose an unacceptable risk.
          For  these reasons, we reject Valentines claim that the
amended  statutes  are  unconstitutionally  overbroad  because  a
defendant  may be convicted of driving while under the  influence
even  if  his alcohol level at the time of driving is  below  the
statutory limit.

          The  amended statutes do not impose criminal  liability
without mens rea
          Valentine     argues    that    the     amended     law
unconstitutionally  allows a person to be convicted  without  any
proof  of  mens rea with respect to the circumstance  of  driving
while  impaired  or with a blood alcohol level  above  the  legal
limit.
          Valentine  acknowledges that this court has  repeatedly
held  that the offense of driving while under the influence  does
not  require  proof  that the defendant was  aware  that  he  was
legally  impaired or that his blood alcohol level was  above  the
legal limit  it is enough that the defendant knowingly drank  and
knowingly  drove.41   As  this  court  explained  in  Morgan   v.
Anchorage42:
          It certainly does not make sense to allow  a
          defendant  to  claim  that  his  intentional
          consumption of alcohol impaired his  ability
          to  know  that he was intoxicated.  It  does
          make  sense  to require a person who  drinks
          and   drives  to  be  responsible  for   not
          drinking to the point where he is under  the
          influence  of alcohol.  He should  drive  at
          his  peril  rather than only at the  publics
          peril.[43]

          Valentine  argues that this line of cases  is  at  odds
with  our  other  decisions requiring a  mens  rea  of  at  least
criminal  negligence with respect to the circumstance of  driving
with  a revoked or suspended license.44  But as we explain below,
these  cases  are  not irreconcilable; they  simply  reflect  the
different  proof  requirements and  policy  interests  underlying
prosecutions for driving with a suspended or revoked license  and
driving while under the influence.
          To  convict a defendant of driving with a suspended  or
revoked  license,  the  State does not  have  to  show  that  the
defendant  was aware that his license was suspended  or  revoked;
nor does the State have to show that the defendant understood the
legal  effect  or scope of that revocation or suspension.45   All
the  State  must  prove  with respect  to  that  circumstance  is
criminal  negligence: that a reasonable person in the  defendants
position would have been aware of a substantial and unjustifiable
risk  that  his license was revoked or suspended,  and  that  the
defendants  failure  to perceive that risk  constituted  a  gross
deviation  from  the  standard of care that a  reasonable  person
would exercise.46
          To  convict  a  defendant of driving  while  under  the
          influence, the State is not required to prove any mens rea with
respect  to the circumstance of having consumed too much  alcohol
to  legally  drive.  But the State must prove that the  defendant
was  legally intoxicated (either because his blood alcohol  level
met or exceeded the statutory limit within four hours of driving,
or because he was under the influence at the time of driving) and
that  he knowingly drank and drove;47 it is implicit in the proof
of  these elements that the defendant was criminally negligent as
to  the circumstance of being too impaired to legally drive.  The
conduct of consuming alcohol puts a person on notice that he  may
be  impaired.  Morgan and its progeny simply preclude a defendant
from arguing that he did not have the required mens rea to commit
the offense because, even though he knowingly drank and drove, he
was too intoxicated to know he was impaired.
          Valentine  also argues that the line of cases following
Morgan  was implicitly overruled by the Alaska Supreme  Court  in
State  v. Hazelwood.48  In Hazelwood, the supreme court explained
that,  when  a criminal statute proscribes conduct  only  when  a
relevant circumstance is present, a conviction under that statute
must  be predicated on a finding that the defendant was at  least
negligent  with respect to that circumstance.49  For instance,  a
defendant  cannot  be convicted of transporting  illegally  taken
game unless the defendant was at least negligent with respect  to
the  fact that the game was illegally taken  because if the  game
was  not illegally taken, transporting it would not be a crime.50
Valentine argues by analogy that a person cannot be convicted  of
driving while under the influence unless the person was at  least
negligent  with  respect  to the circumstance  of  being  legally
intoxicated   because  drinking  and  driving  is  otherwise  not
sanctionable.   This  claim fails for the same  reason  discussed
above:    proof  that the defendant was legally  intoxicated  and
that  the  defendant  knowingly consumed  alcohol  and  drove  is
sufficient  to  establish that the defendant was  negligent  with
respect  to the circumstance that he was too impaired to  legally
drive.  We therefore reject Valentines claim that the amended law
is unconstitutional because it imposes criminal liability without
proof of mens rea.

