Revisor’s notes. —

The provisions of this title were redrafted in 1984 to remove personal pronouns pursuant to § 4, ch. 58, SLA 1982, and in 1984, 1989, 1994, and 2006 to make other minor word changes under AS 01.05.031 .

Administrative Code. —

For motor vehicle and driving offenses: rules of the road, see 13 AAC 02.

For motor vehicle and driving offenses: vehicle equipment and inspection, see 13 AAC 04.

For operations, wheeled vehicles, see 17 AAC 25.

For buses, see 17 AAC 28.

Notes to Decisions

Stated in

Buckalew v. Holloway, 604 P.2d 240 (Alaska 1979).

Chapter 01. Alaska Uniform Traffic Laws Act.

Sec. 28.01.010. Provisions uniform throughout state.

  1. The provisions of this title and the regulations adopted under this title are applicable within all municipalities of the state.  A municipality may not enact an ordinance that is inconsistent with the provisions of this title or the regulations adopted under this title.  A municipality may not incorporate into a publication of traffic ordinances a provision of this title or the regulations adopted under this title without specifically identifying the provision or regulation as a state statute or regulation.
  2. A municipality may adopt by reference all or a part of this title and regulations adopted under this title, and may request and shall receive from the Department of Commerce, Community, and Economic Development and, as appropriate, either the Department of Administration or the Department of Public Safety, assistance in the drafting of model ordinances for adoption by reference. Notwithstanding (a) of this section, a municipality may enact necessary ordinances to meet specific local requirements.
  3. A copy of all traffic ordinances enacted by a municipality shall be forwarded to the commissioner of public safety and specific notice of any inconsistent ordinances shall be given by the municipality when the copy of the ordinances is forwarded. So far as practicable, the section number identifying a particular municipal traffic ordinance must be the same as the section number identifying a corresponding provision of this title or regulations adopted under this title.
  4. A municipality shall erect necessary official traffic control devices on streets and highways within its jurisdiction that as far as practicable conform to the current edition of the Alaska Traffic Manual prepared by the Department of Transportation and Public Facilities. The municipality
    1. shall post a sign indicating that the school is a “drug-free school zone” at each location in which it has installed a sign identifying the location of a school;
    2. may post a sign at each recreation and youth center indicating that the center is a “drug-free recreation and youth center zone”; in this paragraph, “recreation or youth center” has the meaning given in AS 11.71.900 .
  5. Copies of all traffic ordinances enacted by a municipality shall be incorporated in a manual and made available to the general public.
  6. Regulations adopted pertaining to a matter partially or wholly governed by this title must be mutually consistent and compatible, and must complement each other, as far as practicable. For the purpose of uniformity, the Department of Administration or the Department of Public Safety, whichever is appropriate, shall offer and receive reasonable assistance in the coordination and adoption of these regulations.
  7. Regulations adopted under this title must, as far as practicable, conform to the recommendations of the current edition of the Uniform Vehicle Code adopted by the National Committee on Uniform Traffic Laws and Ordinances.
  8. A municipality may issue a citation for a traffic offense only if the citation complies with the provisions of AS 12.25.175 and 12.25.200 .
  9. A municipal parking citation trial or appeal process and fees charged for it must be substantially similar to the applicable trial or appeal process adopted by the Alaska Supreme Court or imposed by law.
  10. A court may not enforce a municipal ordinance prescribing a penalty for driving while under the influence of an alcoholic beverage, inhalant, or controlled substance or refusal to submit to a chemical test unless that ordinance imposes ignition interlock device requirements under this title.

History. (§ 1 ch 91 SLA 1974; am §§ 1, 2 ch 241 SLA 1976; am §§ 1 — 5 ch 178 SLA 1978; am § 7 ch 63 SLA 1991; am § 6 ch 70 SLA 1994; am § 3 ch 47 SLA 1996; am E.O. No. 99 §§ 21 — 23 (1997); am § 2 ch 97 SLA 2008; am § 38 ch 29 SLA 2010)

Revisor’s notes. —

Under E.O. No. 39, § 11, a reference to Department of Transportation and Public Facilities was substituted for Department of Highways in (d) of this section in 1977. In 1999, in this section, “Department of Community and Economic Development” was substituted for “Department of Community and Regional Affairs” in accordance with § 91(a)(7), ch. 58, SLA 1999. In 2004, in (b) of this section, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (h), substituted “AS 12.25.175 and 12.25.200 ” for “AS 12.25.200 ”.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendment of (h) of this section applies “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Notes to Decisions

A city ordinance, to the extent it is in conflict with the state traffic regulations, constitutes an exercise of home-rule power expressly prohibited by the legislature. Adkins v. Lester, 530 P.2d 11 (Alaska 1974).

The word “inconsistent” describes that which reveals lack of uniformity in over-all purpose or design. Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978).

Similarity to Uniform Vehicle Code. —

Subsection (a) is similar in substance and purpose to the provisions of § 15-101 of the Uniform Vehicle Code Annotated adopted by the National Committee on Uniform Traffic Laws and Ordinances in 1962. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

Standard governing ordinance validity. —

Under the express terms of subsection (a) it is clear that inconsistency is the standard that governs the validity of a local ordinance regulating the operation of a motor vehicle. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

Nature of inconsistency. —

When the question of inconsistency between a local ordinance and state law under subsection (a) is raised, the issue is not whether there is a mere discrepancy between the state law and local ordinance; rather, the inquiry must focus on whether any discrepancy in the ordinance impedes or frustrates policy expressed by state law. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

Municipal penalties greater than state penalties are permitted. —

Because the legislature has explicitly granted municipalities the power to enact forfeiture ordinances that are inconsistent with the corresponding provisions of state law, municipalities do not violate state law when they exercise this power. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

The saving provisions of subsection (b) by their express terms require a twofold showing to be made before an ordinance inconsistent under subsection (a) can be upheld. First, it is incumbent upon the municipality to demonstrate the existence of a “specific local requirement.” Second, the municipality must show that its ordinance was “necessary,” in other words, that the specific local problem could not be addressed in a manner consistent with the provisions of this title. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

Posting of state-wide speed limits not required. —

Although subsection (d) of this section states that a municipality shall erect signs, the effectiveness of the 30 mile per hour limit set by the state in the Alaska Administrative Code is not conditioned upon the posting of signs. Bailey v. Lenord, 625 P.2d 849 (Alaska 1981).

Ordinance held inconsistent. —

Municipal ordinance that prohibited driving with a blood alcohol level of .10 percent or more was inconsistent with AS 28.35.033 ; defendant’s convictions under the ordinance were reversed. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

Ordinance held not inconsistent. —

There was no unlawful inconsistency between Anchorage, Alaska, Mun. Code 9.28.019.B (ordinance) and AS 28.15.291 under subsection (a) of this section, where the ordinance did not impede or frustrate state policy or the enforcement of state law due to the fact that its culpable mental state for driving under the influence was recklessness rather than negligence, as provided in AS 28.15.291 ; the ordinance did not authorize conduct that the Alaska legislature had forbidden or forbid conduct that the legislature had authorized, it simply made it harder for the municipality to prosecute someone for the same conduct. Lampley v. Municipality of Anchorage, 159 P.3d 515 (Alaska Ct. App. 2007).

City code for Juneau, § 72.02.210(b), does not violate subsection (a) because it regulates or prohibits conduct, unnecessary tire-spinning, that is not inconsistent with state traffic law. State v. Hamilton, 216 P.3d 547 (Alaska Ct. App. 2009).

District court did not err when it found that there was no significant inconsistency between the municipal and state laws, and defendant was lawfully stopped for driving while his license was suspended. Jenkins v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. Aug. 11, 2010), (memorandum opinion).

Home rule ordinance held not inconsistent with former AS 28.15.300(a). —

Home rule ordinance which prohibited driving a motor vehicle while one’s license is suspended or revoked as did former AS 28.15.300(a) but which was not limited to public highways as was former AS 28.15.300(a) was not in conflict with former AS 28.15.300(a) and, therefore, was not invalid. Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978).

A slight discrepancy between former AS 28.15.300(a) and an ordinance which prohibited the same acts but was not limited to public highways, i.e., the driving of motor vehicles on private property, was not of such a nature that the exercise of municipal power has been directly or indirectly prohibited by legislative action. Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978).

The overall or basic purpose or design of former AS 28.15.300(a) and a home rule ordinance which prohibited the same acts but was not limited to public highways is the same: to prohibit the driving of a motor vehicle while one’s license is suspended or revoked. Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978).

The fact that former AS 28.15.300(a) referred to the license suspension being effected by a “court of competent jurisdiction” did not mean that the ordinance was inconsistent with the statute because it might have encompassed a valid license suspension effected by a state agency rather than by a court. Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978).

Noncompliance with subsection (c) did not illustrate any inconsistency between an ordinance prohibiting the driving of a motor vehicle while one’s license is suspended or revoked and former AS 28.15.300(a). Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978).

Jury instructions. —

Although a city ordinance set the speed limit on the streets in question at 20 miles per hour, the trial court did not err in instructing the jury that the applicable speed limit was the state-wide limit of 30 miles per hour since the city did not post speed limit signs as required by the Alaska Administrative Code. Bailey v. Lenord, 625 P.2d 849 (Alaska 1981).

Differences in sentencing under state or municipal law. —

Municipal sentencing provision that allowed concurrent sentences for convictions of driving under the influence and refusing to submit to a chemical test under Anchorage, Alaska, Mun. Code 9.28.020A, 9.28.022.C was not fatally inconsistent with AS 28.35.032(a) for purposes of subsection (a) of this section because the fact that the district court might have different sentencing authority, depending on whether a motorist is charged under state or municipal law, did not affect the statutory goal of statewide uniformity of traffic laws. Lampley v. Municipality of Anchorage, 159 P.3d 515 (Alaska Ct. App. 2007).

Stated in

Anchorage v. Richards, 654 P.2d 797 (Alaska Ct. App. 1982).

Cited in

Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982); Cooley v. Municipality of Anchorage, 649 P.2d 251 (Alaska Ct. App. 1982); Mangiapane v. Municipality of Anchorage, 974 P.2d 427 (Alaska Ct. App. 1999); Dunn v. Municipality of Anchorage, 100 P.3d 905 (Alaska Ct. App. 2004).

Sec. 28.01.015. Municipal impoundment and forfeiture.

  1. Notwithstanding other provisions in this title, a municipality may adopt an ordinance providing for the impoundment or forfeiture of a
    1. motor vehicle, watercraft, or aircraft involved in the commission of an offense under AS 28.35.030 , 28.35.032 , or an ordinance with elements substantially similar to AS 28.35.030 or 28.35.032 ;
    2. motor vehicle involved in the commission of an offense under AS 28.15.291 or an ordinance with elements similar to AS 28.15.291 ;
    3. motor vehicle used by a person whose license is suspended under AS 28.22.041 ;
    4. motor vehicle used by a person who fails to carry proof of insurance as required under AS 28.22.019 ; or
    5. motor vehicle used by a person who has $1,000 or more in delinquent traffic fines for moving violations committed within the municipality.
  2. An ordinance adopted under (a) of this section may
    1. include a fee for the administrative costs incurred by the municipality; and
    2. be more stringent than or the same as but may not be less stringent than applicable provisions under this title or regulations adopted under this title.

History. (§ 6 ch 60 SLA 2002; am § 1 ch 64 SLA 2007)

Notes to Decisions

Construction. —

The legislature’s failure to specifically mention AS 12.55.080 12.55.085 in the wording of this section does not manifest a legislative intent to bar municipalities from enacting mandatory forfeitures. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Municipal penalties greater than state penalties are permitted. —

Because the legislature has explicitly granted municipalities the power to enact forfeiture ordinances that are inconsistent with the corresponding provisions of state law, municipalities do not violate state law when they exercise this power. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Cited in

Good v. Mun. of Anchorage, 450 P.3d 693 (Alaska Ct. App. 2019).

Sec. 28.01.017. Municipal regulation of cellular telephone use.

Notwithstanding other provisions of this title, a municipality may adopt an ordinance prohibiting the use of a cellular telephone by a person driving a motor vehicle while on school property or in an active school zone designated under the current edition of the Alaska Traffic Manual prepared by the Department of Transportation and Public Facilities. A municipal ordinance adopted under this section may not prohibit the hands-free use of a cellular telephone.

History. (§ 1 ch 96 SLA 2018)

Effective dates. —

Section 1, ch. 96, SLA 2018, which enacted this section, took effect on November 26, 2018.

Sec. 28.01.020. Short title.

This chapter may be cited as the Alaska Uniform Traffic Laws Act.

History. (§ 3 ch 241 SLA 1976)

Chapter 05. Administration.

Administrative Code. —

For regulations of the Department of Administration, see 2 AAC 02 — 2 AAC 05. For regulations of the Department of Public Safety, see 13 AAC 02 — 13 AAC 04.

Article 1. Powers and Duties of Departments of Public Safety and Administration.

Sec. 28.05.010. Powers and duties. [Repealed, § 6 ch 178 SLA 1978.]

Sec. 28.05.011. Duty of commissioners to adopt regulations.

  1. The commissioner of public safety shall, unless otherwise provided by statute, adopt regulations in compliance with AS 44.62 (Administrative Procedure Act) necessary to carry out the provisions of this title and other statutes whose administration is vested in the Department of Public Safety. The regulations must include
    1. rules of the road relating to the driving, stopping, standing, parking, and other conduct of vehicles, to pedestrians, and to official traffic control devices; regulations adopted under this paragraph may not prohibit the use of an electric personal motor vehicle on a sidewalk, bike path, or vehicular way or area restricted to the use of pedestrians; limitations on regulation of electric personal motor vehicles imposed under this paragraph do not apply to a municipal ordinance regulating electric personal motor vehicles enacted to meet local requirements;
    2. minimum equipment for vehicles, including minimum standards of compliance to be met by manufacturers and vehicle sales and repairs businesses;
    3. inspection of vehicles other than commercial motor vehicles, and the removal of vehicles from areas of public use when they are found to be in a defective or unsafe condition;
    4. abandonment of vehicles;
    5. management of records of the Department of Public Safety required for that department’s administration of this title and its regulations adopted under this title, including provisions for ensuring the accuracy of information contained in automated and manual information retrieval systems;
    6. definitions of words and phrases used in this title and in regulations adopted under this title unless otherwise provided by statute;
    7. certification and regulation of junk yards.
  2. The commissioner of administration shall, unless otherwise provided by statute, adopt regulations in compliance with AS 44.62 (Administrative Procedure Act) necessary to carry out the provisions of this title whose administration is vested in the Department of Administration. The regulations must include, but are not limited to,
    1. registration, titling, and transfer of vehicles;
    2. licensing of drivers of vehicles and procedures for obtaining limited license privileges;
    3. financial responsibility relating to vehicles other than commercial motor vehicles;
    4. management of records of the Department of Administration required for that department’s administration of this title and its regulations adopted under this title, including provisions for ensuring the accuracy of information contained in automated and manual information retrieval systems;
    5. definitions of words and phrases used in this title and in regulations adopted under this title unless otherwise provided by statute;
    6. registration of motor vehicle, trailer, and semi-trailer dealers;
    7. regulations necessary to implement a commercial motor vehicle driver’s licensing program; regulations adopted under this paragraph must provide for a waiver of the driver skills test for drivers with recent military commercial vehicle driving experience as allowed by federal law.
  3. If the department publishes a manual related to the safe and lawful operation of a motor vehicle, the manual must include the rights and responsibilities of drivers when encountering or being stopped by a peace officer.

History. (§ 6 ch 178 SLA 1978; am § 3 ch 77 SLA 1982; am § 1 ch 119 SLA 1990; am § 1 ch 3 SLA 1992; am E.O. No. 98 § 5 (1997); am E.O. No. 99 §§ 24, 25 (1997); am § 1 ch 142 SLA 2002; am § 5 ch 80 SLA 2003; am § 1 ch 27 SLA 2013; am § 7 ch 8 SLA 2017)

Revisor’s notes. —

Under § 18, E.O. 98, § 5 of E.O. 98 and §§ 24 and 25 of E.O. 99 were reconciled by deleting from subsection (a) duties concerning financial responsibility for commercial motor vehicles and a commercial motor vehicle safety inspection program and by, in paragraph (a)(3), inserting “other than commercial motor vehicles” after “inspection of vehicles.”

Cross references. —

For provisions relating to commercial motor vehicles, see AS 19.10.060 and 19.10.300 - 19.10.399 ; for provisions relating to size, weight, and load limitations, see AS 19.10.060 ; for transitional provisions concerning the 1997 transfer of functions, see § 17, E.O. 98 and § 77, E.O. 99.

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

For classified driver's licenses, see 2 AAC 90, art. 4.

For traffic offenses demerit point system, see 2 AAC 90, art. 5.

For standards for licensing of drivers, see 2 AAC 90, art. 6.

For mandatory auto insurance, see 2 AAC 90, art. 7.

For definitions, see 2 AAC 90, art. 8.

For registration, title, and transfer, see 2 AAC 92, art. 1.

For definitions, see 2 AAC 92, art. 3.

For hearings, see 2 AAC 93, art. 1.

For definitions, see 2 AAC 93, art. 2.

For traffic-control devices, see 13 AAC 2, art. 1.

For use of roadway, see 13 AAC 2, art. 2.

For right-of-way, see 13 AAC 2, art. 3.

For pedestrian rights and duties, see 13 AAC 2, art. 4.

For turning, starting, and signals on turning — starting and stopping, see 13 AAC 2, art. 5.

For special stops required, see 13 AAC 2, art. 6.

For speed restrictions, see 13 AAC 2, art. 7.

For stopping, standing and parking, see 13 AAC 2, art. 8.

For special rules for bicycles, nonmotorized conveyances, motorcycles, and motor-driven cycles, see 13 AAC 2, art. 9.

For special rules for snowmobiles and other off-highway vehicles, see 13 AAC 2, art. 10.

For traffic-control devices, see 13 AAC 3, art. 1.

For use of roadway, see 13 AAC 3, art. 2.

For pedestrian rights and duties, see 13 AAC 3, art. 3.

For speed restrictions, see 13 AAC 3, art. 4.

For scope and effect of regulations — standards and inspections, see 13 AAC 4, art. 1.

For lighting equipment, see 13 AAC 4, art. 2.

For brakes and other equipment, see 13 AAC 4, art. 4.

For equipment on motorcycles, motor-driven cycles, and bicycles, see 13 AAC 4, art. 5.

For equipment on snowmobiles and off-highway vehicles, see 13 AAC 4, art. 6.

For forensic alcohol testing, see 13 AAC 63.

Effect of amendments. —

The 2013 amendment, effective August 31, 2013, in (b)(7), added “; regulations adopted under this paragraph must provide for a waiver of the driver skills test for drivers with recent military commercial vehicle driving experience as allowed by federal law.”

The 2017 amendment, effective August 17, 2017, added (c).

Opinions of attorney general. —

Statutes may be enforced on streets not within state highway system. The Department of Public Safety has the authority to enforce all traffic statutes and regulations upon dedicated or public subdivision streets, regardless of whether they are in the state highway system. 1965 Alas. Op. Att'y Gen. No. 10.

Notes to Decisions

Annotator’s notes. —

Many of the cases cited below were decided under former AS 28.05.030.

Power of commissioner includes regulation of motorcycle construction and safety apparel. —

The power of the commissioner of public safety to adopt regulations governing rules of the road has been interpreted as including the regulation of motorcycle construction and safety apparel insofar as such regulations are reasonable and do not violate constitutional rights of the individual. Kingery v. Chapple, 504 P.2d 831 (Alaska 1972).

Wholesale frontal assault on traffic laws not intended. —

Although the supreme court strongly presumes that most traffic regulations do in fact provide standards of reasonable behavior, it is conceivable that in highly unusual cases certain traffic laws may be so obscure, oblique, or irrational that they could not be said as a matter of law to provide such a standard. In the event the courts of Alaska are faced with such arbitrary and unreasonable laws, they may provide that violations thereof merely indicate some evidence of negligence or no evidence at all. But it should be emphasized that the supreme court does not intend to signify a wholesale frontal assault on Alaska’s wise and comprehensive traffic laws. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Certain class of individual to be protected from certain type of harm. —

In promulgating traffic laws and regulations the legislature, sometimes expressly but more often by implication, indicates a policy that a certain class of individual be protected from a certain type of harm. For example, in the case at bar the regulation requiring drivers to remain within their lanes was at least partly designed to protect oncoming motorists against head-on collisions. By enacting the regulation pursuant to statutory authority, the Department of Public Safety has implicitly indicated that no reasonable person would move from his lane before ascertaining it could be done safely. Therefore, before a plaintiff is entitled to an instruction defining the violation as negligence per se, he must first demonstrate that he is among the protected class and, second, that the injury was caused by a harm against which the law was designed to protect. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Restatement rules adopted. —

By adopting these rules the supreme court provides a basic method of determining extenuating circumstances which will excuse the violation. The list is not rigid. Comment a to § 288A of the Restatement states: “The list of situations in which a violation may be excused is not intended to be exclusive. There may be other excuses.” The rule will cover most situations. Other extenuating circumstances will have to depend upon the facts of each case. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

The fear that obscure or antiquated laws may be utilized to trap the unwary should prove groundless under the above rules. In the first place the court will be free under SEC 286 to refuse to adopt such a law as the standard of a reasonable man. However, the supreme court wishes to caution both bench and bar that it believes most traffic laws in this state do in fact represent reasonable behavioral standards. The supreme court does not intend that the inclusion of Section 288B(2) as part of the adopted rules signals a wholesale assault upon Alaska traffic laws. The purpose of adoption of that subsection is to provide an alternative in the rare instance in which, for one reason or another, the violated law cannot fairly be said to require reasonable behavior. Needless to say, in its review of such challenged laws the supreme court shall cast a strong presumption in favor of the legislative enactment or regulation. The supreme court expects the trial courts of this state to do the same. However, in the unlikely event the court does not adopt the statutory command as the standard of reasonable behavior, it may either permit the violation to be introduced as evidence relevant to the negligence issue — or it may exclude it altogether. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

The general rule to be applied in the vast majority of cases remains that all men are presumed to know the law. And if a reasonably prudent man would take precautions in addition to those statutorily required, the court may, of course, find defendant negligent for failing to do so. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

It is certainly fair to require all drivers, who must be tested on these traffic laws and regulations before they may obtain driver’s licenses, to know and obey the rules of the road. In few areas is the ancient presumption of universal legal knowledge more fairly applied. It is both just and accurate to presume that all reasonable drivers know and obey the law, and to hold them civilly as well as criminally responsible for any unexcused violations thereof. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Statutes, regulations, and ordinances comprising the rules of the road represent the fundamental guidelines by which society transports people and things in an orderly manner from place to place. To abrogate these rules would not only lead to legal chaos, it would drastically impair the functioning of our necessarily mobile society and economy. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Traffic laws serve two purposes. —

Traffic laws, including statutes, regulations, and local ordinances, serve two purposes in this state. First, they provide criminal penalties, often minor, for their violation. Second, they set the standard of a reasonable man and thereby require a finding of negligence in a tort action if the plaintiff can prove that the defendant committed an unexcused violation. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Traffic laws prescribe the legal duty or standard of care owed by the driver to the general public who may be injured if such standard is not met. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

And a violation of a statute, regulation, or ordinance is a breach of that duty and, unless excused, results in a prima facie showing that the defendant did not act towards the plaintiff as would a reasonably prudent driver. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Civil consequences of violation of traffic statute, regulation, or ordinance. —

Violation of a statewide administrative traffic regulation adopted pursuant to statutory authority must be equated with a violation of a traffic statute itself. The violation of either a traffic statute or regulation adopted by the court as a standard of reasonable behavior is negligence per se. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

The violation-of-statute doctrine assists plaintiff to establish a firm duty to impose upon the defendant. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

For an examination of the theoretical underpinnings of the doctrine of statute-based negligence and comparison of the differing views of the various jurisdictions, see Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Doctrine of res ipsa loquitur. —

While res ipsa loquitur procedurally assists the plaintiff in his proof in certain incomplete factual settings, the violation-of-statute doctrine assists him to establish a firm duty to impose upon the defendant. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Res ipsa loquitur procedurally assists the plaintiff in his proof in certain incomplete factual settings. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

A violation of a traffic law is negligence per se. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971). But see Clabaugh v. Bottcher, 545 P.2d 172 (Alaska 1976).

The violation of either an applicable traffic statute or a regulation which has been adopted by the court as a standard of reasonable behavior is negligence per se. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971). But see Clabaugh v. Bottcher, 545 P.2d 172 (Alaska 1976).

A violation of a statewide administrative traffic regulation adopted pursuant to statutory authority must be equated with a violation of a traffic statute itself. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971). But see Clabaugh v. Bottcher, 545 P.2d 172 (Alaska 1976).

Difference between negligence per se and mere evidence of negligence. —

Assuming causation is shown, if a plaintiff proves that a defendant violated a traffic law prescribing a standard of reasonable behavior, and the defendant produces nothing to the contrary, plaintiff’s case is then sufficiently strong to warrant a judgment in his favor. However, if the law is not held to establish a standard of reasonable behavior and its violation is further held merely to constitute evidence of negligence which may, but need not, be considered determinative by the trier of fact, the judge need not render a verdict for the plaintiff. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Judgment for plaintiff in absence of defense. —

Unless the defendant offers evidence of some defense, judgment for the plaintiff will be required in those jurisdictions in which a traffic violation is negligence in itself. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Prima facie case satisfies burden of proof. —

When the plaintiff establishes a prima facie case, that is enough to satisfy the burden of proof when the evidence is not in conflict. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Certain traffic violations may be excused. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

One such excuse can be that the violation was caused by outside forces, either man-made or natural, over which the actor had no control. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Contributory negligence. —

Once a traffic violation has been proved, the defendant can offer any one of several defenses. For example, the contributory negligence of the plaintiff will be such a defense. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Violation excused under § 288A(2)(c) of Restatement. —

If a trial court holds that a statute sets forth the standard of reasonable behavior and admits evidence of its violation, the court still may, in appropriate cases, permit the defendant to introduce evidence that although he did in fact violate the law, its meaning was so obscure or unreasonable that he acted with all due care in attempting to obey it. In this case his violation could be excused under § 288A(2)(c) of the Restatement. Ferrell v. Baxter, 484 P.2d 250 (Alaska 1971).

Construction of 13 AAC 02.485(a). —

Study of 13 AAC 02.485(a), which provides that “a driver of a vehicle may not back the vehicle unless the movement can be made with safety and without interfering with the traffic,” and this section, under which this regulation was promulgated, reveal no reason why the regulation should be construed to prohibit an emergency excuse. Wilson v. Sibert, 535 P.2d 1034 (Alaska 1975).

For application of rules and regulations governing roads and highways to military base in absence of federal statute, see Hundley v. United States, 131 F. Supp. 655, 15 Alaska 551 (D. Alaska 1955).

Cited in

Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982); Department of Transp. & Pub. Facilities v. Sanders, 944 P.2d 453 (Alaska 1997).

Collateral references. —

Power to limit weight of vehicle or load thereon with respect to use of highways, 75 ALR2d 376.

Sec. 28.05.015. Wheeled adjuncts.

The department shall, unless prohibited by an ordinance of a governmental subdivision of the state, allow pedestrians to use wheeled adjuncts, such as rollerblades, roller skates, and roller skis, on roadways and vehicular ways in addition to areas available for use by bicycles.

History. (§ 1 ch 81 SLA 2004)

Revisor’s notes. —

Enacted as AS 28.05.011(c) and renumbered in 2004.

Sec. 28.05.020. Authority of highway commissioner. [Repealed, § 6 ch 178 SLA 1978.]

Sec. 28.05.021. Commissioners to enter compacts and reciprocal agreements.

  1. The commissioner of administration may, under terms and conditions best calculated to promote the interests of the state, enter into a compact or agreement with an authorized representative of another jurisdiction in a matter relating to driver licensing, vehicle registration, or other activity authorized under this title, the administration of which is vested in the Department of Administration. The commissioner of public safety may, under the same terms and conditions, enter into a compact or agreement with an authorized representative of another jurisdiction in a matter relating to an activity authorized under this title, the administration of which is vested in the Department of Public Safety. A compact or agreement affecting state finances or driving privileges must be approved by adoption of a concurrent resolution approved by a majority vote of each house of the legislature before it becomes effective.
  2. [Repealed, § 28 ch 90 SLA 1991.]

History. (§ 6 ch 178 SLA 1978; am § 47 ch 138 SLA 1986; am § 28 ch 90 SLA 1991; am E.O. No. 99 § 26 (1997))

Secs. 28.05.025, 28.05.030. Authority of Department of Commerce and public safety commissioner. [Repealed, § 6 ch 178 SLA 1978.]

Sec. 28.05.031. Department of Public Safety to publish statutes and regulations relating to vehicles, vehicle use, and pedestrians.

  1. The Department of Public Safety shall publish current state statutes and regulations relating to vehicles and their driving or movement, to drivers of vehicles, and to pedestrians. The cost of publication shall be jointly shared by that department and other state agencies that administer statutes and regulations included in the publication prescribed under this section.
  2. A single copy of a facsimile of the publication prescribed in (a) of this section shall be available to the public without charge at all offices of the Department of Administration that administer the statutes in this title and at all offices of the Department of Public Safety. However, a municipality may request and receive without charge a reasonable number of copies of the publication.

History. (§ 6 ch 178 SLA 1978; am E.O. No. 99 § 27 (1997))

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Sec. 28.05.035. Approval of accident prevention courses.

For the purposes of AS 21.96.025(a)(4) , the commissioner may approve driver education courses intended to prevent motor vehicle accidents and promote safe driving practices.

History. (§ 2 ch 9 SLA 1988; am § 222 ch 67 SLA 1992)

Revisor’s notes. —

In 2010, “AS 21.96.025 ” was substituted for “AS 21.89.025” to reflect the 2010 renumbering of AS 21.89.025.

Sec. 28.05.040. Duty of public safety commissioner. [Repealed, § 6 ch 178 SLA 1978.]

Sec. 28.05.041. Forms, applications, and oaths.

  1. The commissioner of administration shall prescribe and provide suitable application forms, certificates of title and registration, driver’s licenses, and all other forms necessary to carry out the provisions of this title and regulations adopted under this title, the administration of which is vested in the Department of Administration. The commissioner of public safety shall prescribe and provide suitable forms necessary to carry out the provisions of this title and regulations adopted under this title, the administration of which is vested in the Department of Public Safety, including a standard citation form that meets the requirements of AS 12.25.175 and 12.25.200 and that is in a form necessary to identify the offender and the offense and otherwise necessary to meet the needs of the public safety and the administration of justice as required under AS 12.25.175 and 12.25.200 .
  2. The Department of Administration shall examine and approve or disapprove any application for registration of, or certificate of title for, a vehicle, and for a driver’s license and any other application made to the department. The department may make any investigation it considers necessary and may require additional information before approving an application. The department shall reject an application if it is not satisfied with the genuineness, regularity, or legality of the application, the truth of a statement contained in it, or the adequacy or sufficiency of information requested by the department. The department shall reject an application when the applicant is not entitled to issuance of the registration, title, license, or permit for which the person is applying or for any other reason required by law.
  3. The commissioner of public safety and officers and employees of the Department of Public Safety designated by that commissioner, and the commissioner of administration and officers and employees of the Department of Administration designated by that commissioner, may, for the purpose of administering this title and regulations adopted under this title, administer oaths and acknowledge signatures, and do so without charging a fee.

History. (§ 6 ch 178 SLA 1978; am § 7 ch 76 SLA 1987; am E.O. No. 99 § 28 (1997); am § 39 ch 29 SLA 2010)

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

For driver training schools and instructors, see 2 AAC 91, art. 1.

For registration, title, and transfer, see 2 AAC 92, art. 1.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in the second sentence of (a), substituted “AS 12.25.175 and 12.25.200 ” for “AS 12.25.200 ” following “meets the requirements of” and substituted “AS 12.25.175 and 12.25.200” for “that section” following “justice as required under”.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendment of (a) of this section applies “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Sec. 28.05.045. Voter registration.

The administrative component of the department that administers motor vehicle and driver’s license laws shall comply with AS 15.07.055 to serve as a voter registration agency to the extent required by state and federal law, including 42 U.S.C. 1973gg (National Voter Registration Act of 1993) and this section. A state resident, who will be 18 years of age or older within 90 days, who applies in an office of the department for a driver’s license, identification card issued under AS 18.65.310 , or vehicle registration under AS 28.10 shall at the time of application be advised by the division that the resident may also register to vote. The application submitted by the resident shall serve as an application for voter registration unless the resident fails to sign the voter registration portion of the application. The department shall forward completed voter registration forms to the division of elections. The department shall prominently display notice of the right to apply for voter registration at each place that the public may apply for a driver’s license, identification card, or vehicle registration.

History. (§ 3 ch 47 SLA 1989; am § 15 ch 111 SLA 1994; am E.O. No. 99 § 29 (1997))

Sec. 28.05.048. Sex offender registration.

The department shall display notice of the registration requirements of AS 12.63.010 at a place where the public may apply for a driver’s license, identification card, or vehicle registration.

History. (§ 6 ch 41 SLA 1994)

Notes to Decisions

Constitutionality. —

For discussion of whether the sanction of the Registration Act, ch. 41, SLA 1994, entails an affirmative disability or restraint, whether the sanction has historically been regarded as punitive, whether the sanction depends upon a finding of scienter, whether the sanction will operate to promote traditional punishment objectives, whether the sanction applies to behavior which is already a crime, whether there is an alternative non-punitive purpose for the sanction, and whether the sanction is excessive in relation to the alternative purpose, see Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), rev'd, 248 F.3d 832 (9th Cir. Alaska 2001), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

The Registration Act is likely to violate the prohibition on ex post facto legislation, because the law includes a provision providing for public dissemination of information concerning sex offenders whose convictions antedate the Registration Act. Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), rev'd, 248 F.3d 832 (9th Cir. Alaska 2001), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Sex offenders required to register with police authorities were not likely to prevail on their assertion that the Registration Act, ch. 41, SLA 1994, and specifically the requirement to submit oneself to the state troopers or local police for photographs and fingerprinting, was an unreasonable search or seizure. Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), rev'd, 248 F.3d 832 (9th Cir. Alaska 2001), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Sex offenders required to register with police authorities do not appear to be able to establish a reasonable expectation of privacy in the information required to be disclosed by the Registration Act, ch. 41, SLA 1994. Rowe v. Burton, 884 F. Supp. 1372 (D. Alaska 1994), rev'd, 248 F.3d 832 (9th Cir. Alaska 2001), reversed on other grounds, sub nom. Doe v. Otte, 248 F.3d 832 (9th Cir. Alaska), amended, (9th Cir. 2001), amended, 259 F.3d 979 (9th Cir. 2001).

Sec. 28.05.050. Publication of laws. [Repealed, § 6 ch 178 SLA 1978.]

Sec. 28.05.051. Suspended or revoked documents.

  1. When the department suspends or revokes a vehicle registration, certificate of registration, registration plate, permit, or certificate of title or suspends, cancels, or revokes a license, the owner or person in possession of the document shall, immediately upon receiving notice of the suspension, revocation, or cancellation, mail or deliver the registration, certificate, plate, permit, or license to the department.
  2. The commissioner, officers and employees of the department designated by the commissioner, judges and employees of a court, and all peace officers, may take possession of a certificate of title, registration, or license issued by this jurisdiction that has been revoked, canceled, limited, or suspended, or is fictitious, stolen, or altered.

History. (§ 6 ch 178 SLA 1978; am § 1 ch 77 SLA 1983)

Sec. 28.05.060. School patrols. [Repealed, § 2 ch 68 SLA 1964.]

Sec. 28.05.061. Records of departments and certified copies of records.

  1. The Department of Administration shall file, maintain, and appropriately index records of
    1. vehicle registrations under AS 28.10.071(a) — (c);
    2. stolen, converted, recovered, and unclaimed vehicles under AS 28.10.071(d) ;
    3. titles and documents creating and evidencing liens or encumbrances under AS 28.10.381 ;
    4. abandoned vehicles under AS 28.11.030(c) ;
    5. driver’s license and driving records under AS 28.15.151 ;
    6. applications under AS 28.10.262 for cancellation of a manufacturer’s certificate of origin for a manufactured home;
    7. applications under AS 28.10.263 for cancellation of a certificate of title to a manufactured home;
    8. applications under AS 28.10.264 for confirmation of the nonapplication of AS 28.10 to a manufactured home;
    9. applications under AS 28.10.265 for a certificate of title to a severed manufactured home;
    10. manufacturer’s certificates of origin accepted for cancellation by the department under AS 28.10.262 for a manufactured home; and
    11. certificates of title accepted for cancellation by the department under AS 28.10.263 for a manufactured home.
  2. The Department of Administration and the Department of Public Safety each may file and maintain any other records considered necessary for the respective department’s administration of this title and regulations adopted by that department under it.
  3. Records maintained by the Department of Administration or the Department of Public Safety under this title or regulations adopted under this title may be stored in any reasonable manner, including electronic data storage. The commissioner of each of those departments and officers and employees of those departments designated by the respective commissioner shall, upon request, prepare under the seal of the respective department and deliver, unless otherwise prohibited by law, a certified copy of any record of that department maintained under this title or regulations adopted under this title, charging a fee for each certified copy. A certified copy of the record stored under this section is admissible in an administrative proceeding or in a court in the same manner as the original document.
  4. If a copy of a motor vehicle record prepared or maintained by the Department of Administration is requested by the child support services agency created in AS 25.27.010 , or the child support enforcement agency of another state, the department shall provide the requesting agency with a certified copy of the record. If information is prepared or maintained by the department in an electronic data base, the department may give the requesting agency a copy of the electronic record and a statement certifying its contents. The agency receiving information under this subsection may use the information only for child support purposes authorized under law.
  5. For cancelled manufacturer’s certificates of origin, cancelled certificates of title, or applications for confirmation filed under (a)(8), (10), or (11) of this section, the department’s record must state
    1. the name of each owner of the manufactured home;
    2. the date the manufacturer’s certificate of origin or the certificate of title was accepted for cancellation if the certificate was cancelled under (a)(10) or (11) of this section; and
    3. the recording information for the affixation affidavit required by AS 28.10.266 .
  6. For applications for certificates of title under (a)(9) of this section, the department’s record must state the name of each owner of the manufactured home and the recording information for the severance affidavit recorded under AS 40.17.125 .
  7. In this section, “recording information” means the district where the affidavit was recorded and the date and serial numbers of the affidavit’s recording in the recording district.

History. (§ 6 ch 178 SLA 1978; am § 1 ch 6 FSSLA 1996; am § 140 ch 87 SLA 1997; am E.O. No. 99 § 30 (1997); am §§ 8, 9 ch 64 SLA 2012)

Revisor’s notes. —

In 2004, “child support enforcement agency created in AS 25.27.010 ” was changed to “child support services agency created in AS 25.27.010 ” in (d) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, added (a)(6) through (a)(11), and made a related stylistic change; and added (e), (f), and (g).

Notes to Decisions

Judicial notice properly not taken. —

The fact that the Division of Motor Vehicles is under a legal duty to maintain vehicle registration records did not establish that the information that an officer retrieved from the Alaska Public Safety Information Network computer database was obtained from, and accurately represented, the information contained in the Division’s records, and the court correctly declined to take judicial notice of that point. Matus v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2009), (memorandum opinion).

Collateral references. —

Inspection of motor vehicle records, right as to, 84 ALR2d 1261.

Sec. 28.05.065. Access to criminal justice information.

  1. For purposes of carrying out the provisions of AS 28.05, AS 28.15, AS 28.33, and AS 28.35, an employee of the department assigned to perform functions under those chapters may access criminal justice information about an adult or minor charged with or convicted of an offense.
  2. For purposes of obtaining access to criminal justice information maintained by the Department of Public Safety under AS 12.62, the unit assigned motor vehicle functions in the Department of Administration is a criminal justice agency conducting a criminal justice activity.
  3. In this section,
    1. “criminal justice activity” has the meaning given in AS 12.62.900 ;
    2. “criminal justice agency” has the meaning given in AS 12.62.900 .

History. (§ 1 ch 23 SLA 2007)

Sec. 28.05.068. Prohibition on data sharing.

  1. If the department conveys, distributes, or communicates data to be used in a database, index, pointer system, or any other system managed by an entity other than the department, including the American Association of Motor Vehicle Administrators, to comply with the requirements of P.L. 109-13, Division B (REAL ID Act of 2005), the department may not convey, distribute, or communicate to that entity any data not required to be conveyed, distributed, or communicated for the state to be certified by the United States Department of Homeland Security to be in compliance with the requirements of P.L. 109-13, Division B (REAL ID Act of 2005).
  2. Notwithstanding (a) of this section, the department may not convey, distribute, or communicate to a private entity any scanned or stored documents collected in order to carry out the provisions of AS 28.15.
  3. The department shall take all steps available to obtain from the entity an agreement that the state need not convey, distribute, or communicate social security numbers, in whole or in part, to participate in the database, index, pointer system, or other system.
  4. The department shall take all steps available to work with other states, the United States Department of Homeland Security, and any multistate entities in which the state participates to secure a means of compliance with P.L. 109-13, Division B (REAL ID Act of 2005), including through an interstate compact, that does not involve the storage or sharing of social security numbers, in whole or in part, with an interstate database, index, pointer system, or other system.
  5. If the department has complied with (c) and (d) of this section and has been unable to secure a means of compliance with P.L. 109-13, Division B (REAL ID Act of 2005) that does not involve the storage or sharing of social security numbers, in whole or in part, the department shall take all steps necessary to minimize the number of digits of a social security number required to be stored or shared.
  6. The department may share only the least number of digits of a person’s social security number necessary to comply with federal law that requires the department to determine whether a person has been issued a driver’s license in another state.
  7. [Repealed, §  18 ch. 8 SLA 2017]

History. (§ 8 ch 8 SLA 2017; am § 18 ch 8 SLA 2017)

Delayed repeal of subsection (g). —

Under sec. 18 , ch 8, SLA 2017, subsection (g) is repealed June 30, 2021.

Effect of amendments. —

The 2017 amendment, effective June 30, 2021, repealed (g).

Sec. 28.05.070. Subpoenas; witnesses and documents. [Repealed, § 6 ch 178 SLA 1978.]

Sec. 28.05.071. Change of name or address.

  1. A person who has applied for or been issued a certificate, registration, title, license, permit, or other form under this title, and who changes the person’s name or moves from the address shown on the records or forms of the Department of Administration or the Department of Public Safety, shall notify the appropriate department of the change in name or address within 30 days
    1. on a form or in a format specified by the appropriate department; and
    2. in a manner prescribed in regulations adopted by the appropriate department.
  2. A person convicted of a violation of (a) of this section is guilty of an infraction punishable by a fine not to exceed $25.

History. (§ 6 ch 178 SLA 1978; am E.O. No. 99 § 31 (1997); am § 2 ch 23 SLA 2007; am § 1 ch 74 SLA 2008)

Secs. 28.05.072 — 28.05.080. Notice, hearing, and offense disposition. [Repealed, § 6 ch 178 SLA 1978.]

Article 2. Vehicle Equipment Standards and Seat Belts.

Sec. 28.05.081. Approval of vehicle equipment.

  1. When the commissioner has reason to believe that vehicle equipment being sold commercially in the state does not comply with the requirements of this title or regulations adopted under this title or other statutes and regulations, the commissioner may, after giving 30 days notice to the person holding the certificate of approval for the equipment in this state, conduct a hearing upon the question of compliance of the equipment.  After the hearing, the commissioner shall determine whether the equipment is in compliance.  If the equipment is not in compliance with the law, the commissioner shall give notice of that fact to the person holding the certificate of approval for the equipment in this state.
  2. If, at the end of 90 days after the notice of noncompliance given under (a) of this section, the person holding the certificate of approval for the vehicle equipment has failed to satisfy the commissioner that the equipment as sold after the 90 days is in compliance with the law, the commissioner shall suspend or revoke the approval issued for the equipment until the equipment is resubmitted to, and retested by, a testing agency approved by the commissioner and is found to be in compliance with the law.  The commissioner may, at the time of retest, purchase in the open market and submit to the testing agency one or more sets of the equipment.  If the equipment upon retest fails to comply with the law, the commissioner may refuse to renew the certificate of approval of the equipment.
  3. After January 1, 1978, a motorcycle helmet may not be manufactured or sold in this state that does not conform to standards established in regulations adopted by the commissioner. These regulations must provide for helmets that allow normal peripheral vision and hearing and minimize neck injuries to the wearer potentially caused by the helmet.  For the purposes of this section and AS 28.05.011(a)(2) , a motorcycle helmet is considered to be vehicle equipment.
  4. In this section, “commissioner” means the commissioner of public safety.

History. (§ 6 ch 178 SLA 1978; am E.O. No. 99 § 32 (1997))

Revisor’s notes. —

In 1997, in subsection (c), “AS 28.05.011(a)(2) ” was substituted for “AS 28.05.011 (2)” to reflect the addition of AS 28.05.011(b) by § 25, E.O. 99.

Cross references. —

For provisions regulating the manufacture and sale of motorcycle helmets, see AS 28.35.245(a) .

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 190 et seq.

60 C.J.S., Motor Vehicles, § 43 et seq.

Sec. 28.05.090. Citation form. [Repealed, § 6 ch 178 SLA 1978.]

Sec. 28.05.091. Impoundment of unlawful vehicles.

A motor vehicle that is driven on a highway or vehicular way or area, and that has been determined to be defective in equipment so as to be unsafe for driving, or on which the vehicle identification number has been removed, defaced, or otherwise altered, is an unlawful vehicle and may be impounded by a peace officer or an employee of the Department of Public Safety officially designated for that purpose. The owner or person in lawful possession of a vehicle that is driven on a highway or vehicular way or area and that is so defective in equipment as to be unsafe for driving shall pay the necessary costs of impounding and storing the vehicle. The impounding of a vehicle is in addition to any other penalty. Nothing in this section prevents the driving or moving of a defective vehicle in the manner directed by the peace officer or employee to a place for

  1. the correction of a defect in the equipment;
  2. dismantling or wrecking; or
  3. storage without repair.

History. (§ 6 ch 178 SLA 1978; am § 1 ch 60 SLA 1986; am E.O. No. 99 § 33 (1997))

Notes to Decisions

Applied in

State v. Siverly, 822 P.2d 1389 (Alaska Ct. App. 1991).

Sec. 28.05.095. Use of seat belts and child safety devices required.

  1. Except as provided in (c) of this section, a person
    1. 16 years of age or older may not occupy a motor vehicle while being driven on a highway unless restrained by a safety belt; and
    2. may not drive a motor vehicle on a highway unless restrained by a safety belt.
  2. Except as provided in (c) of this section, a driver may not transport a child under the age of 16 in a motor vehicle unless the driver has provided the required safety device and properly secured each child as described in this subsection. A child
    1. less than one year of age or a child one year of age or older who weighs less than 20 pounds shall be properly secured in a rear-facing child safety seat that meets or exceeds standards of the United States Department of Transportation and is used in accordance with the manufacturer’s instructions;
    2. one or more years of age but less than four years of age who weighs 20 pounds or more shall be properly secured in a child restraint device that meets or exceeds the standards of the United States Department of Transportation and is used in accordance with the manufacturer’s instructions;
    3. over four years of age but less than eight years of age who is less than 57 inches in height and weighs 20 or more pounds but less than 65 pounds shall be properly secured in a booster seat that is secured by a seat belt system or by another child passenger restraint system that meets or exceeds the standards of the United States Department of Transportation and is used in accordance with the manufacturer’s instructions;
    4. over four years of age who exceeds the height or weight requirements in (3) of this subsection shall be properly secured in a seat belt;
    5. eight years of age but less than 16 years of age who does not exceed the height and weight requirements in (3) of this subsection shall be properly secured in a child safety device approved for a child of that size by the United States Department of Transportation or in a safety belt, whichever is appropriate for the particular child as determined solely by the driver.
  3. Subsections (a) and (b) of this section do not apply to
    1. passengers in a school bus, unless the school bus is required to be equipped with seat belts by the United States Department of Transportation, or an emergency vehicle;
    2. a vehicle operator acting in the course of employment delivering mail or newspapers from inside the vehicle to roadside mail or newspaper boxes;
    3. a person or class of persons exempted by regulation under AS 28.05.096 ;
    4. a person required to be restrained by safety belts under (a) or (b) of this section if the motor vehicle is not equipped with safety belts; or
    5. operators or passengers of motorcycles, motor-driven cycles, off-highway vehicles, electric personal mobility vehicles, snowmobiles, and similar vehicles not designed to be operated on a highway.
  4. A person may not remove a safety belt from a vehicle solely to be exempted under (c)(4) of this section.
  5. Notwithstanding any other provision of law, a peace officer may not stop or detain a motor vehicle to determine compliance with (a) of this section, or issue a citation for a violation of (a) of this section, unless the peace officer has probable cause to stop or detain the motor vehicle.
  6. In a prosecution under (a) of this section, the prosecution must prove that the peace officer stopping or detaining the vehicle personally observed the violation of (a) of this section before stopping or detaining the vehicle or otherwise had probable cause to stop or detain the vehicle.

History. (§ 1 ch 99 SLA 1984; am § 1 ch 98 SLA 1990; am § 6 ch 168 SLA 1990; am § 35 ch 35 SLA 2003; am §§ 1 — 4 ch 2 SLA 2006; am § 2 ch 34 SLA 2009; am § 2 ch 31 SLA 2016)

Effect of amendments. —

The 2009 amendment, effective September 15, 2009, rewrote (b), which read, “Except as provided in (c) of this section, a driver may not transport a child under the age of 16 in a motor vehicle unless the driver has provided the required safety device and properly secured each child as described in this subsection. If the child is less than four years of age, the child shall be properly secured in a child safety device meeting the standards of the United States Department of Transportation for a child safety device for infants, if the child is four but not yet 16 years of age, the child shall be properly secured in a child safety device approved for a child of that age and size by the United States Department of Transportation or in a safety belt, whichever is appropriate for the particular child.”

The 2016 amendment, effective September 29, 2016, in (b)(2), substituted “four years of age” for “five years of age”.

Notes to Decisions

Constitutionality. —

Alaska’s seatbelt law does not infringe upon the rights of personal liberty, autonomy, and privacy guaranteed by Alaska Const. art. I, §§ 1, 22, and 14, because the law effectively reduces deaths and serious injuries from highway accidents. Courts cannot invalidate arrests and traffic stops on policy grounds; moreover, defendant’s stop was not pretextual. Chase v. State, 243 P.3d 1014 (Alaska Ct. App. 2010).

Cited in

Erickson v. State, 141 P.3d 356 (Alaska Ct. App. 2006).

Collateral references. —

Liability of owner or operator of motor vehicle or aircraft for injury or death allegedly resulting from failure to furnish or require use of seat belt, 49 ALR3d 295.

Nonuse of seat belt as failure to mitigate damages, 80 ALR3d 1033.

Automobile occupant’s failure to use seat belt as contributory negligence, 92 ALR3d 9.

Nonuse of automobile seat belts as evidence of comparative negligence, 95 ALR3d 239.

Equipment and devices directly relating to passenger’s standing or seating safety in land carriers, 35 ALR4th 1050.

Sec. 28.05.096. Exemptions and alternative safety devices.

  1. The commissioner of public safety may adopt regulations to exempt a person or a class of persons from the requirements of AS 28.05.095 if the commissioner determines that the use of a safety belt or child safety device is impractical because of physical or medical conditions of the person or class of persons.
  2. The commissioner of public safety shall specify alternative means of protection for children exempted under this section.

History. (§ 1 ch 99 SLA 1984; am § 2 ch 98 SLA 1990; am E.O. No. 99 § 34 (1997))

Administrative Code. —

For brakes and other equipment, see 13 AAC 4, art. 4.

Sec. 28.05.097. Child safety device loan program. [Repealed, E.O. No. 101, § 5 (2000). For current law, see AS 19.05.043.]

Sec. 28.05.098. Sale of child safety devices.

A person may not sell, offer for sale, or install in any motor vehicle a child safety device that does not conform to all applicable federal standards for the device on the date of the sale, offering, or installation.

History. (§ 1 ch 99 SLA 1984)

Sec. 28.05.099. Penalty.

  1. A person convicted of a violation of  AS 28.05.095(a) or (d) is guilty of an infraction and may be fined up to $15 or the court may waive the fine if the person convicted donates $15 to the emergency medical services entity providing services in the area in which the violation occurred.
  2. A person convicted of a violation of  AS 28.05.095(b) is guilty of an infraction, and may be fined up to $50.  The person may also be assessed demerit points as determined by regulations of the department, notwithstanding the provisions of  AS 28.15.231(b) .  A person who violates  AS 28.05.095(b) by failing to provide a child safety device or safety belt may provide a peace officer, including a village safety officer, proof of purchase or acquisition, and installation, of an approved child safety device or safety belt.  If the proof is provided within 30 days after the issuance of a citation for the infraction, the court shall dismiss the citation and no points shall be assessed under this subsection unless the person has
    1. been convicted previously for violating  AS 28.05.095 by failing to provide a child safety device or safety belt;
    2. been cited for failure to provide a child safety device or safety belt and has forfeited the bail required by the citation; or
    3. provided proof under this subsection on a prior occasion.

History. (§ 1 ch 99 SLA 1984; am § 3 ch 98 SLA 1990)

Notes to Decisions

Cited in

Erickson v. State, 141 P.3d 356 (Alaska Ct. App. 2006).

Sec. 28.05.104. School buses. [Repealed, § 2 ch 51 SLA 1999.]

Sec. 28.05.106. Custom collector vehicle equipment.

  1. A custom collector vehicle shall be equipped with
    1. hydraulic service brakes on all wheels;
    2. sealed beam or halogen headlights;
    3. safety belts for all occupants;
    4. turn signals and turn signaling switch;
    5. safety glass or lexan;
    6. electric or vacuum windshield wiper located in front of the driver;
    7. standard or blue-dot taillights; and
    8. a parking brake that operates on at least two wheels on the same axle.
  2. Notwithstanding any other provisions of this title or regulations adopted under this title, the Department of Public Safety may not require a custom collector vehicle to be equipped with a bumper, hood, or fenders.
  3. A custom collector vehicle shall be equipped in a manner that while in motion and functional on the vehicle’s four rims on a flat surface, the suspension, steering, or chassis does not contact the highway, vehicular way, or area.

History. (§ 1 ch 8 SLA 1993; am E.O. No. 99 § 36 (1997))

Article 3. Subpoenas, Notices, and Hearings.

Collateral references. —

Necessity and sufficiency of notice and hearing before revocation of driver’s license, 10 ALR2d 833, 60 ALR3d 361, 60 ALR3d 427.

Sec. 28.05.111. Subpoenas of witnesses and documents.

  1. The commissioner of public safety and officers and employees of the Department of Public Safety designated by that commissioner, and the commissioner of administration and officers and employees of the Department of Administration designated by that commissioner, may, for good cause, subpoena witnesses to give testimony under oath or to give written deposition upon a matter under the jurisdiction of the appropriate department with respect to this title and regulations adopted under this title. A subpoena issued under this section may require the production of relevant books, papers, documents, records, or other tangible things designated in the subpoena.
  2. A subpoena issued under this section shall be served at least five days before the return date, either by personal service made by a peace officer or another person who is not less than 18 years of age or by registered or certified mail.  Return acknowledgment is required to prove service by mail.  The fees for the attendance and travel of witnesses are the same as for witnesses appearing before the district court.
  3. A subpoena issued under this section may be enforced by the district court.

History. (§ 6 ch 178 SLA 1978; am E.O. No. 99 § 37 (1997))

Administrative Code. —

For hearings, see 2 AAC 93, art. 1.

For definitions, see 2 AAC 93, art. 2.

Sec. 28.05.121. Giving of notice.

When the Department of Public Safety or the Department of Administration is authorized or required to give notice under this title or regulations adopted under this title, unless a different method of giving notice is otherwise expressly provided, notice shall be given by a qualified person, either by personal delivery to the person to be notified or by registered or certified mail, return receipt requested, addressed to the person at the address of the person as shown in the records of the appropriate department. The giving of notice by mail is considered complete upon the return of the receipt or upon return of the notice as undeliverable, refused, or unclaimed. Proof of the giving of notice in either manner may be made by the affidavit of the person giving the notice by personal delivery or by mail, naming the person to whom the notice was given and specifying the time, place, and manner of giving the notice.

History. (§ 6 ch 178 SLA 1978; am E.O. No. 99 § 38 (1997))

Notes to Decisions

The notice provisions of this section are valid, since a person who has not received actual notice under the statute will not be precluded from presenting a defense to a charge under AS 28.15.291 based upon reasonable failure to know of his license suspension. Jeffcoat v. State, 639 P.2d 308 (Alaska Ct. App. 1982).

Quoted in

Alexander v. State, 712 P.2d 416 (Alaska Ct. App. 1986).

Sec. 28.05.131. Opportunity for hearing required.

  1. Unless otherwise specifically provided, or unless immediate action in suspending, revoking, canceling, limiting, restricting, denying, or impounding is necessary for the protection of the health, safety, or welfare of the public, the Department of Public Safety or the Department of Administration, as appropriate, shall give notice of the opportunity for an administrative hearing before a license, registration, title, permit, or privilege issued or allowed under this title or regulations adopted under this title is suspended, revoked, cancelled, limited, restricted, or denied or a vehicle is impounded by that department. If action is required under this section and prior opportunity for a hearing cannot be afforded, the appropriate department shall promptly give notice of the opportunity for a hearing as soon after the action as possible to the parties concerned.
  2. The notice under this section must state the reasons for the proposed action of the Department of Public Safety or of the Department of Administration, and must provide for a reasonable attendance date of not less than 10 days after service of the notice. If there is no request for a hearing by the attendance date specified in the notice, the hearing is considered to have been waived.

History. (§ 6 ch 178 SLA 1978; am E.O. No. 99 § 39 (1997))

Administrative Code. —

For driver training schools and instructors, see 2 AAC 91, art. 1.

For hearings, see 2 AAC 93, art. 1.

For definitions, see 2 AAC 93, art. 2.

Notes to Decisions

This section does not apply to a revocation of a license under AS 28.35.032 . Graham v. State, 633 P.2d 211 (Alaska 1981).

Sec. 28.05.141. Hearings and appeals.

  1. Unless otherwise specifically provided, all hearings required under this title or regulations adopted under this title shall be conducted by the Department of Public Safety or the Department of Administration, as appropriate, under regulations adopted by the appropriate commissioner governing practice and procedure and consistent with due process of law. Hearings must be informal, and technical rules of evidence do not apply. A person who requests a hearing may retain an attorney. The hearing officer shall be appointed by the appropriate commissioner and may be appointed from the department conducting the hearing. A hearing officer need not be an attorney, but must be impartial and may not have participated in the decision that is under review. The hearing officer does not have to file a full opinion or make formal findings of fact or conclusions of law, but the hearing officer must state the reasons for the determination and indicate the evidence relied upon. The proceedings at the hearing shall be recorded.
  2. A hearing ordered under (a) of this section must be held by telephone unless the hearing officer finds that a telephonic hearing would substantially prejudice the rights of the person involved in the hearing or that an in-person hearing is necessary to decide the issues to be presented in the hearing. An in-person hearing must be held at the office of the Department of Public Safety or of the Department of Administration nearest to the residence of the person involved in the hearing unless the appropriate department and the person agree that the hearing is to be held elsewhere. The appropriate department shall grant a hearing delay if the person presents good cause for the delay. If a person fails to attend or appear for the hearing at the time and place stated by the appropriate department and if a hearing delay has not been granted, the person’s failure to attend or appear is considered a waiver of the hearing and the appropriate department may take appropriate action with respect to the person.
  3. If at a hearing conducted by the Department of Administration under (a) of this section it appears that the record of the person sustains suspension, revocation, limitation, denial, or other remedial action, the hearing officer shall so order and the Department of Administration may suspend, revoke, limit, deny, or take other remedial action against that person’s license, registration, or title and, if appropriate, the department shall adjust the person’s point total accumulated under AS 28.15.231 .
  4. A person aggrieved by the decision of the hearing officer may, within 30 days after a decision is mailed or delivered to the person, file an appeal in superior court for judicial review of the hearing officer’s decision. The judicial review shall be on the record. The court may reverse the determination of the Department of Public Safety or of the Department of Administration if the court finds that the department making the determination misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record. The respective department’s decision suspending, revoking, canceling, limiting, restricting, or denying a license, registration, title, permit, or privilege is stayed and does not take effect during the pendency of an appeal.

History. (§ 6 ch 178 SLA 1978; am § 2 ch 60 SLA 1986; am § 1 ch 158 SLA 1990; am § 2 ch 6 FSSLA 1996; am E.O. No. 99 § 40 (1997))

Cross references. —

For rules of court relating to appeals from administrative proceedings, see App. Rules 601-611.

Administrative Code. —

For driver training schools and instructors, see 2 AAC 91, art. 1.

For hearings, see 2 AAC 93, art. 1.

For definitions, see 2 AAC 93, art. 2.

Notes to Decisions

This section does not apply to a revocation of a license under AS 28.35.032 , relating to refusal to submit to a chemical test. Graham v. State, 633 P.2d 211 (Alaska 1981).

This section is inapplicable to license revocations for refusal to submit to a breathalyzer test. Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360 (Alaska 1991).

A hearing officer must be impartial; however, it is appropriate for an officer to question witnesses. Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Failure to exhaust administrative remedies. —

Trial court did not err in dismissing a driver’s complaint to enjoin the Division of Motor Vehicles’ proposed suspension of his driver’s license for failing to provide proof of insurance because the driver had not yet exhausted his administrative remedies of a hearing and an administrative appeal. Winterrowd v. State, 288 P.3d 446 (Alaska 2012).

Quoted in

Nevers v. State, 123 P.3d 958 (Alaska 2005).

Article 4. Disposition of Certain Vehicle and Traffic Offenses.

Sec. 28.05.151. Citations for scheduled vehicle and traffic offenses.

  1. The supreme court shall determine by rule or order those motor vehicle and traffic offenses, except for offenses subject to a scheduled municipal fine, that are amenable to disposition without court appearance and shall establish a scheduled amount of bail, not to exceed fines prescribed by law, for each offense. A municipality shall determine by ordinance the municipal motor vehicle and traffic offenses that may be disposed of without court appearance and shall establish a fine schedule for each offense.
  2. The supreme court shall establish a scheduled amount of bail allowing disposition of a citation for a violation of AS 28.05.095 and AS 28.35.161 that is punishable as a violation without court appearance.
  3. The supreme court shall require as a condition of the disposition of an offense without appearance that a person charged with any offense for which a bail forfeiture amount has been adopted shall pay the surcharge prescribed in AS 12.55.039 in addition to the bail forfeiture amount established by the supreme court. The surcharge required to be paid under this subsection shall be deposited into the general fund and accounted for under AS 37.05.142 .
  4. The supreme court, in establishing scheduled amounts of bail under this section, and each municipality that establishes or has established a fine schedule under this section shall provide that the scheduled amount of bail or fine, as applicable, for a motor vehicle or traffic offense that is committed in a highway work zone or traffic safety corridor shall be double the amount of the bail or fine for the offense if it had not been committed in a highway work zone or traffic safety corridor.
  5. The supreme court, in establishing scheduled amounts of bail under this section, and each municipality that establishes or has established a fine schedule under this section may not allow for the disposition of an offense without court appearance for a person who is cited for violation of the traffic laws in connection with a motor vehicle accident if the accident resulted in the death of a person. In this subsection, “traffic laws” has the meaning given in AS 28.15.261 .

History. (§ 6 ch 178 SLA 1978; am § 8 ch 76 SLA 1987; am § 4 ch 98 SLA 1990; am § 5 ch 119 SLA 1994; am § 6 ch 56 SLA 1998; am § 1 ch 64 SLA 1998; am § 1 ch 89 SLA 2003; am § 2 ch 45 SLA 2006; am § 1 ch 23 SLA 2016)

Cross references. —

For the effect of subsection (e) on Rules 43 and 43.1, Alaska Rules of Administration, see § 3, ch. 89, SLA 2003, in the 2003 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective July 1, 2016, in (b), inserted “and AS 28.35.161 that is punishable as a violation” preceding “without court appearance.”

Notes to Decisions

Stated in

State v. Fyfe, 370 P.3d 1092 (Alaska 2016).

Sec. 28.05.155. Court and collection costs.

If a person’s permanent fund dividend is attached to pay the bail or fine for an offense involving a moving motor vehicle, the court shall increase the bail or fine of that person by at least

  1. $25 for court costs; and
  2. $10 for collection costs.

History. (§ 4 ch 47 SLA 1996)

Chapter 10. Vehicle Registration, Liens, and Title.

Administrative Code. —

For vehicle registration, title, and transfer, see 2 AAC 92.

Notes to Decisions

Cited in

Newell v. National Bank, 646 P.2d 224 (Alaska 1982); Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 29 et seq.

60 C.J.S., Motor Vehicles, § 180 et seq.

Article 1. Registration.

Sec. 28.10.010. Administration. [Repealed, § 7 ch 178 SLA 1978.]

Notes to Decisions

Ordinance held not inconsistent. —

AS 29.25.070 (g) [now (f)] did not impliedly repeal the statutory carve-out in AS 28 that historically permitted municipalities to imposed harsher impoundments and forfeitures for certain delineated offenses and thus, the mandatory impoundment requirements in Anchorage Municipal Code 09.28.020(C)(5) was not rendered invalid by § 29.25.070 and the district court did not err in ordering a 30-day impoundment of appellant's vehicle. Good v. Mun. of Anchorage, 450 P.3d 693 (Alaska Ct. App. 2019).

Sec. 28.10.011. Vehicles subject to registration.

Every vehicle driven, moved, or parked upon a highway or other public parking place in the state shall be registered under this chapter except when the vehicle is

  1. driven or moved on a highway only for the purpose of crossing the highway from one private property to another, including an implement of husbandry as defined by regulation;
  2. driven or moved on a highway under a dealer’s plate or temporary permit as provided for in AS 28.10.031 and 28.10.181(j) ;
  3. special mobile equipment as defined by regulation;
  4. owned by the United States;
  5. moved by human or animal power;
  6. exempt under 50 U.S.C. App. 501-591 (Soldiers’ and Sailors’ Civil Relief Act);
  7. driven or parked only on private property;
  8. the vehicle of a nonresident as provided under AS 28.10.121 ;
  9. transported under a special permit under AS 28.10.151 ;
  10. being driven or moved on a highway, vehicular way, or a public parking place in the state that is not connected by a land highway or vehicular way to
    1. the land-connected state highway system; or
    2. a highway or vehicular way with an average daily traffic volume greater than 499;
  11. an implement of husbandry operated in accordance with the provisions of AS 19.10.065 ;
  12. an electric personal motor vehicle.

History. (§ 7 ch 178 SLA 1978; am § 1 ch 54 SLA 1979; am § 1 ch 99 SLA 1983; am § 3 ch 60 SLA 1986; am § 3 ch 26 SLA 1987; am § 79 ch 63 SLA 1993; am § 21 ch 48 SLA 1998; am § 2 ch 142 SLA 2002)

Revisor’s notes. —

Former paragraphs (10), (11), and (13) were renumbered as paragraphs (9)-(11) in 1998 to reflect the 1993 repeal of former paragraph (12) and the 1998 repeal of former paragraph (9).

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Opinions of attorney general. —

Paragraph (11) (now paragraph (10)) must be construed in the conjunctive. In other words, vehicles that are driven on roadways removed from the main “land-connected” state highway road system must be registered and must have insurance unless, in addition, they are only driven on a road system consisting solely of lightly-travelled (less than 500 vehicles per day) roads. June 13, 1988, Op. Att’y Gen.

Notes to Decisions

Construction of former AS 28.10.040 and meaning of “cross the highway.” —

“Cross the highway” means to move from one side to the other, and does not mean movement along the highway. Newell v. National Bank, 646 P.2d 224 (Alaska 1982).

Quoted in

State v. Benolken, 838 P.2d 280 (Alaska Ct. App. 1992).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 84 to 97.

60 C.J.S., Motor Vehicles, § 147 et seq.

What constitutes farm vehicle, construction equipment, or vehicle temporarily on highway exempt from registration as motor vehicle, 27 ALR4th 843.

Sec. 28.10.020. Powers and duties. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.021. Application for registration.

  1. The owner of a vehicle subject to registration shall apply for registration under this chapter by properly completing the form prescribed by the commissioner under AS 28.05.041 . Before the issuance of a certificate of registration by the department, the owner shall
    1. pay all registration fees and taxes required under this chapter and federal heavy vehicle use taxes required under 26 U.S.C. 4481 (Internal Revenue Code of 1954);
    2. unless the owner qualifies as a self-insurer under AS 28.20.400 or is exempted from obtaining liability insurance under AS 28.22.011 , certify to the department the existence of a motor vehicle liability policy that complies with AS 28.22.011 for the vehicle being registered; in this paragraph, “certify” means to indicate by check-off on the vehicle registration form prescribed by the department the existence of a policy of insurance, if a policy is required at that time, and the intention to continue the policy or obtain a policy as required by this subsection; and
    3. comply with other applicable statutes and regulations.
  2. At the time of application for registration or renewal of registration, the department shall provide the applicant written information explaining the state’s financial responsibility law.
  3. An employee of the department who processes an application for registration or renewal of registration, other than an application received by mail or an application for registration under AS 28.10.152 , shall ask the applicant orally whether the applicant wishes to execute an anatomical gift. The department shall make known to all applicants the procedure for executing an anatomical gift under AS 13.52 (Health Care Decisions Act) by displaying posters in the offices in which applications are taken, by providing a brochure or other written information to each person who applies in person or by mail, and, if requested, by providing oral advice. The department shall inform each applicant in writing that, if the applicant executes a gift under AS 13.52 and if the gift is made with the registration application, the department will transmit the information on the registration to a donor registry created under AS 13.50.110 . The department shall also direct the applicant to notify a procurement organization or the department under AS 13.50.140 if the registration is destroyed or mutilated or the gift is revoked under AS 13.52.183 . The department shall carry out the requirements of AS 13.50.100 13.50.190 .

History. (§ 7 ch 178 SLA 1978; am §§ 4, 17 ch 70 SLA 1984; am § 35 ch 21 SLA 1985; am § 1 ch 58 SLA 1985; am § 8 ch 43 SLA 1988; am § 11 ch 108 SLA 1989; am § 19 ch 80 SLA 1997; am § 7 ch 48 SLA 1998; am § 5 ch 68 SLA 2004; am § 5 ch 83 SLA 2004; am § 32 ch 100 SLA 2008)

Revisor’s notes. —

In 2004, in subsection (c), “AS 13.52” was substituted for “AS 13.50 or includes an anatomical gift in a living will under AS 18.12” and “AS 13.52.170 ” was substituted for “AS 13.50.050” in order to reconcile chs. 68 and 83, SLA 2004.

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 57.

60 C.J.S., Motor Vehicles, §§ 277-281.

Sec. 28.10.030. Unregistered vehicles. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.031. Temporary permits.

  1. When application, accompanied by the proper fee and tax, has been made for the registration of a vehicle, the vehicle may be driven pending the issuance of a certificate of registration by displaying a temporary permit issued by the department.
  2. A licensed vehicle dealer may issue to the purchaser of a vehicle sold by the dealer a temporary permit to drive the vehicle. A permit is effective for a period not to exceed 60 days. The commissioner shall adopt regulations governing the issuance of permits under this section.
  3. A person may not operate a vehicle under an expired permit issued under this section.

History. (§ 7 ch 178 SLA 1978; am § 3 ch 6 FSSLA 1996)

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Sec. 28.10.040. Registration. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.041. Grounds for refusing registration.

  1. The department may refuse to register a vehicle if
    1. the application contains a false or fraudulent statement;
    2. the applicant fails to furnish information required by the department;
    3. the applicant is not entitled to the issuance of a certificate of title or registration under this chapter;
    4. the vehicle is determined to be mechanically unsafe to be driven or moved on a highway, vehicular way or area, or other public property in the state;
    5. the department has reasonable grounds to believe that the vehicle was stolen or fraudulently acquired or that the granting of registration would be a fraud against the rightful owner or other person having a valid lien on the vehicle;
    6. the registration of the vehicle has been suspended or revoked for any reason under the laws of the state;
    7. the required fees or taxes have not been paid;
    8. the vehicle or applicant fails to comply with this chapter or regulations implementing this section;
    9. the vehicle is without a certificate of inspection required under AS 19.10.310 ;
    10. except for a vehicle to be registered under AS 28.10.152 , the vehicle is subject to a state-approved emission inspection program adopted under AS 46.14.400 or 46.14.510 , and the vehicle does not meet the standards of that program;
    11. the applicant fails to certify to the department the existence of a motor vehicle liability policy that complies with AS 28.22.101 for the vehicle being registered unless the owner of the vehicle qualifies as a self-insurer under AS 28.20.400 or is exempted from obtaining liability insurance under AS 28.22.011 ;
    12. the applicant is a commercial motor carrier prohibited from operating by a federal agency.
  2. When the department refuses to register a vehicle, it shall immediately notify the applicant stating the reasons for the action and informing the applicant of the right to a hearing under AS 28.05.131 28.05.141 .
  3. Except for a vehicle to be registered under AS 28.10.152 , the department shall refuse to register a vehicle subject to the federal heavy vehicle use tax required by 26 U.S.C. 4481 (Internal Revenue Code of 1954) if the applicant fails to furnish proof, in the form prescribed by the United States Secretary of the Treasury, that the tax has been paid.
  4. The department shall refuse to register a vehicle if the applicant fails to register the vehicle using the applicant’s full first, middle, and last name or a business name.

History. (§ 7 ch 178 SLA 1978; am § 36 ch 21 SLA 1985; am § 1 ch 56 SLA 1985; am § 2 ch 58 SLA 1985; am § 1 ch 104 SLA 1985; am § 14 ch 108 SLA 1989; am § 3 ch 74 SLA 1993; am E.O. No. 98 § 6 (1997); am §§ 8, 9 ch 48 SLA 1998; am § 7 ch 60 SLA 2002; am § 1 ch 97 SLA 2003; am § 1 ch 80 SLA 2014)

Effect of amendments. —

The 2014 amendment, effective July 11, 2014, in (a)(5), substituted “lien on” for “lien upon” near the end, added (a)(12), and made a related change.

Notes to Decisions

Low-speed car. —

Because substantial evidence supported the hearing officer’s conclusion that a car had not been shown to comply with the applicable safety standards, the Department of Administration had a reasonable basis under AS 28.10.041 and AS 28.10.221 for its refusal to title and register the vehicle as a low-speed vehicle. Haar v. State, 349 P.3d 173 (Alaska 2015).

Collateral references. —

60 C.J.S., Motor Vehicles, § 180 et seq.

Sec. 28.10.050. Application. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.051. Department may suspend or revoke registration.

  1. The department may suspend or revoke the registration of a vehicle, the certificate of registration or registration plates for a vehicle, or a special permit when
    1. the department determines that the registration or certificate, plate, or permit was fraudulently procured or erroneously issued;
    2. the department determines that a registered vehicle is mechanically unsafe to be driven or moved on a highway, vehicular way or area, or other public property in this state and the vehicle has been seized or impounded under AS 28.05.091 ;
    3. a registered vehicle has been scrapped, dismantled, or destroyed beyond repair;
    4. the department determines that a required fee or tax has not been paid and the fee or tax is not paid upon reasonable notice and demand;
    5. a registration plate, permit, or certificate is knowingly displayed on a vehicle other than the vehicle for which issued;
    6. the department determines that the owner of a vehicle has committed an offense under this chapter involving the registration or the certificate, plate, or permit to be suspended or revoked;
    7. the vehicle has been reported to the department as stolen or unlawfully converted;
    8. the department is otherwise required to do so under the laws of this state;
    9. the department determines that the vehicle owner has violated the requirements of AS 28.10.146 or 28.10.147 ;
    10. the department determines that a repair to a commercial motor vehicle, ordered by the Department of Transportation and Public Facilities or the Department of Public Safety under regulations adopted under AS 19, was not completed after the owner or operator represented to the Department of Transportation and Public Facilities, the Department of Public Safety, or the Department of Administration that the repair had been completed;
    11. the owner or operator of a commercial motor vehicle has placed a commercial motor vehicle back in service after it has been placed out of service by the Department of Transportation and Public Facilities or the Department of Public Safety without having it reinspected as required under regulations adopted under AS 19;
    12. the owner or operator is a commercial motor carrier prohibited from operating by a federal agency; or
    13. the commercial motor vehicle is subject to an out-of-service order issued by a state or federal agency.
  2. Unless the owner qualifies as a self-insurer under AS 28.20.400 , or is exempted from obtaining liability insurance under AS 28.22.011 , the department may suspend or revoke the registration of a vehicle that is not insured by a motor vehicle liability policy that complies with AS 28.22.101 .

History. (§ 7 ch 178 SLA 1978; am § 4 ch 60 SLA 1986; am § 16 ch 108 SLA 1989; am § 2 ch 20 SLA 1990; am § 4 ch 6 FSSLA 1996; am E.O. No. 99 § 41 (1997); am § 2 ch 80 SLA 2014)

Revisor’s notes. —

In 1997, in order to reconcile E.O. 98 and E.O. 99, in paragraphs (a)(10) and (11), “AS 19” was substituted for “AS 28.05.011 ” and “the Department of Transportation and Public Facilities” was added.

Effect of amendments. —

The 2014 amendment, effective July 11, 2014, in (a)(5), substituted “on a vehicle” for “upon a vehicle”, added (a)(12) and (a)(13), and made related changes.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 98, 99.

60 C.J.S., Motor Vehicles, §§ 353-378.

Sec. 28.10.060. Vehicles registered elsewhere. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.061. Registration of vehicles with altered or missing identification number.

When the vehicle identification number required to be registered under this chapter has been altered, removed, or defaced, or is not on the vehicle, the owner shall, immediately upon discovery, apply to the department for replacement of the identification number and for a new registration. The department shall search all available sources to determine the identification number originally assigned and, if the number is determined, shall replace it. If efforts to determine the original identification number fail, the owner shall furnish information to show that the owner is entitled to ownership of the vehicle and have it inspected by the department. The department, when satisfied as to the ownership of the vehicle, shall assign an identification number to the vehicle and have the number placed upon the vehicle to which it is assigned. The vehicle shall then be registered under the replaced or assigned identification number.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.065. Custom collector vehicle registration and identification.

When the department is satisfied as to the ownership of a replica of a custom collector vehicle and the vehicle does not have an identification number, the department shall assign a vehicle identification number to the vehicle and have the number stamped on the vehicle. A custom collector replica vehicle shall be registered as a vehicle constructed during the period represented by the replica.

History. (§ 2 ch 8 SLA 1993)

Sec. 28.10.070. Taxes. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.071. Registration records and statistics; stolen vehicles.

  1. The department shall review each application for registration received and, when satisfied that it is correct, register the vehicle and keep a record of the registration in suitable books, index cards, or electronic or photographic recording and storage media, or in any combination of them. The vehicles are referred to as “registered vehicles.” The department may compile a record of the number and types of vehicles registered in this state and may make statistical data available to the public for a fee as prescribed in regulations adopted by the commissioner. The department may also provide vehicle registration lists to the public for a fee as an electronic service or product under AS 40.25.115 . The commissioner may prescribe, by regulation, fees relating to the provision of vehicle registration lists.
  2. Records under this section shall be maintained
    1. by a distinctive registration number assigned to the vehicle;
    2. by the vehicle identification number, including but not limited to a record of identification numbers replaced or assigned under AS 28.10.061 ;
    3. by the name and residence and mailing address of the owner; and
    4. as otherwise required by the department.
  3. The department shall keep a record of the registrations of vehicles used in law enforcement work when secrecy is necessary. This record is separate from the record required by (a) of this section and may be disclosed only to and upon the request of the chief peace officer of a municipality, a state trooper district commander, the chief federal law enforcement officer assigned to the state, or to a court upon an appropriate order.
  4. The department shall maintain and appropriately index cumulative records of stolen, converted, recovered, and unclaimed vehicles reported to it.  The department may make and distribute weekly lists of these vehicles to peace officers and to other departments upon their request without charge and to the public for a reasonable fee as prescribed by the department.

