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Trumbly v. State (9/2/2016) ap-2514

Trumbly v. State (9/2/2016) ap-2514


         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 @



                                                                    Court of Appeals No. A-11822  

                                    Appellant,                    Trial Court No. 3KN-12-904 CR  


                                                                            O  P  I  N  I  O  N  


                                    Appellee.                      No. 2514 - September 2, 2016  

                  Appeal f          

                             rom the District Court, Third Judicial District, Kenai,  

                  Matthew Christian, Magistrate Judge.  

                  Appearances:  Lars  Johnson,  Assistant  Public  Defender,  and  


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


                  Samuel D. Scott, Assistant District Attorney, Kenai (briefing),  

                  John Skidmore, Division Director, Criminal Division Central  

                  Office,  Anchorage  (oral  argument),  and  Craig  W.  Richards,  


                  Attorney General, Juneau, for the Appellee.  

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


                  Superior Court Judge. *  



                  Judge ALLARD.  

     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                                                         A jury convicted David Henry Trumbly Jr. of driving under the influence                                                                                                                                                                                                      

 and refusal to submit to a chemical test.  At sentencing, the court initially imposed the                                                                                                                                                                                            

 mandatory minimum fine of $1,500 for each offense concurrent to one another.                                                                                                                                                                                                                                                                    A few   

 days later, the court amended the judgment to impose the fines consecutively (for a total                                                                                                                                                                                                                                                            

 fine of $3,000) after the State argued that the court had no authority to impose the fines                                                                                                                                                                                                                                                              


                                                         Trumbly now appeals, arguing that the original judgment was a valid final                                                                                                                                                                                                                        

judgment   and   the   court's   actions   therefore   violated   the   prohibition   against   double  

jeopardy.   For the reasons explained here, we agree with Trumbly and conclude that                                                                                                                                                                                                                                                                          

 sentencingcourtshavethediscretion                                                                                                                      to imposethesefines consecutively or concurrently.                                                                                                                                                                       

 We accordingly remand this case to the district court and direct the court to correct the                                                                                                                                                                                                                                                                      

judgment to reflect the court's initial imposition of concurrent fines.                                                                                                                                                                                                  

                                                         Trumbly also argues that the police did not have probable cause to arrest                                                                                                                                                                              

 himfor                         driving under the influence. Having                                                                                                                     reviewed the record, we find no merit to this  

 claim.   We therefore affirm Trumbly's convictions.                                                                                                                  

                              Why we conclude that the original judgment was lawful                                                                                                                                                          

                                                         Under Alaskalaw, a                                                              person convicted ofrefusal to submit to a chemical test                                                                                                                                                                                 

 is subject to the same mandatory minimum criminal penalties as a person convicted of                                                                                                                                                                                 


 the underlying driving under the influence.                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                              A first conviction for either driving under  


 the influence (DUI) or refusal to submit to a chemical test (refusal) requires a mandatory  


 minimum term of imprisonment of 72 hours, a mandatory minimum license revocation  



 of 90 days, and a mandatory minimum fine of $1,500.                                                                                                                                                                                         A second conviction for either  

                1            See AS 28.35.030(b); AS 28.35.032(g). 

               2             AS 28.35.030(b)(1); AS 28.35.032(g)(1); AS 28.15.181(c)(1).

                                                                                                                                                                             - 2 -                                                                                                                                                                   2514

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offense requires a mandatory minimum term of imprisonment of 20 days, a mandatory                                                    


minimum license revocation of 12 months, and a mandatory minimum fine of $3,000.                                                                         



A third conviction for either offense generally qualifies as a felony. 


                       A  subsection  of  the  refusal  statute,  AS  28.35.032(g)(5),  additionally  


requires that the mandatory minimum sentence imposed for the refusal conviction "shall  



run consecutively with any other sentence of imprisonment imposed on the person." 


Thus, in cases where the defendant is convicted of both refusal and DUI arising out of  


the same incident, the mandatory termof imprisonments must be imposed consecutively.  


                       BecausethesewereTrumbly's first offenses for drivingunder theinfluence  


and refusal to submit to a chemical test, he faced the mandatory minimum penalties for  


a first time offender. At sentencing, the judge imposed the 72-hour mandatory minimum  


termofimprisonment for eachoffenseconsecutively, asrequired byAS28.35.032(g)(5),  


but imposed the mandatory minimum license revocations and fines concurrently.  


                       In response, theprosecutor filed amotion asserting that Alaskalawrequired  


consecutive mandatory minimum fines for driving under the influence and refusal to  


submit  to  a  chemical  test.                     The  district  court  ultimately  agreed  with  the  State  and  


modifiedTrumbly'sjudgmentto imposethefines consecutively, resulting in acomposite  


fine of $3,000 ($1,500 for each offense).  