          The   amended  statutes  did  not  deny  Valentine  due
          process by creating impermissible presumptions
          Valentine  argues  that  the  amended  law  creates  an
impermissible  presumption  that  a  motorist  was  at  least  as
intoxicated at the time of driving as at the time of  a  chemical
test administered within four hours of driving.
          We  have previously identified two possible defects  in
a  presumption  directed against the accused in a criminal  case:
(1) the nexus between the fact proved and the fact to be presumed
may  be so insubstantial as to violate due process[;] and (2) the
presumption  may undermine the governments duty  to  prove  guilt
beyond a reasonable doubt.51
          Valentine  attacks the amended driving while under  the
influence statutes on both these grounds.  First, he argues  that
the  presumption that a motorist was at least as  intoxicated  at
the  time of driving as at the time of a later chemical  test  is
unconstitutional even if it is permissive and rebuttable  because
          it has no basis in science.  He argues that it is more likely,
given  alcohol elimination and absorption rates, that a  motorist
will  be less intoxicated at the time of driving than at the time
of  a  later  chemical test.  In advancing this claim,  Valentine
relies  on expert testimony from State v. Baxley  and the general
rule  that  even  a  permissive  presumption  must  be  based  on
empirically valid inferences.52
          Second,  Valentine  argues  that  this  presumption  is
unconstitutional because the defendant can no longer rebut it  by
offering  delayed absorption evidence.  He argues  that,  because
the   defendant   cannot  offer  this  rebuttal   evidence,   the
presumption  verges on a mandatory conclusive  presumption   that
is, a presumption that removes from the jury the element that the
defendant was under the influence at the time of driving once the
State  proves  that the defendants chemical test  result  was  at
least .08 percent blood alcohol.  He argues that this presumption
violates  Evidence Rule 303 by impermissibly shifting the  burden
of  production  (and  perhaps the burden of  persuasion)  to  the
defendant.
          As  to  Valentines first claim, he has not  shown  that
the  presumption that a motorist was at least as  intoxicated  at
the time of driving as at the time of a later chemical test lacks
an  empirical basis.  Valentine advances expert testimony to show
that it normally takes forty-five minutes to one hour for alcohol
to  be fully absorbed after a person stops drinking, and that  it
could take as long as four hours for someone who ate a large meal
or  had  an  upset stomach.  That means some people will  have  a
lower alcohol level at the time of driving than at the time of  a
later  chemical  test.  But that is not enough to invalidate  the
presumption.   We  owe considerable deference to the  legislative
facts  underlying a presumption.53  The inference that a  persons
alcohol level at the time of driving was at least as high  as  at
the  time  of a later chemical test doubtless takes into  account
many  factors beyond alcohol absorption rates  including the fact
that  many  people  who drink enough alcohol  to  become  legally
intoxicated  do so over a period of time, not all at  once  right
before driving a car.
          Valentines  other  claims must be addressed  separately
for   prosecutions  under  subsections  (a)(1)  (the  under   the
influence  theory) and (a)(2) (the blood alcohol  theory).   With
respect  to  prosecutions  under  subsection  (a)(2),  Valentines
claims  fail for the reasons already discussed:  the amended  law
does  not create a presumption that the motorist was at least  as
intoxicated  at the time of driving as at the time of  the  later
chemical  test.  Under subsection (a)(2), it does not matter  how
intoxicated  the  motorist  was at the  time  of  driving.   What
matters is whether the motorist ingested enough alcohol before or
while  driving  to have a blood alcohol level  at  or  above  .08
percent  at the time of a chemical test administered within  four
hours  of driving.  The defendant may attack the accuracy of  the
chemical  test, or show that alcohol was consumed after  driving.
What  he  cannot offer is evidence to show that the test did  not
measure  his  blood alcohol level at the time of driving  because
the  alcohol  he consumed before or while driving  had  not  been
fully  absorbed   evidence that is no longer relevant  under  the
          amended statutes.
          Under   AS  28.35.030(a)(1),  guilt  still  hinges   on
whether  the  motorist  is under the influence  at  the  time  of
driving.54   If  the  State  charges  the  defendant  under  this
subsection, and offers no evidence of a chemical test result, the
defendant  is still permitted to offer evidence to show  that  he
was  not  under  the influence at the time of driving.   That  is
because subsection (s) only prohibits delayed absorption evidence
that  is  offered to show that the chemical test did not  measure
the  blood alcohol at the time of operating or driving.55   Thus,
for instance, if the State presented testimony that the defendant
must  have  been under the influence because he drank  six  beers
before driving, the defendant could offer testimony to show  that
he  drank  those beers immediately before driving  and  that  the
alcohol  had  not been sufficiently absorbed into  his  blood  to
impair his driving.
          But  if  the  defendant  is  charged  under  subsection
(a)(1)  and  the State offers a chemical test result as  evidence
that  the  defendant  was  under the influence  at  the  time  of
driving,  the defendant may not offer delayed absorption evidence
to argue that the chemical test result did not accurately reflect
his impairment at the time of driving.
          To  understand the significance of this, one must  look
to  AS 28.35.033(a), a related statute which the legislature left
unchanged  in  2004.   That statute outlines  certain  inferences
juries  may  draw  from  a  defendants chemical  test  result  in
deciding if the defendant was under the influence at the time  of
driving.56    Under  the  statute, the  jury  may  infer  from  a
chemical  test  result that shows a blood alcohol  level  of  .04
percent or less that the defendant was not under the influence at
the  time of driving.  If a test shows that the defendants  blood
alcohol  level  was  more  than .04 percent  but  less  than  .08
percent,  there is no presumption, but the jury may consider  the
chemical test result, together with other competent evidence,  to
determine if the defendant was under the influence at the time of
driving.   If a test shows that the defendants alcohol level  was
.08  or  more, the jury may infer from this fact alone  that  the
defendant was under the influence of alcohol.  We have previously
explained   that  these  presumptions  apply  to  the  defendants
impairment at the time of driving.57
          Consistent  with this statute, the jurors in Valentines
case  received the standard instructions informing them (1)  that
they may infer that he was under the influence if a chemical test
showed that his blood alcohol level was at least .08 percent  and
(2)  that they may infer that his chemical test result accurately
reflected  his  alcohol level at the time of  driving.   We  have
previously  upheld  similar  jury  instructions  based   on   the
presumptions  in  AS  28.35.033(a)  against  claims   that   they
impermissibly shifted the burden of proof to the defendant.58
          Valentines  jury was further instructed that  it  could
consider any ... competent evidence to determine if Valentine was
under  the influence at the time of driving.  To underscore  this
point, Valentine in closing argument detailed all the evidence he
claimed  showed he was not impaired at the time of  driving,  and
reminded  the  jury that it was free to disregard  any  inference
          based on his chemical test results that he was under the
influence when he drove.
            As  the record in Valentines case demonstrates, there
is  no  merit  to  the claim that the amended statutes  create  a
mandatory  conclusive presumption that directs the jury  to  find
that the defendant was under the influence at the time of driving
based on a chemical test result showing a blood alcohol level  of
at  least  .08  percent.59  Rather, as was true before  the  2004
revisions  to the driving under the influence law, the jury  may,
but  need  not, infer from such a test result that the  defendant
was under the influence at the time of driving.60
          It   is  true  that,  under  the  2004  amendments,   a
defendant  may  no  longer  offer  big  gulp  or  other   delayed
absorption evidence to show that his chemical test result did not
reflect his impairment at the time of driving.61  But we conclude
that the legislature had the authority to redefine the offense in
this  manner.62   The legislature wished to discourage  motorists
from  playing a form of Russian roulette with the driving  public
by  consuming large amounts of alcohol and then racing the  clock
to  reach their destination before the alcohol was absorbed  into
their  bloodstream  and  they became  too  impaired  to  drive.63
Prohibiting a delayed absorption defense was a reasonable way  to
deter  this  conduct.  We cannot say there is no circumstance  in
which  prohibiting  this evidence would infringe  the  defendants
right  to  present  a  defense.64  For instance,  a  court  would
violate the defendants due process rights if it allowed the State
to  offer evidence of alcohol elimination and absorption rates to
show  that  the  defendant was more intoxicated at  the  time  of
driving  than  at  the time of a later chemical  test,  and  then
prohibited the defendant from countering the States proof with  a
delayed  absorption  defense.  But that is not  the  circumstance
presented  here.   Legislative  enactments  are  presumed  to  be
constitutional, and Valentine has not met his burden  to  show  a
violation of due process in this case.65
     
