DUI Law - Alaska Jail Sentence for Importing Alcohol

In Egoak v. State of Alaska, Not Reported in P.3d, 2011 WL 3305424 (Alaska App.), the defendant was sentenced to a maximum term of one year to serve for importing alcohol into a dry village. He appeals his sentence, arguing that his due process rights were violated because he had no notice that he would be sentenced to the maximum term as a worst offender. At the sentencing hearing, the State recommended a flat-time sentence of sixty days for these offenses. The prosecutor noted that Egoak had thirty-six prior misdemeanor convictions, including three prior convictions for importation of alcohol in 2000, 2001, and 2004, and six prior driving under the influence convictions, two of them within the past fifteen years. The prosecutor also noted that Egoak had a history of assaultive behavior. Egoak's attorney agreed that a sixty-day sentence “does seem warranted in light of the criminal history.”

Magistrate Burley rejected the parties' recommendation of a sixty-day sentence and imposed a flat-time sentence of 365 days. After imposing this sentence, the magistrate invited Egoak's attorney to make additional argument, but he declined.

On appeal, the court affirmed:

"Egoak's claim that he had no notice that he faced a possible maximum sentence is without merit. At Egoak's change of plea hearing, the magistrate expressly advised Egoak that she could “go all the way up to the maximum” of one year to serve in sentencing him.FN2 Egoak said he understood. Moreover, it is well-settled in case law that a lengthy history of misdemeanor convictions will justify a worst offender finding and the imposition of a maximum term."

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DUI Appeal - Alaska Decides Corpus Delicti Issues And Grants New Trial

In Langevin v. Alaska, --- P.3d ----, 2011 WL 2177299 (Alaska App.) the defendant was found guilty of DUI. The appeal presented three questions concerning the corpus delicti rule—the doctrine that a criminal conviction can not rest solely on the defendant's confession:

The first question is an issue of law: whether, under Alaska law, the trial judge or the jury is the one who decides whether the government's evidence satisfies the corpus delicti rule.
The second question is case-specific: whether, given the evidence presented at Langevin's trial, the State satisfied the corpus delicti requirement.
The third question is again a question of law: when the State fails to satisfy the corpus delicti rule, but when the State's evidence, taken as a whole ( i.e., including the defendant's confession), is sufficient to survive a motion for a judgment of acquittal, is the defendant's remedy outright dismissal of the criminal charge, or is it a retrial?

As to the first question, the court discussed the two basic approaches to a corpus delicti rule: the implicit element approach and the “evidentiary foundation” approach to corpus delicti.

Under the "evidentiary foundation" approach, the corpus delicti rule is a rule that defines the level of supporting evidence that the government must present if the government wishes to introduce the defendant's out-of-court confession for the truth of the matters asserted. Under this approach,

"[The] decision [regarding corpus delicti is] made by the trial judge before the case is submitted to the jury. The judge [assesses] the sufficiency of the State's evidence to prove the corpus delicti, and this decision [is] one of law—similar to the judge's assessment of the sufficiency of any other evidentiary foundation under Alaska Evidence Rule 104(a)-(b). Assuming the judge [rules] that the corpus delicti had been established, then, at the end of trial, the jury [considers] all of the evidence (including the defendant's confession) and [decides] whether the State [has] established each element of the charged crime beyond a reasonable doubt.
Dodds, 997 P.2d at 540."

Under the “implicit element” approach, if the trial judge rules that corpus delicti is satisfied, the jury would hear the defendant's confession, only to later be asked to set the confession to one side and determine whether the government's remaining evidence is sufficient to establish the corpus delicti. As the appellate court stated:

"One might doubt whether jurors, having heard the defendant's confession to a heinous crime, could dispassionately discharge this duty."