                       Trumbly argues that the court erred in concluding that consecutive fines  


were required by law.  Because this question hinges on our construction of the Alaska  



statutes, we review the question de novo. 

      3     See AS 28.35.030(b)(1); AS 28.35.032(g)(1); AS 28.15.181(c)(2).  

      4     See AS 28.35.030(n); AS 28.35.032(p).  

      5     AS 28.35.032(g)(5) (emphasis added).  

      6     See Wilson v. State Dept. of Corrections, 127 P.3d 826, 829 (Alaska 2006)   (We  


                                                                       - 3 -                                                                 2514

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                           On   appeal,   the   State   acknowledges   that   AS   28.35.032(g)(5)   does   not  

require the sentencing court to impose consecutive fines.                                                            This subsection only requires               

the court to impose consecutive "sentences                                                   of imprisonment." And, as our caselaw                              

demonstrates, "sentences of imprisonment" refer to terms of imprisonment and do not  

refer to the other penalties for driving under the influence and refusal, such as license                                                                          

revocations and monetary fines.                                  7  


                           The State argues instead that the court was required to impose consecutive  


fines under AS 28.35.032(g)(2)(A), a different statutory subsection within the refusal  


statute.  This subsection provides that, upon conviction under the refusal statute, "the  


court may not ... suspend execution of the sentence ... or grant probation except on  


condition that the person ... serve the minimum imprisonment ... [and] pay the minimum  




                           The DUI statute contains a nearly identical provision.                                                                 Alaska Statute  


28.35.030(b)(2)(A) states that, upon conviction for DUI, "the court may not ... suspend  


execution of sentence or grant probation except on condition that the person ... serve the  



minimum imprisonment ... [and] pay the minimum fine." 

       6      (...continued)  

construe a statute "according to reason, practicality, and common sense, considering the                                                                                   

meaning of its language, its legislative history, and its purpose."                                                            );  State v. McCallion, 875  

P.2d 93, 98 (Alaska App. 1994).  

       7      Snyder v. State, 879 P.2d 1025, 1030 (Alaska App. 1994), rev'd on other grounds, 930  


P.2d 1274 (Alaska 1996); see also Baker v. State, 182 P.3d 655, 660 (Alaska App. 2008).  

       8      See AS 28.35.030(b)(2)(A)(i) - (ii).  

       9     Id.  

                                                                                   - 4 -                                                                             2514

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                      These provisions were amended to their current form in 2005 to change the                                              


result that this Court reached in                     Curtis v. State.                               

                                                                                    In Curtis, we addressed the question  


of whether a sentencing court had the authority to suspend the mandatory minimum fine  



                    At the time, the DUI statute and the refusal statute both prohibited courts  

for DUI. 


from suspending the mandatory minimum term of imprisonment for persons convicted  



of either offense,              but the statutes said nothing about a court's authority to suspend the  



mandatory  minimum fine.                           We  held  that,  in  the  absence  of  a  statute  specifically  


prohibiting sentencing courts fromsuspending the mandatory minimumfine, sentencing  


courts retained that power - because, under AS 12.55.080 and AS 12.55.015(a)(7),  



courts are granted the general authority to suspend any "sentence." 


                      In  2005,  in  a  long-delayed  response  to  Curtis,  the  Alaska  legislature  


amended  the  DUI  and  refusal  statutes  to  also  prohibit  courts  from suspending  the  



mandatory  minimum  fines  for  these  offenses.                                         The  sponsor  of  the  legislation,  


Representative Norman Rokeberg, told legislators during committee debate on the bill  


that the criminal courts, particularly the courts in Juneau, had been routinely suspending  


mandatory minimum fines in DUI cases, and that his bill was aimed at putting an end to  

      10   831 P.2d 359 (Alaska App. 1992).  

      11   Id.  

      12   See  AS 28.35.030(b)(2)(A)(i) & (n)(2)(A)(i); AS 28.35.032(g)(2)(A)(i) & (p)(2)-  


      13   See  former AS 28.35.030(b)(2) & (n)(2) (pre-July 14, 2005 version).   The refusal  


statute was identical in relevant respects.  See former AS 28.35.032(g)(2) & (p)(2) (pre-July  


14, 2005 version).  

      14   Curtis, 831 P.2d at 360-61.  

      15   Ch. 68,  1 (adding AS 28.35.030(b)(2)(A)(ii)),  4 (adding AS 28.35.032(g)(2)(A)- 

(ii)), SLA 2005; see also House Bill 136, 24th Leg., 1st Sess. (2005) (as introduced).  