History. (§ 7 ch 178 SLA 1978; am §§ 53, 54 ch 63 SLA 1993)

Revisor’s notes. —

In 2000, “AS 40.25.115 ” was substituted for “AS 09.25.115” to reflect the 2000 renumbering of AS 09.25.115.

Editor’s notes. —

Section 87, ch. 63, SLA 1993 provides “[i]f any section of this bill is found to violate the single subject rule it is severed from the rest of the bill.”

Notes to Decisions

Judicial notice. —

The fact that the Division of Motor Vehicles is under a legal duty to maintain vehicle registration records did not establish that the information that an officer retrieved from the Alaska Public Safety Information Network computer database was obtained from, and accurately represented, the information contained in the Division’s records, and the court correctly declined to take judicial notice of that point. Matus v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2009), (memorandum opinion).

Sec. 28.10.080. False statements. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.10.081. Issuance of certificate of registration; certificate to be signed, carried, and displayed.

  1. The department shall mail or deliver the certificate of registration to the owner.  The certificate of registration must contain the assigned registration number, the name, the residence and mailing addresses of the owner, the vehicle identification number, the fees paid, and as much of the vehicle description appearing on the title as the commissioner considers necessary.
  2. Every certificate of registration shall, except when used to apply for renewal of registration or to transfer the registration, be carried in the vehicle to which it refers. The driver of a vehicle shall display the original certificate of registration or a legible photocopy if the original is on file at the address shown on the certificate of registration to a peace officer or an officer or employee of the department acting in an official capacity upon the request of that officer or employee.

History. (§ 7 ch 178 SLA 1978)

Notes to Decisions

Cited in

Resecker v. State, 721 P.2d 650 (Alaska Ct. App. 1986); Perozzo v. State, 493 P.3d 233 (Alaska Ct. App. 2021).

Collateral references. —

60 C.J.S., Motor Vehicles, § 221.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his vehicle registration certificate, 6 A.L.R.3d 506.

Sec. 28.10.090. New vehicles. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.091. Lost or mutilated certificates of registration or registration plates.

If a certificate of registration or a registration plate is lost, stolen, mutilated, or becomes illegible, the owner or legal representative or successor in interest of the owner of the vehicle for which the certificate or plate was issued as shown by the records of the department shall, immediately upon discovering the fact, apply for a duplicate or substitute certificate of registration or registration plate and shall return to the department all parts of the original certificate of registration or registration plates that the applicant possesses.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.100. Grounds for refusal. [Repealed, § 7 ch 178 SLA 1978.]

Secs. 28.10.101 — 28.10.107. Expiration of registration; staggered registration. [Repealed, § 37 ch 21 SLA 1985. For current law, see AS 28.10.108.]

Sec. 28.10.108. Registration procedures.

  1. Except for a vehicle registered under AS 28.10.152 or 28.10.155 , a vehicle required to be registered under this chapter shall be registered under the procedures set out in this section.
  2. [Repealed, § 29 ch 6 FSSLA 1996.]
  3. [Repealed, § 29 ch 6 FSSLA 1996.]
  4. A registered vehicle retains the same biennial expiration date regardless of the ownership of the vehicle.
  5. The registration of a vehicle expires on the last day of the month to which the vehicle is assigned.
  6. Upon request of the owner and payment of the proportionate prorated applicable fees, a vehicle registered under this section shall have its registration period extended in monthly increments to allow biennial registration to occur in the month of the owner’s choice, except that registration may not extend beyond the expiration of an emissions inspection and maintenance certificate required for the vehicle. Notwithstanding the other provisions of this chapter, upon request of the owner, payment of the annual fee set out in AS 28.10.421(h) , payment of any annual vehicle registration tax due under AS 28.10.431(l) , and, if applicable, payment of one-half of the biennial emission control inspection program fee imposed under AS 28.10.423 , the department shall register a vehicle used for commercial purposes for a one-year period.
  7. The department shall issue to the registered owner, upon receipt of the proper application and fees, registration plates, tabs, and registration form displaying the month and year in which the registration expires.
  8. The department shall mail or deliver notice of registration expiration to the registered owner of record at the owner’s mailing address or electronic mail address as shown in the records of the department. An owner of a vehicle subject to registration who has received notice under this subsection may renew registration of the vehicle on the department’s Internet website or by returning the notice form, together with appropriate fees, to the department by mail postmarked not later than the fifth day of the registration renewal period shown on the vehicle’s current registration or notice form. Upon receipt of a timely registration renewal application and the appropriate fees and taxes, the department shall renew the registration and mail the current registration card and registration plates or tabs to the owner at the owner’s mailing address as shown in the department’s records.
  9. If a vehicle is held for sale by a dealer, the requirement of registration and payment of fees and taxes does not apply until the vehicle is sold to a party other than another dealer.  The exemption from payment of fees and taxes under this subsection applies only if
    1. the dealer is registered with the state; and
    2. the vehicle for which the exemption is sought can be shown to be part of the dealer’s inventory at the time of exemption.
  10. The purchaser of a vehicle for which registration and taxes have been held in abeyance under (i) of this section shall register the vehicle within five working days of purchase and pay the prorated fees and taxes required by the department.
  11. The department shall prorate fees in monthly increments to allow for registration of vehicles in more or less than one-year periods when required by any provision of this section.
  12. Notwithstanding the other provisions of this section, the following vehicles are not required to be registered biennially and shall be registered one time only:
    1. a vehicle qualifying for registration under AS 28.10.181(d) ; or
    2. a vehicle owned by a person who is 65 years of age or older; this paragraph applies to only one vehicle owned by the person who is 65 years of age or older.

History. (§ 38 ch 21 SLA 1985; am § 3 ch 20 SLA 1990; am § 29 ch 6 FSSLA 1996; am §§ 1 — 4 ch 44 SLA 1996; am § 1 ch 5 SLA 1997; am § 10 ch 48 SLA 1998; am § 1 ch 128 SLA 1998; am § 2 ch 97 SLA 2003; am § 1 ch 45 SLA 2014; am § 1 ch 50 SLA 2014)

Revisor’s notes. —

Subsections (b) and (c) were repealed by § 29, ch. 6, FSSLA 1996 before amendments to those subsections made by §§ 1 and 2, ch. 44, SLA 1996 took effect.

Effect of amendments. —

The first 2014 amendment, effective July 1, 2014, in (h), in the first sentence, inserted “or deliver” following “shall mail”, and inserted “or electronic mail address” following “mailing address”, in the second sentence, inserted “on the department’s Internet website or” following “renew registration of the vehicle” and made stylistic changes, in the third sentence, deleted “postmarked” following “Upon receipt of a timely” and inserted “application” following “registration renewal”.

The second 2014 amendment, effective January 1, 2015, in (a), inserted “or 28.10.155 ” following “under AS 28.10.155 ”.

Sec. 28.10.110. Registration card. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.111. Renewal of registration.

  1. Application for the renewal of vehicle registration shall be made by completing the proper form and paying any required fee and tax.
  2. The department may receive an application for the renewal of vehicle registration and issue a new certificate of registration at any time before the expiration of the biennial registration as prescribed in regulations adopted by the commissioner. Nothing in this section prevents the commissioner from providing for a longer registration period; however, a person may not display the new registration plates on a vehicle before a date which may be set by the commissioner.

History. (§ 7 ch 178 SLA 1978; am § 39 ch 21 SLA 1985; am § 5 ch 44 SLA 1996)

Collateral references. —

60 C.J.S., Motor Vehicles, § 241.

Sec. 28.10.120. Plates. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.121. Vehicles of nonresidents.

  1. A nonresident owner of a noncommercial vehicle registered outside the state is exempt from the registration provisions of this chapter for 60 days after entry into the state if the vehicle at all times when driven in this state is registered in and has displayed upon it a currently valid registration plate issued for it by another jurisdiction. However, if the person becomes gainfully employed in the state or takes action that indicates an intention to acquire residence in the state, the person shall comply with the licensing and registration provisions of this chapter within 10 days of commencement of employment or of taking action that indicates the person’s intention to acquire residence. If the vehicle is a commercial vehicle, the vehicle must be registered when its commercial use begins except as provided in AS 28.10.011 , 28.10.131(c) , and 28.10.152 .
  2. A vehicle owned by a nonresident and of a type subject to registration under this chapter, that is leased or rented to a person having an established place of business, a residence, or employment in this state, is subject to registration under this chapter either by the owner or lessee.
  3. A vehicle under (a) of this section that is owned and driven by a full-time student pursuing a course of study beyond the high school level and upon which current, valid registration by another jurisdiction is maintained need not be registered in this state unless the student establishes residence or accepts full-time employment in the state.  This exemption applies only to the extent that the jurisdiction in which the vehicle is registered grants the same exemptions and privileges to a vehicle registered in this state.
  4. It is the responsibility of the person claiming exemption under this section to provide proof of qualification for the exemption.

History. (§ 7 ch 178 SLA 1978; am §§ 1, 2 ch 45 SLA 1987; am § 11 ch 48 SLA 1998)

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 61, 111.

60 C.J.S., Motor Vehicles, §§ 190 to 192.

Corporation domiciled in state but having branch trucking bases in other states, applicability of motor vehicle registration laws to, 16 ALR2d 1414.

Secs. 28.10.125 — 28.10.130. Historic vehicles, occasional users; plates. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.131. Vehicles previously registered in another jurisdiction.

  1. Except for a vehicle to be registered under AS 28.10.152 , if a vehicle to be registered under this chapter is previously registered outside the state, the jurisdiction of registry shall be stated in the application, and the owner shall surrender to the department all evidence of out-of-state registration in the owner’s possession or control except as provided in this section, and the department may require verification of the vehicle identification number.
  2. If the owner is unable to provide the necessary evidence of ownership, the department, when satisfied that the applicant is the lawfully registered owner of the vehicle, may register the vehicle without issuing a title and shall type or stamp on the face of the State of Alaska certificate of registration “No Title Issued.”  The issuance of the Alaska certificate of title shall be withheld until the registered or legal owner provides for the surrender of the out-of-state title, or in the case of a nontitle state, documents that satisfy the department of ownership and any liens on the vehicle, or until the posting of a vehicle surety bond equal to the market value of the vehicle, which bond shall be maintained for two years.
  3. Except as provided in AS 28.10.152 , if the owner of a commercial vehicle desires to maintain title in another jurisdiction, the department, when satisfied that the applicant is temporarily operating in-state and is the lawfully registered owner of the commercial vehicle, may register the commercial vehicle without issuing a title and shall type or stamp on the face of the State of Alaska certificate of registration “No Title Issued.”

History. (§ 7 ch 178 SLA 1978; am §§ 3, 4 ch 45 SLA 1987; am §§ 12, 13 ch 48 SLA 1998)

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Secs. 28.10.135, 28.10.140. Reflective plates; attachment. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.141. Interstate use of vehicles. [Repealed, § 21, ch 48 SLA 1998.]

Sec. 28.10.146. Registration of interstate rental trucks.

  1. Notwithstanding any other registration requirement of this chapter, a fleet rental truck owner or authorized representative shall register a percentage of the total fleet as determined under this subsection, and shall pay the fees and taxes required by this chapter.  The percentage of fleet rental trucks required to be registered is equal to the total number of miles that all trucks in the rental fleet were driven in this state during a calendar year or other period established by the department by regulation, divided by the total number of miles that all trucks in the rental fleet were driven in all states and the District of Columbia during that period.
  2. When applying for registration under (a) of this section, the fleet rental owner or authorized representative shall file with the department a certified report containing verifiable data, reporting
    1. the total number of miles operated by all of the trucks in the rental fleet in all states and the District of Columbia during the preceding calendar year or other period specified by the department;
    2. the total number of miles operated in this state by all of the trucks in the rental fleet during the preceding calendar year or other period specified by the department; and
    3. other fleet rental truck registration information that the department may require.
  3. A fleet rental owner or authorized representative whose application for registration under this section has been accepted by the department shall preserve records of the period on which the application was based for four years. Upon request of the department, the fleet rental owner or authorized representative shall
    1. provide records preserved under this subsection to the department for audit; or
    2. pay the cost of an audit conducted by a representative of the department at the office of the owner.
  4. After compliance with this section, all trucks identified as part of the rental fleet, and currently registered in any state or in the District of Columbia, may operate in this state.
  5. If the department determines that the fleet rental owner or authorized representative has not registered fleet rental trucks as required by this section, the department may suspend or revoke a registration previously issued, and may deny future fleet rental registration under (a) of this section, until the owner or authorized representative has complied with this section.  If registration under (a) of this section has been suspended, revoked, or denied, all the owner’s fleet rental trucks present in the state must be registered under applicable state law.
  6. A fee or tax paid as a result of registration required under this section does not satisfy or offset other fees or taxes levied by the state or a political subdivision in connection with the ownership or operation of fleet rental trucks.
  7. In this section, “fleet” means a fleet of 10 or more rental trucks that are rented or offered for rent without a driver.

History. (§ 4 ch 20 SLA 1990)

Sec. 28.10.147. Registration of interstate rental trailers.

  1. Notwithstanding any other registration requirement of this chapter, a fleet rental trailer owner or authorized representative shall register the average number of trailers present in this state as calculated under this subsection, and shall pay the fees and taxes required by this chapter.  The average number of trailers is equal to the total number of trailers in the fleet that were present at any time in the state during a calendar year or other period established by the department by regulation, divided by the number of calendar months in the period.
  2. When applying for registration of trailers as required under (a) of this section, the fleet rental owner or authorized representative shall file with the department a certified report containing verifiable data as to the average number of trailers that were present at any time in the state for the previous calendar year or other period specified by the department.
  3. A fleet rental owner or authorized representative whose application for registration under this section has been accepted by the department shall preserve records of the period on which the application was based for four years. Upon request of the department, the fleet rental owner or authorized representative shall
    1. provide records preserved under this subsection, to the department at its office for audit; or
    2. pay the cost of an audit conducted by a representative of the department at the office of the owner.
  4. After compliance with this section, all trailers identified as part of the rental fleet, and currently registered in any state or in the District of Columbia, may operate in this state.
  5. If the department determines that the fleet rental owner or authorized representative has not registered fleet rental trailers as required by this section, the department may suspend or revoke a registration previously issued, and may deny future registration under (a) of this section, until the owner has complied with this section. If registration under (a) of this section has been suspended, revoked, or denied, all the owner’s fleet rental trailers present in the state must be registered under applicable state law.
  6. A fee or tax paid as a result of registration required under this section does not satisfy or offset other fees or taxes levied by the state or a political subdivision in connection with the ownership or operation of fleet rental trailers.
  7. In this section, “fleet” means a fleet of 10 or more rental trailers that are rented or offered for rent for personal use, not for the transportation of persons or property for hire or other commercial use, and includes a boat trailer, baggage trailer, box trailer, utility trailer, house trailer, or travel trailer.

History. (§ 4 ch 20 SLA 1990)

Sec. 28.10.150. Duplicates. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.151. Vehicles transported under special permits.

  1. When moved or driven under a special permit to be designed and issued by the department, the registration required by this chapter is not required of
    1. a vehicle under construction and that is not completed;
    2. a vehicle while being moved from one place to another for the purpose of inspection, weighing, or meeting other requirements of the department;
    3. a vehicle while being moved or driven from one location to another for the purpose of rebuilding, dismantling, or permanently removing the vehicle from the highways and vehicular ways and areas of the state; or
    4. an unladen commercial vehicle making a single continuous trip by a noncircular route for a period of time not exceeding 10 days.
  2. A special permit issued under this section shall be prominently displayed.

History. (§ 7 ch 178 SLA 1978; am §§ 6, 7 ch 45 SLA 1987)

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Sec. 28.10.152. Certificates of temporary registration for certain commercial vehicles.

  1. If a commercial vehicle registered outside the state enters the state and is not to be registered under AS 28.10.121 , 28.10.131 , or another provision of this chapter, it must be temporarily registered under the provisions of this section.
  2. For a commercial vehicle to be registered under this section, the operator of the vehicle must provide proof of valid registration of the vehicle in another jurisdiction and any other documentation required by the department by regulation. Upon receipt of the proof of registration, any other required documentation, and payment of the applicable fee under (d) of this section, the department or the department’s designee may issue a certificate of temporary registration, valid for 30 days, for the commercial vehicle. The certificate of temporary registration must state the date of issuance and the expiration date.
  3. A certificate of temporary registration under this section may be issued for a commercial vehicle even if a certificate of temporary registration has previously been issued for the vehicle and has expired.
  4. The fee for a certificate of temporary registration under this section is
    1. for a truck or a truck tractor, $350;
    2. for a commercial bus, $350;
    3. for all other commercial vehicles, including a trailer or a semi-trailer, $10.
  5. Fees collected under this section may be appropriated by the legislature to the Department of Transportation and Public Facilities for programs related to commercial vehicles, including the administration and operation of weigh stations and commercial vehicle safety programs.

History. (§ 14 ch 48 SLA 1998)

Sec. 28.10.155. Permanent motor vehicle registration.

  1. The owner of a motor vehicle, other than a commercial motor vehicle, that is required to be registered under this chapter may elect to register the motor vehicle permanently in lieu of registration under AS 28.10.108 if the vehicle is at least eight years old and the owner resides in the unorganized borough or in a municipality that elects, by passage of an appropriate ordinance, to allow the permanent registration of motor vehicles. The permanent registration expires when the owner transfers or assigns the owner’s title or interest in the vehicle. A permanent registration may not be renewed. On receiving the proper application and fees, the department shall issue to the registered owner registration plates, tabs, and a permanent registration form.
  2. The fees for permanent registration must equal the fees that would be applicable if the motor vehicle were registered under AS 28.10.108 , plus a permanent registration fee of $25. The motor vehicle registration tax for a permanently registered vehicle is the rate established for permanent motor vehicle registration under AS 28.10.431(j) . If a municipality has not established a tax for a permanently registered motor vehicle, the biennial rate established in AS 28.10.431(b) or (j), if any, is levied upon the vehicle and is payable only once at the time a motor vehicle is permanently registered. Except as provided in AS 28.10.423(b) , the owner of a permanently registered motor vehicle is not required to pay other registration fees or taxes under this chapter.

History. (§ 2 ch 50 SLA 2014)

Effective dates. —

Section 9, ch. 50, SLA 2014 made this section effective January 1, 2015.

Sec. 28.10.160. Transfers. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.161. Registration plates to be furnished by department.

  1. Except for a vehicle registered under AS 28.10.152 , the department, upon registering a vehicle, shall issue the owner one fully reflectorized registration plate for a trailer or a motorcycle and two fully reflectorized registration plates for every other vehicle. Except as specifically provided in AS 28.10.181 , the plate or plates must remain with the vehicle as long as the vehicle is subject to registration under this chapter.
  2. Every passenger vehicle registration plate, except as specifically provided in AS 28.10.181 , shall have displayed on it
    1. one of the following designs:
      1. the Alaska flag design, consisting of the Alaska flag, the traditional colors of yellow-gold and blue, and the slogan “The Last Frontier”;
      2. the bear design, consisting of a standing grizzly bear in the center of the plate; the bear design shall be modeled after the 1976 bicentennial plate without the bicentennial symbol; or
      3. the design celebrating the arts chosen by the commissioner through consultation with the Alaska State Council on the Arts; the commissioner shall choose a new design for the plates celebrating the arts every four years and discontinue issuance of the previous design;
    2. the registration number assigned to the vehicle for which it is issued;
    3. the name of this state, which may be abbreviated; and
    4. the registration year number or expiration date for which time it is validated; the registration year number or expiration date may be part of the license plate or contained on a suitable sticker or tab device issued by the department; however, only one sticker or tab device may be issued for each pair of plates, and the sticker or tab device must be affixed to the rear plate.
  3. The department may not adopt a new or altered passenger vehicle registration plate, except as specifically provided in AS 28.10.181 , unless it substantially embodies the specifications of this section.
  4. The department shall produce registration plates in both of the designs described in (b)(1) of this section. Upon registering a passenger vehicle, the owner shall select the plate design described in (b)(1) of this section that is to be issued by the department for the vehicle.

History. (§ 7 ch 178 SLA 1978; am § 35 ch 21 SLA 1991; am § 4 ch 2 FSSLA 1992; am §§ 2, 3 ch 38 SLA 1996; am § 15 ch 48 SLA 1998; am §§ 2, 3 ch 14 SLA 2007; am §§ 1 — 3 ch 98 SLA 2014; am § 2 ch 70 SLA 2018)

Cross references. —

For a statement of purpose applicable to the amendment of (b) of this section by §§ 2 and 3, ch. 14, SLA 2007, to commemorate the 50th anniversary of the state’s admission to the United States, see § 1, ch. 14, SLA 2007, in the 2007 Temporary and Special Acts. For a transitional provision authorizing continued use on or after May 29, 2007, of the remaining supply of the passenger vehicle registration plates described in (b) of this section before the subsection’s amendment by ch. 14, SLA 2007, see § 7, ch. 14, SLA 2007, in the 2007 Temporary and Special Acts. For a transitional provision authorizing continued use on and after January 1, 2010, of the remaining supply of the passenger vehicle registration plates described in (b) of this section based on the subsection’s amendment by ch. 14, SLA 2007, see § 8, ch. 14, SLA 2007, in the 2007 Temporary and Special Acts. For statement of intent concerning intervening amendments, see § 9, ch. 14, SLA 2007.

Effect of amendments. —

The 2014 amendment, effective January 1, 2015, in (b)(1), added “either” as the introductory language, in (b)(1)(A) inserted “design, consisting of the Alaska flag,”, added (b)(1)(B), and made related changes; in (c), inserted “, except as specifically provided in AS 28.10.181 ,” following “vehicle registration plate”; added (d).

The 2018 amendment, effective October 27, 2018, rewrote the introductory language in (b)(1), which read “either”, added (b)(1)(C), and made related and stylistic changes.

Sec. 28.10.165. Souvenir winter olympics plate. [Repealed, § 9 ch 20 SLA 1990.]

Sec. 28.10.170. Expiration. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.171. Display of registration plates.

  1. When two registration plates are issued for a vehicle, they shall be attached to the vehicle for which issued, one in front and the other in the rear. When one registration plate is issued, it shall be attached to the rear of the vehicle for which issued.
  2. Every registration plate issued under this chapter shall be securely fastened to the vehicle to which it is assigned, with the upper edge of the plate horizontal, at a height of not less than 12 inches from the ground measuring from the bottom of the plate, and maintained in a location and condition so as to be clearly legible.  However, when considered necessary to insure legibility, the commissioner may provide by regulation for another method of installation.

History. (§ 7 ch 178 SLA 1978)

Notes to Decisions

After-the-fact justification. —

Where defendant, stopped by police who were searching for perpetrator of a crime, challenged the legality of his stop on the grounds that although his vehicle’s license plate was covered with snow when he was stopped, the officers did not subjectively rely on the illegible license plate as a basis for their actions, the court, without deciding the constitutionality of the stop under the Alaska Constitution, held that for purposes of federal law the state was allowed to rely on an after-the-fact justification. An objective basis for the stop existed prior to the officer initiating the stop since the officer had probable cause to believe that defendant’s vehicle was being driven in violation of AS 28.10.171(b) , a misdemeanor. Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002), cert. denied, 540 U.S. 915, 124 S. Ct. 302, 157 L. Ed. 2d 209 (U.S. 2003).

Probable cause to stop. —

Where defendant was charged with possession of methamphetamine following a traffic stop, his motion to suppress was properly denied; the trooper was entitled to stop the vehicle, to identify it, and to enforce this section, where defendant’s license plate was bent and the plate number illegible. Way v. State, 100 P.3d 902 (Alaska Ct. App. 2004).

Police stop based upon an obscured or illegible license plate was proper police procedure and not pretextual, so that the driving under the influence charge against the driver which resulted from the stop was upheld. Polushkin v. State, — P.3d — (Alaska Ct. App. May 6, 2009), (memorandum opinion).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 57.

60 C.J.S., Motor Vehicles, § 221.

Secs. 28.10.172, 28.10.180. Staggered registration; renewal. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.181. Registration of unique and special vehicles and vehicles used for special purposes; special registration plates.

  1. The department shall register unique and special vehicles and vehicles used for special purposes and issue registration plates as provided in this section. Notwithstanding other provisions of this chapter, registration plates issued under this section remain with the person or organization to whom they are issued when vehicle ownership is transferred or title or interest in the vehicle is assigned, except for plates issued under (b), (h) and (i) of this section. Registration plates issued under this section may not be used on, or transferred to, a vehicle other than the vehicle for which the plates are issued without the approval of the department and payment of any required fees and taxes prescribed in  AS 28.10.421(d) , 28.10.431 , and 28.10.441 . Registration plates issued under this section to which a person is no longer entitled or the transfer of the plates to another vehicle that the department does not approve shall be returned immediately to the department by the person or organization to whom the plates were originally issued.
  2. Historic vehicles. The owner of a historic vehicle may make application for special registration under this subsection. The department, when satisfied that the vehicle meets the requirements for historic vehicle registration under regulations adopted by the commissioner, shall register the vehicle and (1) issue two permanent registration plates of distinctive design and color bearing no date; vehicles qualifying for registration under this paragraph shall be issued registration plates numbered in a separate numerical series beginning with “Historic Vehicle No. 1”; or (2) allow the vehicle to use registration plates of this state supplied by the vehicle owner that correspond to the year the vehicle was manufactured if the vehicle was manufactured 30 or more years before the year of application. Registration plates issued under this subsection remain with the vehicle as long as the vehicle is registered under this subsection.
  3. Special request plates. Upon application by the owner of a motor vehicle, the department shall design and issue registration plates containing a series of not more than six letters or numbers or combination of letters and numbers as requested by the owner. The department may, in its discretion, disapprove the issuance of registration plates under this subsection when the requested symbols are a duplication of an existing registration or when the symbols are considered unacceptable by the department.
  4. Vehicles owned by veterans with disabilities, including persons disabled in the line of duty while serving in the Alaska Territorial Guard, or other persons with disabilities. Upon the request of a person with a disability that limits or impairs the ability to walk, as defined in 23 C.F.R. 1235.2, the department shall (1) register one motor vehicle in the name of the person without charge; and (2) issue a specially designed registration plate that displays (A) recognition of the disabled veteran if the applicant’s disability originated from the applicant’s service with the Alaska Territorial Guard or the armed forces of the United States; (B) the international symbol of accessibility (the wheelchair logo); and (C) if the applicant is a veteran, the Alaska and United States flags and red, white, and blue colors. A person who is not otherwise qualified under this subsection, but who meets the qualifications of a disabled veteran under AS 29.45.030(i) , may register one motor vehicle without charge, and the department shall issue a specially designed registration plate that displays recognition of the disabled veteran that does not display the international symbol of accessibility and does not carry with it special parking privileges. A disabled veteran who otherwise qualifies for a registration plate under this subsection may elect to receive a plate under (p) or (q) of this section for which the person is otherwise qualified that does not display the international symbol of accessibility and does not carry with it special parking privileges. A disabled person who otherwise qualifies for a registration plate under (2)(B) of this subsection may elect to receive a plate under another provision of this section for which the person is otherwise qualified that does not display the international symbol of accessibility and does not carry with it special parking privileges. For purposes of this subsection, proof of disability may be provided by a person licensed as a speech-language pathologist under AS 08.11, as a chiropractor under AS 08.20, as a physician or physician assistant under AS 08.64, as an advanced practice registered nurse under AS 08.68, or as a physical therapist or occupational therapist under AS 08.84.
  5. Vehicles owned by the state, municipalities, and charitable organizations of the state.  Every certificate of registration and registration plate issued to the state, a municipality, or charitable organization of the state is in effect until the vehicle for which the registration certificate and plate were issued is no longer owned and operated by the state, the municipality, or the charitable organization of the state or until the department, in its discretion, declares its expiration. The state, municipality, or charitable organization of the state shall maintain a current listing of all vehicles registered to it in the order of the registration number assigned to each vehicle, and shall provide a copy of the listing to the department upon request. The listing must include a description of each vehicle and other identifying information required by the department. Registration plates issued under this subsection must be of a distinctive design and numbering system.  For the purposes of this subsection, “charitable organization” means a nonprofit association, corporation, society, or other entity organized, incorporated, or headquartered in the state for educational, cultural, scientific, or other charitable purposes, as prescribed in regulations of the department.
  6. Vehicles owned by elected state officials. The department shall issue special registration plates to each incumbent elected state official for display on motor vehicles owned and driven by the official except that the plates may not be displayed on a vehicle that is visually identifiable as a commercial vehicle. The department shall number or design the plates so that registration by an elected state official is indicated upon the plates. The registration plates issued under this subsection may remain on the vehicle only during the official’s term of office.
  7. [Repealed, § 9 ch 20 SLA 1990.]
  8. Vehicles owned by ranchers, farmers, and dairymen. A vehicle not exceeding an unladen total gross weight of 20,000 pounds, owned by a person deriving the person’s primary source of livelihood from the operation of a ranch, farm, or dairy where the person resides full-time, and that is used exclusively to transport (1) the person’s own ranch, farm, or dairy products, or greenhouse or nursery products, including vegetables, plants, grass seed, sod, or tree seedlings, to and from the market, or (2) supplies, commodities, or equipment to be used on the person’s ranch, farm, or dairy, or in the person’s greenhouse or nursery, may be registered under this subsection and may be issued registration plates of a distinctive design or system of numbering.
  9. Amateur mobile radio station vehicles.  A validly licensed amateur radio operator who presents satisfactory proof that the owner holds an unexpired Federal Communications Commission amateur radio operator’s license of any renewable class, and who presents satisfactory proof that the vehicle contains or carries an amateur radio transmitter and receiving unit of a type applicable to the license class applied for, and who is permitted by law to operate a fixed station, may register one amateur mobile radio station vehicle for each radio license issued by the federal government and may receive for the vehicle distinctive registration plates instead of regular registration plates.  The number on the plates must be the radio call sign of the owner.
  10. Vehicles owned by dealers. A state-registered and bonded vehicle dealer may apply for dealer registration plates. A plate issued under this subsection may be used only on dealer-owned vehicles during the routine and normal course of the dealer’s business, excluding service vehicles, or for transporting an unregistered vehicle from a port of entry to the dealer’s facilities or from one dealer to another or, in the case of a house trailer, from the retail facility to a trailer space. A vehicle permitted to have dealer plates must be affixed with two plates issued under this subsection. If the dealer sells or transfers the vehicle, the dealer plates may be used on the vehicle by the new owner or transferee for a period of not more than five days after the sale or transfer. The department may seize the dealer plates if it has reason to believe that the plates are being used to defeat the purposes of, or are in violation of, this chapter.
  11. [Repealed, § 3 ch 8 SLA 1993.]
  12. Vehicles owned by Pearl Harbor survivors, former prisoners of war, Medal of Honor recipients, and relatives of members of the United States armed forces killed in the line of duty. The department, upon receipt of written proof, shall issue without charge special registration plates for one noncommercial motor vehicle to a person who was on active military duty in Pearl Harbor on December 7, 1941, who has been a prisoner of war during a declared war or other conflict, as determined by the Department of Defense under federal regulations, who is the recipient of the Medal of Honor awarded by the President of the United States in the name of the United States Congress, or the spouse, parent, guardian, brother, sister, or dependent of a member of the United States armed forces killed in the line of duty. The design and color of the Pearl Harbor survivor, prisoner of war, Medal of Honor awarded by the President of the United States in the name of the United States Congress recipient, or relative of a member of the United States armed forces killed in the line of duty plates shall be solely within the discretion of the commissioner.
  13. Special request plates for Alaska National Guard personnel. Upon application by the owner of a motor vehicle who presents satisfactory proof of current membership in the Alaska National Guard, the department may design and issue registration plates that identify the vehicle as registered to a member of the Alaska National Guard.
  14. [Repealed, § 9 ch 20 SLA 1990.]
  15. Special request university plates. Upon application by the owner of a motor vehicle, the department may design and issue registration plates representing the University of Alaska Anchorage, University of Alaska Fairbanks, University of Alaska Southeast, or Prince William Sound Community College. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.
  16. Vehicles owned by veterans. The department, upon receipt of written proof that the veteran is a sole or joint owner of a motor vehicle, shall issue special registration plates for the motor vehicle to a requesting person who is a veteran or retired veteran of the armed forces of the United States. The commissioner, after consulting with the person in the Department of Military and Veterans’ Affairs in charge of veterans’ affairs, shall determine the design and color of the veteran or retired veteran plates.
  17. Vehicles owned by recipients of the Purple Heart. The department, upon receipt of written proof that the person is the sole or joint owner of a motor vehicle, shall issue special registration plates for the motor vehicle to a requesting person who has received the Purple Heart medal awarded for wounds suffered in action against an armed enemy or as a result of the hostile action of an armed enemy. The commissioner, after consulting with the person in the Department of Military and Veterans’ Affairs in charge of veterans’ affairs, shall determine the design and color of the Purple Heart medal recipient plates.
  18. Special request custom collector plates. Upon application by the owner of a custom collector vehicle, the department may design and issue registration plates appropriate for custom collector vehicles. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.
  19. Special request dog mushing plates. Upon application by the owner of a motor vehicle, the department may design and issue registration plates representing the sport of dog mushing in the state. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.
  20. Special request Alaska children’s trust plates. Upon application by the owner of a motor vehicle, the department may design and issue registration plates representing the Alaska children’s trust under  AS 37.14.200 . The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.
  21. [Repealed, § 8 ch 70 SLA 2018.]
  22. [Repealed, § 4 ch 11 SLA 2002.]
  23. Special request plates commemorating Alaska veterans. Upon application by the owner of a motor vehicle, the department may issue registration plates commemorating Alaska veterans. The commissioner shall determine the design and color of plates commemorating Alaska veterans. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.
  24. Special request plates commemorating and supporting troops. Upon application by the owner of a motor vehicle, the department may issue registration plates commemorating and supporting troops. The commissioner, in consultation with Support Our Troops, Inc., shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration “Support Our Troops” shall appear at the bottom of the plate and may be alternated with “Support Our Heroes” if Support Our Troops, Inc., approves the use of terms and agrees to be responsible for any costs incurred from lack of sale of plates.
  25. Special request Iditarod race finisher plates. Upon application by the owner of a motor vehicle, the department may design and issue Iditarod race finisher registration plates to a person who has finished the Iditarod race. The owner shall supply written proof, verified by the Iditarod Trail Committee, that the owner has successfully finished the race. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.
  26. Special request firefighter and emergency medical service provider plates. On application by the owner of a motor vehicle, the department may issue registration plates for firefighters and emergency medical service providers. The commissioner shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration. To be eligible for a firefighter and emergency medical service provider plate, a person shall present satisfactory proof that the person is
    1. an active member of
      1. a fire department in this state and the fire department is recognized as a fire department by the state fire marshal; or
      2. an out-of-hospital emergency medical service certified by the Department of Health and Social Services; or
    2. a former firefighter or emergency medical service provider who was an active member of
      1. a fire department in this state for a minimum of five years; or
      2. an out-of-hospital emergency medical service certified by the Department of Health and Social Services for a minimum of five years.

(aa) Special request fraternal organization member plates. On the request of a fraternal organization, the department may design a registration plate for the members of that fraternal organization. On application by the owner of a motor vehicle who is a member of that fraternal organization, the department may issue the fraternal organization registration plates to the person. The commissioner shall determine the design and color of the fraternal organization plates in consultation with the fraternal organization. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration. To be eligible for a fraternal organization member registration plate, a person must present evidence satisfactory to the department of the person’s membership in the fraternal organization. In this subsection, “fraternal organization” means a civic, service, or charitable organization in the state, except a college and high school fraternity, not for pecuniary profit, that is a branch, lodge, or chapter of a national organization and exists for the common business, brotherhood, or other interest of its members.

(bb) Special request United States flag “In God We Trust” plates. Upon application by the owner of a motor vehicle, the department may issue registration plates with a design incorporating the flag of the United States and the motto “In God We Trust” on the plate. The commissioner shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.

(cc) Special request Lao veteran plates. Upon application by the owner of a motor vehicle, the department may issue registration plates commemorating the owner’s service in military operations in support of the United States in the Kingdom of Laos between February 28, 1961, and May 15, 1975. The commissioner shall determine the design and color of the Lao veteran plates in consultation with veterans’ and Southeast Asian community organizations in the state. To be issued a registration plate under this subsection, the owner must present evidence satisfactory to the department that the owner served in military operations as required by this subsection. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplicate of an existing registration.

(dd) Special request plates commemorating the National Rifle Association. Upon application by the owner of a motor vehicle, the department may issue registration plates commemorating the National Rifle Association. The commissioner, after consulting with representatives of the National Rifle Association in Alaska, shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.

(ee) Special request breast cancer awareness plates. Upon application by the owner of a motor vehicle, the department may issue breast cancer awareness registration plates. The commissioner, after consulting with the Alaska office of the American Cancer Society, shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.

(ff) Special request “Choose Life” plates. Upon application by the owner of a motor vehicle, the department may issue registration plates with the phrase “Choose Life” on the plate. The commissioner, after consulting with Alaska Choose Life, shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.

(gg) Special request “Pro-Family, Pro-Choice” plates. Upon application by the owner of a motor vehicle, the department may issue registration plates with the phrase “Pro-Family, Pro-Choice” on the plate. The commissioner, after consulting with Planned Parenthood of the Great Northwest, shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.

(hh) Experimental vehicles. A vehicle manufacturer or distributor may apply for experimental vehicle plates. A plate issued under this subsection may be used only on an experimental vehicle present in the state. The vehicle manufacturer shall certify to the department that, at the conclusion of the testing, the experimental vehicle was destroyed or removed from the state. Experimental vehicle plates issued under this subsection are valid for a 12-month period and may be renewed for additional 12-month periods, up to a maximum of 36 months, until the testing is complete. Notwithstanding AS 28.10.201 , an experimental vehicle may not be titled under this chapter. In this subsection, “experimental vehicle” means a vehicle in the developmental stage that has not yet reached production in the United States.

(ii) Special request plates commemorating the Blood Bank of Alaska. Upon application by the owner of a motor vehicle, the department may issue registration plates commemorating the Blood Bank of Alaska. The commissioner, after consulting with representatives of the Blood Bank of Alaska, shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration.

(jj) Vehicles owned by recipients of the Bronze Star awarded for valor, Silver Star, Navy Cross, Distinguished Service Cross, Air Force Cross, or Coast Guard Cross. The department, upon receipt of written proof that the person is the sole or joint owner of a motor vehicle, shall issue special registration plates for the motor vehicle to a requesting person who has received the Bronze Star Medal awarded for valor, Silver Star Medal, Navy Cross, Distinguished Service Cross, Air Force Cross, or Coast Guard Cross. The commissioner, after consulting with the person in the Department of Military and Veterans’ Affairs in charge of veterans’ affairs, shall determine the design and color of the Bronze Star awarded for valor recipient plates, Silver Star recipient plates, Navy Cross recipient plates, Distinguished Service Cross recipient plates, Air Force Cross recipient plates, and Coast Guard Cross recipient plates.

(kk) Vehicles owned by recipients of awards reflecting valor issued by the armed forces of the United States. The department, upon written proof that the person is the sole or joint owner of a motor vehicle, may issue special registration plates for the motor vehicle to a requesting person who has received an award reflecting valor issued by the armed forces of the United States other than a Purple Heart, Bronze Star awarded for valor, Silver Star, Navy Cross, Distinguished Service Cross, Air Force Cross, or Coast Guard Cross. The commissioner, after consulting with the person in the Department of Military and Veterans’ Affairs in charge of veterans’ affairs, shall determine the design and color of the award recipient plates.

History. (§ 7 ch 178 SLA 1978; am § 2 ch 54 SLA 1979; am § 1 ch 151 SLA 1984; am § 5 ch 60 SLA 1986; am §§ 3 — 5 ch 24 SLA 1988; am § 1 ch 72 SLA 1989; am § 1 ch 91 SLA 1989; am § 9 ch 20 SLA 1990; am §§ 12, 13 ch 93 SLA 1991; am §§ 1, 2 ch 16 SLA 1992; am § 3 ch 8 SLA 1993; am §§ 55, 56, 79 ch 63 SLA 1993; am § 2 ch 97 SLA 1996; am § 1 ch 36 SLA 1998; am §§ 1 — 4 ch 88 SLA 1998; am § 1 ch 11 SLA 1999; am §§ 1, 2 ch 44 SLA 2001; am §§ 1, 4 ch 11 SLA 2002; am § 3 ch 18 SLA 2002; am § 1 ch 31 SLA 2002; am § 2 ch 56 SLA 2002; am § 1 ch 68 SLA 2003; am §§ 1 — 12 ch 96 SLA 2005; am §§ 20, 21 ch 12 SLA 2006; am § 1 ch 13 SLA 2007; am § 4 ch 14 SLA 2007; am §§ 2, 3 ch 46 SLA 2007; am § 1 ch 2 SLA 2009; am § 1 ch 116 SLA 2010; am § 1 ch 2 SLA 2012; am § 1 ch 22 SLA 2013; am § 4 ch 98 SLA 2014; am §§ 1, 2 ch 15 SLA 2016; am § 44 ch 33 SLA 2016; am §§ 3, 4, 8am § 3 ch 70 SLA 2018; am § 1 ch 28 SLA 2021)

Revisor’s notes. —

Subsections (p) and (q) were enacted as (o) and (p), respectively. Renumbered in 1989. Subsection (u) was enacted as subsection (t). Relettered in 1998.

In 2016, in the title of subsection (u) "celebrating" was substituted for "commemorating" to correct a manifest error.

Cross references. —

For provision relating to a design competition for arts special request plates under subsection (u), see AS 44.27.080 .

Effect of amendments. —

The 2009 amendment, effective June 23, 2009, added subsection (y).

The 2010 amendment, effective July 2, 2010, added (z) and (aa).

The 2012 amendment, effective March 8, 2012, added (bb) through (gg).

The 2013 amendment, effective August 27, 2013, added (hh).

The 2014 amendment, effective January 1, 2015, rewrote (z), which read, “Special request active firefighter and emergency medical service provider plates and former firefighter and emergency medical service provider plates. On application by the owner of a motor vehicle, the department may issue registration plates for active firefighters and emergency medical service providers and registration plates for former firefighters and emergency medical service providers. The commissioner shall determine the design and color of the plates. The department may disapprove the issuance of registration plates under this subsection when the requested plates are a duplication of an existing registration. To be eligible for (1) an active firefighter and emergency medical service provider plate, a person must present satisfactory proof that the person is an active member of (A) a fire department in this state and the fire department is recognized as a fire department by the state fire marshal; or (B) an out-of-hospital emergency medical service certified by the Department of Health and Social Services; (2) a former firefighter and emergency medical service provider plate, a person must present satisfactory proof that the person was an active member of (A) a fire department in this state for a minimum of 10 years; or (B) an out-of-hospital emergency medical service certified by the Department of Health and Social Services for a minimum of 10 years.”

The first 2016 amendment, effective August 31, 2016, in (u), substituted “celebrating” for “commemorating” in two places, added the third sentence; added (ii).

The second 2016 amendment, effective July 7, 2016, in (d), substituted “practice registered nurse” for “nurse practitioner”.

The 2018 amendment, effective October 27, 2018, in (d), in the last sentence, inserted “chiropractor under AS 08.20, as a” following “person licensed as a”; repealed (u); effective January 1, 2019, added (jj) and (kk).

The 2021 amendment, effective November 23, 2021, in (d), in the last sentence, inserted “as a speech-language pathologist under AS 08.11,” following “by a person licensed” and “, or as a physical therapist or occupational therapist under AS 08.84” following “under AS 08.68” and made a related change.

Editor’s notes. —

Section 87, ch. 63, SLA 1993 provides “[i]f any section of this bill is found to violate the single subject rule it is severed from the rest of the bill.”

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 59, 84 to 97-92.

60 C.J.S., Motor Vehicles, § 171 et seq.

Secs. 28.10.190, 28.10.200. Transfer of special plates; annual tax. [Repealed, § 7 ch 178 SLA 1978.]

Article 2. Title.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 29-34.

60 C.J.S., Motor Vehicles, § 111 et seq.

Liability of state, in issuing automobile certificate of title, for failure to discover title defect, 28 ALR4th 184.

Sec. 28.10.201. Mandatory and permissive vehicle titles.

  1. Except as otherwise provided in (b) of this section or in AS 28.10.131 , 28.10.152 , and 28.10.181 (hh), every owner of a vehicle subject to registration in this state shall apply for a certificate of title under this chapter.
  2. The owner of a vehicle described in AS 28.10.011 as being exempt from registration and the owner of a snowmobile or off-highway vehicle may not apply for, nor may the department issue, a certificate of title for the vehicle. However, the department
    1. may issue a certificate of title to the owner of a vehicle exempt from registration under AS 28.10.011 (3), (6), (7), or (10) only upon application by that owner; and
    2. except as provided in (e) of this section, shall issue a certificate of title to the owner of a manufactured home upon application, display of evidence of ownership satisfactory to the department, and payment of a fee of $100 by the owner; a certificate of title issued under this paragraph must comply with AS 28.10.231 .
  3. The certificate of title issued may, when there is more than one owner, state the name of each owner in the conjunctive or in the disjunctive in order to indicate that the owners own the vehicle together or in the alternative.
  4. Except for vehicles registered under AS 28.10.131(b) or (c) or 28.10.152 , the department may not register a vehicle unless the applicant for registration at the same time applies for and obtains a certificate of title under this chapter or presents satisfactory evidence that a certificate of title was previously issued to the applicant. The department may not accept the application for the original certificate of registration or title to a vehicle unless the vehicle is in the state at the time of application. However, the department may accept an application for registration and certificate of title for a vehicle that is not in the state when the application is made by a registered and bonded dealer or by a resident of the state when the application is accompanied by a manufacturer’s statement of origin or, in the case of a used vehicle, when the application is accompanied by a certificate of title issued in another jurisdiction.
  5. The department may not issue a certificate of title to a manufactured home if an application for the manufactured home has been filed under AS 28.10.262 28.10.264 .

History. (§ 7 ch 178 SLA 1978; am § 2 ch 99 SLA 1983; am § 84 ch 6 SLA 1984; am § 8 ch 45 SLA 1987; am § 57 ch 63 SLA 1993; am § 1 ch 31 SLA 1994; am § 3 ch 131 SLA 1996; am §§ 16, 17 ch 48 SLA 1998; am §§ 10, 11 ch 64 SLA 2012; am § 2 ch 22 SLA 2013)

Revisor’s notes. —

The reference in paragraph (b)(1) to paragraph (10) of AS 28.10.011 was substituted for paragraph (11) in 1998 to reflect the 1998 renumbering of that paragraph.

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, in (b)(2), added “except as provided in (e) of this section,” at the beginning, and substituted “manufactured home” for “mobile home”; and added (e).

The 2013 amendment, effective August 27, 2013, substituted “AS 28.10.131 , 28.10.152 , and 28.10.181 (hh)” for “AS 28.10.131 and 28.10.152 ”.

Notes to Decisions

Purpose of former chapter. —

The primary concern of the legislature in enacting former Chapter 10 was to facilitate the suppression of the traffic in stolen cars by requiring certificates of ownership. Blackard v. City Nat'l Bank, 142 F. Supp. 753, 16 Alaska 344 (D. Alaska 1956).

Secs. 28.10.205, 28.10.210. Personalized plates; tax exemptions. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.211. Application for title.

  1. The owner of a vehicle required to be titled under this chapter shall apply for title by properly completing and surrendering the forms prescribed by the commissioner and by complying with all applicable laws and regulations, after which the department shall issue a certificate of title.
  2. An application for title or transfer of title must contain
    1. the signature in ink of the owner, or if there is more than one owner, the signature in ink of at least one of the owners and the name of each owner stated in the conjunctive or in the disjunctive; and
    2. any other information reasonably required by the department.
  3. When an application for title refers to a new vehicle, the application must be accompanied by a “manufacturer’s certificate of origin” and other information reasonably required by the department.
  4. An applicant for title to a vehicle transferred by court action on a lien or encumbrance shall surrender to the department a certified copy of the court order involuntarily transferring the vehicle.
  5. If a vehicle to be titled is a specially constructed or reconstructed vehicle, the fact shall be noted on the application for title.  The department may require evidence of prior registration of, or issuance of title for, the vehicle and may require the applicant to furnish additional information as it considers necessary to establish ownership, including bills of sale, invoices for vehicle equipment, or a surety bond.
  6. The holder of a manufacturer’s certificate of origin for a manufactured home may deliver the certificate to any person to facilitate conveying or encumbering the manufactured home, and a person who receives the manufacturer’s certificate of origin holds it in trust for the person delivering it.

History. (§ 7 ch 178 SLA 1978; am §§ 12, 13 ch 64 SLA 2012)

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, in (c), substituted “ ‘manufacturer’s certificate of origin’ ” for “ ‘manufacturer’s statement of origin’ ”; and added (f).

Sec. 28.10.215. Vehicles for disabled. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.216. Inadequate evidence of ownership.

  1. When the department is not satisfied as to the ownership of a vehicle or believes that there may be undisclosed security interests in it, the department may register the vehicle but shall either
    1. withhold issuance of a certificate of title until the applicant presents documents sufficient to satisfy the department
      1. as to the ownership of the vehicle by applicant, and
      2. that there are no undisclosed security interests in the vehicle; or
    2. require the applicant, as a condition of the issuance of a certificate of title, to file with the department either
      1. a bond in the form prescribed by the department and executed by the applicant, or
      2. a deposit of cash.
  2. A bond or cash deposit filed under (a)(2) of this section must be equal in amount to one and one-half times the value of the vehicle as determined by the department and be conditioned to indemnify former owners, secured parties, and subsequent purchasers of the vehicle and their successors against loss resulting from a defect in or undisclosed security interest on the title of the applicant.  An injured party may sue on the bond for a breach of its conditions, but the liability of the surety or the department may not exceed the amount of the bond or deposit.
  3. The bond or deposit shall be returned (1) at the end of three years from its filing, or (2) when the vehicle is no longer registered in the state if (2) is earlier and if the certificate of title is surrendered to the department. Service on the department of notice that action is pending to recover on the bond or the deposit extends the periods established in this subsection until 45 days after a final decision in the action on the bond or on the deposit.

History. (§ 3 ch 54 SLA 1979)

Sec. 28.10.220. Farm vehicles. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.221. Refusal, suspension, and revocation of title.

  1. The department may refuse to issue a certificate of title and may suspend or revoke a previously issued certificate of title when
    1. the certificate of title was fraudulently procured or erroneously issued or required information or fees have not been provided;
    2. the vehicle has been scrapped, dismantled, or destroyed beyond repair;
    3. the vehicle has been reported to the department as stolen or unlawfully converted, until the department learns of the recovery of the vehicle or that the report of its theft or conversion was false or erroneous; or
    4. authorized by any other provision of law.
  2. Suspension or revocation of a certificate of title under (a) of this section does not affect the rights of a lienholder named on the certificate.
  3. A certificate of title that is suspended or revoked shall be returned immediately to the department by the owner or other person lawfully entitled to possession of the certificate of title.
  4. Except as provided in AS 28.10.263 , the department may not suspend or revoke a certificate of title to a manufactured home based on the fact that the manufactured home is affixed in any manner to real property.

History. (§ 7 ch 178 SLA 1978; am § 14 ch 64 SLA 2012)

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, added (d).

Notes to Decisions

Low-speed car. —

Because substantial evidence supported the hearing officer’s conclusion that a car had not been shown to comply with the applicable safety standards, the Department of Administration had a reasonable basis under AS 28.10.041 and AS 28.10.221 for its refusal to title and register the vehicle as a low-speed vehicle. Haar v. State, 349 P.3d 173 (Alaska 2015).

Sec. 28.10.230. Sunday school buses. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.231. Certificate of title contents.

  1. A certificate of title issued by the department must contain
    1. the date issued;
    2. the name and residence and mailing address of the owner;
    3. the name and address of the primary lienholder, if any;
    4. a description of the vehicle including its make, year of manufacture, identification number; and
    5. other information the department may reasonably require.
  2. The certificate of title must contain a space for the assignment and warranty of title by the owner or dealer selling the vehicle and a space for the assignment or release of the security interest of a lienholder, and may contain forms for application for title by a transferee, and for the naming of a primary lienholder.
  3. The department may not indicate on a certificate of title more than the primary lienholder and the primary registered owner when indicating lienholders and registered owners.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.240. Proration of tax. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.241. Delivery and judicial process against certificate of title.

  1. The department shall deliver the certificate of title to the primary lienholder named in the certificate.  Otherwise, delivery shall be to the registered owner.
  2. A certificate of title for a vehicle is not subject to attachment, execution or other judicial process, but this section does not prevent a lawful levy upon the vehicle.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.250. Special dealer tax. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.251. Lost, stolen, or mutilated certificate of title.

  1. If a certificate of title is lost, stolen, mutilated, destroyed, or becomes illegible, the first lienholder or, if none, the owner or legal representative of the owner named in the title as shown by the records of the department shall apply for and obtain a duplicate title upon furnishing information satisfactory to the department and payment of the prescribed fee.  The duplicate title must indicate that it is a duplicate title, and it shall be mailed or delivered to the first lienholder named in it or, if none, to the registered owner.
  2. A person who recovers an original title for which a duplicate has been issued shall immediately surrender the duplicate to the department.

History. (§ 7 ch 178 SLA 1978)

Secs. 28.10.255, 28.10.260. Annual tax; certificate of title. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.261. Evidence.

  1. In a civil or criminal proceeding, when the title or right to possession of a vehicle is involved, the record of registrations and certificates of title as they appear in the files and records of the department are prima facie evidence of the ownership or right to possession. Proof of ownership or right to possession of a vehicle shall be made by a copy of the record certified by the department or by an original certificate of registration or title issued by the department.
  2. Lien information indicated upon the title shall be accepted as prima facie evidence of legal ownership and the filing of a lien.
  3. Notwithstanding another provision of law to the contrary, a certificate of title to a manufactured home issued by the department is prima facie evidence of the facts appearing on it, even if the manufactured home is affixed in any manner to real property.

History. (§ 7 ch 178 SLA 1978; am § 15 ch 64 SLA 2012)

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, added (c).

Notes to Decisions

Annotator’s notes. —

Some of the cases cited in the notes below were decided under former AS 28.10.560 .

Parties to an action may introduce evidence to show who is in fact the true owner of a vehicle required to be registered under the provisions of the Alaska Motor Vehicle Act. State Farm Mut. Auto. Ins. Co. v. Clark, 397 F. Supp. 745 (D. Alaska 1975).

Oral testimony. —

Subsection (a) does not preclude oral testimony as to the ownership, or right to possession, of a motor vehicle. Weaver v. O'Meara Motor Co., 452 P.2d 87 (Alaska 1969).

Ordinarily oral evidence of a party that he owns property, or proof of possession, when not rebutted, is sufficient to establish the requisite ownership to maintain an action for property damage. Most courts have accepted such evidence as sufficient to establish the plaintiff’s ownership of a motor vehicle so as to enable him to maintain an action for damages thereto. Weaver v. O'Meara Motor Co., 452 P.2d 87 (Alaska 1969).

Summary judgment in negligent entrustment case. —

In an action wherein the main issue was whether parents negligently entrusted a vehicle to their son, even though the mother was listed as a co-owner on the certificate of title, the court did not err in entering summary judgment for the parents because there was no evidence creating a genuine issue of material fact as to the parents’ ability to control the vehicle or whether they supplied it to their son. Neary v. McDonald, 956 P.2d 1205 (Alaska 1998).

Applied in

Keltner v. Curtis, 695 P.2d 1076 (Alaska 1985).

Quoted in

Roberson v. Manning, 268 P.3d 1090 (Alaska 2012).

Cited in

Pestrikoff v. Hoff, 278 P.3d 281 (Alaska 2012).

Collateral references. —

Proof of title to motor vehicle requisite to recovery for injury thereof, 7 ALR2d 1347.

Motor vehicle certificate of title or similar document as, in hands of one other than legal owner, indicia of ownership justifying reliance by subsequent purchaser or mortgagee without actual notice of other interests, 18 ALR2d 813.

Article 3. Manufactured Homes.

Cross references. —

For provisions on manufactured homes as real property, see AS 34.85.010 34.85.195 (Manufactured Home Property Act).

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Sec. 28.10.262. Cancellation of manufacturer’s certificate of origin for manufactured home.

  1. If a manufactured home is permanently affixed to real property under AS 34.85.150 , or if the owner intends to permanently affix the manufactured home to real property under AS 34.85.150 , the owner may submit to the department an application requesting that the department cancel the manufacturer’s certificate of origin for a manufactured home and update the department’s records under AS 28.05.061 .
  2. The application under (a) of this section must comply with AS 28.10.266 .
  3. Subject to AS 28.05.041 , if the department is satisfied that the application filed under (a) of this section complies with (b) of this section, the department shall cancel the manufacturer’s certificate of origin for the manufactured home, update the department’s records under AS 28.05.061 , and issue a written acknowledgment that the department has cancelled the certificate of origin under this section. The department shall deliver the written acknowledgment to the owner of the manufactured home and to a person identified under AS 28.10.266 (12).
  4. When the department has cancelled the manufacturer’s certificate of origin under (c) of this section, the manufactured home is not subject to this chapter.

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.263. Cancellation of certificate of title to manufactured home.

  1. If a manufactured home is permanently affixed to real property under AS 34.85.150 , or if the owner intends to permanently affix the manufactured home to real property under AS 34.85.150 , the owner may submit to the department an application requesting that the department cancel the certificate of title to a manufactured home and update the department’s records under AS 28.05.061 .
  2. The application under (a) of this section must comply with AS 28.10.266 .
  3. Subject to AS 28.05.041 , if the department is satisfied that the application filed under (a) of this section complies with (b) of this section and that there are no outstanding liens or encumbrances filed against the manufactured home under AS 28.10.381 , the department shall cancel the certificate of title to the manufactured home, update the department’s records under AS 28.05.061 , and issue a written acknowledgment that the department has cancelled the certificate of title under this section. The department shall deliver the written acknowledgment to the owner of the manufactured home and to a person identified under AS 28.10.266 (12).
  4. When the department has cancelled a certificate of title under (c) of this section, the manufactured home is not subject to this chapter.

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.264. Confirmation of nonapplication of chapter.

  1. The owner of a manufactured home may submit an application to the department requesting that the department indicate on the department’s records that the manufactured home is not subject to this chapter if
    1. the manufactured home is permanently affixed to real property under AS 34.85.150 , or the owner intends to permanently affix the manufactured home to real property under AS 34.85.150 ; and
    2. the manufactured home
      1. is not covered by a manufacturer’s certificate of origin or a certificate of title;
      2. is covered by a manufacturer’s certificate of origin, but the owner of the manufactured home, after diligent search and inquiry, is unable to produce the certificate of origin; or
      3. is covered by a certificate of title, but the owner of the manufactured home, after diligent search and inquiry, is unable to produce the certificate of title.
  2. The application under (a) of this section must comply with AS 28.10.266 and be accompanied by a bond or cash deposit described in (c) of this section.
  3. The bond that accompanies the application under (b) of this section must be in the form prescribed by the department and executed by the applicant. The amount of the bond or cash deposit that accompanies the application under (b) of this section must be equal to one and one-half times the value of the manufactured home as determined by the department and must be conditioned to indemnify former owners, secured parties, and subsequent purchasers of the manufactured home and their successors against loss resulting from a defect in or undisclosed security interest on the title of the applicant. An injured party may bring a court action against the bond or cash deposit for a breach of the conditions of the bond or cash deposit, but the liability of the bond surety or the department may not exceed the amount of the bond or cash deposit. The department shall return the bond or cash deposit at the end of three years after the submission under (b) of this section, except that service on the department of notice that an action is pending against the bond or cash deposit extends that period until 45 days after a final decision in the action on the bond or cash deposit.
  4. If the department is satisfied that the application filed under (a) of this section complies with (b) of this section, the department shall, subject to AS 28.05.041 , indicate under AS 28.05.061 on the department’s records that the manufactured home is not subject to this chapter and shall provide to the owner a written confirmation that the owner of the manufactured home has submitted an application that complies with (b) of this section and that the manufactured home is not subject to this chapter. The department shall deliver the written confirmation to the owner of the manufactured home and to a person identified under AS 28.10.266 (12).
  5. When the department has provided a written confirmation under (d) of this section, the manufactured home is not subject to this chapter.

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.265. Certificate of title to severed manufactured home.

  1. The owner of a manufactured home may submit an application to the department requesting that the department issue a certificate of title to a manufactured home and update the department’s records under AS 28.05.061 if
    1. the manufactured home was permanently affixed to real property under AS 34.85.150 ;
    2. an affixation affidavit was recorded for the manufactured home under AS 40.17.125 ; and
    3. after the occurrence of (1) and (2) of this subsection, the manufactured home was severed from the real property to which it was affixed.
  2. The application under (a) of this section must comply with AS 28.10.266 .
  3. Subject to AS 28.05.041 , if the department is satisfied that the application filed under (a) of this section complies with (b) of this section, the department shall issue a certificate of title to the manufactured home under AS 28.10.231 28.10.241 , update the department’s records under AS 28.05.061 , and issue to the owner and to a person identified under AS 28.10.266 (12) a written acknowledgment that the department has issued a certificate of title under this section.
  4. When the department has issued a certificate of title under (c) of this section, the manufactured home is subject to this chapter.

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.266. Application provisions.

An application under AS 28.10.262 28.10.265 must provide

  1. the name, residence, and mailing address of the owner of the manufactured home;
  2. a description of the manufactured home, including the name of the manufacturer, the make, the model name, the model year, the manufacturer’s serial number for the manufactured home, and other information required by the department about the manufactured home;
  3. whether the manufactured home is new or used;
  4. for an application under AS 28.10.262 28.10.264 , the date of purchase by the owner of the manufactured home and the name and address of the person from whom the home was acquired;
  5. for an application under AS 28.10.262 28.10.264 , the name and address of any person who holds a lien or an encumbrance against the manufactured home and the order of apparent priority;
  6. a statement signed by the owner, stating
    1. any facts or information known to the owner that could reasonably affect the validity of the title to the manufactured home or the existence or nonexistence of a lien or encumbrance on it; or
    2. that the owner does not know any facts or information that could reasonably affect the validity of the title to the manufactured home or the existence or nonexistence of a lien or encumbrance on the manufactured home;
  7. subject to AS 28.10.268 , for an application under AS 28.10.262 28.10.264 , a certified copy of an affixation affidavit that complies with AS 34.85.060 and that has been recorded under AS 40.17.125 for the manufactured home;
  8. for an application under AS 28.10.265 , a certified copy of a severance affidavit that complies with AS 34.85.120 and that has been recorded under AS 40.17.125 for the manufactured home;
  9. for an application under AS 28.10.262 , the original manufacturer’s certificate of origin;
  10. for an application under AS 28.10.263 , the original certificate of title;
  11. for an application under AS 28.10.264 or 28.10.265 , a declaration that complies with AS 28.10.267 ;
  12. if desired by the applicant, the name and mailing address of one person, in addition to the owner, to receive a written acknowledgment from the department under AS 28.10.262 , 28.10.263 , or 28.10.265 or a written confirmation under AS 28.10.264 ; and
  13. other information and documents the department reasonably requires
    1. to identify the owner of the manufactured home;
    2. to determine the existence or nonexistence of liens or encumbrances on the manufactured home;
    3. for an application under AS 28.10.262 28.10.264 , to enable the department to determine whether the owner satisfied the applicable requirements of AS 34.85.010 ; and
    4. for an application under AS 28.10.265 , to enable the department to determine whether the owner of the manufactured home is entitled to a certificate of title.

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.267. Declaration.

  1. The declaration required by AS 28.10.266 (11) must be made under oath or affirmation by an attorney authorized under AS 08.08 to practice law in the state or an agent of a title insurance company entitled under AS 21.66 to transact a title insurance business in this state.
  2. The declaration must state that the manufactured home is free and clear of all liens and encumbrances and
    1. any facts or information known to the attorney or agent that could reasonably affect the validity of the title to the manufactured home or the existence or nonexistence of a lien or encumbrance on the manufactured home; or
    2. that the attorney or agent does not know any facts or information that could reasonably affect the validity of the title to the manufactured home or the existence or nonexistence of a lien or encumbrance on the manufactured home.

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.268. Time of satisfaction.

If a person delivers an application under AS 28.10.262 28.10.264 for a manufactured home to the department within 30 days after an affixation affidavit for the manufactured home is recorded under AS 40.17.125 , and if the application is accepted by the department, the requirements of AS 28.10.262 28.10.264 are considered to be satisfied on the date the affixation affidavit is recorded, and, if the manufactured home is conveyed or encumbered on and after that date, the manufactured home shall be conveyed and encumbered as real property.

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.269. Definitions.

In AS 28.10.201 28.10.269 , unless the context indicates otherwise,

  1. “affixation affidavit” means an affixation affidavit under AS 34.85.060 ;
  2. “severance affidavit” means a severance affidavit under AS 34.85.120 .

History. (§ 16 ch 64 SLA 2012)

Sec. 28.10.270. Application. [Repealed, § 7 ch 178 SLA 1978.]

Article 4. Transfer of Vehicle.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 35 et seq.

60 C.J.S., Motor Vehicles, §§ 297, 298.

Sec. 28.10.271. Transfer of vehicle by owner.

  1. When the owner of a registered vehicle transfers or assigns the owner’s title or interest in the vehicle, the registration of the vehicle expires; however, the registration plates remain on the vehicle except as otherwise provided in AS 28.10.181 .
  2. The owner shall, at the time of delivery of the vehicle, endorse an assignment and warranty of title to the transferee in the space provided on the certificate of title. The owner shall deliver the certificates of title and registration to the transferee at the time of delivery of the vehicle, except as otherwise provided in AS 28.10.291 .
  3. The owner shall notify the department of the transfer or assignment of the owner’s title or interest in the vehicle within 10 days following transfer or assignment.  This notification shall constitute a valid transfer under AS 28.10.321 and 28.10.361 .  The notice form to be provided by the department must include the following information:
    1. name and address of owner;
    2. name and address of transferee;
    3. date of transfer or assignment; and
    4. description and license number of vehicle.
  4. An emissions inspection and maintenance certificate
    1. shall be obtained when ownership of a vehicle subject to registration under this chapter is transferred if the
      1. transferee resides in an area designated by the Department of Environmental Conservation as an emissions inspection and maintenance area;
      2. vehicle would be subject to an emissions inspection and maintenance program; and
      3. vehicle
        1. has not been inspected for emissions, or the existing emissions inspection occurred more than two years ago; or
        2. has a certificate of inspection, but the certificate shows that the vehicle is not in compliance with program requirements;
    2. need not be obtained under (1) of this subsection if, when ownership of vehicle is transferred,
      1. the transferor surrenders the vehicle’s registration plates and all evidence of registration in the transferor’s possession or control to the department; or
      2. the vehicle has a valid, existing emissions inspection and maintenance program seasonal waiver and the purchaser signs a seasonal waiver transfer acknowledgment form approved by the department.

History. (§ 7 ch 178 SLA 1978; am § 1 ch 56 SLA 1995; am § 1 ch 41 SLA 1999; am § 3 ch 97 SLA 2003)

Notes to Decisions

Former law construed. —

See Harbor Ins. Co. v. United States Fidelity & Guaranty Co., 350 F. Supp. 723 (D. Alaska 1972); State Farm Mut. Auto. Ins. Co. v. Clark, 397 F. Supp. 745 (D. Alaska 1975); Graham v. North River Ins. Co., 533 P.2d 20 (Alaska 1975).

Quoted in

Roberson v. Manning, 268 P.3d 1090 (Alaska 2012).

Sec. 28.10.280. Title for vehicles of other state. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.281. Transfer to dealer.

  1. When the owner of a registered vehicle transfers or assigns the owner’s title or interest to a vehicle dealer under AS 28.10.271 , the dealer is not required to present the certificates of registration and title to the department as provided in AS 28.10.321 and 28.10.361 until the vehicle is transferred by the dealer.
  2. A vehicle transferred to a dealer may not be driven unless it is reregistered under this chapter or is driven under dealer registration plates issued under AS 28.10.181(j) .

History. (§ 7 ch 178 SLA 1978)

Notes to Decisions

Former law construed. —

See Graham v. North River Ins. Co., 533 P.2d 20 (Alaska 1975).

Sec. 28.10.290. Temporary permits. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.291. Transfer from dealer.

  1. A vehicle dealer, upon transferring a vehicle, shall execute an assignment and a warranty of title to the transferee as provided in AS 28.10.271 and furnish proof of the sale of the vehicle to the transferee.
  2. The dealer shall, within 30 days of the transfer of the vehicle, forward to the department the transferee’s completed application for new certificates of title and registration except as provided in (c) of this section.  The application must contain the vehicle dealer’s license number and must be accompanied by any required fees and taxes.
  3. If the transferee indicates in a sworn affidavit that the transferee does not intend to use the vehicle in a manner requiring registration in this state, the dealer may deliver the certificate of title to the transferee directly.  The dealer shall mail or deliver the affidavit to the department within five days of the transfer.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.300. False statements. [Repealed, § 25, ch 144 SLA 1977.]

Sec. 28.10.301. Transfer of motor vehicle to minor.

  1. An agreement for the purchase of a motor vehicle by a minor who has not been emancipated is void unless a parent or guardian of the minor is also a party to the agreement.
  2. If a vehicle is improperly transferred to a minor, the title to and registration of the vehicle remains with the owner and does not transfer to the minor or the parent or guardian of the minor.  However, if the certificate of title and registration for the vehicle has been delivered to the minor or the parent or guardian of the minor, that person shall immediately deliver the certificate of title and registration to the department.  The department shall reissue title to the previous owner of record.
  3. In this section, “emancipated” means that a minor to whom the term refers is a resident of this state and is at least 16 years of age, is living separate and apart from the minor’s parents or guardian, and is capable of self-support and of managing the minor’s own financial affairs.

History. (§ 7 ch 178 SLA 1978)

Revisor’s notes. —

Subsection (b) was formerly (c) and subsection (c) was formerly (b). Relettered in 2006.

Sec. 28.10.310. Refusal. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.311. Transfer by operation of law.

  1. When the title to, or interest in, a registered vehicle passes to another person other than by a voluntary transfer, the registration of that vehicle expires.
  2. A person holding a certificate of title to a vehicle whose interest in the vehicle has been extinguished or transferred other than by voluntary transfer shall mail or deliver the certificates of title and registration to the department upon request of the department.  The delivery of the certificates of title and registration to the department upon its request does not affect the rights of the person surrendering the certificate of title, and the action of the department in issuing a new certificate of title or registration as provided in this chapter is not conclusive upon the rights of an owner or lienholder named in the surrendered certificate of title.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.320. Issuance. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.321. New owner to secure transfer of registration and new title.

  1. Except as provided under AS 28.10.281 and 28.10.291 , the new owner shall, within 30 days, present the certificates of title and registration properly endorsed to the department, apply for a new title, and register the vehicle as upon an original registration.
  2. An application for certificates of title and registration must be accompanied by any required registration fees and taxes, transfer of title and lien fees, and by the previous certificates of title and registration, if any.

History. (§ 7 ch 178 SLA 1978; am § 40 ch 21 SLA 1985)

Notes to Decisions

Former law construed. —

Former AS 28.10.370 created a presumption with respect to a vehicle transfer that there is no delivery and that title or ownership is lodged in the person who holds the record title as reflected in department of revenue records. However, the presumption may be rebutted by a showing of actual delivery and that ownership has actually passed to the buyer as the parties intended. State Farm Mut. Auto. Ins. Co. v. Clark, 397 F. Supp. 745 (D. Alaska 1975).

Sec. 28.10.330. Delivery. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.331. Department to issue new certificates of title and registration.

The department, upon receipt of the certificate of title properly endorsed, the certificate of registration, the registration plates, if any, the application for new title and registration, and all required fees and taxes, shall issue a certificate of title and a certificate of registration to the transferee or the lienholder lawfully entitled to the certificates.

History. (§ 7 ch 178 SLA 1978)

Notes to Decisions

Former law construed. —

See Harbor Ins. Co. v. United States Fidelity & Guaranty Co., 350 F. Supp. 723 (D. Alaska 1972); Christian v. State, 513 P.2d 664 (Alaska 1973); Graham v. Black (1973); State Farm Mut. Auto. Ins. Co. v. Clark, 397 F. Supp. 745 (D. Alaska 1975); Graham v. North River Ins. Co., 533 P.2d 20 (Alaska 1975).

Sec. 28.10.340. Duplicates. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.341. Duty of lienholder in possession of title to transferred vehicle.

Upon request of an owner or transferee, a lienholder in possession of the certificate of title to a transferred vehicle shall, unless the transfer is in breach of a security agreement, deliver the certificate to the transferee. The delivery of the certificate of title does not affect the rights of the lienholder under the lienholder’s security agreement.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.350. Transfer. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.351. Dismantling or wrecking vehicle.

A person who dismantles, scraps, or destroys a registered vehicle shall immediately forward to the department the certificates of title and registration and the registration plates for the vehicle.

History. (§ 7 ch 178 SLA 1978)

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Secs. 28.10.355, 28.10.360. Purchase by minor; duty of new owner. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.361. When transfer effective.

A transfer by an owner or dealer is not effective until all applicable provisions of this chapter have been complied with. However, an owner or dealer who has delivered possession of a vehicle to the transferee and has endorsed an assignment and warranty of title on the certificate of title and delivered the certificates of title and registration to the transferee or, in the case of a transfer from a dealer, delivered proof of the sale to the transferee, is not liable as the owner for any liabilities resulting from the driving or movement of the vehicle after the transfer.

History. (§ 7 ch 178 SLA 1978)

Notes to Decisions

Cited in

Roberson v. Manning, 268 P.3d 1090 (Alaska 2012).

Sec. 28.10.370. Issuance. [Repealed, § 7 ch 178 SLA 1978.]

Article 5. Filing Documents Evidencing Liens or Encumbrances.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 34, 37-41, 44-49.

60 C.J.S., Motor Vehicles, §§ 103-110.

Priorities as between previously perfected security interest and repairman’s lien on motor vehicle under Uniform Commercial Code, 69 ALR3d 1162.

Sufficiency of debtor’s signature under UCC §§ 9-203 and 9-402, 3 ALR4th 502.

Loss of garageman’s lien on repaired vehicle by owner’s use of vehicle, 74 ALR4th 90.

Sec. 28.10.371. Filing documents evidencing liens or encumbrances.

  1. A conditional sales contract, chattel mortgage, or other lien or encumbrance or title retention document on a registered vehicle, other than a lien dependent upon possession, is not valid against a vehicle owner’s creditor who acquires a lien dependent upon possession, or by levy or attachment, or against a subsequent purchaser or encumbrancer without notice, until the requirements of AS 28.10.371 28.10.401 are satisfied.
  2. Notwithstanding (a) of this section, a lien on a manufactured home for the purchase of the manufactured home is valid against judicial lien creditors and execution creditors on and after the date the lien attaches under AS 45.29 against the manufactured home.
  3. Notwithstanding (a) of this section, the holder of a lien on a manufactured home may deliver a lien release document to a person to facilitate conveying or encumbering the manufactured home. A person receiving the lien release document holds the document in trust for the lienholder.

History. (§ 7 ch 178 SLA 1978; am § 17 ch 64 SLA 2012)

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, added (b) and (c).

Sec. 28.10.375. Effect of terminal rental adjustment clauses.

Notwithstanding other provisions of law, a transaction involving a motor vehicle or trailer does not create a sale or security interest merely because the transaction provides that the rental price is permitted or required to be adjusted under the agreement either upward or downward by reference to the amount realized upon the sale or other disposition of the motor vehicle or trailer.

History. (§ 1 ch 64 SLA 1994)

Sec. 28.10.380. Dealer’s transfer. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.381. Filing a lien or encumbrance.

  1. A lien or other encumbrance on a vehicle may be filed by delivering to the department
    1. a manufacturer’s certificate of origin or an existing certificate of title;
    2. an application for a new certificate of title, signed by the registered owner and containing the name and address of any lienholder and the date of the lienholder’s interest;
    3. applicable filing fees required by law; and
    4. other documents or information required by the department.
  2. Upon approval of the application, the department shall send to the person holding a lien or other encumbrance a new certificate of title which displays the name of the owner and indicates the existence of the lien or other encumbrance.
  3. Except as otherwise provided in AS 28.10.262 , 28.10.263 , and AS 34.85, after a certificate of title to a manufactured home has been issued and while the manufactured home is subject to a lien or encumbrance under (a) of this section,
    1. the department may not cancel the manufacturer’s certificate of origin for the manufactured home under AS 28.10.262 , or cancel the certificate of title to the manufactured home under AS 28.10.263 ; and
    2. the validity and priority of the lien or encumbrance continues.

History. (§ 7 ch 178 SLA 1978; am § 5 ch 20 SLA 1990; am § 18 ch 64 SLA 2012)

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, added (c).

Sec. 28.10.390. Transfer to dealer. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.391. Filing and date of notice.

  1. The filing of the application and documents under AS 28.10.381 and the issuance of a new certificate of title are constructive notice of any liens or encumbrances against the vehicle described in the certificate to a creditor of the owner, or to a subsequent purchaser or encumbrancer. However, a mortgage, conditional sale contract, or similar lien or encumbrance on the vehicle is subordinate to a lien under AS 28.10.502 and is subject to the procedure provided in that section. A lien or encumbrance on a vehicle for labor, material, transportation, storage, or similar activity, other than a lien under AS 28.10.502 , whether or not dependent on possession for its validity, is subordinate only to a mortgage, conditional sale contract, or similar lien or encumbrance on the vehicle properly filed on or before the time that the vehicle is subject to, or comes into possession of, the lien or encumbrance claimant for the labor, material, transportation, storage, or similar activity.
  2. If the documents referred to in AS 28.10.371 28.10.401 are received and filed in the central office of the department within 10 days after the date that the documents were executed, the constructive notice dates from the time of the execution of the documents. Otherwise, constructive notice dates from the time of receipt and filing of the documents by the department as shown in its endorsement on the documents.
  3. Filing as provided in AS 28.10.371 28.10.401 is the exclusive method of giving constructive notice of a lien or encumbrance on a registered vehicle, except as to a lien dependent upon possession.
  4. A lien or encumbrance, or a document creating and evidencing a lien or encumbrance is exempt from the other provisions of law that require or relate to the recording or filing of a document creating and evidencing a lien or encumbrance upon a vehicle of a type subject to registration under this chapter.
  5. Notwithstanding another provision of this section, the creation or termination of a lien or encumbrance with respect to a manufactured home that has been converted to real property under AS 34.85.010 is governed by the laws that apply to real property.

History. (§ 7 ch 178 SLA 1978; am § 1 ch 113 SLA 2010; am § 19 ch 64 SLA 2012)

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective June 29, 2010, in (a), added the second sentence, in the third sentence added “other than a lien under AS 28.10.502 ,” following “storage, or similar activity,”, and “on the vehicle” following “similar lien or encumbrance”.