          The  2004  amendments do not infringe  the  rule-making
power of the
          Alaska Supreme Court
          Valentine   also   argues  that  the  2004   amendments
unconstitutionally infringe the rule-making power of  the  Alaska
Supreme  Court.   Specifically, he argues  that  the  legislation
conflicts  with Alaska Evidence Rule 402 by preventing defendants
charged  with driving while under the influence from  introducing
evidence relevant to their alcohol level at the time of driving.
          This  claim  is  without  merit.   Evidence  Rule   402
provides  that [a]ll relevant evidence is admissible,  except  as
otherwise provided ... by enactments of the Alaska Legislature[.]
Evidence  Rule  402  thus expressly permits  the  legislature  to
define the parameters of relevant evidence, within constitutional
limits.   The  language of AS 28.35.033(c) makes clear  that  the
legislature  intended  to restrict the  evidence  that  could  be
admitted  in  driving  while  under the  influence  prosecutions.
There  is  thus no merit to Valentines claim that the legislature
infringed the supreme courts rule-making power.

          The  amended  law  does not violate the  constitutional
          right to an
          independent test
          Valentine next argues that the 2004 amendments  violate
a  motorists constitutional right to an independent test  because
the  defendant  can no longer use the result of  his  independent
test  to  support his claim that his alcohol level was rising  at
the  time  of  the test, and was probably lower at  the  time  of
driving.
          In  Snyder  v. State,66 the Alaska Supreme  Court  held
that  an  accused has the right to an independent  test  for  two
reasons:   (1) to give the defendant the opportunity to challenge
the  reliability of the State-administered breath test and,  more
broadly, (2) to safeguard the accuseds right to obtain evanescent
exculpatory evidence.67  Under the amended statute, these  rights
are still protected.
          Valentine argues that the amended statute violates  due
process  by  forcing the defendant into a Hobsons choice  because
any independent test that shows a blood alcohol level at or above
.08 percent will necessarily be incriminating.  But the right  to
an  independent  test  has never guaranteed an  exculpatory  test
result.
          Valentine  also  asserts that the new  statute  rewards
post-driving  drinking by permitting a big gulp defense  in  that
circumstance,  thus  encouraging motorists to  keep  a  flask  of
alcohol  in the car in case they are pulled over.  It is  unclear
how  this  argument relates to Valentines claim that the  statute
violates  the right to an independent test.  To the  extent  that
Valentine  is arguing that this claimed discrepancy violates  due
process, that argument fails. Alaska Statute 28.35.030(s) permits
a  defendant  to  offer evidence that he drank after  driving  to
establish  that  the  chemical test did not measure  his  alcohol
level  (or impairment) at the time of driving.  It does  not,  as
Valentine claims, preserve a delayed absorption defense for post-
driving  drinkers  while  barring that  defense  for  pre-driving
drinkers.   Under the statute, evidence that the  motorist  drank
after driving would not be admitted to show that alcohol had  not
been  fully absorbed into the bloodstream at the time of driving,
but  rather to show that the motorists test result was above  the
legal limit due to alcohol that was consumed after driving.   The
legislature has a strong interest in discouraging motorists  from
consuming  too  much alcohol before driving a motor  vehicle;  it
does  not  have this same interest in penalizing a  motorist  for
drinking after driving.  Allowing motorists to offer evidence  of
post-driving drinking is thus reasonably related to the  statutes
purpose.68
          
          The amended statutes do not violate equal protection
          Lastly,  Valentine  argues that  the  amended  statutes
violate  Alaskas guarantee of equal protection of the  laws.   He
argues   that   the  statutes  are  overinclusive  because   they
criminaliz[e]   those  with  rising  blood-alcohol   levels   and
underinclusive  because they omit[] those with  declining  blood-
alcohol  levels.   In other words, he argues  that  there  is  an
insufficiently tight fit between the goal of the amended statutes
          and the means chosen to accomplish that goal because some
motorists who had a blood alcohol level above the legal limit  at
the  time of driving will escape responsibility for that  offense
while other motorists who were below the legal limit when driving
will  be  convicted, based on the happenstance of when the  state
administers its chemical test.
          The  amended driving while under the influence law does
treat  similarly situated people differently, in  that  guilt  in
some  cases  may depend on the arbitrary timing of  the  chemical
test.  The question is whether the means-to-ends fit is imprecise
enough  to  violate  equal protection given  the  nature  of  the
interest at stake.
          In  evaluating whether legislation violates  the  equal
protection clause of the Alaska Constitution, this court  applies
a flexible test that is dependent on the importance of the rights
involved:
          Initially,  [the  court] must  look  to  the
          purpose   of   the  statute,   viewing   the
          legislation    as   a   whole,    and    the
          circumstances surrounding it.   It  must  be
          determined  that this purpose is legitimate,
          that it falls within the police power of the
          state.    Examining  the   means   used   to
          accomplish  the  legislative objectives  and
          the  reasons advanced therefore,  the  court
          must then determine whether the means chosen
          substantially  further  the  goals  of   the
          enactment.   Finally, the state interest  in
          the  chosen  means must be balanced  against
          the nature of
          the constitutional right involved.[69]