The appellate court then decided that the trial judge should make the determination as to the corpus delicti rule:

"In sum, Alaska cases have historically employed the “evidentiary foundation” approach to corpus delicti, and there are good reasons to question the “implicit elements” approach. Accordingly, we now hold that Alaska law follows the “evidentiary foundation” approach to corpus delicti. Under the “evidentiary foundation” approach to corpus delicti, the decision as to whether the State has satisfied the corpus delicti rule is a decision for the trial judge, not the jury. Therefore, Langevin's trial judge correctly denied Langevin's request to have the jury decide this matter."
The appeals court then reviewed the facts to determine whether the trial court properly found that the corpus delicti had been proven. The facts and testimony were summarized as follows:
In the early morning hours of November 27, 2008, officers of the Fairbanks police went to an apartment building in response to a report of a domestic dispute. This report was made by Langevin's girlfriend, Shari Kelly. Based on what the police discovered when they arrived, Langevin was charged with driving under the influence. Here is the State's evidence, presented in the light most favorable to the jury's verdict:

When the police arrived, they found Langevin in the hallway outside his apartment. Langevin told the officers that he had been standing outside for over an hour—that Kelly had taken his keys and had locked him out of their residence. This statement was verified when the police entered the residence and interviewed Kelly; they found the keys in her possession.

Langevin was visibly intoxicated; in fact, he conceded to the officers that he was “three sheets to the wind”. However, Langevin also stated several times that he had not had anything to drink since he arrived home. Rather, Langevin said, he and Kelly had been drinking at the Manchu Bar earlier that night.

According to Langevin, he and Kelly stayed at the bar until closing time (which, under Fairbanks law, would have been 3:00 a.m.), and then he started driving them home. In his statements to the police, Langevin gave two accounts of how his driving ended. At one point in the interview, Langevin indicated that he drove all the way home, at which point he stopped and said, “I'm not driving no more, period. I'm throwing the keys away.” But at another point in the interview, Langevin said that Kelly grabbed the keys while he was driving ( i.e., while the keys were in the ignition) and turned the truck off.

*2 Langevin pointed out the truck that he had driven. However, the police did not check the truck to see if the engine was warm or to see if there was any other indication that the truck had been recently driven.

Langevin's statement that he had not been drinking since he came home was corroborated by the fact that the officers could not see any containers of alcoholic beverages in Langevin's vicinity.

At Langevin's trial, the State did not call Kelly as a witness, nor did the State present any other witnesses who had actually seen Langevin driving the truck, or who had seen Langevin and Kelly at the Manchu Bar earlier that morning.

The appellate court found that these facts failed to prove the corpus delicti of the offense:

"Apart from the inferences that might be drawn from Langevin's admissions to the police, there was no independent evidence to establish why Langevin and Kelly had quarreled, or when she had taken his keys. While the independent evidence was consistent with Langevin's claim that Kelly took his keys after he drove home under the influence, the independent evidence was just as consistent with the supposition that Kelly took the keys from Langevin as they were leaving the Manchu Bar, to prevent Langevin from assuming physical control of the vehicle while he was under the influence. Indeed, the independent evidence was also just as consistent with the supposition that Langevin and Kelly had not been to the Manchu Bar, but rather had been drinking at home, and then Kelly quarreled with Langevin and threw him out of the apartment—but kept his keys so that he would not be able to drive."
The court then had to decide whether the appropriate remedy was an acquittal or a new trial. In finding that a new trial, rather than acquittal, was appropriate, the court wrote:
"[U]nder Alaska's “evidentiary foundation” approach to corpus delicti, the corroborating evidence is not an element of the State's proof; rather, it is the foundation that must be laid to make the defendant's confession admissible in evidence.

The defendant may raise a corpus delicti objection when the government first offers the confession in evidence, or the defendant may wait until the government concludes its case-in-chief. But either way, the objection is of the same nature. A corpus delicti objection is not the same as an assertion that the government's evidence is legally insufficient to support a verdict in the government's favor. Rather, a corpus delicti objection is an assertion that the government should not be allowed, or should not have been allowed, to introduce the defendant's confession as part of its case.