The 2012 amendment, effective January 1, 2013, added (e).

Notes to Decisions

Annotator’s notes. —

The cases cited in the notes below were decided under former AS 28.10.510 .

Determination of priority of liens rests with the legislature, and its intent should be the controlling factor. Blackard v. City Nat'l Bank, 142 F. Supp. 753, 16 Alaska 344 (D. Alaska 1956); Decker v. Aurora Motors, 409 P.2d 603 (Alaska 1966).

Mechanic’s lien subordinated to prior recorded security interest. —

AS 34.35.200 (2), when read in conjunction with former AS 28.10.510 , evidenced the legislature’s intent to subordinate a mechanic’s lien to a prior recorded security interest. Decker v. Aurora Motors, 409 P.2d 603 (Alaska 1966).

Therefore, the priority given to a mechanic’s lien by former AS 45.05.750 is not applicable. Decker v. Aurora Motors, 409 P.2d 603 (Alaska 1966).

If an artisan retains possession, he has a lien whether he records it or not. The Motor Vehicle Act respects this right. Blackard v. City Nat'l Bank, 142 F. Supp. 753, 16 Alaska 344 (D. Alaska 1956).

Effect of Uniform Commercial Code. —

Nothing contained in the Uniform Commercial Code altered the priorities under former AS 28.10.510 and AS 34.35.200 (2). Decker v. Aurora Motors, 409 P.2d 603 (Alaska 1966).

Sec. 28.10.400. Transfer by dealer. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.401. Assignment or release by lienholder.

  1. A person holding a lien or encumbrance upon a vehicle, other than a lien dependent solely upon possession, may assign that person’s title to or interest in the vehicle to a person other than the owner without the consent of the owner and without affecting the interest of the owner or the registration of the vehicle.  The person assigning the interest shall give written notice of the assignment to the owner.  Upon receiving a certificate of title assigned by the holder of a lien or encumbrance shown on the certificate and the name and address of the assignee, accompanied by the title fee required under AS 28.10.441 , the department shall issue a new certificate of title.
  2. A person holding a lien or encumbrance upon a vehicle, as shown on a certificate of title, may release the lien or encumbrance or assign that person’s interest to the owner of the vehicle without affecting the registration of the vehicle. Upon receiving a certificate of title upon which a lienholder has released or assigned the lienholder’s interest to the owner, or upon receipt of a certificate not endorsed but accompanied by a legal release from a lienholder of the lienholder’s interest to a vehicle, and upon payment of the title fee required under AS 28.10.441 , the department shall issue a new certificate of title.

History. (§ 7 ch 178 SLA 1978)

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Sec. 28.10.410. Transfer by operation of law. [Repealed, § 7 ch 178 SLA 1978.]

Article 6. Fees and Charges.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 71 et seq.

60 C.J.S., Motor Vehicles, §§ 344-346.

Sec. 28.10.411. Registration fees levied.

  1. For every year during any part of which a vehicle is subject to registration under this chapter, a registration fee shall be paid to the department at the time of original registration and at each biennial renewal of registration after that time.
  2. [Repealed, 1983 Initiative Proposal No. 2, § 6.]
  3. [Repealed, § 6 ch 70 SLA 1986.]
  4. [Repealed, § 41 ch 37 SLA 1986.]
  5. [Repealed, § 3 ch 89 SLA 1987.]
  6. A resident 65 years of age or older on the date the registration fee is due or a resident with a disability that limits or impairs the ability to walk and who provides proof of that disability as provided in 23 C.F.R. 1235.2 is entitled to an exemption from the registration fee required under this section for one vehicle subject to registration under AS 28.10.421(b)(1)(A) , (b)(2), (b)(4), or (j). An exemption may not be granted except upon written application for the exemption on a form prescribed by the department.
  7. A person who presents satisfactory proof of current membership in the Alaska National Guard is entitled to an exemption from the registration fee required under this section for one vehicle subject to registration under AS 28.10.421(b)(1)(A) , (b)(2), or (b)(4). An exemption may not be granted except upon written application for the exemption on a form prescribed by the department.

History. (§ 7 ch 178 SLA 1978; am 1983 Initiative Proposal No. 2, § 6; am § 85 ch 6 SLA 1984; am § 41 ch 37 SLA 1986; am § 6 ch 60 SLA 1986; am § 6 ch 70 SLA 1986; am § 3 ch 89 SLA 1987; am § 58 ch 63 SLA 1993; am §§ 6, 7 ch 44 SLA 1996; am § 2 ch 128 SLA 1998; am § 4 ch 46 SLA 2007; am § 3 ch 50 SLA 2014; am §§ 3, 4 ch 80 SLA 2014; am § 1 ch 88 SLA 2014)

Revisor’s notes. —

In 2014, to reconcile the changes to subsection (f) made in sec. 3, ch. 50, SLA 2014 and sec. 3, ch. 80, SLA 2014, a reference to paragraph (b)(5) was replaced with a reference to subsection (j).

Effect of amendments. —

The first 2014 amendment, effective January 1, 2015, in (f), substituted “AS 28.10.421(b)(1) , (2) or (5), or (j)” for “AS 28.10.421(b)(1) (2), (5) or (6)”.

The second 2014 amendment, effective January 1, 2015, in (f), substituted “AS 28.10.421(b)(1)(A) , (b)(2), (b)(4), or (b)(5)” for “AS 28.10.421(b)(1) , (2), (5), or (6)” at the end of the first sentence; added (g).

The third 2014 amendment, effective January 1, 2015, in (f), substituted “on the date the registration fee is due” for “on January 1 of the year the vehicle is registered” following “65 years of age or older”.

Editor’s notes. —

Section 87, ch. 63, SLA 1993 provides “[i]f any section of this bill is found to violate the single subject rule it is severed from the rest of the bill.”

Sec. 28.10.420. Assignment. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.421. Registration fee rates.

  1. Unless otherwise provided by law,
    1. the fees prescribed in this section shall be paid to the department at the times provided under  AS 28.10.108 and 28.10.111 ; and
    2. an additional fee of $10 shall be added to the registration fee set out in this section for registration not conducted by mail, on the department’s Internet website, or at an emissions inspection station or contract office offering vehicle registration services; the department may waive this additional fee for a good cause based on criteria established in regulations adopted by the department.
  2. The biennial registration fees under this subsection are imposed within the following classifications for
    1. a vehicle not exceeding 10,000 pounds unladen weight as established by the manufacturer’s advertised weight or on the actual weight, which the owner shall furnish, subject to the approval of the commissioner or the commissioner’s representative that is a
      1. passenger vehicle, low-speed vehicle, pick-up truck, truck, or van not used or maintained for the transportation of persons or property for hire or for other commercial use and not registered in the name of a company or business   . . . . .  $100;
      2. a taxicab   . . . . .  $160;
    2. a motor home not used or maintained for the transportation of persons or property for hire or for other commercial use and not registered in the name of a company or business   . . . . .  $100;
    3. a motor bus with a seating capacity of
      1. less than 20 persons and used exclusively for commercial purposes in the transporting of visitors or tourists   . . . . .  $100;
      2. 20 or more persons and used exclusively for commercial purposes in the transporting of visitors or tourists   . . . . .  $300;
    4. a motorcycle or a motor-driven cycle   . . . . .  $60.
  3. The biennial registration fees under this subsection are imposed for a vehicle not subject to registration under (b) of this section and are based on the actual unladen weight as established by the manufacturer’s advertised weight or on the actual weight, which the owner shall furnish, subject to the approval of the commissioner or the commissioner’s representative, as follows:
    1. up to and including 5,000 pounds   . . . . .  $180;
    2. more than 5,000 pounds to and including 12,000 pounds   . . . . .  $268;
    3. more than 12,000 pounds to and including 18,000 pounds   . . . . .  $516;
    4. more than 18,000 pounds   . . . . .  $662.
  4. The special registration fees under this subsection are imposed biennially, unless otherwise specified, for
    1. a historic vehicle registered under
      1. and that is driven or moved on a highway for the primary purpose of historical exhibition or similar activity, one time only upon initial registration under $10; AS 28.10.181 (b)(1) AS 28.10.181 (b) (B) AS 28.10.181(b) (2) $30 plus the fee required for that vehicle under (b) of this section, unless the historic vehicle is eligible for the fee described under (C) of this paragraph; the fee required by this subparagraph shall be collected only on the first issuance and on the replacement of the historic plates; (C) AS 28.10.181(b) (2) and that is driven or moved on a highway for the primary purpose of historical exhibition or similar activity, one time only upon initial registration under AS 28.10.181(b) $10;
    2. special request plates for
      1. Alaska National Guard personnel   . . . . .  $30;
      2. veterans, retired veterans, or Lao veterans   . . . . .  $30;
      3. recipients of the Purple Heart   . . . . .  none;
      4. recipients of the Bronze Star awarded for valor, Silver Star, Navy Cross, Distinguished Service Cross, Air Force Cross, Coast Guard Cross, or other award reflecting valor  . . . . .   $30;
      5. owners of custom collector vehicles   . . . . .  $50;
      6. Iditarod race finishers   . . . . .  $50;
      7. other special request plates   . . . . .  $30;
    3. a vehicle owned by a person with a disability and registered under  AS 28.10.181(d) , or by a resident 65 years of age or older who files a written application for an exemption on a form prescribed by the department   . . . . . . none;
    4. a vehicle owned by the state   . . . . . . none;
    5. a vehicle owned by an elected state official   . . . . .  the fee required for that vehicle under (b), (c), (h), or (i) of this section;
    6. a vehicle owned by a rancher, farmer, or dairy-man and registered under  AS 28.10.181 . . . . .  $68;
    7. a snowmobile or off-highway vehicle   . . . . .  $10;
    8. an amateur mobile radio station vehicle,
      1. with a transceiver capable of less than 5-band operation   . . . . .  the fee required for that vehicle under (b) or (c) of this section;
      2. in recognition of service to the public a mobile amateur radio station owned by an amateur with general class or higher license, provided the station must be satisfactorily proved capable of operating on at least five bands from 160 through 10 meters, must have an antenna, and must have a power supply and wiring as a permanent part of the vehicle; the transmitting unit may be removed from the car for service or dry storage   . . . . .  none for a mobile amateur radio station vehicle included in (b)(1)(A) of this section;
    9. dealer registration plates
      1. the initial set of plates   . . . . .  $88;
      2. each subsequent set of plates   . . . . .  $50;
    10. a vehicle owned by a municipality or charitable organization meeting the requirements of  AS 28.10.181(e) . . . . .  $10;
    11. a vehicle owned by a Pearl Harbor survivor, a former prisoner of war, a recipient of the Medal of Honor awarded by the President of the United States in the name of the United States Congress, or the spouse, parent, guardian, brother, sister, or dependent of a member of the United States armed forces killed in the line of duty   . . . . .  none;
    12. special request university plates   . . . . .  $50  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected only on the first issuance and on the replacement of special request plates; the commissioner of administration shall separately account by university campus designation for the fees received under this paragraph that the department deposits in the general fund; the annual estimated balance in the accounts that is in excess of the cost of issuing special request university plates may be appropriated by the legislature for the support of programs at each campus;
    13. special request dog mushing plates   . . . . .  $50  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected only on the first issuance and on the replacement of special request plates; the commissioner of administration shall separately account for the fees received under this paragraph that the department deposits in the general fund; notwithstanding (g) of this section, the annual estimated balance in the account that is in excess of the cost of issuing special request plates may be appropriated by the legislature for the support of programs benefiting dog mushing;
    14. special request Alaska children’s trust plates   . . . . .  $100  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected only on the first issuance and the replacement of special request plates; the commissioner of administration shall separately account for the fees received under this paragraph that the department deposits in the general fund; notwithstanding (g) of this section, the annual esti- mated balance in the account that is in excess of the cost of issuing special request plates may be appropriated by the legislature into the Alaska children’s trust grant account established in  AS 37.14.205 ;
    15. [Repealed, § 8 ch 70, SLA 2018.]
    16. special request plates commemorating Alaska veterans   . . . . .  $100  plus a fee of $35 and the fee required for that vehicle under (b), (c), (h), or (i) of this section; the $100 fee required by this paragraph shall be collected only on the first issuance of and the replacement of the commemorative veterans’ plates; the $35 fee required by this paragraph shall be collected biennially in the same manner as the fee required under (b), (c), (h), or (i) of this section; the commissioner of administration shall separately account for the fees received under this paragraph that the department deposits in the general fund; notwithstanding (g) of this section, the annual estimated balance in the account that is in excess of the cost of issuing special request plates may be appropriated by the legislature to the Alaska veterans’ cemetery fund created under  AS 37.05.600 and for the support of programs benefiting Alaska veterans;
    17. special request plates commemorating and supporting troops   . . . . .  $40  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the $40 fee required by this paragraph shall be collected on issuance and biennial renewal in the same manner as the fee required under (b), (c), (h), or (i) of this section; the commissioner of administration shall separately account for the fees received under this paragraph that the department deposits in the general fund; notwithstanding (g) of this section, the annual estimated balance in the account that is in excess of the cost of issuing special request plates may be appropriated by the legislature to the organization for which the specialty license plate was purchased for the benefit of Alaska troops and their families;
    18. special request plates for firefighter and emergency medical service provider   . . . . .  $30;  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected only on the first issuance of and the replacement of the plates;
    19. special request fraternal organization member plates   . . . . .  $50  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the $50 fee required by this paragraph shall be collected only on the first issuance of and the replacement of the plates;
    20. special request United States flag “In God We Trust” plates   . . . . .  $30  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected biennially in the same manner as the fee required under (b), (c), (h), or (i) of this section;
    21. special request National Rifle Association plates   . . . . .  $50  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the $50 fee required by this paragraph shall be collected only on the first issuance and the replacement of the special request plates; a $30 fee shall be collected biennially there- after in the same manner as the fee required under (b), (c), (h), or (i) of this section; the commissioner shall separately account for the fees received under this paragraph that the department deposits into the general fund; notwithstanding (g) of this section, the annual estimated balance in the account that is in excess of the cost of issuing special request plates may be appropriated by the legislature to establish and maintain a scholastic clay target program and for other youth shooting programs;
    22. special request breast cancer awareness plates   . . . . .  $50  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the $50 fee required by this paragraph shall be collected only on the first issuance and the replacement of the special request plates; the commissioner shall separately account for the fees received under this paragraph that the department deposits into the general fund; notwithstanding (g) of this section, the annual estimated balance in the account that is in excess of the cost of issuing special request plates may be appropriated by the legislature to programs that provide screening for breast and cervical cancer;
    23. special request “Choose Life” plates   . . . . .  $30  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected biennially in the same manner as the fee required under (b), (c), (h), or (i) of this section; the commissioner shall separately account for the fees received under this paragraph that the department deposits in the general fund; the annual estimated balance in the account that is in excess of the cost of issuing special request “Choose Life” plates may be appropriated by the legislature to programs supporting or benefiting adoption;
    24. special request “Pro-Family, Pro-Choice” plates   . . . . .  $30  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected biennially in the same manner as the fee required under (b), (c), (h), or (i) of this section; the commissioner shall separately account for the fees received under this paragraph that the department deposits in the general fund; the annual estimated balance in the account that is in excess of the cost of issuing special request “Pro-Family, Pro-Choice” plates may be appropriated to the Alaska Children’s Trust (  AS 37.14.200 );
    25. special request Blood Bank of Alaska plates   . . . . . $50  plus the fee required for that vehicle under (b), (c), (h), or (i) of this section; the fee required by this paragraph shall be collected biennially in the same manner as the fee required under (b), (c), (h), or (i) of this section; the commissioner of administration shall separately account for the fees received under this paragraph that the department deposits in the general fund; notwithstanding (g) of this section, the annual estimated balance in the account that is in excess of the cost of issuing special request plates may be appropriated by the legislature to the Blood Bank of Alaska.
  5. A vehicle registered under this section which, by the removal of seats, a camper unit, a canopy or other equipment, may be converted into a vehicle on which the registration fee is computed on a different basis or in a different amount may not be driven or moved with seats, camper unit, canopy or other equipment removed unless the other applicable registration fee is paid.
  6. In addition to the fees imposed under (b) and (d) of this section, the following special biennial registration fee is imposed upon renewal of registration for a passenger vehicle, motor home, pick-up truck, or a van with special request Winter Olympics commemorative plates   . . . . .  $60.
  7. The fees collected by the department under this section shall be deposited in the general fund. The Department of Administration shall separately account for three percent of the fees collected under this section and deposited in the general fund. The annual estimated balance in the account may be used by the legislature to make appropriations for administration of  AS 28.10.021(a) and  AS 28.22 (Alaska Mandatory Automobile Insurance Act).
  8. The annual registration fees under this subsection for vehicles, including low-speed vehicles, used for commercial purposes are imposed and are based upon the actual unladen weight as established by the manufacturer’s advertised weight or upon the actual weight, which the owner shall furnish, subject to the approval of the commissioner or the commissioner’s representative, as follows:
    1. up to and including 5,000 pounds   . . . . .  $90;
    2. more than 5,000 pounds to and including 12,000 pounds   . . . . .  $134;
    3. more than 12,000 pounds to and including 18,000 pounds   . . . . .  $258;
    4. more than 18,000 pounds   . . . . .  $331.
  9. A one-time registration fee of $20 is imposed upon initial registration for a trailer or semi-trailer used for commercial purposes.
  10. When a person registers a trailer not used or maintained for the transportation of persons or property for hire or for other commercial use, including a boat trailer, baggage trailer, box trailer, utility trailer, house trailer, travel trailer, or trailer rented or offered for rent, the person may choose to pay a biennial registration fee of $30 or, if the person resides within the unorganized borough or in a municipality that elects, by passage of an appropriate ordinance, to allow the permanent registration of motor vehicles, to register the trailer permanently. If the person permanently registers the trailer, the person shall pay the biennial registration fee plus a permanent registration fee of $25. If the person permanently registers the trailer, no additional registration fees are required if the same person who initially registered the trailer continues to own the trailer. A new owner of a trailer previously registered under this subsection shall register and pay the biennial registration fee or the permanent registration fee as provided in this subsection. The motor vehicle registration tax for a permanently registered trailer is the rate established for permanent trailer registration under  AS 28.10.431(j) . If a municipality has not established a tax for a permanently registered trailer, the biennial rate established in  AS 28.10.431(b) or (j), if any, is levied upon the trailer and is payable only once at the time a trailer is permanently registered. If the person pays the registration tax as required by this subsection and  AS 28.10.431 , no additional registration taxes are required if the same person who initially registered the trailer continues to own the trailer.

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plus the fee required for that vehicle under (b) of this section; the fee required by this paragraph shall be collected only on the first issuance and on the replacement of special request plates;

History. (§ 7 ch 178 SLA 1978; am §§ 4, 5 ch 54 SLA 1979; am § 2 ch 151 SLA 1984; am § 41 ch 21 SLA 1985; am §§ 7 — 9 ch 60 SLA 1986; am § 1 ch 70 SLA 1986; am §§ 6 — 8 ch 24 SLA 1988; am § 2 ch 72 SLA 1989; am § 2 ch 91 SLA 1989; am §§ 17, 18 ch 108 SLA 1989; am §§ 5, 6 ch 115 SLA 1989; am §§ 6, 9 ch 20 SLA 1990; am § 13 ch 90 SLA 1991; am § 4 ch 8 SLA 1993; am §§ 59, 60, 79 ch 63 SLA 1993; § 2 ch 56 SLA 1995; am §§ 8 — 12 ch 44 SLA 1996; am § 3 ch 97 SLA 1996; am § 2 ch 5 SLA 1997; am § 3 ch 42 SLA 1997; am § 2 ch 36 SLA 1998; am § 18 ch 48 SLA 1998; am § 5 ch 88 SLA 1998; am §§ 1 — 3 ch 5 SLA 1999; am § 3 ch 44 SLA 2001; am §§ 2, 3 ch 11 SLA 2002; am § 2 ch 31 SLA 2002; am § 3 ch 56 SLA 2002; am §§ 1 — 4 ch 38 SLA 2003; am § 2 ch 68 SLA 2003; am § 13 ch 96 SLA 2005; am §§ 1 — 3 ch 95 SLA 2006; am §§ 5, 6 ch 14 SLA 2007; am § 5 ch 46 SLA 2007; am § 2 ch 2 SLA 2009; am § 2 ch 21 SLA 2009; am § 3 ch 115 SLA 2010; am § 2 ch 116 SLA 2010; am §§ 2, 3 ch 2 SLA 2012; am § 2 ch 45 SLA 2014; am §§ 4, 8 ch 50 SLA 2014; am §§ 5 — 7 ch 80 SLA 2014; am § 5 ch 98 SLA 2014; am §§ 3, 4 ch 15 SLA 2016; am §§ 5, 8 ch 70 SLA 2018)

Revisor’s notes. —

Paragraph (d)(13) was enacted as (16); renumbered in 1996. Paragraph (d)(15) was enacted as paragraph (d)(14). Renumbered in 1998.

In 2014, paragraph (b)(6) was repealed in sec. 8, ch. 50, and replaced with (j); in sec. 5, ch. 80 (b)(6) was repealed and reenacted as (b)(5). To reconcile the amendments, the reenacted (b)(5) was treated as repealed.

Effect of amendments. —

The first 2009 amendment, effective June 23, 2009, in paragraph (d)(2), added subparagraph (E), and redesignated former subparagraph (E) as subparagraph (F).

The second 2009 amendment, effective August 23, 2009, in paragraph (d)(16), added “to the Alaska veterans’ cemetery fund created under AS 37.05.600 and” following “appropriated by the legislature”.

The first 2010 amendment, effective September 29, 2010, in (d)(14), substituted “Alaska children’s trust grant account established in AS 37.14.205 ” for “principal of the Alaska children’s trust under AS 37.14.200 ”.

The second 2010 amendment, effective July 2, 2010, added (d)(18) and (19).

The 2012 amendment, effective March 8, 2012, in (d), added “or Lao veterans” at the end of (d)(2)(B), and added (d)(20) through (d)(24).

The first 2014 amendment, effective July 1, 2014, in (a)(2), inserted “, on the department’s Internet website,” following “not conducted by mail” and deleted “not conducted” preceding “at an emissions inspection station”.

The second 2014 amendment, effective January 1, 2014, repealed (b)(6), and added (j).

The third 2014 amendment, effective January 1, 2015, rewrote (b); in (c), in the introductory language, inserted “for a vehicle not subject to registration under (b) of this section” following “under this subsection are imposed”, deleted “for a vehicle, including a low-speed vehicle and a motor vehicle pulling a trailer or semi-trailer, that is registered in the name of a company or business, or is used or maintained for the transportation of passengers for hire, excepting taxicabs and buses under (b) of this section, or for the transportation of property for hire or for other commercial purposes, including a low-speed vehicle, truck wrecker, tow car, hearse, ambulance, and tractor,” following “the commissioner’s representative”, and made stylistic changes; in (d)(8), substituted “included in (b)(1)(A)” for “included in (b)(1) or (2)” near the end of the paragraph.

The fourth 2014 amendment, effective January 1, 2015, in (d)(18), deleted the (A) and (B) designations, deleted “active” preceding “firefighter” and deleted (d)(18)(B), which read, “for former firefighter and emergency medical service provider . . . . . $50” and made a related change.

The 2016 amendment, effective August 31, 2016, in (d)(15), substituted “celebrating” for “commemorating” preceding “the arts”, increased the fee from $50 to $150, substituted “only on the first issuance and the replacement of the special request plates” for “biennially in the same manner as the fee required under (b), (c), (h), or (i) of this section”; added (d)(25).

The 2018 amendment, effective January 1, 2019, added (d)(2)(D), repealed (d)(15), and made related changes.

Editor’s notes. —

Section 87, ch. 63, SLA 1993 provides “[i]f any section of this bill is found to violate the single subject rule it is severed from the rest of the bill.”

Sec. 28.10.423. Emission control inspection program fees.

  1. In addition to the biennial registration fee specified in AS 28.10.421 , a $2 fee is imposed upon every vehicle required to be inspected under an emission control program established under AS 46.14.400 or 46.14.510 . This fee shall be collected at the same time and in the same manner as the registration fee.
  2. In addition to the permanent registration fee established in AS 28.10.155 , a $2 fee is imposed on the owner of each permanently registered motor vehicle required to be inspected under an emission control program established in AS 46.14.400 or 46.14.510 . That fee shall be collected biennially.

History. (§ 2 ch 56 SLA 1985; am § 4 ch 74 SLA 1993; am § 3 ch 56 SLA 1995; am § 13 ch 44 SLA 1996; am § 5 ch 50 SLA 2014)

Effect of amendments. —

The 2014 amendment, effective January 1, 2015, added (b).

Sec. 28.10.430. Release by lienholder. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.431. Biennial motor vehicle registration tax.

  1. There is levied a motor vehicle registration tax within each municipality that elects, by passage of an appropriate ordinance, to come under this section. A municipality shall file a written notice of election with the department and may not rescind the notice for a subsequent fiscal year. The notice must be filed on or before January 1 of the year preceding the year election under this section is to become effective. If a municipality has, before October 15, 1978, levied a motor vehicle registration or ad valorem tax that has been repealed by a vote of the people at any regular or special municipal election, then the election provided for in this subsection is not effective until the ordinance passed by the local governing body has been approved by the people at the next regularly scheduled general or special municipal election.
  2. The biennial tax is levied upon motor vehicles subject to the registration fee under AS 28.10.411 and 28.10.421 and is based on the age of vehicles as determined by model year in the first year of the biennial period, according to the following schedule:
  3. The registration tax shall be levied, collected, enforced, and otherwise administered in the same manner as provided for the registration fees in this chapter. Only one registration tax may be collected with respect to the same motor vehicle in the year for which the tax is paid.
  4. If a person has paid both the registration fee levied in AS 28.10.411 and 28.10.421 and the registration tax levied in this section, and the department determines that the payor is entitled to a refund in whole or in part of the registration tax, the department shall make the refund to which the person is entitled. A refund may not be made unless application for a refund is filed with the department by December 31 of the year following the year for which the refund is claimed.
  5. The department shall refund money collected under this section, less eight percent as collection costs, to a municipality for which the money was collected, as determined by (1) the address of residence of an individual required to pay the tax, or (2) the situs of the vehicle if the vehicle is not owned by an individual; the tax situs is the location at which the motor vehicle is usually, normally, or regularly kept or used during the registration period. For the first year in which the tax is levied within a municipality, the department may retain actual costs of collection of the tax within the municipality as determined by the department.
  6. Money received by an organized borough under this section shall be allocated by the borough by ordinance for city, area outside city, and service area purposes within the borough.
  7. Payment of the registration tax is in lieu of all local use taxes and ad valorem taxes on motor vehicles subject to the tax. A municipality which elects to come under the provisions of this section may not levy use or ad valorem taxes on motor vehicles subject to the registration tax during a fiscal year in which the election is in effect.
  8. A vehicle owned by a former prisoner of war exempted from registration fees under AS 28.10.421(d)(11) is subject to a motor vehicle registration tax under this section.
  9. [Repealed, § 28 ch 90 SLA 1991.]
  10. A municipality that imposes a motor vehicle registration tax as described under (a) of this section may also, by passage of an appropriate ordinance, increase the scheduled amount of tax described under (b) or (l) of this section, establish a tax for a motor vehicle that is permanently registered under AS 28.10.155 , or establish a tax for a trailer that is permanently registered under AS 28.10.421(j) . A municipality that chooses to change the tax imposed under (b) or (l) of this section or establishes a tax for permanently registered motor vehicles or trailers shall file a written notice of the change with the department by January 1 of the year preceding the year in which the change in tax is to take effect. A municipality may not change the amount of the tax imposed under this section more than once every two years. The department may charge a municipality a one-time fee to cover the cost to the department of implementing a change under this subsection.
  11. A vehicle registration application and renewal application for vehicles subject to a municipal vehicle registration tax shall itemize the total amount due in a manner that separately shows the amount of vehicle registration tax imposed by the municipality.
  12. Notwithstanding (b) of this section, an annual tax is levied upon vehicles specified in AS 28.10.421 (c) and subject to the registration fee under AS 28.10.411 and 28.10.421 if the owner elects to register the vehicle annually as allowed under AS 28.10.108(f) . The tax is based on the age of the vehicle as determined by model year according to the following schedule:

Tax According to Age of Vehicle Since Model Year: 1st 2nd 3rd 4th 5th 6th 7th 8th or over Motor Vehicle (1) motorcycle $ 17 $ 15 $ 13 $ 10 $ 7 $ 5 $ 4 $ 4 (2) vehicles specified in AS 28.10.421 (b)(1)(A) or (3)(A) 121 99 77 55 39 28 19 16 (3) vehicles specified in AS 28.10.421 (b)(1)(B) 121 99 77 55 39 28 19 16 (4) vehicles specified in AS 28.10.421 (c)(1)-(4) 5,000 pounds or less 121 99 77 55 39 28 19 16 5,001-12,000 pounds 198 154 121 99 77 55 33 22 12,001-18,000 pounds 447 392 348 304 260 227 205 194 18,001 pounds or over 546 469 403 348 304 260 216 194 (5) vehicles specified in AS 28.10.421 (b)(3)(B) 198 154 121 99 77 55 33 22 (6) vehicles specified in AS 28.10.421(j) 17 15 13 10 7 5 4 4 (7) vehicles specified in AS 28.10.421 (d)(8) 121 99 77 55 39 28 19 16 (8) vehicles eligible for dealer plates under AS 28.10.421(d)(9) 88.

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Tax According to Age of Vehicle Since Model Year: 1st 2nd 3rd 4th 5th 6th 7th 8thor over Motor Vehicle 5,000 pounds or less $ 66 $ 55 $ 44 $ 33 $ 22 $ 17 $ 11 $ 8 5,001-12,000 pounds 110 88 66 55 44 33 22 11 12,001-18,000 pounds 240 207 185 163 141 119 107 97 18,001 pounds or over 295 251 218 185 161 141 119 97.

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History. (§ 7 ch 178 SLA 1978; am § 3 ch 151 SLA 1984; am § 48 ch 138 SLA 1986; am § 28 ch 90 SLA 1991; am § 34 ch 30 SLA 1992; am § 61 ch 63 SLA 1993; am §§ 14, 15 ch 44 SLA 1996; am § 1 ch 76 SLA 1996; am §§ 3, 4 ch 5 SLA 1997; am § 29 ch 32 SLA 1997; am §§ 4 — 6 ch 5 SLA 1999; am §§ 6, 7 ch 50 SLA 2014; am § 8 ch 80 SLA 2014)

Revisor’s notes. —

Subsections (j) and (k) were enacted as (i) and (j) respectively. Relettered upon enactment in 1996. In 2009, in (b)(1), “$4” was substituted for “$2” to correct a typographical error in ch. 32, SLA 1997.

In 2014, to reconcile the changes made in ch. 50, SLA 2014 and ch. 80, SLA 2014, the reference to “AS 28.10.421(b)(5)” in (b)(6) of this section as amended by sec. 8, ch. 80, SLA 2014 was replaced with the reference to “AS 28.10.421(j) ” as shown in sec. 6, ch. 50, SLA 2014.

Effect of amendments. —

The first 2014 amendment, effective January 1, 2014, in (b)(6), substituted “AS 28.10.421 (j)” for “AS 28.10.421 (b)(6)”; in (j), in the first sentence, inserted”, by passage of an appropriate ordinance,” following “this section may also”, and substituted “, establish a tax for a motor vehicle that is permanently registered under AS 28 10.155, or establish a tax for a trailer that is permanently registered under AS 28.10.421 (j)” for “by passage of an appropriate ordinance”, and in the second sentence inserted “or establishes a tax for permanently registered motor vehicles or trailers” following “of this section”.

The second 2014 amendment, effective January 1, 2015, in (b), in (b)(2), substituted “AS 28.10.421 (b)(1)(A) or (3)(A)” for “AS 28.10.421 (b)(1)”, in (b)(3), substituted “AS 28.10.421(b)(1)(B) ” for “AS 28.10.421(b)(3) ”, in (b)(5), substituted “AS 28.10.421(b)(3) (B)” for “AS 28.10.421(b)(4) ”, in (b)(6), substituted “AS 28.10.421(b)(5)” for “AS 28.10.421(b)(6)”, deleted (b)(8), relating to vehicles specified in AS 28.10.421(b)(2) , and made a stylistic change.

Editor’s notes. —

Section 87, ch. 63, SLA 1993 provides “[i]f any section of this bill is found to violate the single subject rule it is severed from the rest of the bill.”

Opinions of attorney general. —

Since a borough’s election to request the department to collect the motor vehicle registration tax on its behalf and to remit those taxes to it was first in time, it should take precedence over the later request by a city within the borough. February 19, 1986, Op. Att’y Gen.

Sec. 28.10.440. Dismantled vehicle. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.441. Schedule of other fees and charges.

The following fees and charges are imposed by the department for the stated services that it provides:

  1. title fee, including transfer of title $15; (2) lien filing fee $15; (3) replacement of any registration plate set, including special request plates $5; (4) duplicate of original certificate of title $15; (5) duplicate of certificate of registration $2; (6) temporary preregistration permit issued under AS 28.10.031 none; (7) special transport permit issued under AS 28.10.151 $5; (8) special permit for vehicle used for transport of a person with a disability issued under AS 28.10.495 none.

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History. (§ 7 ch 178 SLA 1978; am § 28 ch 85 SLA 1988; am § 4 ch 56 SLA 2002; am § 5 ch 38 SLA 2003)

Article 7. Registration and Title Violations.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 98, 255.

60 C.J.S., Motor Vehicles, §§ 304-306.

Roadblocks for purpose of discovering vehicular or driving violations, 37 ALR4th 10.

Sec. 28.10.450. Failure to endorse and deliver. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.451. Unlawful to violate provisions requiring registration and title.

A person may not wilfully attempt to defeat the provisions of this chapter or wilfully fail to title or register a vehicle as required by this chapter, or otherwise wilfully fail to comply with the requirements of this chapter.

History. (§ 7 ch 178 SLA 1978)

Sec. 28.10.460. Required insurance. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.461. Driving vehicle without evidence of registration.

Except as otherwise expressly permitted in this chapter, a person may not drive or move, nor may an owner knowingly permit to be driven or moved, on a highway or vehicular way or area, a vehicle required to be registered under this chapter unless valid registration plates, decals, or permits for the current registration period are attached to and displayed on the vehicle in the manner required by this chapter, and unless a valid certificate of registration for the current registration period is carried, as required by this chapter, in the vehicle and is available for inspection by a peace officer or an authorized representative of the Department of Public Safety.

History. (§ 7 ch 178 SLA 1978; am E.O. No. 99 § 42 (1997))

Notes to Decisions

State not required to recognize license and registrations issued by village. —

In the absence of some evidence that Chickaloon village had been recognized as a self-governing tribe by the federal government, it lacked the authority to register vehicles or license drivers, and the state was therefore not required to recognize license and registrations which the village purported to issue. Harrison v. State, 791 P.2d 359 (Alaska Ct. App. 1990).

Probable cause for traffic stop. —

Where evidence introduced at defendant’s hearing showed that a police officer had probable cause to stop defendant for driving a vehicle in violation of this section because defendant’s vehicle had no registration plates or temporary tag displayed, denial of defendant’s motion to dismiss the charge on the ground that the traffic stop was unlawful was proper, and defendant’s conviction for driving with a canceled, suspended, or revoked license was upheld. Jackson v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. Mar. 31, 2004).

Cited in

Howard v. State, 209 P.3d 1044 (Alaska Ct. App. 2009).

Collateral references. —

Lack of proper automobile registration as evidence of operator’s negligence, 73 ALR 162, 29 ALR2d 963.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his vehicle registration certificate, 6 A.L.R.3d 506.

Sec. 28.10.470. Filing liens. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.471. Driving vehicle when registration suspended or revoked or permit expired.

A person may not drive or move, nor may an owner knowingly permit to be driven or moved, on a highway or vehicular way or area, a vehicle for which the registration or permit has been suspended or revoked or has expired.

History. (§ 7 ch 178 SLA 1978)

Notes to Decisions

Cited in

Lowry v. State, 655 P.2d 780 (Alaska Ct. App. 1982); Howard v. State, 209 P.3d 1044 (Alaska Ct. App. 2009).

Sec. 28.10.480. Filing provisions. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.481. Improper use of evidence of registration or certificate of title.

A person may not lend to another, or knowingly permit the use by another of, a certificate of registration or title, registration plate, decal, special plate, or permit issued under this chapter if the person to whom it is loaned or whose use is permitted is not entitled to its use, nor may a person display in or upon a vehicle a certificate of registration, registration plate, decal, special plate, or permit not issued for that vehicle or not otherwise lawfully used on that vehicle.

History. (§ 7 ch 178 SLA 1978)

Notes to Decisions

Cited in

State v. Campbell, 198 P.3d 1170 (Alaska Ct. App. 2008); Button v. Haines Borough, 208 P.3d 194 (Alaska 2009).

Sec. 28.10.490. New certificate. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.491. Felonies relating to title, registration, identification number, and removal and representation of vehicles.

  1. Upon conviction, a person is guilty of a felony who
    1. alters, forges, or counterfeits a certificate of title or registration, or a registration plate, decal, tab, or sticker of this or another jurisdiction;
    2. alters or forges an assignment of a certificate of title or an assignment or release of a security interest on a certificate of title of this or another jurisdiction or on a form the department prescribes;
    3. has possession of or uses a certificate of title or registration, registration plate, decal, tab, or sticker of this or another jurisdiction knowing it to have been altered, forged, or counterfeited;
    4. wilfully removes or falsifies a vehicle identification number;
    5. wilfully conceals or misrepresents the identity of a vehicle or vehicle equipment;
    6. buys, receives, possesses, sells, or disposes of a vehicle or vehicle equipment, knowing that a vehicle identification number or equipment has been unlawfully removed or falsified;
    7. removes from the state a vehicle that is the subject of a security interest created under AS 28.01 — 28.35 or under AS 45.01 — 45.08, AS 45.12, AS 45.14, and AS 45.29 without the written consent of the secured party, and with intent to defraud the secured party or the state;
    8. represents a motor vehicle or house trailer to be a new vehicle and who sells or procures the sale of that motor vehicle as a new vehicle without presenting a “manufacturer’s statement of origin”; or
    9. makes a false statement or otherwise conceals or withholds a material fact in an application for registration or certificate of title or falsely affirms with respect to a matter required to be sworn to, affirmed, or furnished under this chapter or regulations adopted under this chapter; except that a person who with criminal negligence as defined in AS 11.81.900 , falsely certifies to the department the existence of a motor vehicle liability insurance policy under AS 28.10.021(a)(2) , is guilty of a class A misdemeanor.
  2. A person convicted of an offense under this section is punishable by imprisonment for not less than one year nor more than five years, or by a fine of not less than $500 nor more than $5,000, or by both.

History. (§ 7 ch 178 SLA 1978; am § 6 ch 54 SLA 1979; am § 20 ch 108 SLA 1989)

Revisor’s notes. —

In 1993, under § 13, ch. 34, SLA 1993 and § 128, ch. 35, SLA 1993, the citation to the Uniform Commercial Code in paragraph (a)(7) was revised.

In 2000, “AS 45.01 — AS 45.08, AS 45.12, AS 45.14, and AS 45.29” was substituted for “AS 45.01 — AS 45.09, AS 45.12, and AS 45.14” in accordance with § 35, ch. 113, SLA 2000.

Sec. 28.10.493. Misdemeanors relating to transfers.

  1. The owner of a vehicle who transfers a vehicle and fails to comply with the requirements of AS 28.10.271 is guilty of a class B misdemeanor.
  2. A vehicle dealer who transfers a vehicle and fails to comply with the requirements of AS 28.10.291 is guilty of a class B misdemeanor.

History. (§ 3 ch 54 SLA 1979)

Cross references. —

For fines and sentences for misdemeanors, see AS 12.55.035 and 12.55.135 , respectively.

Article 8. General Provisions.

Sec. 28.10.495. Parking permit for vehicle transporting a person with a disability.

  1. Upon application by a person with a disability, or by an organization that transports persons with disabilities, the department or a person authorized by the department shall issue to the applicant, without charge, a special permit bearing the control number of the applicant. The permit issued under this section, when displayed in the front windshield of a parked or standing vehicle, shall provide for special consideration by the public with respect to the parking or standing in designated spaces of a vehicle that is being used for the transportation of a person with a disability.
  2. A person is not entitled to use the special permit provided for in (a) of this section except when providing transportation for a person with a disability. Upon the death of a person with a disability to whom a special permit has been issued, the special permit shall be returned to the department. If an organization to which a special permit has been issued ceases transporting persons with disabilities, or ceases operating, it shall return the special permit to the department.
  3. Proof of disability, for the purpose of this section, shall be the same as that required for the purposes of AS 28.10.181(d) .

History. (§ 24 ch 178 SLA 1978; am § 1 ch 11 SLA 1980; am § 1 ch 11 SLA 1987; am §§ 7, 8 ch 20 SLA 1990; am § 62 ch 63 SLA 1993; am § 5 ch 56 SLA 2002)

Editor’s notes. —

Section 87, ch. 63, SLA 1993 provides “[i]f any section of this bill is found to violate the single subject rule it is severed from the rest of the bill.”

Sec. 28.10.500. Index of liens. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.501. [Renumbered as AS 28.10.661.]

Sec. 28.10.502. Towing, transporting, and storage lien.

  1. A person engaged in the business of towing motor vehicles, who tows, transports, or stores a motor vehicle, has a possessory lien on the vehicle.  This lien attaches when the person acts under a contract with the owner or at the direction of a public officer acting lawfully or a person entitled to possession of the property upon which the motor vehicle is parked without consent. The lien remains in effect while the motor vehicle is in the possession of the person, and the vehicle may be sold, as provided in (c) of this section, to pay the charges for towing, transportation or storage.
  2. A lien under this section is limited to towing and storage charges and associated mailing fees. Unless a vehicle has already been reclaimed by the owner, the person possessing the vehicle under this section shall notify the registered owner and primary lienholder, if any, of the towing, transporting, or storage of the vehicle, by certified letter, return receipt requested, mailed to the registered owner and primary lienholder, if any, within seven working days after the initial towing, transporting, or storage of the vehicle. The letter shall be sent to the addresses of record of the registered owner and primary lienholder, if any, on file with the department or the corresponding office in another jurisdiction in which the title to the motor vehicle and the lien on it are recorded. Storage charges cease to be part of the lien after 60 days unless the registered owner or primary lienholder, if any, has been given actual notice of the possessory lien within that time or unless the certified letter has been mailed within the time required in this subsection.
  3. If the motor vehicle remains unclaimed for a period of 30 days in the possession of the person who performed the towing, transportation or storage, it shall be sold on giving 20 days notice of the sale. The notice shall be delivered to the proper officer and personally served on the registered owner and all lienholders, if any, of the motor vehicle in the same manner as provided by law for service of summons.  If either of these persons cannot be located and served personally, notice of the sale shall be forwarded to the registered owner and all lienholders, if any, at their last known address by certified mail, return receipt requested.  This notice must contain a description of the motor vehicle, including its registration plate number and vehicle identification number, together with the time and place of sale, a statement of the amount due, and the name and address of the person to whom the charges are due.
  4. The money realized from a sale made under this section shall be applied first to the payment of costs and expenses of the sale and secondly to the lawful charges of the person having a lien on the motor vehicle under this section. Remaining proceeds from the sale shall be retained by the department to be distributed to the registered and legal owner or lienholder entitled to the remaining proceeds. A purchaser in good faith of a titled motor vehicle sold under this section takes the motor vehicle free of any rights of prior lien.

History. (§ 21 ch 178 SLA 1978; am § 42 ch 37 SLA 1986; am E.O. No. 99 §§ 43, 44 (1997); am § 2 ch 113 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective June 29, 2010, rewrote (b).

Opinions of attorney general. —

Towing businesses do not have the right to lawfully withhold possession of a vehicle until the owner pays a fee for a “DMV check” (determining from DMV the name and address of the registered owner). July 1, 1987, Op. Att’y Gen.

Collateral references. —

38 Am. Jur. 2d, Garages, Service Stations, and Parking Facilities, § 113 et seq.

61A C.J.S., Motor Vehicles, § 1757 et seq.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 ALR3d 199.

Sec. 28.10.505. Disclosure of personal information contained in motor vehicle records.

  1. Notwithstanding AS 40.25.300 and except as provided in this section, the department may not disclose personal information contained in motor vehicle records maintained by the department under this chapter.
  2. Personal information shall be disclosed for use in connection with matters of motor vehicle or driver safety or theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles and dealers by motor vehicle manufacturers; and removal of nonowner records from the original owner records of motor vehicle manufacturers as required by federal law.
  3. Personal information may be disclosed if the requesting person demonstrates, in a form and manner the department prescribes, that the requesting person has obtained the written consent of the person who is the subject of the information.
  4. Personal information may be disclosed by the department upon proof of the identity of the person requesting a record and representation by the requesting person that the use of the personal information is strictly limited to one or more of the following uses:
    1. for use by a government agency, including a court or law enforcement agency, in carrying out its functions, or a private person or entity acting on behalf of a government agency in carrying out its functions;
    2. for use in the normal course of business by a legitimate business or an agent, employee, or contractor of the business, but only
      1. to verify the accuracy of personal information submitted by an individual to the business or an agent, employee, or contractor of the business; and
      2. if the information submitted is not correct, to obtain the correct information, but only for the purposes of preventing fraud by pursuing legal remedies against, or recovering on a debt or security interest against, an individual;
    3. for use in connection with a civil, criminal, administrative, or arbitration proceeding in a court or government agency or before a self-regulatory body, including service of process and the execution or enforcement of a judgment or court order;
    4. for use in research activities, or in producing statistical reports, if the personal information is not published, redisclosed, or used to contact an individual;
    5. for use by an insurer or insurance support organization, or by a self-insured entity, or an agent, employee, or contractor of an insurer, in connection with claims investigation activities, anti-fraud activities, rating, or underwriting;
    6. for use in providing notice to the owners of towed or impounded vehicles;
    7. for use by an employer or an agent or insurer of an employer to obtain or verify information relating to a holder of a commercial driver’s license that is required under 49 U.S.C. 31101 — 31162 (Commercial Motor Vehicle Safety Act);
    8. for use in connection with the operation of private toll transportation facilities;
    9. for use in connection with a legitimate business operating under a contract with the department;
    10. for bulk distribution for surveys, marketing, or solicitations if the person who is the subject of the information has provided written consent to the release; and
    11. for any other purpose specifically authorized by law that is related to the operation of a motor vehicle or related to public safety.
  5. Personal information contained in an individual record may be disclosed, without regard to the intended use of the personal information, if the person who is the subject of the information has provided written consent to the release.
  6. In this section,
    1. “disclose” means to engage in a practice or conduct that makes available or makes known personal information contained in records of the department about a person to another person, organization, or entity by any means of communication;
    2. “individual record” means a record containing personal information about a designated person who is the subject of the record, as identified in a request for information;
    3. “personal information” means information that identifies a person, including a name, address, telephone number, and medical or disability information, but does not include information on vehicular accidents, driving- or equipment-related violations, driver’s license or registration status, or a zip code.

History. (§ 1 ch 67 SLA 1996; am §§ 1, 2 ch 47 SLA 2000)

Revisor’s notes. —

In 2006, in subsection (a), “AS 40.25.300 ” was substituted for “AS 44.99.300 ” to reflect the 2004 renumbering of AS 44.99.300 .

Legislative history reports. —

For governor’s transmittal letter concerning the amendment of subsections (d) and (e) by §§ 1 and 2, ch. 47, SLA 2000 (HB 324), see 2000 House Journal 2060.

Secs. 28.10.510 — 28.10.540. Liens; nonresident owners. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.550. Notice of changes. [Repealed, § 20 ch 241 SLA 1976.]

Secs. 28.10.560, 28.10.570. Evidence; enforcement. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.580. Lists of vehicles. [Repealed, § 29 ch 214 SLA 1975.]

Secs. 28.10.590 — 28.10.660. Miscellaneous offenses; general provisions. [Repealed, § 7 ch 178 SLA 1978.]

Sec. 28.10.661. Definitions.

In this chapter and in regulations adopted under this chapter, unless the context requires otherwise,

  1. “dealer” means a person engaged in the business of buying, selling, or exchanging vehicles of a type required to be registered under this chapter and who maintains a place of business or by word of mouth, advertising, or in any other manner represents to be in the business of buying, selling, or exchanging vehicles;
  2. “manufactured home” has the meaning given in AS 45.29.102 ;
  3. “vehicle” includes mobile homes for the purposes of provisions relating to certificates of title; in this paragraph, “mobile home” means a manufactured home.

History. (§ 7 ch 178 SLA 1978; am § 2 ch 31 SLA 1994; am §§ 20, 21 ch 64 SLA 2012)

Revisor’s notes. —

Formerly AS 28.10.501 . Renumbered in 1984. Paragraph (2) was enacted as paragraph (3); renumbered in 2012 to maintain alphabetical order.

Cross references. —

For a saving clause relating to interpretation of the provisions of ch. 64, SLA 2012, see § 31, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

For severability of the provisions of ch. 64, SLA 2012, see § 32, ch. 64, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective January 1, 2013, in (2), added “; in this paragraph, “mobile home” means a manufactured home”; added (3).

Notes to Decisions

As to the use of the word “dealer” in former AS 28.10.260, relating to obtaining a certificate of title as a condition to registration, see New & Used Auto Sales v. Dewey, 14 Alaska 647 (D. Alaska 1954).

Cited in

Roberson v. Manning, 268 P.3d 1090 (Alaska 2012).

Chapter 11. Abandoned Vehicles.

Sec. 28.11.010. Abandonment unlawful.

  1. A person may not abandon a vehicle upon a highway or vehicular way or area.
  2. A person may not abandon a vehicle upon public property or upon private property without the consent of the owner or person in lawful possession or control of the property.
  3. A person who abandons a vehicle in a place specified in (a) or (b) of this section is considered responsible for the abandonment of the vehicle and is liable for the cost of its removal and disposition.
  4. Except as otherwise provided in (b) of this section, the lawful owner of a vehicle, as shown by the records of the department, whether or not the owner has complied with the provisions of AS 28.10.271 , is considered responsible for the abandonment of the vehicle and is liable for the cost of removal and disposition of the abandoned vehicle unless
    1. the vehicle was abandoned by a person driving the vehicle without the permission of the owner; or
    2. the identity of the person abandoning the vehicle is established and the abandonment was without the consent of the owner.

History. (§ 1 ch 61 SLA 1976; am §§ 8, 9, 22 ch 178 SLA 1978)

Sec. 28.11.020. Presumption of abandonment.

  1. A vehicle registered or titled as required under AS 28.10 that reasonably appears to have been left unattended, standing, parked upon or within 10 feet of the traveled portion of a highway or vehicular way or area in excess of 48 hours, or a vehicle registered or titled as required under AS 28.10 that reasonably appears to have been left standing or parked on private property in excess of 24 hours or upon other public property for more than 30 days, without the consent of the owner or person in charge of the property, notwithstanding other statutory provisions, may be removed under AS 28.11.030 and treated as an abandoned vehicle, unless the vehicle is reclaimed and removed before removal occurs under AS 28.11.030 . The department for good cause may make provisions for parking of vehicles on state property other than specified in this section and under the provisions of AS 44.62.
  2. Notwithstanding other provisions of law, a wrecked or junk vehicle that reasonably appears to have been left unattended, standing, parked upon or within 10 feet of the traveled portion of a highway or vehicular way or area in excess of 24 hours, or a wrecked or junk vehicle that reasonably appears to have been left standing or parked on private property or other public property in excess of 24 hours and without the consent of the owner or person in charge of the property, may be removed under AS 28.11.030 and treated as an abandoned vehicle, unless the vehicle is reclaimed and removed before removal occurs under AS 28.11.030 .
  3. In this section,
    1. “junk vehicle” means a vehicle that
      1. is not currently registered under AS 28.10, except for a vehicle not currently registered under AS 28.10 and used exclusively for competitive racing;
      2. is stripped, wrecked, or otherwise inoperable due to mechanical failure;
      3. has not been repaired because of mechanical difficulties or because the cost of repairs required to make it operable exceeds the fair market value of the vehicle; or
      4. is in a condition that exhibits more than one of the following elements:
        1. broken glass;
        2. missing wheels or tires;
        3. missing body panels or parts; or
        4. missing drive train parts.
    2. “wrecked vehicle” means a vehicle that is disabled and cannot be used as a vehicle without substantial repair or reconstruction.

History. (§ 1 ch 61 SLA 1976; am § 10 ch 178 SLA 1978; am §§ 1, 2 ch 108 SLA 1997)

Sec. 28.11.025. Claim of ownership by private property owner.

  1. In addition to removal of an abandoned vehicle under AS 28.11.020 , a vehicle that is left standing or parked on private property without the consent of the private property owner and for a period of 30 days is presumed to be an abandoned vehicle and title to the vehicle may be transferred to the private property owner as provided under this section. A person who claims ownership of an abandoned vehicle under this section shall provide notice of the claim to the vehicle owner of record and to lienholders in the manner prescribed for giving notice by the department under AS 28.05.121 . The notice must state the location of the vehicle and the period of abandonment. If the vehicle is not registered in this state or the name and address of the registered or legal owner or lienholder cannot be ascertained, notice shall be given by publication in the manner prescribed in the rules of the court for service of process by publication.
  2. If an abandoned vehicle is not reclaimed within 30 days after notice is given as required under (a) of this section, the title to the vehicle vests with the owner of the private property on which the vehicle is located. Upon application, the department shall issue a new certificate of title to a vehicle whose ownership is transferred under this section.
  3. In this section, “vehicle” means a
    1. passenger car, motor home, bus, truck, truck-tractor, motorcycle, motorbike, or similar motor vehicle that is designed for use primarily to transport a person or to transport or draw property on a highway or vehicular way; and
    2. snowmobile, three-wheeler, four-wheeler, or a similar off-highway motor vehicle designed or adapted for cross-country operation over unimproved terrain, ice, or snow and that has been declared by its owner at the time of registration and determined by the Department of Public Safety to be unsuitable for general highway use, although the vehicle may make incidental use of a highway as provided in this title, but not including implements of husbandry or special mobile equipment, such as construction machinery or earthmoving equipment.

History. (§ 5 ch 6 FSSLA 1996; am E.O. No. 99 § 45 (1997); am § 1 ch 25 SLA 2021)

Effect of amendments. —

The 2021 amendment, in (a), substituted “30 days” for “six months” following “for a period” in the first sentence.

Editor’s notes. —

Under sec. 2, ch. 25, SLA 2021, the 2021 amendment to subsection (a) applies “to vehicles abandoned on or after November 14, 2021.”

Sec. 28.11.030. Removal of abandoned vehicles.

  1. A peace officer or an employee authorized by the state or a municipality may remove or have removed to a place for storage a vehicle abandoned on a highway, on a vehicular way or area, or on private property.
  2. Removal of an abandoned vehicle from private property shall be upon the written request of the owner or person in lawful possession or control of the property, and on a form prescribed by the department.
  3. A written report of the removal shall be made by the peace officer or employee who removes or has removed a vehicle under this section, and the report shall be sent immediately to the department and a copy of the report shall be given to the person who stores the property.  The report must describe the vehicle, the date, time, and place of removal, the grounds for removal, and the place of impoundment of the vehicle.

History. (§ 1 ch 61 SLA 1976; am § 11 ch 178 SLA 1978)

Collateral references. —

State or municipal towing, impounding, or destruction of motor vehicles parked or abandoned on streets or highways, 32 ALR4th 728.

Sec. 28.11.040. Notice to owners and lienholders.

The person or company who stores an abandoned vehicle at the direction of a peace officer or an employee under AS 28.11.030 shall within 30 days give notice, in the manner prescribed for the giving of notice by the department under AS 28.05.121 , to the vehicle owner of record and to lienholders of record, stating the grounds for removal and the location of the place of impoundment of the vehicle. If the vehicle is not registered in the state or the name and address of the registered or legal owner or lienholder cannot be ascertained, notice shall be given by publication in the manner prescribed in the rules of the court for service of process by publication.

History. (§ 1 ch 61 SLA 1976; am § 12 ch 178 SLA 1978)

Cross references. —

For court rule on service of process by publication, see Civ. R. 4(e).

Sec. 28.11.050. Vesting of title.

Title to an impounded vehicle not reclaimed by the registered owner, a lienholder, or other person entitled to possession of the vehicle within 15 days from the notice given under AS 28.11.040 vests with the state or, if a municipal ordinance is adopted under AS 28.11.100 , with the municipality, as appropriate. However, nothing in this section prohibits a lien under AS 28.11.090 .

History. (§ 1 ch 61 SLA 1976; am § 13 ch 178 SLA 1978; am § 3 ch 108 SLA 1997)

Sec. 28.11.060. Redemption.

A person who presents satisfactory proof of ownership or right to possession may redeem a vehicle removed under this chapter at any time before an auction under AS 28.11.070(a) by paying the charges of towing, storage, notice, other cost of impoundment, and any applicable penalty imposed by law.

History. (§ 1 ch 61 SLA 1976; am § 14 ch 178 SLA 1978)

Sec. 28.11.070. Disposal of abandoned vehicles.

  1. Upon satisfaction of the notice and reporting requirements prescribed in this chapter, a vehicle may be disposed of by removal to a scrap processing yard or auto wrecker for disposal or by public auction 20 days after notice of the auction is published in a newspaper of general circulation in the area or municipality in which the vehicle was found and presumed abandoned. The notice of auction must describe the vehicle and specify the place, date, and time at which it will be sold. A copy of the notice of auction shall be conveyed to the department.
  2. A vehicle disposed of under this section by public auction must be titled under AS 28.10, and may not be subsequently sold without a certificate of title issued by the department.
  3. Notwithstanding the provisions of this section, a person who disposes of an abandoned vehicle under this section may initiate a civil action against a person named in AS 28.11.010 , if liable, for costs exceeding receipts for the disposal of the vehicle.

History. (§ 1 ch 61 SLA 1976; am § 15 ch 178 SLA 1978; am §§ 4, 5 ch 108 SLA 1997)

Sec. 28.11.080. Disposal facilities.

  1. The department may negotiate with an appropriate state or municipal agency in an effort to designate and acquire land for the temporary storage of vehicles before sale under AS 28.11.070 , or for the final disposal of unsold abandoned vehicles.
  2. A municipality that adopts an ordinance under AS 28.11.100 shall designate appropriate areas within its jurisdiction for the disposal of abandoned vehicles.

History. (§ 1 ch 61 SLA 1976; am § 16 ch 178 SLA 1978)

Sec. 28.11.090. Towing and storage lien on abandoned vehicle.

A person authorized by contract or other official order to remove an abandoned vehicle has a lien upon a vehicle towed, moved, or stored by and in the possession of the person in accordance with AS 28.10.502 .

History. (§ 1 ch 61 SLA 1976; am § 17 ch 178 SLA 1978)

Collateral references. —

38 Am. Jur. 2d, Garages, Service Stations, and Parking Facilities, § 113 et seq.

61A C.J.S., Motor Vehicles, § 1830.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 ALR3d 199.

Sec. 28.11.100. Municipal abatement procedure.

A municipality may adopt an ordinance establishing procedures for the abatement and removal from private or public property, as a public nuisance or a health or safety hazard, a wrecked, dismantled, or inoperative vehicle or a vehicle otherwise presumed to be abandoned. An ordinance adopted under this section must contain provisions for (1) notice to owners and lienholders of record and persons known to be lawfully entitled to possession of the vehicles, of their right to a hearing which shall be conducted by the municipality in the manner provided for by municipal ordinance; (2) notice to owners and lienholders as provided in AS 28.11.040 ; and (3) disposal of abandoned vehicles as provided in AS 28.11.070 .

History. (§ 1 ch 61 SLA 1976; am § 18 ch 178 SLA 1978; am § 6 ch 108 SLA 1997)

Sec. 28.11.110. Abandoned motor vehicle fund.

  1. There is created in the department an abandoned motor vehicle fund, to be composed of appropriations by the legislature and proceeds from the sale of abandoned motor vehicles.
  2. The proceeds from the sale of an abandoned motor vehicle under this chapter, after deducting the cost of impounding, advertising, and selling the vehicle, shall be deposited in the fund set out in (a) of this section.
  3. Money in the fund shall be disbursed to the department and to each of the municipalities bound by the provisions of this chapter upon presentation of a voucher for payment of services rendered in compliance with this chapter.

History. (§ 1 ch 61 SLA 1976)

Chapter 15. Drivers’ Licenses.

Administrative Code. —

For driver licensing and safety responsibility, see 2 AAC 90.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 100 et seq.

60 C.J.S., Motor Vehicles, § 318 et seq.

Article 1. Issuance, Expiration, and Renewal of Licenses.

Sec. 28.15.010. License required. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.011. Drivers must be licensed.

  1. A person may not be denied the privilege to drive a motor vehicle upon a highway in this state, except as prescribed by law.
  2. Every person exercising the person’s privilege to drive, or exercising any degree of physical control of a motor vehicle upon a highway, vehicular way or area, or other public property in this state, is required to have in the possession of the person a valid Alaska driver’s license issued under the provisions of this chapter for the type or class of vehicle driven, unless expressly exempted by law from this requirement.
  3. A person licensed under the provisions of this chapter may exercise in this state the privilege to drive a motor vehicle and is subject to the restrictions prescribed by this chapter.  A municipality may not require a person to obtain any other driver’s license to drive or operate a motor vehicle in this state.
  4. Violation of (b) of this section is an infraction.

History. (§ 19 ch 178 SLA 1978; am § 42 ch 1 4SSLA 2017)

Cross references. —

For provision relating to applicability of the 2017 enactment of subsection (d), see sec. 75(a)(22), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2017 amendment, effective November 27, 2017, added (d).

Notes to Decisions

Subsection (a) construed. —

The provisions of subsection (a) constitute a broad statement of the legislature’s intent, in enacting the motor vehicle code, to adopt a statutory scheme that deals with the licensing of Alaska drivers in a comprehensive and uniform manner; this subsection is not a legislative commitment to the philosophical concept of an innate privilege to drive. Roberts v. State, 700 P.2d 815 (Alaska Ct. App. 1985).

Privilege against self-incrimination. —

The privilege against self-incrimination does not extend to the requirement that motorists produce a driver’s license, despite speeding defendant’s assertion that requiring him to present his license when he was stopped violated his privilege against compulsory self-incrimination because it identified him for the purpose of prosecution. Collier v. Municipality of Anchorage, 138 P.3d 719 (Alaska Ct. App. 2006).

Driver’s license is valuable property interest which may not be taken without due process of law. Webb v. State, 756 P.2d 293 (Alaska 1988).

An airboat is not a motor vehicle for which a driver’s license is required. State v. Stagno, 739 P.2d 198 (Alaska Ct. App. 1987).

An all terrain three-wheeler is a motor vehicle for which a driver’s license is required. State v. Benolken, 838 P.2d 280 (Alaska Ct. App. 1992).

Maximum penalties for subsection (b) violations. —

Although a violation of subsection (b) carries no mandatory minimum sentence equivalent to the 10-day jail sentence and one-year license revocation of AS 28.15.291(a) as it formerly read, the available maximum penalties under AS 28.35.230(a) and (b) [renumbered as AS 28.90.010 ] are the same. Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982).

Lesser included offense. —

Driving without a license (DWOL) is a lesser-included offense of driving while license suspended (DWLS). Therefore, when defendant pled no contest to DWLS, he also pled to the lesser-included offense of DWOL. Kennedy v. State, 786 P.2d 928 (Alaska Ct. App. 1990).

Cited in

Lowry v. State, 655 P.2d 780 (Alaska Ct. App. 1982); Caulkins v. State, Dep't of Pub. Safety, 743 P.2d 366 (Alaska 1987); State v. Straetz, 758 P.2d 133 (Alaska Ct. App. 1988); Reeve v. State, 764 P.2d 324 (Alaska Ct. App. 1988).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 100 et seq.

60 C.J.S., Motor Vehicles, §§ 277, 318 et seq.

Lack of automobile operator’s license as evidence of negligence, 29 ALR2d 963.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator’s license, 6 A.L.R.3d 506.

Negligent entrustment of motor vehicle to unlicensed driver, 55 ALR4th 1100.

Emergency or necessity as defense in prosecution for driving without operator’s license or while license is suspended, 5 ALR5th 73.

Secs. 28.15.015, 28.15.020. Medical exams; exemptions. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.021. Persons exempt from driver licensing.

The following persons are exempt from driver licensing under this chapter:

  1. an employee of the United States government while operating a motor vehicle owned by or leased to the United States government and being operated on official business, unless the employee is required by the United States government or an agency of that government to have a state driver’s license;
  2. a nonresident who is at least 16 years of age and who has a valid driver’s license issued by another jurisdiction; however, an Alaska driver’s license must be obtained by the end of a 90-day period after entry into the state;
  3. a member of the armed forces of the United States or, if the member’s spouse is 18 years of age or older, the spouse of a member of the armed forces of the United States who has a valid driver’s license issued by another jurisdiction when the permanent residence of the member or spouse is maintained in that jurisdiction;
  4. a person when driving an implement of husbandry, as defined by regulation, that is only temporarily driven or moved on a highway;
  5. a person when driving or operating an off-highway vehicle, watercraft, aircraft, or other vehicle not designed for highway use as specified by the department by regulation;
  6. a person who is at least 16 years of age with a valid driver’s license from a jurisdiction other than Alaska while driving a motor-driven cycle; however, an Alaska driver’s license for driving a motor-driven cycle must be obtained by the end of a 90-day period after entering the state;
  7. a person when operating an electric personal motor vehicle;
  8. certain drivers in the United States military service who are operating commercial motor vehicles for military purposes; in this paragraph, “certain drivers in the United States military service”
    1. means
      1. a member of the United States active duty military, including active duty United States Coast Guard;
      2. a member of the United States military reserves;
      3. a member of the Alaska National Guard or the national guard of another state on active duty in this state, including a member on part-time Alaska National Guard training; and
      4. an individual who serves as an Alaska National Guard military technician; in this sub-subparagraph, “Alaska National Guard military technician” means an individual who is not a member of the military, but is required to wear a military uniform;
    2. does not include an individual who serves as a United States Military Reserve technician;
  9. drivers employed by a municipality or established village, as that term is defined in AS 04.21.080 , with a population of 3,000 or less operating snow removal equipment in this state within the boundaries of the municipality or established village if
    1. the employee who is properly licensed in this state and ordinarily operates the equipment is unavailable; or
    2. the municipality or established village determines that an emergency exists that requires additional assistance;
  10. a nonresident who holds a valid commercial driver’s license issued by another jurisdiction when the permanent residence of the commercial driver is maintained in that jurisdiction.

History. (§ 19 ch 178 SLA 1978; am § 1 ch 140 SLA 2002; am § 3 ch 142 SLA 2002; am § 3 ch 23 SLA 2007; am § 1 ch 58 SLA 2014)

Revisor’s notes. —

Paragraph (7) was enacted as (5); renumbered in 2002.

Effect of amendments. —

The 2014 amendment, effective October 5, 2014, rewrote (3), which read, “a member of the armed forces of the United States who has a valid driver’s license issued by another jurisdiction when the permanent residence of the member is maintained in that jurisdiction”.

Opinions of attorney general. —

A person who works two weeks in Alaska, leaves for two weeks, then returns and continues this cycle over a period of time so that he has remained in Alaska for a total of 90 days is not required to obtain an Alaska driver’s license. July 31, 1985, Op. Att’y Gen.

Notes to Decisions

Section held not to amend AS 28.15.291 . —

Appellate court rejected defendant’s argument that the legislature impliedly amended AS 28.15.291(a) when it adopted this section because the two statutes are not irreconcilable. The first prohibits a person whose driver’s license was suspended or revoked from driving any motor vehicle on a highway while the second statute allows people to drive off-highway vehicles without a license so long as the vehicle is not being operated on a highway. Stevens v. State, 135 P.3d 688 (Alaska Ct. App. 2006).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 108, 112.

60 C.J.S., Motor Vehicles, § 325.

Sec. 28.15.030. Persons not to be licensed. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.031. Persons not to be licensed.

  1. The department may not issue a driver’s license to a person who is
    1. under the age of 16 years, except that the department may issue a permit under AS 28.15.051 or a restricted license under AS 28.15.121 ; or
    2. at least 16 years of age but not yet 18 years of age unless the person meets the requirements of AS 28.15.057 .
  2. The department may not issue an original or duplicate driver’s license to, nor renew or reinstate the driver’s license of, a person
    1. whose license is suspended, revoked, canceled, or withdrawn in this or any other jurisdiction except as otherwise provided in this chapter;
    2. who fails to appear in court for the adjudication of a certain vehicle, driver, or traffic offense when the person’s appearance is required by statute, regulation, or court rule;
    3. who is an habitual user of alcohol or another drug to such a degree that the person is incapable of safely driving a motor vehicle;
    4. when the department, based upon medical evidence, has determined that because of the person’s physical or mental disability the person is not able to drive a motor vehicle safely;
    5. who is unable to understand official traffic control devices as displayed in this state or who does not have a fair knowledge of traffic laws and regulations, as demonstrated by an examination;
    6. who has knowingly made a false statement in the person’s application for a license or has committed fraud in connection with the person’s application for, or in obtaining or attempting to obtain, a license, or who has not applied under oath on the form provided for the purpose of obtaining or attempting to obtain a license or permit; or
    7. who is required under AS 28.20 to furnish proof of financial responsibility and who has not done so.
  3. The department may not issue an original or duplicate commercial driver’s license to, nor renew or reinstate the commercial driver’s license of, a person who is disqualified from operating commercial motor vehicles in this or any other jurisdiction or is not domiciled in this state.
  4. In this section, “disqualified” has the meaning given in AS 28.33.190 .

History. (§ 19 ch 178 SLA 1978; am § 4 ch 42 SLA 1988; am § 1 ch 93 SLA 1998; am §§ 4, 5 ch 23 SLA 2007)

Revisor’s notes. —

Paragraphs (b)(4)-(7) were formerly (b)(5)-(8). Renumbered in 2006 to reflect the 1988 repeal of former (b)(4).

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Notes to Decisions

Stated in

Commercial Fisheries Entry Comm'n v. Apokedak, 606 P.2d 1255 (Alaska 1980).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 112 et seq.

60 C.J.S., Motor Vehicles, §§ 325 et seq., 339.

Constitutionality of statute which makes proof of financial responsibility condition of granting, or of nonsuspension of, automobile registration license, or driver’s license, 115 ALR 1376, 35 ALR2d 1011.

Denial, suspension, or cancellation of driver’s license because of physical disease or defect, 38 ALR3d 452.

Validity, construction, and application of age requirements for licensing of motor vehicle operators, 86 ALR3d 475.

Sec. 28.15.040. Instruction permits and temporary licenses. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.041. Classification of drivers’ licenses.

  1. The commissioner shall provide by regulation for the classification of drivers’ licenses. The regulations must specify license classifications that are reasonably necessary for the safe operation of the various types, sizes, and combinations of motor vehicles. The regulations must also establish medical standards, standards of driving conduct and proficiency, and other standards governing the issuance, renewal, or denial of these licenses. The department may examine each applicant to determine the applicant’s qualifications according to the class of license applied for, and upon issuing a driver’s license the department shall indicate on the license the classification for which an applicant for a license has qualified by examination. The regulations and any subsequent modifications under this section become effective only if approved by a concurrent resolution adopted by a majority vote of each house of the legislature.
  2. [Repealed, § 5 ch 53 SLA 1990.]
  3. [Repealed, § 5 ch 53 SLA 1990.]
  4. The commissioner shall adopt regulations for the issuance of drivers’ licenses that are federally compliant. For drivers’ licenses that are federally compliant, the department
    1. shall copy, scan, or retain only the minimum number of documents required by P.L. 109-13, Division B (REAL ID Act of 2005), or other applicable state or federal law, for issuance of a driver’s license that is federally compliant;
    2. shall destroy, regularly and as close as practicable to 15 years after the date of application unless otherwise required by another applicable state or federal law, any documents retained under (1) of this subsection; and
    3. may not copy, scan, or retain in any form a document that is not required to be retained under (1) of this subsection.
  5. The department shall continue to issue drivers’ licenses that are not federally compliant. Nothing in this section or regulations adopted under this section requires a driver to be issued a driver’s license that is federally compliant. An applicant must clearly request a driver’s license that is federally compliant to obtain one. The state or a municipal government may not require a person to possess or use a driver’s license that is federally compliant unless the person is a state or municipal employee and the duties of the person’s job require the use of a driver’s license that is federally compliant. The state or a municipal government shall otherwise treat a driver’s license that is not federally compliant the same as a driver’s license that is federally compliant. For a driver’s license that is not federally compliant, the department
    1. shall retain an image of the face on the license for not more than 15 years after the date of application; if an applicant does not receive a driver’s license, the department may not retain an image of the applicant’s face;
    2. shall scan and retain only the minimum documents necessary for issuance of the driver’s license; the department shall destroy any documents retained one year after the driver’s license expires.
  6. The department shall provide public information about the differences between drivers’ licenses and drivers’ licenses that are federally compliant. The department shall also provide the information to applicants for new and renewal drivers’ licenses at the time of application. At a minimum, the information must include a description of
    1. each type of driver’s license;
    2. the storage and sharing process for an applicant’s information for a driver’s license and a driver’s license that is federally compliant; and
    3. the official purpose and limitations on the use of each type of driver’s license, including a description of the purposes for which a driver’s license that is federally compliant may be required and a description of alternatives to using a driver’s license that is federally compliant to serve those purposes.

History. (§ 19 ch 178 SLA 1978; am § 2 ch 104 SLA 1985; am § 2 ch 19 SLA 1986; am § 5 ch 53 SLA 1990; am § 9 ch 8 SLA 2017)

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

For classified driver's licenses, see 2 AAC 90, art. 4.

For standards for licensing of drivers, see 2 AAC 90, art. 6.

For definitions, see 2 AAC 90, art. 8.

Effect of amendments. —

The 2017 amendment, effective January 1, 2019, added (d) — (f).

Notes to Decisions

The regulations established by the commissioner do not provide for a driver’s license for an airboat. State v. Stagno, 739 P.2d 198 (Alaska Ct. App. 1987).

An all terrain three-wheeler is a motor vehicle for which a driver’s license is required. State v. Benolken, 838 P.2d 280 (Alaska Ct. App. 1992).

Sec. 28.15.046. Licensing of school bus drivers.

  1. In addition to the requirements of AS 28.15.041(a) , a person may not drive a school bus transporting school children to or from a public school to enable them to participate in class or a school activity, or a bus transporting school children to or from a public school for classroom studies until the person has applied for and has been issued a license for that purpose under this section. This subsection does not apply to a person or motor vehicle exempted under regulations adopted by the commissioner. In this subsection “classroom studies” means curriculum studies that take place in a public school building.
  2. The department may not issue a license under this section unless the applicant
    1. is at least 21 years of age;
    2. has had a license to operate a motor vehicle at least three years before the date of application;
    3. has successfully completed all required driving, written, and physical examinations;
    4. has submitted the applicant’s fingerprints, the fees required by the Department of Public Safety under AS 12.62.160 for criminal justice information and a national criminal history record check, and other information sufficient to complete a background check consisting of a fingerprint check of national criminal records and state criminal records of the state or states in which the applicant has resided for the past 10 years; the department shall submit the fingerprints and fees to the Department of Public Safety for a report of criminal justice information under AS 12.62 and a national criminal history record check under AS 12.62.400 ;
    5. has completed a state approved school bus driver training course established under AS 14.07.020(a)(14) or has for the previous two years been licensed by the state to operate a school bus.
  3. The department may not issue a license under this section to an applicant
    1. who has been convicted of any of the following offenses:
      1. a violation, or an attempt, solicitation, or conspiracy to commit a violation, of AS 11.41.100 11.41.220 , 11.41.260 11.41.320 , 11.41.360 11.41.370 , 11.41.410 11.41.470 , or 11.41.500 11.41.530 ;
      2. a felony violation of endangering the welfare of a child in the first degree under AS 11.51.100 ;
      3. felony indecent viewing or production of a picture under AS 11.61.123 ;
      4. distribution of child pornography under AS 11.61.125 ;
      5. possession of child pornography under AS 11.61.127 ;
      6. distribution of indecent material to minors under AS 11.61.128 ;
      7. felony prostitution under AS 11.66.100(e) ;
      8. sex trafficking in the first, second, or third degree under AS 11.66.110 11.66.130 ;
      9. a felony involving distribution of a controlled substance under AS 11.71 or imitation controlled substance under AS 11.73;
      10. a felony violation under AS 28.35.030(n) or 28.35.032(p) ; or
    2. who has been convicted of any of the following offenses and less than two years have elapsed since the applicant’s date of conviction for the offense:
      1. assault in the fourth degree under AS 11.41.230 ;
      2. reckless endangerment under AS 11.41.250 ;
      3. contributing to the delinquency of a minor under AS 11.51.130 ;
      4. misdemeanor prostitution under AS 11.66.100(a)(2) ;
      5. a misdemeanor violation of endangering the welfare of a child in the first degree under AS 11.51.100 .
  4. The department may not issue a license under this section if, at the time of application
    1. and under circumstances other than those described in (2) of this subsection, less than two years have elapsed from the date of the applicant’s first conviction of either driving while under the influence of an alcoholic beverage, inhalant, or controlled substance under AS 28.35.030 or refusal to submit to a chemical test under AS 28.35.032 ;
    2. less than 10 years have elapsed from the date of the applicant’s conviction for
      1. refusal to submit to a chemical test under AS 28.35.032 if the offense occurred while driving a commercial motor vehicle; or
      2. an offense described in AS 28.33.140(a)(1) , (4), (5), or (10);
    3. the applicant has been convicted two or more times of misdemeanor driving while under the influence of an alcoholic beverage, inhalant, or controlled substance under AS 28.35.030 or misdemeanor refusal to submit to a chemical test under AS 28.35.032, or a combination of those offenses.
  5. For purposes of determining whether an applicant has been convicted of an offense listed under (c) or (d) of this section, a conviction under prior state law or in another jurisdiction of an offense having elements similar to those of the offenses listed in (c) or (d) of this section is considered a conviction.
  6. Costs of conducting the background check required under (b)(4) of this section shall be paid by the applicant. Application for renewal may be made by submitting to the department the results of a current physical examination and paying the required fee.
  7. Conviction of an offense described in (c) or (d) of this section is grounds for the immediate cancellation of a license issued under this section.
  8. To qualify for a license, an applicant who has been convicted of an offense described in (c)(2) or (d) of this section shall supply proof that is acceptable to the department of the date of the applicant’s conviction for the offense.
  9. A license issued under this section expires unless renewed within five years after the date of its issuance. A person may renew a license under this section within one year before its expiration upon proper application, payment of the required fee, and the completion of a background check under (b)(4) of this section.
  10. The holder of a school bus driver’s license under this section shall, at the time of renewal, report, on a form provided by the department, a conviction for an offense listed in (c), (d), or (e) of this section.
  11. Notwithstanding (c) or (d) of this section, the department may, under standards set by regulation, issue a license to a person who
    1. may otherwise not be issued a license under (d)(3) of this section if, in the 10-year period immediately preceding the application under this subsection, the person has not been convicted of a violation of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance under AS 28.35.030 or refusal to submit to a chemical test under AS 28.35.032 ;
    2. has been convicted of an offense listed under (c)(2)(A) — (D) of this section if less than two years have elapsed since the date of conviction and the offense was not against a child.
  12. In this section, the date of conviction is the date that sentence is imposed for the offense.

