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Molina v. State (6/20/2008) ap-2173

Molina v. State (6/20/2008) ap-2173

     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

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) Court of Appeals No. A-9570
Appellant, ) Trial Court No. 3AN-04-7777 Cr
v. )
) O P I N I O N
Appellee. ) No. 2173 - June 20, 2008
          Appeal  from the Superior Court,  Third  Judi
          cial   District,   Anchorage,   Michael    L.
          Wolverton, Judge.

          Appearances:   David  D.  Reineke,  Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Douglas   H.   Kossler,  Assistant   Attorney
          General,  Office of Special Prosecutions  and
          Appeals,  Anchorage, and  Talis  J.  Colberg,
          Attorney General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Ricardo  Molina was convicted of felony  driving  under
the  influence - that is, driving under the influence when he had
two  or  more  prior  convictions for DUI or breath-test  refusal
within  the  preceding ten years.1  To prove the predicate  prior
convictions,  the  State relied on a prior  DUI  conviction  that
Molina had in Arizona.
          AS  28.35.030(t)(4)(A) declares that a  DUI  conviction
          from another state counts as a prior conviction for purposes of
Alaska's  felony  DUI statute if the other state's  DUI  law  has
elements  that are "similar" to the elements of DUI under  Alaska
law  -  that  is,  elements  similar to  those  contained  in  AS
28.35.030(a).  The question presented in this appeal  is  whether
the  definition of DUI under Arizona law is sufficiently  similar
to Alaska's definition of DUI so that Molina's Arizona conviction
qualifies as a "prior conviction" in this state.
          In  Gunderson v. Anchorage, 762 P.2d 104, 114-15  n.  7
(Alaska  App.  1988), this Court interpreted AS  28.35.030(a)(1),
the "under the influence" subsection of Alaska's DUI statute,  to
require  proof of a level of impairment that renders  the  driver
incapable  of  operating  a  motor  vehicle  "with  the   caution
characteristic of a person of ordinary prudence who is not  under
the influence".
          The  wording of Arizona's DUI law suggests that Arizona
requires  proof of a lesser level of impairment.   Under  Arizona
Revised  Statute  28-1381(A)(1), it is unlawful "for a person  to
drive  or be in actual physical control of a vehicle ...  [w]hile
under  the influence of intoxicating liquor [or] any drug ...  if
the person is impaired to the slightest degree."
          Molina's  argument hinges on the final clause  of  this
definition:   "impaired to the slightest  degree".   Because  the
Arizona statute allows a conviction upon proof of impairment  "to
the  slightest degree", Molina contends that Arizona's definition
of  the prohibited level of intoxication is significantly broader
than  Alaska's  definition  - and that,  therefore,  the  Arizona
statute  penalizes  a  significantly greater  range  of  conduct.
Based on this analysis, Molina concludes that the elements of DUI
under  Arizona law are not sufficiently "similar" to the elements
of DUI under Alaska law.
          We  have  examined the Arizona Supreme  Court  decision
that first announced the "impaired to the slightest degree" test,
as well as later Arizona decisions interpreting and applying that
test.   As we explain here, these court decisions show that  even
though  the  Arizona  test  may  be  worded  differently,  it  is
essentially  the same as the Alaska test.  We therefore  conclude
that  Molina's  DUI  convictions from Arizona  qualify  as  prior
convictions for purposes of the Alaska felony DUI law.

     Is  the  Gundersen definition of "under the  influence"
     mere dictum?
               Before   we   turn  to  the   Arizona   cases
     construing  that  state's DUI statute,  we  must  first
     address  an  argument raised by the State:   the  claim
     that  the Gundersen definition of "under the influence"
     was not a holding of that case, but rather only dictum.
               In  Gundersen, the trial judge instructed the
     jury  that  being "under the influence"  and  having  a
     blood  alcohol  level  of .10 or  greater  were  simply
     alternative ways of committing the same offense  -  and
     that  the  jurors  did not have to be unanimous  as  to
     which  of  these two theories was proved.2  On  appeal,
     Gundersen argued that the "under the influence"  theory
               and the blood alcohol level theory actually described
     distinct  offenses  -  and  that,  therefore,  it   was
     unconstitutional to allow the jury to return  a  guilty
     verdict  unless the jurors reached unanimous  agreement
     as to which of these theories was proved.3
               Here  is  our explanation of why we  rejected
     this argument:
We  are  satisfied that the state legislature
and  the [Anchorage] municipal assembly  have
... determined, as a legislative fact, that a
person  with  .10  grams of alcohol  per  210
liters   of  breath  is  driving  under   the
influence  of  alcohol  because,  [with  that
level  of  alcohol in the body,  a]  person's
physical   or  mental  abilities   [are]   so
impaired  that  he or she no longer  has  the
ability to operate a vehicle with the caution
characteristic  of  a  person   of   ordinary
prudence who is not under the influence.

