Opinion
Court of Appeals No. A-12380 No. 6711
09-26-2018
GABRIEL DENNIS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-14-2621 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, under contract with the Office of Public Advocacy, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. PER CURIAM.
Gabriel Dennis was convicted, following a jury trial, of felony driving under the influence. He contends that the jury was misinstructed concerning the elements of this offense.
See AS 28.35.030(a)(1), (a)(2) and (n). Dennis's DUI offense was a felony because he had two prior qualifying DUI convictions.
Alaska's DUI statute, AS 28.35.030(a), defines two ways of committing this offense. Under subsection (a)(1) of the statute, a driver commits this offense if they are "under the influence" — i.e., impaired — by alcohol or a controlled substance. Under subsection (a)(2) of the statute, a driver commits this offense 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 person's 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 person's breath.
Dennis was convicted under both of these subsections, but his claim of error involves only the jury instructions pertaining to subsection (a)(2).
Dennis contends that the superior court erred when it refused to instruct the jury that the State had to prove that Dennis's blood alcohol content was .08 percent or higher at the time he was driving. But as the Alaska Supreme Court explained in Valentine v. State, subsection (2) of AS 28.35.030(a) does not require proof of a driver's blood alcohol content at the time of driving. Instead, the "guilty act" proscribed by subsection (a)(2) is driving a motor vehicle after having consumed an amount of alcohol sufficient to cause the driver's blood alcohol content to reach .08 percent or higher within four hours of the act of driving.
Valentine v. State, 215 P.3d 319, 320-21 (Alaska 2009).
Thus, under this subsection as interpreted in Valentine, the State was not required to prove that Dennis's blood alcohol level was .08 percent or greater at the time he drove.
Dennis argues that if AS 28.35.030(a)(2) is interpreted this way, then the statute is unconstitutional because it does not require proof of an actus reus — a "guilty act". But even though the State is not required to prove that a defendant's blood alcohol content was .08 percent or greater at the time the defendant was driving, the State must still prove (1) that the defendant drove a motor vehicle (2) after consuming an amount of alcohol that resulted in a test reading of .08 percent or greater within four hours of the driving.
Id. at 324; AS 28.35.030(s).
This is not a "status" offense; the State must prove that the defendant engaged in the conduct defined by the statute. For example, if a defendant contends that they drank alcoholic beverages after they stopped driving (which was Dennis's defense in this case), then the State is required to prove beyond a reasonable doubt that any post-driving consumption of alcohol did not materially affect the defendant's test result — either because there actually was no post-driving drinking, or because the defendant's blood alcohol level would still have been .08 percent or greater without the post-driving drinking.
AS 28.35.030(s) (suggesting this); see also Wynacht v. State, 2012 WL 880621, at *2 (Alaska App. Mar. 14, 2012) (unpublished) (discussing drinking-after-driving defense).
Moreover, Dennis is essentially arguing that this Court should overturn the interpretation of AS 28.35.030(a)(2) that the Alaska Supreme Court adopted in Valentine. Dennis recognizes this; he asks us to "revisit" the Valentine decision. But this Court has no authority to overturn Alaska Supreme Court precedent.
See, e.g., Wright v. State, 347 P.3d 1000, 1007 (Alaska App. 2015) (rev'd on other grounds by State v. Wright, 404 P.3d 166 (Alaska 2017); Jarnig v. State, 309 P.3d 1270, 1273 (Alaska App. 2013). --------
Accordingly, we reject Dennis's claims of error, and we AFFIRM the judgment of the superior court.