          The  State has a compelling interest in protecting  the
public from impaired drivers.70  And although the right to  drive
is   an   important  interest,71  there  is  no  constitutionally
protected  right to drink and drive.72  Therefore, the  law  will
survive   an  equal  protection  challenge  if  it  substantially
furthers the goals of the legislature.
          The  general  purpose of the driving  while  under  the
influence  law is to deter and penalize driving while  under  the
influence.73    Although  arguably the most  effective  means  of
accomplishing  that aim would be to convict only motorists  whose
alcohol  level  reaches  a  certain  level  while  driving,  such
precision is impossible given the technology now in use  and  the
inevitable delays involved in administering a DataMaster or other
chemical test.
          Valentine  has  offered  no  evidence  or  argument  to
refute  the legislatures judgment that a person who drives  after
consuming  enough alcohol to register a .08 blood  alcohol  level
within  four  hours is a danger to the public.  And  there  is  a
rational  basis for that judgment.  A motorist cannot necessarily
predict how long it will take him to drive to his destination or,
given  the  many  variables  influencing  how  fast  alcohol   is
absorbed,  how  impaired  he  will become  en  route.   The  2004
amendments  substantially  further  the  legislatures   goal   of
          deterring a motorist who has consumed enough alcohol to reach a
blood  alcohol level of .08 percent or more within the four hours
after driving or operating a motor vehicle.  Given that the  only
interest  at stake is the interest in drinking and driving,  that
is  enough  for  the  amended statute to  survive  constitutional
scrutiny.  While it is true that some who commit the offense will
escape  detection,  and others will not,  that  is  true  of  all
criminal offenses.
          Valentine  also claims that the statute violates  equal
protection  by  hinging guilt for a pre-driving  drinker  on  his
alcohol  level  at  the time of the chemical test  while  hinging
guilt for a post-driving drinker on his alcohol level at the time
of  driving.   But the statute does not treat similarly  situated
persons differently.  All people charged with driving while under
the influence may offer evidence to show that their alcohol level
was  above the legal limit at the time of a chemical test because
of  alcohol  they consumed after driving.  As discussed  earlier,
the  legislature has little interest in penalizing motorists  for
drinking after driving.
          For   these   reasons,  we  reject   Valentines   equal
protection challenge.
          
          Conclusion
          Valentines conviction is AFFIRMED.
MANNHEIMER, Judge, dissenting in part.

          AS  28.35.030 is the statute that defines  the  offense
of  driving  under  the  influence  and  that  specifies  certain
procedures and penalties pertaining to that offense.  In 2004, in
response  to this Courts decision in Conrad v. State, the  Alaska
Legislature made two major changes to the DUI statute.   For  the
reasons  explained in this dissent, I conclude that  one  of  the
legislatures changes is constitutional, but the other is not.

     Background  of this case:  this Courts construction  of
     the DUI statute in Conrad
     
               AS  28.35.030(a) defines two  ways  in  which
     the  operator of a motor vehicle can commit the offense
     of  driving  under  the  influence.   Under  subsection
     (a)(1),  a  motorist commits this crime by being  under
     the  influence  of  alcohol or  controlled  substances.
     Under  subsection (a)(2), a motorist commits this crime
     by  having  a  blood alcohol level of  .08  percent  or
     higher.
               Subsection  (a)(1), the under  the  influence
     clause,  has  always been interpreted to require  proof
     that  a motorist was under the influence of intoxicants
     at  the time of driving (as opposed to being under  the
     influence  either  before or after driving).   However,
     there  was  a  debate as to whether,  under  subsection
     (a)(2),  a motorist could be convicted of DUI if  their
     blood  alcohol level was .08 percent or greater at  the
     time  they submitted to the chemical test, even  though
     their blood alcohol level might have been lower at  the
     time of driving.
          We  resolved this debate in Conrad v.  State,
54  P.3d  313,  on rehearing 60 P.3d 701  (Alaska  App.
2002).   In  Conrad,  we  held that  subsection  (a)(2)
required  proof  that a motorists blood  alcohol  level
equaled or exceeded .08 percent at the time of driving.
If  a  later chemical test of the motorists  breath  or
blood  showed  that the motorist had  a  blood  alcohol
level   of   .08  percent  or  more,  this  created   a
presumption that the motorists blood alcohol level  was
at  least  that high at the time of driving   but  this
presumption  was  rebuttable,  and  the  motorist   was
entitled to introduce evidence tending to show that the
result  of  the  chemical  test  was  not  an  accurate
indicator of the motorists blood alcohol level  at  the
time  of  driving.   Conrad,  54  P.3d  at  315-16,  on
rehearing 60 P.3d at 702.

The   legislatures  response  to  Conrad:    the   2004
amendments to the DUI statute