History. (§ 3 ch 19 SLA 1986; am § 1 ch 13 SLA 1988; am § 6 ch 12 SLA 1990; am § 19 ch 81 SLA 1998; am § 8 ch 60 SLA 2002; am § 17 ch 79 SLA 2004; am § 6 ch 23 SLA 2007; am § 23 ch 1 TSSLA 2012; am §§ 3 — 7 ch 45 SLA 2014)

Revisor's notes. —

In 2016, in subparagraph (c)(1)(G), "AS 11.66.100(e) " was substituted for "AS 11.66.100(c) " to reflect the 2016 relettering of that subsection.

In 2019, “production of a picture” was substituted for “photography” in (c)(1)(C) to reflect the 2019 amendment to AS 11.61.123 in sec. 42, ch. 4, FSSLA 2019.

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

For classified driver's licenses, see 2 AAC 90, art. 4.

For transportation of pupils, see 4 AAC 27.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, in (c)(8), substituted “sex trafficking” for “promoting prostitution”.

The 2014 amendment, effective July 1, 2014, in (b)(4), substituted “resided for the past 10 years” for “resided for the past two years”; rewrote (c) and (d), which read, “(c) The department may not issue a license under this section to an applicant who has been convicted of any of the following offenses within 20 years of the time of application: (1) sexual abuse of a minor in any degree under AS 11.41.434 11.41.440 ; (2) sexual assault in any degree under AS 11.41.410 11.41.425 ; (3) incest under AS 11.41.450 ; (4) unlawful exploitation of a minor under AS 11.41.455 ; (5) contributing to the delinquency of a minor under AS 11.51.130 ; (6) a felony involving possession of a controlled or imitation controlled substance under AS 11.71 or AS 11.73; (7) a felony or misdemeanor involving distribution of a controlled or imitation controlled substance under AS 11.71 or AS 11.73; (8) sex trafficking in the first or second degree under AS 11.66.110 or 11.66.120 ; (9) indecent exposure in the first or second degree under AS 11.41.458 or 11.41.460 . (d) The department may not issue a license to an applicant who has been convicted of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance under AS 28.35.030 within two years of the time of application or to an applicant who has two or more convictions for driving while under the influence of an alcoholic beverage, inhalant, or controlled substance within 10 years of the time of application.”; in (e), deleted “substantially” following “offense having elements”; added (g) — ( l ).

Editor's notes. —

Section 27(a), ch. 1, TSSLA 2012, provides that the 2012 amendment to (c)(8) of this section applies to offenses committed before, on, or after July 1, 2012.

Under Sec. 14(b), ch. 45, SLA 2014, the 2014 changes to (c) — (e) of this section and subsections (g) — ( l ) “do not apply to an offense for which the person was unconditionally discharged before July 1, 2004.”

Legislative history reports. —

For the governor's transmittal letter concerning ch. 1, TSSLA 2012 (HB 359), see 2012 House Journal 1665 — 1669.

Sec. 28.15.050. Applications. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.051. Instruction permits, temporary drivers’ licenses, and special drivers’ permits and licenses.

  1. Except as provided in (b) of this section, a person who is at least 14 years of age may apply to the department for a noncommercial instruction permit. The department may, after the applicant has successfully passed all parts of the examination under  AS 28.15.081 other than the driving test, issue to the applicant an instruction permit. The permit allows a person, while having the permit in the person’s immediate possession, to drive a specified noncommercial type or class of motor vehicle on a highway or vehicular way or area for a period not to exceed two years. The permittee shall be accompanied by a person at least 21 years of age who has been licensed at least one year to drive the type or class of vehicle being used, who is capable of exercising control over the vehicle and who occupies a seat beside the driver, or who accompanies and immediately supervises the driver when the permittee drives a motorcycle. An instruction permit may be renewed one time. Once a license is issued to drive a specified type or class of motor vehicle, a driver is not eligible to obtain an instructional permit for that specified type or class of motor vehicle unless five years have passed since the expiration of the license.
  2. The department, upon receiving proper application, may issue a restricted instruction permit effective for a school year or for a more restricted period to an applicant who is at least 14 years of age and who is enrolled in a driver education program that includes practice driving and is approved by the department.  The restricted instruction permit allows the permittee, when the permittee has the permit in the permittee’s immediate possession, to drive a specified type or class of motor vehicle; however, an approved instructor must occupy a seat beside the permittee or, if the permittee is driving a motorcycle, the permittee must be accompanied by and under the immediate supervision of an approved instructor.
  3. The department may issue a temporary driver’s license to an applicant for a driver’s license permitting the applicant to drive a specified type or class of motor vehicle while the department is completing its investigation and determination of all facts relative to the applicant’s eligibility to receive a driver’s license. The temporary license must be in the applicant’s immediate possession while the applicant is driving a motor vehicle. A temporary driver’s license is invalid when the applicant’s license has been issued or has been refused for good cause.
  4. The department may issue a special driver’s permit to a person who is at least 14 years of age with the consent of the person’s parents, guardians, or spouse who is 18 years of age or older, for the purpose of driving a motor-driven cycle. This permit may be issued upon application and successful completion of all prescribed tests and fees, and is valid for the same period of time as a driver’s license.  The permit is not valid in a municipality that by ordinance prohibits the driving of a motor-driven cycle by a person under the age of 16 years; a borough may adopt the ordinance on a nonareawide basis only, unless the power to adopt it on an areawide basis is acquired under  AS 29.35.300 29.35.330 or former AS 29.33.250 — 29.33.290.
  5. Notwithstanding other provisions of this chapter, the department may issue a special driver’s license to a person who is under the age of 16 years because of the circumstances of hardship.  Special licenses to be issued because of hardship shall be determined on an individual basis by the commissioner.
  6. A person who is at least 18 years of age may apply to the department for a commercial instruction permit. The department may, after the applicant has successfully passed all parts of the examination under  AS 28.15.081 other than the driving test, issue to the applicant a commercial instruction permit. The permit allows a person, while having the permit in the person’s immediate possession, to drive a specified commercial type or class of motor vehicle on a highway or vehicular way or area for a period not to exceed 180 days. The permittee shall be accompanied by a person at least 21 years of age who has been licensed at least one year to drive the type or class of vehicle being used, who is capable of exercising control over the wheel, and who occupies a seat beside the driver. A commercial instruction permit may be renewed one time for a period of 180 days. Once a license is issued to drive a specified type or class of motor vehicle, a driver is not eligible to obtain a commercial instructional permit for that specified type or class of motor vehicle unless
    1. five years have passed since the expiration of the previous license; or
    2. the commercial instruction permit is obtained for the purpose of adding an endorsement to a current class of commercial license.

History. (§ 19 ch 178 SLA 1978; am § 50 ch 74 SLA 1985; am § 10 ch 60 SLA 1986; am § 2 ch 93 SLA 1998; am § 7 ch 23 SLA 2007; am §§ 9, 10 ch 80 SLA 2014)

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Effect of amendments. —

The 2014 amendment, effective July 11, 2014, in (a), in the first sentence, inserted “a noncommercial” following “apply to the department for”, and made a stylistic change, in the third sentence, substituted “a specified noncommercial type or class” for “a specified type or class”, and in the last sentence, added “unless five years have passed since the expiration of the license” at the end; added (f).

Notes to Decisions

Instructions.

Given the defense that two different drivers had driven the car at different times, the trial court should have given a factual unanimity instruction, but the omission was harmless error because the jury found defendant guilty of driving in violation of his instructional permit under AS 28.15.051(a) , and the jury unanimously found that defendant drove the car on the roadway and into the ditch. Cathey v. State, — P.3d — (Alaska Ct. App. July 19, 2017) (memorandum decision).

Cited in

Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982).

Collateral references. —

60 C.J.S., Motor Vehicles, § 272 et seq.

Validity, construction, and application of age requirements for licensing of motor vehicle operators, 86 ALR3d 475.

Sec. 28.15.055. Provisional driver’s license.

Upon application, the department may issue a provisional driver’s license to a person who is at least 16 years of age but not yet 18 years of age if the

  1. person has been licensed under an instruction permit issued under AS 28.15.051 or under the law of another state with substantially similar requirements for at least six months;
  2. person’s parent, legal guardian, or employer provides proof satisfactory to the department that the applicant has at least 40 hours of driving experience, including at least 10 hours of driving in progressively challenging circumstances, such as driving in inclement weather and nighttime driving; and
  3. person has not been convicted of a violation of a traffic law within the six months before the application is filed; in this paragraph, “traffic law” has the meaning given to “traffic laws” in AS 28.15.261 .

History. (§ 3 ch 93 SLA 1998; am § 1 ch 165 SLA 2004)

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Sec. 28.15.057. Restrictions on driver’s license issued to a person under 18.

  1. Except as provided under AS 28.15.051 , a person who is at least 16 years of age but not yet 18 years of age may not be issued a driver’s license unless the person has
    1. been licensed under an instruction permit issued under AS 28.15.051 or under the law of another state with substantially similar requirements for at least six months;
    2. held a valid provisional driver’s license issued under AS 28.15.055 for at least six months; and
    3. not been convicted of violating a traffic law during the six months before applying for a driver’s license; in this paragraph, “traffic law” has the meaning given to “traffic laws” in AS 28.15.261 .
  2. A person authorized to drive a motor vehicle under a provisional driver’s license issued under AS 28.15.055 may not
    1. operate a motor vehicle that is carrying any passengers
      1. except a passenger who is a parent, legal guardian, sibling, or a person at least 21 years of age; or
      2. unless at least one of the passengers is a parent, legal guardian, or person at least 21 years of age; or
    2. operate a motor vehicle between the hours of 1:00 a.m. and 5:00 a.m., except when the person is
      1. accompanied by a parent, legal guardian, or a person at least 21 years of age who is licensed to drive the type or class of vehicle being used; or
      2. driving to or from the person’s place of employment or within the scope of the person’s employment and the driving is along the most direct available route.
  3. This section does not apply to restricted licenses issued to persons to operate motor vehicles in areas of the state off the road system when operating motor vehicles in those areas.
  4. A person who violates this section is guilty of an infraction.

History. (§ 3 ch 93 SLA 1998; am §§ 2, 3 ch 165 SLA 2004; am § 17 ch 32 SLA 2016)

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Effect of amendments. —

The 2016 amendment, effective October 4, 2016, in (a)(3), deleted “, or been convicted of violating AS 04.16.050(c) ,” preceding “during the six months”.

Sec. 28.15.060. Applications of minors. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.061. Application for driver’s license or instruction permit; notice of anatomical gift and living will procedure.

  1. Application for an instruction permit or for a driver’s license must be made on a form furnished by the department and must be accompanied by the fee required under AS 28.15.271 .
  2. An application under (a) of this section must
    1. contain the applicant’s full legal name, date and place of birth, sex, and mailing and residence addresses;
    2. state whether the applicant has been previously licensed in the past 10 years as a driver and, if so, when and by what jurisdiction;
    3. state whether any previous driver’s license issued to the applicant has ever been suspended or revoked or whether an application for a driver’s license has ever been refused and, if so, the date of and reason for the suspension, revocation, or refusal;
    4. contain the applicant’s social security number; the requirement of this paragraph only applies to an applicant who has been issued a social security number;
    5. contain other information that the department may reasonably require to determine the applicant’s identity, competency, and eligibility; and
    6. require that the applicant indicate
      1. that the applicant understands the options for drivers’ licenses available at the time of issuance; and
      2. the type of driver’s license that the applicant selects.
  3. When an application is received from a person previously licensed in another jurisdiction, the department may request a copy of the applicant’s driving record from the other jurisdiction. Upon receipt of that record by the department, it becomes a part of the driver’s record in this state with the same effect as if the record originated in this state.
  4. An employee of the department who processes a driver’s license application, other than an application received by mail, shall ask the applicant orally whether the applicant wishes to execute an anatomical gift. The department shall make known to all applicants the procedure for executing an anatomical gift under AS 13.52 (Health Care Decisions Act) by displaying posters in the offices in which applications are taken, by providing a brochure or other written information to each person who applies in person or by mail, and, if requested, by providing oral advice. The department shall inform each applicant in writing that, if the applicant executes a gift under AS 13.52 and if the gift is made with the driver’s license application, the department will transmit the information on the license to a donor registry created under AS 13.50.110 . The department shall also direct the applicant to notify a procurement organization or the department under AS 13.50.140 if the license is destroyed or mutilated or the gift is revoked under AS 13.52.183 . The department shall carry out the requirements of AS 13.50.100 13.50.190 .
  5. [Repealed, § 17 ch 70 SLA 1984.]
  6. At the time of application for a driver’s license or an instruction permit, or renewal of a driver’s license or an instruction permit, the department shall provide the applicant written information explaining the state’s financial responsibility and mandatory motor vehicle insurance laws and potential penalties for failure to comply with those laws.
  7. Upon request, the department shall provide a social security number provided under this section to the child support services agency created in AS 25.27.010 , or the child support agency of another state, for child support purposes authorized by law.

History. (§ 19 ch 178 SLA 1978; am §§ 5, 17 ch 70 SLA 1984; am § 9 ch 43 SLA 1988; am § 22 ch 108 SLA 1989; am § 20 ch 80 SLA 1997; am §§ 51, 52 ch 132 SLA 1998; am § 1 ch 40 SLA 2001; am § 13 ch 54 SLA 2001; am § 6 ch 68 SLA 2004; am § 6 ch 83 SLA 2004; am § 8 ch 23 SLA 2007; am § 33 ch 100 SLA 2008; am § 10 ch 8 SLA 2017)

Revisor’s notes. —

Section 13, ch. 54, SLA 2001 deletes “social security number” from paragraph (b)(1), effective July 1, 2003. The same change was made by § 1, ch. 40, SLA 2001, effective June 26, 2001.

In 2004, in subsection (d), “AS 13.52” was substituted for “AS 13.50 or includes an anatomical gift in a living will under AS 18.12” and “AS 13.52.170 ” was substituted for “AS 13.50.050” in order to reconcile chs. 68 and 83, SLA 2004.

In 2004, “child support enforcement agency created in AS 25.27.010 ” was changed to “child support services agency created in AS 25.27.010 ” in (g) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Effect of amendments. —

The 2017 amendment, effective January 1, 2019, added (b)(6), and made related changes.

Editor’s notes. —

The delayed amendments to this section by § 54(b), ch. 132, SLA 1998, which were to take effect July 1, 2001, were repealed by § 15, ch. 54, SLA 2001.

Sections 14 and 17, ch. 54, SLA 2001, which were to repeal (g) of this section effective July 1, 2003, were repealed by § 3, ch. 37, SLA 2003.

Notes to Decisions

Social security number. —

Since subsection (b) requires all persons applying for a driver’s license to supply their social security number (if they have one), where defendant refused, on religious grounds, to give her social security number the state would not renew her license; instead of pursuing an administrative remedy or suing the state she drove without a license and her conviction was affirmed. Tenison v. State, 38 P.3d 535 (Alaska Ct. App. 2001).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 103.

Sec. 28.15.070. Examination. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.071. Application of minors.

  1. The application of a person under the age of 18 years for an instruction permit or driver’s license must be signed by the father, mother, guardian, or spouse who is 18 years of age or older, or if there is no parent, guardian, or spouse, then by another responsible adult who is willing to assume the obligation imposed under this section upon a person signing the application.  The application must be signed and verified before a person authorized to administer oaths, or be signed in the presence of an authorized representative of the department.
  2. Any negligence or wilful misconduct of a person under the age of 18 years when driving a motor vehicle in this state is imputed to the person who signed the application of the person for a permit or license, and that person is jointly and severally liable for damage caused by the negligence or wilful misconduct of the person under the age of 18 years, except as provided in (c) of this section.
  3. If a minor deposits, or there is deposited on behalf of the minor, proof of financial responsibility for the minor’s driving of a motor vehicle, in the form and amount required in AS 28.20, then the department may accept the application of the minor signed as required under (a) of this section, and, while proof of financial responsibility is maintained, the parent, guardian, spouse, or other responsible adult is not subject to the liability imposed under (b) of this section.
  4. A person who signs the application of a minor for a driver’s license may file with the department a verified written request that the license of the minor be canceled.  When the license is canceled, the person who signed the application is relieved from liability under (b) of this section.
  5. This section does not apply to a person under 18 years of age who is legally emancipated under AS 09.55.590 or a similar law in another jurisdiction.

History. (§ 19 ch 178 SLA 1978; am §§ 11, 12 ch 60 SLA 1986; am § 2 ch 119 SLA 1990)

Notes to Decisions

Quoted in

Siemion v. Rumfelt, 825 P.2d 896 (Alaska 1992).

Collateral references. —

Construction and effect of statutes which make parent, custodian, or other person signing minor’s application for vehicle operator’s license liable for licensee’s negligence or wilful misconduct, 45 ALR4th 87.

Sec. 28.15.080. Issuance. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.081. Examination of applicants.

  1. The department shall examine every applicant for a driver’s license. The examination must include a test of the applicant’s (1) eyesight, (2) ability to read and understand official traffic control devices, (3) knowledge of safe driving practices, (4) knowledge of the effects of alcohol and drugs on drivers and the dangers of driving under the influence of alcohol or drugs, (5) knowledge of the laws on driving while under the influence of an alcoholic beverage, inhalant, or controlled substance, (6) knowledge of the laws on financial responsibility and mandatory motor vehicle liability insurance, and (7) knowledge of the traffic laws and regulations of the state. The examination may include a demonstration of ability to exercise ordinary and reasonable control in the driving of a motor vehicle of the type and general class of vehicles for which the applicant seeks a license. However, an applicant who has not been previously issued a driver’s license by this or another jurisdiction shall demonstrate ability and shall present medical information that the department reasonably requires to determine fitness to safely drive a motor vehicle of the type and general class of vehicles for which the applicant seeks a license.
  2. The commissioner shall adopt regulations under the procedures established by AS 44.62 necessary to implement this section and the department may obtain the services of, and consult with, medical authorities whose specialties relate to driving abilities for the purpose of making the medical determinations necessary under this section or AS 28.15.091 or 28.15.101 . Regulations adopted under this section must be approved by a concurrent resolution adopted by majority vote of each house of the legislature before becoming effective.  The requirements of the eyesight test under this section may also be satisfied by presenting the current certification of a licensed physician or optometrist that the applicant’s vision meets or exceeds the standards established by the department. The commissioner shall request and receive assistance from the commissioner of health and social services in implementing this section.
  3. A requirement for a medical examination under this chapter is satisfied if the applicant is the holder of a current and valid first- or second-class medical certificate issued under federal aviation regulations and has satisfied any applicable requirement of the Department of Education and Early Development relating to tests for tuberculosis if applicable.
  4. The department may enter into agreements with other state agencies, municipalities, or qualified persons for the purpose of conducting the examinations required under this chapter.

History. (§ 19 ch 178 SLA 1978; am § 2 ch 77 SLA 1983; am §§ 6, 17 ch 70 SLA 1984; am § 24 ch 108 SLA 1989; am § 9 ch 60 SLA 2002)

Revisor’s notes. —

In 1999, in (c) of this section, “Department of Education” was changed to “Department of Education and Early Development” in accordance with § 89, ch. 58, SLA 1999.

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 123.

60 C.J.S., Motor Vehicles, § 276.

Sec. 28.15.085. Alcohol and drug awareness and safety examination of applicants.

Notwithstanding another provision of this chapter and in addition to other requirements, a person applying for a new license after expiration of the person’s license on reaching 21 years of age under AS 28.15.099 must pass a test developed and administered by the department regarding alcohol and drug awareness and safety and the laws relating to alcohol, drugs, and driving before the license may be issued or renewed.

History. (§ 1 ch 118 SLA 2008)

Sec. 28.15.090. Access to license. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.091. Department may require re-examination.

If the department has good cause to believe that a licensed driver is incompetent or otherwise not qualified to be licensed, it may upon written notice of at least 10 days to the licensee require the licensee to submit to an examination. Upon conclusion of the examination, the department shall take action as may be appropriate and may cancel the license of the person, or may issue a restricted license under AS 28.15.121 , or restrict the type or class of vehicles that the person may drive. If the licensee refuses or neglects to submit to examination, the department may suspend the driver’s license until the licensee complies with the requirements of re-examination.

History. (§ 19 ch 178 SLA 1978)

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 123.

Sec. 28.15.099. Expiration and renewal of license issued to person under 21 years of age.

Notwithstanding another provision of this chapter, a driver’s license issued to a person under 21 years of age expires 90 days after the person reaches 21 years of age.

History. (§ 2 ch 118 SLA 2008)

Sec. 28.15.100. Duplicates. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.101. Expiration and renewal of driver’s license.

  1. Except as otherwise provided in this chapter, a driver’s license expires on the licensee’s birthday in the eighth year following issuance of the license. A license may be renewed within one year of its expiration upon proper application, payment of the required fee, and except when a license is renewed under (c) of this section, successful completion of a test of the licensee’s eyesight.
  2. The department may defer the expiration of the driver’s license of a person who is outside the state under terms and conditions that the department shall prescribe by regulation.
  3. A driver’s license may be renewed by mail or on the department’s Internet website if the licensee complies with (a) of this section, except that a license may not be renewed by mail or on the department’s Internet website if
    1. the most recent renewal of the applicant’s license was by mail or on the department’s Internet website; or
    2. the applicant is 69 years of age or older on the expiration date of the driver’s license being renewed.
  4. Under regulations adopted by the department, the department may issue to a person a driver’s license with a duration of less than eight years if the person is authorized to stay in the United States for less than eight years or the period of authorized stay is indefinite. The department shall issue the license for the period of the authorized stay. If the period of authorized stay is indefinite, the department shall issue the license with a validity of up to eight years.

History. (§ 19 ch 178 SLA 1978; am §§ 1, 2 ch 32 SLA 1988; am § 6 ch 6 FSSLA 1996; am § 1 ch 1 SLA 2014; am § 8 ch 45 SLA 2014; am §§ 11, 12 ch 8 SLA 2017)

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Effect of amendments. —

The first 2014 amendment, effective June 23, 2014, added (d).

The second 2014 amendment, effective July 1, 2014, in (c), inserted “or on the department's Internet website” following “by mail” three times.

The 2017 amendment, effective January 1, 2019, in (a), in the first sentence, substituted “in the eighth year” for “in the fifth year”; in (d), in the first sentence, twice substituted “eight years” for “five years”, in the third sentence substituted “up to eight years” for “one year”, at the end, deleted the last sentence, which read, “The department shall provide that a person receiving a license with a duration of less than five years under this subsection may renew the license without a renewal fee during a period of up to five years after first issuance of the license.”

Collateral references. —

60 C.J.S., Motor Vehicles, § 279.

Sec. 28.15.110. Restrictions. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.111. Licenses issued to drivers; anatomical gift and living will document.

  1. Upon successful completion of the application and all required examinations, and upon payment of the required fee, the department shall issue to every qualified applicant a driver’s license indicating the type or general class of vehicles that the licensee may drive. The license must (1) display a distinguishing number assigned to the license; (2) display the licensee’s full name, address, date of birth, brief physical description, and photograph; (3) display either a facsimile of the signature of the licensee or a space upon which the licensee must write the licensee’s usual signature with pen and ink; (4) display physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes; (5) display, for a qualified applicant who is under 21 years of age, the words “UNDER 21”; and (6) to the extent the department is able, be designed to allow the electronic reading and electronic display of the information described under (2) of this subsection and the electronic reading and display and a physical display on the license that the person is restricted from purchasing alcoholic beverages under AS 04.16.160 . A license may not display the licensee’s social security number and is not valid until signed by the licensee. If facilities are not available for the taking of the photograph required under this section, the department shall endorse on the license, the words “valid without photograph.”
  2. The department shall provide a method, at the time that an operator’s license is issued, by which the owner of a license may make an anatomical gift under AS 13.52. The method must provide a means by which the owner may cancel the anatomical gift. The department shall inform each applicant in writing that, if the applicant executes a gift under AS 13.52 and if the gift is made with the license, the department will transmit the information on the license to a donor registry created under AS 13.50.110 . The department shall also direct the applicant to notify a procurement organization or the department under AS 13.50.140 if the license is destroyed or mutilated or the gift is revoked under AS 13.52.183 . The department shall carry out the requirements of AS 13.50.100 13.50.190 .
  3. At the request of an applicant, the department shall provide a veteran designation and United States flag replica on a license identifying the driver as a retired veteran, a veteran of the armed forces of the United States discharged under honorable conditions, or a Hmong veteran or Lao veteran who served in military operations in support of the United States in the Kingdom of Laos between February 28, 1961, and May 15, 1975. The department may not charge a fee solely for the designation. To receive a veteran designation, the driver shall make available proof of veteran status that shows that the person is retired, was discharged under honorable conditions, or is a Hmong veteran or Lao veteran. The department shall consult with the Department of Military and Veterans’ Affairs to determine the proof necessary to show that a person is a Hmong veteran or Lao veteran. With the approval of the applicant, the department shall make available to the Department of Military and Veterans’ Affairs the name and address of a driver receiving a veteran designation under this subsection. The department may charge a fee of $5 for replacement of a valid driver’s license with a new license with a veteran designation. A replacement license with a veteran designation issued for $5 under this subsection shall retain the expiration date of the license it replaces.
  4. The department shall provide a method, at the time that a driver’s license is issued, by which the owner of a license may voluntarily designate on the license that the owner has a disability, including a cognitive, mental, neurological, or physical disability, or a combination of those disabilities. The department shall create a discreet symbol to place on the driver’s license of a person requesting the designation. The method must provide a means by which the owner may cancel the designation. The department may not charge a fee solely for the designation. To receive the designation, the person shall provide proof of the disability from a person licensed as a physician or physician assistant under AS 08.64, as a naturopath under AS 08.45, as an advanced practice nurse under AS 08.68, or as a licensed psychologist under AS 08.86. The department may charge a fee of $5 for replacement of a valid driver’s license with a new driver’s license with a disability designation and may charge a fee of $5 for replacement of a driver’s license with a disability designation with a new driver’s license without a disability designation.
  5. The department may not engage in bulk sharing of facial images captured as a result of an application for a driver’s license with a database, other than a database established by the state, regardless of whether the applicant applied for a driver’s license that is federally compliant or a driver’s license that is not federally compliant. The prohibition in this subsection does not apply to a commercial driver’s license.
  6. A commercial driver’s license must be federally compliant.

History. (§ 19 ch 178 SLA 1978; am § 2 ch 50 SLA 1993; am § 21 ch 80 SLA 1997; am § 2 ch 40 SLA 2001; am § 7 ch 68 SLA 2004; am § 7 ch 83 SLA 2004; am § 27 ch 24 SLA 2007; am § 34 ch 100 SLA 2008; am § 2 ch 68 SLA 2012; am §§ 13, 14 ch 8 SLA 2017; am § 6 ch 70 SLA 2018)

Revisor's notes. —

In 2004, in subsection (b), “AS 13.52” was substituted for “AS 13.50 or includes an anatomical gift in a living will under AS 18.12” and “AS 13.52.170 ” was substituted for “AS 13.50.050” in order to reconcile chs. 68 and 83, SLA 2004.

Cross references. —

For the applicability of the 2001 amendment of (a) of this section, see § 4, ch. 40, SLA 2001, in the 2001 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective March 1, 2013, added (c).

The 2017 amendment, effective August 17, 2017, added (d). Effective January 1, 2019, in (a), in (a)(2) deleted “color” preceding “photograph”, in (a)(4), substituted “physical security features designed to prevent tampering, counterfeiting, or duplication of the document for fraudulent purposes” for “a holographic symbol intended to prevent illegal alteration or duplication”; added (e) and (f).

The 2018 amendment, effective October 27, 2018, in (c), at the end of the first sentence, added “, or a Hmong veteran or a Lao veteran who served in military operations in support of the United States in the Kingdom of Laos between February 28, 1961 and May 15, 1975” and made related changes, added “, or is a Hmong veteran or Lao veteran” at the end of the second sentence, and made related changes, added the third sentence.

Sec. 28.15.120. Expiration. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.121. Restricted driver’s license.

  1. The department, upon issuing a driver’s license, may for good cause impose restrictions suitable to the licensee’s driving ability with respect to special mechanical control devices required on a motor vehicle that the licensee drives.  The department may impose other restrictions applicable to the licensee that it determines to be appropriate to assure the safe operation of a motor vehicle by the licensee.
  2. The department may issue a special restricted license or may set out restrictions on the usual license form.
  3. The department may, upon receiving satisfactory evidence of a violation of the restrictions on a license restricted or issued under this section, suspend the restricted license for a period not to exceed 30 days.
  4. A person may not drive a motor vehicle in violation of the restrictions imposed on a restricted license.

History. (§ 19 ch 178 SLA 1978)

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

For classified driver's licenses, see 2 AAC 90, art. 4.

Notes to Decisions

Sufficiency of evidence. —

Defendant was properly convicted of driving while license revoked and driving in violation of a restricted license because, while someone else might have driven the car to an apartment complex, a witness observed defendant drive it to a different place in an alley, defendant did not question the nature of the alley, and a police detective testified that the alley was open to the public. Lundy v. State, — P.3d — (Alaska Ct. App. July 27, 2016) (memorandum decision).

Sec. 28.15.130. School bus drivers. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.131. License to be carried and exhibited on demand.

  1. A licensee shall have the licensee’s driver’s license in immediate possession at all times when driving a motor vehicle, and shall present the license for inspection upon the demand of a peace officer or other authorized representative of the Department of Public Safety identified as such to the licensee by the officer or representative. However, a person charged with violating this section may not be convicted if the person produces in court or in the office of the arresting or citing officer, a driver’s license previously issued to the person that was valid at the time of the person’s arrest or citation.
  2. Violation of this section is an infraction.

History. (§ 19 ch 178 SLA 1978; am E.O. No. 99 § 46 (1997); am § 20 ch 20 SLA 2011)

Effect of amendments. —

The 2011 amendment, effective July 1, 2011, added (b).

Notes to Decisions

A licensing statute cannot be used as a means for obtaining information or evidence not related to the licensing requirement. Schraff v. State, 544 P.2d 834 (Alaska 1975).

License check during community caretaker stop. —

When defendant’s vehicle was stuck in a ditch and another motorist stopped to pull defendant’s vehicle out and was blocking the roadway, it was reasonable for a trooper to conclude that he should remain on the scene to alert other drivers to the possible hazard and to contact a tow truck. The stop was a valid community caretaker stop, and the trooper was authorized to request defendant’s driver’s license; by calling dispatch to check on the status of the license, the trooper did not unreasonably expand the scope or duration of the stop. Fallon v. State, 221 P.3d 1016 (Alaska Ct. App. 2010).

Search for identification not unlawful. —

Search of defendant’s vehicle, and the ensuing discovery and seizure of cocaine and a handgun, were lawful because state troopers could have reasonably assumed that defendant, having decided to lie about her identity, also would attempt to conceal the fact that the vehicle contained proof of the lie. Deemer v. State, 244 P.3d 69 (Alaska Ct. App. 2010).

Applied in

Marsh v. State, 838 P.2d 819 (Alaska Ct. App. 1992).

Cited in

Resecker v. State, 721 P.2d 650 (Alaska Ct. App. 1986); Perozzo v. State, 493 P.3d 233 (Alaska Ct. App. 2021).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 105, 106.

60 C.J.S., Motor Vehicles, § 337.

Validity, construction, and application of statute regarding failure or refusal of operator of motor vehicle to display license on demand, 6 A.L.R.3d 506.

Sec. 28.15.140. Change of name. [Repealed, § 25 ch 144 SLA 1977.]

Sec. 28.15.141. Duplicate driver’s license.

If a valid driver’s license issued under this chapter is lost or destroyed, the person to whom the license was issued may, upon payment of the required fee, obtain a duplicate license. A person who recovers an original license for which a duplicate has been issued shall immediately surrender the duplicate to the department.

History. (§ 19 ch 178 SLA 1978)

Sec. 28.15.150. Records. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.151. Records to be kept by the department.

  1. The department shall maintain a file of
    1. every driver’s license application, license or permit, and duplicate driver’s license issued by it;
    2. every license that has been suspended, revoked, canceled, limited, restricted, or denied, and the reasons for those actions;
    3. all accident reports required to be forwarded to the department under this title; and
    4. every disqualification of an individual from operating a commercial motor vehicle.
  2. The department shall also maintain and update within 10 days after receipt by the department a file of all accident reports, abstracts of court records of convictions of vehicle, driver, and traffic offenses, and other information that the department considers necessary to carry out the purposes of this chapter.
  3. The department shall, upon request, subject to the applicable provisions of AS 12.62 and (f) of this section and without charging a fee, furnish (1) a municipal, state, or federal administrative or judicial agency with a certified abstract of the driving record of a driver within 10 days after receipt of the request by the department; and (2) a parent, foster parent, or guardian of a driver who is under 18 years of age and not an emancipated minor an abstract of the driving record of that driver; the department may refuse to release the driver’s address to the parent, foster parent, or guardian if the department determines that the release of the driver’s address poses a threat to the health or safety of the driver. The abstract must include a listing of accidents in which the driver has been determined by the department or a court of competent jurisdiction to have been liable, convictions of vehicle, driver, and traffic offenses, any actions taken upon the driver’s license, and information relating to financial responsibility.
  4. The department shall, upon request and payment of a fee determined by the commissioner, furnish a driver or a person designated by the driver with an abstract or the original copy of the computer printed record of the driver’s record as provided in (c) of this section.
  5. [Repealed, § 2 ch 144 SLA 1980.]
  6. Except as provided otherwise in this section and in AS 15.07.195 , information and records under this section are declared confidential and private.

History. (§ 19 ch 178 SLA 1978; am §§ 1, 2 ch 144 SLA 1980; am § 3 ch 36 SLA 1999; am §§ 9 — 11 ch 23 SLA 2007; am § 6 ch 13 SLA 2016)

Administrative Code. —

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Effect of amendments. —

The 2016 amendment, effective May 28, 2016, in (f), inserted “and in AS 15.07.195 ” preceding “information and records”.

Opinions of attorney general. —

Most, but not all, information pertaining to motor vehicle accidents contained in Department of Transportation and Public Facilities files or the computer data base is public information and should be released upon request. However, certain information regarding particular accidents, including individual names and specific driver’s license information, must remain confidential by operation of statute. March 30, 1988, Op. Att’y Gen.

Although this section does not explicitly authorize any disclosure of traffic accident reports, these statutorily-required reports have historically been released upon request to those who were either involved in the accident or whose property was involved in the accident, or to their authorized agent, such as their attorney or insurance company. Other than these limited disclosures, however, these accident reports should not be released unless the requesting party has obtained a court order compelling production of the report. Nov. 25, 1994, Op. Att’y Gen.

A “second” photograph taken when a person obtains or renews a driver’s is a part of the license application and is thus a “confidential and private” record under this section. As such, it may not be released to the public or to the press except in those circumstances in which it is apparent that the person would authorize the release if the person could be asked, such as when a person is kidnapped or missing, when publication of the photograph may facilitate the subject’s safe recovery. The photograph may also be used for photo line-ups by law enforcement agencies within the state. Nov. 25, 1994, Op. Att’y Gen.

Collateral references. —

Inspection of motor vehicle records, right as to, 84 ALR2d 1261.

Sec. 28.15.160. Court reports. [Repealed, § 19 ch 178 SLA 1978.]

Article 2. Cancellation, Suspension, Revocation, or Limitation of Drivers’ Licenses.

Sec. 28.15.161. Cancellation of driver’s license.

  1. The department shall cancel a driver’s license upon determination that
    1. the licensee is not medically or otherwise entitled to the issuance or retention of the license, or has been adjudged incompetent to drive a motor vehicle;
    2. there is an error or defect in the license;
    3. the licensee failed to give the required or correct information in the licensee’s application;
    4. the license was obtained fraudulently;
    5. the licensee is restricted from purchasing alcoholic beverages under AS 04.16.160 ; if a license is cancelled under this paragraph, when a new license is issued, it must reflect that restriction and the requirements of AS 28.15.111 if the period of restriction under AS 04.16.160 is still in effect;
    6. the licensee has a license issued under AS 28.15.046 and has been convicted of an offense described in AS 28.15.046(c) or (d) that would disqualify the licensee from obtaining a license under that section; or
    7. the licensee owes $1,000 or more in unpaid fines for offenses involving a moving motor vehicle and failed to
      1. pay the fines in full as required by the court; or
      2. make payments in good faith on the unpaid balance of the fines under a payment plan established by the department.
  2. The licensee may apply for a new license at any time after cancellation upon removal of the cause for the cancellation.

History. (§ 19 ch 178 SLA 1978; am § 28 ch 24 SLA 2007; am § 9 ch 45 SLA 2014; am § 91 ch 4 FSSLA 2019)

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

For classified driver's licenses, see 2 AAC 90, art. 4.

For standards for licensing of drivers, see 2 AAC 90, art. 6.

Effect of amendments. —

The 2014 amendment, effective July 1, 2014, added (a)(6), and made a related change.

The 2019 amendment, effective July 9, 2019, added (a)(7), and made related stylistic changes.

Editor's notes. —

Section 142(k), ch. 4, FSSLA 2019, provides that the 2019 amendment to (a) of this section applies “to a driver's license canceled on or after July 9, 2019 for failure to pay fines imposed on or after July 9, 2019.”

Notes to Decisions

Intent of act. —

This act plainly expresses the intent that all revocations and suspensions of operators’ licenses be the act of the Department of Public Safety. Knudsen v. City of Anchorage, 358 P.2d 375 (Alaska 1960), overruled, Roberts v. State, 458 P.2d 340 (Alaska 1969), overruled, Glasgow v. State, 469 P.2d 682 (Alaska 1970), overruled, Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970); Glasgow v. State, 469 P.2d 682 (Alaska 1970); Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).

Quoted in

Stevens v. State, 135 P.3d 688 (Alaska Ct. App. 2006).

Cited in

Smith v. State, 756 P.2d 913 (Alaska Ct. App. 1988).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 116 et seq.

60 C.J.S., Motor Vehicles, § 353 et seq.

Denial, suspension, or cancellation of driver’s license because of physical disease or defect, 38 ALR3d 452.

Necessity of notice and hearing before revocation or suspension of motor vehicle driver’s license, 60 ALR3d 361.

Sufficiency of notice and hearing before revocation or suspension of motor vehicle driver’s license, 60 ALR3d 427.

Validity of statute or regulation authorizing revocation or suspension of driver’s license for reason unrelated to use of or ability to operate motor vehicle, 86 ALR3d 1251, 18 ALR5th 542.

Emergency or necessity as defense in prosecution for driving without operator’s license or while license is suspended, 7 ALR5th 73.

Sec. 28.15.165. Administrative revocations and disqualifications resulting from chemical sobriety tests and refusals to submit to tests.

  1. A law enforcement officer shall read a notice, and deliver a copy of it, to a person operating a motor vehicle, commercial motor vehicle, or aircraft, if a chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produces a result described in AS 28.35.030(a)(2) ; a chemical test administered under AS 28.33.031(a) produces a result described in AS 28.33.030(a)(2) ; or the person refuses to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) or (g). The notice must advise that
    1. the department intends to revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license, refuse to issue an original license to the person, or disqualify the person;
    2. the person has the right to administrative review of the action taken against the person’s license or determination not to issue an original license;
    3. if the person has a driver’s license or a nonresident privilege to drive, the notice itself is a temporary driver’s license that expires seven days after it is delivered to the person, except that if the person was operating a commercial motor vehicle the person will be ordered out of service for 24 hours under AS 28.33.130 ;
    4. revocation of the person’s driver’s license, privilege to drive, or privilege to obtain a license, a determination not to issue an original license, or a disqualification of the person, takes effect seven days after delivery of the notice to the person unless the person, within seven days, requests an administrative review.
  2. After reading the notice under (a) of this section, the law enforcement officer shall seize the person’s driver’s license if it is in the person’s possession and shall deliver it to the department with a sworn report describing the circumstances under which it was seized. If the person was operating a commercial motor vehicle, the officer shall order the person out of service under AS 28.33.130 .
  3. Unless the person has obtained a temporary permit or stay of a departmental action under AS 28.15.166 , if the chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in AS 28.35.030 (a)(2) or the person refused to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) or (g), the department shall revoke the person’s license, privilege to drive, or privilege to obtain a license, shall refuse to issue an original license, and, if the chemical test administered under AS 28.33.031(a) produced a result described in AS 28.33.030 (a)(2) or the person refused to submit to a chemical test authorized under AS 28.33.031(a), shall disqualify the person. The department’s action takes effect seven days after delivery to the person of the notice required under (a) of this section, and after receipt of a sworn report of a law enforcement officer
    1. that a chemical test administered under AS 28.33.031(a) or AS 28.35.031(a) or (g) produced a result described in AS 28.35.030 (a)(2), that a chemical test administered under AS 28.33.031(a) produced a result described in AS 28.33.030 (a)(2), or that a person refused to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) or (g);
    2. that notice under (a) of this section was provided to the person; and
    3. describing the
      1. circumstances surrounding the arrest and the grounds for the officer’s belief that the person operated a motor vehicle, commercial motor vehicle, or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.33.030 or AS 28.35.030; or
      2. grounds for the officer’s belief that the person operated a motor vehicle or commercial motor vehicle that was involved in an accident causing death or serious physical injury to another person.
  4. The period of revocation of a driver’s license, privilege to drive, privilege to obtain a license, refusal to issue an original license, or disqualification shall be for the appropriate minimum period for court revocations under AS 28.15.181(c) or court disqualifications under AS 28.33.140 . A department hearing officer may grant limited license privileges in accordance with the standards set out in AS 28.15.201 to a person whose driver’s license or nonresident privilege to drive was revoked under this section. The department may terminate a revocation imposed under this section and issue a driver’s license to the person, if the license, privilege to drive, or privilege to obtain a license was revoked for an offense described in AS 28.15.181(a)(5) or (8) and the person meets the conditions set out for termination of a revocation by the court under AS 28.15.181(f) .
  5. A person whose driver’s license, privilege to drive, or privilege to obtain a license has been revoked under this section as a result of a refusal to submit to a chemical test authorized under AS 28.35.031(a) or (g) or a similar municipal ordinance or a chemical test administered under AS 28.35.031(a) or (g) or a similar municipal ordinance in which the test produced a result described in AS 28.35.030 (a)(2) may request that the department rescind the revocation. The department shall rescind a revocation under this subsection if the department finds that the person has supplied proof in a form satisfactory to the department that
    1. the person has been acquitted of driving while under the influence under AS 28.35.030 , refusal to submit to a chemical test under AS 28.35.032 , or a similar municipal ordinance for the incident on which the revocation was based; or
    2. all criminal charges against the person for driving while under the influence under AS 28.35.030 or a similar municipal ordinance and refusing to submit to a chemical test under AS 28.35.032 or a similar municipal ordinance in relation to the incident on which the revocation is based have been dismissed.

History. (§ 3 ch 77 SLA 1983; am §§ 3 — 5 ch 119 SLA 1990; am § 2 ch 3 SLA 1992; am § 1 ch 59 SLA 1993; am §§ 1, 2 ch 55 SLA 1994; am § 10 ch 60 SLA 2002; am § 101 ch 36 SLA 2016; am § 23 ch 13 SLA 2017)

Cross references. —

For provision relating to the applicability of the 2016 amendments to subsection (e), see sec. 185(l)(2), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendments to subsection (e), see sec. 29, ch. 13, SLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective July 12, 2016, added (e).

The 2017 amendment, effective June 20, 2017, in (e)(2), at the end, deleted “without prejudice”.

Notes to Decisions

“Motor vehicle for which driver’s license is required.” —

When viewed in context, the phrase “a motor vehicle for which a driver’s license is required” refers to a type of motor vehicle, rather than to the vehicle’s location. Caulkins v. State, Dep't of Pub. Safety, 743 P.2d 366 (Alaska 1987).

Due process considerations. —

Where a driver was arrested for drunk driving, and the criminal charges were dropped because the arresting officer was deployed to Iraq and would not be available to testify at trial for more than a year, but where the administrative proceedings for the suspension/revocation of the driver’s operating license were not dismissed, the driver’s due process rights were not violated by suspension of her license for almost three years after her arrest because administrative delay alone, without prejudice, did not violate due process, and any prejudice to the driver was slight because she was issued a permit that allowed her to drive throughout the delay. Alvarez v. State, 249 P.3d 286 (Alaska 2011).

Revocation statute does not provide unfair notice in violation of due process; the statutory standards are clear. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

AS 28.35.165(c) does not violate due process by allowing a hearing officer to rely solely on the result of a properly administered breath test; the legislature's enactment of AS 28.90.020 clarifies that a testing machine's "working tolerance" is not to be considered as affecting the result under AS 28.35.030(a)(2) , and judicial interpretations ultimately define the offense under AS 28.35.030(a)(2) as dependent solely on the result of a properly administered chemical test. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

AS 28.35.165(c) does not violate due process by allowing a hearing officer to rely solely on the result of a properly administered breath test; while AS 28.35.033 creates a presumption of the chemical test's validity, it does not make those test results unassailable, and other evidence may call into question the reliability or validity of a chemical breath test result. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

Subsection (c) does not violate due process by allowing a hearing officer to rely solely on the result of a properly administered breath test; because margin-of-error evidence is irrelevant to the statutory basis for revocation, excluding that evidence in revocation cases or declining to find that a result within the margin of error is exculpatory does not violate due process rights. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

Revocation proper. —

Hearing officer did not err in revoking a driver's licenses because she properly interpreted the governing law and did not violate due process in her consideration of a testing instrument's margin of error, and her decision was supported by substantial evidence; AS 28.15.166(g)(2) directed the hearing officer to determine whether the chemical test produced a particular result, and she did so and explained why she did not find the test results to be conflicting. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

Revocation not a criminal penalty. —

Although the statutory requirement that a police officer inform an individual of the consequences of refusing to submit to a chemical sobriety test is equivalent to the scienter requirement of a criminal statute, license revocation was held not to be criminal in nature in light of the fact that the legislature gave the statute a “civil” label and provided for administrative review, that license revocation does not involve an affirmative disability or restraint, that it has not historically been regarded as punishment, and that a 90-day revocation is not excessive in relation to the remedial goal of obtaining reliable evidence of intoxication and in service of the overall goal of protecting the public from intoxicated drivers. Rivera v. Pugh, 194 F.3d 1064 (9th Cir. Alaska 1999).

Revocation depends on properly administered test. —

Subsection (c) depends only on the result of a properly administered test under AS 28.35.030(a)(2) , and margin-of-error evidence is not relevant to this determination. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

Revocation for operating in parking lot. —

The Department of Public Safety may revoke the driver’s license of an intoxicated person who operates a motor vehicle in a privately owned parking lot held open to the public. Caulkins v. State, Dep't of Pub. Safety, 743 P.2d 366 (Alaska 1987).

Revocation based on refusal to take test. —

Defendant’s driver’s license was properly revoked for refusing to take a breath test where the determination of revocation did not hinge on whether he was actually intoxicated, but rather, on whether his conduct constituted a refusal. Snyder v. Alaska, Dep't of Public Safety, Div. of Motor Vehicles, 31 P.3d 770 (Alaska 2001).

Revocation for intoxication operating towed snowmobile. —

A towed snowmobile is a motor vehicle because steering such a vehicle, even if only partially, involves exercising control over the vehicle, and it amounts to operating the vehicle; where a motorist was operating a towed snowmobile while intoxicated, and refused to submit to a chemical breath test under the implied consent law, his driver’s license was properly revoked. Conkey v. Dep't of Admin., 113 P.3d 1235 (Alaska 2005).

License revocation improper given margin of error. —

A chemical test reading or result which may be reduced below the level of .10 grams per 210 liters of the person’s breath by applying the margin of error inherent in the particular test used cannot serve as the basis for a license revocation under subsection (c). Haynes v. State, Dep't of Pub. Safety, 865 P.2d 753 (Alaska 1993).

Appearance and behavior improperly considered. —

Officer’s testimony concerning defendant’s appearance and behavior did not provide support for license revocation pursuant to subsection (c) as extrinsic evidence to overcome the margin of error inherent in the test result. Haynes v. State, Dep't of Pub. Safety, 865 P.2d 753 (Alaska 1993).

Admission of suppressed test results held improper. —

Because no breath sample was preserved and no second test was given to the defendant, the hearing officer’s decision to admit breathalyzer test results which had been suppressed on due process grounds in a criminal prosecution was improper in a subsequent license revocation hearing. Briggs v. State, Dep't of Pub. Safety, 732 P.2d 1078 (Alaska 1987).

Out-of-state DWI conviction. —

Division of Motor Vehicles did not err in using driver’s authenticated Arizona driving records reflecting an Arizona DWI conviction to enhance the period of his administrative license revocation for driving while intoxicated in Alaska. Glascock v. State, Dep't of Pub. Safety, 890 P.2d 65 (Alaska 1995).

Challenging out-of-state DWI conviction. —

The superior court had jurisdiction to consider the validity of defendant’s prior DWI conviction in Wyoming since, if it had been truly entered in violation of driver’s fundamental rights, it would be manifestly unjust to allow that conviction to be used to enhance the license revocation. Department of Pub. Safety, Div. of Motor Vehicles v. Fann, 864 P.2d 533 (Alaska 1993).

License revocation and prosecutions for violations not double jeopardy. —

Administrative license revocation is a “remedial” sanction, not a “punitive” sanction, for purpose of double jeopardy; therefore, the administrative revocation of defendants’ licenses was no impediment to their later prosecution for driving while intoxicated, refusing the breath test, or both. State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995), limited, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Speedy trial not applicable. —

Speedy trial limits under Alaska Const. art. I, § 11 and U.S. Const. amend. VI did not attach to license suspension proceedings where the driver was issued a temporary licence prior to the revocation proceeding under AS 28.15.166(b) , (c). Alvarez v. State, 249 P.3d 286 (Alaska 2011).

Amendment of original revocation period. —

Where at the time of a revocation hearing it was determined that the defendant had two prior DWI convictions, a subsequent proceeding changing the date of one of the convictions did not require amendment of the original three-year period of revocation. McGhee v. State, 951 P.2d 1215 (Alaska 1998).

Applied in

Champion v. Department of Pub. Safety, 721 P.2d 131 (Alaska 1986).

Quoted in

Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226 (Alaska 1987); Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987); Department of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232 (Alaska 1988).

Stated in

Javed v. Dep't of Pub. Safety, 921 P.2d 620 (Alaska 1996).

Cited in

Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989); Williamson v. State, Dep't of Pub. Safety, 779 P.2d 1238 (Alaska 1989); Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360 (Alaska 1991); Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151 (Alaska 1997); Tyler v. State, 24 P.3d 1260 (Alaska Ct. App. 2001); Fraiman v. Dep't of Admin., DMV, 49 P.3d 241 (Alaska 2002); Nevers v. State, 123 P.3d 958 (Alaska 2005); Morris v. State, 186 P.3d 575 (Alaska 2008).

Sec. 28.15.166. Administrative review of revocation.

  1. A person who has received a notice under  AS 28.15.165(a) may make a written request for administrative review of the department’s action under  AS 28.15.165(c) or for limited license privileges under  AS 28.15.165(d) . If the person’s driver’s license has not been previously surrendered to the department, it shall be surrendered to the department at the time the request for review is made.
  2. A request for review of the department’s action under  AS 28.15.165 shall be made within seven days after receipt of the notice under  AS 28.15.165 or the right to review is waived and the action of the department under  AS 28.15.165(c) is final. If a written request for a review is made after expiration of the seven-day period, and if it is accompanied by the applicant’s verified statement explaining the failure to make a timely request for a review, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request because of lack of actual notice of the department’s action or because of factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the review request. An initial request for limited license privileges may be made at any time. Subsequent requests for limited license privileges may not be made unless the applicant demonstrates a significant change in circumstances.
  3. Upon receipt of a request for review, if it appears that the person holds a valid driver’s license and that the driver’s license has been surrendered, the department shall issue a temporary driver’s permit that is valid until the scheduled date for the review. A person who has requested a review under this section may request, and the department may grant for good cause, a delay in the date of the hearing.  If necessary, the department may issue additional temporary permits to stay the effective date of its action under  AS 28.15.165(c) until the final order after the review is issued.
  4. A person who has requested a hearing under this section and who fails to attend or appear at the hearing, for reasons other than lack of actual notice of the hearing or physical incapacity such as hospitalization or incarceration, waives the right to a hearing. The determination of the department that is based upon the enforcement officer’s report becomes final.
  5. The hearing under this section must be held by telephone unless the hearing officer finds that a telephonic hearing would substantially prejudice the rights of the person involved in the hearing or that an in-person hearing is necessary to decide the issues to be presented in the hearing. An in-person hearing must be held at the office of the department nearest to the residence of the person involved in the hearing unless the department and the person agree that the hearing is to be held elsewhere.
  6. A review under this section shall be held before a hearing officer designated by the commissioner. The hearing officer has authority to
    1. administer oaths and affirmations;
    2. examine witnesses and take testimony;
    3. receive relevant evidence;
    4. issue subpoenas, take depositions, or cause depositions or interrogatories to be taken;
    5. regulate the course and conduct of the hearing;
    6. make a final ruling on the issue.
  7. The hearing for review of action by the department under  AS 28.15.165 shall be limited to the issues of whether the law enforcement officer had probable cause to believe that the person was operating a motor vehicle or commercial motor vehicle that was involved in an accident causing death or serious physical injury to another, or that the person was operating a motor vehicle, commercial motor vehicle, or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of  AS 28.33.030 or  AS 28.35.030 and whether
    1. the person refused to submit to a chemical test authorized under  AS 28.33.031(a) or  AS 28.35.031(a) or (g) after being advised that refusal would result in disqualification or the suspension, revocation, or denial of the person’s license, privilege to drive, or privilege to obtain a license, and that the refusal is a misdemeanor;
    2. the chemical test administered under  AS 28.33.031(a) or  AS 28.35.031(a) or (g) produced a result described in  AS 28.35.030 (a)(2); or
    3. the chemical test administered under  AS 28.33.031(a) produced a result described in  AS 28.33.030 (a)(2).
  8. The determination of the hearing officer may be based upon the sworn report of a law enforcement officer.  The law enforcement officer need not be present at the hearing unless either the person requesting the hearing or the hearing officer requests in writing before the hearing that the officer be present.  If in the course of the hearing it becomes apparent that the testimony of the law enforcement officer is necessary to enable the hearing officer to resolve disputed issues of fact, the hearing may be continued to allow the attendance of the law enforcement officer.
  9. Testimony given by the person at the hearing is not admissible against the person in a criminal trial unless the person’s testimony at the trial is inconsistent with that given at the hearing.
  10. If the issues set out in (g) of this section are determined in the affirmative by a preponderance of the evidence, the hearing officer shall sustain the action of the department. If one or more of the issues is determined in the negative, the department’s action shall be rescinded.
  11. If the action of the department in revoking a nonresident’s privilege to drive a motor vehicle is not administratively contested by the nonresident driver or if the departmental action is sustained by the hearing officer, the department shall give written notice of action taken to the motor vehicle administrator of the state of the person’s residence and to any state in which that person has a driver’s license.
  12. [Repealed, § 34 ch 119 SLA 1990.]
  13. Within 30 days of the issuance of the final determination of the department, a person aggrieved by the determination may file an appeal in superior court for judicial review of the hearing officer’s determination. The judicial review shall be on the record, without taking additional testimony. The court may reverse the department’s determination if the court finds that the department misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record.
  14. The filing of an appeal under (m) of this section or a petition for review does not automatically stay the department’s order or revocation. The court may grant a stay of the order or revocation only upon a motion and hearing, and upon a finding that there is a reasonable probability that the petitioner will prevail on the merits, that the petitioner will suffer irreparable harm if the order is not stayed, and in a case where the petitioner operates a commercial motor vehicle that the public can be adequately protected by conditions imposed by the court.

History. (§ 3 ch 77 SLA 1983; am §§ 6 — 10, 34 ch 119 SLA 1990; am § 2 ch 158 SLA 1990; am §§ 3 — 6 ch 3 SLA 1992; am § 3 ch 55 SLA 1994; am §§ 7 — 9 ch 6 FSSLA 1996; am § 11 ch 60 SLA 2002)

Cross references. —

For effect of the 1990 amendment of (n) of this section on Alaska Rules of Appellate Procedure 603 and 611(d), see § 35, ch. 119, SLA 1990 in the Temporary and Special Acts; for the effect of the 1992 amendment of (n) of this section on Alaska Rule of Appellate Procedure 603, see § 31, ch. 3, SLA 1992 in the Temporary and Special Acts.

Administrative Code. —

For hearings, see 2 AAC 93, art. 1.

For definitions, see 2 AAC 93, art. 2.

Legislative history reports. —

For Governor’s transmittal letter on HB 445 (from which ch. 55, SLA 1994, which amended (g) of this section, derived), see 1994 House Journal 2262-2263.

Notes to Decisions

Due process considerations. —

Since the same procedural safeguards apply in civil driver’s license revocation proceedings for driving while intoxicated as apply in criminal prosecutions for that offense, due process requires consideration of the margin of error inherent in the breath testing procedure used. Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226 (Alaska 1987).

Due process requires that an arrestee who fails the breath test must be afforded the opportunity at an administrative revocation hearing to present evidence that he was not driving in order to make that hearing meaningful and fundamentally fair. Javed v. Dep't of Pub. Safety, 921 P.2d 620 (Alaska 1996).

Considering the importance of the driving privilege, the greater potential for effective communication in an in-person context, the need for effective communication where the credibility of a party is at issue, and the limited nature of the prejudice that the state would suffer by providing in-person hearings in such cases, such hearings should be provided where requested by the party. Whitesides v. Dep't of Pub. Safety, DMV, 20 P.3d 1130 (Alaska), cert. denied, 534 U.S. 888, 122 S. Ct. 200, 151 L. Ed. 2d 142 (U.S. 2001).

Application of the exclusionary rule would hamper legitimate efforts to keep drunk drivers off the roads and complicate the administration of license revocations while adding minimal deterrence to unlawful police action; in addition, consideration of evidence obtained in violation of the Fourth Amendment did not undermine the procedural fairness of revocation hearings such that the exclusionary rule was inapplicable to license revocation hearings. Nevers v. State, 123 P.3d 958 (Alaska 2005).

Where a driver was arrested for drunk driving, and the criminal charges were dropped because the arresting officer was deployed to Iraq and would not be available to testify at trial for more than a year, but where the administrative proceedings for the suspension/revocation of the driver’s operating license were not dismissed, the driver’s due process rights were not violated by the suspension of her license for almost three years after her arrest because administrative delay alone, without prejudice, did not violate due process, and any prejudice to the driver was slight because she was issued a permit that allowed her to drive throughout the delay. Alvarez v. State, 249 P.3d 286 (Alaska 2011).

Revocation proper. —

Hearing officer did not err in revoking a driver's licenses because she properly interpreted the governing law and did not violate due process in her consideration of a testing instrument's margin of error, and her decision was supported by substantial evidence; AS 28.15.166(g)(2) directed the hearing officer to determine whether the chemical test produced a particular result, and she did so and explained why she did not find the test results to be conflicting. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

The state’s failure to preserve a videotape of field sobriety tests taken one hour after arrest violates the due process rights of an accused at an administrative license revocation hearing where the accused is entitled to challenge whether the arresting officer had reasonable grounds at the time of arrest to believe that the suspect was driving while intoxicated. Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989).

The state’s failure to preserve a videotape of field sobriety tests taken one hour after arrest did not violate defendant’s right to confront and cross-examine the witnesses against him, where the officer who conducted the tests appeared at defendant’s license revocation review hearing and was subjected to vigorous cross-examination by defendant’s attorney. Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989).

Collateral estoppel effect of ruling in criminal proceedings. —

Where defendant in criminal driving while intoxicated proceedings did not testify at a suppression hearing on the question of the legality of the stop, the suppression ruling that the officer’s stop was legal should have had no collateral estoppel effect against the defendant in a civil driver’s license revocation proceeding. The hearing officer was correct to examine the stop issue de novo, and the superior court incorrectly invoked collateral estoppel in refusing to review this aspect of the hearing officer’s decision. Miller v. State, Dep't of Pub. Safety, 761 P.2d 117 (Alaska 1988).

Effect of inconsistent blood and breath tests. —

Breath test result revealing licensee’s alcohol concentration to be .089 was not rendered invalid by subsequent blood test that revealed the alcohol concentration to be .070 because the discrepancy could have resulted simply from lapse of time; breath test alone was sufficient to revoke licensee’s driver license because a hearing officer could determine that licensee had been intoxicated while driving by relying upon either the breath test or blood test. Morris v. State, 186 P.3d 575 (Alaska 2008).

Effect of absence of witness. —

It is not required that a police officer be prohibited from testifying because he failed to appear telephonically at a previously scheduled hearing. The decision to hold a witness in contempt is in the hearing officer’s discretion, and the driver also failed to ask that the police officer be subjected to forfeiture or damages for failing to appear. Alvarez v. State, 249 P.3d 286 (Alaska 2011).

Standard of review of supreme court. —

The supreme court uses the same standard as set out in subsection (m) for judicial review by the superior court, since it conducts independent review. Miller v. State, Dep't of Pub. Safety, 761 P.2d 117 (Alaska 1988); Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151 (Alaska 1997).

Judicial review of DWI revocations. —

Subsection (m) governs in cases of driving while intoxicated (DWI) revocations. Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360 (Alaska 1991).

Driver’s license revocation hearing officer erred by failing to inform the driver, who was proceeding pro se, of the correct procedures for obtaining the central piece of evidence in the case, a tape recording of the stop and arrest, and therefore the driver was entitled to a new hearing. Hartman v. State, 152 P.3d 1118 (Alaska 2007).

Applied in

Champion v. Department of Pub. Safety, 721 P.2d 131 (Alaska 1986); Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226 (Alaska 1987); McGhee v. State, 951 P.2d 1215 (Alaska 1998); Fraiman v. Dep't of Admin., DMV, 49 P.3d 241 (Alaska 2002).

Quoted in

Department of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232 (Alaska 1988); Richard B. v. State, 71 P.3d 811 (Alaska 2003).

Cited in

Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987); Williamson v. State, Dep't of Pub. Safety, 779 P.2d 1238 (Alaska 1989); Pasco v. State, 45 P.3d 325 (Alaska 2002); Haywood v. State, 193 P.3d 1203 (Alaska Ct. App. 2008).

Sec. 28.15.170. Cancellation. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.171. Suspending privileges of a person licensed in another jurisdiction; reporting convictions, suspensions, disqualifications, and revocations.

  1. The privilege of driving a motor vehicle on a highway or vehicular way or area of this state given to a person licensed in another jurisdiction is subject to suspension, revocation, disqualification, or limitation by the department or a court in the same manner and for the same reasons as a driver’s license issued under this chapter.
  2. The department shall, upon receiving the record of a conviction of a person licensed in another jurisdiction for a vehicle, driver, or traffic offense in this state, or upon suspending or revoking the person’s driving privilege, forward a copy of the record or suspension or revocation to the motor vehicle administrator for the jurisdiction in which the person convicted is licensed.
  3. If a person licensed to operate a commercial motor vehicle in another jurisdiction is convicted in this state of a traffic offense, whether or not involving a commercial motor vehicle, or if the person is disqualified by this state for a period of 60 days or more, the department shall, within 10 days after notification of the conviction or the disqualification, notify appropriate authorities in the state that issued the license. Within the 10-day period the department shall also notify the United States Department of Transportation if the disqualification is for 60 days or more.

History. (§ 19 ch 178 SLA 1978; am § 13 ch 60 SLA 1986; am §§ 7, 8 ch 3 SLA 1992; am § 12 ch 23 SLA 2007)

Sec. 28.15.176. Administrative revocation of license to drive for consumption or possession of alcohol or drugs.

History. [Repealed, § 56 ch 16 SLA 2021.]

Sec. 28.15.180. Suspending privileges of nonresidents. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.181. Court suspensions, revocations, and limitations.

  1. Conviction of any of the following offenses is grounds for the immediate revocation of a driver’s license, privilege to drive, or privilege to obtain a license:
    1. manslaughter or negligent homicide resulting from driving a motor vehicle;
    2. a felony in the commission of which a motor vehicle is used;
    3. failure to stop and give aid as required by law when a motor vehicle accident results in the death or personal injury of another;
    4. perjury or making a false affidavit or statement under oath to the department under a law relating to motor vehicles;
    5. operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance;
    6. reckless driving;
    7. using a motor vehicle in unlawful flight to avoid arrest by a peace officer;
    8. refusal to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) while under arrest for operating a motor vehicle, commercial motor vehicle, or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, or authorized under AS 28.35.031(g) ;
    9. driving while license, privilege to drive, or privilege to obtain a license, canceled, suspended, or revoked, or in violation of a limitation;
    10. vehicle theft in the first degree in violation of AS 11.46.360 or vehicle theft in the second degree in violation of AS 11.46.365 .
  2. A court convicting a person of an offense described in (a)(1) — (4), (6), (7), or (10) of this section shall revoke that person’s driver’s license, privilege to drive, or privilege to obtain a license for not less than 30 days for the first conviction, unless the court determines that the person’s ability to earn a livelihood would be severely impaired and a limitation under AS 28.15.201 can be placed on the license that will enable the person to earn a livelihood without excessive danger to the public. If a court limits a person’s license under this subsection, it shall do so for not less than 60 days. Upon a subsequent conviction of a person for any offense described in (a)(1) — (4), (6), (7), or (10) of this section occurring within 10 years after a prior conviction, the court shall revoke the person’s license, privilege to drive, or privilege to obtain a license and may not grant the person limited license privileges for the following periods:
    1. not less than one year for the second conviction; and
    2. not less than three years for a third or subsequent conviction.
  3. A court convicting a person of an offense described in (a)(5) or (8) of this section arising out of the operation of a motor vehicle, commercial motor vehicle, or aircraft shall revoke that person’s driver’s license, privilege to drive, or privilege to obtain a license. The revocation may be concurrent with or consecutive to an administrative revocation under AS 28.15.165 . The court may not, except as provided in AS 28.15.201 , grant limited license privileges during the minimum period of revocation. Except as provided under AS 28.35.030(n)(3) and 28.35.032(p)(3) , the minimum periods of revocation are
    1. not less than 90 days if the person has not been previously convicted;
    2. not less than one year if the person has been previously convicted once;
    3. not less than 3 years if the person has been previously convicted twice;
    4. not less than 5 years if the person has been previously convicted more than twice.
  4. A court convicting a person of an offense described in (a)(9) of this section shall revoke that person’s driver’s license, privilege to drive, or privilege to obtain a license for not less than the minimum period under AS 28.15.291(b)(4).
  5. [Repealed, § 34 ch 119 SLA 1990.]
  6. The court may terminate a revocation for an offense described in (a)(5) or (8) of this section if
    1. the person’s license, privilege to drive, or privilege to obtain a license has been revoked for the minimum periods set out in (c) of this section; and
    2. the person complies with the provisions of AS 28.15.211(d) and (e).
  7. The court may suspend the driver’s license, privilege to drive, or privilege to obtain a license of a person who fails to appear in court as required by a citation for an offense involving a moving motor vehicle, or who fails to pay a fine as required by the court for an offense involving a moving motor vehicle. If the court suspends a driver’s license under this subsection, the court shall also provide notice of the suspension to the department. A suspension imposed under this subsection remains in effect until the person appears in court as required by the citation, or pays the fine as required by the court. When the person appears in court or pays the required fine, the court shall terminate the suspension imposed under this subsection and provide the department and the person with written notice of the termination.
  8. [Repealed, § 22 ch 32 SLA 2016.]
  9. In this section, “previously convicted” has the meaning given in AS 28.35.030 .

History. (§ 19 ch 178 SLA 1978; am §§ 7 — 9 ch 117 SLA 1982; am §§ 4 — 7 ch 77 SLA 1983; am §§ 11 — 15, 34 ch 119 SLA 1990; am §§ 9 — 11 ch 3 SLA 1992; am §§ 2, 3 ch 59 SLA 1993; am § 4 ch 55 SLA 1994; am § 5 ch 47 SLA 1996; am §§ 7, 8 ch 71 SLA 1996; am § 6 ch 65 SLA 2001; am §§ 12, 13 ch 60 SLA 2002; am § 22 ch 32 SLA 2016)

Revisor’s notes. —

Subsection (f) was enacted as (g); relettered in 1993, at which time former (f) was relettered as (g) (now (i)). Subsection (g) was enacted as (h). Relettered in 1996, at which time former (g) was relettered as (h) (now (i)). Subsection (h) was enacted as (i); relettered in 2001, at which time former (h) was relettered as (i).

Effect of amendments. —

The 2016 amendment, effective October 4, 2016, repealed (h).

Editor's notes. —

Subsection (d) refers to "the minimum period under AS 28.15.291(b)(4)" with regard to license revocations. AS 28.25.291(b) was repealed and reenacted in 2016 and there is no longer "a minimum period under" that subsection nor is there a paragraph (b)(4). The effect of this is uncertain.

Notes to Decisions

The revocation provisions of former AS 28.15.210(c) were reenacted by the 1978 legislature in subsection (b) of this section. Danks v. State, 619 P.2d 720 (Alaska 1980).

Revocation not set aside. —

When a driver sought, under subsection (f), to have the driver’s license revocation set aside due to the driver being acquitted of underlying criminal charges, it was not manifestly unjust to allow the revocation to stand because (1) the driver did not challenge the revocation for 16 years, and (2) the driver was not completely prohibited from driving a motor vehicle. Poirot v. State, — P.3d — (Alaska Mar. 4, 2009), (memorandum opinion).

Under former AS 28.15.210(c), (now AS 28.15.181(c) ) the use of “shall” excluded the idea of discretion on the part of the court in revoking the license, for the statutory time periods, of persons convicted of drunk driving if that person had previously been convicted of the same offense. State v. Guarderas, 589 P.2d 870 (Alaska 1979); Danks v. State, 619 P.2d 720 (Alaska 1980).

In order to invoke the mandatory one-year license revocation penalty of paragraph (b)(1) of this section, the second conviction need not be for the same type of offense as the first conviction. Belarde v. Municipality of Anchorage, 634 P.2d 567 (Alaska Ct. App. 1981).

The one-year license revocation penalty of paragraph (b)(1) of this section may follow as a result of a conviction for any of the offenses listed under subsection (a) of this section regardless of what offense the initial conviction was predicated upon. Belarde v. Municipality of Anchorage, 634 P.2d 567 (Alaska Ct. App. 1981).

Conviction under another state’s statute may be used for purposes of enhanced license revocation under subsection (b). Carter v. State, 625 P.2d 313 (Alaska Ct. App. 1981).

Convictions from other jurisdictions can be used to enhance the period of revocation. Sather v. State Div. of Motor Vehicles, Dep't of Pub. Safety, 776 P.2d 1055 (Alaska 1989).

Division of Motor Vehicles did not err in using driver’s authenticated Arizona driving records reflecting an Arizona DWI conviction to enhance the period of his administrative license revocation for driving while intoxicated in Alaska. Glascock v. State, Dep't of Pub. Safety, 890 P.2d 65 (Alaska 1995).

Challenging out-of-state DWI conviction. —

The superior court had jurisdiction to consider the validity of defendant’s prior DWI conviction in Wyoming since, if it had been truly entered in violation of driver’s fundamental rights, it would be manifestly unjust to allow that conviction to be used to enhance the license revocation. Department of Pub. Safety, Div. of Motor Vehicles v. Fann, 864 P.2d 533 (Alaska 1993).

Application of paragraph (b)(2) held constitutional. —

Application of three-year license revocation provision of subsection (b) to defendant whose prior two OMVI (operating a motor vehicle while under the influence of intoxicating liquor or drugs) convictions were in 1974 and 1976 did not violate the constitutional prohibitions against ex post facto laws. Carter v. State, 625 P.2d 313 (Alaska Ct. App. 1981).

Magistrate erred in concluding former subsection (c)(3) applied to a defendant who at the time of his two current offenses had not been convicted of more than one driving while intoxicated offense. Thomas v. State, 694 P.2d 789 (Alaska Ct. App. 1985).

The date of the latest arrest must be used in calculating whether a person convicted of driving while intoxicated (DWI) or failure to submit to a breathalyzer test has been convicted of a similar offense or offenses within the preceding ten years. Wik v. State, Dep't of Pub. Safety, 786 P.2d 384 (Alaska 1990).

Revocation beyond life of license. —

Once a license is validly revoked, the revocation remains in effect for the full period ordered, regardless of whether the originally valid license might otherwise have expired at some point during the period of revocation. Fielding v. State, 733 P.2d 271 (Alaska Ct. App. 1987).

Consecutive periods of revocation. —

The DWI provision does not expressly require consecutive periods of revocation; however, there is no indication that the legislature intended different treatment under this section than that which it clearly provided for under AS 28.15.291 , and there is no reason to distinguish between revocations under these two statutes. Fielding v. State, 733 P.2d 271 (Alaska Ct. App. 1987).

Imposition of two 10-year driver’s license revocation periods consecutively rather than concurrently was justified, where defendant’s ever-lengthening record of driving offenses demonstrated both the extent of the danger to the public as well as his apparent inability to conform his conduct to the law. Williamson v. State, Dep't of Pub. Safety, 779 P.2d 1238 (Alaska 1989).

Lifetime revocation. —

This section authorizes a court to revoke a driver’s license for any period of years, including a lifetime revocation. Moreover, allowing such a lifetime license revocation does not render this section unconstitutionally vague, as the language of this section seems clear. Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

Defendant’s revocation was vacated where there was no basis to revoke his driver’s license for the rest of his life, because such a punishment should be reserved for chronic offenders whose records demonstrate that they should never be allowed to drive a motor vehicle again. Fine v. State, 22 P.3d 20 (Alaska Ct. App. 2001).

While intoxicated, defendant drove his vehicle off the road, hitting a boy and narrowly missing the boy’s brother, and continued to drive after he hit the boy. The trial court was not clearly mistaken in finding that this case was an extreme one in which a lifetime revocation of defendant’s driver’s license was required to protect the public. Bottcher v. State, 300 P.3d 528 (Alaska 2013).

Sentence not unconstitutionally excessive. —

Lifetime revocation of driver’s license was not unconstitutionally excessive and so disproportionate to DWI offense as to be cruel and unusual punishment, where defendant had a 20-year history of repeated offenses involving the operation of motor vehicles while intoxicated, had caused a person’s death during one of these offenses, and last DWI offense involved a serious accident, a blood-alcohol content of more than twice the legal limit, and the endangerment of numerous people. Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

Presumptive sentencing statutes as aid in interpreting subsection (c). —

Because the presumptive sentencing scheme in AS 12.55.125 12.55.165 furthers a similar purpose as and contains similar language to subsection (c) of this section, and because the two statutes were enacted contemporaneously, the former constitutes a valuable aid in interpreting the latter. Thus, we may assume the legislature intended that “prior conviction” be defined the same way in both statutes. Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987).

Prior convictions entered simultaneously. —

All prior driving while intoxicated convictions must be counted separately for purposes of driver’s license revocation following a subsequent conviction, regardless of whether the prior convictions were entered simultaneously. Tulowetzke v. State, Dep't of Pub. Safety, 743 P.2d 368 (Alaska 1987).

Violation of limited license after conviction for driving while intoxicated. —

A person who drives in violation of a limited license that is issued following a conviction for driving while intoxicated (DWI) is subject to a minimum jail term of ten days. State v. Robertson, 749 P.2d 902 (Alaska Ct. App. 1988).

Application held not retroactive. —

Where defendant whose driver’s license had been revoked moved for the issuance of a limited license in reliance on newly amended language in AS 28.15.201 , and did so within the time limitations of R. Crim. P. 35(a), it was error for the trial court to rule the issuance of such license was precluded by AS 01.10.100 (relating to the effect of repeals or amendments) because defendant had been sentenced prior to the amended provision’s effective date. Application of this provision prior to the effective date of the amendment was not a retroactive application of an amendment to the sentencing scheme promulgated under former AS 28.15.291(c) (now AS 28.15.291(d) ) and subsection (d) of this section. Howell v. State, 834 P.2d 1254 (Alaska Ct. App. 1992).

Applied in

State v. Stagno, 739 P.2d 198 (Alaska Ct. App. 1987).

Quoted in

Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990); Hill v. State, 32 P.3d 10 (Alaska Ct. App. 2001).

Stated in

Manderson v. State, 655 P.2d 1320 (Alaska Ct. App. 1983); Wooley v. State, 221 P.3d 12 (Alaska Ct. App. 2009).

Cited in

Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980); Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982); Uhde v. State, 654 P.2d 1323 (Alaska Ct. App. 1982); Caulkins v. State, Dep't of Pub. Safety, 743 P.2d 366 (Alaska 1987); State v. Waalkes, 749 P.2d 1360 (Alaska Ct. App. 1988); Department of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232 (Alaska 1988); State v. Straetz, 758 P.2d 133 (Alaska Ct. App. 1988); Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989); Tyler v. State, 24 P.3d 1260 (Alaska Ct. App. 2001); Smith v. State, 83 P.3d 12 (Alaska Ct. App. 2004); Nevers v. State, 123 P.3d 958 (Alaska 2005); Stevens v. State, 135 P.3d 688 (Alaska Ct. App. 2006); Patrick v. Municipality of Anchorage, 305 P.3d 292 (Alaska 2013).

Collateral references. —

What amounts to conviction or adjudication of guilt for purposes of refusal, revocation, or suspension of automobile driver’s license, 79 ALR2d 866.

Suspension or revocation of driver’s license for refusal to take sobriety test, 88 ALR2d 1064.

Denial, suspension, or cancellation of driver’s license because of physical disease or defect, 38 ALR3d 452.

Validity and construction of statute or ordinance mandating imprisonment for habitual repeated traffic offender, 2 A.L.R.4th 618.

Validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations, 48 A.L.R.4th 367.

Validity and application of statute or regulation authorizing revocation or suspension of driver’s license for reason unrelated to use of, or ability to operate, motor vehicle, 18 ALR5th 542.

Sec. 28.15.182. Court revocation of license for accident causing death.

  1. A court convicting a person for a violation of the traffic laws may revoke the driver’s license, privilege to drive, or privilege to obtain a license of a person if the court finds by clear and convincing evidence that
    1. the person was operating a motor vehicle or commercial motor vehicle that was involved in an accident;
    2. the accident caused the death of another person; and
    3. the violation of traffic laws by the person was a significant contributing cause of the accident.
  2. The license revocation imposed under (a) of this section may be for a period of up to three years. This period is concurrent with any other period of revocation under AS 28.15.165 or 28.15.181 , or any other action imposed by the department or court in connection with the accident.
  3. A court revoking a person’s driver’s license, privilege to drive, or privilege to obtain a license under (a) of this section may consider a request for a limited license by the person. A court may not grant a limited license if another statute prohibits a limited license for violation of its provisions. A court shall require a certification of employment to prove any claim based on the person’s employment and a certification of need by a licensed health care practitioner to prove a claim based on care for another person. After a review has been made of the person’s driving record and other relevant information, the court may grant limited license privileges for all or part of the period of revocation if the court finds that a limitation can be placed on the license that will enable the person to drive without danger to the public and that, without a limited license,
    1. the person’s ability to earn a livelihood would be severely impaired; or
    2. the person would be severely impaired in acting as the primary caregiver for someone with a debilitating physical or mental condition.
  4. When imposing a limitation under (c) of this section, the court shall
    1. require the surrender of the driver’s license; and
    2. issue to the person a certificate valid for the duration of the limitation specifying the terms of the limited license.
  5. A representative of the family of a person who died under circumstances as described in (a) of this section may testify at a hearing addressing a driver’s license revocation under (a) of this section or a request for a limited license under (c) of this section.
  6. In this section, “traffic laws” has the meaning given in AS 28.15.261 .