Because a corpus delicti objection does not challenge the sufficiency of the State's proof, but rather the admissibility of a portion of the State's evidence, when a defendant loses a corpus delicti objection at trial and then successfully pursues the issue on appeal, the defendant's remedy is not a judgement of acquittal. Instead, the defendant's remedy is a new trial. As the United States Supreme Court held in Lockhart v. Nelson, 488 U.S. 33, 40–42; 109 S.Ct. 285, 290–92; 102 L.Ed.2d 265 (1988), and as this Court held in Houston–Hult v. State, 843 P.2d 1262, 1265 n. 2 (Alaska App.1992), a defendant who successfully contends on appeal that the trial judge should have excluded a portion of the government's evidence can not then argue that the government's remaining evidence was insufficient to withstand a motion for judgement of acquittal. Rather, the sufficiency of the evidence is assessed in light of all the evidence presented at the defendant's trial—even the evidence that was wrongfully admitted. See LaFave, Israel, and King, Criminal Procedure, § 25.4(c), Vol. 6, pp. 651–52.
As we noted earlier, had the trial judge sustained Langevin's corpus delicti objection, the judge would have had the discretion to allow the State to re-open its case to cure this deficiency. And we can not know what additional evidence the State might have presented to corroborate Langevin's confession if the trial judge had ruled that the State's existing evidence was not sufficient for this purpose. See Houston–Hult, 843 P.2d at 1265 n. 2"
Therefore, the judgment was vacated and the cause was remanded for a new trial.


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DUI Appeal - Alaska DUI Hearing Officer Bars Evidence Attacking Illegal Stop

In Alvarez v. State of Alaska, --- P.3d ----, 2011 WL 923224 (Alaska) the Supreme Court was asked to decide a number of issues, including whether the exclusionary rule applied to suspension hearings, whether the hearing officer abused the process by refusing to authorize subpoenas, and whether a 2 1/2 year delay before a suspension hearing denied the defendant due process of law.

In answering the issue of the delay, the facts indicated that on September 28, 2003, Alvarez agreed to take a breath test after a DUI arrest, but did not produce a readout until the fifth try. Alvarez recorded a breath alcohol concentration of .091 percent. It appears that at least one other officer was in the room with Perez to help him use the breathalyzer. Officer Perez issued an order revoking her license and giving her notice that the revocation would be effective in seven days in the absence of a request for an administrative hearing. Alvarez was subsequently charged with driving under the influence. She timely requested a hearing, and as a result was issued a temporary license. The hearing was scheduled for six months later. Sometime after the cop arrested the defendant, he was deployed to Iraq. On February 26, 2004, Alvarez wrote to the hearing officer requesting subpoenas for the Ketchikan Public Safety Director and the Records Custodian at the Alaska State Highway Department in Ketchikan. In the same letter, Alvarez also asked her if Perez would be subpoenaed. The hearing officer denied Alvarez's requests for subpoenas, and informed her that she did not intend to subpoena Perez.

The first hearing took place on March 22, 2004. Alvarez was present, and she called a witness to testify that she was sober the night she was arrested. She also testified on her own behalf. The hearing officer decided to continue the hearing until Perez's return from Iraq. The hearing was ultimately rescheduled for March 10, 2006, almost two years later, once Perez had returned. On March 1, 2006, just nine days before the hearing, an attorney entered an appearance on behalf of Alvarez. He immediately requested a continuance to review the evidence. The next day the hearing officer denied the request. On March 9, one day before the hearing, counsel for Alvarez requested the hearing officer to subpoena the evidence custodian for the Ketchikan Police Department, and the hearing officer denied his request. The hearing went ahead telephonically on March 10, but Perez, who was supposed to call in, did not. The hearing officer rescheduled the hearing for April 27.

Perez appeared telephonically at the April 27 hearing. The hearing officer had only two questions for Perez. Alvarez then thoroughly cross-examined Perez, whose memory of events varied. During the hearing, the hearing officer prevented Alvarez from asking Perez questions concerning whether Perez had reasonable suspicion to stop Alvarez. The hearing officer reasoned that the exclusionary rule does not apply to license suspension proceedings, and therefore it was irrelevant whether or not Perez had reasonable suspicion to stop Alvarez. The hearing officer suspended Alvarez's license for 90 days.