          In  2004,  the legislature responded  to  the
Conrad  decision by making two significant  changes  to
the DUI statute.
          First,  the  legislature  rewrote  subsection
(a)(2),  the subsection that defines the blood  alcohol
level  theory of the crime.  Conrad held that a  person
violated  subsection (a)(2) if they  operated  a  motor
vehicle  at a time when their blood alcohol  level  was
.08  percent  or  higher.  In response to  Conrad,  the
legislature amended subsection (a)(2) so that,  now,  a
person  violates subsection (a)(2) if  they  operate  a
motor  vehicle  and  if, within  four  hours  of  their
operation of the vehicle, their blood alcohol level  is
.08  percent or higher, and if this blood alcohol level
is attributable to the persons voluntary consumption of
alcoholic  beverages  either  before  or  during  their
operation of the vehicle.
          (I   agree  with  my  colleagues  that   this
amended version of subsection (a)(2) is constitutional,
and  I  reach that conclusion for the reasons set forth
in the majority opinion.)
          Second,   the  legislature  enacted   a   new
subsection, AS 28.35.030(s), that prohibits  defendants
from  raising  a delayed absorption defense  in  a  DUI
prosecution.1
          The  delayed  absorption defense is  premised
on the fact that there is an inevitable delay between a
persons  consumption of alcoholic beverages  and  their
bodys absorption of the alcohol into their bloodstream.
This  means  that  a  persons blood alcohol  level  can
continue  to  rise for some amount of time  after  they
stop  drinking.   Because of this delay  in  the  bodys
absorption of alcohol, there will be occasions  when  a
chemical  test administered to an arrested driver  will
yield  a  result that is significantly higher than  the
persons  blood  alcohol level at  the  time  they  were
driving.
          This  phenomenon is illustrated by the  facts
of  a case recently decided by this Court:  Painter  v.
State,  Alaska App. Memorandum Opinion No. 5192  (March
9, 2007).
          When  the  defendant in Painter was initially
stopped  by  the  state troopers,  he  submitted  to  a
preliminary breath test which showed his blood  alcohol
level  to  be .072 percent.  (That is, the test  showed
that his blood alcohol level, according to the PBT, was
under the legal limit.)  One hour later, at the trooper
station,  Painter  submitted to a second  breath  test,
this time on a DataMaster; this second test showed  his
blood  alcohol level to be .082 percent (i.e., slightly
over  the  legal  limit).  Thirty-five  minutes  later,
Painter  obtained an independent blood  test,  and  the
result  of  this  third test was  .092  percent  (i.e.,
considerably over the legal limit).
          This  potential discrepancy between a persons
blood  alcohol level at the time of testing  and  their
blood  alcohol level at the time they were  driving  is
now  irrelevant in prosecutions under subsection (a)(2)
          of the statute  because subsection (a)(2) now declares
that a persons guilt hinges on the test result, and not
on  the  persons  blood alcohol level at  the  time  of
driving.
          But   this   potential  discrepancy   remains
important  in prosecutions under subsection  (a)(1)  of
the  statute.  The legislature did not amend subsection
(a)(1);  this  subsection still requires proof  that  a
person  operated  a  motor  vehicle  while  under   the
influence of an alcoholic beverage.  Thus, to prove the
offense  of DUI under subsection (a)(1), the government
must establish that the defendant operated or otherwise
controlled  a  motor  vehicle  at  a  time   when   the
defendants ability to control the vehicle was  impaired
due   to  the  consumption  of  alcohol.2   It  is  not
sufficient to prove that the defendant operated a motor
vehicle and then, sometime later, became impaired.
          Because,   under   subsection   (a)(1),   the
ultimate   fact   to  be  proved  is   the   defendants
impairment,  a defendants guilt or innocence  does  not
directly  hinge  on the result of the defendants  post-
arrest  chemical test.  Theoretically, a  person  might
have  a blood alcohol level of .08 percent (or greater)
and   still  not  be  impaired.   Conversely,   as   we
recognized in Ballard v. State, a person might be under
the  influence for purposes of subsection (a)(1)   that
is,  the  person might be demonstrably  impaired   even
though their blood alcohol level is less than the legal
limit.3
          Nevertheless,  the result of  the  defendants
post-arrest  chemical test can be an important  element
of  the  States proof in prosecutions under  subsection
(a)(1).    This   is   because   of   the   evidentiary
presumptions codified in a companion statute, AS 28.35.
033(a).
          In  AS  28.35.033(a)(3), the legislature  has
decreed  that when a persons post-arrest chemical  test
result  is  .08 percent blood alcohol or greater,  this
creates  a  rebuttable presumption that the person  was
under  the  influence  of  an  alcoholic  beverage  for
purposes  of prosecutions under subsection (a)(1).   In
other  words, in prosecutions under subsection  (a)(1),
if  the defendants post-arrest chemical test yielded  a
result  of  .08 percent or higher, a jury may  lawfully
find  (based on this evidence alone) that the defendant
was  under the influence at the time that the defendant
operated the motor vehicle.
          (See  Doyle  v. State, 633 P.2d  306,  310-11
(Alaska App. 1981), where we construed this statute  to
create  a  backward-looking presumption:  a presumption
that  authorizes the jury to find, based on the  result
of  a  defendants post-arrest chemical test,  that  the
defendant  was  under  the influence  at  the  time  of
driving.)
          The  statute  challenged in this  appeal   AS
          28.35.030(s)  was enacted for the purpose of limiting
the  ways in which a defendant can rebut this statutory
presumption  of  impairment.   Specifically,  this  new
subsection  declares that a defendant  is  barred  from
introducing evidence of delayed absorption to rebut the
presumption   of  impairment  that  arises   under   AS
28.35.033(a)(3)  if the result of the defendants  post-
arrest chemical test is .08 percent or higher.
          Subsection (s) reads:
     
          (s)    In  a  prosecution  [for  driving
     under  the influence], ... [evidence of]  the
     [defendants]  consumption of  alcohol  before
     operating  or driving may not be  used  as  a
     defense  that the [defendants] chemical  test
     did  not  [reflect]  the  [defendants]  blood
     alcohol  at  the  time of  the  operating  or
     driving.    [However,   evidence    of    the
     defendants]  [c]onsumption of  alcohol  after
     operating  or  driving  the  motor   vehicle,
     aircraft, or watercraft may be used to  raise
     such a defense.  [Emphasis added]
     
          In   other  words,  subsection  (s)
prohibits   a   defendant  from   introducing
evidence  that, because of the natural  delay
in   the  absorption  of  alcohol  into   the
bloodstream,  the  defendants  blood  alcohol
level  may  have risen significantly  between
the  time that the defendant stopped  driving
and the time that the defendant took the post-
arrest chemical test  and that, consequently,
the   defendants  post-arrest  chemical  test
result  might not be a trustworthy  indicator
of  the  defendants level of intoxication  at
the time that the defendant was operating the
motor vehicle.

Why I conclude that subsection (s) is unconstitutional
when   applied  to  prosecutions  for  DUI   under
subsection (a)(1)