History. (§ 2 ch 89 SLA 2003)

Editor’s notes. —

Section 4, ch. 89, SLA 2003 provides that this section applies “to actions taken regarding a motor vehicle or commercial vehicle accident that caused the death of a person and that occurred on or after September 1, 2003.”

Sec. 28.15.183. Administrative revocation of license to drive.

  1. If a peace officer has probable cause to believe that a person who is at least 14 years of age but not yet 21 years of age has operated a vehicle after consuming alcohol in violation of AS 28.35.280 , or refused to submit to a chemical test under AS 28.35.285 , and the peace officer has cited the person or arrested the person for the offense, the peace officer shall read a notice and deliver a copy to the person. The notice must advise that
    1. the department intends to revoke the person’s driver’s license or permit, privilege to drive, or privilege to obtain a license or permit;
    2. the person has the right to administrative review of the revocation;
    3. if the person has a driver’s license or permit, the notice itself is a temporary driver’s license or permit that expires 10 days after it is delivered to the person;
    4. revocation of the person’s driver’s license or permit, privilege to drive, or privilege to obtain a license or permit, takes effect 10 days after delivery of the notice to the person unless the person, within 10 days, requests an administrative review;
    5. if the person has been cited under AS 28.35.280 or under AS 28.35.285 , that person, under AS 28.35.290 , may not operate a motor vehicle, aircraft, or watercraft during the 24 hours following issuance of the citation.
  2. After reading the notice under (a) of this section, the peace officer shall seize the person’s driver’s license or permit if it is in the person’s possession and shall deliver it to the department with a sworn report describing the circumstances under which it was seized.
  3. Unless the person has requested an administrative review, the department shall revoke the person’s driver’s license or permit, privilege to drive, or privilege to obtain a license or permit, effective 10 days after delivery to the person of the notice required under (a) of this section, upon receipt of a sworn report of a peace officer
    1. that the officer had probable cause to believe that the person is at least 14 years of age but not yet 21 years of age and has violated one of the offenses described in (a) of this section;
    2. that the peace officer has cited or arrested the person for a violation of AS 28.35.280 or 28.35.285 or a municipal ordinance with substantially similar elements;
    3. that notice under (a) of this section was provided to the person; and
    4. describing the circumstances surrounding the offense.
  4. The department shall impose the revocation required under this section
    1. for a first revocation, for a period of 30 days;
    2. for a second revocation, for a period of 60 days;
    3. for a third revocation, for a period of 90 days; or
    4. for a fourth or subsequent revocation, for a period of one year.
  5. Notwithstanding the provisions of AS 28.20.240 and 28.20.250 , the department may not require proof of financial responsibility before restoring a driver’s license, permit, or privilege that is revoked under this section.
  6. A revocation imposed under this section shall be consecutive to a revocation imposed under another provision of law, except that (1) a revocation imposed under this section shall be concurrent with a prior revocation imposed under this section; and (2) a revocation imposed under this section for an offense for which a revocation is required under AS 28.15.185 shall be concurrent with a revocation imposed under AS 28.15.185 that is based on the same incident. A person whose driver’s license, permit, or privilege was revoked for a period of at least 60 days under this section may apply for limited license privileges under AS 28.15.201(d) . A person whose driver’s license, permit, or privilege to drive was revoked for a period of more than one year under this section may apply for reinstatement as provided under (i) of this section.
  7. Except as provided under (h) of this section, the department may not issue a new license or reissue a license to a person whose driver’s license, permit, or privilege to drive has been revoked under this section unless the person, if required to participate in a juvenile alcohol safety action program, as defined in AS 04.21.080 , has successfully completed any education or treatment recommended.
  8. The department may waive the provisions of (g) of this section if a person who is required to obtain drug or alcoholism treatment resides in an area where drug rehabilitation or alcoholism treatment is unavailable.
  9. A person whose driver’s license, permit, or privilege to drive was revoked under this section may apply for reinstatement of the person’s driver’s license as provided in this subsection. A person may apply to the department for reinstatement by filing a written request for review of the revocation imposed under this section with the department. The department shall issue a new license or reissue the person’s driver’s license as provided under AS 28.15.211(d) if the department finds that
    1. the application for reinstatement is filed at least one year after the person’s license, permit, or privilege was revoked;
    2. the person complies with (g) of this section; and
    3. the person has not violated a provision of this title or a regulation of the department since the revocation.
  10. In this section, “peace officer” does not include a person employed by the Department of Corrections.

History. (§ 1 ch 71 SLA 1994; am §§ 1 — 3 ch 9 SLA 1995; am §§ 1 — 3 ch 143 SLA 1996; am §§ 4, 5 ch 93 SLA 1998; am §§ 1 — 5 ch 88 SLA 1999; am §§ 7 — 10 ch 65 SLA 2001; am § 6 ch 86 SLA 2010)

Revisor’s notes. —

Subsection (i) was enacted as (j). Relettered in 1999, at which time (i) was relettered as (j), and an internal reference in subsection (f) was conformed.

Effect of amendments. —

The 2010 amendment, effective September 14, 2010, in (g), substituted “as defined in AS 04.21.080 ” for “as defined in AS 04.16.050 ”.

Notes to Decisions

Constitutionality. —

Under a former version of this section, defendant’s license was revoked without due process of law where the state failed to offer defendant the safeguards of criminal process that normally apply to criminal punishment. Dep't of Pub. Safety, DMV v. Niedermeyer, 14 P.3d 264 (Alaska 2000).

Double jeopardy. —

License revocations under this section are not “punishment” for double jeopardy purposes; thus, a minor whose license was revoked under the section could still be prosecuted for the offense of minor consuming, AS 04.16.050 . Rexford v. State, 941 P.2d 906 (Alaska Ct. App. 1997), overruled, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Even if revocation of a minor’s driver’s license under this section were unconstitutional, the minor is not immunized from prosecution for illegal use of alcoholic beverages under AS 04.16.050 ; the aggrieved minor’s remedy is to attack the license revocation. State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Cited in

State v. District Court, 927 P.2d 1295 (Alaska Ct. App. 1996).

Sec. 28.15.184. Administrative review of revocation of a minor’s license.

  1. A person who has received a notice under AS 28.15.183(a) may make a written request for administrative review of the department’s action. If the person’s driver’s license or permit has not been previously surrendered to the department, it shall be surrendered to the department at the time the request for review is made.
  2. A request for review of the department’s revocation under AS 28.15.183 shall be made within 10 days after receipt of the notice under AS 28.15.183 or the right to review is waived and the action of the department under AS 28.15.183(c) is final. If a written request for a review is made after expiration of the 10-day period, and if it is accompanied by the applicant’s verified statement explaining the failure to make a timely request for a review, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request because of lack of actual notice of the revocation or because of factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the review request.
  3. Upon receipt of a request for review, if it appears that the person holds a valid driver’s license or permit and that the driver’s license or permit has been surrendered, the department shall issue a temporary driver’s permit that is valid until the scheduled date for the review. A person who has requested a review under this section may request, and the department may grant for good cause, a delay in the date of the hearing. If necessary, the department may issue additional temporary permits to stay the effective date of its action under AS 28.15.183(c) until the final order after the review is issued.
  4. A person who has requested a hearing under this section and who fails to appear at the hearing, for reasons other than lack of actual notice of the hearing or physical incapacity such as hospitalization or incarceration, waives the right to a hearing. The determination of the department that is based upon the officer’s report becomes final.
  5. Notwithstanding AS 28.05.141(b) , the hearing under this section may be held telephonically at the discretion of the hearing officer.
  6. A review under this section shall be held before a hearing officer designated by the commissioner. The hearing officer may
    1. administer oaths and affirmations;
    2. examine witnesses and take testimony;
    3. receive relevant evidence;
    4. issue subpoenas, take depositions, or cause depositions or interrogatories to be taken;
    5. regulate the course and conduct of the hearing;
    6. make a final ruling on the issue.
  7. The hearing for review of a revocation by the department under AS 28.15.183 shall be limited to the issues of whether the person was at least 14 years of age but not yet 21 years of age and whether the person operated a vehicle after consuming alcohol in violation of AS 28.35.280 or refused to submit to a chemical test of breath in violation of AS 28.35.285 .
  8. The determination of the hearing officer may be based upon the sworn report of a peace officer, if the sworn report is supported by probable cause based on personal observations as required under AS 28.15.183(a) . The peace officer need not be present at the hearing unless either the person requesting the hearing or the hearing officer requests in writing before the hearing that the officer be present. If in the course of the hearing it becomes apparent that the testimony of the peace officer is necessary to enable the hearing officer to resolve disputed issues of fact, the hearing shall be continued to allow the attendance of the peace officer.
  9. Testimony given at the hearing is not admissible in a criminal trial unless the testimony given at the trial is inconsistent with testimony given at the hearing.
  10. If the issues set out in (g) of this section are determined in the affirmative by a preponderance of the evidence, the hearing officer shall sustain the action of the department. If one or more of the issues is determined in the negative, the department’s revocation action shall be rescinded.
  11. If the action of the department in revoking a nonresident’s privilege to drive a motor vehicle is not administratively contested by the nonresident driver or if the departmental action is sustained by the hearing officer, the department shall give written notice of action taken to the motor vehicle administrator of the state of the person’s residence and to any state in which that person has a driver’s license.
  12. Within 30 days of the issuance of the final determination of the department, a person aggrieved by the determination may file an appeal in superior court for judicial review of the hearing officer’s determination. The judicial review shall be on the record without taking additional testimony. The court may reverse the department’s determination if the court finds that the department misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record.
  13. The filing of an appeal under (l) of this section or a petition for review does not automatically stay the department’s order or revocation. The court may grant a stay of the order or revocation under the applicable rules of court, after a motion and hearing, and upon a finding that there is a reasonable probability that the petitioner will prevail on the merits and that the petitioner will suffer irreparable harm if the order is not stayed.

History. (§ 1 ch 71 SLA 1994; am § 4 ch 9 SLA 1995; am § 4 ch 143 SLA 1996; am § 6 ch 88 SLA 1999; am § 11 ch 65 SLA 2001)

Notes to Decisions

Quoted in

Dep't of Pub. Safety, DMV v. Niedermeyer, 14 P.3d 264 (Alaska 2000).

Cited in

State v. District Court, 927 P.2d 1295 (Alaska Ct. App. 1996); State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Sec. 28.15.185. Court revocation of a minor’s license to drive.

  1. A person is subject to revocation, under (b) of this section, of the person’s driver’s license or permit, privilege to drive, or privilege to obtain a license if the person
    1. is at least 13 years of age but not yet 21 years of age and is convicted of or is adjudicated a delinquent minor by a court for misconduct involving a controlled substance under AS 11.71 or a municipal ordinance with substantially similar elements; or
    2. is at least 13 years of age but not yet 18 years of age and is convicted of or is adjudicated a delinquent minor by a court for an offense involving the illegal use or possession of a firearm that is punishable under AS 11 or a municipal ordinance with substantially similar elements.
  2. The court shall impose the revocation for an offense described in (a) of this section as follows:
    1. for a first conviction or adjudication, the revocation may be for a period not to exceed 90 days;
    2. for a second or subsequent conviction or adjudication, the revocation may be for a period not to exceed one year.
  3. When a person described in (a) of this section has been convicted of or adjudicated a delinquent minor for an offense listed in (a) of this section, the court may, upon petition of the person, review the revocation and may restore the driver’s license, except a court may not restore the driver’s license until
    1. at least one-half of the period of revocation imposed under this section has expired; and
    2. the person has taken and successfully completed a state approved program of drug education or rehabilitation if convicted or adjudicated of misconduct involving a controlled substance under AS 11.71 or a municipal ordinance with substantially similar elements; however, this paragraph does not apply to a person who resides in an area that does not offer a state approved drug education or rehabilitation program or a person that the court determines does not need drug education or rehabilitation.
  4. Notwithstanding the provisions of AS 28.20.240 and 28.20.250 , upon conviction of an offense specified in (a) of this section, the department may not require proof of financial responsibility before restoring or issuing the person’s driver’s license.
  5. [Repealed, § 22 ch 32 SLA 2016.]

History. (§ 1 ch 130 SLA 1988; am §§ 5, 6 ch 9 SLA 1995; am §§ 6, 7 ch 93 SLA 1998; am §§ 12, 13 ch 65 SLA 2001; am § 22 ch 32 SLA 2016)

Administrative Code. —

For hearings, see 2 AAC 93, art. 1.

For definitions, see 2 AAC 93, art. 2.

Effect of amendments. —

The 2016 amendment, effective October 4, 2016, repealed (e).

Notes to Decisions

Right to jury trial. —

Minors charged with violating AS 04.16.050 are entitled to a jury trial and to court-appointed counsel if they are indigent. State v. District Court, 927 P.2d 1295 (Alaska Ct. App. 1996).

Sec. 28.15.187. Administrative revocation of a license to drive for use of false identification.

  1. If a peace officer has probable cause based on personal observation that a person has used a driver’s license as fraudulent or false identification as prohibited by AS 04.16.060(d) , the peace officer shall read a notice and deliver a copy to the person. The notice must advise that
    1. the department intends to revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license, or refuse to issue an original license to the person;
    2. the person has the right to administrative review of the revocation or determination not to issue an original license;
    3. if the person has a driver’s license or a nonresident privilege to drive, the notice itself is a temporary driver’s license that expires seven days after it is delivered to the person;
    4. revocation of the person’s driver’s license, privilege to drive, or privilege to obtain a license, or a determination not to issue an original license takes effect seven days after delivery of the notice to the person unless the person, within seven days, requests an administrative review.
  2. After reading the notice under (a) of this section, the peace officer shall seize the person’s driver’s license if it is in the person’s possession and shall deliver it to the department with a sworn report describing the circumstances under which it was seized.
  3. Unless the person has requested an administrative review, the department shall revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license, or refuse to issue an original license, effective seven days after delivery to the person of the notice required under (a) of this section, upon receipt of a sworn report of a peace officer
    1. that the officer had probable cause based on personal observations that the person used a driver’s license as fraudulent or false identification as prohibited by AS 04.16.060(d) ;
    2. that notice under (a) of this section was provided to the person; and
    3. describing the circumstances surrounding the violation of AS 04.16.060(d) .
  4. The department shall impose the revocation required under this section
    1. for a period of 60 days for a first revocation under this section; and
    2. for a second or subsequent revocation under this section for a period of 12 months.
  5. Notwithstanding the provisions of AS 28.20.240 and 28.20.250 , the department may not require proof of financial responsibility before restoring a driver’s license or privilege that is revoked under this section.
  6. A license revocation imposed under this section shall be consecutive to a license revocation imposed under another provision of law.

History. (§ 3 ch 50 SLA 1993)

Sec. 28.15.189. Administrative review of revocation of license for use of false identification.

  1. A person who has received a notice under AS 28.15.187(a) may make a written request for administrative review of the department’s action. If the person’s driver’s license has not been previously surrendered to the department, it shall be surrendered to the department at the time the request for review is made.
  2. A request for review of the department’s revocation under AS 28.15.187 shall be made within seven days after receipt of the notice under AS 28.15.187 or the right to review is waived and the action of the department under AS 28.15.187(c) is final. If a written request for a review is made after expiration of the seven-day period, and if it is accompanied by the applicant’s verified statement explaining the failure to make a timely request for a review, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request because of lack of actual notice of the revocation or because of factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the review request.
  3. Upon receipt of a request for review, if it appears that the person holds a valid driver’s license and that the driver’s license has been surrendered, the department shall issue a temporary driver’s permit that is valid until the scheduled date for the review. A person who has requested a review under this section may request, and the department may grant for good cause, a delay in the date of the hearing. If necessary, the department may issue additional temporary permits to stay the effective date of its action under AS 28.15.187(c) until the final order after the review is issued.
  4. A person who has requested a hearing under this section and who fails to appear at the hearing, for reasons other than lack of actual notice of the hearing or physical incapacity such as hospitalization or incarceration, waives the right to a hearing. The determination of the department that is based upon the officer’s report becomes final.
  5. Notwithstanding AS 28.05.141(b) , the hearing under this section shall be held telephonically unless the person requesting the hearing requests in writing that the hearing not be held telephonically.
  6. A review under this section shall be held before a hearing officer designated by the commissioner. The hearing officer shall have authority to
    1. administer oaths and affirmations;
    2. examine witnesses and take testimony;
    3. receive relevant evidence;
    4. issue subpoenas, take depositions, or cause depositions or interrogatories to be taken;
    5. regulate the course and conduct of the hearing;
    6. make a final ruling on the issue.
  7. The hearing for review of a revocation by the department under AS 28.15.187 shall be limited to the issue of whether the person used a driver’s license as fraudulent or false identification as prohibited by AS 04.16.060(d) .
  8. The determination of the hearing officer may be based upon the sworn report of a peace officer, if the sworn report is supported by probable cause based on personal observations as required under AS 28.15.187(a) . The peace officer need not be present at the hearing unless either the person requesting the hearing or the hearing officer requests in writing before the hearing that the officer be present. If in the course of the hearing it becomes apparent that the testimony of the peace officer is necessary to enable the hearing officer to resolve disputed issues of fact, the hearing shall be continued to allow the attendance of the peace officer.
  9. Upon written request of the person requesting the hearing, the hearing officer shall stay the hearing until the conclusion of related criminal proceedings. If the person requesting the hearing does not request a stay, testimony given by the person at the hearing is admissible against the person in a criminal trial.
  10. If the issue set out in (g) of this section is determined in the affirmative by a preponderance of the evidence, the hearing officer shall sustain the action of the department. If the issue is determined in the negative, the department’s revocation action shall be rescinded.
  11. If the action of the department in revoking a nonresident’s privilege to drive a motor vehicle is not administratively contested by the nonresident driver or if the departmental action is sustained by the hearing officer, the department shall give written notice of action taken to the motor vehicle administrator of the state of the person’s residence and to any state in which that person has a driver’s license.
  12. Within 30 days of the issuance of the final determination of the department, a person aggrieved by the determination may file an appeal in superior court for judicial review of the hearing officer’s determination. The judicial review shall be on the record without taking additional testimony. The court may reverse the department’s determination if the court finds that the department misinterpreted the law, acted in an arbitrary and capricious manner, or made a determination unsupported by the evidence in the record.
  13. The filing of an appeal under (l) of this section or a petition for review does not automatically stay the department’s order or revocation. The court may grant a stay of the order or revocation under the applicable rules of court, after a motion and hearing, and upon a finding that there is a reasonable probability that the petitioner will prevail on the merits and that the petitioner will suffer irreparable harm if the order is not stayed.

History. (§ 3 ch 50 SLA 1993)

Sec. 28.15.190. Forwarding surrendered license. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.191. Court and parole board reports to department; surrender of license or identification card.

  1. A court that convicts a person of an offense under this title or a regulation adopted under this title, or another law or regulation of this state or a municipal ordinance that regulates the driving of vehicles shall forward a record of the conviction to the department within five working days. A conviction of a standing or parking offense need not be reported.
  2. A conviction on a plea of nolo contendere accepted by the court or a forfeiture of bail or collateral deposited to secure a defendant’s appearance in court that has not been vacated is equivalent to a conviction for purposes of this chapter.
  3. A court that suspends, revokes, or limits a driver’s license shall require the surrender of the license, and shall immediately forward it to the department with the record of conviction and notification of the effective date of the suspension, revocation, or limitation as determined under AS 28.15.211(b) .
  4. A court that limits a driver’s license, in addition to the actions required under (c) of this section, shall issue to the licensee a form specifying the court’s limitations imposed upon a person’s driver’s license, and shall immediately forward to the department a copy of the limitations imposed upon the license.
  5. A court shall report to the department every change of name authorized by it, and the name, address, age, description, and driver’s license number if available, of every person adjudged to be afflicted with or suffering from a mental disability or disease, or to be an habitual user of alcohol or another drug. The department shall prescribe and furnish the forms for making these reports.
  6. A municipality that accepts a fine payment after a plea of no contest to a charge of a violation of a municipal ordinance for which a scheduled fine has been established shall forward a record of the payment to the department; however, a conviction for a standing or parking offense need not be reported.
  7. A court that has ordered a person to refrain from consuming alcoholic beverages as part of a sentence for conviction of a crime under AS 28.35.030 , 28.35.032 , or a similar municipal ordinance or as a condition of probation or parole following a conviction under those sections or a similar municipal ordinance, or as a condition of probation or parole for any other crime shall
    1. require the surrender of the person’s license and identification card and forward the license and identification card to the department;
    2. report the order to the department within two days; and
    3. inform the person that the person’s license and identification card are subject to cancellation under AS 28.15.161 and AS 18.65.310 and, if the person is otherwise qualified to receive a license or identification card, when the person obtains a new license or identification card, the license or identification card must list the restriction imposed by AS 04.16.160 for the period of probation or parole.
  8. The board of parole shall notify the department within two days whenever a person has been ordered to refrain from consuming alcoholic beverages as a condition of parole, shall require the person to surrender the person’s license and identification card, and shall inform the person that the person’s license and identification card are subject to cancellation under AS 28.15.161 and AS 18.65.310 , and that, if the person is otherwise qualified to receive a license or identification card, when the person obtains a new license or identification card, the license or identification card must list the restriction imposed by AS 04.16.160 .

History. (§ 19 ch 178 SLA 1978; am § 9 ch 76 SLA 1987; am § 14 ch 60 SLA 2002; am § 29 ch 24 SLA 2007; am § 30 ch 75 SLA 2008; am § 18 ch 32 SLA 2016; am § 102 ch 36 SLA 2016)

Cross references. —

For provision relating to the applicability of the 2016 amendments to subsection (g), see sec. 185(d)(4), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The first 2016 amendment, effective October 4, 2016, in (a), deleted “, or a violation of AS 14.16.050 ” preceding “shall forward”.

The second 2016 amendment, effective July 12, 2016, in the introductory language of (g), inserted “, or as a condition of probation or parole for any other crime” near the end.

Editor’s notes. —

Section 43(a), ch. 75, SLA 2008 provides that the 2008 amendment of (a) of this section “[applies] to an offense occurring on or after July 1, 2008.”

Section 44, ch. 75, SLA 2008 explicitly declares that sec. 30, ch. 75, SLA 2008, amending (a) of this section, is subject to severability as authorized by AS 01.10.030 .

Notes to Decisions

Magistrate’s recommendation of suspension of driver’s license for three years. —

Where defendant had received six other traffic citations within the 9-month period immediately preceding the citation in this case, the magistrate did not err in sentencing defendant to five days in jail and recommending that the Department of Public Safety suspend defendant’s license for three years. Hanrahan v. City of Anchorage, 377 P.2d 381 (Alaska 1962) (decided under former AS 28.15.190 ).

Stated in

Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Sec. 28.15.200. Suspending license upon conviction in another jurisdiction. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.201. Limitation of driver’s license.

  1. A court of competent jurisdiction revoking a person’s driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.181(b) may, for good cause, impose limitations upon the driver’s license of a person that will enable the person to earn a livelihood without excessive risk or danger to the public. A limitation may not be placed upon a driver’s license until after a review has been made of the person’s driving record and other relevant information, and a limitation may not be imposed when a statute specifically prohibits the limitation of a license for a violation of its provisions.
  2. A court imposing a limitation under (a) of this section shall
    1. require certification of employment;
    2. require proof of enrollment in and compliance with or completion of an alcoholism treatment program when appropriate;
    3. require the surrender of the driver’s license; and
    4. issue to the licensee a certificate valid for the duration of the limitation.
  3. After the termination of a limitation as shown on the certificate issued under (b) of this section, the license of a person on whom a limitation was imposed is revoked until the person receives a new license meeting the requirements set out in AS 28.15.211 .
  4. A court revoking a driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.181(c) , or the department when revoking a driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.165(c) , may grant limited license privileges if
    1. the revocation was for a misdemeanor conviction under AS 28.35.030 or a similar municipal ordinance and not for a violation of AS 28.35.032 ;
    2. the person
      1. has not been previously convicted and the limited license is not granted during the first 30 days of the period of revocation; or
      2. has been previously convicted and the limited license is not granted during the first 90 days of the period of revocation;
    3. the court or department requires the person to use an ignition interlock device during the period of the limited license whenever the person operates a motor vehicle in a community not included in the list published by the department under AS 28.22.011(b) and, when applicable,
      1. the person provides proof of installation of the ignition interlock device on every vehicle the person operates;
      2. the person signs an affidavit acknowledging that
        1. operation by the person of a vehicle that is not equipped with an ignition interlock device is subject to penalties for driving with a revoked license;
        2. circumventing or tampering with the ignition interlock device is a class A misdemeanor; and
        3. the person is required to maintain the ignition interlock device throughout the period of the limited license, to keep up-to-date records in each vehicle showing that any required service and calibration is current, and to produce those records immediately on request;
    4. the person is enrolled in and is in compliance with or has successfully completed the alcoholism screening, evaluation, referral, and program requirements of the Department of Health and Social Services under AS 28.35.030 (h);
    5. the person provides proof of insurance as required by AS 28.20.230 and 28.20.240 ; and
    6. the person has not previously been convicted of violating the limitations of an ignition interlock limited license or been convicted of violating the provisions of AS 28.35.030 or 28.35.032 while on probation for a violation of those sections.
  5. If a person is required to use an ignition interlock device as a condition of a limited license under this section and the device prevents a vehicle from being operated, the person has not violated the requirements of the limited license by attempting to operate the vehicle.
  6. In (d)(2) of this section, “previously convicted” has the meaning given in AS 28.35.030 and also includes convictions under laws presuming that the person was under the influence of intoxicating liquor if there was 0.08 percent or more by weight of alcohol in the person’s blood.
  7. Notwithstanding (d) of this section, a court revoking a driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.181(c) , or the department when revoking a driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.165(c) , may grant limited license privileges if
    1. the revocation was for a felony conviction under AS 28.35.030 ;
    2. the person is participating in and has successfully participated for at least six months in, or has successfully completed, a court-ordered treatment program under AS 28.35.028 , and submits verification acceptable to the department;
    3. the person provides proof of insurance as required by AS 28.20.230 and 28.20.240 ;
    4. the person is required to use an ignition interlock device during the period of the limited license whenever the person operates a motor vehicle in a community not included in the list published by the department under AS 28.22.011(b) and, when applicable,
      1. the person provides proof of installation of the ignition interlock device on every vehicle the person operates;
      2. the person signs an affidavit acknowledging that
        1. operation by the person of a vehicle that is not equipped with an ignition interlock device is subject to penalties for driving with a revoked license;
        2. circumventing or tampering with the ignition interlock device is a class A misdemeanor; and
        3. the person is required to maintain the ignition interlock device throughout the period of the limited license, to keep up-to-date records in each vehicle showing that any required service and calibration is current, and to produce those records immediately on request;
    5. the person has not previously been granted a limited license under this section and had the license revoked under (j) of this section.
  8. Notwithstanding (g)(2) of this section, if a person resides in a community where a court-ordered treatment program under AS 28.35.028 is not available, the person shall
    1. provide proof to the court that the person has successfully completed a rehabilitative treatment program appropriate for the person’s alcohol or substance abuse condition; the program must
      1. include planning and treatment for alcohol or drug addiction;
      2. include emphasis on personal responsibility;
      3. require payment of restitution to victims and completion of community work service;
      4. include physician-approved treatment of physical addiction and treatment of the psychological causes of addiction; and
      5. include a monitoring program and physical placement or housing in communities where the court finds that a monitoring program and placement or housing is available;
    2. provide proof by clear and convincing evidence to the court that the person is currently sober and has maintained sobriety for a period of at least 18 months; and
    3. provide written notice to the district attorney’s office of the person’s request for a limited license under this section.
  9. A person is not entitled to court-appointed counsel under (h) of this section.
  10. The court or the department may immediately revoke a limited license granted under (g) of this section if the person is convicted of a violation of AS 28.35.030 or 28.35.032 or a similar law or ordinance of this or another jurisdiction or if the person is not in compliance with a court-ordered treatment program under AS 28.35.028 or a rehabilitative treatment program under (h) of this section.

History. (§ 19 ch 178 SLA 1978; am §§ 10, 11 ch 117 SLA 1982; am §§ 8, 9 ch 77 SLA 1983; am §§ 16 — 18 ch 119 SLA 1990; am § 12 ch 3 SLA 1992; am § 4 ch 59 SLA 1993; am § 15 ch 60 SLA 2002; am §§ 2, 3 ch 126 SLA 2004; am § 2 ch 56 SLA 2006; am §§ 3, 4 ch 97 SLA 2008; am § 103 ch 36 SLA 2016)

Revisor’s notes. —

In 1990, the word “five” was substituted for “six” in the last sentence of former (d) of this section to correct a manifest error in § 18, ch. 119, SLA 1990. Subsection (e) was enacted as (f); relettered in 2008, at which time subsection (e) was relettered as (f).

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(l)(3), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Administrative Code. —

For classified driver's licenses, see 2 AAC 90, art. 4.

Effect of amendments. —

The 2016 amendment, effective July 12, 2016, added (g) — (j).

Editor’s notes. —

Section 7, ch. 126, SLA 2004, provides that the 2004 amendments of this section apply “to persons seeking limited licenses as a result of revocations for convictions occurring before, on, or after June 30, 2004.”

Notes to Decisions

Construed with AS 28.15.291(a) . —

In light of the express prohibition against issuance of limited licenses in AS 28.15.291(a) , one cannot rely on the provisions of this section as an independent source of authority for issuance of limited licenses. By its own terms, subsection (a) of this section does not apply where a statutory provision specifically prohibits issuance of limited licenses. Uhde v. State, 654 P.2d 1323 (Alaska Ct. App. 1982).

Issuance of limited licenses. —

This section affirmatively vests the courts with ongoing power to issue a limited license, provided that issuance of such license is not prohibited under a provision of law in effect when the limited license is requested. Howell v. State, 834 P.2d 1254 (Alaska Ct. App. 1992).

Although former provisions specifically authorized the issuance of a limited license to a driver whose license was revoked for DWI/refusal convictions, nothing in subsection (a) restricted the issuance of limited licenses only to such drivers. Howell v. State, 834 P.2d 1254 (Alaska Ct. App. 1992).

Denial of limited license. —

Sentencing panel’s decision denying defendant’s request to grant him a limited license so he could drive for work-related purposes was vacated; decision to grant a limited license would not have constituted a modification of defendant’s sentence for manslaughter. Hill v. State, 32 P.3d 10 (Alaska Ct. App. 2001).

Application held not retroactive. —

Where defendant, whose driver’s license had been revoked, moved for the issuance of a limited license in reliance on newly amended language in this section, and did so within the time limitations of R. Crim. P. 35(a), it was error for the trial court to rule the issuance of such license was precluded by AS 01.10.101 (relating to effect of repeals or amendments) because defendant had been sentenced prior to the amended provision’s effective date. Application of this provision prior to the effective date of the amendment was not a retroactive application of an amendment to the sentencing scheme promulgated under AS 28.15.181(d) and 28.15.291(c) [now AS 28.15.291(d) ]. Howell v. State, 834 P.2d 1254 (Alaska Ct. App. 1992).

Sec. 28.15.210. Mandatory revocation. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.211. Periods of limitation, suspension, revocation, or disqualification; opportunity for hearing and surrender of license.

  1. Except for a point system suspension or revocation under AS 28.15.221 28.15.241 and unless provided otherwise by law, and unless the suspension or revocation was for a cause that has been removed, a person whose driver’s license, privilege to drive, or privilege to obtain a license has been suspended or revoked may not apply for a new license, and the person’s driving privilege may not be restored, until the expiration of
    1. 30 days from the date on which the license, privilege to drive, or privilege to obtain a license was suspended or revoked for a first conviction of the particular offense from which the suspension or revocation resulted;
    2. 90 days from the date on which the license, privilege to drive, or privilege to obtain a license was suspended or revoked for a second conviction within 12 consecutive months of the same offense from which the suspension or revocation resulted;
    3. one year from the date on which the license, privilege to drive, or privilege to obtain a license was suspended or revoked for a third or subsequent conviction within 12 consecutive months of the same offense from which the suspension or revocation resulted.
  2. A limitation, suspension, or revocation of a driver’s license, privilege to drive, or privilege to obtain a license or a disqualification imposed by a court or the department takes effect on the date of final judgment, except that if another court or department limitation, suspension, disqualification, or revocation is in effect on the date of final judgment, the effective date of the last imposed limitation, suspension, disqualification, or revocation is at the end of the last day of the previous limitation, suspension, disqualification, or revocation unless the court or department specifies otherwise.
  3. At the end of a period of suspension or limitation, when that limitation follows a suspension, the person whose license has been suspended or limited may apply to the department and, upon payment of the proper fees, including a reinstatement fee, be issued a duplicate driver’s license if the person is otherwise entitled to the license under this title.
  4. At the end of a period of revocation or limitation following a revocation, a person whose driver’s license has been revoked may apply to the department for the issuance of a new license, but shall submit to reexamination, pay all required fees including a reinstatement fee, and, if the license was revoked under AS 28.15.181(a)(5) or (8), submit proof to the court or the department that the person has met the alcoholism screening, evaluation, referral, and program requirements of the Department of Health and Social Services under AS 28.35.030(h) .
  5. At the end of a period of limitation, suspension, or revocation under this chapter, the department may not issue a driver’s license or a duplicate driver’s license to the licensee until the licensee has complied with AS 28.20 relating to proof of financial responsibility.
  6. Unless otherwise provided by law, periods of limitation shall be made at the discretion of the court.
  7. Except as provided under AS 28.15.183 (h), the department may not issue a new license or reissue a license to a person whose driver’s license has been revoked under AS 28.15.183 or 28.15.185 unless the person, if required to participate in a juvenile alcohol safety action program, has successfully completed any education or treatment recommended. In this subsection, “juvenile alcohol safety action program” has the meaning given in AS 04.21.080 .

History. (§ 19 ch 178 SLA 1978; am § 12 ch 117 SLA 1982; am § 25 ch 77 SLA 1983; am § 7 ch 70 SLA 1984; am §§ 19, 20 ch 119 SLA 1990; am § 5 ch 59 SLA 1993; am §§ 2, 3 ch 71 SLA 1994; am § 8 ch 93 SLA 1998; am § 14 ch 65 SLA 2001; am § 16 ch 60 SLA 2002; am §§ 13, 14 ch 23 SLA 2007; am § 7 ch 86 SLA 2010; am § 19 ch 32 SLA 2016)

Effect of amendments. —

The 2010 amendment, effective September 14, 2010, in (g), substituted “has the meaning given in AS 04.21.080 ” for “has the meaning given in AS 04.16.050 ”.

The 2016 amendment, effective October 4, 2016, in (g), deleted “AS 04.16.050 ” preceding “AS 28.15.183 ” and made a related change.

Notes to Decisions

Offenses warranting extended period of license revocation. —

Superior court properly revoked driver’s license for 15 years where the driver had an extensive history of driving violations and was on probation at the time of the accident in this case, which occurred when he was drunk and speeding, and where he caused injury to both people and property. King v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2009), (memorandum opinion).

Applied in

Uhde v. State, 654 P.2d 1323 (Alaska Ct. App. 1982).

Cited in

State v. Robertson, 749 P.2d 902 (Alaska Ct. App. 1988); Smith v. State, 756 P.2d 913 (Alaska Ct. App. 1988).

Sec. 28.15.219. Definitions.

In AS 28.15.161 28.15.219 ,

  1. “disqualification” has the meaning given in AS 28.33.190 ;
  2. “disqualified” has the meaning given in AS 28.33.190 ;
  3. “disqualify” means that a person’s privilege to drive a commercial motor vehicle is withdrawn.

History. (§ 13 ch 3 SLA 1992)

Revisor’s notes. —

Reorganized upon enactment to alphabetize the defined terms.

Sec. 28.15.220. Discretionary suspension, etc. [Repealed, § 19 ch 178 SLA 1978.]

Article 3. Point System and Driver Improvement.

Notes to Decisions

Applied in

McClain v. State, 641 P.2d 1265 (Alaska Ct. App. 1982).

Sec. 28.15.221. Point system.

  1. For the purpose of identifying habitually reckless or negligent drivers and habitual or frequent violators of traffic laws, the commissioner shall adopt regulations establishing a uniform system for the suspension, revocation, limitation, or denial of a driver’s license, privilege to drive, or privilege to obtain a license by assigning demerit points for convictions for violations of traffic laws that are required to be reported to the department under AS 28.15.191 and AS 28.37.130 .
  2. The regulations adopted under (a) of this section shall include a designated level of point accumulation which identifies drivers who are habitually reckless or negligent or who are habitual or frequent violators of traffic laws, so as to show a disrespect for traffic laws and a disregard for the safety of other persons. In formulating the point system authorized by this section, the commissioner shall, in the interest of interstate uniformity, provide for suspension, revocation or denial of a driver’s license, privilege to drive, or privilege to obtain a license for an accumulation of 12 or more points as a result of offenses committed during any consecutive 12-month period or 18 or more points as a result of offenses committed during any 24-month period.
  3. The regulations adopted under (a) of this section shall include a two-point addition to a licensee’s assessed total if the licensee, while in a designated traffic safety corridor, overtakes and passes another vehicle in a zone designated by a safety control device that prohibits passing.

History. (§ 19 ch 178 SLA 1978; am § 14 ch 60 SLA 1986; am § 21 ch 119 SLA 1990; am § 3 ch 45 SLA 2006)

Administrative Code. —

For traffic offenses demerit point system, see 2 AAC 90, art. 5.

Notes to Decisions

Cited in

Gregory v. State, 717 P.2d 428 (Alaska Ct. App. 1986); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 144, 159.

60 C.J.S., Motor Vehicles, § 378.

Regulations establishing a “point system” as regards suspension or revocation of license of operator of motor vehicle, 5 ALR3d 690.

Validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations, 48 A.L.R.4th 367.

Sec. 28.15.225. Limited license. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.230. Right of appeal. [Repealed, § 13 ch 17 SLA 1964.]

Sec. 28.15.231. Assessment of points; driver improvement interview.

  1. Notice of each assessment of points may be given, but notice shall be given when the point accumulation reaches 50 percent of the number at which suspension, revocation, or denial is required under AS 28.15.221(b) , and a driver who has reached that level of point accumulation shall be identified as a problem driver.  The department may require a problem driver to appear for a driver improvement interview.  The purpose of that interview is to assist the person who is identified as a problem driver in overcoming substandard driving habits.  An interview under this subsection is to be conducted in an informal manner. A driver shall comply with any reasonable recommendations designed to improve the driver’s driving abilities that are made to the driver during the interview.
  2. Points may not be assessed for violating a provision of a state law or regulation or a municipal ordinance regulating standing, parking, equipment, size, or weight; nor may points be assessed for violations by pedestrians, passengers, or bicycle riders, or for violations of provisions relating to the preservation of the condition of traffic-control devices on the highways. Points shall be assessed for violations of oversize or overweight permits relating only to restrictions upon speed or hours of operation.
  3. If a licensee is convicted of two or more traffic violations committed on a single occasion, the licensee shall be assessed points for one offense only, and if the offenses involved have different point values, the licensee shall be assessed for the offense having the greater point value.
  4. The time periods provided for in this section for the accumulation of points shall be based upon the date of violation, but points may not be assessed until after conviction, either upon a plea of guilty, nolo contendere, or a forfeiture of bail, or as a result of a trial, for violation of the traffic laws.
  5. The points assessed and the application of them against the licensee by the department under this section are in addition to, and not in substitution for, other provisions of this chapter and are not a substitute for any penalty imposed by a court.
  6. The notice required under (a) of this section may be given by first class mail.

History. (§ 19 ch 178 SLA 1978; am § 15 ch 60 SLA 1986; am § 6 ch 56 SLA 2002; am § 36 ch 35 SLA 2003)

Administrative Code. —

For traffic offenses demerit point system, see 2 AAC 90, art. 5.

Notes to Decisions

Failure of the Department of Motor Vehicles to send a midpoint notice pursuant to subsection (a) of this section cannot be raised as a defense in a prosecution for driving with a suspended license under AS 28.15.291(a) . McClain v. State, 641 P.2d 1265 (Alaska Ct. App. 1982).

Sec. 28.15.240. Suspending licenses of juveniles. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.241. Reduction of points.

  1. Two points shall be deducted from a licensee’s assessed total if the licensee has not been convicted of a violation of traffic laws that occurred during the 12-month period after the date of the last violation of which the licensee was convicted.
  2. In addition to (a) of this section, two points shall be deducted from the assessed total upon the driver’s furnishing to the department adequate proof of successful completion, within 12 months of the date of the driver’s last violation, of a driver improvement course approved by the department or an alcohol information course approved by the Department of Health and Social Services, except that
    1. not more than one driver improvement or one alcohol information course may be used to obtain a reduction in points in any 12-month period; and
    2. a driver improvement course for a person under 21 years of age must be a course that is designed to benefit persons under 21 years of age and must be certified by a national organization.
  3. One point shall accumulate to the driver’s benefit for each 12 consecutive months of licensed, violation-free driving within the five-year period preceding the point calculation.

History. (§ 19 ch 178 SLA 1978; am § 1 ch 8 SLA 1981; am § 9 ch 93 SLA 1998)

Administrative Code. —

For traffic offenses demerit point system, see 2 AAC 90, art. 5.

Sec. 28.15.250. Reexamination. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.251. Suspension, revocation, limitation, or denial of driver’s license.

  1. The department shall suspend, revoke, limit, deny, or initiate other remedial action against the driver’s license of a person, upon the person’s failure to
    1. appear for a driver improvement interview under AS 28.15.231(a) ; or
    2. comply with reasonable recommendations designed to improve the person’s driving abilities that are made to the person during the driver improvement interview.
  2. The department shall suspend, revoke, or deny a driver’s license of a person who has been identified through the person’s point accumulation as an habitual or frequent violator under AS 28.15.221 .
  3. A suspension, revocation, limitation, or denial of, or other action against, a driver’s license under AS 28.15.221 28.15.261 may not be for more than one year.
  4. If a driver’s license is suspended or revoked upon the accumulation of the number of points that requires that action under AS 28.15.221 28.15.261 and regulations adopted under those sections, a limited license may not be issued to that person during the period of suspension or revocation.
  5. Except for immediate action under AS 28.15.181 , when the department proposes to take action against a driver’s license under (b) of this section, it shall notify the licensee that the proposed action shall become effective 30 days from the date of the notice, except that the licensee shall have the right, within the 30-day period, to make an oral or written answer or statement in which the licensee may controvert any point or issue and the licensee may present evidence and arguments for the consideration of the department pertinent to the action to be taken or the grounds for the action.
  6. Upon receipt of an oral or written answer or statement from the licensee, the department shall make findings on the matter under consideration and shall notify the person involved of its decision in writing by registered mail.  If the department’s decision is to sustain an action against the licensee’s driver’s license, the department shall notify the licensee of the opportunity for a hearing under AS 28.05.121 28.05.141 .

History. (§ 19 ch 178 SLA 1978)

Administrative Code. —

For traffic offenses demerit point system, see 2 AAC 90, art. 5.

Notes to Decisions

Cited in

Jeffcoat v. State, 639 P.2d 308 (Alaska Ct. App. 1982).

Collateral references. —

Denial, suspension, or cancellation of driver’s license because of physical disease or defect, 38 ALR3d 452.

Validity and construction of statute or ordinance mandating imprisonment for habitual repeated traffic offender, 2 A.L.R.4th 618.

Validity and construction of legislation authorizing revocation or suspension of operator’s license for “habitual,” “persistent,” or “frequent” violations of traffic regulations, 48 A.L.R.4th 367.

Sec. 28.15.253. Driver improvement or alcohol information courses.

Upon conviction of a violation of a traffic law that results in a driver accumulating six or more points from offenses committed during any consecutive 12-month period or nine or more points from offenses committed during any 24-month period, (1) on request of the department, the court may, in addition to any other penalty authorized by law, require the driver to successfully complete a driver improvement course approved by the department or an alcohol information course approved by the Department of Health and Social Services within a period of time prescribed by the court; and (2) the department shall require a person licensed under a provisional license to complete a driver improvement course approved by the department within a time period prescribed by the department. A driver improvement course approved under this section for a person who is under 21 years of age must be a course that is designed to benefit persons under 21 years of age and must be certified by a national organization. The department may suspend, revoke, or deny the driver’s license of a person who fails to successfully complete the driver improvement course or the alcohol information course required by the court under this section within the prescribed time period.

History. (§ 1 ch 78 SLA 1982; am § 10 ch 93 SLA 1998)

Sec. 28.15.255. Proof of financial responsibility.

  1. The department may not reinstate a driver’s license that has been revoked or suspended under AS 28.15.221 28.15.261 until the person whose license has been revoked or suspended provides proof of financial responsibility for the future.
  2. If a driver accumulates six or more points under AS 28.15.221 28.15.261 during a 12-month period, the department may require the driver to provide proof of financial responsibility for the future as a condition of retaining a driver’s license, and may suspend the driver’s license until proof of financial responsibility is provided.
  3. In this section, the term “proof of financial responsibility”  has the meaning given in AS 28.20.630 and may be established as provided in AS 28.20.

History. (§ 2 ch 78 SLA 1982; am § 26 ch 108 SLA 1989)

Sec. 28.15.260. Period of suspension. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.261. Definitions for AS 28.15.221 — 28.15.261.

In AS 28.15.221 28.15.261 ,

  1. “licensee” includes an applicant for a new driver’s license if the applicant’s license was revoked under AS 28.15.221 28.15.261 ;
  2. “traffic laws” means statutes, regulations, and municipal ordinances governing the driving or movement of vehicles.

History. (§ 19 ch 178 SLA 1978; am § 24 ch 22 SLA 2015)

Revisor’s notes. —

The paragraphs were renumbered in 1984 to achieve alphabetical order.

Effect of amendments. —

The 2015 amendment, effective May 15, 2015, deleted “, but is not limited to,” before “an applicant” in (1).

Notes to Decisions

Quoted in

Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Sec. 28.15.270. Surrender of license. [Repealed, § 19 ch 178 SLA 1978.]

Article 4. Fees.

Collateral references. —

60 C.J.S., Motor Vehicles, §§ 344-346.

Sec. 28.15.271. Fees.

  1. The fees for drivers’ licenses and permits, including renewals, and all related driver skills tests are as follows:
    1. all noncommercial vehicles and motor-driven cycles
      1. each license fee  . . . . .  $20;
      2. each driver skills test  . . . . .  $15;
    2. all commercial motor vehicles
      1. each license fee  . . . . .  $100;
      2. each driver skills test  . . . . .  $25;
    3. instruction permit  . . . . .  $15;
    4. duplicate of driver’s license or instruction permit  . . . . .  $15;
    5. temporary license and renewal of permit  . . . . .  $5;
    6. school bus driver’s endorsement renewal  . . . . .  $5.
  2. In addition to the fees under (a) of this section,
    1. a person who renews a driver’s license by mail shall pay a fee of $1;
    2. a person who applies for a limited driver’s license under AS 28.15.201 shall pay a fee of $100;
    3. a person who applies for reinstatement of a driver’s license under AS 28.15.211 shall pay a fee of
      1. $100 if the person’s driver’s license has, within the 10 years preceding the application, been suspended, revoked, or limited under the provisions of this chapter, except as provided by (C) of this paragraph, only once;
      2. $250 if the person’s driver’s license has, within the 10 years preceding the application, been suspended, revoked, or limited under the provisions of this chapter, except as provided by (D) of this paragraph, two or more times;
      3. $200 if the person’s driver’s license has, within the 10 years preceding the application, been revoked under AS 28.35.030 or 28.35.032 only once; or
      4. $500 if the person’s driver’s license has, within the 10 years preceding the application, been revoked under AS 28.35.030 or 28.35.032 two or more times; and
    4. a person who applies for a driver’s license that is federally compliant shall pay a fee of $20.
  3. The fee for a driver skills test must be paid at the time an appointment for the skills test is made or before the skills test is given, whichever is earlier. The department may not refund a driver skills test fee if the applicant cancels the appointment, fails to appear at the appointed day and time, or fails to pass the skills test.
  4. [Repealed, § 28 ch 90 SLA 1991.]
  5. The department shall charge $50 for issuance of a new license to replace a license cancelled under AS 28.15.161(a)(5) because the person is restricted from purchasing alcoholic beverages under AS 04.16.160 .

History. (§ 19 ch 178 SLA 1978; am § 16 ch 60 SLA 1986; am § 3 ch 32 SLA 1988; am §§ 1, 2 ch 53 SLA 1990; am § 28 ch 90 SLA 1991; am § 4 ch 50 SLA 1993; am § 6 ch 59 SLA 1993; am § 4 ch 71 SLA 1994; am § 17 ch 60 SLA 2002; am § 3 ch 63 SLA 2002; am § 30 ch 24 SLA 2007; am § 25 ch 22 SLA 2015; am § 15 ch 8 SLA 2017)

Effect of amendments. —

The 2015 amendment, effective May 15, 2015, deleted “but not limited to” after “including” in the introductory language in (a).

The 2017 amendment, effective January 1, 2019, added (b)(4), and made related changes.

Legislative history reports. —

For House letter of intent related to the amendment of this section by ch. 71, SLA 1994 (CSHB 299(FIN) am S), see 1994 House Journal 2961.

Notes to Decisions

Cited in

Kankanton v. State, 342 P.3d 840 (Alaska Ct. App. 2015).

Article 5. Driver License Violations.

Sec. 28.15.280. Use of foreign license. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.281. Unlawful use of license; permitting unauthorized person to drive.

  1. A person may not
    1. display, cause or permit to be displayed, or have in the person’s possession a canceled, suspended, revoked, fictitious, or unlawfully altered driver’s license;
    2. display or represent as the person’s own a driver’s license not issued to the person;
    3. display or present a driver’s license other than an Alaska driver’s license to a peace officer or to the department when that person has been licensed under this chapter; or
    4. lend the person’s driver’s license to another person or knowingly permit the use of the license by another.
  2. A person may not authorize or knowingly permit a motor vehicle owned by the person or under the control of the person to be driven in this state by a person who is not validly licensed.

History. (§ 19 ch 178 SLA 1978)

Notes to Decisions

Construction of statute. —

By requiring that permission to drive be knowingly given by a person in control of a motor vehicle, subsection (b) uses the verb “permit” in its narrow sense; therefore, a jury could not have found a violation of subsection (b) in a wrongful death action if it determined that a driver only surrendered a vehicle to an unlicensed person by ceasing resistance and acquiescing to the person’s demand to drive after recognizing that the driver had no ability to control the unlicensed person’s conduct. Crosby v. Hummell, 63 P.3d 1022 (Alaska 2003).

Permission. —

Trial court did not err in denying a motion for summary judgment filed by a representative and an estate on the issue of permission in a wrongful death action after treating the issue as disputed under Alaska R. Civ. P. 15(b) because the driver’s statement regarding permission was not a judicial admission; it was susceptible of more than one meaning, only one of which would have established a violation of subsection (b). Crosby v. Hummell, 63 P.3d 1022 (Alaska 2003).

Jury instructions. —

The trial court erred by rejecting a proposed jury instruction that the defendant be found negligent per se if she violated this section. Ardinger v. Hummell, 982 P.2d 727 (Alaska 1999).

In a wrongful death case, jury instructions setting forth all of the elements required for a violation of subsection (b) were not erroneous because the completeness minimized the risk of jury error. Crosby v. Hummell, 63 P.3d 1022 (Alaska 2003).

Collateral references. —

Construction, application, and effect of legislation making it offense to permit unlicensed person to operate motor vehicle, 69 ALR2d 978.

Validity and construction of statute making it a criminal offense for the operator of a motor vehicle not to carry or display his operator’s license or the vehicle registration certificate, 6 A.L.R.3d 506.

Negligent entrustment of motor vehicle to unlicensed driver, 55 ALR4th 1100.

Secs. 28.15.282 — 28.15.290. Point system; unlawful use of license. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.291. Driving while license canceled, suspended, revoked, or in violation of a limitation.

  1. A person commits the crime of driving while license canceled, suspended, revoked, or in violation of a limitation if the person drives
    1. a motor vehicle on a highway or vehicular way or area at a time when that person’s driver’s license, privilege to drive, or privilege to obtain a license has been canceled, suspended, or revoked under circumstances described in AS 28.15.181 or 28.15.182 or a similar law in another jurisdiction;
    2. a motor vehicle on a highway or vehicular way or area at a time when that person’s driver’s license, privilege to drive, or privilege to obtain a license has been canceled, suspended, or revoked under circumstances other than those described in (1) of this subsection; or
    3. in violation of a limitation placed on that person’s license or privilege to drive in this or another jurisdiction.
  2. Driving while license canceled, suspended, revoked, or in violation of a limitation is
    1. a class A misdemeanor if the person
      1. violates (a)(1) of this section; upon conviction, the court shall impose a minimum sentence of imprisonment of not less than 10 days
        1. with 10 days suspended if the person has not been previously convicted under (a)(1) of this section or a similar law of another jurisdiction; or
        2. if the person has been previously convicted under (a)(1) of this section or a similar law in another jurisdiction; or
      2. violates (a)(2) or (3) of this section and the person has been previously convicted under (a) of this section;
    2. an infraction if the person violates (a)(2) or (3) of this section.
  3. It is an affirmative defense to a prosecution under (a) of this section that the person’s license was suspended under AS 28.22.041 and the person provides proof of liability insurance meeting the requirements of AS 28.22 and proof that the insurance was in effect at the time of the accident that led to the suspension.
  4. In this section, “previously convicted” means having been convicted in this or another jurisdiction, within 10 years preceding the date of the present offense, of a violation of this section, of AS 28.33.150 , or another law or ordinance with substantially similar elements.

History. (§ 19 ch 178 SLA 1978; am §§ 10, 11 ch 77 SLA 1983; am § 22 ch 119 SLA 1990; am § 14 ch 3 SLA 1992; am § 7 ch 59 SLA 1993; am § 18 ch 60 SLA 2002; am § 2 ch 74 SLA 2008; am § 2 ch 85 SLA 2010; am §§ 104, 105 ch 36 SLA 2016; am §§ 92, 93 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection (c) was enacted as (d); relettered in 2008, at which time subsection (c) was relettered as (d).

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(a)(34) and (35), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2008 amendment, effective September 2, 2008, added subsection (d) [now (c)].

The 2010 amendment, effective September 14, 2010, in (b)(1)(C) and (b)(1)(D), added “or if the person was driving in violation of an ignition interlock device requirement following that revocation,” following “following that revocation”, and made related changes.

The 2016 amendment, effective July 12, 2016, rewrote (a) and (b).

The 2019 amendment, effective July 9, 2019, substituted “AS 28.15.181 or 28.15.182 ” for “AS 28.15.181(c) ” in (a)(1); added (b)(1)(B), and made related stylistic changes.

Editor's notes. —

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 amendments to (a) and (b) of this section apply “to offenses committed on or after July 9, 2019.”

Notes to Decisions

Mandatory minimum sentencing provisions held constitutional. —

AS 29.25.070 (g) [now (f)] did not impliedly repeal the statutory carve-out in AS 28 that historically permitted municipalities to imposed harsher impoundments and forfeitures for certain delineated offenses and thus, the mandatory impoundment requirements in Anchorage Municipal Code 09.28.020(C)(5) was not rendered invalid by § 29.25.070 and the district court did not err in ordering a 30-day impoundment of appellant's vehicle. Good v. Mun. of Anchorage, — P.3d — (Alaska Ct. App. Sept. 27, 2019).

Jurisdiction. —

Defendant’s claim that the trial court had no authority to decide his case was rejected because the legislature expressly granted the trial court jurisdiction over misdemeanor offenses pursuant to Alaska Const. art. IV, § 1 and AS 22.15.060(a)(1)(A) . Gladden v. State, 110 P.3d 1006 (Alaska Ct. App. 2005).

District court had subject matter jurisdiction over defendant's case for driving while license revoked, and it also had personal jurisdiction over defendant because he was present within the State when he committed the infraction of driving while license revoked. Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Knowledge or intent. —

While subsection (a) is silent on its face as to the requirement of knowledge or intent as an element of the offense, an element of mens rea must be read into the statute by implication. Jeffcoat v. State, 639 P.2d 308 (Alaska Ct. App. 1982).

Required mental state. —

Proof of criminal negligence is the required mental state to show a violation of this section. Gregory v. State, 717 P.2d 428 (Alaska Ct. App. 1986).

There was no unlawful inconsistency between Anchorage, Alaska, Mun. Code 9.28.019.B (ordinance) and this section under AS 28.01.010(a) , where the ordinance did not impede or frustrate state policy or the enforcement of state law due to the fact that its culpable mental state for driving under the influence was recklessness rather than negligence, as provided in this section; the ordinance did not authorize conduct that the Alaska legislature had forbidden or forbid conduct that the legislature had authorized, it simply made it harder for the municipality to prosecute someone for the same conduct. Lampley v. Municipality of Anchorage, 159 P.3d 515 (Alaska Ct. App. 2007).

Effective date of revocation. —

Trial court did not err by finding that the former version of this section was inapplicable to defendant's case because the use of the present tense "is revoked" in the order revoking defendant's driver's license suggested that the revocation took effect on the day the order was issued, June 29, 2009 and that date was explicitly referred to as the "Effective Date" of the order. Nusbaum v. State, — P.3d — (Alaska Ct. App. July 3, 2019) (memorandum decision).

Probable cause to arrest. —

Where an informant told state troopers that defendant, whose license the informant believed was suspended, was driving and provided a description of the car and the license number, and the trooper observed defendant driving, there was probable cause to arrest defendant. Ford v. State, 699 P.2d 889 (Alaska Ct. App. 1985).

Where trooper saw defendant driving a car for which a “locate” had been issued, and the dispatcher told the trooper that the registered owner’s license had been suspended, the trooper had probable cause to stop the vehicle and arrest defendant when she could not produce a license, even though she was not the registered owner of the vehicle. Smith v. State, 756 P.2d 913 (Alaska Ct. App. 1988).

Prerequisite to suspension. —

A driver’s license or privilege to drive cannot properly be suspended unless the driver was in fact licensed or otherwise actually privileged to drive a motor vehicle within the state. Roberts v. State, 700 P.2d 815 (Alaska Ct. App. 1985).

Revocation beyond life of license. —

Once a license is validly revoked, the revocation remains in effect for the full period ordered, regardless of whether the originally valid license might otherwise have expired at some point during the period of revocation. Fielding v. State, 733 P.2d 271 (Alaska Ct. App. 1987).

By prescribing a one-year period of revocation upon conviction of driving while his license was revoked (DWLR), and by expressly requiring that period to be added to the period already in existence at the time of the offense, this section makes clear the legislature’s intent to treat the added period as an extension of original revocation. In effect, then, the additional period of revocation relates back to the original revocation as long as the original revocation will be valid, even if, when it is ordered, the defendant technically no longer has a license to revoke. Fielding v. State, 733 P.2d 271 (Alaska Ct. App. 1987).

Application held not retroactive. —

Where defendant, whose driver’s license had been revoked, moved for the issuance of a limited license in reliance on newly amended language in AS 28.15.201 , and did so within the time limitations of R. Crim. P. 35(a), it was error for the trial court to rule the issuance of such license was precluded by AS 01.10.100 (relating to the effect of repeals or amendments) because defendant had been sentenced prior to the amended provision’s effective date. Application of this provision prior to the effective date of the amendment was not a retroactive application of an amendment to the sentencing scheme promulgated under AS 28.15.181(d) and subsection (c) [now (d)] of this section. Howell v. State, 834 P.2d 1254 (Alaska Ct. App. 1992).

Sufficiency of evidence. —

Evidence was sufficient to support a verdict for driving with a revoked license where the owner of a stolen truck testified that he saw defendant drive away in the truck. Eide v. State, 168 P.3d 499 (Alaska Ct. App. 2007).

Defendant’s convictions for DUI and driving while his license was revoked were affirmed where evidence presented at defendant’s trial, if believed, was a sufficient basis for a reasonable person to conclude that defendant was driving. Hewitt v. State, 188 P.3d 697 (Alaska Ct. App. 2008).

Sufficient evidence supported defendant’s conviction for driving while defendant’s license was revoked because defendant’s arguments to the contrary required construing the evidence in the light most favorable to defendant, which was not the standard for reviewing sufficiency of the evidence. Lewis v. State, 356 P.3d 795 (Alaska Ct. App. 2015).

Defendant was properly convicted of driving while license revoked and driving in violation of a restricted license because, while someone else might have driven the car to an apartment complex, a witness observed defendant drive it to a different place in an alley, defendant did not question the nature of the alley, and a police detective testified that the alley was open to the public. Lundy v. State, — P.3d — (Alaska Ct. App. July 27, 2016) (memorandum decision).

Evidence obtained by investigative stop. —

Evidence obtained by a state trooper that the defendant’s license was revoked was not acquired through an unlawful investigative stop where the defendant’s car appeared to be stalled at the side of the highway and the trooper approached the defendant in order to determine whether he needed assistance. Marsh v. State, 838 P.2d 819 (Alaska Ct. App. 1992).

Reasonable belief to justify stop. —

Officer who observed defendant’s van being driven erratically had reasonable belief defendant was a dangerous driver to justify his investigative stop. Hamman v. State, 883 P.2d 994 (Alaska Ct. App. 1994).

Conviction affirmed though notice of suspension of license not received. —

Where the appellant had been furnished with written notice of the financial responsibility law as required by AS 28.20.050 and had expressly been told that his license would be suspended if he did not comply with the financial responsibility statute, his conviction under this section was affirmed even though he never received formal notice of suspension of his license, when the post office made three unsuccessful attempts at delivery to the appellant’s address of record. Alexander v. State, 712 P.2d 416 (Alaska Ct. App. 1986).

Necessity. —

In a case involving driving while license revoked, there was no error in refusing to instruct the jurors on the defense of necessity because there was not evidence sufficient to warrant a conclusion by a reasonable fact-finder that defendant had no reasonable alternative except to drive a vehicle herself after her husband became sleepy; parking the vehicle off of the road for 15 to 30 minutes was a reasonable, adequate alternative to breaking the law. Defendant never suggested that she thought or feared that it would have taken longer for her husband to be sufficiently rested to resume driving. Montgomery v. State, — P.3d — (Alaska Ct. App. Dec. 23, 2015) (memorandum decision).

Jury instructions. —

Even if the trial court erred in instructing the jury on the modified “operating a motor vehicle” pattern instruction, the error was harmless because the jury found beyond a reasonable doubt that defendant was driving, as it convicted defendant of both driving while under the influence and driving while his license was canceled, suspended, or revoked. To convict defendant of the second crime the jury needed to unanimously find that defendant was driving the vehicle. Edwardsen v. State, — P.3d — (Alaska Ct. App. Feb. 18, 2015) (memorandum decision).

Maximum penalties. —

Although a violation of AS 28.15.011(b) carries no mandatory minimum sentence equivalent to the 10-day jail sentence and one-year license revocation of this section, the available maximum penalties under AS 28.35.230(a) and (b) (now see AS 28.90.010 ) are the same. Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982).

Issuance of limited licenses prohibited. —

The language of subsection (a) of this section specifically prohibits issuance of limited licenses to persons convicted of driving while license is suspended. Uhde v. State, 654 P.2d 1323 (Alaska Ct. App. 1982).

In light of the express prohibition against issuance of limited licenses contained in subsection (a) of this section, one cannot properly rely upon the provisions of AS 28.15.201(a) as an independent source of authority for issuance of limited licenses, since by its own terms, AS 28.15.201(a) does not apply where a statutory provision specifically prohibits issuance of limited licenses. Uhde v. State, 654 P.2d 1323 (Alaska Ct. App. 1982).

Minimum jail term for violation after conviction for driving while intoxicated. —

A person who drives in violation of a limited license that is issued following a conviction for driving while intoxicated (DWI) is subject to a minimum jail term of ten days. State v. Robertson, 749 P.2d 902 (Alaska Ct. App. 1988).

Time limitation for revocation of license. —

The one-year revocation period provided for in subsection (a) of this section as it read prior to the 1990 amendment was the maximum amount of time a license could be revoked for driving with a suspended license. Manderson v. State, 655 P.2d 1320 (Alaska Ct. App. 1983).

The revocation of a vehicle registration for a conviction of driving with a suspended license should not continue beyond the period that the defendant’s driver’s license is revoked. Manderson v. State, 655 P.2d 1320 (Alaska Ct. App. 1983).

Conversion of community work service to fine. —

A sentence imposed by a magistrate whereby the defendant was allowed to convert his community work service into a fine contravened this section and was thus ruled illegal. State v. Fogg, 995 P.2d 675 (Alaska Ct. App. 2000).

Ordinance not in conflict with former AS 28.15.300(a). —

Home rule ordinance which prohibited driving a motor vehicle while one’s license is suspended or revoked, as did former AS 28.15.300(a), but which was not limited to public highways as was former AS 28.15.300(a) was not in conflict with former AS 28.15.300(a) and, therefore, was not invalid. Cremer v. Anchorage, 575 P.2d 306 (Alaska 1978).

Driving motor vehicle that does not require a licensed driver. —

Subsection (a) creates no exception that would allow a driver whose license has been suspended to drive on a highway in a motor vehicle that does not require a licensed driver. The statute, on its face, applies to all motor vehicles. State v. Straetz, 758 P.2d 133 (Alaska Ct. App. 1988).

Section not amended by AS 28.15.021 (5). —

Appellate court rejected defendant’s argument that the legislature impliedly amended subsection (a) when it adopted AS 28.15.021 (5) because the two statutes are not irreconcilable. The first prohibits a person whose driver’s license was suspended or revoked from driving any motor vehicle on a highway while the second statute allows people to drive off-highway vehicles without a license so long as the vehicle is not being operated on a highway. Stevens v. State, 135 P.3d 688 (Alaska Ct. App. 2006).

Lesser included offense. —

Driving without a license (DWOL) is a lesser-included offense of driving while license suspended (DWLS). Therefore, when defendant pled no contest to DWLS, he also pled to the lesser-included offense of DWOL. Kennedy v. State, 786 P.2d 928 (Alaska Ct. App. 1990).

Judicial notice of element of offense reversible error. —

Court’s instruction that judicial notice of some fact or event was conclusive proof of such fact, was error; taking conclusive judicial notice of an element of the criminal charge of driving while license revoked, i.e., the fact that the defendant’s driver’s license had been revoked at the time of the offense, violated Alaska Evidence Rule 203(c), and deprived the defendant of his right to be convicted only upon a jury’s finding of proof beyond a reasonable doubt of every element of the offense. Rae v. State, 884 P.2d 163 (Alaska Ct. App. 1994).

Judicial notice of “highway” element constituted reversible error. —

The trial court’s decision to take judicial notice of the fact that the “Glenn Highway” on which defendant allegedly illegally drove was in fact a “highway” within the meaning of this section amounted to a directed verdict for the prosecution on one of the essential elements of the charge and constituted reversible error. Fielding v. State, 842 P.2d 614 (Alaska Ct. App. 1992).

Sentence upheld. —

A composite sentence of 720 days upon convictions of driving while intoxicated and driving while license was revoked was not clearly mistaken, where defendant had six prior DWI convictions and five prior DWLS convictions within the last ten years. Alward v. State, 767 P.2d 1175 (Alaska Ct. App. 1989).

Defendant’s lengthy misdemeanor record and the circumstances of his reckless endangerment conviction, particularly the near miss of a pedestrian, justified the imposition of a maximum term for driving while his license was suspended and a consecutive three-month unsuspended term for reckless endangerment. Joseph v. State, 775 P.2d 519 (Alaska Ct. App. 1989).

Sufficient evidence supported defendant’s conviction for driving while his license was revoked because defendant’s arguments to the contrary required construing the evidence in the light most favorable to him, which is not the standard for reviewing sufficiency of the evidence. Lewis v. State, 356 P.3d 795 (Alaska Ct. App. 2015).

Defendant faced a presumptive sentencing range of three to five years' imprisonment for felony eluding and felony driving under the influence convictions, and a term of 30 days to one year for the driving while license revoked conviction, and his composite sentence of 7 1/2 years to serve was not clearly mistaken; the trial court found that his conduct, engaging in a high-speed vehicle chase while high on drugs, showed a complete disregard for the safety of others, plus defendant committed the offenses while on probation, with his driver's license revoked, and after serving significant periods of imprisonment. Debeaulieau v. State, — P.3d — (Alaska Ct. App. Aug. 24, 2016) (memorandum decision).

Defendant's 150-day sentence for two separate driving while license revoked charges was not excessive because the trial court concluded that a substantial sentence was required based on defendant's significant history of driving offenses, which included four driving under the influence convictions and four driving while license revoked/suspended convictions. The record showed that defendant had not had a valid driver's license since 1988. Nusbaum v. State, — P.3d — (Alaska Ct. App. July 3, 2019) (memorandum decision).

Lengthy composite sentence held justified by defendant's attitude. —

Judge had good reasons justifying the length of defendant’s composite sentence where he found that defendant refused to take responsibility for his actions, was willing to manipulate others, rationalized his criminal conduct, and was a danger to the community. Van Doren v. State, — P.3d — (Alaska Ct. App. Apr. 15, 2009) (memorandum decision).

Conviction reversed. —

The fact that a defendant’s license had been suspended for driving while intoxicated did not have probative value in evaluating the defendant’s conduct at the time of arrest for violating this section; the trial judge abused his discretion in admitting the evidence of two prior convictions for driving while intoxicated because the jury might have been prejudiced. It could not be said that the error was harmless, so the conviction was reversed. Nelson v. State, 691 P.2d 1056 (Alaska Ct. App. 1984).

By refusing to request appointed counsel or take steps necessary to hire private counsel, defendant impliedly elected to proceed pro se; where the record did not unequivocally show that defendant knowingly and intelligently waived the right to counsel, reversal of defendant’s conviction under subsection (a)(1) was proper. Gladden v. State, 110 P.3d 1006 (Alaska Ct. App. 2005).

Conviction and sentence reversed since “vehicular way or area,” an element of subsection (a), does not include a privately owned parking lot. Conner v. State, 696 P.2d 680 (Alaska Ct. App. 1985).

Conviction upheld. —

Defendant was properly convicted of operating a vehicle under the influence of a controlled substance, driving with a revoked license, and third- and fourth-degree weapons misconduct because any error in placement of the burden of proof was irrelevant where the court's offer of a continuance for defense to prepare for trial was refused, the charges for third-degree weapons misconduct and operating under the influence and driving with a revoked license were properly joined, defendant was not unfairly prejudiced, and the double jeopardy clause was not violated where the weapons offenses implicated significantly different societal interests. Glover v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2020) (memorandum decision).

State had authority to prosecute defendant's conduct because it was not required to prove that defendant was engaged in commerce at the time he drove his vehicle. Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Defendant was in a vehicle for purposes of the statute because he acknowledged that he was behind the wheel of an automobile when he was stopped; the State presented sufficient evidence at trial that defendant was driving a vehicle on a highway at the time he was stopped. Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Applied in

Wilson v. State, 765 P.2d 106 (Alaska Ct. App. 1988); Woodbury v. State, 151 P.3d 528 (Alaska Ct. App. 2007); Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Cited in

Wilson v. State, 680 P.2d 1173 (Alaska Ct. App. 1984); Witt v. State, 692 P.2d 976 (Alaska Ct. App. 1984); State v. Dunlop, 721 P.2d 604 (Alaska 1986); Yancy v. State, 733 P.2d 1058 (Alaska Ct. App. 1987); Alfred v. State, 758 P.2d 130 (Alaska Ct. App. 1988); Ames v. Endell, 856 F.2d 1441 (9th Cir. Alaska 1988); Dionne v. State, 766 P.2d 1181 (Alaska Ct. App. 1989); Rychart v. State, 778 P.2d 229 (Alaska Ct. App. 1989); Allen v. State, 781 P.2d 992 (Alaska Ct. App. 1989); Smith v. State, 787 P.2d 1038 (Alaska Ct. App. 1990); State v. Siverly, 822 P.2d 1389 (Alaska Ct. App. 1991); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Gottschalk v. State, 36 P.3d 49 (Alaska Ct. App. 2001); Tyler v. State, 133 P.3d 686 (Alaska Ct. App. 2006); Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006); Matthew v. State, 152 P.3d 469 (Alaska Ct. App. 2007); Gladden v. State, 153 P.3d 1028 (Alaska Ct. App. 2007); Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008); Rockwell v. State, 215 P.3d 369 (Alaska Ct. App. 2009); Tegoseak v. State, 221 P.3d 345 (Alaska Ct. App. 2009); Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010); Beattie v. State, 258 P.3d 888 (Alaska Ct. App. 2011); State v. Andreanoff, 370 P.3d 1112 (Alaska Ct. App. 2016); Sherwood v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2019); Simpson v. State, 489 P.3d 1181 (Alaska Ct. App. 2021).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 260.

60 C.J.S., Motor Vehicles, §§ 360-364.

Lack of proper operator’s license as evidence of operator’s negligence, 29 ALR2d 963.

Necessity or emergency as defense in prosecution for driving without operator’s license or while license is suspended, 7 ALR5th 73.

Secs. 28.15.300 — 28.15.320. Miscellaneous offenses. [Repealed, § 19 ch 178 SLA 1978.]

Sec. 28.15.330. Making false statement. [Repealed, § 20 ch 241 SLA 1976.]

Secs. 28.15.340 — 28.15.360. Fees; definitions. [Repealed, § 19 ch 178 SLA 1978.]

Chapter 17. Commercial Driver Training Schools.

Administrative Code. —

For commercial driver training schools, see 2 AAC 91.

Sec. 28.17.010. Regulatory and enforcement duty of commissioner of public safety. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.17.011. License required.

A person may not operate a commercial driver training school or act as an instructor of a commercial driver training school unless licensed by the department as provided in this chapter.

History. (§ 4 ch 241 SLA 1976)

Administrative Code. —

For driver training schools and instructors, see 2 AAC 91, art. 1.

Sec. 28.17.020. Driver training school licenses. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.17.021. Exemptions.

A driver education course or training that is approved by the department or the Department of Education and Early Development with the concurrence of the department, or is taught at an accredited college or university, is exempt from the provisions of this chapter, but an instructor employed by such a school or institution is exempt only to the extent that the instructor’s activities are as an agent of the school or institution.

History. (§ 4 ch 241 SLA 1976)

Revisor’s notes. —

In 1999, in this section, “Department of Education” was changed to “Department of Education and Early Development” in accordance with § 89, ch. 58, SLA 1999.

Sec. 28.17.030. Instructor licenses. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.17.031. Issuance and expiration of licenses; fees.

  1. The department shall issue a school or instructor license to an applicant who has complied with the provisions of this chapter and regulations adopted under this chapter.  All licenses issued under this section expire on the last day of each calendar year.
  2. Every application for an original or renewed school license must be accompanied by a fee of $25, and each application for an original or renewed instructor license must be accompanied by a fee of $5. Fees specified in this section may not be refunded if a license is refused, suspended, or revoked.
  3. The department shall require an applicant for a license under this chapter to submit the applicant’s fingerprints and the fees required by the Department of Public Safety under AS 12.62.160 for criminal justice information and a national criminal history record check. The department shall submit the fingerprints and fees to the Department of Public Safety for a report of criminal justice information under AS 12.62 and a national criminal history record check under AS 12.62.400 .

History. (§ 4 ch 241 SLA 1976; am § 18 ch 79 SLA 2004)

Administrative Code. —

For driver training schools and instructors, see 2 AAC 91, art. 1.

Sec. 28.17.040. License renewal and fees. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.17.041. Regulations.

  1. The commissioner of administration shall adopt regulations necessary to carry out the provisions of this chapter, and may call upon the commissioner of education and early development for assistance in formulating these regulations.
  2. Regulations adopted under this section must state the requirements for a school license, including requirements concerning manner and form of application, location, place of business, facilities, records, equipment, courses and standards of instruction, instructors, previous records of the school and instructors, financial statements, schedule of fees and charges, character and reputation of the operators and instructors, vehicle equipment and condition, inspection during reasonable business hours, insurance or bonds in the sum and with the provisions the commissioner considers necessary, and other matters the commissioner may prescribe for the protection of the public. Regulations regarding courses and standards of instruction for
    1. noncommercial motor vehicles must be consistent with standards adopted by the commissioner; and
    2. commercial motor vehicles must meet or exceed the model curriculum for training tractor-trailer drivers adopted by the United States Department of Transportation.
  3. Regulations adopted under this section must state the requirements for an instructor’s license, including requirements concerning manner and form of application, moral character, reputation, physical condition, knowledge of the courses of instruction and traffic laws and safety principles and practices, driving record, driving ability, previous personal and employment record, and other matters the commissioner may prescribe for the protection of the public.

History. (§ 4 ch 241 SLA 1976; am § 10 ch 6 FSSLA 1996; am E.O. No. 99 § 47 (1997))

Revisor’s notes. —

In 1999, “commissioner of education” was changed to “commissioner of education and early development” in (a) of this section in accordance with § 89, ch. 58, SLA 1999.

Administrative Code. —

For driver training schools and instructors, see 2 AAC 91, art. 1.

For definitions, see 2 AAC 91, art. 2.

Sec. 28.17.050. License suspension or revocation. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.17.051. Refusal, suspension, or revocation of license.

  1. The department may refuse to issue or renew or may suspend or revoke a license issued under this chapter when it finds that the applicant or licensee has violated or failed to comply with a provision of this chapter or a regulation adopted under this chapter.
  2. A suspension, revocation, or denial of a license under this chapter is subject to the notice and hearing requirements of AS 28.05.131 and 28.05.141 .
  3. A suspended or revoked license shall be returned immediately to the department by the licensee.

History. (§ 4 ch 241 SLA 1976; am § 2 ch 140 SLA 1977; am § 42 ch 21 SLA 1985)

Administrative Code. —

For driver training schools and instructors, see 2 AAC 91, art. 1.

Sec. 28.17.060. Exemptions. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.17.061. Civil penalty.

  1. If the department determines a person has violated a provision of this chapter, or a regulation adopted under this chapter, the department may impose a civil penalty not to exceed $5,000. In determining the amount of a civil penalty imposed under this section, the department shall consider the economic benefit resulting from the violation, the person’s prior violations under this section, and the seriousness of the violation.
  2. Before imposing a civil penalty under this section, the department shall provide notice of the civil penalty and an opportunity to request an administrative hearing. If a hearing is not requested within 30 days after notice of the civil penalty is received, the right to a hearing is considered waived. If a hearing is requested, the hearing shall be conducted as provided under AS 28.05.141 .
  3. If a person fails to pay a civil penalty imposed under this section within 30 days after the civil penalty is imposed by the department, or if the civil penalty is stayed pending an appeal, within 10 days after the court enters a final judgment in favor of the department, the department shall notify the attorney general. The attorney general may commence a civil action to recover the amount of the civil penalty.

History. (§ 4 ch 241 SLA 1976; am § 11 ch 6 FSSLA 1996)

Sec. 28.17.070. Penalties. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.17.071. Definitions.

In this chapter and regulations adopted under this chapter, unless the context otherwise requires,

  1. “commercial driver training school” or “school” means a business or nonprofit enterprise for the education and training of persons, either practically or theoretically, or both, in the driving of motor vehicles, for which a consideration or tuition is charged;
  2. “instructor” means a person, whether acting personally as operator of a school or acting for a school for compensation, who teaches, conducts classes of, gives demonstrations to, or supervises practice of, persons in the driving of motor vehicles.

