Opinion
Case No. F05-0019 CR (RRB).
August 1, 2005
ORDER DENYING APPEAL
I. INTRODUCTION
Before the Court is Appellant United States of America with an interlocutory appeal. Appellant argues the magistrate court committed reversible error when it determined that Alaska Stat. § 28.35.280 does not define an offense that can be assimilated under the Assimilative Crimes Act, 18 U.S.C. § 13. Appellee Danann Marie Blandov opposes at Docket No. 49 and argues the magistrate court was correct in concluding Alaska Stat. § 28.35.280 should not be assimilated into federal law under the Assimilative Crimes Act because Alaska Stat. § 28.35.280 is not a "criminal offense." The Court agrees.
Clerk's Docket No. 42.
Alaska Stat. 28.35.280 provides in relevant part:
A person who is at least 14 years of age but not yet 21 years of age commits the offense of minor operating a vehicle after consuming alcohol if the person operates or drives a motor vehicle . . . after having consumed any quantity of alcohol.
Clerk's Docket No. 42 at 2.
II. FACTS
Count I of the criminal Information charges Appellee with violating Alaska Stat. § 28.35.280 on December 15, 2004. Count II of the criminal Information charges Appellee with violating Alaska Stat. § 28.35.280 on January 28, 2005. On or about April 26, 2005, Appellee filed a Motion to Dismiss Counts One and Two of Information for Lack of Federal Jurisdiction (Docket No. 5), "based on the fact that the charge of Underage Driving While Impaired, Alaska Stat. § 28.35.280, is an infraction under Alaska law and therefore cannot be assimilated under 18 U.S.C. § 13."
Clerk's Docket No. 5 at 1.
On May 5, 2005, after extensive briefing and after hearing oral argument, the magistrate court granted Appellee's Motion to Dismiss Counts I and II for lack of Federal jurisdiction.
Clerk's Docket No. 42 at 2. See also Clerk's Docket No. 16.
III. STANDARD OF REVIEW
The existence of subject matter jurisdiction is a question of law reviewed de novo.
See Coyle v. P.T. Garuda Indonesia, 363 F.3d 979, 984 n. 7 (9th Cir. 2004); Chang v. U.S., 327 F.3d 911, 922 (9th Cir. 2003); A-Z Intern. v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003); U.S. v. Peninsula Communications, Inc., 287 F.3d 832, 836 (9th Cir. 2002).
IV. DISCUSSION
The Assimilative Crimes Act, 18 U.S.C. § 13, provides in relevant part:
Whoever [upon a Federal enclave] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
Appellee is charged by criminal Information with two counts of violating Alaska Stat. § 28.35.280, Minor operating a vehicle after consuming alcohol. Given the specific facts of the case, the Court concludes the alleged offenses are "infractions." "`[I]nfractions' defined in Title 28 . . . are a class of quasi-criminal offenses which, while they are not serious, are to be disposed of within the criminal justice system." The Court concludes, therefore, that Alaska Stat. § 28.35.280 is a "quasicriminal" offense. Inasmuch as a "quasi-criminal" offense, i.e., an offense that resembles and/or seems to be a criminal offense, falls short of actually being a "criminal offense," the Court further concludes Alaska Stat. § 28.35.380 should not be assimilated under the Assimilative Crimes Act, 18 U.S.C. § 13. Indeed, the Court was able to uncover but one federal case where a "quasi-criminal offense" was assimilated under the Assimilative Crimes Act, 18 U.S.C. § 13. The statute at issue in that case, however, was a "violation," not an "infraction."
Clerk's Docket No. 42 at 6.
State v. Euteneier, 31 P.3d 111, 113 (Alaska App. 2001) (emphasis added).
Barron's Law Dictionary 380 (1984); Random House Webster's Dictionary 540 (1993).
See U.S. v. Chalmers, No. AD 092121, 092122, 1986 WL 12680 (D.N.J. Oct 9, 1986); William G. Phelps, J.D., Annotation,Assimilation, Under Assimilative Crimes Act ( 18 U.S.C. § 13), of State Statutes Relating to Driving While Intoxicated or Under Influence of Alcohol, 175 A.L.R. Fed. 293, § 12 (2002).
In Alaska, an "offense" is defined as: "conduct for which a sentence of imprisonment or fine is authorized; an offense is either a crime or a violation." By definition, therefore, an "infraction" is not an "offense." As a result, Alaska Stat. § 28.35.280, a "quasi-criminal offense" and/or an "infraction," should not be assimilated under the Assimilative Crimes Act, 18 U.S.C. § 13.
V. CONCLUSION
For the aforesaid reasons, the Court determines Alaska Stat. § 28.35.280 should not be assimilated under the Assimilative Crimes Act, 18 U.S.C. § 13. Therefore, the decision of the magistrate court dismissing Counts I and II of the criminal Information for lack of federal jurisdiction (Docket No. 16) is hereby AFFIRMED.