     In  prosecutions under subsection (a)(1), the
ultimate  question  is whether the  defendant  was
under the influence at the time that they operated
the   motor   vehicle.  A  defendants  post-arrest
chemical  test result does not directly  prove  or
disprove this ultimate fact.  However, because  of
the  evidentiary presumption codified in AS 28.35.
033(a)(3), the government can rest its case solely
on  the defendants chemical test result.  Pursuant
to  this statute, juries are instructed that if  a
defendants  post-arrest chemical test  result  was
.08  percent or higher, the jury can find that the
defendant was impaired at the time of driving.
     It  is  undisputed  that  there  is  a  delay
between   a   persons  consumption  of   alcoholic
beverages  and the absorption of the alcohol  into
the   persons   bloodstream   (where   it   causes
intoxication).   This delay in the  absorption  of
alcohol into the bloodstream is obviously relevant
to  the  issue of whether a defendants post-arrest
chemical  test result is an accurate indicator  of
whether the defendant was impaired earlier, at the
time  of  driving.  Nevertheless,  subsection  (s)
prevents  defendants  from  offering  evidence  of
delayed   absorption  to  contest  the   statutory
presumption  of  impairment  that  arises  when  a
defendants post-arrest chemical test result is .08
percent or higher.
          This preclusion of evidence is irrelevant  in
prosecutions  under subsection (a)(2)   because,  under
the  amended version of subsection (a)(2), the ultimate
fact  to  be proved is now the defendants blood alcohol
level  at  the time of the chemical test, and  not  the
defendants earlier blood alcohol level at the  time  of
driving.    It  therefore  does  not  matter   if   the
defendants blood alcohol level might have been lower at
the time of driving.
          But  in prosecutions under subsection (a)(1),
the  government  must  prove  that  the  defendant  was
impaired  at the time of driving.  It is not enough  to
show  that  the defendant operated a motor vehicle  and
then  became impaired later.  Because of this, the rule
of  evidence  preclusion  codified  in  subsection  (s)
violates the guarantee of due process of law when it is
applied  to  prosecutions under subsection (a)(1).   It
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.
          As  our  supreme court stated in Smithart  v.
State,  a  defendants right to present a defense  is  a
fundamental element of due process.  988 P.2d 583,  586
(Alaska 1999).  See also Keith v. State, 612 P.2d  977,
982-83 (Alaska 1980).
          Both  Smithart and Keith involved evidentiary
rulings by a trial judge that improperly restricted the
defendants  presentation of a  defense.   However,  the
same principle applies when the evidentiary restriction
is  enacted by the legislature,4  or is codified  in  a
rule of court,5  or is adopted as a rule of common  law
by a states appellate courts.6
          I  acknowledge that the legislature has broad
discretion  when defining the elements of  crimes,  and
that  this  broad discretion includes the authority  to
define  elements  in  a  manner  that  renders  certain
matters   irrelevant  (and  thus  inadmissible).    For
instance,  in Abruska v. State, 705 P.2d 1261,  1265-66
(Alaska App. 1985), and Neitzel v. State, 655 P.2d 325,
          334-35 (Alaska App. 1982), this Court upheld the
legislatures  authority to define the  culpable  mental
states of knowingly and recklessly in such a way as  to
preclude a potential defense of voluntary intoxication.
          See  also  Montana v. Egelhoff, 518 U.S.  37,
56;  116  S.Ct. 2013, 2023-24; 135 L.Ed.2d  361  (1996)
(upholding  a state legislatures authority to  preclude
evidence  of  a  defendants voluntary  intoxication  to
rebut  the governments proof of the defendants culpable
mental  state); Fisher v. United States, 328 U.S.  463,
475-77;  66  S.Ct. 1318, 1324-25; 90 L.Ed. 1382  (1946)
(upholding Congresss authority to preclude a  defendant
from  introducing  evidence of a mental  disability  or
deficiency  short  of  insanity on  the  issue  of  the
defendants     capacity    for    premeditation     and
deliberation); Muench v. Israel, 715 F.2d 1124, 1144-45
(7th  Cir.  1983)  (holding that the states  [are]  not
constitutionally compelled to recognize the doctrine of
diminished  capacity, and that therefore  a  state  may
exclude  expert  testimony offered for the  purpose  of
establishing  that  a  criminal  defendant  lacked  the
capacity  to  form  a  specific  intent.);  People   v.
Carpenter, 627 N.W.2d 276, 284-85 (Mich. 2001) (same).
          The  Alaska  Legislature pursued this  course
when  it amended the blood alcohol level clause of  the
DUI   statute,  subsection  (a)(2):   the   legislature
amended the definition of the crime in a way that  made
it irrelevant whether the result of the defendants post-
arrest   chemical   test   accurately   reflected   the
defendants blood alcohol level at the time of driving.
          But  the  definition of DUI under  subsection
(a)(1)  remains  the same as it has always  been:   the
government must prove that the defendant was under  the
influence at the time the defendant operated the  motor
vehicle.
          Moreover,  as  we  explained  in  Doyle,  the
evidentiary  presumption codified in AS 28.35.033(a)(3)
is  a backward-looking presumption that relates to  the
defendants physical and mental condition at the time of
driving.   Under  this statute, a test  result  of  .08
percent  or  higher does not give rise to a presumption
that  the defendant was under the influence at the time
of  the  test;  rather, it gives rise to a  presumption
that  the defendant was under the influence at the time
of driving.
          Because  the  ultimate fact to be  proved  is
the  defendants impairment at the time of driving,  and
because  the  scientifically recognized  phenomenon  of
delayed  absorption is directly relevant to  the  jurys
assessment of whether the result of the defendants post-
arrest chemical test is a trustworthy indicator of  the
defendants earlier impairment, the legislature may  not
prohibit  the defendant from presenting evidence  about
delayed  absorption, and may not prohibit the defendant
from  asking the jury to consider this phenomenon  when
the  jury assesses whether the defendant was under  the
influence at the time of driving.
          For   these  reasons,  I  conclude  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.

_______________________________
     1  Under AS 28.35.030(a)(2), a motorist commits the crime of
driving  while under the influence if as determined by a chemical
test  taken  within  four hours after the  alleged  operating  or
driving,  there is 0.08 percent or more by weight of  alcohol  in
the  persons  blood or 80 milligrams or more of alcohol  per  100
milliliters  of  blood,  or if there is 0.08  grams  or  more  of
alcohol  per  210 liters of the persons breath.  For convenience,
we refer to this as the blood alcohol theory, though we recognize
that  the State may also establish guilt under subsection  (a)(2)
with  evidence  of the concentration of alcohol in the  motorists
breath.

     2   4FA-04-770  CR,  4FA-04-2284  CR,  and  4FA-04-2695  CR,
respectively.

3 54 P.3d 313 (Alaska App. 2002).