History. (§ 4 ch 241 SLA 1976)

Sec. 28.17.080. Definitions. [Repealed, § 20 ch 241 SLA 1976.]

Chapter 20. Motor Vehicle Safety Responsibility Act.

Cross references. —

For provision allowing automobile insurers to exclude coverage that may otherwise be required by this chapter “for any loss or injury that occurs while a driver is logged onto the digital network of a transportation network company or while a driver provides a prearranged ride,” see AS 21.96.018 .

Notes to Decisions

Cited in

Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982); State Farm Fire & Cas. Co. v. Chung, 778 P.2d 586 (Alaska 1989).

Collateral references. —

7 Am. Jur. 2d, Automobile Insurance, § 26 et seq.

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 167 et seq.

No-Fault and Uninsured Motorist Automobile Insurance (Matthew Bender).

60 C.J.S., Motor Vehicles, § 379 et seq.

Constitutionality of statute which makes proof of financial responsibility condition of granting, or of nonsuspension of, automobile registration license, or driver’s license, 115 ALR 1376, 35 ALR2d 1011.

Liability of insurer, under compulsory statutory vehicle liability policy, to injured third persons, notwithstanding insured’s failure to comply with policy conditions, as measured by policy limits or by limits of financial responsibility act, 29 ALR2d 817.

Application of financial responsibility or compulsory insurance laws to governmental vehicles or their operators, 87 ALR2d 1224.

Policy provision extending coverage to comply with financial responsibility act as applicable to insured’s first accident, 8 ALR3d 388.

Cancellation of compulsory or “financial responsibility” automobile insurance, 44 ALR4th 13.

Sec. 28.20.010. Declaration of purpose.

The legislature is concerned over the rising toll of motor vehicle accidents and the suffering and loss inflicted by them. The legislature determines that it is a matter of grave concern that motorists be financially responsible for their negligent acts so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted upon them. The legislature finds and declares that the public interest can best be served by the requirements that the operator of a motor vehicle involved in an accident respond for damages and show proof of financial ability to respond for damages in future accidents as a prerequisite to the person’s exercise of the privilege of operating a motor vehicle in the state.

History. (§ 2 ch 163 SLA 1959)

Notes to Decisions

Relation to Mandatory Automobile Insurance Act. —

The Motor Vehicle Safety Responsibility Act and the Mandatory Automobile Insurance Act coexist as components of the Alaska Uniform Vehicle Code and the latter supplements, but does not supplant, the former. Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

The language of AS 21.89.020(c), pertaining to uninsured or underinsured motorist coverage, means that all policies in the state must conform to the content requirements of the Motor Vehicle Safety Responsibility Act, and that if the content requirements of the Mandatory Automobile Insurance Act are broader than those of the former, those requirements must also be complied with as to persons covered by the latter. Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

The internal structure of the Motor Vehicle Safety Responsibility Act was examined in considerable detail in Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967); Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Due process. —

Motorcyclist was not entitled to criminal due process for suspension of his driver’s license for failure to carry insurance. While the license is a property interest, the failure to carry the required insurance is directly related to unfitness to drive, and suspension is a remedial action. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Liberal construction of omnibus clause. —

An omnibus clause in an automobile insurance policy should be liberally construed so as to effectuate its basic intent, which is to protect the public from damages caused by vehicles operated by persons other than the named insured. Johnson v. United States Fid. & Guar. Co., 601 P.2d 260 (Alaska 1979).

Legality of standard cancellation clause. —

The standard cancellation clause in a motor vehicle insurance policy does not contravene the Alaska Motor Vehicle Safety Responsibility Act and is not against public policy. Hartsfield v. Carolina Cas. Ins. Co., 411 P.2d 396 (Alaska 1966).

Direct action by tortfeasor against liability insurer. —

No direct action may be maintained by a tortfeasor against a liability insurer merely because the legislature has changed Alaska’s automobile insurance law from a system which encourages the acquisition of liability insurance to one which requires such insurance. Evron v. Gilo, 777 P.2d 182 (Alaska 1989).

Applied in

Hughes v. Harrelson, 844 P.2d 1106 (Alaska 1993).

Quoted in

Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Cited in

Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745 (Alaska 1992); Peter v. Schumacher Enters., 22 P.3d 481 (Alaska 2001); Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228 (Alaska 2007).

Sec. 28.20.020. Administration.

  1. The department shall administer and enforce this chapter and may adopt regulations necessary for its administration.
  2. The department shall receive and consider any pertinent information upon request of persons aggrieved by its orders or acts under this chapter.
  3. The department shall prescribe and provide suitable forms requisite or considered necessary to carry out this chapter.

History. (§ 4 ch 163 SLA 1959)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Notes to Decisions

Cited in

Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Sec. 28.20.030. Court review. [Repealed, § 4 ch 140 SLA 1977.]

Sec. 28.20.040. Department to furnish operating record. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.20.050. Application of chapter.

  1. The provisions of this chapter requiring deposit of security and suspension for failure to deposit security apply to the driver and owner of a vehicle subject to registration under the laws of this state that is involved in any manner in an accident in this state resulting in bodily injury to or death of a person or damage to the property of any one person exceeding $501.
  2. Not less than 20 days after receipt of a report of such accident, the department shall determine the amount of security that it considers sufficient to satisfy any judgments for damages resulting from the accident that may be recovered against each driver or owner.  The determination may not be made with respect to a driver or owner who is exempt from the requirements as to security and suspension.
  3. The department shall determine the amount of security deposit required upon the basis of the reports or other information submitted.  If a person involved in an accident as described in this chapter fails to make a report or submit information indicating the extent of the person’s injuries or the damage to the person’s property within 30 days after the accident, and the department does not have sufficient information on which to base an evaluation of injuries or damage, then the department after reasonable notice to the person, if it is possible to give notice, otherwise without notice, may not require a deposit of security for the benefit or protection of the person.
  4. Within 30 days after receipt of report of an accident and upon determining the amount of security to be required of any person involved in the accident or to be required of the owner of any vehicle involved in the accident, the department shall give to every person written notice of the amount of security required to be deposited by the person and stating that an order of suspension will be made upon the expiration of 10 days after the notice is sent unless within that time security is deposited as required.  A license may not be suspended unless the licensee is afforded a hearing by the department at which it is determined that there is a reasonable possibility of a judgment being rendered holding the licensee liable.
  5. A peace officer investigating an accident that results in bodily injury to or the death of a person or damage to the property of a person exceeding $501 shall inform persons involved in the accident in writing of the requirements of this chapter as they apply to suspension of an operator’s license or driving privileges.

History. (§ 7 ch 163 SLA 1959; am § 1 ch 127 SLA 1972; am § 11 ch 144 SLA 1977; am § 3 ch 78 SLA 1982; am §§ 12, 13 ch 6 FSSLA 1996)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Notes to Decisions

This section is directory, not mandatory. Municipality of Anchorage v. Brown, 626 P.2d 116 (Alaska Ct. App. 1981).

One method of proof of financial responsibility is by way of a certificate of liability insurance (AS 28.20.410 ) certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. Hartsfield v. Carolina Casualty Ins. Co., 451 P.2d 576 (Alaska 1969).

Failure to give notice within 30 days, as required by this section, does not preclude a subsequent suspension pursuant to this section. Municipality of Anchorage v. Brown, 626 P.2d 116 (Alaska Ct. App. 1981).

Quoted in

Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967); Alexander v. State, 712 P.2d 416 (Alaska Ct. App. 1986); Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Cited in

Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972); Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982); Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Sec. 28.20.060. Exceptions to requirement of security.

The requirements as to security and suspension in this chapter do not apply to

  1. the driver or owner if the owner had in effect at the time of the accident an automobile liability policy or bond with respect to the vehicle involved in the accident, except that a driver is not exempt if at the time of the accident the vehicle was operated without the owner’s express or implied permission;
  2. the driver who is not the owner if there was in effect at the time of the accident an automobile liability policy or bond with respect to the person’s driving of vehicles not owned by the driver;
  3. a driver or owner whose liability for damages resulting from the accident is, in the judgment of the department, covered by another form of liability insurance policy or bond;
  4. a person qualifying as a self-insurer under AS 28.20.400 or to a person operating a vehicle for a self-insurer;
  5. the driver or owner of a vehicle involved in an accident in which no injury or damage was caused to the person or property of anyone other than the driver or owner;
  6. the driver or owner of a vehicle that at the time of the accident was parked, unless the vehicle was parked at a place where parking was at the time of the accident prohibited by a law or ordinance;
  7. the owner of a vehicle if at the time of the accident the vehicle was operated without the owner’s express or implied permission or was parked by a person who had been operating the vehicle without the owner’s permission;
  8. the owner of a vehicle or the driver of a vehicle operating it with permission if at the time of the accident the vehicle was owned or leased to the United States, this state or a political subdivision of this state or a municipality of the state; or
  9. the driver or the owner of a vehicle if at the time of the accident the vehicle was operated by or under the direction of a police officer who, in the performance of official duties, assumed custody of the vehicle.

History. (§ 8 ch 163 SLA 1959)

Revisor’s notes. —

A portion of paragraph (7) of this section was rewritten in 1984 to correct an error made in the 1962 codification and conform the language of the paragraph to the 1959 enactment.

Opinions of attorney general. —

For a motor vehicle operator to be exempt from the security and suspension provisions of the Motor Vehicle Safety Responsibility Act, an automobile owned by a resident and registered in Alaska must be insured by a company authorized to do business in Alaska. 1962 Alas. Op. Att'y Gen. No. 2.

To be in effect at the time of the accident, the liability policy of a nonresident driver-owner of a vehicle registered in Alaska must have been issued prior to the accident by a company authorized to do business in Alaska. Otherwise, the requirements of the Motor Vehicle Safety Responsibility Act as to security and suspension shall apply. 1962 Alas. Op. Att'y Gen. No. 2.

If the vehicle is registered in Alaska, the only policies that are effective with respect to it are those issued by an insurance company authorized to do business in Alaska. Any other policy is not effective regardless of execution of a power of attorney. 1962 Alas. Op. Att'y Gen. No. 2.

In order to be excepted from the requirements as to security and suspension in the Motor Vehicle Safety Responsibility Act, an unauthorized insurer’s power of attorney must be on file with the insurance commissioner prior to the accident. 1962 Alas. Op. Att'y Gen. No. 2.

Notes to Decisions

Reliance by insurer on policy defenses. —

A policy of automobile liability insurance, voluntarily carried by an operator who has never been required to furnish proof of financial responsibility under the provisions of the Safety Responsibility Act, and not certified as such proof, is not required by such law and the insurer is not precluded from relying on policy defenses. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

The fact that a liability policy contains a condition relating to financial responsibility laws does not automatically result in the incorporation of AS 28.20.440(f)(1) ’s absolute liability provisions into the policy. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Sec. 28.20.070. Requirements as to policy or bond.

  1. A policy or bond is not effective under AS 28.20.060 unless it is issued by an insurance company or surety company authorized to do business in this state, except as provided in (b) of this section, and if the accident resulted in bodily injury or death, unless the policy or bond is subject to a limit, exclusive of interest and costs, of not less than $50,000 because of bodily injury to or death of one person in any one accident and, subject to the same limit for one person, to a limit of not less than $100,000 because of bodily injury to or death of two or more persons in any one accident, and if the accident has resulted in injury to, or destruction of, property to a limit of not less than $25,000 because of injury to or destruction of property of others in any one accident.
  2. A policy or bond is not effective under AS 28.20.060 with respect to a vehicle not registered in this state or a vehicle that was registered in another jurisdiction at the effective date of the policy or bond or the most recent renewal of it, unless the insurance or surety company issuing the policy or bond is authorized to do business in this state, or if the company is not authorized to do business in this state, unless it executes a power of attorney authorizing the director of the division of insurance to accept service on its behalf of notice or process in an action upon the policy or bond arising out of the accident.
  3. The department may rely upon the information in an accident report as to the existence of insurance or a bond unless the department has reason to believe that the information is erroneous.

History. (§ 9 ch 163 SLA 1959; am § 1 ch 146 SLA 1966; am § 1 ch 202 SLA 1975; am § 12 ch 144 SLA 1977; am § 8 ch 70 SLA 1984)

Opinions of attorney general. —

If the vehicle is not registered in Alaska, the fact that the policy is renewed while the vehicle is in Alaska does not mean that a second power of attorney must be executed by the unauthorized insurance company unless the first power of attorney has expired or been revoked. 1962 Alas. Op. Att'y Gen. No. 2.

Notes to Decisions

Quoted in

Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Sec. 28.20.080. Form and amount of security.

  1. The security required by this chapter must be in the form and amount the department requires, but in no case in excess of the limits specified in AS 28.20.070 for the acceptable limits of a policy or bond.
  2. Every depositor of security shall designate in writing the person in whose name the deposit is made and may at any time change the designation, but a single deposit of security applies only on behalf of a person required to furnish security because of the same accident.

History. (§ 10 ch 163 SLA 1959)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Sec. 28.20.090. Suspension for failure to deposit security.

  1. If a person required to deposit security under this chapter fails to deposit security within 10 days after the department sends notice, the department shall suspend
    1. the license of each driver involved in the accident;
    2. the privilege of operating a vehicle subject to registration if the driver is a nonresident;
    3. the privilege of the owner to operate or permit the operation within this state of a vehicle subject to registration if the owner is a nonresident.
  2. Suspensions shall be made in respect to persons required by the department to deposit security who fail to deposit such security, except as otherwise provided under succeeding sections of this chapter.

History. (§ 11 ch 163 SLA 1959)

Notes to Decisions

Quoted in

Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Cited in

Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982); Smith v. State, 756 P.2d 913 (Alaska Ct. App. 1988).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 170.

60 C.J.S., Motor Vehicles, § 379 et seq.

Sec. 28.20.100. Release from liability.

  1. A person is relieved from the requirement for deposit of security for the benefit or protection of another person injured or damaged in the accident if the person is released from liability by the other person.
  2. A covenant not to sue relieves the parties to it as to each other from the security requirements of this chapter.
  3. If the department evaluates the injuries or damage to a minor in an amount not more than $501, the department may accept, for the purposes of this chapter only, evidence of a release from liability executed by a parent or legal guardian on behalf of the minor without court approval.

History. (§ 12 ch 163 SLA 1959; am § 13 ch 144 SLA 1977; am § 14 ch 6 FSSLA 1996)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Sec. 28.20.110. Adjudication of nonliability.

A person is relieved from the requirement for deposit of security for a claim for injury or damage arising out of the accident if the person is finally adjudicated not to be liable for the claim.

History. (§ 13 ch 163 SLA 1959)

Sec. 28.20.120. Agreements for payment of damages.

  1. Two or more persons involved in or affected by an accident as described in AS 28.20.050 may at any time enter into a written agreement for the payment of an agreed amount with respect to their claims because of bodily injury, death, or property damage arising from the accident.  The agreement may provide for payment in installments.  The parties may file a signed copy of the agreement with the department.
  2. If proof of financial responsibility is provided and to the extent provided by the written agreement filed with it, the department may not require the deposit of security and shall terminate a previous order of suspension, or if security was deposited, the department shall immediately return the security to the depositor or the personal representative of the depositor.
  3. If there is a default in a payment under the agreement, upon notice of default the department shall take action suspending the license of the person in default as is appropriate in case of failure of the person to deposit security when required under this chapter.
  4. The suspension remains in effect and the license may not be restored until
    1. security is deposited as required under this chapter in the amount the department determines; or
    2. when, following default and suspension, the person in default pays the balance of the agreed amount; or
    3. one year elapses following the effective date of the suspension and evidence satisfactory to the department is filed with it that during the period no action at law upon the agreement is pending.

History. (§ 14 ch 163 SLA 1959; am § 4 ch 78 SLA 1982)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Sec. 28.20.130. Payment upon judgment.

The payment of a judgment arising out of an accident, or the payment upon judgment of an amount equal to the maximum amount that could be required for deposit under this chapter, for the purposes of this chapter, releases the judgment debtor from the liability evidenced by the judgment.

History. (§ 15 ch 163 SLA 1959; am § 12 ch 2 SLA 1964)

Sec. 28.20.140. Termination of security requirement.

If satisfied as to the existence of a fact that under AS 28.20.100 28.20.130 entitles a person to be relieved from the security requirements, the department may not require the deposit of security and shall terminate a previous order of suspension in respect to the person, and shall immediately return the deposit to the person or the personal representative of the person.

History. (§ 16 ch 163 SLA 1959)

Sec. 28.20.150. Duration of suspension.

  1. Unless a suspension is terminated under other provisions of this chapter, an order of suspension by the department remains in effect until terminated and a license may not be renewed or issued to a person whose license is suspended until proof of financial responsibility for the future is provided and
    1. the person deposits or there is deposited on behalf of the person the security required under this chapter; or
    2. three years elapse following the date of suspension.
  2. [Repealed, § 9 ch 78 SLA 1982.]

History. (§ 17 ch 163 SLA 1959; am §§ 5, 9 ch 78 SLA 1982)

Sec. 28.20.160. Application to nonresidents, unlicensed drivers, unregistered vehicles, and accidents in other states.

  1. If a driver or owner of a vehicle subject to registration under the laws of this state involved in an accident in this state does not have a license or registration in this state, then the driver may not be licensed, nor may the owner register a vehicle in this state until the person complies with the requirements of this chapter to the extent necessary if, at the time of the accident, the person had held a license or been the owner of a vehicle registered in this state.
  2. When a nonresident’s operating privilege is suspended under AS 28.20.090 the department shall send a certified copy of the record of the action to the official in charge of the issuance of licenses and registration certificates in the state in which the nonresident resides, if the law of the other state provides for action similar to that provided for in (c) of this section.
  3. Upon receiving certification that the operating privilege of a resident of this state has been suspended or revoked in another state under a law providing for its suspension or revocation for failure to deposit security for the payment of judgments arising out of an accident under circumstances that would require the department to suspend a nonresident’s operating privilege if the accident had occurred in this state, the department shall suspend the license of the resident.  The suspension continues until the resident furnishes evidence of compliance with the law of the other state relating to the deposit of security.

History. (§ 18 ch 163 SLA 1959)

Notes to Decisions

Effect on unlicensed drivers. —

This section and AS 28.20.250 provide simply that the unlicensed driver subject to those laws “may not be licensed” until certain conditions are met; they do not use the language of “suspending” or refer to any “privilege” the unlicensed driver may have had. Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982).

Sec. 28.20.170. Authority of department to decrease amount of security.

The department may reduce the amount of security ordered within six months after the date of the accident if in its judgment the amount is excessive. If the security originally ordered is on deposit, the excess deposit over the reduced amount ordered shall be returned immediately to the depositor or the personal representative of the depositor.

History. (§ 19 ch 163 SLA 1959)

Sec. 28.20.180. Correction of action of department.

If the department takes action or fails to take action under this chapter due to erroneous information or no information, upon receiving correct information within one year after the date of an accident the department shall take appropriate action to carry out the purposes and effect of this chapter. However, this section does not require the department to re-evaluate the amount of a deposit required.

History. (§ 20 ch 163 SLA 1959)

Sec. 28.20.190. Custody of security.

The department shall place security deposited with it in the custody of the Department of Revenue.

History. (§ 21 ch 163 SLA 1959)

Sec. 28.20.200. Disposition of security.

  1. The security deposited is available only for
    1. the payment of a settlement agreement covering a claim arising out of the accident upon instruction of the person who made the deposit, or
    2. the payment of a judgment given against the person required to make the deposit for damages arising out of the accident in an action at law begun not later than one year after the deposit of security, or within one year after the date of deposit of security following failure to make payments under an agreement to pay.
  2. Every distribution of funds from a security deposit is subject to the limits of the department’s evaluation on behalf of a claimant.

History. (§ 22 ch 163 SLA 1959)

Sec. 28.20.210. Return of deposit.

  1. Upon the expiration of two years from the date of deposit of security, the security remaining on deposit shall be returned to the person who made the deposit or the person’s personal representative if an affidavit or other evidence satisfactory to the department is filed with it showing that
    1. no action for damages arising out of the accident for which deposit was made is pending against the person on whose behalf the deposit was made, and
    2. there does not exist any unpaid judgment against the person in an action.
  2. This section does not limit the return of a deposit of security under any other provision of this chapter authorizing return.

History. (§ 23 ch 163 SLA 1959; am § 6 ch 78 SLA 1982)

Sec. 28.20.220. Matters not to be evidence in civil suits.

The report required after an accident, the action taken by the department under this chapter, the findings, if any, of the department upon which its action is based, and the security filed may not be referred to, and may not be evidence of the negligence or due care of either party, at the trial of an action to recover damages.

History. (§ 24 ch 163 SLA 1959)

Notes to Decisions

Cited in

Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Sec. 28.20.230. Proof of financial responsibility for the future.

  1. The provisions of this chapter requiring the deposit of proof of financial responsibility for the future apply to persons who are convicted of or forfeit bail for certain offenses under motor vehicle laws or who, by ownership or operation of a vehicle of a type subject to registration under AS 28.10, are involved in an accident in this state that results in bodily injury to or death of a person or damage to the property of any one person exceeding $501.
  2. [Repealed, § 30 ch 108 SLA 1989.]
  3. Notwithstanding any other provisions of this chapter, a person convicted of driving under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.35.030 , or convicted of refusal to submit to a chemical test of breath under AS 28.35.032 , shall maintain proof of financial responsibility for the future for (1) five years if the person has not been previously convicted; (2) 10 years if the person has been previously convicted once; (3) 20 years if the person has been previously convicted twice; (4) for as long as the person is licensed to drive under AS 28.15 if the person has been previously convicted three or more times. In this subsection, “previously convicted” has the meaning given in AS 28.35.030 .

History. (§ 25 ch 163 SLA 1959; am § 59 ch 69 SLA 1970; am § 2 ch 202 SLA 1975; am § 14 ch 144 SLA 1977; am § 9 ch 70 SLA 1984; am § 30 ch 108 SLA 1989; am § 15 ch 6 FSSLA 1996; am § 19 ch 60 SLA 2002)

Cross references. —

For provisions requiring proof of financial responsibility for the future as a condition for reinstating a revoked or suspended driver’s license, see AS 28.15.255 . For mandatory motor vehicle insurance, see AS 28.22.

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Notes to Decisions

A person convicted of operating a motor vehicle while under the influence of intoxicating liquor is required to furnish proof of his financial responsibility for the future. Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Reliance by insurer on policy defenses. —

A policy of automobile liability insurance, voluntarily carried by an operator who has never been required to furnish proof of financial responsibility under the provisions of the Safety Responsibility Act, and not certified as such proof, is not required by such law, and the insurer is not precluded from relying on policy defenses. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Cited in

Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Sec. 28.20.240. Proof required when driving privilege is restricted.

Whenever under a law of this state the license of a person is suspended, revoked, limited under AS 28.15.201 , or canceled for any reason, the department may not issue to that person a new or renewal of license until permitted to do so under the motor vehicle laws of this state. A period of suspension, revocation, or cancellation continues until proof of financial responsibility for the future is provided. Upon expiration of a period of limitation, the license remains revoked until proof of financial responsibility for the future is provided.

History. (§ 26 ch 163 SLA 1959; am § 7 ch 78 SLA 1982; am § 12 ch 77 SLA 1983)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Notes to Decisions

A person convicted of operating a motor vehicle while under the influence of intoxicating liquor is required to furnish proof of his financial responsibility for the future. Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Cited in

Manderson v. State, 655 P.2d 1320 (Alaska Ct. App. 1983).

Sec. 28.20.250. Action in respect to unlicensed person.

  1. If a person does not have a license, but by final order or judgment is convicted of, or forfeits bail or collateral deposited to secure an appearance for trial for an offense requiring the suspension or revocation of license, or for driving a motor vehicle upon the highways without being licensed to do so, or for driving an unregistered vehicle upon the highways, a license may not be issued to the person unless the person gives and thereafter maintains proof of financial responsibility for the future.
  2. Whenever the department suspends or revokes a nonresident’s operating privilege for conviction or forfeiture of bail, the privilege remains suspended or revoked unless the person has previously given or immediately gives proof of financial responsibility for the future.

History. (§ 27 ch 163 SLA 1959)

Notes to Decisions

Effect of section. —

AS 28.20.160 and this section provide simply that the unlicensed driver subject to those laws “may not be licensed” until certain conditions are met; they do not use the language of “suspending” or refer to any “privilege” the unlicensed driver may have had. Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982).

Sec. 28.20.260. When proof required after accidents.

  1. Upon receipt by the department of the report of an accident resulting in bodily injury to or death of a person, or damage to the property of any one person exceeding $501, the department shall suspend the license of the driver of a motor vehicle involved in the accident unless the driver or owner
    1. has previously furnished or immediately furnishes security required by this chapter, or is excepted from furnishing security under AS 28.20.060 ; and
    2. maintains proof of financial responsibility for three years following the accident.
  2. This section does not apply to an owner or operator with respect to an accident in which a judgment in the owner’s or operator’s favor is given on a cause of action arising out of the accident that establishes the owner’s or operator’s freedom from fault.

History. (§ 28 ch 163 SLA 1959; am § 15 ch 144 SLA 1977; am § 16 ch 6 FSSLA 1996)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Notes to Decisions

Distinction between security and proof of financial responsibility. —

Security, i.e., the furnishing of collateral of one type or another to cover liability of the person secured for damages in the accident which brought the law into play, is retrospective in operation. Proof of financial responsibility is prospective in operation and refers to evidence of ability to meet possible judgments arising out of the future ownership, maintenance, or operation of motor vehicles. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

No law of Alaska requires a driver or owner to carry automobile liability insurance as a prerequisite to his owning or operating a motor vehicle in this state. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Until a driver or owner has an accident, a person can own and operate a motor vehicle without having first obtained liability insurance. It is only after an accident has occurred that the provisions pertaining to deposit of security and proof of financial responsibility for the future come into play. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Applied in

Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Sec. 28.20.270. Suspension for nonpayment of judgments.

Upon receipt of a certified copy of a judgment and a certificate of facts relative to the judgment, the department shall immediately suspend the license or nonresident’s operating privilege of a person against whom the judgment is given except as otherwise provided in this chapter.

History. (§ 29 ch 163 SLA 1959)

Notes to Decisions

Cited in

Smith v. State, 756 P.2d 913 (Alaska Ct. App. 1988).

Sec. 28.20.280. When courts to report nonpayment of judgments.

If a person fails within 30 days to satisfy a judgment arising out of a motor vehicle accident, the clerk of the court, or the judge if there is no clerk, in which the judgment is given, shall forward to the department a certified copy of the judgment and a certificate of facts relative to the judgment.

History. (§ 30 ch 163 SLA 1959)

Sec. 28.20.290. Further action with respect to nonresidents.

If the defendant named in a certified copy of a judgment reported to the department is a nonresident, the department shall send a certified copy of the judgment to the official in charge of the issuance of licenses and registrations of the state of which the defendant is a resident.

History. (§ 31 ch 163 SLA 1959)

Sec. 28.20.300. Exception for government vehicles.

AS 28.20.260 and 28.20.270 do not apply to an accident caused by the ownership or operation, with permission, of a vehicle owned or leased to the United States, this state, or a political subdivision or municipality of this state.

History. (§ 32 ch 163 SLA 1959)

Sec. 28.20.310. Exception when consent granted by judgment creditor.

If the judgment creditor consents in writing in a form prescribed by the department to the issuance of a license or nonresident’s operating privilege to the judgment debtor, the department may allow it for six months from the date of such consent and thereafter until the consent is revoked in writing, if the judgment debtor furnishes proof of financial responsibility notwithstanding default in the payment of judgment, or of an installment of the judgment prescribed in AS 28.20.270 .

History. (§ 33 ch 163 SLA 1959)

Sec. 28.20.320. Exceptions when insurer liable.

A license or nonresident’s operating privilege may not be suspended under this chapter if the department finds that an insurer is obligated to pay the judgment upon which suspension is based at least to the extent and for the amounts required in this chapter, but has not paid the judgment for any reason. A finding by the department that an insurer is obligated to pay a judgment is not binding upon the insurer and has no legal effect except for the purpose of administering this section. If in a judicial proceeding it is determined by a final judgment, decree, or order that an insurer is not obligated to pay a judgment, the department, notwithstanding any contrary finding made by it, shall immediately suspend the license or nonresident’s operating privilege of a person against whom the judgment is given, as provided in AS 28.20.270 .

History. (§ 34 ch 163 SLA 1959)

Notes to Decisions

Quoted in

Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Sec. 28.20.325. Exemption for certain employee-drivers; applicability to employer.

If the driver at the time of an accident was driving, in the course and scope of employment, a vehicle owned, operated, or leased by the driver’s employer, the security deposit, proof of future responsibility, and suspension provisions of this chapter apply to the employer and to the vehicles owned by the employer or registered under the employer’s name and do not apply to the driver.

History. (§ 1 ch 25 SLA 1966)

Sec. 28.20.330. Suspension to continue until judgments paid and proof given.

  1. If there is an unsatisfied judgment against a person requiring suspension under AS 28.20.270 , the person’s license or nonresident’s operating privilege shall remain suspended and shall not be renewed, nor shall a license or registration be issued in the name of the person, including a person not previously licensed, until the judgment is stayed or satisfied and until the person gives proof of financial responsibility subject to the exceptions in AS 28.20.310 , 28.20.320 , and 28.20.370 .
  2. The proof required by (a) of this section shall be maintained during the period the person has a license or nonresident’s operating privilege.

History. (§ 35 ch 163 SLA 1959)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Notes to Decisions

Cited in

Smith v. State, 756 P.2d 913 (Alaska Ct. App. 1988).

Sec. 28.20.340. Driving while license cancelled, suspended, or revoked.

Upon receiving a record of the conviction of a person for driving a vehicle while the person’s license was suspended, the department shall immediately suspend the registration of every vehicle registered in the person’s name until the person gives proof of financial responsibility for the future for each vehicle registered in the person’s name.

History. (§ 36 ch 163 SLA 1959)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Sec. 28.20.350. Discharge in bankruptcy. [Repealed, § 42 ch 53 SLA 1973.]

Sec. 28.20.360. Payments sufficient to satisfy requirements.

  1. In this chapter, a judgment is satisfied when
    1. $50,000 is credited upon a judgment given in excess of that amount because of bodily injury to or death of one person as the result of any one accident;
    2. subject to the limit of $50,000 because of bodily injury to or death of one person, the sum of $100,000 is credited upon a judgment given in excess of that amount because of bodily injury to or death of two or more persons as the result of any one accident; or
    3. $25,000 is credited upon a judgment given in excess of that amount because of injury to or destruction of property of others as a result of any one accident.
  2. However, payments made in settlement of a claim because of bodily injury, death, or property damage arising from the accident shall be credited in reduction of the amounts provided for in this section.

History. (§ 38 ch 163 SLA 1959; am §§ 60, 61 ch 69 SLA 1970; am § 3 ch 202 SLA 1975; am § 10 ch 70 SLA 1984)

Sec. 28.20.370. Installment payment of judgments; default.

  1. A judgment debtor upon due notice to the judgment creditor may apply to the court in which such judgment was rendered for the privilege of paying the judgment in installments and the court, without prejudice at any other legal remedy, may order and fix the amount and time of payment of the installments.
  2. The department may not suspend a license or nonresident’s operating privilege, and shall restore a license or nonresident’s operating privilege suspended following nonpayment of a judgment, when the judgment debtor gives proof of financial responsibility and obtains an order permitting the payment of the judgment in installments.
  3. If the judgment debtor fails to pay an installment specified by the court order, upon notice of default, the department shall immediately suspend the license or nonresident’s operating privilege of the judgment debtor until the judgment is satisfied as provided in this chapter.

History. (§ 39 ch 163 SLA 1959)

Sec. 28.20.380. Registration and operator’s rights limited by extent of proof.

  1. When a certificate is filed showing that a policy is issued covering a motor vehicle owned by the insured, but not insuring the person when operating a motor vehicle not owned by the person, the restriction may be removed upon the filing of a certificate showing an operator’s policy issued to the person.
  2. If the department receives evidence of the violation of the restriction on the license, it may suspend the license until a certificate is filed showing an operator’s policy issued to the holder of the license.

History. (§ 40 ch 163 SLA 1959)

Sec. 28.20.390. Proof by persons who do not own a vehicle.

Proof of financial responsibility for a person who is not the owner of a vehicle may be given by filing

  1. a certificate of insurance as provided in AS 28.20.410 or 28.20.420 ;
  2. a bond as provided in AS 28.20.470 ; or
  3. a certificate of self-insurance as provided in AS 28.20.400 , supplemented by an agreement by the self-insurer that, for accidents occurring while the certificate is in force, the self-insurer will pay the same amount that an insurer would be obligated to pay under an owner’s motor vehicle liability policy if it had issued a policy to the self-insurer.

History. (§ 41 ch 163 SLA 1959; am § 15 ch 70 SLA 1984)

Notes to Decisions

This section provides alternative methods of giving proof of financial responsibility for the future for those who do not own a vehicle. Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Sec. 28.20.400. Self-insurers.

  1. A person in whose name more than 25 vehicles are registered in this state may qualify as a self-insurer by obtaining a certificate of self-insurance issued by the department as provided in (b) of this section. A person in whose name 25 or fewer vehicles are registered qualifies as a self-insurer and shall be issued a certificate of self-insurance if the person provides proof satisfactory to the department that the person has and will continue to have the ability to pay a judgment for property damage, bodily injury, or both, in the amount of at least $125,000.
  2. The department may issue a certificate of self-insurance when it is satisfied that the person has and will continue to have ability to pay judgments obtained against the person.  The certificate may be issued authorizing a person to act as a self-insurer for either property damage or bodily injury, or both, or within the limits the department prescribes.
  3. Upon not less than 10 days’ notice and a hearing pursuant to the notice, the department may upon reasonable grounds cancel a certificate of self-insurance.  Failure to pay a judgment within 30 days after judgment becomes final is a reasonable ground for the cancellation of a certificate of self-insurance.

History. (§ 42 ch 163 SLA 1959; am § 27 ch 108 SLA 1989; am § 37 ch 35 SLA 2003)

Notes to Decisions

Substantial compliance with mandatory laws. —

Where a motor vehicle operator did not have liability insurance when he caused property damage exceeding $500, suspension of his driver’s license was warranted, and his personal indemnification of the parties and purchase of liability insurance soon after the accident was not substantial compliance with the mandatory insurance laws or the self-insurance statute. State v. Fernandes, 946 P.2d 1259 (Alaska 1997).

Sec. 28.20.410. Certificate of insurance as proof.

Proof of financial responsibility for the future may be furnished by filing with the department the written certificate of an insurance carrier authorized to do business in this state certifying that there is in effect a motor vehicle liability policy for the benefit of the person required to furnish proof of financial responsibility. The certificate must give the effective date of the motor vehicle liability policy, which must be the same as the effective date of the certificate, and must designate by description or appropriate reference all vehicles covered by it, unless the policy is issued to a person who is not the owner of a motor vehicle.

History. (§ 43 ch 163 SLA 1959)

Notes to Decisions

Applicability of safety responsibility acts. —

Safety responsibility acts are applicable only to those policies which are required or certified under such acts. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

The absolute liability provisions of AS 28.20.440(f)(1) are limited by AS 28.20.440(a) , which provides that such absolute liability provisions are made part of only those motor vehicle liability policies which are certified or required as proof of financial responsibility for the future. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Reliance by insurer on policy defenses. —

A policy of automobile liability insurance, voluntarily carried by an operator who has never been required to furnish proof of financial responsibility under the provisions of the Safety Responsibility Act, and not certified as such proof, is not required by such law and the insurer is not precluded from relying on policy defenses. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Denial of coverage. —

An insurer is not precluded from denying insurance coverage for vehicles which may be designated in the Form SR22 (certificate of insurance), but which are not covered by the insurance policy. National Indem. Co. v. Sherman, 777 P.2d 663 (Alaska 1989).

Quoted in

Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Stated in

Hartsfield v. Carolina Casualty Ins. Co., 451 P.2d 576 (Alaska 1969).

Sec. 28.20.420. Certificate furnished by nonresident as proof.

  1. A nonresident may give proof of financial responsibility by filing with the department a written certificate of an insurance carrier authorized to transact business in the state in which the vehicle described in the certificate is registered, or if the nonresident does not own a vehicle, then in the state in which the nonresident resides, if the certificate otherwise conforms with this chapter; the department shall accept it upon condition that the insurance carrier complies with (b) and (c) of this section.
  2. The insurance carrier shall execute a power of attorney authorizing the department to accept service on its behalf of notice or process in an action arising out of a motor vehicle accident in this state.
  3. The insurance carrier shall agree in writing that the policy shall conform with the laws of this state relating to the terms of motor vehicle liability policies issued in this state.

History. (§ 44 ch 163 SLA 1959; am § 44 ch 32 SLA 1971)

Notes to Decisions

Cited in

Johnson v. United States Fid. & Guar. Co., 601 P.2d 260 (Alaska 1979); Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Sec. 28.20.430. Default by nonresident insurer.

If an insurance carrier not authorized to transact business in this state, but qualified to furnish proof of financial responsibility in this state, defaults in an undertaking or agreement, the department may not accept as proof a certificate of the carrier whether previously filed or thereafter tendered as proof, so long as the default continues.

History. (§ 45 ch 163 SLA 1959)

Sec. 28.20.440. Motor vehicle liability policy defined; required provisions.

  1. In this chapter, “motor vehicle liability policy” means an “owner policy” or an “operator’s policy” containing an agreement or endorsement as provided in this section, or certified as provided in AS 28.20.410 or 28.20.420 as proof of financial responsibility for the future, and issued, except as otherwise provided in AS 28.20.420 , by an insurance carrier authorized to transact business in this state, to or for the benefit of the person named as insured.
  2. The owner’s policy of liability insurance must
    1. designate by description or appropriate reference all vehicles that it covers;
    2. insure the person named and every other person using the vehicle with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle within the United States or Canada, subject to limits exclusive of interest and costs, with respect to each vehicle, as follows: $50,000 because of bodily injury to or death of one person in any one accident, and, subject to the same limit for one person, $100,000 because of bodily injury to or death of two or more persons in any one accident, and $25,000 because of injury to or destruction of property of others in any one accident;
    3. contain coverage in not less than the amounts set out in (2) of this subsection for the protection of the persons insured under the policy who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury or death, or damage to or destruction of property arising out of the ownership, maintenance or use of the uninsured or underinsured motor vehicle; this coverage must comply with the provisions of AS 28.20.445 .
  3. The operator’s policy of liability insurance must insure the person named as insured against loss from the liability imposed upon the person by law for damages arising out of the use by the person of any motor vehicle not owned by the person, within the same territorial limits and subject to the same limits of liability as are required for an owner’s policy of liability insurance.
  4. The motor vehicle liability policy must state the name and address of the named insured, the coverage, the premium charges, the policy period, and the limits of liability, and must contain an agreement or an endorsement that insurance is provided in accordance with the coverage defined in this chapter for bodily injury and death or property damage, or both, and is subject to all the provisions of AS 28.20.010 28.20.640 .
  5. The motor vehicle liability policy need not insure liability under a workers’ compensation law nor liability for damage to property owned by, rented to, in charge of or transported by the insured.
  6. Every motor vehicle liability policy is subject to the following provisions but these provisions need not be contained in the policy.
    1. The liability of the insurance carrier becomes absolute whenever injury or damage covered by the policy occurs; the policy may not be cancelled or annulled as to this liability after the occurrence of the injury or damage; no statement made by the insured or on behalf of the insured and no violation of the policy defeats or voids the policy.
    2. The satisfaction by the insured of a judgment for injury or damages is not a condition precedent to the right or duty of the insurance carrier to make payment on account of injury or damage.
    3. The insurance carrier may settle a claim covered by the policy, and if settlement is made in good faith, the amount of settlement is deductible from the limits of liability specified in (b) of this section.
    4. The policy, the written application for the policy, if any, and every rider or endorsement that does not conflict with the provisions of this chapter constitute the entire contract between the parties.
  7. A policy that grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a policy and the excess or additional coverage is not subject to the provisions of this chapter. With respect to a policy that grants excess or additional coverage the term “motor vehicle liability policy” applies only to that part of the coverage that is required by this section.
  8. A motor vehicle liability policy may provide that the insured shall reimburse the insurance carrier for any payment the insurance carrier would not have been obligated to make under the terms of the policy except for the provisions of this chapter.
  9. A motor vehicle liability policy may provide for proration of the insurance with other valid and collectible insurance.
  10. The requirements for a motor vehicle liability policy may be fulfilled by the policies of one or more insurance carriers that together meet the requirements.
  11. A binder issued pending the issuance of a motor vehicle liability policy fulfills the requirements for a policy.
  12. Notwithstanding any other provisions of law, a person who resides in the same household as the person named as insured or a person who is a relative of the person named as insured shall be excluded from coverage under a motor vehicle liability policy if the person named as insured requests that that person be excluded from coverage.

History. (§ 46 ch 163 SLA 1959; am § 2 ch 146 SLA 1966; am § 4 ch 202 SLA 1975; am § 11 ch 70 SLA 1984; am § 113 ch 81 SLA 1997)

Revisor’s notes. —

In 1980, pursuant to § 60, ch. 94, SLA 1980, the term “workers’ compensation” was substituted for “workmen’s compensation.”

Notes to Decisions

When section mandatory. —

The provisions of this section are mandatory only if a policy is certified as proof of financial responsibility or is required by law due to a person’s previously having been in an accident. Werley v. United Servs. Auto. Ass'n, 498 P.2d 112 (Alaska 1972).

The absolute liability provisions of subsection (f)(1) are limited by subsection (a), which provides that such absolute liability provisions are made part of only those motor vehicle liability policies which are certified or required as proof of financial responsibility for the future. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

The fact that a liability policy contains a condition relating to financial responsibility laws does not automatically result in the incorporation of the absolute liability provisions of subsection (f)(1) into the policy. Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967).

Minimum coverage.

Where an employee, while driving drunk with a company car, was injured and sought uninsured motorist benefits under the company's policy, a policy clause that excluded coverage for anyone using a vehicle without a reasonable belief that the person was entitled to do so, was void because it restricted the minimum coverage required. Yeager v. Phila. Indem. Ins. Co., — F. Supp. 3d — (D. Alaska June 10, 2015).

Prejudgment interest liability. —

An insurer is liable for prejudgment interest, which should not be taken into account when calculating the mandated minimum policy limit for bodily injury or death. Hughes v. Harrelson, 844 P.2d 1106 (Alaska 1993).

Subsection (b) and AS 28.22.101(d) protect collision victims by guaranteeing compensation of $50,000 plus interest, but they do not require additional payments if the victim’s total award or settlement already covers this amount, as was the case in an award of one million dollars. Farquhar v. State Nat'l Ins. Co., 20 P.3d 577 (Alaska 2001).

Liberal construction of omnibus clause. —

An omnibus clause in an automobile insurance policy should be liberally construed so as to effectuate its basic intent, which is to protect the public from damages caused by vehicles operated by persons other than the named insured. Johnson v. United States Fid. & Guar. Co., 601 P.2d 260 (Alaska 1979).

The Motor Vehicle Safety Responsibility Act contemplates two types of motor vehicle liability policies, namely, an owner’s policy and an operator’s policy. Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

All vehicles owned by insured need not be covered. —

Alaska’s Motor Vehicle Safety Responsibility Act does not require that an owner’s policy, certified as proof of financial responsibility for the future, cover all vehicles owned by the insured. Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

“In the same accident.” —

Where respondent families of two child victims involved in a fatal collision claimed they suffered emotional distress, the Supreme Court of Alaska held their underinsured motorist policies did not provide separate per-person coverage for their emotional distress claims because the family members were not “in” the same accident that injured the children for purposes of AS 28.20.440 . State Farm Mut. Auto. Ins. Co. v. Houle, 258 P.3d 833 (Alaska), sub. op., 269 P.3d 654 (Alaska 2011).

Named driver exclusion did not violate minimum liability requirements. —

Insurer’s refusal to cover a pedestrian victim’s negligent entrustment claim against the named insureds did not violate subsection ( l ) of this section, where the automobile insurance policy included a named driver exclusion that named their son; that exclusion was a valid exception to the requirements of AS 28.22.101 and paragraph (b)(2) of this section, as it only circumscribed the minimum liability coverage to the extent that the victim’s claim arose out of the son’s operation of a vehicle. Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228 (Alaska 2007).

Permissive use of vehicle.

Where an employee, while driving drunk with a company car, was injured and sought uninsured motorist benefits under the company's policy, the insurer was not entitled to summary judgment because it was likely that the initial permission rule would be adopted in Alaska and it was undisputed that the employer granted the employee initial permission to use its vehicle. Yeager v. Phila. Indem. Ins. Co., — F. Supp. 3d — (D. Alaska June 10, 2015).

When an automobile accident victim sued the owner of a car, but another person who was in the car with the owner subsequently claimed to have been the driver at the time of the accident, the insurer of the car owed the driver the same duties of defense and indemnity it owed to the owner, its named insured. Sellers v. Kurdilla, 377 P.3d 1 (Alaska 2016).

In an action for wrongful death of a minor child, a parent, who may only maintain an action in a representative capacity with the potential recovery to be distributed as the decedent’s personal property, was not insured in his capacity as personal representative or potential beneficiary under his uninsured motorist coverage. State Farm Mut. Ins. Co. v. Wainscott, 439 F. Supp. 840 (D. Alaska 1977).

Untimely notice of accident to insurer. —

In a case of untimely notice of an accident to an insurer, the insurer must prove that it has actually been prejudiced by the delay before its liability is extinguished. Weaver Bros. v. Chappel, 684 P.2d 123 (Alaska 1984).

Aggregation. —

Where respondent families of two child victims involved in a fatal collision claimed they suffered emotional distress, the superior court erred by reforming the insurance policies to allow the emotional distress claims to proceed to arbitration because this section does not require insurers to provide UIM coverage for each family member injured as a result of an accident, and the aggregate per-accident limit had been exhausted. State Farm Mut. Auto. Ins. Co. v. Houle, 258 P.3d 833 (Alaska), sub. op., 269 P.3d 654 (Alaska 2011).

Applied in

Stordahl v. Government Employees Ins. Co., 564 P.2d 63 (Alaska 1977); King v. Jordan, 601 P.2d 273 (Alaska 1979); Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248 (Alaska 1988).

Stated in

Kackman v. Continental Ins. Co., 319 F. Supp. 540 (D. Alaska 1970); Allstate Ins. Co. v. Harbour, 491 P.3d 374 (Alaska 2021).

Cited in

Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235 (Alaska 2001); Blood v. Kenneth A. Murray Ins., Inc., 151 P.3d 428 (Alaska 2006); Ayres v. United Servs. Auto. Ass'n, 160 P.3d 128 (Alaska 2007); Ball v. Allstate Ins. Co., 426 P.3d 862 (Alaska 2018).

Collateral references. —

Operator’s liability policy issued in compliance with financial responsibility statute, 88 ALR2d 995.

Policy provision extending coverage to comply with financial responsibility act as applicable to insured’s first accident, 8 ALR3d 388.

Sec. 28.20.445. Uninsured and underinsured motorists coverage.

  1. The maximum liability of the insurance carrier under the uninsured and underinsured motorists coverage required to be offered under AS 28.20.440 shall be the lesser of
    1. the difference between the amount of the covered person’s damages for bodily injury and property damage and the amount paid to the covered person by or for a person who is or may be held legally liable for the damages; and
    2. the applicable limit of liability of the uninsured and underinsured motorist coverage.
  2. An amount payable under the uninsured and underinsured motorist coverage shall be excess to an amount payable under automobile bodily injury, death, or medical payments coverage, or as workers’ compensation benefits and may not duplicate amounts paid or payable under valid and collectible automobile bodily injury, death, or medical payments coverage, or as workers’ compensation benefits.
  3. If a person is entitled to uninsured or underinsured motorists coverage under more than one coverage when two or more vehicles are insured under one policy, the maximum amount payable may not exceed the highest limit of any one coverage under the policy. If a person is entitled to uninsured or underinsured motorists coverage under more than one motor vehicle policy issued by the same insurer in the same household, the maximum amount payable may be limited to the highest limit of any one coverage under the policies. If a person is entitled to uninsured or underinsured motorists coverage under more than one policy providing motor vehicle liability coverage, payments will be made in the following order of priority, subject to the limit of liability of each applicable policy or coverage:
    1. a policy or coverage covering a motor vehicle occupied by the injured person or a policy or coverage covering a pedestrian as a named insured;
    2. a policy or coverage covering a motor vehicle occupied by the injured person as an insured other than as a named insured;
    3. a policy or coverage not covering a motor vehicle occupied by the injured person but covering the injured person as a named insured;
    4. a policy or coverage not covering a motor vehicle occupied by the injured person but covering the injured person as an insured other than as a named insured;
    5. a policy or coverage covering, as excess, umbrella, or similar insurance, a motor vehicle occupied by the injured person or a policy or coverage covering, as excess, umbrella, or similar insurance, a pedestrian as a named insured;
    6. a policy or coverage covering, as excess, umbrella, or similar insurance, a motor vehicle occupied by the injured person or a policy or coverage covering, as excess, umbrella, or similar insurance, a pedestrian as an insured other than as a named insured;
    7. a policy or coverage not covering a motor vehicle occupied by the injured person but covering, as excess, umbrella, or similar insurance, the injured person as a named insured;
    8. a policy or coverage not covering a motor vehicle occupied by the injured person but covering, as excess, umbrella, or similar insurance, the injured person as an insured other than as a named insured.
  4. Uninsured and underinsured motorists coverage does not apply to bodily injury or death or damage to or destruction of property of an insured
    1. while occupying a motor vehicle owned by, but not insured by, the named insured or the insured’s spouse or relative residing in the same household; or
    2. through being struck by a vehicle owned by the named insured or the insured’s spouse or relative residing in the same household.
  5. Uninsured and underinsured motorists coverage
    1. may not apply to bodily injury, sickness, disease, or death of an insured or damage to or destruction of property of an insured until the limits of liability of all bodily injury and property damage liability bonds and policies that apply have been used up by payments, judgments or settlements;
    2. shall be a single combined coverage;
    3. may be rejected by the insured in writing; if the insured has rejected the coverage, the coverage shall not be included in any supplemental, renewal, or replacement policy unless the insured subsequently requests the coverage in writing; and
    4. need not provide coverage for punitive damages that might otherwise be recoverable from an uninsured or underinsured person.
  6. If both the owner and operator of the uninsured vehicle are unknown, payment under the uninsured and underinsured motorists coverage shall be made only where direct physical contact between the insured and uninsured or underinsured motor vehicles has occurred.  A vehicle that has left the scene of the accident with an insured vehicle is presumed to be uninsured if the person insured reports the accident to the appropriate authorities within 24 hours.
  7. The uninsured and underinsured motorists coverage for damage to or destruction of property is subject to a deductible of $250 in any one accident, but the insurer may offer a deductible other than $250.  This coverage shall be limited to damage to or destruction of the insured motor vehicle.  It may not include loss of use of the vehicle.
  8. [Repealed, § 115 ch 81 SLA 1997.]
  9. The director of the division of insurance shall ensure that policies that provide the uninsured and underinsured motorists coverage required under this chapter clearly state that the uninsured and underinsured motorists coverage provides coverage for the insured for injuries sustained as a pedestrian or bicyclist by a motor vehicle.

History. (§ 12 ch 70 SLA 1984; am §§ 3 — 5 ch 78 SLA 1990; am § 115 ch 81 SLA 1997; am § 4 ch 172 SLA 2004; am § 1 ch 104 SLA 2014; am § 63 ch 41 SLA 2016)

Effect of amendments. —

The 2014 amendment, effective October 26, 2014, in (c), in the introductory language, in the second sentence deleted “as a named insured” following “person is entitled”, substituted “motorists” for “motorist” and inserted “in the same household” following “by the same insurer”, in the third sentence, substituted “motorists” for “motorist”.

The 2016 amendment, effective January 1, 2019, added (i).

Notes to Decisions

Underinsured vehicle. —

The language defining the term underinsured vehicle, former subsection (h), determining whether or not UIM coverage is triggered, and the language setting forth the nature of the coverage, subsection (b), determining the amount of UIM coverage the insured is entitled to collect if UIM coverage is triggered, can reasonably be read together and the former was not impliedly repealed by the latter. Colonial Ins. Co. v. Tumbleson, 889 F. Supp. 1136 (D. Alaska 1995).

Purpose. —

Itemization required by AS 09.17.040(a) is primarily designed to ensure that future losses are identified so that they can be reduced to present value, and these purposes bear little or no relationship to the anti-duplicate recovery purpose of AS 28.20.445(b) . State Farm Mut. Auto. Ins. Co. v. Wilson, 199 P.3d 581 (Alaska 2008).

The 1990 amendment changed the law to afford greater recovery for underinsured motorist insureds. It did not, however, change the triggering criteria. Accordingly, subsections (b) and former (h) of this section are not inconsistent. Colonial Ins. Co. v. Tumbleson, 873 F. Supp. 310 (D. Alaska 1995).

Former subsection (h) determines when underinsured motorist (UIM) coverage is available and subsection (b) determines how much compensation the UIM insured will receive. Colonial Ins. Co. v. Tumbleson, 873 F. Supp. 310 (D. Alaska 1995).

Insured’s damages had to be considered in the aggregate under subsection (b) because there were no compelling reasons to do otherwise, as considering damages in the aggregate did not allow a double recovery by a personal representative of insured’s estate. State Farm Mut. Auto. Ins. Co. v. Wilson, 199 P.3d 581 (Alaska 2008).

Exhaustion. —

This is an exhaustion statute, and it does not violate Alaska’s public policy. Curran v. Progressive Northwestern Ins. Co., 29 P.3d 829 (Alaska 2001).

Insureds did not exhaust underlying liability policy limits, and offers of credit were not equivalent to exhaustion of limits; thus they were not entitled to recover from the underinsured motorist insurer. Curran v. Progressive Northwestern Ins. Co., 29 P.3d 829 (Alaska 2001).

As a matter of statutory construction, “limits of liability of all bodily injury... policies,” as that phrase is used in AS 28.20.445(e)(1) , refers only to the face amount of coverage. Coughlin v. GEICO, 69 P.3d 986 (Alaska 2003).

Under AS 28.20.445(e)(1) , policy limits are exhausted when the face value of the policy is paid to the insured; any payment or non-payment of attorney’s fees and prejudgment interest is independent of this determination. Coughlin v. GEICO, 69 P.3d 986 (Alaska 2003).

Under AS 28.20.445(e)(1) , the value of the settlement to both the insured and insurer at the time the settlement agreement was reached was the measure by which to determine whether the insurer exhausted the face value of the other driver’s insurance policy. Coughlin v. GEICO, 69 P.3d 986 (Alaska 2003).

There are strong policy reasons for not including attorney’s fees and prejudgment interest in the determination of whether policy limits have been satisfied for the purpose of invoking underinsured motorist coverage under AS 28.20.445(e)(1) . As with the ultimate value of liens, the monetary value of attorney’s fees and prejudgment interest is quite speculative. Until the matter is concluded, it may be difficult if not impossible to determine what attorney’s fees and prejudgment interest will be. Coughlin v. GEICO, 69 P.3d 986 (Alaska 2003).

Where insured settled with driver’s insurer for $40,000 in cash and assuming responsibility for a $10,000 medical lien, the insured settled for the policy limits of $50,000, and therefore was entitled to pursue UIM coverage from her insured under AS 28.20.445(e)(1) . Coughlin v. GEICO, 69 P.3d 986 (Alaska 2003).

Policy limits are exhausted for the purposes of pursuing underinsured motorist coverage when the face value of the policy is satisfied, independent of any additional attorney’s fees or prejudgment interest. Sidney v. Allstate Ins. Co., 187 P.3d 443 (Alaska 2008).

Triggering mechanism. —

Under former paragraph (h)(1), UIM coverage is triggered if the tortfeasor’s liability policy limits are less than the claimant’s UIM policy limits; coverage is not dependent upon a comparison between the settlement amount and UIM policy limits. Colonial Ins. Co. v. Tumbleson, 889 F. Supp. 1136 (D. Alaska 1995).

Proper application of former paragraph (h)(1) denied the triggering of underinsured motorist coverage where insureds received more under the larger tortfeasor policy than they would have under the underinsured policy alone. Colonial Ins. Co. v. Tumbleson, 873 F. Supp. 310 (D. Alaska 1995).

Meaning of “an insured” in former paragraph (h)(2). —

In the phrase “reduced by payments to persons other than an insured” in former paragraph (h)(2), the term “an insured” means any person insured under the policy; thus, if a tortfeasor’s policy is reduced to the point that the available limit is less than the UIM limit then UIM coverage is triggered. Colonial Ins. Co. v. Tumbleson, 889 F. Supp. 1136 (D. Alaska 1995).

Former paragraph (h)(2) exception inapplicable. —

Where the tortfeasor was insured with liability limits at $100,000/$300,000, and the insurance company paid $300,000 to the plaintiffs, who were insureds, the former paragraph (h)(2) exception was inapplicable and did not trigger underinsured coverage. Colonial Ins. Co. v. Tumbleson, 873 F. Supp. 310 (D. Alaska 1995).

Arbitration. —

Because the arbitration panels had no authority to determine anything beyond the insureds' damages arising from their accidents, and because the insurer withheld its consent for the panels to determine anything else, the superior court erred in affirming the final arbitration awards; the arbitration clause was not an expansive provision covering any and all claims arising out of or related to the insurer's insurance policy or even the uninsured/underinsured motorist coverage. Allstate Ins. Co. v. Harbour, 491 P.3d 374 (Alaska 2021).

Arbitration panels exceeded their authority by purporting to determine the total benefit amounts an insurer owed the insureds under their coverages since the panels had authority to determine only each insured's damages arising from the at-fault driver's conduct; only a court, not an arbitration panel, could determine whether the insureds were entitled to prejudgment interest on the insurer's liability to the insureds, attorney's fees, and pro rata attorney's fees for subrogated claims. Allstate Ins. Co. v. Harbour, 491 P.3d 374 (Alaska 2021).

It was error to independently adopt the arbitration panels' mistaken legal conclusions that the insureds' settlements with the at-fault parties' insurers provided common fund benefits requiring the insurer to pay a pro rata share of the insureds' attorney's fees and costs incurred in obtaining the settlements because the insureds' policy limits settlements did not directly benefit the insurer and thus did not constitute common fund benefits. Allstate Ins. Co. v. Harbour, 491 P.3d 374 (Alaska 2021).

Third-party beneficiary. —

In a personal injury suit filed against the lienholder of an underinsured vehicle, a passenger based his claim as a third-party beneficiary on the theory that the owners’ liability insurance policy, had one existed, would have included underinsured motorist coverage unless it was explicitly declined. Summary judgment for the lienholder was proper because there was no written agreement that the lienholder would provide liability insurance, nor was there any insurance policy from which third-party rights could be extrapolated. Charles v. Stout, 308 P.3d 1138 (Alaska 2013).

Meaning of “underinsured motor vehicle”. —

The 1990 amendment of subsections (a) and (b) impliedly repealed the definition of “underinsured motor vehicle” in former subsection (h). Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Because an insured was not “underinsured” with respect to the prejudgment interest and attorney’s fees awarded by a superior court, she was not entitled to underinsured motorist recovery of those amounts. Sidney v. Allstate Ins. Co., 187 P.3d 443 (Alaska 2008).

Content requirements of Mandatory Automobile Insurance Act. —

The language of AS 21.89.020(c), pertaining to uninsured or underinsured motorist coverage, means that all policies in the state must conform to the content requirements of the Motor Vehicle Safety Responsibility Act, and that if the content requirements of the Mandatory Automobile Insurance Act are broader than those of the former, those requirements must also be complied with as to persons covered by the latter. Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Applied in

Wold v. Progressive Preferred Ins. Co., 52 P.3d 155 (Alaska 2002).

Quoted in

Hillman v. Nationwide Mut. Fire Ins. Co., 758 P.2d 1248 (Alaska 1988).

Cited in

Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235 (Alaska 2001); Ayres v. United Servs. Auto. Ass'n, 160 P.3d 128 (Alaska 2007).

Sec. 28.20.450. Notice of cancellation or termination of certified policy.

When an insurance carrier certifies a motor vehicle liability policy under AS 28.20.410 or 28.20.420 the insurance certified may not be cancelled or terminated until at least 10 days after a notice of cancellation or termination of the insurance is filed with the department, except that a policy subsequently procured and certified shall, on the effective date of its certification, terminate for the purpose of this chapter the insurance previously certified for a vehicle designated in both certificates.

History. (§ 47 ch 163 SLA 1959)

Notes to Decisions

The term “the insurance certified” refers to the insurance policy identified in the Form SR22 (certificate of insurance), not the designated vehicles described in the SR22. National Indem. Co. v. Sherman, 777 P.2d 663 (Alaska 1989).

Notification of state. —

Insurers are not required to notify the state when vehicles are added to or deleted from a policy. National Indem. Co. v. Sherman, 777 P.2d 663 (Alaska 1989).

Sec. 28.20.460. Chapter not to affect other policies.

  1. This chapter does not apply to or affect a policy of automobile insurance against liability that may now or hereafter be required by any other law of this state, except that the policy, if it contains an agreement or is endorsed to conform with the requirements of this chapter, may be certified as proof of financial responsibility under this chapter.
  2. This chapter does not apply to or affect a policy insuring solely the insured named in the policy against liability resulting from the maintenance or use by persons in the insured’s employ or on behalf of the insured of vehicles not owned by the insured.

History. (§ 48 ch 163 SLA 1959)

Notes to Decisions

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Sec. 28.20.470. Bond as proof.

Proof of financial responsibility may be evidenced by the bond of a surety company authorized to transact business in this state. The bond shall be conditioned for payment of the amounts specified in AS 28.20.230 . The bond shall be filed with the department and may not be cancellable except after 10 days’ written notice to the department.

History. (§ 49 ch 163 SLA 1959)

Sec. 28.20.480. Action on bond.

If a judgment given against the principal on a bond is not satisfied within 30 days after it becomes final, the judgment creditor may, for the use and benefit and at the sole expense of the judgment creditor, bring an action in the name of the state against the company executing the bond.

History. (§ 50 ch 163 SLA 1959)

Sec. 28.20.490. Money or securities as proof. [Repealed, § 15 ch 70 SLA 1984.]

Sec. 28.20.500. Owner may give proof for others.

  1. The owner of a motor vehicle may give proof of financial responsibility on behalf of the owner’s employee or a member of the owner’s immediate family or household.  The furnishing of proof in this manner permits the person for whom it is given to operate a motor vehicle covered by the proof.  The department shall endorse appropriate restrictions on the face of the license held by a person for whom proof is given by another, or may issue a new license containing these restrictions.
  2. The department, upon receiving satisfactory evidence of the violation of a restriction, may suspend the license until a certificate is filed showing a policy issued to the driver that covers the driver as operator or owner of the vehicle operated in violation of the restriction.

History. (§ 53 ch 163 SLA 1959)

Sec. 28.20.510. Substitution of proof.

The department shall consent to the cancellation of a bond or certificate of insurance, or the department shall return money or securities to the person entitled to it, upon the substitution and acceptance of other adequate proof of financial responsibility under this chapter.

History. (§ 54 ch 163 SLA 1959; am § 16 ch 214 SLA 1975)

Sec. 28.20.520. Other proof may be required.

Whenever proof of financial responsibility filed under this chapter no longer fulfills the purpose for which it is required, the department shall require other proof as required by this chapter and shall suspend the license pending the filing of other proof.

History. (§ 55 ch 163 SLA 1959)

Sec. 28.20.530. Application of deposit.

The department shall hold the deposit to satisfy, in accordance with this chapter, any execution on a judgment issued against the person making the deposit for damages, including damages for care and loss of services because of bodily injury to or death of any person, or for damages because of injury to or destruction of property, including the loss of use of it, resulting from the ownership, maintenance, use, or operation of a vehicle subject to registration under the laws of this state after the deposit is made. Money or securities deposited are not subject to attachment or execution unless the attachment or execution arises out of a suit for damages specified in this section.

History. (§ 52 ch 163 SLA 1959; am § 17 ch 214 SLA 1975)

Sec. 28.20.540. Duration, cancellation, and return of proof.

  1. The department shall, upon request, consent to the immediate cancellation of a bond or certificate of insurance, or shall return to the person entitled to it money or securities deposited as proof of financial responsibility, or shall waive the requirement of filing proof, in any of the following events:
    1. at any time after three years from the date proof is required when, during the three year period preceding the request, the department has not received record of a conviction or a forfeiture of bail that would require or permit the suspension or revocation of the license or registration of the person by or for whom the proof was furnished; or
    2. upon the death of the person on whose behalf the proof was filed or the permanent incapacity of the person to operate a motor vehicle; or
    3. if the person who has given proof surrenders the person’s license to the department.
  2. The department may not consent to the cancellation of a bond or the return of money or securities if an action for damages upon a liability covered by the proof is pending or a judgment upon the liability is unsatisfied, or if the person who filed the bond or deposited money or securities has within one year immediately preceding the request been involved as a driver or owner in a motor vehicle accident resulting in injury or damage to the person or property of others.  An affidavit of the applicant as to the nonexistence of these facts, or that the applicant is released from all of this liability, or has been finally adjudicated not to be liable for the injury or damage is sufficient evidence in the absence of evidence to the contrary in the records of the department.
  3. Whenever a person whose proof has been cancelled or returned under (a)(3) of this section applies for a license within a period of three years from the date proof was originally required, the application shall be refused unless the applicant reestablishes the proof for the remainder of the three-year period.

History. (§ 56 ch 163 SLA 1959; am § 18 ch 214 SLA 1975)

Sec. 28.20.550. Transfer of registration to defeat purpose of chapter prohibited.

  1. If an owner’s registration is suspended under this chapter, the registration may not be transferred nor the vehicle registered in any other name until the department is satisfied that the transfer or registration is proposed in good faith and not for the purpose or with the effect of defeating the purposes of this chapter.
  2. This section does not affect the rights of a conditional vendor, chattel mortgagee, or lessor of the vehicle registered in the name of another as owner who becomes subject to this chapter.
  3. The department shall suspend the registration of a vehicle transferred in violation of this section.

History. (§ 57 ch 163 SLA 1959)

Sec. 28.20.560. Surrender of license and registration, and false affidavits.

  1. A person whose license or registration is suspended under any provision of this chapter, or whose policy of insurance or bond, when required under this chapter, is canceled or terminated, shall immediately return the person’s license or registration to the department. If a person fails to return the license or registration to the department, the department, through the commissioner of public safety, shall immediately direct a peace officer to obtain possession of it and to return it to the department.
  2. A person who wilfully fails to return a license or registration as required in (a) of this section or who knowingly gives an affidavit required by this chapter that is false is punishable by a fine of not more than $500, or by imprisonment for not more than 30 days, or by both.

History. (§ 58 ch 163 SLA 1959; am E.O. No. 99 § 48 (1997))

Sec. 28.20.570. Forged proof.

A person who forges or, without authority, signs any evidence of proof of financial responsibility for the future, or who files or offers for filing evidence of proof of financial responsibility for the future, knowing or having reason to believe that it is forged or signed without authority, is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both.

History. (§ 59 ch 163 SLA 1959)

Sec. 28.20.580. Assigned risk plans.

After consultation with the insurance companies authorized to issue motor vehicle liability policies in this state, the director of the division of insurance shall approve a reasonable plan, fair to the insurers and equitable to their policyholders, for the apportionment among these companies of applicants for motor vehicle policies and other vehicle coverages who are in good faith entitled to but are unable to procure policies through ordinary methods. When a plan is approved, all the insurance companies shall subscribe to it and participate in it, except a reciprocal insurer formed by and only insuring a group of municipalities or nonprofit utilities under AS 21.75, or a reciprocal insurer formed under AS 21.75 to provide marine insurance. An applicant for an assigned risk policy, a person insured under an assigned risk plan, and an insurance company affected may appeal to the commissioner of commerce, community, and economic development from a ruling or decision of the authority designated to operate the plan. Failure to adopt an assigned risk plan does not relieve any person from responsibility under this chapter.

History. (§ 60 ch 163 SLA 1959; am § 16 ch 144 SLA 1977; am § 110 ch 62 SLA 1995)

Revisor’s notes. —

In 1999, in this section, “commissioner of commerce and economic development” was changed to “commissioner of community and economic development” in accordance with § 88, ch. 58, SLA 1999. In 2004, in this section, “commissioner of community and economic development” was changed to “commissioner of commerce, community, and economic development”, in accordance with § 3, ch. 47, SLA 2004.

Sec. 28.20.585. Reinstatement fee. [Repealed, § 15 ch 70 SLA 1984.]

Sec. 28.20.590. Past application of chapter.

This chapter does not apply to an accident or judgment arising from an accident or violation of the motor vehicle laws of this state, occurring before September 1, 1959.

History. (§ 61 ch 163 SLA 1959)

Notes to Decisions

Cited in

Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Sec. 28.20.600. Chapter does not prevent other process.

This chapter does not prevent the plaintiff in an action from relying for relief upon other processes provided by law.

History. (§ 62 ch 163 SLA 1959)

Notes to Decisions

Cited in

Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Sec. 28.20.610. Provisions of chapter apply throughout state.

The provisions of this chapter apply upon highways and elsewhere throughout the state.

History. (§ 63 ch 163 SLA 1959)

Sec. 28.20.620. Application of Administrative Procedure Act. [Repealed, § 4 ch 140 SLA 1977.]

Sec. 28.20.630. Definitions.

In this chapter, unless the context otherwise requires,

  1. “judgment” means a judgment that is final by expiration without appeal of the time within which an appeal may be taken, or final by affirmation on appeal, given by a court of a state or of the United States, upon a cause of action arising out of the ownership, maintenance, or use of a vehicle of a type subject to registration under the laws of this state, for damages, including damages for care and loss of services, because of bodily injury to or death of a person, or for damages because of injury to or destruction of property, including the loss of use of property, or upon a cause of action on an agreement of settlement for such damages;
  2. “proof of financial responsibility” means an owner’s motor vehicle liability policy that covers all vehicles owned by the person that are subject to registration in this state, or if the person does not own a vehicle, proof required under AS 28.20.390 .

History. (§ 3 ch 163 SLA 1959; am § 20 ch 241 SLA 1976; am § 2 ch 135 SLA 1977; am § 28 ch 108 SLA 1989)

Cross references. —

For definitions for this title, see AS 28.90.990 and 13 AAC 40.010.

Notes to Decisions

Cited in

Hart v. National Indem. Co., 422 P.2d 1015 (Alaska 1967); Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972).

Sec. 28.20.640. Short title.

This chapter may be cited as the Motor Vehicle Safety Responsibility Act.

History. (§ 1 ch 163 SLA 1959)

Notes to Decisions

Cited in

Paulson v. National Indem. Co., 498 P.2d 731 (Alaska 1972); Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228 (Alaska 2007).

Chapter 22. Mandatory Motor Vehicle Insurance.

Administrative Code. —

For mandatory motor vehicle insurance, see 2 AAC 90.510 — 2 AAC 90.540.

Article 1. Insurance Required.

Sec. 28.22.010. Motor vehicle liability policy. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.011. Motor vehicle liability insurance required; exemptions.

  1. The operator or owner of a motor vehicle subject to registration under AS 28.10.011 when driven on a highway, vehicular way or area, or on other public property in the state, shall be insured under a motor vehicle liability policy that complies with this chapter or a certificate of self-insurance that complies with AS 28.20.400 unless
    1. the motor vehicle is being driven or moved on a highway, vehicular way, or a public parking place in the state that is not connected by a land highway or vehicular way to
      1. the land-connected state highway system, or
      2. a highway or vehicular way with an average daily traffic volume greater than 499; and
    2. the operator has not been cited within the preceding five years for a traffic law violation with a demerit point value of six or more on the point schedule determined under regulations adopted by the department under AS 28.15.221 .
  2. The department shall annually publish a list of areas that meet the requirements of (a)(1) of this section. This list shall be available for public inspection at each office of the department.
  3. In this section, “operator” does not include
    1. an employee who operates, during the course and within the scope of employment, a motor vehicle that is owned or leased by the operator’s employer; or
    2. an emergency service volunteer who operates, during the course and within the scope of responding to an emergency, a motor vehicle not owned by the volunteer.

History. (§ 1 ch 108 SLA 1989; am § 79 ch 63 SLA 1993)

Notes to Decisions

Relation to Motor Vehicle Safety Responsibility Act. —

The Motor Vehicle Safety Responsibility Act and the Mandatory Automobile Insurance Act coexist as components of the Alaska Uniform Vehicle Code and the latter supplements, but does not supplant, the former. Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

The language of AS 21.89.020(c), pertaining to uninsured or underinsured motorist coverage, means that all policies in the state must conform to the content requirements of the Motor Vehicle Safety Responsibility Act, and that if the content requirements of the Mandatory Automobile Insurance Act are broader than those of the former, those requirements must also be complied with as to persons covered by the latter. Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Substantial compliance. —

Where a motor vehicle operator did not have liability insurance when he caused property damage exceeding $500, suspension of his driver’s license was warranted, and his personal indemnification of the parties and purchase of liability insurance soon after the accident was not substantial compliance with the mandatory insurance laws or the self-insurance statute. State v. Fernandes, 946 P.2d 1259 (Alaska 1997).

Quoted in

Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Cited in

Ayres v. United Servs. Auto. Ass'n, 160 P.3d 128 (Alaska 2007).

Collateral references. —

Conflict of laws in determination of coverage under automobile liability insurance policy, 110 ALR5th 465.

Sec. 28.22.019. Proof of insurance to be exhibited on demand; penalty.

  1. A person shall have proof of motor vehicle liability insurance in the person’s immediate possession at all times when driving a motor vehicle, and shall present the proof for inspection upon the demand of a peace officer or other authorized representative of the Department of Public Safety. A person may display the proof on a mobile electronic device. However, a person charged with violating this section may not be convicted if the person produces in court or in the office of the arresting or citing officer proof of motor vehicle liability insurance previously issued to the person that was valid at the time of the person’s arrest or citation.
  2. A municipality may adopt an ordinance
    1. requiring a person to display a decal on the person’s motor vehicle indicating compliance with (a) of this section; or
    2. that is substantially similar to (a) of this section and may impose a penalty for violating the ordinance as provided under AS 29.25.070 .
  3. A person convicted under this section is guilty of an infraction and shall be sentenced to pay a mandatory fine of $500.
  4. Displaying proof of motor vehicle liability insurance on a mobile electronic device under this section does not constitute consent for a peace officer or other authorized representative of the Department of Public Safety to access other contents of the mobile electronic device.
  5. In this section, “proof” means
    1. a copy of the insurance policy or certificate of self-insurance that is in effect;
    2. a printed card or electronic certification from an insurance company, insurance agent, insurance broker, or surplus lines broker that a policy that complies with AS 28.22.011 is in effect; or
    3. the display on a mobile electronic device of verification from an insurance company, insurance agent, insurance broker, or surplus lines broker that a policy that complies with AS 28.22.011 is in effect.

History. (§ 20 ch 60 SLA 2002; am § 3 ch 74 SLA 2008; am § 21 ch 20 SLA 2011; am §§ 1 — 3 ch 24 SLA 2013)

Revisor’s notes. —

Subsection (c) was enacted as (d) and relettered in 2008.

Subsection (d) was enacted as (e) and relettered in 2013.

Subsection (e) was relettered in 2008 and 2013 to keep the definitions at the end of the section.

Effect of amendments. —

The 2011 amendment, effective July 1, 2011, in (c), substituted “guilty of an infraction and shall be sentenced to pay a mandatory fine of $500” for “guilty of a class B misdemeanor and may be punished as provided in AS 12.55, except that a fine of at least $500 must be imposed”.

The 2013 amendment, effective July 1, 2013, in (a), inserted the second sentence; added (d)(3) (now (e)(3)), and made related changes; added (e) (now (d)).

Notes to Decisions

Stated in

State v. Fyfe, 370 P.3d 1092 (Alaska 2016).

Cited in

Titus v. State, 305 P.3d 1271 (Alaska 2013); Perozzo v. State, 493 P.3d 233 (Alaska Ct. App. 2021).

Sec. 28.22.020. Policy provisions that are implied. [Repealed, § 17, ch 70 SLA 1984.]

Sec. 28.22.021. Requirement of proof of motor vehicle liability insurance.

The owner or operator of a motor vehicle required to have motor vehicle liability insurance that complies with this chapter or a certificate of self-insurance that complies with AS 28.20.400 , shall show proof of this insurance when that person is involved in an accident that results in bodily injury to or death of a person, or damage to the property of a person exceeding $501.

History. (§ 1 ch 108 SLA 1989; am § 17 ch 6 FSSLA 1996)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

For mandatory auto insurance, see 2 AAC 90, art. 7.

Notes to Decisions

Equal protection. —

Administrative suspension of the driver’s license of a motorcyclist who failed to maintain insurance did not violate equal protection because the sanctions established by this section and AS 28.22.041 , requiring license suspension for some but not all uninsured motorists, reasonably further the state interest in preventing uninsured driving as described in AS 28.20.010 . Titus v. State, 305 P.3d 1271 (Alaska 2013).

Due process. —

Motorcyclist was not entitled to criminal due process for suspension of his driver’s license for failure to carry insurance. While the license is a property interest, the failure to carry the required insurance is directly related to unfitness to drive, and suspension is a remedial action. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Substantial compliance. —

Where a motor vehicle operator did not have liability insurance when he caused property damage exceeding $500, suspension of his driver’s license was warranted, and his personal indemnification of the parties and purchase of liability insurance soon after the accident was not substantial compliance with the mandatory insurance laws or the self-insurance statute. State v. Fernandes, 946 P.2d 1259 (Alaska 1997).

Quoted in

Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Sec. 28.22.030. Excess or additional coverage. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.031. Method of proof of motor vehicle liability insurance.

  1. A person involved in an accident who is required under AS 28.22.021 to prove that a motor vehicle liability policy or a certificate of self-insurance was in effect shall, within 15 days after the accident,
    1. present a copy of the insurance policy, certificate, bond, or insurance binder that was in effect at the time of the accident to the department for inspection;
    2. provide the department with written certification from an insurance company, insurance agent, insurance broker or surplus lines broker confirming that a valid motor vehicle liability policy issued in conformity with this chapter was in effect at the time of the accident; or
    3. advise the department in writing that a certificate of self-insurance was in effect at the time of the accident.
  2. The department shall develop and implement a program to check the veracity of the documents filed for proof under this section.

History. (§ 1 ch 108 SLA 1989)

Administrative Code. —

For mandatory auto insurance, see 2 AAC 90, art. 7.

Notes to Decisions

Quoted in

Winterrowd v. State, 288 P.3d 446 (Alaska 2012).

Sec. 28.22.040. Proration. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.041. Administrative suspension of drivers’ licenses.