     In  summary, we are satisfied  that  the
legislature   and   the  municipal   assembly
intended  that the two approaches to  driving
while  intoxicated  would simply  be  variant
ways of proving the same thing.

Gundersen, 762 P.2d at 114-15 n. 7.
          There are two salient assertions in
this excerpt from Gundersen:  first, that the
"under  the influence" theory and  the  blood
alcohol  level  theory  of  DUI  were  simply
"variant ways of proving the same thing", and
second,  that this "same thing" to be  proved
was  "[the impairment of] a person's physical
or  mental abilities [to the extent] that  he
or she no longer has the ability to operate a
vehicle with the caution characteristic of  a
person of ordinary prudence who is not  under
the influence".
          These two assertions are not dicta.
Rather, they are necessary components of  our
holding  that the two subsections of the  DUI
statute do not define distinct offenses,  but
rather  only one offense - and our  resulting
conclusion   that  jury  unanimity   is   not
required  when  a defendant is  alternatively
charged  with  violating (a)(1)  of  the  DUI
statute    (the    "under   the    influence"
subsection)  and  (a)(2) of the  DUI  statute
(the blood alcohol level subsection).

Why  we  conclude that the Arizona DUI statute requires
proof  of  essentially the same level of impairment  as
the Gundersen test

          As  explained above, the Arizona DUI  statute
defines   the   prohibited  level  of   impairment   as
"impair[ment]  to  the slightest  degree".   This  test
comes  from an eighty-year-old decision of the  Arizona
Supreme  Court,  Hasten v. State,  280  P.  670  (Ariz.
          At  the  time of the Hasten decision, Arizona
law  defined the offense as "operating a motor  vehicle
while  under  the  influence of intoxicating  liquor".4
The  defendant  in  Hasten claimed that  this  language
meant  "under the influence of intoxicating  liquor  to
the  extent  of  impairing  to  an  appreciable  degree
[one's]  ability to operate [a] car in the manner  that
an  ordinarily prudent and cautious man,  in  the  full
possession of his faculties and using reasonable  care,
would   operate   a  similar  vehicle   under   similar
conditions."5  The government, for its part,  contended
that   the   statute  encompassed  "any  influence   of
intoxicating liquor, however slight".6
          The  Arizona Supreme Court rejected  both  of
these  contentions, declaring that the true meaning  of
the  statute lay between the parties' competing  views.
The  court  declared that the statute did not  prohibit
driving whenever a person was under "any influence"  of
intoxicating  liquor.  Rather, the  statute  prohibited
driving  when the influence of intoxicants  rose  to  a
level at which the person was "to some degree ...  less
able,  either  mentally  or  physically  or  both,   to
exercise  the clear judgment and steady hand  necessary
to  handle  ... [an] automobile".  But the  court  also
held  that  if a person's ability to control  a   motor
vehicle  was  impaired by intoxicants, the statute  did
not   require   proof   of   an   "appreciable   [i.e.,
significant] degree" of impairment, but rather  only  a
"perceptible  degree"  of  impairment.   Here  is   the
court's discussion of this point:
          The expression, "under the influence  of
     intoxicating liquor," covers not only all the
     well  known  and easily recognized conditions
     and degrees of intoxication, but any abnormal
     mental  or  physical condition which  is  the
     result   of   indulging  in  any  degree   in
     intoxicating  liquors,  and  which  tends  to
     deprive  [a  person]  of  that  clearness  of
     intellect  and  control of himself  which  he
     would  otherwise possess.  So one driving  an
     automobile  upon a public street while  under
     the    influence   of   intoxicating   liquor
     [violates the statute] even though he  drives
     so  slowly  and  so skillfully and  carefully
     that the public is not annoyed or endangered.
     In  State v. Noble, 119 Or. 674, 250 P.  833,
     the court distinguished between being "in  an
     intoxicating  condition" [and  being]  "under
     the  influence of intoxicating  liquor,"  and
     held that [under] the latter phrase the state
     was not bound to prove that the defendant was
     drunk  or intoxicated, but only to show  that
     he  was  under  the influence of intoxicating
     liquor to some perceptible degree.
     Hasten, 280 P. at 671.
               The   court  then  noted  that  the
     Arizona legislature had recently amended  the
     statute  to  allow prosecution of people  who
     were  impaired by alcohol, even though  these
     people had not yet reached the stage of being
          The  Penal  Code of 1913  (section  398)
     prohibited  any  person "who is  intoxicated"
     from  driving  a  motor  vehicle.   ...    In
     1927[,]  the language was changed so that  it
     read  "under  the  influence of  intoxicating
     liquor."    Our  Legislature  ...   evidently
     became  convinced that many persons  who  had
     not    yet   arrived   at   [a]   state   [of
     intoxication] were [nevertheless] a menace to
     public safety when driving a motor vehicle[.]
     .  .  .