                                                                    - 5 -                                                               2514

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


that practice.           Representative Rokeberg explained that the bill would "basically repeal"                               



                      The State argues that the 2005 legislation was also aimed at eliminating  


judicial  authority  to  impose  the  mandatory  minimum  fine  concurrently  with  a  


defendant's fines for any other offenses, particularly the mandatory minimum fines for  


refusal.  But neither the plain language of the amendments nor the legislative history  


 supports this claim.  


                      The2005 legislation made it clear that courts could no longer suspend these  


mandatory minimum fines, but it said nothing about whether the court was required to  


impose these fines concurrently or consecutively to other fines.  Significantly, after we  


decided Curtis in 1992, but before the 2005 legislation, we decided Snyder v. State, in  


which we upheld the authority of the courts to impose mandatory minimum fines and  


license revocation penalties concurrently in cases where defendants were convicted of  



                                        But there was no discussion of overruling Snyder during the  

both DUI and refusal. 


committee debate of the 2005 bill.  Nor was there any attempt to modify AS 28.35.- 


032(g), the statutory provision in the refusal statute that directly addresses consecutive  


and concurrent sentencing in these types of cases.  


                      For  these reasons,  we conclude that Alaska law does  not  prohibit the  


concurrent imposition of mandatory minimum fines when a defendant is sentenced for  


both driving under the influence and refusal. Thus, the district court's original judgment  

      16   See    Minutes   of    Senate   Finance   Committee,   House   Bill    136,    statement   of  

Representative Norman Rokeberg (May 1, 2005, at 2:46:58 p.m.).  

      17   Id .  



           Snyder v. State, 879 P.2d 1025,1030 (Alaska App.1994), rev'd on other grounds, 930  

P.2d 1274 (Alaska 1996); see also Baker v. State, 182 P.3d 655, 660 (Alaska App. 2008)  

(affirming in dicta court's authority to impose fines and license revocations concurrently).  

                                                                 - 6 -                                                           2514

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in this case was lawful, and the court violated the prohibition against double jeopardy                                                                          

when the court modified the judgment to Trumbly's detriment by imposing the fines                                                                                        


              Why we conclude that the police had probable cause to arrest Trumbly  


                            Trumbly also argues that the police lacked probable cause to arrest him for  


driving under the influence, and that the district court therefore erred in denying his  


motion to suppress.  We find no merit to this claim.  


                            The district court held an evidentiary hearing on Trumbly's suppression  


motion and, based on the evidence presented at that hearing, made detailed factual  


findings.  Trumbly does not challenge any of the court's factual findings; instead, he  


argues that those findings were insufficient to support the court's legal conclusion that  


there was probable cause for his arrest.  In particular, Trumbly contends that the police  


had no evidence that he drove erratically or performed poorly on field sobriety tests.  


(Trumbly declined to perform field sobriety tests.)  


                            Evidence of field sobriety tests or poor driving is not invariably required  


to support an arrest for driving under the influence.  Rather, probable cause for an arrest  


exists if the police are aware of facts and circumstances that, taken together, warrant a  


reasonable belief that an offense has been or is being committed.20  


                                                                                                                                          We review de novo  



the legal question of whether a trial court's findings of fact establish probable cause. 

       19     Love v. State , 799 P.2d 1343, 1345 (Alaska App. 1990) ("The double jeopardy clause   

of the Alaska Constitution prevents an increase in any sentence that has been 'meaningfully                


       20     Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).  

       21     Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).  

                                                                                    - 7 -                                                                              2514

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                    Here, the district court found that a gas station clerk called the Kenai Police  


Department to report that a man who appeared to be intoxicated had just driven away  


from the station.  The clerk provided a description of the vehicle and the driver, as well  


as the vehicle license plate number.  Police dispatch relayed this information to police  


officers in the field, and informed themthat the vehicle was registered to David Trumbly,  


who lived nearby. About five minutes later, the officers arrived at Trumbly's apartment  


complex and saw a vehicle matching the clerk's description. The vehicle's hood was still  




                    When the officers knocked on Trumbly's door, Trumbly answered, and he  


matched  the  physical  description  given  by  the  service  station  clerk.                                   The  officers  


observed that Trumbly smelled strongly of alcohol, that his eyes were bloodshot and  


glossy, and that his speech was thick.  When the officers asked Trumbly how he was  


doing, he replied, "Drunk off my ass." Trumbly had an open beer bottle in his hand, but  


the bottle was almost full and Trumbly was already visibly intoxicated.  


                    We agree with the district court that these facts gave the police probable  


cause to arrest Trumbly for driving under the influence.  



                    We  AFFIRM Trumbly's  convictions.                            We  VACATE  the  provision  of  


Trumbly's judgment that imposes consecutive fines, and we direct the district court to  


impose the fines concurrently, in accordance with the district court's initial sentencing  


decision.  We do not retain jurisdiction of this case.  


                                                              - 8 -                                                        2514

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