On appeal, the defense raised the issue of whether the delay violated the defendant's due process rights. The due process clause entitles an individual to "a meaningful hearing at a meaningful time". Factors to consider in determining whether due process has been violated fall under the Mathews v. Eldridge framework for evaluating whether administrative proceedings satisfy due process. These include (1) the private interest that the official action affects, (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional safeguards, and (3) the government's interest, including fiscal and administrative burdens, in implementing additional safeguards.
The appeals court found that the due process rights of the defendant were not violated, relying heavily on the fact that the defendant was granted a temporary license during the delay. Additionally, the fact that much of the evidence was audio and video recorded also militated against the prejudice of 'faded memories'.
Insofar as the exclusionary rule was concerned, the court found without any logical explanation, that a driver could not challenge the lawfulness of the initial stop (which they suggest involves the exclusionary rule) in a suspension hearing, except where police action “shocks the conscience, or is of a nature that calls for the judiciary, as a matter of judicial integrity, to disassociate itself from benefits derivable therefrom.” In a footnote, the opinion also stated that there may also be an application of the exclusionary rule "where a Fourth Amendment violation stems from a lack of probable cause for a DWI arrest, exclusion may well be mandated because probable cause is an affirmative statutory element of the offense of refusal and is an affirmative element for proof in the license revocation proceeding. Second, ... a search for blood evidence in direct violation of ... statutory prohibitions would probably require exclusion of the test results in a subsequent administrative license revocation proceeding..."

Another interesting argument by the defense that also was rejected, was that the court should have considered the rehabilitation of the driver over the 2 1/2 year delay by the time the suspension was issued. She based the argument on an Alaska case that a driver's license suspension for drunk driving is “remedial” rather than “punitive” because of the direct relationship between the suspension and the State's goal of removing unsafe drivers from the road. The court stated:

"Suspending the driver's license, even after a long delay in which the driver drove unexceptionably, still furthers the administrative goal of protecting the public and removing unfit drivers from the road. The suspension serves to deter future unfit driving, and creates a record for the DMV of a driver's overall fitness. The DMV has wide latitude to carry out its mandate to protect the public from unfit drivers, and we conclude that this suspension is sufficiently related to the DMV's goals that it is “remedial” rather than “punitive,” despite the delay."


NOTE: Overall, there was nothing more that the hearing officer could have done to thwart the defendant's attempt at a fair hearing - from denying subpoenas, to delaying the hearing, and then refusing to sanction the noncompliance of the State. This case is an example of jurisprudence run amok for the purpose of achieving one goal - the removal of accused (but not necessarily guilty) drunk drivers from the road.


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Datamaster calibration errors in Alaska

Image by Getty Images via @daylifeAlaska now joins the ranks of municipalities investigating errors in calculating BAC levels in suspects charged with DUI. As we've discussed in the past, other states include Pennsylvania, Colorado, California, and Indiana. In Alaska, it recently came to light that the Datamasters used to conduct BAC testing in over 2500 cases over the last few years were calibrated improperly. The specific problem is explained in this Anchorage Daily News article as follows:

The problem involves dry gas tanks, also known as “alco bottles,” used in confirming the accuracy of the DataMaster instruments, which drunken-driving suspects blow into to determine breath-alcohol content. The tanks contain a known sample of alcohol that the instrument measures before and after every test to ensure it is functioning properly. When the state crime lab prepares the bottles, the alcohol levels are measured 10 times and the results are entered into a spreadsheet, which calculates the average value. Because air pressure can affect the test results, the average value is then adjusted to a standard barometric pressure from what it was on the day the tank was tested. But back on Feb. 16, 2006, a trainee and an analyst thought the correction factor didn’t appear right and decided to invert the fraction, said Orin Dym, director of the crime lab. And because it was in a spreadsheet that calculated the values automatically, no one noticed until Dec. 8, 2009... By the time the error was discovered, 48 of the 663 tanks prepared in the years involved had been affected, according to the state. That means 2,465 tests were conducted with equipment that was prepared with the inverted fraction and that had been corrected for the barometric pressure in the wrong direction, according to the Department of Public Safety.

The state concedes that the equipment was tested using flawed quality control standards, but claims that the error didn't affect the actual BAC testing--instead, it allegedly impacted only the quality control checks that accompany each test. According to the State, only 2 DUI cases were affected by the error. Alaska criminal defense attorneys aren't buying that theory and at least one is already moving forward with challenging his client's DUI conviction. The Alaska calibration error is just one more example of how tenuous and error-prone the process of measuring blood alcohol levels can be. People's liberty lies in the balance--and in many cases, faulty lab test results or improperly calibrated breath test equipment is the deciding factor. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!