     4 Id. at 313.

     5 Id. at 314.

     6 Id.

     7 Id.

     8 Id.

     9 Id.

     10   Id. at 315.

     11   Id.

     12   Id.

     13   Conrad v. State, 60 P.3d 701 (Alaska App. 2002).

     14   Id. at 701 (quoting former AS 28.35.030(a)(2)).

     15   Id. at 701 (brackets in original).

16     Ch.  124,   25,  SLA  2004.   The  legislature  added  the
underlined text and eliminated the text in brackets.

     17   AS 28.35.030(a).

     18     See  Committee  Minutes,  House  Judiciary  Committee
discussion of C.S.H.B. 244 (JUD), the House version of  S.B.  170
(JUD)  (March 30, 2004, comments by Susan Parkes, Deputy Attorney
General, Criminal Division, Department of Law, and April 2, 2004,
comments by Dean Guaneli, Chief Assistant Attorney General, Legal
Services Section, Department of Law).

     19   Ch. 124,  27, SLA 2004.

     20     Committee   Minutes,   Senate   Judiciary   Committee
discussion of Amendment 4 to C.S.S.B. 170 (JUD) (March 24, 2004).

     21     See  Committee  Minutes,  House  Judiciary  Committee
discussion  of C.S.H.B. 244 (JUD) (March 19, 2004, statements  by
Parkes  and Rep. Gruenberg, March 30, 2004, statements by  Parkes
and Rep. Gara, and April 7, 2004, statements by Rep. Gara).

     22     See  Committee  Minutes,  House  Judiciary  Committee
discussion  of C.S.H.B. 244 (JUD) (March 19, 2004, statements  by
Parkes  and  Rep.  Gara);  Committee  Minutes,  Senate  Judiciary
Committee discussion of Amendment 4 to C.S.S.B. 170 (JUD)  (March
24, 2004, statements by Parkes).

     23   Committee Minutes, House Judiciary Committee discussion
of C.S.H.B. 244 (JUD) (April 2, 2004).

     24   Committee Minutes, House Judiciary Committee discussion
of C.S.H.B. 244 (JUD) (March 19, 2004).

     25   Ch. 124,  29, SLA 2004.

26   Stock v. State, 526 P.2d 3, 7-8 (Alaska 1974).

     27   Id. at 8.

     28   Id.

     29   Id.

     30   681 A.2d 162 (Pa. 1996).

     31   Id. at 164 (citing former 75 Pa. C.S.  3731(a)(5)).

     32   Id. at 166.

33    See,  e.g.,  United States v. Skinner, 973  F.  Supp.  975,
980  (W.D. Wash. 1997); State v. Martin, 847 P.2d 619, 623 (Ariz.
Ct.  App.  1992); Bohannon v. State, 497 S.E.2d 552, 556-57  (Ga.
1998); Sereika v. State, 955 P.2d 175, 177 (Nev. 1998).

     34    Skinner,  973  F.  Supp. at 980 (quoting  Fuenning  v.
Superior Court ex rel. Maricopa County, 680 P.2d 121, 129  (Ariz.
1983)).

     35    Bohannon, 497 S.E.2d at 556 (internal quotation  marks
and citations omitted).

     36   See Stock, 526 P.2d at 9-10.

37    Committee  Minutes,  House Judiciary  Committee  discussion
of C.S.H.B. 244 (JUD) (April 2, 2004).

     38   Id.

     39    Griswold  v. Homer, 925 P.2d 1015, 1019 (Alaska  1996)
(citing  Concerned  Citizens of South Kenai  Peninsula  v.  Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).

     40    Lundquist v. Dept of Public Safety, 674 P.2d 780,  784
(Alaska 1983).

41    State  v.  Simpson,  53 P.3d 165, 167  (Alaska  App.  2002)
(noting that this court previously rejected the notion that a DWI
defendant must know that [he is] under the influence); Hoople  v.
State,  985 P.2d 1004, 1006 (Alaska App. 1999) (holding that  the
statute  prohibiting driving while intoxicated does  not  require
proof  of  any  culpable mental state regarding the  circumstance
that  makes  the  driving illegal (the fact that the  driver  was
intoxicated  or  that the drivers blood-alcohol content  exceeded
[the  legal limit])); Cooley v. Anchorage, 649 P.2d 251, 253  n.3
(Alaska  App.  1982)  (rejecting the  claim  that  the  Anchorage
driving  under  the  influence  ordinance  violated  due  process
because it required no criminal intent and because motorists  had
no  way  of  knowing  whether their blood or breath  alcohol  had
reached  a level that placed them in violation of the ordinance);
Van Brunt v. State, 646 P.2d 872, 873 (Alaska App. 1982) (holding
that  conviction under the driving while intoxicated statute does
not  require  proof  that the motorist  knew  he  was  under  the
influence or that his blood or breath alcohol level exceeded  the
legal limit; the fact that the motorist knowingly drank and drove
was  enough  to  support a conviction); Morgan v. Anchorage,  643
P.2d  691, 692 (Alaska App. 1982) (rejecting claim that  motorist
must  be  aware  that he is under the influence to  be  convicted
under the Anchorage driving under the influence ordinance).

     42   643 P.2d 691.

     43   Id. at 692.

     44    See  Busby  v.  State, 40 P.3d 807, 816  (Alaska  App.
2002); Gregory v. State, 717 P.2d 428, 431 (Alaska App. 1986).

     45   Busby, 40 P.3d at 816-17.

     46   Id. at 816.

47   Simpson, 53 P.3d at 167.

     48   946 P.2d 875 (Alaska 1997).

     49   Id. at 879.

     50    Id.  (discussing  State v. Rice,  626  P.2d  104,  108
(Alaska 1981)).

     51    Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982)
(citing Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L.
Ed.  2d 39 (1979); County Court v. Allen, 442 U.S. 140, 99 S. Ct.
2213, 60 L. Ed. 2d 777 (1979); Tot v.United States, 319 U.S. 463,
63 S. Ct. 1241, 87 L. Ed. 1519 (1943)).

52    See  McLean  v.  Moran,  963  F.2d  1306,  1308  (9th  Cir.
1992);  Doyle  v.  State, 633 P.2d 306, 311  (Alaska  App.  1981)
(citing  United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754,  13
L. Ed. 2d 658 (1965); Alaska R. Evid. 303(a)(1) & Commentary)).