  1. Except as provided in (h) of this section, if a person fails to provide proof required under AS 28.22.021 and 28.22.031 , the department shall suspend the driver’s license of that person for the following periods:
    1. not less than 90 days if, within the preceding 10 years, the person has not had a driver’s license suspended for violation of AS 28.22.011 or former AS 28.22.200 ;
    2. not less than one year if, within the preceding 10 years, the person has had a driver’s license suspended one or more times for violation of AS 28.22.011 or former AS 28.22.200 .
  2. The suspension shall be consecutive to any other suspension required by law or imposed by a court.
  3. The department may grant limited license privileges only for medical care or for work purposes to a person whose license has been suspended under this section if
    1. the person has filed proof of financial responsibility for the future as required by AS 28.22.061 ;
    2. the person’s license has not been suspended two or more times under this section or former AS 28.22.240 in the preceding 10 years;
    3. the department determines that the person’s or the person’s dependent’s medical care needs cannot be met without severe hardship or the person’s ability to earn a livelihood would be severely impaired unless a limited license privilege is granted; and
    4. the department determines that a limitation can be placed on the license that will enable the person or the person’s dependent to receive medical care or the person to earn a livelihood without excessive danger to the public.
  4. When imposing a limitation under this section the department shall
    1. require the surrender of the driver’s license; and
    2. issue to the licensee a certificate valid for the duration of the limitation.
  5. After the termination of a limitation as shown on the certificate issued under (d) of this section, the license of a person on whom a limitation was imposed is suspended until the person receives a new license under AS 28.15.211(c) .
  6. The department shall notify the licensee that the suspension becomes effective 30 days from the date of the notice and that the licensee has the right, within the 30-day period, to make an oral or written answer controverting any point or issue, or to present evidence and arguments for the consideration of the department. Notwithstanding AS 28.05.121 , the department shall provide this notice to the address that appears to be the most recently provided from among the following:
    1. the address the department has for the person;
    2. the address shown on the report of the accident.
  7. Upon receipt of an oral or written answer from the licensee the department shall make findings on the matter under consideration within 15 days and shall notify the person involved of its decision in writing by certified or registered mail. If the department’s decision is to sustain an action against the licensee’s driver’s license, the department shall notify the licensee of the opportunity for a hearing under AS 28.05.121 28.05.141 . Suspension of a person’s license is stayed until final disposition of the hearing under this section.
  8. Subsection (a) does not apply to a person who is required to provide proof under AS 28.22.021 if the person
    1. is involved in an accident that results in property damage of less than $2,000 and the damage occurs only to the property of the person required to show proof of insurance;
    2. not later than 15 days after the accident, provides proof of motor vehicle liability insurance that complies with this chapter or a certificate of self-insurance that complies with AS 28.20.400 to the department; and
    3. establishes by a preponderance of the evidence that the failure to have in effect motor vehicle liability insurance or to self-insure as required by this chapter at the time of the accident was due to circumstances beyond the control of the person.

History. (§ 1 ch 108 SLA 1989; am § 1 ch 57 SLA 1992; am § 18 ch 6 FSSLA 1996; am § 4 ch 74 SLA 2008)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

For mandatory auto insurance, see 2 AAC 90, art. 7.

For hearings, see 2 AAC 93, art. 1.

For definitions, see 2 AAC 93, art. 2.

Notes to Decisions

Substantial compliance. —

Where a motor vehicle operator did not have liability insurance when he caused property damage exceeding $500, suspension of his driver’s license was warranted, and his personal indemnification of the parties and purchase of liability insurance soon after the accident was not substantial compliance with the mandatory insurance laws or the self-insurance statute. State v. Fernandes, 946 P.2d 1259 (Alaska 1997).

Equal protection. —

Administrative suspension of the driver’s license of a motorcyclist who failed to maintain insurance did not violate equal protection under Alaska Const. art. I, § 1 because the different sanctions established by AS 28.22.021 and this section, requiring license suspension for some but not all uninsured motorists, reasonably further the state interest in preventing uninsured driving. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Failure to exhaust administrative remedies. —

Trial court did not err in dismissing a driver’s complaint to enjoin the Division of Motor Vehicles’ proposed suspension of his driver’s license for failing to provide proof of insurance because the driver had not yet exhausted his administrative remedies of a hearing and an administrative appeal. Winterrowd v. State, 288 P.3d 446 (Alaska 2012).

Common law de minimis exception inapplicable. —

Common law de minimis exception did not apply to an ununsured motorcyclist’s accident because the legislature has specified when a proof-of-insurance violation is inconsequential. Titus v. State, 305 P.3d 1271 (Alaska 2013).

Quoted in

Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Sec. 28.22.050. Requirements of policy. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.051. Falsification of information.

A person who, with criminal negligence as defined in AS 11.81.900 , provides false information required under AS 28.22.021 28.22.041 is guilty of a class A misdemeanor.

History. (§ 1 ch 108 SLA 1989)

Sec. 28.22.061. Proof for the future.

  1. A person whose license is suspended under AS 28.22.041 shall file proof of financial responsibility for the future under AS 28.20 before full driving privileges may be restored or limited license privileges are granted under AS 28.22.041 (c).
  2. A filing of proof of financial responsibility under AS 28.20 shall be required for a period of three years following expiration of the suspension of license under AS 28.22.041 .

History. (§ 1 ch 108 SLA 1989)

Notes to Decisions

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).

Article 2. General Policy Provisions.

Sec. 28.22.100. General policy provisions. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.101. General coverage requirements; policy limits.

  1. An owner’s motor vehicle liability policy must designate by description or appropriate reference the motor vehicles that it covers and insure the person named against loss from the liability imposed by law for damages that arise from the ownership, maintenance, or use of a designated motor vehicle.
  2. An operator’s motor vehicle liability policy must insure the person named as insured against loss from the liability imposed by law for damages that arise from the use by the operator of a motor vehicle not owned by the operator.
  3. A personal motor vehicle liability policy must insure the person named as insured against loss from liability imposed by law for damages that arise from the ownership, maintenance, or use by the named person of a motor vehicle whether owned or not owned by the person.
  4. A motor vehicle liability policy must provide coverage in the United States or Canada, subject to limits exclusive of interest and costs, with respect to each vehicle, as follows:
    1. $50,000 because of bodily injury to or death of one person in one accident, and, subject to the same limit for one person, $100,000 because of bodily injury to or death of two or more persons in one accident; and
    2. $25,000 because of injury to or destruction of property of others in one accident.
  5. A motor vehicle liability policy must provide coverage under AS 28.22.201 28.22.231 in the amounts set out in (d) of this section for the protection of the persons insured under the policy who are legally entitled to recover damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury or death, or damage to or destruction of property arising out of the ownership, maintenance, or use of the uninsured or underinsured motor vehicle. This subsection does not require coverage for punitive damages that might otherwise be recoverable from an uninsured or underinsured person.
  6. A motor vehicle liability policy must state the name and address of the named insured and meet the requirements of AS 21.42.160 21.42.170 . In the absence of specific contract language or endorsement, the motor vehicle liability policy issued for a person in this state is presumed to meet the minimum requirements of (d) of this section.

History. (§ 1 ch 108 SLA 1989; am § 5 ch 172 SLA 2004)

Notes to Decisions

Coverage below legal minimum. —

Insurers are not permitted to issue policies containing provisions that reduce the scope of coverage below the legal minimum. Burton v. State Farm Fire & Casualty Co., 796 P.2d 1361 (Alaska 1990).

Uninsured and underinsured coverage. —

Where the insurer is required to offer uninsured and underinsured motorist coverage in the amount of liability coverage purchased voluntarily, the statutory minimum of underinsured motor vehicle insurance coverage is the actual amount of liability insurance purchased. Burton v. State Farm Fire & Casualty Co., 796 P.2d 1361 (Alaska 1990).

Where respondent families of two child victims involved in a fatal collision claimed they suffered emotional distress, the Supreme Court of Alaska held their underinsured motorist policies did not provide separate per-person coverage for their emotional distress claims and the aggregate per-accident limit had been exhausted. The superior court erred by reforming the insurance policies to allow the emotional distress claims to proceed to arbitration. State Farm Mut. Auto. Ins. Co. v. Houle, 258 P.3d 833 (Alaska), sub. op., 269 P.3d 654 (Alaska 2011).

Designation of policy type. —

Insurer issued an “owner’s” policy; the offering of limited additional coverage did not bind it to the statutory requirements for a “personal” policy. Progressive Cas. Ins. Co. v. Skin, 211 P.3d 1093 (Alaska 2009).

Prejudgment interest liability. —

An insurer is liable for prejudgment interest, which should not be taken into account when calculating the mandated minimum policy limit for bodily injury or death. Hughes v. Harrelson, 844 P.2d 1106 (Alaska 1993).

Insurance contract did not oblige insurer to pay prejudgment interest where such liability would bring insurer’s total payment above its policy limit of one million dollars, because the statute does not require insurers to pay prejudgment interest on damages above $50,000. Farquhar v. State Nat'l Ins. Co., 20 P.3d 577 (Alaska 2001).

AS 28.20.440(b) and subsection (d) of this section protect collision victims by guaranteeing compensation of $ 50,000 plus interest, but they do not require additional payments if the victim’s total award or settlement already covers this amount, as was the case in an award of one million dollars. Farquhar v. State Nat'l Ins. Co., 20 P.3d 577 (Alaska 2001).

Applied in

State Farm Mut. Auto. Ins. Co. v. Lestenkof, 155 P.3d 313 (Alaska 2007).

Quoted in

Nelson v. Progressive Cas. Ins. Co., 162 P.3d 1228 (Alaska 2007); Kalenka v. Infinity Ins. Cos., 262 P.3d 602 (Alaska 2011).

Stated in

Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235 (Alaska 2001).

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998); Ayres v. United Servs. Auto. Ass'n, 160 P.3d 128 (Alaska 2007).

Sec. 28.22.110. Maximum liability of carrier. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.111. Policy provisions that are implied.

A motor vehicle liability policy is subject to the following provisions which do not need to be set out in the policy:

  1. satisfaction by the insured of a judgment for injury or damages is not a condition precedent to the right or duty of the insurance carrier to make payment on account of injury or damage;
  2. the insurance carrier may settle a claim covered by the policy, and if settlement is made in good faith, the amount of settlement is deductible from the limits of liability specified in AS 28.22.101 ;
  3. the policy, the written application for the policy, if any, and every rider or endorsement that does not conflict with the provisions of this chapter constitute the entire contract between the parties.

History. (§ 1 ch 108 SLA 1989)

Sec. 28.22.120. Policy coverage and priorities. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.121. Excess of additional coverage.

  1. A policy that grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a policy and the excess or additional coverage is not subject to the provisions of this chapter. With respect to a policy that grants excess or additional coverage, the term “motor vehicle liability policy” applies only to that part of the coverage that is required by this chapter.
  2. A policy is excluded from the application of this chapter if the automobile or motor vehicle liability coverage is provided only on an excess or umbrella basis.

History. (§ 1 ch 108 SLA 1989)

Notes to Decisions

Construction with AS 21.89.020. —

Subsection (b) did not exclude the insured’s umbrella policy from being treated as an automobile liability policy under AS 21.89.020(a) and from being reformed, under State Farm Mut. Auto. Ins. Co. v. Harrington , 918 P.2d 1022 (Alaska 1996), to provide equal liability and underinsured motorist coverage, as prescribed by AS 21.89.020(c). Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235 (Alaska 2001).

AS 21.89.020(c)’s incorporation of the Motor Vehicle Safety Responsibility Act’s (MVSRA) comparable content requirements for liability and underinsured motorist coverage prevailed over its incorporation of the Alaska Mandatory Automobile Insurance Act’s (AMAIA) umbrella policy exclusion, because AS 21.89.020(c) has been interpreted to demand primary compliance with the MVSRA, unless the AMAIA imposes broader requirements. Holderness v. State Farm Fire & Cas. Co., 24 P.3d 1235 (Alaska 2001).

Quoted in

Victor v. State Farm Fire & Cas. Co., 908 P.2d 1043 (Alaska 1996).

Sec. 28.22.130. Policy coverage exclusions. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.131. Proration.

A motor vehicle liability policy may provide for proration of the insurance with other valid and collectible insurance.

History. (§ 1 ch 108 SLA 1989)

Sec. 28.22.141. Other requirements of policy.

  1. A policy is not effective under AS 28.22.101 unless it is issued by an insurance company or surety company authorized to do business in this state, except as provided in (b) of this section.
  2. A policy is not effective under AS 28.22.101 with respect to a vehicle not registered in the state or a vehicle that was registered in another jurisdiction on the effective date of the policy or the most recent renewal of it, unless the insurance or surety company issuing the policy is authorized to do business in the state, or if the company is not authorized to do business in the state, unless it executes a power of attorney authorizing the director of the division of insurance to accept service of process on its behalf in an action upon the policy arising out of the accident.
  3. The requirements for a motor vehicle liability policy may be fulfilled by the policies of one or more insurance carriers that together meet the requirements.
  4. A binder issued pending the issuance of a motor vehicle liability policy fulfills the requirements for a policy.

History. (§ 1 ch 108 SLA 1989)

Article 3. Uninsured and Underinsured Motorists Coverage.

Collateral references. —

What constitutes automobile for purposes of uninsured motorist provisions, 65 ALR3d 851.

Choice of law as to validity of other insurance clause of uninsured motorist coverages, 83 ALR3d 321.

Operation or use of vehicle outside scope of permission as rendering it uninsured within meaning of uninsured motorist coverage, 17 A.L.R.4th 1322.

Combining or stacking uninsured motorist coverages provided in policies issued by different insurers to same insured, 21 ALR4th 211.

Combining or stacking uninsured motorist coverages provided in single policy applicable to different vehicles of individual insured, 23 ALR4th 12.

Combining or stacking uninsured motorist coverages provided in separate policies issued by same insurer to different insureds, 23 ALR4th 108.

Combining or stacking uninsured motorist coverages provided in separate policies issued by same insurer to same insured, 25 ALR4th 6.

Combining or stacking uninsured motorist coverages provided in fleet policy, 25 ALR4th 896.

Applicability of uninsured motorist statutes to self-insurers, 27 ALR4th 1266.

Combining or stacking uninsured motorist coverages provided in policies issued by different insurers to different insureds, 28 ALR4th 362.

Punitive damages as within coverage of uninsured or underinsured motorist insurance, 54 ALR4th 1186.

“Excess” or “umbrella” insurance policy as providing coverage for accidents with uninsured and underinsured motorists, 2 ALR5th 922.

Sec. 28.22.200. Motor vehicle liability insurance required: Exemptions. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.201. Uninsured and underinsured motorists coverage.

  1. The uninsured and underinsured motorists coverage required under this chapter
    1. does not apply to bodily injury, sickness, disease, or death of an insured or damage to or destruction of property of an insured until the limits of liability bonds and policies that apply have been used up by payments or judgments or settlements;
    2. must be a single combined coverage; and
    3. may be rejected by the insured in writing; if the insured has rejected uninsured or underinsured coverage, the coverage may not be included in a supplemental, renewal, or replacement policy unless the insured subsequently requests uninsured or underinsured coverage in writing.
  2. If both the owner and operator of a vehicle are unknown, payment under the uninsured and underinsured motorists coverage may be made only where direct contact between the motor vehicles has occurred. A vehicle and operator that have left the scene of an accident with another vehicle are presumed to be uninsured if the insured person reports the accident to the appropriate authorities within 24 hours.
  3. The uninsured and underinsured motorists coverage for damage to or destruction of property is subject to a deductible of $250 in any one accident, but the insurer may offer a deductible other than $250. This coverage shall be limited to damage to or destruction of the covered motor vehicle. It may not include loss of use of such vehicle.

History. (§ 1 ch 108 SLA 1989)

Notes to Decisions

Applied in

Wold v. Progressive Preferred Ins. Co., 52 P.3d 155 (Alaska 2002).

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998); Ayres v. United Servs. Auto. Ass'n, 160 P.3d 128 (Alaska 2007); Allstate Ins. Co. v. Harbour, 491 P.3d 374 (Alaska 2021).

Collateral references. —

Uninsured motorist indorsement: construction and application of requirement that there be “physical contact” with unidentified or hit-and-run vehicle; “hit-and-run” cases, 79 ALR5th 289.

Sec. 28.22.210. Requirement of proof of motor vehicle liability. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.211. Maximum liability of carrier. [Repealed, § 115 ch 81 SLA 1997.]

Sec. 28.22.220. Method of proof following an accident. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.221. Uninsured and underinsured motorists policy coverage and priorities.

If a person is entitled to uninsured or underinsured motorists coverage under more than one coverage when two or more vehicles are insured under one policy, the maximum amount payable may not exceed the highest limit of any one coverage under the policy. If a person is entitled to uninsured or underinsured motorists coverage under more than one motor vehicle policy issued by the same insurer in the same household, the maximum amount payable may be limited to the highest limit of any one coverage under the policies. If a person is entitled to uninsured or underinsured motorists coverage under more than one policy providing motor vehicle liability coverage, payments will be made in the following order of priority, subject to the limit of liability of each applicable policy or coverage:

  1. a policy or coverage covering a motor vehicle occupied by the injured person or a policy or coverage covering a pedestrian as a named insured;
  2. a policy or coverage covering a motor vehicle occupied by the injured person as an insured other than as a named insured;
  3. a policy or coverage not covering a motor vehicle occupied by the injured person but covering the injured person as a named insured;
  4. a policy or coverage not covering a motor vehicle occupied by the injured person but covering the injured person as an insured other than as a named insured;
  5. a policy or coverage covering, as excess, umbrella, or similar insurance, a motor vehicle occupied by the injured person or a policy or coverage covering, as excess, umbrella, or similar insurance, a pedestrian as a named insured;
  6. a policy or coverage covering, as excess, umbrella, or similar insurance, a motor vehicle occupied by the injured person or a policy or coverage covering, as excess, umbrella, or similar insurance, a pedestrian as an insured other than as a named insured;
  7. a policy or coverage not covering a motor vehicle occupied by the injured person but covering, as excess, umbrella, or similar insurance, the injured person as a named insured;
  8. a policy or coverage not covering a motor vehicle occupied by the injured person but covering, as excess, umbrella, or similar insurance, the injured person as an insured other than as a named insured.

History. (§ 1 ch 108 SLA 1989; am § 6 ch 78 SLA 1990; am § 2 ch 104 SLA 2014)

Effect of amendments. —

The 2014 amendment, effective October 26, 2014, in the introductory language, , in the second sentence deleted “as a named insured” following “person is entitled”, substituted “motorists” for “motorist” and inserted “in the same household” following “by the same insurer”, in the third sentence, substituted “motorists” for “motorist”.

Notes to Decisions

Secondary carrier not collaterally estopped to require arbitration. —

Because the secondary insurance carrier lacked privity with the primary carrier, who arbitrated a claim with the insured, the secondary carrier was not collaterally estopped from demanding arbitration of the plaintiffs’ claim pursuant to its contract with the plaintiffs, and because the secondary carrier did not engage in direct and unequivocal conduct evincing an intention to waive its right to arbitration, it did not waive this right. Powers v. United Servs. Auto. Ass'n, 6 P.3d 294 (Alaska 2000).

Sec. 28.22.230. Method of proof following a charge of a moving traffic violation. [Repealed, § 17 ch 70 SLA 1984.]

Sec. 28.22.231. Policy coverage exclusions.

The uninsured and underinsured motorists coverage required under this chapter does not apply to bodily injury or death or damage to or destruction of property of an insured

  1. while occupying a motor vehicle owned by, but not insured by, the named insured or the insured’s spouse or relative residing in the same household; or
  2. through being struck by a vehicle owned by the named insured or the insured’s spouse or relative residing in the same household.

History. (§ 1 ch 108 SLA 1989)

Notes to Decisions

When insured protected. —

If an insured is occupying an insured vehicle owned by him, he is protected by his underinsured motor vehicle coverage. Burton v. State Farm Fire & Casualty Co., 796 P.2d 1361 (Alaska 1990).

When an exclusion is invalidated, the insurer’s liability is limited to the statutory minimum. Burton v. State Farm Fire & Casualty Co., 796 P.2d 1361 (Alaska 1990).

Secs. 28.22.240 — 28.22.260. Administrative suspension of drivers’ licenses; falsification of information; proof for the future. [Repealed, § 17 ch 70 SLA 1984.]

Article 4. General Provisions.

Sec. 28.22.301. Policy interpretation.

A provision in this chapter may not be interpreted to prohibit a motor vehicle liability policy from including limitations, conditions, exceptions, exclusions, or other provisions that do not violate the requirements of this chapter or other applicable laws.

History. (§ 1 ch 108 SLA 1989)

Notes to Decisions

Coverage below legal minimum. —

Insurers are not permitted to issue policies containing provisions that reduce the scope of coverage below the legal minimum. Burton v. State Farm Fire & Casualty Co., 796 P.2d 1361 (Alaska 1990).

Construction of section. —

Although this section allows insurers to include in their policies other exclusions “that do not violate the requirements of this chapter or other applicable laws,” this section must be construed together with the rest of the Mandatory Motor Vehicle Insurance Act so that all of the statute’s sections have meaning and none conflict. Burton v. State Farm Fire & Casualty Co., 796 P.2d 1361 (Alaska 1990).

Sec. 28.22.311. Definition.

In this chapter, “motor vehicle liability policy” means an owner’s policy, an operator’s policy, or a personal policy that

  1. meets the requirements of AS 28.22.101 ; and
  2. is issued by an insurance carrier authorized to transact business in the state to or for the benefit of the person named as insured.

History. (§ 1 ch 108 SLA 1989)

Notes to Decisions

Cited in

Progressive Cas. Ins. Co. v. Skin, 211 P.3d 1093 (Alaska 2009).

Sec. 28.22.321. Short title.

This chapter may be cited as the Alaska Mandatory Automobile Insurance Act.

History. (§ 1 ch 108 SLA 1989)

Secs. 28.22.500 — 28.22.600. Miscellaneous provisions. [Repealed, § 17 ch 70 SLA 1984.]

Chapter 23. Transportation Network Companies and Drivers.

History. (§ 6 ch 10 SLA 2017)

Cross references. —

For statement of legislative intent applicable to this chapter see sec. 1, ch. 10, SLA 2017, in the 2017 Temporary and Special Acts.

Sec. 28.23.010. Not other carriers.

A transportation network company or driver is not a common carrier, contract carrier, or motor carrier, and may not provide taxicab or for-hire vehicle service. The state or a municipality may not require a transportation network company driver to register the personal vehicle the driver uses to provide prearranged rides as a commercial or for-hire vehicle.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.020. Fare collected for services.

A transportation network company may charge a fare to a transportation network company rider. Before a fare is collected from a rider, the transportation network company shall disclose to the rider, on the company’s Internet website or in the company’s software application, the transportation network company’s fare or fare calculation method. The transportation network company shall provide riders the option of receiving an estimated fare before the rider enters the personal vehicle of a transportation network company driver.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.030. Identification of transportation network company vehicles and drivers.

Before a rider enters the personal vehicle of a transportation network company driver, the transportation network company shall display on the company’s Internet website or in the company’s software application a picture of the transportation network company driver and the license plate number of the personal vehicle providing the prearranged ride.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.040. Electronic receipt.

Within a reasonable period following the completion of a trip, the transportation network company shall transmit to the rider, on behalf of the transportation network company driver, an electronic receipt showing the origin and destination of the trip and itemizing the fare paid, if any.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.050. Financial responsibility of transportation network companies.

  1. A transportation network company driver, or transportation network company on behalf of the driver, shall maintain primary automobile insurance that recognizes that the driver is a transportation network company driver or otherwise uses a vehicle to transport passengers for compensation and that covers the driver while the driver is logged onto the digital network of a transportation network company or while the driver is engaged in a prearranged ride.
  2. The following automobile insurance requirements shall apply while a participating transportation network company driver is logged onto the digital network of a transportation network company and is available to receive transportation requests but is not engaged in a prearranged ride:
    1. primary automobile liability insurance in the amount of at least $50,000 for death and bodily injury for each person, $100,000 for death and bodily injury for each incident, and $25,000 for property damage;
    2. uninsured or underinsured motor vehicle coverage as required under AS 21.96.020 and AS 28.20.440 ;
    3. the coverage requirements of this subsection may be satisfied by
      1. automobile insurance maintained by the transportation network company driver;
      2. automobile insurance maintained by the transportation network company; or
      3. any combination of (A) and (B) of this paragraph.
  3. The following automobile insurance requirements shall apply while a transportation network company driver is engaged in a prearranged ride:
    1. primary automobile liability insurance that provides at least $1,000,000 for death, bodily injury, and property damage;
    2. uninsured or underinsured motor vehicle coverage as required under AS 21.96.020 and AS 28.20.440 ;
    3. the coverage requirements of this subsection may be satisfied by
      1. automobile insurance maintained by the transportation network company driver;
      2. automobile insurance maintained by the transportation network company; or
      3. a combination of (A) and (B) of this paragraph.
  4. If insurance maintained by a driver under (b) or (c) of this section has lapsed or does not provide the required coverage, insurance maintained by a transportation network company must provide the coverage required by this section beginning with the first dollar of a claim, and the transportation network company insurer has the duty to defend that claim.
  5. Coverage under an automobile insurance policy maintained by the transportation network company may not be dependent on a personal automobile insurer first denying a claim nor shall a personal automobile insurance policy be required first to deny a claim.
  6. Insurance required by this section may be placed with an insurer licensed under AS 21.09.060 or with a surplus lines insurer eligible under AS 21.34 that has a credit rating not lower than A- from A.M. Best or a similar rating from another rating agency recognized by the division of insurance.
  7. Insurance satisfying the requirements of this section shall be considered to satisfy the financial responsibility requirement for a motor vehicle under AS 28.20.
  8. A transportation network company driver shall carry proof of coverage under (b) and (c) of this section with the driver at all times during the driver’s use of a vehicle in connection with a digital network of a transportation network company. In the event of an accident, a transportation network company driver shall provide the insurance coverage information to the directly interested parties, automobile insurers, and investigating police officers upon request under AS 28.22.019 . Upon that request, a transportation network company driver shall also disclose to directly interested parties, automobile insurers, and investigating police officers whether the driver was logged onto the digital network of a transportation network company or on a prearranged ride at the time of an accident.
  9. If the insurance carrier for the transportation network company makes a payment for a claim for physical damage to a personal vehicle that is subject to a lien, the insurance carrier shall pay the claim jointly to the owner of the personal vehicle and the primary lienholder or directly to the business repairing the personal vehicle.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.060. Transportation network company automobile insurance disclosures.

A transportation network company shall disclose in writing to transportation network company drivers the following before the drivers are allowed to accept a request for a prearranged ride on the digital network of the transportation network company:

  1. the insurance coverage, including the types of coverage and the limits for each coverage, that the transportation network company provides while the transportation network company driver uses a personal vehicle in connection with a transportation network company’s digital network;
  2. that the automobile insurance policy of the transportation network company driver might not provide any coverage while the driver is logged onto the digital network of a transportation network company and is available to receive transportation requests or is engaged in a prearranged ride, depending on the terms of the automobile insurance policy of the driver; and
  3. that, if the personal vehicle the transportation network company driver uses to provide transportation network services has a lien against it, using the motor vehicle for transportation network services without physical damage coverage may violate the terms of the contract with the lienholder.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.070. Certificate of insurance.

A transportation network company shall file a written certificate of insurance with the director of the division of insurance demonstrating that the transportation network company has satisfied the requirements of AS 28.23.050 . The certificate of insurance must state that the applicable insurance policy may not be cancelled unless written notice is provided to the division of insurance at least 30 days before cancellation.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.080. Limitations on transportation network companies.

  1. Except as provided in (b) of this section, a transportation network company is not an employer of transportation network company drivers under AS 23.10.699 , AS 23.20.520 , or AS 23.30.395 . A transportation network company driver is an independent contractor for all purposes and is not an employee of the transportation network company if the transportation network company
    1. does not unilaterally prescribe specific hours during which a driver shall be logged onto the digital network of the transportation network company;
    2. does not impose restrictions on the ability of the driver to use the digital network of other transportation network companies;
    3. does not restrict a driver from engaging in any other occupation or business; and
    4. enters into a written agreement with the driver stating that the driver is an independent contractor for the transportation network company.
  2. This section does not apply to AS 23.20 if the transportation network company is owned or operated by the state, a municipality, a federally recognized tribe, or an entity that is exempt from federal taxation under 26 U.S.C. 501(c)(3) (Internal Revenue Code).

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.090. Zero tolerance for drug or alcohol use.

The transportation network company shall implement a zero-tolerance policy prohibiting drug and alcohol use while a driver is providing a prearranged ride or is logged onto the digital network of the transportation network company but not providing a prearranged ride. The transportation network company shall post on the company’s Internet website the company’s zero-tolerance policy prohibiting drug and alcohol use.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.100. Transportation network company driver requirements.

  1. Before a transportation network company allows an individual to accept trip requests through the transportation network company’s digital network, the transportation network company, or a third party, shall
    1. require the individual to submit to the transportation network company an application that includes the individual’s address, age, and driver’s license number, the motor vehicle registration and automobile liability insurance information for the individual’s personal vehicle, and other information required by the transportation network company;
    2. conduct a local and national criminal background check for each applicant that reviews
      1. a multi-state or multi-jurisdiction criminal records locator or a similar commercial nationwide database with validation; and
      2. the United States Department of Justice National Sex Offender Public Website; and
    3. obtain and review a driving history research report for the individual.
  2. A transportation network company may not allow a driver to accept trip requests through the transportation network company’s digital network if the driver
    1. has, in the past three years,
      1. been convicted of or forfeited bail for a third or subsequent moving traffic violation;
      2. been convicted of
        1. driving while license canceled, suspended, revoked, or in violation of a limitation under AS 28.15.291 ;
        2. failure to stop at the direction of a peace officer under AS 28.35.182 ;
        3. reckless or negligent driving under AS 28.35.400 or 28.35.410 ; or
        4. a law or ordinance of another jurisdiction having similar elements to an offense listed in (i) — (iii) of this subparagraph;
    2. has, in the past seven years, been convicted of
      1. any offense that is an unclassified, class A, or class B felony in this or another jurisdiction; or
      2. a felony or misdemeanor involving
        1. a crime under AS 28.33.030 , AS 28.35.030 , or 28.35.032 ;
        2. a crime under AS 28.35.050 or 28.35.060 ;
        3. a crime against a person under AS 11.41; or
        4. a law or ordinance of another jurisdiction having similar elements to an offense listed in (i) — (iii) of this subparagraph;
    3. is listed on the United States Department of Justice National Sex Offender Public Website; or
    4. is under 21 years of age.
  3. A transportation network company driver may not
    1. provide a prearranged ride unless the transportation network company rider has been matched to the driver through the digital network of the transportation network company;
    2. solicit a ride or accept a street hail request for a ride; or
    3. solicit or accept cash payments for a fare from a rider.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.110. Transportation network company vehicles.

  1. Before a transportation network company allows an individual to accept trip requests through the transportation network company’s digital network and before a personal vehicle may be used to provide transportation network company services, the transportation network company shall conduct, or confirm satisfactory completion of, a safety inspection of the individual’s personal vehicle. The safety inspection required under this subsection must include an inspection of the following components of the personal vehicle:
    1. foot brakes;
    2. parking brakes;
    3. steering mechanism;
    4. windshield;
    5. rear window and other glass;
    6. windshield wipers;
    7. headlights;
    8. taillights;
    9. brake lights;
    10. front seat adjustment mechanism;
    11. doors;
    12. turn signal lights;
    13. horn;
    14. speedometer;
    15. bumpers;
    16. muffler and exhaust system;
    17. tires, including tread depth;
    18. interior and exterior mirrors;
    19. safety belts.
  2. A motor vehicle that is used by a transportation network company driver for transportation network company purposes may not be more than 12 years of age.

History. (§ 6 ch 10 SLA 2017)

Revisor's notes. —

This section was enacted as 28.23.105; renumbered in 2017.

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.120. Nondiscrimination and accessibility.

  1. The transportation network company shall adopt a policy prohibiting discrimination based on destination or a class or status protected under AS 18.80.210 with respect to a rider or potential rider. The company shall inform drivers of the policy.
  2. A transportation network company driver shall comply with all applicable laws relating to accommodation of service animals.
  3. A transportation network company may not impose additional charges for providing services to riders with physical disabilities because of those disabilities.

History. (§ 6 ch 10 SLA 2017)

Revisor's notes. —

This section was enacted as 28.23.110; renumbered in 2017.

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.130. Records.

A transportation network company shall keep records

  1. maintained by the transportation network company for an individual prearranged ride for at least two years from the date of the prearranged ride; and
  2. maintained by individual transportation network company drivers for two years after the agreement between the transportation network company and driver entered into under AS 28.23.080(a)(4) ends.

History. (§ 6 ch 10 SLA 2017)

Revisor's notes. —

This section was enacted as 28.23.120; renumbered in 2017.

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.140. International airports.

The Department of Transportation and Public Facilities may, under AS 02.15, enter into a contract, lease, or other arrangement with a transportation network company for use of an international airport owned or operated by the state. A contract, lease, or arrangement under AS 02.15 must be consistent with this chapter.

History. (§ 6 ch 10 SLA 2017)

Revisor's notes. —

This section was enacted as 28.23.130; renumbered in 2017.

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.180. Definitions.

In this chapter,

  1. “digital network” means any online-enabled application, software, website, or system offered or used by a transportation network company that enables the prearrangement of rides with transportation network company drivers;
  2. “personal vehicle” means a motor vehicle that is used by a transportation network company driver and is owned, leased, or otherwise authorized for use by the transportation network company driver; “personal vehicle” does not include a taxi, limousine, or other commercial motor vehicle for hire;
  3. “prearranged ride” means transportation provided by a driver to a rider, beginning when a driver accepts a ride requested by a rider through a digital network controlled by a transportation network company, continuing while the driver transports a requesting rider, and ending when the last requesting rider departs from the personal vehicle; “prearranged ride” does not include shared expense carpool or vanpool arrangements or transportation provided using a taxi, limousine, or other commercial motor vehicle for hire;
  4. “transportation network company” means a corporation, partnership, sole proprietorship, or other entity that uses a digital network to connect transportation network company riders to transportation network company drivers who provide prearranged rides; a transportation network company may not be considered to control, direct, or manage the personal vehicles or transportation network company drivers that connect to the transportation network company’s digital network, except where agreed to by written contract;
  5. “transportation network company driver” or “driver” means an individual who
    1. receives connections to potential passengers and related services from a transportation network company in exchange for payment of a fee to the transportation network company; and
    2. uses a personal vehicle to offer or provide a prearranged ride to riders upon connection through a digital network controlled by a transportation network company in return for compensation or payment of a fee;
  6. “transportation network company rider” or “rider” means an individual or person who uses a digital network of a transportation network company to connect with a transportation network company driver who provides a prearranged ride to the rider in the driver’s personal vehicle between points chosen by the rider.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Sec. 28.23.190. Short title.

This chapter may be cited as the Transportation Network Companies Act.

History. (§ 6 ch 10 SLA 2017)

Effective dates. —

Section 6, ch. 10 SLA 2017 makes this section effective June 16, 2017, in accordance with AS 01.10.070(c) .

Chapter 25. Protection of Blind Persons.

[Repealed, § 1 ch 19 SLA 1972.]

Chapter 30. Abandoned Vehicles.

[Repealed, § 36 ch 127 SLA 1974.]

Chapter 31. Abandoned Motor Vehicles.

[Repealed, § 3 ch 61 SLA 1976. For current law, see AS 28.11.]

Chapter 32. Commercial Motor Vehicle Safety Citations.

Sec. 28.32.010. Commercial motor vehicle safety citations.

  1. [Repealed, § 16 E.O. 98 (1997). For current law, see AS 19.10.310 .]
  2. A peace officer, or an employee of the Department of Public Safety who is authorized by the commissioner of that department to enforce both hazardous materials and commercial vehicle safety regulations, may issue a citation under AS 12.25.175 12.25.230 to a person who violates a regulation adopted under AS 28.05.011(a)(2) . An employee of the Department of Public Safety who is authorized by the commissioner of public safety to enforce both hazardous materials and commercial vehicle safety regulations may not take a person into custody under AS 12.25.180(b) .

History. (§ 3 ch 104 SLA 1985; am § 1 ch 109 SLA 1990; am E.O. No. 98 § 16 (1997); am E.O. No. 99 § 49 (1997); am § 40 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, substituted “AS 12.25.175 12.25.230 ” for “AS 12.25.180 12.25.230 ”.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendment of (b) of this section applies “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Sec. 28.32.020. Exemptions. [Repealed, § 3 ch 109 SLA 1990.]

Secs. 28.32.030 — 28.32.900. [Repealed, § 16 E.O. 98 (1997). For current law, see AS 19.10.340 — 19.10.399.]

Chapter 33. Commercial Motor Vehicles.

Administrative Code. —

For commercial motor vehicle and driving offenses: rules of the road, see 13 AAC 03.

Article 1. Operating Commercial Motor Vehicle While Under the Influence of an Alcoholic Beverage, Inhalant, or Controlled Substance.

Legislative history reports. —

For the Governor’s transmittal letter in connection with the enactment of this article by § 15, ch. 3, SLA 1992 (HCS CSSB 261 (JUD) am H), see 1992 Senate Journal 954.

Sec. 28.33.010. Financial responsibility. [Repealed, § 16 E.O. 98 (1997). For current law, see AS 19.10.300.]

Sec. 28.33.030. Operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance.

  1. A person commits the crime of operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates a commercial motor vehicle
    1. while under the influence of an alcoholic beverage, inhalant, or any controlled substance;
    2. when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.04 percent or more by weight of alcohol in the person’s blood or 40 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.04 grams or more of alcohol per 210 liters of the person’s breath; or
    3. while under the combined influence of an alcoholic beverage, inhalant, and a controlled substance.
  2. Operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance is a class A misdemeanor.
  3. The sentencing of a person convicted under this section shall be in accordance with the minimum periods of imprisonment, fines, rehabilitative treatment, and other provisions of AS 28.35.030 , as if the person had been convicted of a violation of AS 28.35.030 . For purposes of sentencing, convictions for operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance under this section, and for refusal to submit to a chemical test under AS 28.35.032 , if arising out of a single transaction, are considered one previous conviction.

History. (§ 15 ch 3 SLA 1992; am § 21 ch 60 SLA 2002)

Revisor’s notes. —

In 2012, in (c) of this section, “AS 28.35.032 ” was substituted for “AS 28.33.032” to correct a manifest error in ch. 3, SLA 1992.

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

Notes to Decisions

Cited in

Haywood v. State, 193 P.3d 1203 (Alaska Ct. App. 2008).

Sec. 28.33.031. Implied consent for operators of commercial motor vehicles.

  1. A person who operates a commercial motor vehicle in this state is considered to have given consent to a chemical test or tests
    1. of the person’s breath if lawfully arrested for an offense arising out of acts alleged to have been committed when the person was operating the commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance; the test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.33.030 or AS 28.35.030 ;
    2. of the person’s breath and blood for the purpose of determining the alcoholic content of the person’s breath and blood and is considered to have given consent to a chemical test or tests of the person’s blood and urine for the purpose of determining the presence of controlled substances in the person’s blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person; the test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating a commercial motor vehicle that was involved in an accident causing death or serious physical injury to another person.
  2. Refusal to submit to a chemical test authorized under this section is punishable under AS 28.35.032 . A chemical test may be administered without consent under AS 28.35.035 . A person who is disqualified as the result of department action under AS 28.15.165 , following a test administered under this section, can obtain review of that action under AS 28.15.166 .
  3. A person who operates a commercial motor vehicle is considered to have given consent to a preliminary breath test, at the direction of a law enforcement officer, for the purpose of determining the alcoholic content of the person’s blood or breath. A law enforcement officer may administer a preliminary breath test if the officer has probable cause to believe that the person’s ability to operate a commercial motor vehicle is impaired by the ingestion of alcoholic beverages and that
    1. the commercial motor vehicle caused injury to person or property;
    2. the person violated the provisions of AS 28.33.130(a) or violated the terms of an out-of-service order issued under AS 28.33.130 ; or
    3. the person unlawfully operated a commercial motor vehicle; in this paragraph, “unlawfully” means in violation of any federal, state, or municipal statute, regulation, or ordinance.
  4. Before administering a preliminary breath test under (c) of this section, the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is a misdemeanor. If the person refuses to submit to the test, the test may not be administered.
  5. The result of the preliminary test under (c) of this section may be used by the law enforcement officer to determine whether the operator should be arrested. If an operator is arrested, the provisions of (a) of this section apply. The preliminary breath test authorized under (c) of this section is in addition to any chemical tests authorized under (a) of this section.
  6. Refusal to submit to a preliminary breath test at the request of a law enforcement officer is a class B misdemeanor.

History. (§ 15 ch 3 SLA 1992; am § 5 ch 55 SLA 1994; am §§ 22, 23 ch 60 SLA 2002)

Cross references. —

For provisions concerning validity of breath test, see AS 28.90.020 .

Notes to Decisions

Stated in

Javed v. Dep't of Pub. Safety, 921 P.2d 620 (Alaska 1996).

Cited in

Snyder v. Alaska, Dep't of Public Safety, Div. of Motor Vehicles, 31 P.3d 770 (Alaska 2001); Velarde v. State, 353 P.3d 355 (Alaska Ct. App. 2015).

Sec. 28.33.033. Presumptions and chemical analysis of breath or blood.

  1. Upon the trial of a civil or criminal action or proceedings arising out of acts alleged to have been committed by a person operating a commercial motor vehicle while under the influence of an alcoholic beverage in violation of AS 28.33.030 , the following rules apply with regard to the amount of alcohol in the person’s blood or breath at the time alleged:
    1. if there was less than 0.04 percent by weight of alcohol in the person’s blood, or less than 40 milligrams of alcohol per 100 milliliters of the person’s blood, or less than 0.04 grams of alcohol per 210 liters of the person’s breath, that fact does not give rise to a presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage;
    2. if there was 0.04 percent or more by weight of alcohol in the person’s blood, or 40 milligrams or more of alcohol per 100 milliliters of the person’s blood, or 0.04 grams or more of alcohol per 210 liters of the person’s breath, it is presumed that the person was under the influence of an alcoholic beverage.
  2. For purposes of this chapter, percent by weight of alcohol in the blood is based upon milligrams of alcohol per 100 milliliters of blood.
  3. The provisions of (a) of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of an alcoholic beverage.
  4. The person tested may have a physician, or a qualified technician, chemist, registered or advanced practice registered nurse, or other qualified person of the person’s own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain an additional test, and failed or was unable to do so, is likewise admissible in evidence.
  5. Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or person’s attorney.

History. (§ 15 ch 3 SLA 1992; am §§ 24, 25 ch 60 SLA 2002; am § 45 ch 33 SLA 2016)

Effect of amendments. —

The 2016 amendment, effective July 7, 2016, in (d), inserted “or advanced practice registered” preceding “nurse”.

Notes to Decisions

Cited in

Valentine v. State, 215 P.3d 319 (Alaska 2009).

Article 2. Commercial Vehicle Operators.

Legislative history reports. —

For the Governor’s transmittal letter in connection with the enactment of AS 28.33.130 , 28.33.140 , and 28.33.150 in § 19, ch. 3, SLA 1992 (HCS CSSB 261 (JUD) am H), see 1992 Senate Journal 954.

Sec. 28.33.100. License to drive commercial motor vehicle.

  1. A person may not drive a commercial motor vehicle until the person applies for and is issued a license for that purpose under AS 28.15.041 . The department may not issue a license to drive a commercial motor vehicle unless the applicant
    1. is at least 18 years of age, to operate in intrastate commerce, or at least 21 years of age, to operate in interstate commerce, except as provided in (f) of this section;
    2. has held a valid driver’s license at least one year before the date of application or meets the experience qualifications established by the department;
    3. has successfully completed all required driving tests and written and physical examinations;
    4. either does not have a driver’s license issued by another jurisdiction or surrenders all driver’s licenses issued by other jurisdictions; and
    5. is domiciled in this state.
  2. In addition to the information required under AS 28.15.111 , a commercial driver’s license shall include information determined by the United States Secretary of Transportation to be appropriate to identify the licensee.
  3. A person who has been a state resident for 30 days or longer may not drive a commercial motor vehicle under the authority of a commercial driver’s license issued by another jurisdiction.
  4. The licensing requirements of this section are in addition to the requirements imposed on a school bus driver under AS 28.15.046 .
  5. The department shall disqualify a person for a period of 60 consecutive days, and shall reevaluate the person’s application or license to drive a commercial motor vehicle, if the department determines that the person knowingly provided false information required under
    1. this section or AS 28.15 in an application to the department for a commercial driver’s license; or
    2. AS 28.33.110(c) in an application for employment.
  6. The department may authorize a person who is at least 18 years of age but under 21 years of age to operate a commercial motor vehicle in interstate commerce if the person
    1. holds a valid commercial driver’s license under (a) of this section; and
    2. is authorized to operate a commercial motor vehicle in interstate commerce under federal law.

History. (§ 3 ch 53 SLA 1990; am §§ 16, 17 ch 3 SLA 1992; am § 3 ch 40 SLA 2001; am § 15 ch 23 SLA 2007; am §§ 1, 2 ch 19 SLA 2019)

Administrative Code. —

For classified driver's licenses, see 2 AAC 90, art. 4.

Effect of amendments. —

The 2019 amendment, effective November 14, 2019, in (a)(1), substituted “18 years of age” for “19 years of age” and inserted “, except as provided in (f) of this section”; added (f).

Sec. 28.33.110. Notification requirements for drivers of commercial motor vehicles.

  1. A driver of a commercial motor vehicle holding a commercial driver’s license issued by the state who is convicted of violating a federal or state law or local ordinance relating to motor vehicle traffic control in this or another state, or a federal, provincial, territorial, or municipal law relating to motor vehicle traffic control in Canada, other than parking violations, shall notify the driver’s employer, in writing, of the conviction within 30 days after the date of conviction.
  2. A driver whose operating privilege is suspended, revoked, or canceled by a state, who loses the privilege to operate a commercial motor vehicle in a state for any period, or who is disqualified from operating a commercial motor vehicle for any period, shall notify the driver’s employer of that fact before the end of the business day following the day the driver received notice of the suspension, revocation, cancellation, loss, or disqualification.
  3. A person who applies for employment as a commercial motor vehicle driver shall
    1. provide the person’s prospective employer, at the time of application for employment, with the following information for the 10 years preceding the date of application:
      1. a list of the names and addresses of employers for which the applicant was a driver of a commercial motor vehicle;
      2. the dates between which the applicant drove for each employer;
      3. the reason for leaving each employer;
    2. certify that the information provided under this subsection is true and complete; and
    3. provide additional information required by the employer.

History. (§ 3 ch 53 SLA 1990)

Sec. 28.33.120. Responsibilities of employers of commercial motor vehicle driver.

An employer of a commercial motor vehicle driver

  1. shall require an applicant for employment to provide the information required under AS 28.33.110(c) ;
  2. may not knowingly allow, require, permit, assign, or authorize a driver to drive a commercial motor vehicle during a period in which
    1. the driver’s license is suspended, revoked, or canceled by a state;
    2. the driver has lost the privilege to drive a commercial motor vehicle in a state;
    3. the driver has been disqualified from driving a commercial motor vehicle;
    4. the driver has more than one driver’s license;
    5. the driver is not licensed to drive a commercial motor vehicle; or
  3. may not knowingly allow, require, permit, assign, or authorize the driver to operate a commercial motor vehicle in violation of a federal or state statute or regulation, or a local law or ordinance, relating to railroad-highway grade crossings.

History. (§ 3 ch 53 SLA 1990; am § 18 ch 3 SLA 1992; am § 1 ch 36 SLA 2003)

Sec. 28.33.130. Out-of-service orders.

  1. A person may not operate a commercial motor vehicle or be on duty
    1. if, within the preceding four hours, the person
      1. consumed or was under the influence of
        1. an alcoholic beverage;
        2. a controlled substance not prescribed by a physician; or
        3. a controlled substance prescribed by a physician that might impair a person’s ability to operate a commercial motor vehicle; or
      2. had any measurable alcohol concentration within the blood or breath or any detectable presence of alcohol;
    2. while in possession of an alcoholic beverage or a controlled substance not prescribed by a physician unless
      1. the alcoholic beverage or controlled substance is manifested and documented as part of an authorized shipment of cargo; or
      2. under AS 04, the alcoholic beverage may be legally served to passengers being carried for hire;
    3. after being placed out of service for violation of a regulation adopted under AS 19.10.060(c) or AS 28.05.011 ; or
    4. with an invalid operator’s or commercial operator’s license.
  2. An employer, or a peace officer, who has reasonable grounds to believe that a person has violated (a) of this section, shall immediately give the person a written notice ordering the person out of service. If it is not possible to issue a written out of service order, a verbal order may be issued. An employer may not knowingly allow, require, permit, assign, or authorize a person to operate a commercial motor vehicle or be on duty during a period in which
    1. the person has been ordered out of service under this section; or
    2. the person has violated (a) of this section, even if an out-of-service order has not been issued.
  3. A person who is ordered out of service
    1. may not operate a commercial motor vehicle or be on duty for 24 hours following issuance of the out-of-service order; and
    2. shall report that fact, in writing,
      1. within 24 hours to the person’s employer; and
      2. within 30 days to the department if the person possesses a commercial motor vehicle license.
  4. In this section, “on duty” means the period of time in which a person is
    1. required by the person’s employer to be ready to immediately operate a commercial motor vehicle, including time spent waiting to be assigned to operate a commercial motor vehicle;
    2. inspecting, servicing, or conditioning a commercial motor vehicle;
    3. in or upon a commercial motor vehicle, except time spent resting in a sleeper berth;
    4. loading or unloading, or supervising the loading or unloading of, a commercial motor vehicle, or giving or receiving receipts for shipments loaded or unloaded;
    5. taking action, as required by state or federal law, following an accident involving a commercial motor vehicle; or
    6. repairing or obtaining assistance for a disabled commercial motor vehicle.

History. (§ 19 ch 3 SLA 1992; am § 21 ch 6 FSSLA 1996; am E.O. No. 99 § 54 (1997); am § 2 ch 80 SLA 2003)

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

Sec. 28.33.140. Conviction resulting in disqualification from driving commercial vehicle.

  1. In addition to any court action or administrative action in this or any other jurisdiction, conviction of a person who holds or is required to have a commercial driver’s license or commercial instruction permit of any of the following offenses is grounds for immediate disqualification from driving a commercial motor vehicle for the periods set out in this section:
    1. operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.33.030 ;
    2. refusal to submit to a chemical test in violation of AS 28.35.032 ;
    3. operating a motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.35.030 ;
    4. leaving the scene of an accident in violation of AS 28.35.060 , or failing to file, or providing false information in, an accident report in violation of AS 28.35.110 ;
    5. a felony under state or federal law that was facilitated because the person used a motor vehicle;
    6. a serious traffic violation;
    7. taking one of the following actions in violation of regulations adopted under AS 19.10.060(c) or AS 28.05.011 :
      1. driving after being placed out of service; or
      2. operating a commercial vehicle that has been placed out of service;
    8. operating a commercial motor vehicle in violation of a federal or state statute or regulation, or a local law or ordinance, relating to railroad-highway grade crossings;
    9. operating a commercial motor vehicle while the driver’s commercial motor vehicle license is suspended, revoked, or canceled, or the driver is disqualified;
    10. causing a fatality through the negligent operation, or operation in violation of a felony criminal law, of a commercial motor vehicle.
  2. [Repealed, § 31 ch 23 SLA 2007.]
  3. Upon a conviction by a court of a person of an offense described in (a)(6) of this section, the department shall disqualify that person from driving a commercial motor vehicle for not less than 60 days if the person has been previously convicted once, and 120 days if the person has been previously convicted more than once. The disqualification period under this subsection is in addition to any other previously imposed period of disqualification. As used in this subsection, “previously convicted” means having been convicted in this or another jurisdiction, within three years preceding the date of the present offense, of an offense described in (a)(6) of this section, or of another law or ordinance with substantially similar elements, arising out of a separate incident.
  4. Upon conviction by a court of a person of an offense described in (a)(1) — (5), (9), or (10) of this section, the department shall disqualify that person from driving a commercial motor vehicle for not less than one year for a first offense, except that, if the offense was
    1. facilitated by a commercial motor vehicle transporting a hazardous material that required that placards be placed on the vehicle under 49 U.S.C. 5101 — 5127, the period of disqualification is not less than three years;
    2. a felony offense that involved the manufacture, distribution, or dispensing, or possession with intent to manufacture, distribute, or dispense, a controlled substance, the disqualification is for life and the license may not be reinstated under (g) of this section.
  5. Upon conviction by a court of a person of an offense described in (a)(1) — (5), (9), or (10) of this section, the department shall disqualify that person from driving a commercial motor vehicle for life if the person has been previously convicted. As used in this subsection, “previously convicted” means having been convicted in this or another jurisdiction of an offense described in (a)(1) — (5), (9), or (10) of this section, or of another law or ordinance with substantially similar elements.
  6. A person who is disqualified under this section may not obtain a limited license under AS 28.15.201 to permit driving a commercial motor vehicle.
  7. A person disqualified for life under (e) of this section may apply to the department for reinstatement of a commercial driver’s license if
    1. the person has successfully completed an appropriate rehabilitation program satisfactory to the department;
    2. the person has not committed a felony offense, or a misdemeanor offense involving operation of a motor vehicle, during the period of disqualification; and
    3. the person has undergone a minimum disqualification period of 10 years.
  8. A disqualified driver reinstated under (g) of this section who is subsequently convicted of a disqualifying offense described in (a)(1) — (5) of this section is permanently disqualified for life and is ineligible to again apply for reinstatement under (g) of this section.
  9. In addition to the requirements of AS 28.15.191 , a court that disqualifies a person from driving a commercial motor vehicle shall require the surrender of the license, and shall immediately forward the license to the department with the record of conviction and notification of the effective date of the disqualification. If the disqualification occurs by administrative action as described in (a) of this section, the person disqualified from driving shall surrender the license to the department.
  10. Upon conviction by a court of a person of an offense described in (a)(7) of this section, the department shall disqualify that person from driving a commercial motor vehicle for the following periods: (1) if the person has not been previously convicted of violating an out-of-service order, not less than 180 days; (2) if the person has been previously convicted once of violating an out-of-service order, not less than two years; (3) if the person has been previously convicted more than once of violating an out-of-service order, not less than three years; (4) if the person operates a commercial motor vehicle transporting hazardous materials or a vehicle designed to transport 16 or more passengers, including the driver, in violation of an out-of-service order, not less than 180 days; (5) if the person has been previously convicted of operating a commercial motor vehicle transporting hazardous materials or a vehicle designed to transport 16 or more passengers, including the driver, in violation of an out-of-service order two or more times in separate incidents within a 10-year period, not less than three years. In this subsection, “previously convicted” means having been convicted in this or another jurisdiction of an offense described in (a)(7) of this section within 10 years preceding the date of the present offense.
  11. Upon conviction by a court of a person of an offense described in (a)(8) of this section, the department shall disqualify that person from operating a commercial motor vehicle for the following periods: (1) if the person has not been previously convicted of violating a federal or state statute or regulation, or a local law or ordinance, relating to railroad-highway grade crossings, not less than 60 days; (2) if the person has been previously convicted once of violating a federal or state statute or regulation, or a local law or ordinance, relating to railroad-highway grade crossings, not less than 120 days; (3) if the person has been previously convicted more than once of a violation of a federal or state statute or regulation, or a local law or ordinance, relating to railroad-highway grade crossings, not less than one year. In this subsection, “previously convicted” means having been convicted in this or another jurisdiction of an offense described in (a)(8) of this section within three years proceeding the date of the present offense.
  12. A person who operates a commercial motor vehicle whose driving is determined by the United States Department of Transportation to constitute an imminent hazard is subject to disqualification as specified by the department in regulation. The regulations adopted by the department under this subsection must be substantially similar to those set by the federal government.
  13. A person who violates the standards for operating a commercial motor vehicle or who knowingly operates a commercial motor vehicle that has been placed out of service as set out by the department in regulation is subject to civil penalties established by the department in regulation. An employer who knowingly allows an employee to drive in violation of an out-of-service order or in violation of a railroad-highway grade crossing is subject to civil penalties as described in 49 U.S.C. 521(b) as established by the department in regulation. The department may adopt regulations under AS 44.62 to implement this subsection. The regulations adopted under this subsection must be substantially similar to any applicable federal regulations. In this subsection, “knowingly” has the meaning given in AS 11.81.900 .

History. (§ 19 ch 3 SLA 1992; am §§ 22, 23 ch 6 FSSLA 1996; am § 16 ch 33 SLA 1999; am § 26 ch 60 SLA 2002; am §§ 2, 3 ch 36 SLA 2003; am § 3 ch 80 SLA 2003; am §§ 16 — 23, 31 ch 23 SLA 2007; am §§ 11, 12 ch 80 SLA 2014)

Administrative Code. —

For school bus driver permit, see 2 AAC 90, art. 2.

Effect of amendments. —

The 2014 amendment, effective July 11, 2014, in the introductory language of (a), inserted “or commercial instruction permit” following “have a commercial driver’s license”, in the introductory language in (a)(7), substituted “taking one of the following actions” for “driving after being placed out of service” and added (a)(7)(A) and (a)(7)(B); in (m), inserted “or who knowingly operates a commercial motor vehicle that has been placed out of service as” following “operating a commercial vehicle” in the first sentence; made related and stylistic changes.

Editor’s notes. —

Section 30, ch. 3, SLA 1992 provides that for the purposes of this section, enacted by § 19, ch. 3, SLA 1992, convictions for offenses committed before April 1, 1992 are considered previous convictions.

Notes to Decisions

Application of former provisions. —

Earlier provisions of this section did not allow the disqualification of a commercial driver’s license for a conviction involving a noncommercial motor vehicle; because subsection (a) and former subsection (b) were reasonably susceptible of two contradictory interpretations, the statute was ambiguous, and under the rule of lenity, resolution of the ambiguity required adoption of the meaning most favorable to defendant. Haywood v. State, 193 P.3d 1203 (Alaska Ct. App. 2008).

Cited in

Davis v. State, 235 P.3d 1017 (Alaska Ct. App. 2010).

Sec. 28.33.150. Driving a commercial motor vehicle without being lawfully licensed.

  1. A person is guilty of a class A misdemeanor if the person drives a commercial motor vehicle in this state
    1. without being licensed or privileged in this state to drive a commercial motor vehicle;
    2. during a period when that person’s driver’s license, privilege to drive, or privilege to obtain a license has been canceled, suspended, or revoked, or the person has been disqualified, in this or another jurisdiction;
    3. in violation of a limitation placed upon that person’s license or privilege to drive in this or another jurisdiction;
    4. during a period when that person has been disqualified from driving a commercial motor vehicle by a court or an administrative agency in this or another jurisdiction; or
    5. in violation of an out-of-service order issued under AS 28.33.130 or under a law in another jurisdiction having substantially similar requirements.
  2. Upon conviction under (a)(2) — (5) of this section, the court
    1. shall impose a minimum sentence of imprisonment
      1. if the person has not been previously convicted, of not less than 20 days with 10 days suspended, including a mandatory condition of probation that the defendant complete not less than 80 hours of community work service; or
      2. if the person has been previously convicted, of not less than 60 days and a fine of $1,000;
    2. may impose additional conditions of probation;
    3. may not
      1. suspend execution of sentence or grant probation except on condition that the person serve a minimum term of imprisonment and perform required community work service as provided in (1) of this subsection;
      2. suspend imposition of sentence; and
    4. shall revoke the person’s license, privilege to drive, or privilege to obtain a license, and the person may not be issued a new license nor may the privilege to drive or obtain a license be restored for an additional period of not less than 90 days after the date that the person would have been entitled to restoration of driving privileges.
  3. In this section, “previously convicted” means having been convicted in this or another jurisdiction, within 10 years preceding the date of the present offense, of a violation of this section, AS 28.15.291 , or another law or ordinance with substantially similar elements.

History. (§ 19 ch 3 SLA 1992; am § 24 ch 23 SLA 2007)

Editor’s notes. —

Section 30, ch. 3, SLA 1992 provides that for the purposes of this section, enacted by § 19, ch. 3, SLA 1992, convictions for offenses committed before April 1, 1992 are considered previous convictions.

Article 3. General Provisions.

Sec. 28.33.190. Definitions.

In this chapter,

  1. “alcoholic beverage” has the meaning given in AS 04.21.080(b) ;
  2. “commerce” means
    1. any trade, traffic, or transportation within the jurisdiction of the United States between a place in a state and a place outside of the United States; and
    2. trade, traffic, and transportation in the United States that affects any trade, traffic, and transportation described in (A) of this paragraph;
  3. “commercial driver’s license” means a license issued by a state or other jurisdiction, in accordance with the standards contained in 49 C.F.R. 383, to an individual authorizing the individual to operate a class of a commercial motor vehicle;
  4. “commercial motor vehicle” has the meaning given in AS 28.90.990 ;
  5. “controlled substance” means any substance listed as being controlled under AS 11.71 or 21 U.S.C. 812 — 813, or determined under federal regulations to be controlled for purposes of 21 U.S.C. 801 — 813 (Controlled Substances Act);
  6. “conviction” means an unvacated adjudication or conviction of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative agency, an unvacated forfeiture of bail or collateral deposited to secure the person’s appearance in court, a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether the penalty is rebated, suspended, or probated;
  7. “disqualification” means a withdrawal of the privilege to drive a commercial motor vehicle;
  8. “disqualified” means that a person’s privilege to drive a commercial motor vehicle has been withdrawn;
  9. “domicile” means a state of the United States where a person has the person’s true, fixed, and permanent home and principal residence and to which the person has the intention of returning whenever the person is absent;
  10. “drive a commercial motor vehicle” means to affect the movement, attempt to affect the movement, or to be in actual physical control, of a commercial motor vehicle in motion, excluding slight motion incidental to loading, unloading, servicing, or inspecting the vehicle;
  11. “employer” means a person who
    1. provides compensation to a person who operates a commercial motor vehicle, including wages or other remuneration, whether through an employment relationship or by contract; or
    2. acts as an agent of someone who provides compensation to a person who operates a commercial motor vehicle, with authority to allow, require, permit, assign, or authorize the person being compensated to operate a commercial motor vehicle;
  12. “hazardous material” means any material that has been designated as hazardous under 49 U.S.C. 5103 and is required to be placarded under subpart F of 49 C.F.R. 172 or any quantity of a material listed as a select agent or toxin in 42 C.F.R. 73;
  13. “imminent hazard” means the existence of a condition that presents a substantial likelihood that death, serious illness, severe personal injury, or a substantial endangerment to health, property, or the environment may occur before the reasonably foreseeable completion date of a formal proceeding by the United States Department of Transportation begun to lessen the risk of that death, illness, injury, or endangerment;
  14. “operating a commercial motor vehicle” means
    1. to drive a commercial motor vehicle; or
    2. whether or not the vehicle is in motion, or is capable of being moved, to be in actual physical control, or to attempt to affect the movement, of a commercial motor vehicle;
  15. “out-of-service order” means an order issued under regulations adopted under AS 19.10.060(c) or AS 28.05.011 that prohibits an owner or operator of a commercial motor vehicle from operating a commercial motor vehicle; and
  16. “serious traffic violation” means
    1. speeding 15 miles per hour or more above the posted limit;
    2. reckless or negligent driving, in violation of AS 28.35.400 or 28.35.410 or an ordinance with substantially similar elements;
    3. violation of a provision of this title, or a regulation adopted under this title, relating to improper lane changes or following too closely, or an ordinance with substantially similar elements;
    4. violation of a law or ordinance relating to traffic control, which was determined by the court by a preponderance of the evidence to have been a factor in causing physical injury to a person;
    5. driving a commercial motor vehicle without obtaining a license to drive a commercial motor vehicle;
    6. driving a commercial motor vehicle without a license to drive a commercial motor vehicle in the driver’s possession; however, if an individual provides proof to the department by the date that the individual was required to appear in court or pay any fine for that violation that the individual held a valid license to drive a commercial motor vehicle on the date the citation was issued, the driving may not be considered as a serious traffic violation under this paragraph;
    7. driving a commercial motor vehicle without the proper class of license to drive a commercial motor vehicle and any required endorsements for the specific vehicle group being operated, or for the passengers or type of cargo being transported; or
    8. driving a commercial motor vehicle in violation of AS 28.35.161 .

History. (§ 3 ch 53 SLA 1990; am § 20 ch 3 SLA 1992; am § 6 ch 55 SLA 1994; am § 24 ch 6 FSSLA 1996; am § 17 ch 33 SLA 1999; am § 4 ch 80 SLA 2003; am §§ 25, 26, 31 ch 23 SLA 2007; am § 13 ch 80 SLA 2014)

Revisor’s notes. —

Enacted as AS 28.33.300 and renumbered in 1990. In 1996 and 2007 the paragraphs were renumbered to maintain the alphabetical order. In 2006, in (3) of this section, “AS 28.90.990 ” was substituted for “AS 28.40.100 ” and in (16)(B) of this section, “AS 28.35.400 or 28.35.410 ” was substituted for “AS 28.35.040 or 28.35.045 ” to reflect the 2006 renumbering of AS 28.35.040 , 28.35.045 , and 28.40.100 .

Effect of amendments. —

The 2014 amendment, effective July 11, 2014, added (16)(H), and made a related change.

Chapter 35. Offenses and Accidents.

Administrative Code. —

For motor vehicle and driving offenses: rules of the road, see 13 AAC 02.

Collateral references. —

Richard E. Erwin, Defense of Drunk Driving Cases: Criminal - Civil (Matthew Bender).

Campbell, Fisher, and Mansfield, Defense of Speeding, Reckless Driving & Vehicular Homicide (Matthew Bender).

Cohen and Green, Apprehending and Prosecuting the Drunk Driver: A Manual for Police and Prosecution (Matthew Bender).

Article 1. Offenses Related to Alcohol, Inhalants, and Controlled Substances; Implied Consent.

Administrative Code. —

For forensic alcohol testing, see 13 AAC 63.

Sec. 28.35.010. Driving a vehicle without owner’s consent. [Repealed, § 21 ch 166 SLA 1978. For current law, see AS 11.46.360.]

Sec. 28.35.015. [Renumbered as AS 28.35.300.]

Sec. 28.35.020. Conviction in larceny prosecution. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 28.35.024. [Renumbered as AS 28.35.310.]

Sec. 28.35.025. Obtaining rental vehicle with intent to defraud. [Repealed, § 25 ch 144 SLA 1977.]

Sec. 28.35.026. [Renumbered as AS 28.35.320.]

Sec. 28.35.028. Court-ordered treatment.

  1. Notwithstanding another provision of law, with the consent of the state and the defendant, the court may elect to proceed in a criminal case under AS 04.16.200(b) or (e), AS 28.35.030 , or 28.35.032 , including the case of a defendant charged with violating the terms of probation, under the procedure provided in this section and order the defendant to complete a court-ordered treatment program. The state may not consent to a referral under this subsection unless the state has consulted with the victim and explained the process and consequences of the referral to the victim. A court may not elect to proceed under this section if the defendant has previously participated in a court-ordered treatment program under this section two or more times.
  2. Once the court elects to proceed under this section, the defendant shall enter a no contest or guilty plea to the offense or shall admit to a probation violation, as appropriate. The state and the defendant may enter into a plea agreement to determine the offense or offenses to which the defendant is required to plead. If the court accepts the agreement, the court shall enforce the terms of the agreement. The court shall enter a judgment of conviction for the offense or offenses for which the defendant has pleaded or an order finding that the defendant has violated probation, as appropriate. A judgment of conviction or an order finding a probation violation must set a schedule for payment of restitution owed by the defendant. In a judgment of conviction and on probation conditions that the court considers appropriate, the court may withhold pronouncement of a period of imprisonment or a fine to provide an incentive for the defendant to complete recommended treatment successfully. Imprisonment or a fine imposed by a court shall comply with AS 12.55 or any mandatory minimum or other sentencing provision applicable to the offense. However, notwithstanding Rule 35, Alaska Rules of Criminal Procedure, and any other provision of law, the court, at any time after the period when a reduction of sentence is normally available, may consider and reduce the defendant’s sentence, including imprisonment, fine, or license revocation, based on the defendant’s compliance with the treatment plan; when reducing a sentence, the court (1) may not reduce the sentence below the mandatory minimum sentence for the offense unless the court finds that the defendant has successfully complied with and completed the treatment plan and that the treatment plan approximated the severity of the minimum period of imprisonment, and (2) may consider the defendant’s compliance with the treatment plan as a mitigating factor allowing a reduction of a sentence under AS 12.55.155(a) . A court entering an order finding the defendant has violated probation may withhold pronouncement of disposition to provide an incentive for the defendant to complete the recommended treatment successfully.
  3. If the defendant does not successfully complete the treatment plan imposed by the court under this section, the defendant’s no contest or guilty plea or admission to a probation violation to the court shall stand, and the sentence previously imposed shall be executed or, if sentence has not yet been imposed, sentence shall be imposed by the court.
  4. Notwithstanding any other provision of law to the contrary, the judge, the state, the defendant, and the agencies involved in the defendant’s treatment plan are entitled to information and reports bearing on the defendant’s assessment, treatment, and progress. The victim is entitled to periodic reports on the defendant’s progress and participation.
  5. In addition to other conditions authorized under AS 12.30 or AS 12.55, a court may impose the following conditions of bail or probation:
    1. require the defendant to submit to electronic monitoring;
    2. require the defendant to submit to house arrest.
  6. A court shall refer a defendant who is ordered to participate in a treatment program under this section to an alcohol safety action program developed and implemented or designated under AS 47.37.040 (21) for screening, referral, and monitoring.
  7. In addition to other conditions authorized under AS 12.30, a court may require the defendant to take a drug or combination of drugs intended to prevent substance abuse.
  8. In this section,
    1. “court-ordered treatment program” or “treatment plan” means a treatment program for a person who consumes alcohol or drugs and that
      1. requires participation for at least 18 consecutive months;
      2. includes planning and treatment for alcohol or drug addiction;
      3. includes emphasis on personal responsibility;
      4. provides in-court recognition of progress and sanctions for relapses;
      5. requires payment of restitution to victims and completion of community work service;
      6. includes physician-approved treatment of physical addiction and treatment of the psychological causes of addiction;
      7. includes a monitoring program and physical placement or housing; and
      8. requires adherence to conditions of probation;
    2. “sentence” or “sentencing” includes a suspended imposition of sentence as authorized under AS 12.55.085 .

History. (§ 3 ch 56 SLA 2006; am § 31 ch 75 SLA 2008; am § 106 ch 36 SLA 2016)

Cross references. —

For effect of (b) of this section on Rule 35, Alaska Rules of Criminal Procedure, see § 8, ch. 56, SLA 2006.

Effect of amendments. —

The 2016 amendment, effective July 12, 2016, inserted “, including imprisonment, fine, or license revocation,” preceding “based on the defendant’s compliance” in the eighth sentence in (b).

Sec. 28.35.029. Open container.

  1. A person may not drive a motor vehicle on a highway or vehicular way or area, when there is an open bottle, can, or other receptacle containing an alcoholic beverage in the passenger compartment of the vehicle, except as provided in (b) of this section.
  2. Except as provided in AS 28.33.130 , a person may transport an open bottle, can, or other receptacle containing an alcoholic beverage
    1. in the trunk of a motor vehicle;
    2. on a motor driven cycle, or behind the last upright seat in a motor home, station wagon, hatchback, or similar trunkless vehicle, if the open bottle, can, or other receptacle is enclosed within another container;
    3. behind a solid partition that separates the vehicle driver from the area normally occupied by passengers; or
    4. if the open bottle, can, or other receptacle is in the possession of a passenger in a motor vehicle for which the owner receives direct monetary compensation and that has a capacity of 12 or more persons.
  3. In this section
    1. “alcoholic beverage” has the meaning given in AS 04.21.080(b) ;
    2. [Repealed, § 29 ch 3 SLA 1992.]
    3. “motor vehicle” means a vehicle for which a driver’s license is required;
    4. “open” includes having a broken seal;
    5. “passenger compartment” means the area normally occupied by the driver and passengers and includes a utility or glove compartment accessible to the driver or a passenger while the motor vehicle is being operated.
  4. A person who violates (a) of this section is guilty of an infraction.

History. (§ 1 ch 142 SLA 1988; am §§ 21, 29 ch 3 SLA 1992)

Notes to Decisions

Motion to suppress. —

Record supported the trial court’s findings concerning the trooper’s observations, which were sufficient to give him reasonable suspicion of an imminent public danger, namely the risk that defendant was consuming alcoholic beverages while driving, in violation of AS 28.35.029 , and thus the denial of defendant’s motion to suppress was proper. Greenway v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2015) (memorandum decision).

Collateral references. —

Validity of statute or ordinance making it an offense to consume or have alcoholic beverages in open package in motor vehicle, 57 ALR3d 1071.

Sec. 28.35.030. Operating a vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance.

  1. A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft
    1. while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination; or
    2. and 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.
  2. Except as provided under (n) of this section, driving while under the influence of an alcoholic beverage, inhalant, or controlled substance is a class A misdemeanor. Upon conviction,
    1. the court shall impose a minimum sentence of imprisonment of
      1. not less than 72 consecutive hours, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of six months, and impose a fine of not less than $1,500 if the person has not been previously convicted;
      2. not less than 20 days, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of 12 months, and impose a fine of not less than $3,000 if the person has been previously convicted once;
      3. not less than 60 days, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of 18 months, and impose a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (n) of this section;
      4. not less than 120 days, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of 24 months, and impose a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (n) of this section;
      5. not less than 240 days, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of 30 months, and impose a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (n) of this section;
      6. not less than 360 days, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of 36 months, and impose a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (n) of this section;
    2. the court may not
      1. suspend execution of sentence or grant probation except on condition that the person
        1. serve the minimum imprisonment under (1) of this subsection;
        2. pay the minimum fine required under (1) of this subsection;
      2. suspend imposition of sentence; or
      3. suspend the requirement for an ignition interlock device for a violation of (a)(1) of this section involving an alcoholic beverage or intoxicating liquor, singly or in combination, or a violation of (a)(2) of this section;
    3. the court shall revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.181 , and may order that the motor vehicle, aircraft, or watercraft that was used in commission of the offense be forfeited under AS 28.35.036 ; and
    4. the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law.
  3. [Repealed, § 34 ch 119 SLA 1990.]
  4. Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under this section shall supply the judge, prosecutor, defendant, and an agency involved in the defendant’s treatment with information and reports concerning the defendant’s past and present assessment, treatment, and progress. Information compiled under this subsection is confidential and may only be used in connection with court proceedings involving the defendant’s treatment, including use by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a presentence report for the use of the court in sentencing a person convicted under this section.
  5. A person who is sentenced to imprisonment for 72 consecutive hours upon a first conviction under this section and who is not released from imprisonment after 72 hours may not bring an action against the state or a municipality or its agents, officers, or employees for damages resulting from the additional period of confinement if
    1. the employee or employees who released the person exercised due care and, in releasing the person, followed the standard release procedures of the prison facility; and
    2. the additional period of confinement did not exceed 12 hours.
  6. [Repealed, § 34 ch 119 SLA 1990.]
  7. Notwithstanding (b) of this section, the court may reduce the fine required to be imposed under (b) of this section by the cost of the ignition interlock device.
  8. The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services, under AS 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (n) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.
  9. A program of inpatient treatment may be required by the authorized agency under (h) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral.  The request for review shall be made within seven days of the agency’s referral, and shall specifically set out the grounds upon which the request for review is based.  The court may order a hearing on the request for review.
  10. If a person fails to satisfy the requirements of an authorized agency under (i) of this section, the court
    1. may impose any portion of a suspended sentence; however, if the person was convicted under (n) of this section, the court shall impose a part or all of the remaining portion of any suspended sentence;
    2. may punish the failure as contempt of the authority of the court under AS 09.50.010 or as a violation of a condition of probation; and
    3. shall order the revocation or suspension of the person’s driver’s license, privilege to drive, and privilege to obtain a driver’s license until the requirements are satisfied.
  11. Imprisonment required under (b)(1)(A) of this section shall be served at a community residential center or by electronic monitoring at a private residence under AS 33.30.065 . If a community residential center or electronic monitoring at a private residence is not available, imprisonment required under (b)(1)(A) of this section may be served at another appropriate place determined by the commissioner of corrections. Imprisonment required under (b)(1)(B) — (F) of this section may be served at a community residential center or at a private residence if approved by the commissioner of corrections. Imprisonment served at a private residence must include electronic monitoring under AS 33.30.065 . The cost of imprisonment resulting from the sentence imposed under (b)(1) of this section shall be paid to the state by the person being sentenced. The cost of imprisonment required to be paid under this subsection may not exceed $2,000. Upon the person’s conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the state shall seek reimbursement from the person’s permanent fund dividend as provided under AS 43.23.140 . A person sentenced under (b)(1)(B) of this section shall perform at least 160 hours of community service work, as required by the director of the community residential center or other appropriate place, or as required by the commissioner of corrections if the sentence is being served at a private residence. In this subsection, “appropriate place” means a facility with 24-hour on-site staff supervision that is specifically adapted to provide a residence, and includes a correctional center, residential treatment facility, hospital, halfway house, group home, work farm, work camp, or other place that provides varying levels of restriction.
  12. The commissioner of corrections shall determine and prescribe by regulation a uniform average cost of imprisonment for the purpose of determining the cost of imprisonment required to be paid under (k) of this section by a convicted person. The regulations must include the costs associated with electronic monitoring under AS 33.30.065 .
  13. If the act for which a person is convicted under this section contributes to a motor vehicle accident, the court shall order the person to pay the reasonable cost of any emergency services that responded to the accident, if the convicted person or the convicted person’s insurer has not already paid the cost of the emergency services. If payment is required under this subsection, the payment shall be made directly to the emergency service and shall be equal to the actual cost of responding to the accident or the previous year’s annual average cost of responding to a motor vehicle accident, whichever is higher. In this subsection, “emergency service” includes a peace officer, fire department, ambulance service, emergency medical technician, or emergency trauma technician.
  14. A person is guilty of a class C felony if the person is convicted under (a) of this section and either has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense, or punishment under this subsection or under AS 28.35.032(p) was previously imposed within the last 10 years. For purposes of determining minimum sentences based on previous convictions, the provisions of (w)(4) of this section apply. Upon conviction, the court
    1. shall impose a fine of not less than $10,000, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 60 months, and impose a minimum sentence of imprisonment of not less than
      1. 120 days if the person has been previously convicted twice;
      2. 240 days if the person has been previously convicted three times;
      3. 360 days if the person has been previously convicted four or more times;
    2. may not
      1. suspend execution of sentence or grant probation except on condition that the person
        1. serve the minimum imprisonment under (1) of this subsection;
        2. pay the minimum fine required under (1) of this subsection;
      2. suspend imposition of sentence; or
      3. suspend the requirement for an ignition interlock device for a violation of (a)(1) of this section involving an alcoholic beverage or intoxicating liquor, singly or in combination, or a violation of (a)(2) of this section;
    3. shall permanently revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license subject to restoration of the license under (o) of this section;
    4. may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law;
    5. shall order forfeiture under AS 28.35.036 of the vehicle, watercraft, or aircraft used in the commission of the offense, subject to remission under AS 28.35.037 ; and
    6. shall order the department to revoke the registration for any vehicle registered by the department in the name of the person convicted under this subsection; if a person convicted under this subsection is a registered co-owner of a vehicle or is registered as a co-owner under a business name, the department shall reissue the vehicle registration and omit the name of the person convicted under this subsection.
  15. Upon request, the department shall review a driver’s license revocation imposed under (n)(3) of this section and, unless the revocation was ordered under (u) or (v) of this section or in a case in which the person was also convicted of a crime under AS 11.41.100 11.41.210 , 11.41.280 , 11.41.282 , or a similar law in another jurisdiction,
    1. may restore the driver’s license if
      1. the license has been revoked for a period of at least 10 years;
      2. the person has not been convicted of a driving-related criminal offense or a felony in the 10 years preceding the request for restoration of the license; and
      3. the person provides proof of financial responsibility;
    2. shall restore the driver’s license if
      1. the person has been granted limited license privileges under AS 28.15.201(g) and has successfully driven under that limited license for three years without having the limited license privileges revoked;
      2. the person has successfully completed a court-ordered treatment program under AS 28.35.028 or a rehabilitative treatment program under AS 28.15.201(h) ;
      3. the person has not been convicted of a violation of AS 28.35.030 or 28.35.032 or a similar law or ordinance of this or another jurisdiction since the license was revoked;
      4. the person is otherwise eligible to have the person’s driving privileges restored as provided in AS 28.15.211 ; in an application under this subsection, a person whose license was revoked for a violation of AS 28.35.030(n) or 28.35.032 (p) is not required to submit compliance as required under AS 28.35.030 (h) or 28.35.032(l) ; and
      5. the person provides proof of financial responsibility.
  16. [Repealed, § 7 ch 56 SLA 2006.]
  17. For purposes of this section, the director of the division within the department responsible for administration of this section or a person designated by the director may request and receive criminal justice information available under AS 12.62. In this subsection, “criminal justice information” has the meaning given in AS 12.62.900 .
  18. [Repealed, § 12 ch 85 SLA 2010.]
  19. In a prosecution under (a) of this section, a person may introduce evidence on the amount of alcohol consumed before or after operating or driving the motor vehicle, aircraft, or watercraft to rebut or explain the results of a chemical test, but the consumption of alcohol before operating or driving may not be used as a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving. Consumption of alcohol after operating or driving the motor vehicle, aircraft, or watercraft may be used to raise such a defense.
  20. Notwithstanding (b) or (n) of this section, the court shall waive the requirement of the use of an ignition interlock device when a person operates a motor vehicle in a community included on the list published by the department under AS 28.22.011(b) .
  21. In addition to the penalties imposed under (n) of this section, if a person is convicted under (n) of this section and has been convicted two or more times under (n) of this section or a similar law of another jurisdiction at any time preceding the date of the present offense, upon conviction, the court shall permanently revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license.
  22. In addition to the penalties imposed under (b) of this section, if a person is convicted under (a) of this section and the person has previously had the person’s driver’s license restored under (o) of this section or under AS 28.35.032(q) , upon conviction, the court shall permanently revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license.
  23. In this section,
    1. “inhalant” has the meaning given to the phrase “hazardous volatile material or substance” in AS 47.37.270 ;
    2. “operate an aircraft” means to navigate, pilot, or taxi an aircraft in the airspace over this state, or upon the land or water inside this state;
    3. “operate a watercraft” means to navigate a vessel used or capable of being used as a means of transportation on water for recreational or commercial purposes on all waters, fresh or salt, inland or coastal, inside the territorial limits or under the jurisdiction of the state;
    4. “previously convicted” means having been convicted in this or another jurisdiction within the 15 years preceding the date of the present offense of any of the following offenses; however, convictions for any of these offenses, if arising out of a single transaction and a single arrest, are considered one previous conviction:
      1. operating a motor vehicle, aircraft, or watercraft in violation of this section or in violation of another law or ordinance with similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person’s blood or breath than imposed under (a)(2) of this section;
      2. refusal to submit to a chemical test in violation of AS 28.35.032 or in violation of another law or ordinance with similar elements; or
      3. operating a commercial motor vehicle in violation of AS 28.33.030 or in violation of another law or ordinance with similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person’s blood or breath than imposed under AS 28.33.030 (a)(2).