     With the increasing number and speed  of
automobiles   on   our  highways,   and   the
appalling   number  of  accidents   resulting
therefrom,  it  is  not  strange   that   the
[legislature] determined that any person, who
of  his own free will voluntarily lessened in
the  slightest degree his ability  to  handle
such  vehicles  by  the use  of  intoxicating
liquor,  should, while in such condition,  be
debarred from their use.

          The  Arizona  court then  clarified
that  the  statute required proof of  driving
while  in a condition of impairment, and  not
just  proof that a person drove after  having
imbibed intoxicating liquor:

     Nor  will  it follow, as [the] appellant
seems to fear, that every man who has taken a
drink  falls  within the ban of the  statute.
If  that  drink  does not  cause  him  to  be
"influenced"  in  the  ordinary   and   well-
understood  meaning of the term,  he  is  not
affected by the law.  If he is so influenced,
he   must  bear  the  consequences   of   his
voluntary  act by refraining from driving  an
automobile while that influence lasts.

          Eight  years  later, in  Weston  v.
State,  65 P.2d 652 (Ariz. 1937), the Arizona
Supreme  Court  was  asked  to  revisit   its
interpretation of the statute in Hasten.  The
defendant  in  Weston  contended   that   the
phrase,  "under the influence of intoxicating
liquor", was unconstitutionally vague because
it     encompassed    both    "imperceptible"
influences as well as perceptible influences.
          As  described by the court,  Weston
argued  that  "the  loose way  in  which  the
statute [was] worded" allowed a person to  be
convicted after having "indulged ...  to  the
extent  of  one  drink only" - because  "even
that   small   quantity  [of  alcohol]   does
influence a person to some degree,  ...  even
though  that  one drink does not affect  [the
person]  perceptibly or cause him to  act  in
any  manner differently from the way he would
have acted had he not taken it."  Weston,  65
P.2d at 653-54.
          In  answer to this contention,  the
Arizona  Supreme  Court reaffirmed  that  the
statute  required  proof,  not  just  that  a
person    was   under   the   influence    of
intoxicants, but that this influence rose  to
a level where the person's ability to operate
a  motor  vehicle  was perceptibly  impaired.
The  court  declared that the government  was
obliged  to  prove that a defendant  was  "so
affected  by  intoxicating liquor"  that  the
defendant was "to some degree ... less  able,
either  mentally or physically  or  both,  to
exercise  the clear judgment and steady  hand
necessary to handle as powerful and dangerous
a  mechanism  as  a  modern  automobile  with
safety  to himself and the public."   Weston,
65 P.2d at 654.  The court then added:

     The   contention  that   [the   statute]
authorizes the conviction of a person who has
taken  only one drink, even though that drink
did  not perceptibly affect him or cause  him
to  act  any  differently than he would  have
acted   had  he  not  taken  it,  is  without
basis[.]    [W]hether  one  was   under   the
influence  of intoxicating liquor within  the
meaning of this statute depends not upon  the
number  of  drinks  he has  taken[,]  but  on
whether  those  he  did  take  affected   him
sufficiently to bring him within its purview.
One  drink  might have this effect, depending
upon the person, while more than one drink in
the  case  of  another would  not  [-  ]  for
intoxicating  liquor  does  not  affect   all
people  alike.  ...  The important query  is,
Was  the  driver  of  the vehicle  under  the
influence  of  intoxicating  liquor  to   the
extent that he did not have the clearness  of
intellect  or  control  of  himself  that  he
otherwise  would have had?  ...  [U]nless  it
is made to appear [from the evidence] that he
was  under such influence to this extent, the
jury  would  not be justified in ...  finding
[the driver guilty].
          Toward  the  end of  the  twentieth
century,  the  Arizona  legislature   amended
their  DUI  statute to define the offense  in
words that echo the Hasten test.  The statute
now prohibits operating a motor vehicle while
"under  the influence of intoxicating  liquor
[or]  any  drug ... if the person is impaired
to the slightest degree."7
          It  is true that the phrase "to the
slightest degree" could be read to suggest  a
very  stringent  test.  But this  phrase  was
judicially  construed in  Hasten  and  Weston
(indeed,  the phrase originated  in  Hasten),
and   we  must  therefore  presume  that  the
Arizona  legislature intended this phrase  to
be understood as it was defined in Hasten and
Weston.8   This expectation is  confirmed  by
modern Arizona appellate decisions.
          In  State v. Morales, 10 P.3d  630,
631  (Ariz. App. 2000), the court noted  that
Arizona     Criminal     Jury     Instruction
28.692(A)(1) defines the phrase "impaired  to
the slightest degree" as requiring proof that
"[t]he  defendant's ability to drive a  motor
          vehicle was lessened to the slightest degree
by  reason  of  being under the influence  of
intoxicating  liquor."   And  in   State   v.
Secord, 88 P.3d 587 (Ariz. App. 2004), it was
noted   that  the  state's  forensic   expert
testified that a blood alcohol level  of  .08
percent  "is  the  first threshold  at  which
scientists  will conclude that  a  person  is
necessarily   impaired  `to   the   slightest
degree'  [as  that  phrase is  understood  in
Arizona law]."  Id. at 596 n. 12 (Eckerstrom,
J., dissenting).
          In  other words, under Arizona  law
impairment  "to the slightest  degree"  means
essentially  the same thing as the  Gundersen
test.  Both tests require proof that, because
of the influence of intoxicants, the operator
of   a  motor  vehicle  was  deprived  to   a
perceptible degree of their normal mental and
physical capacity to control the vehicle.
          For these reasons, we conclude that
the  elements  of Arizona's DUI  statute  are
"similar" to the elements of DUI under Alaska
law  -  and  that, therefore, Molina's  prior
conviction for violating the Arizona  statute
qualified  as  a  prior  conviction  for  the
purpose of assessing whether he was guilty of
felony DUI in this state.


     The  judgement  of  the  superior  court   is

  1 AS 28.35.030(n).

2 Gundersen, 762 P.2d at 114-15 n. 7.

  3  See  Gundersen v. State, Court of Appeals File  No.  A-2112,
Appellant's brief at 22.

4 Hasten, 280 P. at 670.

5 Id. at 670-71.

6 Id. at 671.

7This statute was originally enacted in 1995 as Arizona
Statute   28-2881.   See Arizona Laws  1995,  Ch.  147,
12.   The  statute  was scheduled  to  take  effect  on
October  1,  1997.   Before that  effective  date,  the
statute  was  renumbered as  28-1381  by  Arizona  Laws
1996,  Ch.  76,   3  (which  likewise  took  effect  on
October 1, 1997).

8See Patterson v. State, 708 P.2d 712, 716 (Alaska App. 1985)
("[I]t  is  a  well-established principle of  statutory
construction   that  when  the  legislature   re-enacts
language that has previously been judicially construed,
[the  legislature]  is presumed  to  be  aware  of  the
previous construction and to [be using] the language in
the  sense  given it by the court."),  citing  Hart  v.
State, 702 P.2d 651, 655 (Alaska App. 1985).  See  also
Norman  J. Singer, Sutherland on Statutes and Statutory
Construction  (6th  ed., 2000 revision),   49.09,  Vol.
2B, pp. 103-112.

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