     53    See  Erickson v. Anchorage, 662 P.2d 963, 969  (Alaska
App.  1983)  (Singleton, J., concurring)  ([I]t  has  never  been
necessary that a legislatures legislative factual assumptions  be
probably  right  to  sustain a statute.  It is  sufficient  if  a
reasonable  legislator could believe them to  be  true.)  (citing
State  v.  Erickson, 574 P.2d 1, 17-18 (Alaska  1978);  Ravin  v.
State, 537 P.2d 494, 505 n.44 (Alaska 1975)).

54   See also Doyle, 633 P.2d at 310.

     55   AS 28.35.030(a) (emphasis added).

     56    See Alaska R. Evid. 303(a)(1) & Commentary (discussing
the  circumstances in which a court should instruct the  jury  on
statutory   presumptions  in  criminal  cases,  and   disallowing
presumptions that preempt the jurys function of finding facts and
assessing guilt and innocence).

     57   Doyle, 633 P.2d at 310.

     58    Pilant v. State, 115 P.3d 579, 580 (Alaska App. 2005);
Kalmakoff v. Anchorage, 715 P.2d 261, 262-63 (Alaska App.  1986);
Doyle, 633 P.2d at 310-11.

     59     Compare   McLean,  963  F.2d  at  1310-11  (reversing
defendants conviction under a Nevada statute prohibiting  driving
while  under  the influence or with a .10 percent  blood  alcohol
level  because  the judge interpreted the law as prohibiting  him
from  considering any evidence that the defendant was  not  under
the  influence at the time of driving if the chemical test showed
a blood alcohol level above the legal limit).

     60    See  Kalmakoff,  715  P.2d at  262;  Alaska  R.  Evid.
303(a)(1).

     61   AS 28.35.033(c) & AS 28.35.030(s).

     62   See Montana v. Egelhoff, 518 U.S. 37, 42-43, 116 S. Ct.
2013,  2017, 135 L. Ed. 2d 361 (1996) (plurality opinion)  &  518
U.S. at 57, 116 S. Ct. at 2024 (Ginsburg, J., concurring).

     63     Erickson,  662  P.2d  at  970  n.3  (Singleton,   J.,
concurring);   see  also  Committee  Minutes,   House   Judiciary
Committee discussion of C.S.H.B. 244 (JUD) (April 2, 2004).

     64   See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999);
see also Holmes v. South Carolina, ___ U.S. ___, 126 S. Ct. 1727,
1732,  164 L. Ed. 2d 503 (2006) ([T]he Constitution ... prohibits
the  exclusion  of  defense evidence under rules  that  serve  no
legitimate purpose or that are disproportionate to the ends  that
they  are  asserted to promote.); United States v. Scheffer,  523
U.S.  303,  308, 118 S. Ct. 1261, 1264, 140 L. Ed. 2d 413  (1998)
(noting  that  the  exclusion of evidence  is  unconstitutionally
arbitrary  or  disproportionate where it  has  infringed  upon  a
weighty interest of the accused).

     65    See  Brandon v. Corrections Corp. of America, 28  P.3d
269,  275  (Alaska 2001) (When a constitutional  challenge  to  a
statute  is  raised,  the  party  bringing  the  challenge   must
demonstrate  the  constitutional violation; constitutionality  is
presumed, and doubts are resolved in favor of constitutionality.)
(citation omitted).

66   930 P.2d 1274 (Alaska 1996).

     67   Id. at 1277-79.

     68   Griswold, 925 P.2d at 1019.

69   Erickson, 574 P.2d at 12.

     70   Lundquist, 674 P.2d at 784.

     71    Whitesides  v.  State, 20 P.3d 1130,  1135-36  (Alaska
2001).

     72    Fuenning, 680 P.2d at 128 ([W]e recognize no right  to
ingest   a  substantial  amount  of  alcohol  and  then  drive.);
Bohannon, 497 S.E.2d at 557 (rejecting the claim that there is  a
constitutional right to drink and drive so long as  the  motorist
is  not impaired); Fargo v. Stensland, 492 N.W.2d 591, 593  (N.D.
1992)  (same);  State v. Chirpich, 392 N.W.2d 34, 37  (Minn.  Ct.
App. 1986) (holding that driving while under the influence is not
constitutionally protected conduct); see also Hernandez  v.  Dept
of  Motor  Vehicles,  634  P.2d  917,  919  (Cal.  1981)  ([P]ast
authorities[,] while fully cognizant of the practical  importance
of  an  individuals  right to drive[,] have uniformly  recognized
that  the  area  of  driving  is  particularly  appropriate   for
extensive   legislative   regulation,   and   that   the   states
traditionally broad police power authority to enact  any  measure
which reasonably relates to public health or safety operates with
full force in this domain.).

     73   State v. Conley, 754 P.2d 232, 236 (Alaska 1988).

1  In  the  2004  legislative  hearings,  this  defense  was
referred  to  as  the big gulp defense  a reference  to  the
possibility that a motorist had hurriedly consumed  a  large
quantity of an alcoholic beverage shortly before the  police
pulled the motorist over.  Although the phrase big gulp  may
be catchier than delayed absorption, this latter phrase is a
more accurate description of the defense.  There are several
potential  reasons  why the absorption  of  alcohol  into  a
persons  bloodstream might be delayed  for example,  illness
or  the recent consumption of a heavy meal.  And it is  this
delay  that  is  the crucial component of any defense  claim
that a post-arrest chemical test result might not accurately
indicate the defendants blood alcohol level at the  time  of
driving.

2  Swensen  v.  Anchorage, 616 P.2d 874, 880 n.  10  (Alaska
1980);  Ballard  v. State, 955 P.2d 931,  940  (Alaska  App.
1998).

3 Ballard, 955 P.2d at 940.

4  See  Davis  v. Alaska, 415 U.S. 308, 311, 320;  94  S.Ct.
1105, 1108, 1112; 39 L.Ed.2d 347 (1974).

5 See id.

6  See  Chambers  v. Mississippi, 410 U.S. 284,  294-98;  93
S.Ct. 1038, 1045-47; 35 L.Ed.2d 297 (1973).

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