History. (§ 50-5-3 ACLA 1949; am § 1 ch 107 SLA 1955; am § 1 ch 121 SLA 1967; am § 45 ch 32 SLA 1971; am § 4 ch 74 SLA 1974; am §§ 2, 3 ch 152 SLA 1978; am § 28 ch 94 SLA 1980; am § 10 ch 129 SLA 1980; am § 21 ch 45 SLA 1982; am §§ 13 — 15 ch 117 SLA 1982; am §§ 13 — 15 ch 77 SLA 1983; am §§ 4, 5 ch 57 SLA 1989; am §§ 23, 24, 34 ch 119 SLA 1990; am §§ 6, 7 ch 188 SLA 1990; am §§ 22, 23 ch 3 SLA 1992; am § 8 ch 59 SLA 1993; am § 17 ch 55 SLA 1994; am §§ 3 — 7 ch 80 SLA 1995; am § 1 ch 87 SLA 1995; am §§ 5 — 7 ch 143 SLA 1996; am §§ 9 — 11 ch 63 SLA 2001; am §§ 27 — 33 ch 60 SLA 2002; am E.O. No. 108 § 2 (2003); am §§ 25 — 27 ch 124 SLA 2004; am §§ 4, 5 ch 126 SLA 2004; am §§ 1 — 3 ch 68 SLA 2005; am §§ 4, 7 ch 56 SLA 2006; am §§ 5 — 7 ch 97 SLA 2008; am §§ 3 — 6, 12 ch 85 SLA 2010; am § 27 ch 83 SLA 2014; am §§ 107 — 109 ch 36 SLA 2016; am §§ 94 — 96 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection (g) was enacted as (h); relettered in 1989. Subsections (h) — (j) were enacted as (i) — (k); relettered in 1990. Subsections (k) and ( l ) were enacted as ( l ) and (m); relettered in 1993. Subsection (m) was formerly (f); relettered as (g) in 1984, as (h) in 1989, as (k) in 1990, and as (m) in 1993. Changes in internal references throughout this section were made in 1990 to reflect the amendment of subsection (b), the repeal of subsection (c), and the relettering of subsections (h) — (k). Section 25, ch. 119, SLA 1990 added subsections (h) — (j) identical to those added by ch. 188, SLA 1990. Because ch. 188 took effect before ch. 119, the amendments by § 25, ch. 119 are not noted in the historical citation for this section. Subsection (m) was enacted as (n). Relettered in 1995, at which time former subsection (m) was relettered as subsection (o) [now (r)] and the internal reference to (o)(4) [now (w)(4)] in subsection (n) was changed to reflect the relettering. Subsections (o), (p), and (q) were enacted as (p), (q), and (r), respectively. Relettered in 2002, at which time what was formerly subsection (o) was relettered as (r) [now (w)] and internal cross-references in subsections (b) and (n) were conformed to the relettering. Subsection (r) was enacted as (s) and relettered in 2004, at which time what was formerly subsection (r) was relettered as (t) [now (w)] and an internal reference in (n) was conformed to the relettering. Subsection (t) was enacted as (u) [now (w)] and relettered in 2008, at which time what was formerly subsection (t) was relettered as (u) [now (w)] and an internal reference in (n) was conformed to the relettering.

In 2018, “AS 43.23.140 ” was substituted for “43.23.065” in subsection (o) to reflect the renumbering of that section. Subsections (u) and (v) were enacted as (v) and (w).

Relettered in 2019, at which time former (u) was relettered as (w) and the internal reference to (u)(4) in subsection (n) was changed to reflect the relettering.

Cross references. —

For maximum sentences and fines for a class A misdemeanor, see AS 12.55.035(b)(5) and 12.55.135(a) , respectively; for crime of operating a commercial motor vehicle while intoxicated, see AS 28.33.030 ; for effect of the enactment of (k) on Alaska Rule of Criminal Procedure 32(b), see § 11, ch. 59, SLA 1993, in the Temporary and Special Acts.

For provision relating to the applicability of the 2016 amendments to this section, see secs. 185(d)(5) and (l)(4), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2014 amendment, effective July 16, 2014, in (k), in the first sentence, added “by electronic monitoring at a private residence” at the end, in the second sentence, substituted “If a community residential center or electronic monitoring at a private residence is not available, imprisonment required under (b)(1)(A) of this section may be served” for “, if a community residential center is not available,”.

The 2016 amendment, effective January 1, 2017, rewrote (k); in ( l ), added the last sentence; in (o), designated a portion of the subsection as (1), redesignated (o)(1), (2) and (3) as (o)(1)(A), (B) and (C), respectively, in (o)(1)(B), inserted “driving-related” preceding “criminal offense”, added (o)(2); and made a related change.

The 2019 amendment, effective July 9, 2019, in (k), inserted “at a community residential center or” in the first sentence, rewrote the second sentence, which read, “If electronic monitoring is not available, imprisonment required under (b)(1)(A) of this section shall be served at a private residence by other means determined by the commissioner of corrections.”, deleted the former third sentence, which read, “A person who is serving a sentence of imprisonment required under (b)(1)(A) of this section by electronic monitoring at a private residence may not be subject to a search of the person’s dwelling by a peace officer or a person required to administer the electronic monitoring under AS 33.30.065(a) , except upon probable cause.”, and deleted “or, if electronic monitoring is not available, by other means as determined by the commissioner of corrections” at the end of the current third sentence; in (o), added “, unless the revocation was ordered under (v) or (w) of this section or in a case in which the person was also convicted of a crime under AS 11.41.100 11.41.210 , 11.41.280 , 11.41.282 , or a similar law in another jurisdiction,” and substituted “offense or a felony in the 10 years preceding the request for restoration of the license; and” for “offense since the license was revoked; and” in (o)(1)(B); and added (v) and (w) [now (u) and (v)].

Editor's notes. —

Section 18, ch. 63, SLA 2001, provides that the amendments to subsections (a), (n), and (o) (now (u)) made by ch. 63, SLA 2001 apply “to offenses committed on or after the effective date of the relevant section of this Act, except that references to previous convictions include convictions occurring before, on, or after the effective date of the relevant section of the Act.” Under § 20, ch. 63, SLA 2001, the effective date of the amendment to subsection (a) was September 1, 2001. Under § 21, ch. 63, SLA 2001, the effective date of the amendments to subsections (n) and (o) (now (u)) was July 4, 2001.

Section 57(b), ch. 60, SLA 2002 provides that the amendments to subsections (a), (b), (d), (k), (n), and (r) [now (u)], made by §§ 27—32, ch. 60, SLA 2002, and subsections (o), (p), and (q), added by § 33, ch. 60, SLA 2002, apply “to offenses committed on or after July 1, 2002, except that references to previous convictions include convictions occurring before, on, or after July 1, 2002.”

Section 7, ch. 126, SLA 2004, provides that the 2004 amendment of (t)(4) [now (u)(4)] of this section applies “to persons seeking limited licenses as a result of revocations for convictions occurring before, on, or after June 30, 2004.” The same section also provides that subsection (r), enacted as subsection (s) by § 5, ch. 126, SLA 2004, applies “only to acts committed on or after January 1, 2005.”

Section 32(a), ch. 124, SLA 2004, provides that the 2004 amendment of (a) of this section applies “to offenses committed on or after July 1, 2004.” Section 32(b), ch. 124, SLA 2004, provides that the 2004 amendment of (n) of this section applies “to offenses occurring on or after July 1, 2004, except that previous punishment [, referred to in the subsection,] . . . includes punishment imposed before, on, or after July 1, 2004.” Section 32(d), ch. 124, SLA 2004, provides that (s) of this section applies “to criminal proceedings for offenses committed before, on, or after July 1, 2004.”

Under sec. 36(b), ch. 83, SLA 2014, subsection (k) as amended by sec. 27, ch. 83, SLA 2014, applies to convictions occurring before, on, or after July 17, 2014 for offenses occurring before, on, or after July 17, 2014.

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendment to (k) and the enactment of (v) and (w) [now (u) and (v)] of this section apply “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Section 142(i), ch. 4, FSSLA 2019, provides that the 2019 amendment to (o) of this section applies “to revocation of a driver's license occurring before, on, or after July 9, 2019, for conduct occurring before, on, or after July 9, 2019.”

Opinions of attorney general. —

The term “public street or highway” is sufficiently broad to include subdivision streets dedicated to the public. 1965 Alas. Op. Att'y Gen. No. 10.

The Department of Public Safety may enforce this section and AS 28.35.040 [now AS 28.35.400 ] on subdivision roads under public use. 1965 Alas. Op. Att'y Gen. No. 10.

Notes to Decisions

Constitutionality. —

Because the Alaska Constitution provides that persons cannot be validly convicted of a crime unless they are personally present at their trial and sentencing, or unless they knowingly and voluntarily waive that right, it is all but impossible for a person who has prior convictions for driving while intoxicated (DWI) or refusing a breath test to commit DWI without either recklessly or negligently disregarding those prior convictions; therefore, the state’s felony DWI statute passes constitutional muster even though the government need not prove a culpable mental state with regard to prior convictions. Hoople v. State, 985 P.2d 1004 (Alaska Ct. App. 1999).

This section is not void for vagueness because of the fact that most people reach their peak alcohol level within one hour after they stop drinking; consequently, the fact that the police had four, instead of two or three, hours in which to obtain a sample would not make it appreciably more difficult for the typical motorist to evaluate whether he has consumed too much alcohol to legally drive. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

This section is not unconstitutionally overbroad for allowing a defendant to be convicted of driving while under the influence even if his alcohol level at the time of driving was below the statutory limit, because driving with a blood alcohol level below the statutory limit is not necessarily lawful conduct. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

This section did not violate Alaska’s guarantee of equal protection of the laws to defendant motorist, who offered no evidence or argument to refute the legislature’s judgment that a person who drives after consuming enough alcohol to register a .08 blood alcohol level within four hours is a danger to the public; a motorist could not necessarily predict how long it would take him to drive to his destination or, given the many variables influencing how fast alcohol was absorbed, how impaired he would become en route. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

This section was not enacted in violation of the one-subject rule. Van Brunt v. State, 646 P.2d 872 (Alaska Ct. App. 1982).

Vagueness challenges. —

The prohibition on driving while under the “combined influence of intoxicating liquor and another substance” in former subsection (a)(3) was so vague that it failed to proscribe an activity apart from subsection (a)(1), and it could not be given any construction that would correct this failure. Williford v. State, 674 P.2d 1329 (Alaska 1983).

The meaning of “combined influence” is clear. Williford v. State, 674 P.2d 1329 (Alaska 1983).

The former term “another substance” in former subsection (a)(3) was unconstitutionally vague because a person was given no notice as to what substances, when used in combination with alcohol, were prohibited. Williford v. State, 674 P.2d 1329 (Alaska 1983).

Defendant’s two prior DWI convictions were charged under the then-existing Anchorage municipal ordinance, which contained a subsection similar to one in this section, former subsection (a)(3), which was later found unconstitutionally vague; defendant argued that his convictions under the similar ordinance language should also be considered void, but the language of the ordinance was sufficiently different to negate this argument. Sheridan v. Municipality of Anchorage, 100 P.3d 898 (Alaska Ct. App. 2004).

Defendant's right to challenge protects due process. —

This section does not violate due process by creating impermissible presumptions that a motorist was at least as intoxicated at the time of driving as at the time of a chemical test administered within four hours of driving, because defendant could attack the accuracy of the chemical test, or show that alcohol was consumed after driving. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

Constitutionality of warrantless arrests for violations. —

AS 12.25.033 , which permits a police officer to arrest a defendant for violation of this section on probable cause but without a warrant, does not violate Alaska Const., art. I, § 14 prohibiting unreasonable searches and seizures and the corresponding provisions of the federal constitution; constitutional provisions are not offended by warrantless searches or arrests based on exigent circumstances, and the legislature has determined that exigent circumstances exist where there is probable cause to believe a suspect is driving while intoxicated. Proctor v. State, 643 P.2d 5 (Alaska Ct. App. 1982).

Double jeopardy regarding lesser included charge. —

Where defendant knew at arraignment he was charged in separate documents with misdemeanor and felony DWI arising from the same conduct, double jeopardy did not bar prosecution of felony charge if defendant pleaded guilty to misdemeanor charge. Ridlington v. State, 93 P.3d 471 (Alaska Ct. App. 2004).

1980 amendment enacted constitutionally. —

The 1980 version of this section, which with three other amendments to the driving while intoxicated statute was added to a bill changing various state liquor laws (Senate Bill 365: ch. 129, SLA 1980) by the free conference committee, was not enacted in violation of Alaska Const., art. II, § 14 since the constitutional requirement that bills be read three times does not extend to an amended bill when the amendments do not change the subject of the bill. Van Brunt v. State, 653 P.2d 343 (Alaska Ct. App. 1982).

And in accordance with Uniform Rule 42(b). —

The 1980 version of this section, which with three other amendments to the driving while intoxicated law was added to Senate Bill 365 (ch. 129, SLA 1980) by the free conference committee, was not enacted in violation of Rule 42(b) of the Uniform Rules of the Alaska State Legislature since the amendment was “germane” to the bill, which changed various state liquor laws. Van Brunt v. State, 653 P.2d 343 (Alaska Ct. App. 1982).

Administrative license revocation. —

AS 28.35.165(c) does not violate due process by allowing a hearing officer to rely solely on the result of a properly administered breath test; the legislature's enactment of AS 28.90.020 clarifies that a testing machine's "working tolerance" is not to be considered as affecting the result under AS 28.35.030(a)(2) , and judicial interpretations ultimately define the offense under AS 28.35.030(a)(2) as dependent solely on the result of a properly administered chemical test. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

Mandatory minimum sentence. —

Normally, there is no mandatory minimum sentence for class C felonies, but the legislature has created mandatory minimum sentences for felony DWI, and because a more specific sentencing statute such as paragraph (n)(1) of this section takes precedence over the general sentencing statute in AS 12.55.125(e) , defendant was subject to the mandatory minimum sentence specified in paragraph (n)(1). Clark v. State, 8 P.3d 1149 (Alaska Ct. App. 2000).

Superior court properly imposed a flat 24-month sentence for felony DUI because, while the appellate court lacked jurisdiction to consider defendant's excessive sentence claim, the State was not required to prove that defendant moved a vehicle or intended to move a vehicle, defendant's own trial testimony established that she knowingly exercised physical control over the vehicle, the written order included a thorough analysis of the Chaney factors, there was no "intervening conduct" for the court to consider after defendant refused probation during her initial sentencing hearing, defendant received a full and fair sentencing hearing, and the superior court could not have imposed a sentence below the mandatory minimum, regardless of whether defendant had proven a mitigating factor. Santillana v. State, — P.3d — (Alaska Ct. App. Sept. 1, 2021) (memorandum decision).

Defendant not permitted to collaterally attack prior DWI convictions. —

Defendant had no right to collaterally attack his six prior convictions for this offense in connection with his sentencing for the current offense; the sentencing court was permitted to count those prior convictions when the court evaluated defendant’s mandatory minimum sentence under subsection (b). Brodigan v. State, 95 P.3d 940 (Alaska Ct. App. 2004).

Although defendant, who was convicted of felony driving under the influence (DUI), claimed that the superior court wrongly prevented him from proving that his prior felony DUI was not valid, defendant was not entitled to collaterally attack the validity of his predicate felony conviction at the trial of his current offense. McLaughlin v. State, — P.3d — (Alaska Ct. App. May 30, 2012) (memorandum decision).

Prior DWI convictions from state where no right to jury trial. —

The defendant’s previous conviction from Louisiana for driving while intoxicated (DWI) could not be used as a prior DWI offense for purposes of applying the mandatory minimum punishments under this section because under Louisiana law defendants cannot obtain a jury trial for criminal offenses, including DWI, which carry a penalty of no more than six months in jail. Under the Alaska constitution, the defendant would have been entitled to a jury trial for any offense where he faced imprisonment. State v. Peel, 843 P.2d 1249 (Alaska Ct. App. 1992), limited, Brown v. State, 425 P.3d 216 (Alaska Ct. App. 2018).

Prior conviction from another state. —

For driving under the influence (DUI) purposes, the fact that Texas law requires proof of a voluntary act does not mean that Texas law mirrors Alaska law in requiring proof that the defendant “knowingly” operated a motor vehicle. These two legal requirements are distinct. The Alaska statute requires proof of a voluntary act or omission, even when a defendant is charged with a strict liability offense, and even though the Texas law does not require proof of a culpable mental state with respect to the defendant’s operation of the vehicle, the Texas DUI law is sufficiently similar to Alaska’s DUI law on this issue. Richards v. State, — P.3d — (Alaska Ct. App. July 22, 2015) (memorandum decision).

There is a narrow set of circumstances where a person who unwittingly and non-negligently ingested an intoxicating substance might be convicted of driving under the influence in Texas, but not in Alaska, but this difference between Texas law and Alaska law is not significant enough to make the Texas statute “dissimilar” for purposes of determining one’s status as a repeat offender; thus, the superior court properly considered defendant’s Texas conviction when assessing his status as a third offender. Richards v. State, — P.3d — (Alaska Ct. App. July 22, 2015) (memorandum decision).

The defendant was properly convicted of felony DUI on the basis of a third offense where two prior Utah convictions were found to be under statutes similar to this section. Welsh v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2016) (memorandum decision).

Defendant's Arizona conviction qualified as a prior conviction for purposes of former AS 28.35.030(n) where his argument that misdemeanor defendants in Alaska had an absolute right to demand a bench trial was based on a misreading of Alaska R. Crim. P. 23(a). Treptow v. State, 408 P.3d 1220 (Alaska Ct. App. 2017).

In a case in which the district court concluded that defendant's prior misdemeanor driving under the influence conviction from Virginia qualified as a prior conviction for sentencing purposes, increasing the applicable mandatory minimum sentence, given that Virginia's sentencing law was never discussed in the trial court proceedings, the appellate court could hardly say that any competent judge or lawyer in Alaska would have recognized the supposed error regarding the application of the Alaska Constitution to Virginia's sentencing law; thus, defendant failed to establish plain error. Chilcote v. State, 471 P.3d 599 (Alaska Ct. App. 2020).

In a case in which the district court concluded that defendant's prior misdemeanor driving under the influence conviction from Virginia qualified as a prior conviction for sentencing purposes, increasing the applicable mandatory minimum sentence, the State's concession that a failure to advise defendant of his right to a jury trial was a violation of a fundamental right under the Alaska Constitution such that his prior conviction could not be used for sentencing enhancement purposes in Alaska was rejected because the failure to advise a defendant of the right to a jury trial was only a procedural flaw under the rules of criminal procedure. Chilcote v. State, 471 P.3d 599 (Alaska Ct. App. 2020).

This section prohibits a person who is under the influence of intoxicating liquor being in actual physical control of a vehicle with its motor running. Jacobson v. State, 551 P.2d 935 (Alaska 1976).

Culpable mental state. —

The crime of driving while intoxicated does not require proof of any culpable mental state regarding the circumstance that makes the driving illegal. Hoople v. State, 985 P.2d 1004 (Alaska Ct. App. 1999).

Defendant was not entitled to post-conviction relief because defendant could have argued at trial that the evidence was insufficient to establish that defendant voluntarily drove defendant's vehicle in that defendant had not knowingly consumed alcohol or knowingly operated the vehicle as defendant was suffering from a medical episode induced by low blood sugar. Furthermore, defendant failed to explain how an involuntary act defense was materially different than the mens rea defense that defendant did advance at trial. Hayden v. State, — P.3d — (Alaska Ct. App. Apr. 22, 2020).

Knowing consumption of alcohol sufficient to establish mens rea. —

This section does not unconstitutionally allow a person to be convicted without any proof of mens rea with respect to the circumstance of driving while impaired or with a blood alcohol level above the legal limit, because proof that defendant was legally intoxicated and that he knowingly consumed alcohol and drove was sufficient to establish that defendant was negligent with respect to the circumstance that he was too impaired to legally drive. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

Continuing offense. —

Driving while intoxicated is a continuing offense, i.e., a defendant can only be prosecuted once for a continuous period of drunk driving. Reeve v. State, 764 P.2d 324 (Alaska Ct. App. 1988).

Rebuttable presumption of intoxication. —

This section does not establish a conclusion that blood tests become irrelevant if taken more than four hours after the alleged violation; rather, the statute simply reflects the legislative conclusion that a blood test taken within four hours of the alleged infraction is such definitive evidence of intoxication at the time of driving that the blood test result is sufficient to establish a rebuttable presumption of intoxication. Williams v. State, 737 P.2d 360 (Alaska Ct. App. 1987).

A defendant’s guilt under AS 28.35.030(a)(2) hinges on the defendant’s blood alcohol level at the time the defendant operated or controlled a motor vehicle, not on the defendant’s test result. Conrad v. State, 54 P.3d 313 (Alaska Ct. App. 2002).

Reasonable suspicion. —

Police officer’s suspicion that driver was possibly intoxicated and posed an imminent danger while driving was reasonable. Larson v. State, 669 P.2d 1334 (Alaska Ct. App. 1983).

State trooper had probable cause to arrest defendant for driving under the influence because he smelled an odor of alcohol, defendant had bloodshot, watery, and glassy eyes, admitted he consumed alcohol, failed the horizontal gaze nystagmus test, and a preliminary breath test indicated his blood alcohol content was .098 percent. Dockins v. State, — P.3d — (Alaska Ct. App. Aug. 10, 2011) (memorandum decision).

Police officers had probable cause to arrest defendant for driving under the influence where he was observed by both his roommate and a police officer behaving in a drunken manner, and where he was showing signs of agitation and aggravation. He fought with his girlfriend, his roommate took a can of beer away from him, and he was aggressive and smelled of alcohol when the officer contacted him as he exited his vehicle. Molina v. State, — P.3d — (Alaska Ct. App. July 25, 2012) (memorandum decision).

Officer had probable cause to believe defendant was driving under the influence because defendant had red, watery, bloodshot eyes, and she admitted consuming alcohol, although the officer did not consider her admission of one beer consistent with her level of impairment; further, defendant exhibited all six clues on the HGN test. Wilbanks v. State, — P.3d — (Alaska Ct. App. May 16, 2012) (memorandum decision).

Defendant was incorrect in claiming that a state trooper lacked probable cause to arrest him. Circumstances, including failure to pull over after the trooper initiated a traffic stop, combined with his behavior and his performance on a counting test, gave the trooper good reason to believe he was intoxicated. Beaver v. State, — P.3d — (Alaska Ct. App. June 19, 2013) (memorandum decision).

Police officer who observed defendant exit the parking lot of a bar, and who testified that the defendant did not stop before entering the roadway, had probable cause to stop the defendant. Under 13 AAC 02.257, the defendant should have stopped immediately prior to entering the roadway. Accordingly, the stop was not pretextual. Aldridge v. State, — P.3d — (Alaska Ct. App. July 3, 2013) (memorandum decision).

Defendant was not subjected to an unlawful investigative stop because an officer could reasonably believe defendant had been driving and drinking alcohol, had just engaged in aggressive driving, and lied by denying drinking alcohol, as defendant smelled of alcohol. Johnson v. State, — P.3d — (Alaska Ct. App. July 29, 2015) (memorandum decision).

Police had probable cause to arrest defendant for driving under the influence, despite not observing defendant's driving, because a witness reported a man matching defendant's description in a vehicle matching defendant's vehicle appeared intoxicated when driving, and officers observed defendant to smell strongly of alcohol and have bloodshot and glassy eyes and thick speech. Trumbly v. State, 379 P.3d 996 (Alaska Ct. App. 2016).

Trial court did not err by finding that the officers had reasonable suspicion to support opening defendant's car door because, even though the car was not running, defendant was seated in the driver's seat with his seat belt on and the key in the ignition, a citizen had reported an intoxicated man "urinating out of his vehicle" in the parking lot, and the officers' observed that defendant seemed impaired. Washam v. State, — P.3d — (Alaska Ct. App. May 5, 2021) (memorandum decision).

Discovery of driver intoxication during community caretaker stop. —

When defendant’s vehicle was stuck in a ditch, a trooper conducted a community caretaking stop to assist him; while asking defendant if he needed a tow truck, the trooper smelled alcohol and noticed that defendant’s speech was slurred. Defendant failed field sobriety tests and a breath test showed that his blood alcohol content was .179 percent; defendant was properly convicted for driving under the influence. Fallon v. State, 221 P.3d 1016 (Alaska Ct. App. 2010).

Traffic stop held reasonable. —

Police trooper’s motive in stopping defendant’s vehicle for failure to use a turn signal conformed to reasonable police practice and was valid where: (1) The trooper was assigned to a driving-under-the-influence enforcement detail, and was directed to be on the lookout for potentially intoxicated drivers; (2) the trooper observed defendant’s vehicle leaving the parking lot of a restaurant that served alcoholic beverages; (3) the trooper observed defendant enter the highway without signaling; and (4) a motorist’s intoxication causes an increased likelihood that the motorist will commit a moving violation. Morgan v. State, 162 P.3d 636 (Alaska Ct. App. 2007).

An officer’s observations and knowledge of the area warranted a person of reasonable caution to believe that defendant had committed traffic violations. The motion to suppress evidence obtained from a traffic stop in a felony driving while under the influence case was properly denied. Jackovich v. State, — P.3d — (Alaska Ct. App. Dec. 7, 2011) (memorandum decision).

The words “operate” and “drive” have differing connotations and refer to different acts. Jacobson v. State, 551 P.2d 935 (Alaska 1976).

As a general proposition, it appears that “to operate” includes a larger class of activities than “to drive.” While one who drives a vehicle must necessarily in that process operate it, the reverse is not necessarily so. Jacobson v. State, 551 P.2d 935 (Alaska 1976).

Movability of vehicle. —

This section on its face contains no “movability” requirement, and the definition of “operate” adopted in Jacobson contains no such requirement; a defendant could be found guilty of driving while intoxicated even though his automobile was stuck in a mudhole and was incapable of movement. Lathan v. State, 707 P.2d 941 (Alaska Ct. App. 1985).

Where defendant’s vehicle stalled at the intersection, it remained “operable” for purposes of this section. Based on evidence showing that defendant was holding a beer in his right hand, had car keys in his left hand, had a hard time focusing, and was showing signs of intoxication, he was convicted of felony driving under the influence; the trial court did not err by failing to give a jury instruction on the defense of necessity because defendant’s friend could have driven the car. Wall v. State, 203 P.3d 1170 (Alaska Ct. App. 2009).

Car with a dead battery is reasonably capable of being rendered operable, because it may be jump-started with relative ease at the scene and then sent on its way. Thus, in a driving while intoxicated case, defendant's car was reasonably capable of being rendered operable because the dead battery could have been jump-started and the car then driven. Axford v. State, — P.2d — (Alaska Ct. App. May 13, 1992).

Steering a towed vehicle. —

Despite the failure of AS 28.40.100(a)(7) [now AS 28.90.990(a)(7) ] to specifically mention towed vehicles, a person who steers a towed vehicle is “driving” within the meaning of that paragraph and subsection (a) of this section. Williams v. State, 884 P.2d 167 (Alaska Ct. App. 1994), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

A person who steers a towed automobile is driving a “motor vehicle” within the meaning of subsection (a). Williams v. State, 884 P.2d 167 (Alaska Ct. App. 1994), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

A towed snowmobile is a motor vehicle because steering such a vehicle, even if only partially, involves exercising control over the vehicle, and it amounts to operating the vehicle; where a motorist was operating a towed snowmobile while intoxicated, and refused to submit to a chemical breath test under the implied consent law, his driver’s license was properly revoked. Conkey v. Dep't of Admin., 113 P.3d 1235 (Alaska 2005).

Defendant was “in actual physical control” of her vehicle, where she was seated in the driver’s seat behind the steering wheel, had possession of the ignition key, and was attempting to put the key in the ignition; given these factors of control, it is not necessary that the engine be running. Department of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232 (Alaska 1988).

Evidence of physical control. —

Where defendant was the sole occupant of his vehicle, was sitting behind the steering wheel, and had the keys to the vehicle in his pocket, defendant was considered to be in “actual physical control” of the vehicle even though the engine was not running and even though defendant made no active attempt to start the engine. Kingsley v. State, 11 P.3d 1001 (Alaska Ct. App. 2000).

There was sufficient evidence that defendant was driving or operating a motor vehicle where there was testimony that she was seen entering into and starting the truck, she admitted that she started the truck, and was in actual physical control of the truck when she got into it and started the engine. Hicks v. State, — P.3d — (Alaska Ct. App. Jan. 16, 2013), rev'd, 341 P.3d 1134 (Alaska 2015) (memorandum decision).

Sufficient evidence that defendant was driving. —

Ample evidence was introduced to support defendant’s admission that she was driving at the time of an accident, where she was found in the front seat of a car that had just gone off the road, appeared to be intoxicated, and subsequently was found to have a blood alcohol level of .17 percent. McKenzie v. State, 776 P.2d 351 (Alaska Ct. App. 1989).

Where the intoxicated defendant was sitting behind the wheel of his wife’s truck that was parked on an incline, and the truck rolled backwards and struck the car behind it, the evidence was sufficient to support conviction for driving under the influence. The evidence established that defendant got into his wife’s truck with the intention of putting it in motion and he admitted to the police that he was trying to leave when he backed into his mother-in-law’s car; the evidence was sufficient to prove that defendant was in actual physical control of the vehicle. Moran v. State, — P.3d — (Alaska Ct. App. Jan. 7, 2009) (memorandum decision).

Defendant’s convictions for DUI and driving while his license was revoked were affirmed where evidence presented at defendant’s trial, if believed, was a sufficient basis for a reasonable person to conclude that defendant was driving. Hewitt v. State, 188 P.3d 697 (Alaska Ct. App. 2008).

Defendant’s felony driving under the influence indictment and conviction were supported by sufficient evidence. Although defendant was sitting on the passenger side of the front seat of a pickup truck when police officers contacted him, there was no evidence that someone else started the truck. Miles v. State, — P.3d — (Alaska Ct. App. Sept. 5, 2012) (memorandum decision).

Evidence was sufficient to sustain a driving under the influence conviction because an officer located a car matching an informant’s description parked in the driveway with defendant in the driver’s seat, tangled in the seatbelt and noticeably intoxicated; defendant said nothing about his son driving, but admitted that he had been driving. Bivins v. State, — P.3d — (Alaska Ct. App. May 22, 2013) (memorandum decision).

Evidence defendant was driving held inadmissible. —

Denial of defendant’s motion to suppress evidence in his DUI case was inappropriate because the midstream administration of Miranda warnings by probation officers failed to effectively apprise defendant of the nature of his rights and the consequences of abandoning them. Both probation officers put questions to defendant that could reasonably have been expected to elicit incriminating responses. Klemz v. State, 171 P.3d 1169 (Alaska Ct. App. 2007).

Evidence that defendant’s sister repeatedly drove while intoxicated, and that she was present in the car at the time of the accident, could not be used to prove that defendant was not the driver. Such evidence is character evidence, barred by Alaska R. Evid. 404(b), and not habit evidence under Alaska R. Evid. 406. Wacker v. State, 171 P.3d 1164 (Alaska Ct. App. 2007).

Admission of inadmissible evidence held harmless.—

Jury heard inadmissible evidence suggesting that defendant had a history of driving under the influence (DUI). Nonetheless, given the record in this case, the appellate court was convinced that the playing of this improper evidence did not appreciably affect the jury's decision in defendant's DUI case. Delaney v. State, — P.3d — (Alaska Ct. App. Aug. 30, 2017) (memorandum decision).

Issues of vehicle operability. —

In criminal trials where a defendant is charged with driving while intoxicated under a “physical control” theory so that the government does not prove that the defendant drove or operated the motor vehicle, unless there is evidence suggesting that the defendant’s vehicle was not operable and not reasonably capable of being rendered operable, the jury need not be instructed on the operability issue. Kingsley v. State, 11 P.3d 1001 (Alaska Ct. App. 2000).

Valid investigatory stop, when Miranda warning is required. —

Defendant’s convictions for felony driving under the influence and failing to provide immediate notice of an accident were appropriate. When police first questioned the defendant it was subject to a valid investigatory stop where reading of Miranda rights was not required. The nature of the questions did not convert an investigatory stop into a detention that was similar to an arrest; the officer did not arrest defendant or impose any serious restraint until defendant was placed in the patrol car at the conclusion of the interview. Charles v. State, — P.3d — (Alaska Ct. App. Sept. 26, 2012) (memorandum decision).

Error, if any, in admitting a statement made by the defendant prior to his being given the Miranda warning was harmless beyond a reasonable doubt because there was no reasonable possibility that the error affected the verdict; the State presented undisputed evidence that an officer observed defendant driving erratically, defendant failed several field sobriety tests, and he stipulated to the fact that he had two prior convictions for driving under the influence. Duboc v. State, — P.3d — (Alaska Ct. App. Aug. 21, 2019).

Operating a watercraft. —

Defendant who was actively trying to start the boat’s engine was using, operating, and in physical control of the boat. Thus, defendant’s actions were sufficient to sustain conviction under this section. Mezak v. State, 877 P.2d 1307 (Alaska Ct. App. 1994).

Proof of injury not essential. —

Offense of driving while intoxicated does not require proof of injury. Coles v. State, 64 P.3d 149 (Alaska Ct. App. 2003).

Level at time of driving. —

Appellate court reaffirmed its holding that driving under the influence statute, AS 28.35.030(a)(2) , hinged on defendant’s blood alcohol level at time defendant was driving, rather than defendant’s blood alcohol level at the time of defendant’s chemical test. Conrad v. State, 60 P.3d 701 (Alaska Ct. App. 2002)(superceded by statute).

Expert witness was permitted to give an opinion that defendant was not driving while intoxicated at the time of her arrest, but was not permitted to base the opinion on the results of a preliminary breath test because defendant declined to submit testimony as to the scientific validity of the preliminary test. Guerre-Chaley v. State, 88 P.3d 539 (Alaska Ct. App. 2004).

Superior court's failure to obtain a waiver of defendant's right to testify was harmless because defendant presented no evidence that he wanted to testify or that he would have testified if he had been advised of that right; the evidence defendant claimed he could have offered if he had testified, that he gulped a large amount of alcohol right before he was pulled over, would have had no effect on his guilty verdict because it was irrelevant to his conviction under the "blood alcohol" theory. Duboc v. State, — P.3d — (Alaska Ct. App. Aug. 21, 2019).

Expert witness. —

In a case in which defendant was convicted of driving while under the influence of alcohol, the trial court did not err in denying defendant's motions to continue the trial for a week after the State announced its intent to call an expert witness as the State did not commit a discovery violation because the State gave notice of its intent to call an expert witness within the time limits of this rule; the breath test result was a mere thousandth of a percent over the proscribed level of .08 percent; and a defense attorney would reasonably have assumed that the State would call an expert to support the accuracy of the result of the breath test machine. Moore v. State, — P.3d — (Alaska Ct. App. Sept. 26, 2018) (memorandum decision).

Police response to what is reasonably interpreted as request for assistance justified. —

A trooper’s action in engaging his emergency lights and contacting a defendant following what he reasonably interpreted to be a request for assistance from the defendant’s vehicle is permissible under U.S. Const., Amend. 4 as well as Alaska Const., Art. I, § 14. When a police officer observes facts and circumstances which he actually and reasonably concludes to be a request for contact or assistance, the officer is justified in making that contact, which would not be analyzed as an investigatory stop requiring articulable suspicion. Crauthers v. State, 727 P.2d 9 (Alaska Ct. App. 1986).

Probable cause required for preliminary breath test. —

In Alaska, a police officer cannot require a motorist to submit to a preliminary breath test until after the officer has probable cause to believe that the motorist is driving while intoxicated. Guerre-Chaley v. State, 88 P.3d 539 (Alaska Ct. App. 2004).

Probable cause not found. —

DWI conviction warranted reversal where officer’s observations of defendant’s minor driving errors and “normal” odor of alcohol (as opposed to strong) did not amount to probable cause. Saucier v. State, 869 P.2d 483 (Alaska Ct. App. 1994).

A conviction under subsection (a) of this section cannot be based on the use of a drug that had not been specifically designated by regulation as a drug that carried criminal sanctions for its use while driving. Crutchfield v. State, 627 P.2d 196 (Alaska 1980).

Cough medicines as intoxicating liquors. —

Nyquil and terpin hydrate, two cough medicines, are intoxicating liquors within the common understanding of that phrase and can be the basis for a conviction of driving while intoxicated. Lambert v. State, 694 P.2d 791 (Alaska Ct. App. 1985).

Right to counsel guaranteed. —

When convicted for violating this section, a person may receive a fine of not more than $1,000 or a term of imprisonment for not more than one year, or both. Therefore, such a case is one in which the right to counsel is guaranteed an accused by the Alaska Constitution. Gregory v. State, 550 P.2d 374 (Alaska 1976).

Request for counsel before breathalyzer test. —

District court judge’s finding that defendant, convicted of driving while intoxicated under municipal code, did not request counsel prior to taking the breathalyzer examination where he never asked to speak to an attorney but asked whether he might need an attorney, with testimony supporting the conclusion that he wondered if he needed an attorney in order to make bail, not because he wanted advice about submitting to a breathalyzer exam, was not clearly erroneous, and superior court judge should not have reversed the conviction. Anchorage v. Erickson, 690 P.2d 20 (Alaska Ct. App. 1984).

Right to counsel before breathalyzer test. —

When a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, the arrestee must be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test; and where arrestee is denied that opportunity, subsequently obtained evidence, whether in form of test results or of refusal to take test, must be suppressed. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

The statutory right to contact and consult with counsel prior to being required to decide whether or not to submit to a breathalyzer test is not absolute, as it might involve a delay long enough to impair testing results; rather, it is a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

Police did not deny defendant a fair opportunity to consult privately with an attorney before deciding whether to take an Intoximeter test, where handcuffed defendant, offered choice of telephone receiver propped between his ear and shoulder or use of speaker phone, chose the speaker phone, while officer backed 10 or 15 feet away during conversation and turned off his tape recorder. Mangiapane v. Municipality of Anchorage, 974 P.2d 427 (Alaska Ct. App. 1999).

Trial court did not err in denying defendant's motion to suppress the results of a breath test because trial court properly rejected defendant's argument that police violated his rights under Copeline v. State, AS 12.25.150 , or Alaska R. Crim. P. 5(b) by interfering with his right to contact an attorney before deciding to submit to the test; reasonable interpretation of the record showed that defendant did not invoke his right to contact an attorney before deciding whether to submit to a breath test and that police did not interfere with that right because the only reference that defendant made regarding an attorney was his statement that perhaps he would need to speak with an attorney regarding why he was being charged with felony DUI while his last DUI offenses were misdemeanors. Gallagher v. State, — P.3d — (Alaska Ct. App. Feb. 4, 2009) (memorandum decision).

Requirement that an individual arrested on a “blood alcohol level” theory submit to a breath test does not raise a constitutional dilemma. Wing v. State, 268 P.3d 1105 (Alaska Ct. App. 2012).

Pre-test communication with a nonlawyer. —

The rationale articulated in Copelin supports interpreting the immediacy requirement of AS 12.25.150(b) to require pre-breathalyzer test results communications with a non-lawyer such as a relative, and to the extent that Van Wormer suggests that the request must specifically be for an attorney, it is overruled. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

When breathalyzer test results should be excluded. —

The result of a breathalyzer test secured in violation of the right to counsel should be excluded in a civil license revocation proceeding. Whisenhunt v. State, Dep't of Pub. Safety, 746 P.2d 1298 (Alaska 1987).

Attorney-client privilege. —

Defendant’s blood test result was protected by the attorney-client privilege where, although no attorney was involved at the time defendant made the decision to sign the consent form, defendant’s attorney subsequently retained a physician to analyze the test sample. Oines v. State, 803 P.2d 884 (Alaska Ct. App. 1990).

Motorist’s blood sample, although drawn on the advice of his attorney, was not covered by the attorney-client privilege, where his attorney was in no way hindered from consulting experts or having an additional blood test done on behalf of the defense, and no communications between defense counsel and any of his representatives or between the motorist and his counsel were compromised. Birch v. State, 825 P.2d 901 (Alaska Ct. App. 1992).

Parental presence at all court proceedings is a prerequisite to conviction of a minor for a traffic offense, including driving while intoxicated. Aiken v. State, 730 P.2d 821 (Alaska Ct. App. 1987).

Attempted retest may be prerequisite to a motion to suppress intoximeter result on the grounds of alleged inadequacy in the magnesium perchlorate tube (MPT) retention system, where the trial court expressly finds that the MPT system is properly functioning, but leaves open the possibility that retained samples might be defective in individual cases. Ansay v. State, 715 P.2d 1194 (Alaska Ct. App. 1986).

Cost-free retest not required. —

Compliance with Serrano does not require that defendants be furnished a cost-free retest. Ansay v. State, 715 P.2d 1194 (Alaska Ct. App. 1986).

No right to counsel during video taping of field sobriety tests. —

A person suspected of operating a motor vehicle while under the influence of intoxicating liquor [now driving while intoxicated] has no right to have counsel present during the video taping of field sobriety tests performed at the request of the arresting officer. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979); Copelin v. State, 676 P.2d 608 (Alaska Ct. App.), cert. denied, 469 U.S. 1017, 105 S. Ct. 430, 83 L. Ed. 2d 357 (U.S. 1984).

Field sobriety tests distinguished from lineups or taking of handwriting exemplars. —

Because field sobriety tests provide an indicator of the degree of impairment at the time of the alleged offense, they must be performed as soon thereafter as possible. As such, driving under the influence cases are distinguishable from a lineup situation or taking handwriting exemplars, where the passage of a few hours to allow the detained individual to obtain counsel would have little or no effect. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Field sobriety tests are relevant to a determination of impairment under Alaska law; thus, the officer in this case could properly cite defendant's poor performance on the field sobriety tests as one of the reasons to believe that defendant's blood might contain evidence of controlled substances. Baker v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2016) (memorandum decision).

Effect of AS 28.40.060 [now AS 28.90.020 ]. —

The practical effect of AS 28.40.060 [now AS 28.90.020 ] is to modify the definition of driving while intoxicated under paragraph (a)(2); the fact that a driver’s true blood-alcohol or breath-alcohol level may be slightly lower due to intoximeter’s acknowledged margin of error is no longer relevant to guilt under paragraph (a)(2). Mangiapane v. Municipality of Anchorage, 974 P.2d 427 (Alaska Ct. App. 1999).

Presumption in breathalyzer result. —

Under the wording of AS 28.35.033 , the breathalyzer result is clearly viewed as the presumptive equivalent of the amount of alcohol in the person’s blood “at the time alleged”; in other words, at the time the offense was committed, not just when the breathalyzer examination was administered. Doyle v. State, 633 P.2d 306 (Alaska Ct. App. 1981).

To be charged under this section rather than city of Anchorage Municipal Code 9.28.020 when both provisions apply to the same general facts does not constitute an arbitrary application of the law violative of constitutional safeguards of equal protection. Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975).

Margin of error consideration necessary. —

Paragraph (a)(2) does not create an offense for violation of the statutory .10 grams per 210 liters of breath, without regard to the margin of error inherent to the particular testing device utilized. Haynes v. State, Dep't of Pub. Safety, 865 P.2d 753 (Alaska 1993)(superseded by statute).

Working tolerance of intoximeter. —

In light of the history of the intoximeter and its established working tolerance, the discussion in Haynes v. State, Dep’t of Public Safety, 865 P.2d 753 (Alaska 1993), and the language of AS 28.40.060 [now AS 28.90.020 ], it is clear that the legislature implicitly decided that a .01 percent working tolerance was “tolerably inaccurate,” and, therefore, irrelevant to the driver’s guilt under paragraph (a)(2), and not in violation of state or federal due process rights. Bushnell v. State, 5 P.3d 889 (Alaska Ct. App. 2000).

Results of police officer's self-administered intoximeter test admissible. —

Where a police officer, though not under arrest for driving while intoxicated, administered himself an intoximeter test, the results of that test were properly admitted at trial even though he was not read an implied consent warning and no sample was preserved. Lawrence v. State, 715 P.2d 1213 (Alaska Ct. App. 1986).

When blood-alcohol tests should be suppressed. —

In prosecuting a charge of operating a motor vehicle while under the influence of intoxicating liquor [now driving while intoxicated] law enforcement officials cannot utilize the results of a blood alcohol test when the blood used in performing the test was extracted from the accused against his or her will, after refusal to submit to a breathalyzer examination. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979) (See note to AS 28.35.03–28.35.033).

Right to independent test after refusal of breath test. —

A person arrested for driving while intoxicated is entitled by the Alaska Constitution to an independent chemical test even if that person refuses to take the statutorily prescribed breath test. Snyder v. State, 930 P.2d 1274 (Alaska 1996).

Interference with right to independent test. —

The deterent policy of the exclusionary rule for interfering with the right to an independent blood test similarly applies to the conduct of state corrections officers guarding arrested drivers as it does to arresting police officers, even though the advice not to take the test was given in the spirit of friendship; thus, the breath test result should therefore have been suppressed. Lau v. State, 896 P.2d 825 (Alaska Ct. App. 1995).

Trooper arriving at accident scene cannot arrest for drunk driving without warrant. —

The Alaska legislature has classified both reckless driving and operating or driving an automobile under the influence of intoxicating liquor as misdemeanors. Thus, a state trooper who arrived at an accident scene could not arrest a driver without a warrant for either reckless driving or drunk driving since neither of these offenses was committed or attempted in his presence. Layland v. State, 535 P.2d 1043 (Alaska 1975), overruled, Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), overruled in part, State v. Blank, 90 P.3d 156 (Alaska 2004).

The fact that a man consumed from seven to ten ounces of whiskey during an 18-hour period was not shown by the evidence to necessarily cause him to be intoxicated. Bertram v. Harris, 423 P.2d 909 (Alaska 1967), overruled in part, Kaatz v. State, 540 P.2d 1037 (Alaska 1975).

Causation. —

In a case involving felony driving under the influence, there was no error in the jury instructions given because the State was not required to prove that defendant’s impairment was attributable solely to the ingestion of controlled substances; it did not have to prove that a lack of sleep played no role in defendant’s impairment. Adams v. State, 359 P.3d 990 (Alaska Ct. App. 2015).

Different theories in (a)(1) and (a)(2) of showing intoxication. —

This section describes several ways of committing the single offense of driving while intoxicated. Because paragraphs (a)(1) and (a)(2) describe merely different theories by which a person may be shown to have driven while intoxicated, it is not necessary that the jury agree unanimously upon the theory by which a defendant violated the statute. Ward v. State, 758 P.2d 87 (Alaska 1988).

Whether or not prior provisions of paragraph (a)(2) requires the state to prove only that defendant’s blood alcohol content was .10 percent or more when he was tested, not when he actually drove his car and was involved in the accident, paragraph (a)(1) plainly and unambiguously relates the time of impairment to the time of driving rather than to the time of a subsequent breath test. Because the jury convicted defendant under both statutory theories of driving while intoxicated, and because any error in the instructions as to the prior provisions of (a)(2) would apply only to one of the two alternative theories, it followed that any error was necessarily harmless. Lee v. State, 760 P.2d 1039 (Alaska Ct. App. 1988).

In a driving under the influence case, the court properly allowed amendment of the indictment. Defendant was charged with DUI based on blood and breath samples, which were not, in fact, taken. At the beginning of trial the prosecution changed the indictment to a general impairment theory. This change did not impact the defense theories, nor did it reflect a charge not contemplated by the grand jury in issuing the indictment. Lau v. State, 175 P.3d 659 (Alaska Ct. App. 2008).

It had already been held that the two definitions of driving under the influence, codified in the statute, were simply variant ways of proving the same thing and that juries did not need to be unanimous as to the theory that supported their guilty verdict; defendant had the burden to show that these decisions were erroneous or no longer sound, but he never mentioned either case, and he did not make a showing sufficient for the court to revisit this prior precedent. Bennett v. State, — P.3d — (Alaska Ct. App. Oct. 15, 2014) (memorandum decision).

Effect of alcohol consumption after accident is jury question. —

The issue of whether and to what extent defendant’s consumption of alcohol after the accident but before a breathalyzer examination affected his breathalyzer result was a question properly left for the jury. Doyle v. State, 633 P.2d 306 (Alaska Ct. App. 1981).

Lack of a jury instruction on the defense that defendant’s blood-alcohol level could be attributed to drinking after driving was not plain error; both sides presented the case as a choice between convicting defendant if the jury found defendant drank only before driving or acquitting defendant under that theory if defendant had anything to drink after the car accident. Wynacht v. State, — P.3d — (Alaska Ct. App. Mar. 14, 2012) (memorandum decision).

State need not show that defendants knew they were intoxicated. —

The state need not show that defendants actually knew that they were under the influence of intoxicating liquor or that their blood or breath alcohol levels were in excess of 0.10. Van Brunt v. State, 646 P.2d 872 (Alaska Ct. App. 1982).

Preserving breath samples. —

Due process clause of the Alaska Constitution requires prosecution to make reasonable efforts to preserve breath sample or to take other steps to allow defendant to verify results of breathalyzer test. Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska Ct. App. 1982); Champion v. Department of Pub. Safety, 721 P.2d 131 (Alaska 1986).

Harmless error as to prosecution's arguments concerning independent breath tests. —

Where the court allowed the prosecution to present testimony establishing that the arresting officers gave defendant a sample of his breath for independent testing, and the prosecution was allowed to argue that defendant’s failure to present evidence concerning the results of the independent tests of this sample indicated the accuracy of the intoximeter test, any error was clearly harmless since overwhelming evidence was presented to establish that defendant was under the influence of intoxicating liquor when contacted by troopers following his arrest and in his own testimony he acknowledged consuming a substantial quantity of alcoholic beverages. Lee v. State, 760 P.2d 1039 (Alaska Ct. App. 1988).

In-person hearings required in some license revocation cases. —

Considering the importance of the driving privilege, the greater potential for effective communication in an in-person context, the need for effective communication where the credibility of a party is at issue, and the limited nature of the prejudice that the state would suffer by providing in-person hearings in driver license revocation cases, such hearings should be provided where requested by the party. Whitesides v. Dep't of Pub. Safety, DMV, 20 P.3d 1130 (Alaska), cert. denied, 534 U.S. 888, 122 S. Ct. 200, 151 L. Ed. 2d 142 (U.S. 2001).

Revocation of the defendant’s license was vacated where there were contested issues of fact as to whether the defendant voluntarily waived his right to an independent blood test, and therefore, defendant was entitled to an in-person hearing. Brown v. Dep't of Admin., DMV, 20 P.3d 586 (Alaska 2001).

Retroactive application of Serrano rule. —

Where a new rule serves to ensure defendants a fair trial, it must be retroactively applied at least to any case which was not finally disposed of at the time the rule was announced, provided that the defendant raised the point in the trial court. Farleigh v. Municipality of Anchorage, 728 P.2d 637 (Alaska 1986).

Preservation of blood sample. —

Where blood sample was taken by and was in possession of hospital where defendant sought treatment following car accident, and where, on the facts of the case, both defendant and state had opportunity to preserve the sample, trial court did not err in ruling that the blood test results were admissible even though the state had not sought preservation of the blood sample. Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983).

Where defendant was charged with felony driving while intoxicated and a blood sample collected when he was arrested was subsequently destroyed, but there was no evidence that the state intentionally destroyed defendant’s blood sample, the sanction to be imposed, if any, depends in large part on the degree of prejudice suffered by defendant; if a sanction is to be imposed, there is a presumption that the appropriate sanction is a jury instruction telling the jury to assume that the missing evidence would have been favorable to defendant. State v. Ward, 17 P.3d 87 (Alaska Ct. App. 2001).

Blood tests as business records. —

Results of a hospital blood alcohol test are admissible as business records upon proper foundation in driving while intoxicated prosecution. Bradley v. State, 662 P.2d 993 (Alaska Ct. App. 1983).

Admission of test results proper despite failure to observe waiting period. —

Admission of the breath test result was not error where the officer administering the test had not waited a full 15 minutes between an aborted “mouth alcohol” test and the second test that produced the result introduced. Williams v. State, 884 P.2d 167 (Alaska Ct. App. 1994), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Horizontal gaze nystygmus evidence. —

Horizontal gaze nystygmus evidence meets the standard required for admission of scientific evidence if the test results are admitted for the limited purpose of establishing that a person has consumed alcohol and is therefore potentially impaired. Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998).

A police officer may testify as to the results of horizontal gaze nystygmus testing, but the government must establish as a foundational matter the officer has been adequately trained in the administration and assessment of the test. Ballard v. State, 955 P.2d 931 (Alaska Ct. App. 1998).

Evidence that defendant drove erratically and appeared intoxicated to arresting officers was properly admitted since such evidence would tend to corroborate a breathalyzer reading showing an elevated blood alcohol level. Byrne v. State, 654 P.2d 795 (Alaska Ct. App. 1982).

Probable cause to check driver's criminal history during stop. —

Police officer properly checked defendant’s criminal history during a traffic stop because the officer observed that the defendant’s eyes were bloodshot and that there was an odor of alcohol in the car. Aldridge v. State, — P.3d — (Alaska Ct. App. July 3, 2013) (memorandum decision).

There was sufficient evidence that defendant was intoxicated while driving on a public roadway where, inter alia, defendant smelled strongly of alcohol, had slurred speech, and swayed back and forth when he was standing. A witness verified that defendant had operated his car while in this condition. Kuzmin v. State, — P.3d — (Alaska Ct. App. Sept. 28, 2011) (memorandum decision).

Suppression of evidence gathered after stop. —

Where the officer making the stop for suspected driving while intoxicated had no indication that the “locate” was based on reliable firsthand information and where the state presented no evidence that the dispatcher or some other officer had relevant knowledge that could possibly be imputed to the arresting officer, the stop was not supported by a reasonable suspicion of imminent public danger and denial of defendant’s motion to suppress evidence gathered after the stop was error. Mix v. State, 893 P.2d 1270 (Alaska Ct. App. 1995).

Additional relevant information in addition to the make of the vehicle and its license plate number called to a police dispatcher but not communicated to officers, could be considered in evaluating whether the officers’ stop of a defendant’s vehicle was justified, since an investigative stop made in objective reliance on a police dispatcher’s bulletin is justified if the dispatcher who broadcast the bulletin possessed reasonable suspicion of imminent public danger justifying the stop. State v. Prater, 958 P.2d 1110 (Alaska Ct. App. 1998).

Because police stopped defendant after receiving reports that defendant was driving erratically and after having witnessed such driving, and because defendant failed a field sobriety test, the police had probable cause to arrest defendant for driving while intoxicated in violation of this section; because both the investigatory stop and arrest were lawful under Alaska Const. art. I, § 14, the trial court did not err when it denied defendant’s motion to suppress. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

Defendant’s motion to suppress, based on argument that an anonymous phone call to the police station did not provide reasonable suspicion to allow an officer to stop defendant’s car, was properly denied; from the detail of the informant’s description of the vehicle and its location, it was reasonable for the police to infer that the informant had a good view of defendant and was reporting something that he actually and recently saw. Smith v. State, 83 P.3d 12 (Alaska Ct. App. 2004).

Although police officer may have had an ulterior motive for stopping defendant for a defective tail light; even under the doctrine of pretext stops and searches, unless defendant presented evidence to show that the ulterior motive prompted the officer to depart from reasonable police practices, suppression was not required. Nease v. State, 105 P.3d 1145 (Alaska Ct. App. 2005).

In an investigative stop of a party to a reported domestic dispute, predicated on a 911 call, after that party had left the scene, there was insufficient objective basis to believe that the reported argument had led, or would lead, to a crime to justify the stop, and evidence of party’s refusal to submit to a breath test at the time of the stop should have been suppressed. Miller v. State, 145 P.3d 627 (Alaska Ct. App. 2006), rev'd, 207 P.3d 541 (Alaska 2009).

Defendant was not entitled to suppress evidence which defendant claimed was obtained in an invalid traffic stop because the arresting officer's visual estimation of speed, which was corroborated by another officer who observed defendant going faster than the speed limit, was sufficient to support a finding that the arresting officer, who had specific training in visual vehicle speed estimations, had probable cause to believe that defendant was speeding. Dillon v. State, — P.3d — (Alaska Ct. App. Dec. 2, 2020) (memorandum decision).

Admission of evidence which should have been suppressed held harmless. —

Where the prosecutor to offer evidence suggesting that defendant was under the influence of unidentified and undetected controlled substances, the admissibility of that evidence was questionable, but even if the trial court’s rulings were wrong, any error was harmless; defendant utilised controlled substances on the highway, there was a high level of the psychoactive ingredient in marijuana in the sample of his blood that was drawn following his arrest, and the verdict convicting defendant would have been the same even if the trial court had not permitted the prosecutor to present the challenged evidence. Theriot v. State, — P.3d — (Alaska Ct. App. July 29, 2015) (memorandum decision).

Evidentiary hearing on motion to suppress. —

Where counsel stated that the video of traffic stop contradicted statements the officer made to support probable cause for defendant’s arrest, and that it undermined the officer’s overall credibility, trial court erred by refusing to hold an evidentiary hearing on defendant’s motion to suppress under Alaska R. Crim. P. 42. Abyo v. State, 166 P.3d 55 (Alaska Ct. App. 2007).

Valid motor vehicle stop disposed of related privacy claim. —

Defendant was arrested for felony DUI when a trooper saw him trying to start a snowmachine on a sidewalk; among defendant’s arguments was that the trooper did not have probable cause to stop defendant because the sidewalk was under a snow berm. Nevertheless, an officer who directly observed a violation of a traffic code had probable cause for the traffic stop, and in this instance, the officer saw defendant trying to start the snowmachine that was stalled on the sidewalk; the snow was not so high as to make the sidewalk unidentifiable, and the sidewalk remained a sidewalk for the purposes of 13 AAC 40.010(a)(48), and 13 AAC 40.010(a)(33). Bessette v. State, 145 P.3d 592 (Alaska Ct. App. 2006).

Felony driving while intoxicated. —

Subsection (n) codifies a separate offense, and a defendant’s prior convictions are an essential element of the offense of felony driving while intoxicated. Ross v. State, 950 P.2d 587 (Alaska Ct. App. 1997).

Motion to correct sentence was properly denied because any Blakely right to jury trial error was rendered harmless by the trial court’s finding of an aggravator under AS 12.55.155(c)(20) , based on defendant’s stipulation, because the underlying facts were not in dispute, that he was on felony parole at time of his felony driving under the influence offense under subsection (n) of this section, so an agreed-upon five-year sentence could be lawfully imposed under AS 12.55.125(e)(2) and 12.55.145(a)(1)(B) . Woodbury v. State, 151 P.3d 528 (Alaska Ct. App. 2007).

Defendant's Montana convictions for driving under the influence qualified as prior convictions under AS 28.35.030(o)(4) [now (w)(4)] because Montana's law required proof of elements that were similar to the elements of driving while intoxicated (DWI) under Alaska law; thus, the trial court erred when it dismissed defendant's indictment for felony DWI pursuant to AS 28.35.030(n) . State v. Simpson, 53 P.3d 165 (Alaska Ct. App. 2002).

Defendant’s conviction for felony DUI pursuant to subsection (n) instead of mere DUI under subsection (a)(1) was appropriate because defendant’s status as a repeat offender hinged on the date of his sentencing rather than the date on which he was found guilty; judge properly found that defendant was guilty of felony DUI based on defendant’s two prior qualifying DUI convictions. Bradley v. State, 197 P.3d 209 (Alaska Ct. App. 2008).

It was error for the trial court to inform the jury during the first phase of the bifurcated trial that defendant was charged with felony driving under the influence, but the jury was not directly informed that defendant had previously been convicted of DUI and the jury was instructed that it was the State’s burden to prove the charges; the trial court did not abuse its discretion in denying defendant’s motion for a mistrial, but trial judges should be careful not to inadvertently disclose to juries the felony nature of a DUI charge during the first stage of a bifurcated trial. Vaughn v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2015) (memorandum decision).

In rejecting mitigators proposed by defendant in his felony driving while under the influence trial, the judge correctly rejected the notion that, just because defendant’s current and prior driving under the influence offenses did not result in injury, the offenses qualified as causing consistently minor harm; the offense of driving under the influence does not require proof that anyone was physically harmed, and if an intoxicated driver inflicts injury on another person, that is a separate offense. Greenway v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2015) (memorandum decision).

Prior convictions. —

Defendant was properly convicted of felony driving while intoxicated (DWI) because defendant’s convictions DWI in Washington and the Alaska statute had similar elements, defendant’s prior DWI convictions were an element of felony DWI, informing the jury of that element was not error, and defendant could not collaterally attack his Washington convictions in his appeal in Alaska. Streiff v. State, — P.2d — (Alaska Ct. App. Sept. 30, 1998) (memorandum decision).

Appellate court affirmed trial court’s judgment of acquittal on a felony DUI charge because the trial court made a factual determination that the state’s evidence was insufficient to prove prior convictions, which was an element of the charge. Howell v. State, 115 P.3d 587 (Alaska Ct. App. 2005).

Under this section, when a defendant is charged with driving under the influence (DUI) and the question was to determine the applicable mandatory minimum sentence or whether, based on the defendant’s criminal history, the offense should have been charged as a felony, both the defendant’s prior convictions for DUI and the defendant’s prior convictions for breath test refusal count equally. Grohs v. State, 118 P.3d 1080 (Alaska Ct. App. 2005).

Elements of Arizona’s DUI statute, A.R.S. § 28-1381(A)(1), were “similar” to the elements of DUI under this section; defendant’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 Alaska. Molina v. State, 186 P.3d 28 (Alaska Ct. App. 2008).

Defendant’s 1994 Washington State DUI offense, for which a conviction was not entered until 2004, constituted a prior conviction triggering felony treatment under this section. Eberhardt v. State, 275 P.3d 560 (Alaska Ct. App. 2012).

Other convictions within preceding five years. —

Prior to the 1996 amendment, subsection (n) was construed to provide that only those convictions occurring within the preceding five years were considered in determining the previous convictions of persons for sentencing purposes. State v. Winters, 944 P.2d 54 (Alaska Ct. App. 1997).

Consideration of convictions older than 10 years held constitutional. —

This section does not violate equal protection or due process under Alaska Const., art. I, §§ 1 and 7 by considering, for purposes of sentencing, drunk driving convictions older than 10 years. Dunn v. Municipality of Anchorage, 100 P.3d 905 (Alaska Ct. App. 2004).

Bifurcated trials. —

Where defendant was convicted of felony driving under the influence, his trial was bifurcated so that the jury would not be informed of his prior convictions for DUI at the guilt phase; on appeal, defendant argued the trial judge erred in ruling that if he instructed the jury on the lesser included offenses of reckless driving and negligent driving, the state would be entitled to introduce his prior DUI convictions. Because defendant withdrew his request for the instructions and the state never introduced his prior convictions, defendant did not preserve this issue for appeal. Williams v. State, 214 P.3d 391 (Alaska Ct. App. 2009).

Where defendant’s reckless driving conviction was based on precisely the same conduct as his DWI, the offense of reckless driving must be deemed to have merged with the offense of DWI; and it is error to enter a separate judgment of conviction against the defendant on the reckless driving charge. Kalmakoff v. Municipality of Anchorage, 715 P.2d 261 (Alaska Ct. App. 1986).

Mid-trial amendment of complaint held invited error. —

Although defendant, who was convicted of driving under the influence, asserted that the trial court erred by allowing the State to amend its theory of prosecution during the trial, defendant’s attorney invited the mid-trial amendment of the complaint, so defendant could not challenge it on appeal. Defendant failed to show that the invited error in this case undermined the integrity of the judicial process or led to an obvious miscarriage of justice. Nix v. State, — P.3d — (Alaska Ct. App. June 24, 2015) (memorandum decision).

Hearsay evidence. —

In a driving under the influence case, defendant's Sixth Amendment right of confrontation was violated when the district court allowed the State to prove the presence of Clonazepam through hearsay testimony; defendant's counsel should have been allowed to cross-examine the analyst performing the testing regarding the presence and concentration of Clonazepam in defendant's blood. However, a judgment of acquittal was properly denied because the State's case was legally sufficient to show that defendant was impaired, even though one forensic toxicologist should not have been allowed to testify; the State was not required to prove that defendant's impairment was due solely to the Clonazepam. McCord v. State, 390 P.3d 1184 (Alaska Ct. App. 2017).

Due process rights not violated. —

Montana court’s reliance on defendant’s failure to appear at his trials despite having been personally served with his trial notices and informed that he would be tried in absentia and without a jury if he did not appear for the trials, established a waiver of his right to be present at trial and satisfied Alaska’s concepts of due process; the convictions obtained in absentia could be used as prior convictions for defendant’s Alaska felony DWI charge. State v. Simpson, 95 P.3d 539 (Alaska Ct. App. 2004).

Due process rights violated. —

DUI conviction requires proof that the defendant was under the influence at the time of driving; the exclusion of delayed-absorption evidence in subsection (s), in prosecutions under subsection (a)(1), that relied on chemical test results violated defendant’s right to due process, U.S. Const. amends. VI, XIV. Valentine v. State, 215 P.3d 319 (Alaska 2009).

Burden of proof. —

Defendant was properly convicted of operating a vehicle under the influence of a controlled substance, driving with a revoked license, and third- and fourth-degree weapons misconduct because any error in placement of the burden of proof was irrelevant where the court's offer of a continuance for defense to prepare for trial was refused, the charges for third-degree weapons misconduct and operating under the influence and driving with a revoked license were properly joined, defendant was not unfairly prejudiced, and the double jeopardy clause was not violated where the weapons offenses implicated significantly different societal interests. Glover v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2020) (memorandum decision).

Sufficiency of evidence review standard. —

Sufficient evidence supported defendant’s conviction for felony driving under the influence because defendant’s arguments to the contrary required construing the evidence in the light most favorable to defendant, which was not the standard for reviewing sufficiency of the evidence. Lewis v. State, 356 P.3d 795 (Alaska Ct. App. 2015).

Ineffective assistance of counsel. —

It was not error to base the dismissal of a convict’s legal malpractice claims against defense counsel on his misdemeanor driving under the influence conviction, when he was originally charged with a felony. Inconsistency with the original felony charge was not a jurisdictional flaw, as the convict was convicted of a lesser included offense, the conviction was preclusive, since the conviction was not appealed, and any ineffective assistance in not filing a notice of appeal, under this rule, had to be raised on post-conviction relief. Foondle v. O'Brien, 346 P.3d 970 (Alaska 2015).

DUI and sobriety test refusal are separate offenses. —

To convict defendant of DWI, state had to prove that defendant was actually driving while intoxicated, but state did not have to prove that defendant was driving while intoxicated to convict him of breath test refusal, only that he was legally under arrest for DWI; therefore, DWI and refusing a breath or blood test were separate offenses permitting separate convictions and separate sentences. Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008).

Effect of charges for other violations. —

Although defendant had been convicted of leaving the scene of an accident and acquitted of failing to exercise care to avoid colliding with another vehicle, collateral estoppel did not preclude defendant’s subsequent prosecution for operating a motor vehicle under the influence of intoxicating liquor. Miller v. State, 652 P.2d 494 (Alaska Ct. App. 1982).

Defendant was a third DWI offender upon his 1987 conviction for driving while intoxicated, where he had been separately charged with DWI in September and November of 1985 and, pursuant to a plea agreement, was sentenced in both cases as if he were a first-time DWI offender. State v. Waalkes, 749 P.2d 1360 (Alaska Ct. App. 1988).

Lesser included offenses. —

Defendant’s prior conviction for leaving the scene of an accident and his acquittal for failure to exercise care to avoid colliding with another vehicle did not bar his prosecution for operating a motor vehicle under the influence of intoxicating liquor under the state and federal constitutional provisions prohibiting placing a criminal defendant twice in jeopardy since the state could not have discovered the evidence necessary to convict defendant of operating a motor vehicle under the influence of intoxicating liquor prior to his trial for leaving the scene and failing to avoid the accident in the exercise of due diligence. Miller v. State, 652 P.2d 494 (Alaska Ct. App. 1982).

A person convicted of driving on a public roadway in the presence of other traffic while actually impaired by alcohol is also necessarily guilty of driving recklessly or with criminal negligence, as those terms are defined in the revised criminal code. Comeau v. State, 758 P.2d 108 (Alaska Ct. App. 1988).

Trial court erred in refusing defendant’s request, at his trial for driving while intoxicated, for an instruction on the lesser included offense of reckless driving and negligent driving, where the issue of defendant’s intoxication was in dispute, and the state presented evidence from which the jury could have found him guilty of reckless driving or negligent driving even if it acquitted him of DWI. Comeau v. State, 758 P.2d 108 (Alaska Ct. App. 1988).

Because defendant disputed whether he was intoxicated, and the state supported its impairment case under AS 28.35.030(a)(1) with evidence that defendant drove erratically, defendant was entitled to a jury instruction on reckless driving, under AS 28.35.040 [now AS 28.35.400 ]. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

Cooksey plea defective. —

Because a Cooksey plea requires the consent of both the government and the defendant, the superior court had no right to accept defendant’s Cooksey plea over the prosecutor’s objection; however, the Cooksey plea was also defective because the issue that defendant preserved for appeal, that his two prior DWI convictions were invalid, was not dispositive of the current felony DWI charge against defendant. Tyler v. State, 24 P.3d 1260 (Alaska Ct. App. 2001).

Guilty plea invalid. —

District court erred in finding that defendant committed a DUI in a traffic safety corridor because defendant informed the court that he had rejected the proposed plea agreement due to the doubled mandatory fine based on a traffic safety corridor enhancement, the trial court did not determine whether he had changed his mind regarding his opposition to the enhancement, and defendant never unequivocally waived his right to a jury trial on that issue. Johnnie v. State, — P.3d — (Alaska Ct. App. Dec. 6, 2013) (memorandum decision).

Necessity defense. —

Trial court properly declined to instruct on the necessity defense at defendant’s trial for driving while intoxicated, where defendant failed to produce “some evidence” that she brought her conduct into compliance with the law as soon as the necessity ended. Reeve v. State, 764 P.2d 324 (Alaska Ct. App. 1988).

In trial for felony DUI, even if trial court erred in failing to give requested instruction of necessity, the error was harmless because a reasonable jury could still have convicted defendant of driving and having a blood alcohol level over the limit within three hours of a breath test. Gilliam v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2009) (memorandum decision).

Necessity instruction should have been given in a trial under subsection (n) for felony driving under the influence because defendant testified that she believed she was about to be attacked by her former boyfriend and that after reaching his parents’ house to warn them of potential harm to them, she did not stay because she had reason to believe defendant would return there. Her other actions, such as stopping of her own accord in a well-lighted area, where she waited for police until she flagged them down, were consistent with her understanding of the necessity—her need to escape from her former boyfriend and to warn his parents by waking them. Greenwood v. State, 237 P.3d 1018 (Alaska 2010).

In a driving while intoxicated case, the trial court did not err in declining to give a necessity instruction, as it was evident that defendant failed to present sufficient evidence to place the defense in issue. Axford v. State, — P.2d — (Alaska Ct. App. May 13, 1992) (memorandum decision).

Defendant was properly denied a necessity instruction because, when defendant claimed he feared the recreational vehicle (RV) he briefly drove was not on a level surface and was in danger of combustion if not moved to a level surface, he did not present some evidence he reasonably believed the RV was at risk of near-immediate combustion; the risk defendant allegedly sought to avoid was not a matter of common knowledge, and he presented no illuminating evidence, since he said defendant's father instructed him to park the RV on level terrain to avoid a risk of fire, but the father did not assert briefly leaving the RV on ground that was not level presented a realistic risk of fire. Seifert v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2019) (memorandum decision).

Instruction on operating vehicle. —

A jury instruction stating that if the State proved certain facts then the jury had to find that defendant was operating the vehicle was not plain error; the instruction did not impermissibly shift the burden of proof or require the jury to find defendant guilty. Gunnels v. State, — P.3d — (Alaska Ct. App. Aug. 29, 2012) (memorandum decision).

Even if the trial court erred in instructing the jury on the modified “operating a motor vehicle” pattern instruction, the error was harmless because the jury found beyond a reasonable doubt that defendant was driving, as it convicted defendant of both driving while under the influence and driving while his license was canceled, suspended, or revoked, and to convict defendant of the second crime the jury needed to unanimously find that defendant was driving the vehicle. Edwardsen v. State, — P.3d — (Alaska Ct. App. Feb. 18, 2015) (memorandum decision).

Court affirmed defendant's conviction of driving under the influence when he was found intoxicated and asleep in his car's driver's seat with the engine running, and his necessity defense failed; he claimed he had to run the car heaters to avoid hypothermia, but it was not reasonable because he could have called for assistance. Thomas v. State, — P.3d — (Alaska Ct. App. Feb. 7, 2018) (memorandum decision).

Instruction on instrument error declined. —

It was not error for trial judge to decline to instruct jury that an Intoximeter, even when functioning properly, could yield results that varied as much as .01 from person’s true blood- or breath-alcohol level. Mangiapane v. Municipality of Anchorage, 974 P.2d 427 (Alaska Ct. App. 1999).

Jury instruction on defense theory. —

A challenged instruction did not, on its face, prohibit a jury from considering the testimony of an expert on defendant’s “retrograde extrapolation” theory that defendant’s blood alcohol level was below the legal limit of 0.080 percent, as set forth in paragraph (a)(2) of this section, when she was driving; further, the State never objected to defendant’s argument on the theory nor suggested to the jury that the argument was inconsistent with the law contained in the instructions. Guerre-Chaley v. State, 88 P.3d 539 (Alaska Ct. App. 2004).

Jury instruction on "driving" a motor vehicle or "operating" one. —

District court properly instructed the jury as to whether defendant was "driving" a motor vehicle or "operating" one because, while the jury was not instructed that it had to unanimously agree on which theory the State had proved, the instruction informed the jury that if the State proved that defendant was sitting in the driver's seat of the vehicle with its engine running, then he was "operating" the motor vehicle, defendant did not dispute that he was seated in the driver's seat of the vehicle or that the vehicle's engine was running, and the prosecutor clearly informed the jury that the State was prosecuting defendant solely under an "operating" theory. Anderson v. State, — P.3d — (Alaska Ct. App. Aug. 1, 2018) (memorandum decision).

Harmless error as to instructions. —

Judge's remarks failed to avoid discouraging jurors from asking questions, plus defendant was not given the chance to review the remarks before the judge addressed the jury, but this was harmless error given the overwhelming evidence to support defendant's convictions for driving under the influence and refusal to submit to a chemical test; he exhibited indicia of intoxication and failed two sobriety tests, plus he admitted he knew he could be charged with another crime if he did not provide a breath sample, yet he still refused to do so. Phetamphone v. State, — P.3d — (Alaska Ct. App. Oct. 28, 2020) (memorandum decision).

Enhanced license revocation. —

Conviction under another state’s statute may be used for purposes of enhanced license revocation under AS 28.15.181(b) . Carter v. State, 625 P.2d 313 (Alaska Ct. App. 1981).

Application of three-year license revocation provision of AS 28.15.181(b) to defendant whose prior two OMVI (operating a motor vehicle while under the influence of intoxicating liquor or drugs) convictions were in 1974 and 1976 did not violate the constitutional prohibitions against ex post facto laws. Carter v. State, 625 P.2d 313 (Alaska Ct. App. 1981).

Local ordinances. —

Municipality’s ordinance which sought to impose criminal sanctions against persons who drove after consuming alcohol on the sole basis of the quantity of alcohol consumed and without regard to the existence or lack of existence of any actual influence or impairment in driving related to alcohol consumption was inconsistent with the state’s statutory framework for drunk driving, under which the crucial element for imposition of criminal penalties was the existence of actual influence or impairment, and thus invalid. Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).

For case construing this section and former AS 28.15.210(c). —

This section and former AS 28.15.210(c) are separate statutes and nothing in either statute or the legislative history indicates that the time provisions of this section are to be engrafted onto former AS 28.15.210(c). Danks v. State, 619 P.2d 720 (Alaska 1980).

Improper delegation of sentencing authority. —

Recommendation of local council on alcoholism that defendant serve 30 days in a residential alcohol treatment center constituted an illegal sentence, because the recommendation resulted from an improper delegation of the court’s sentencing authority and, in effect, amounted to an enhancement of defendant’s original sentence in contravention of the double jeopardy clause of the Alaska Constitution. Hester v. State, 777 P.2d 217 (Alaska Ct. App. 1989).

Expert witness. —

It was not an abuse of discretion to allow the State to present an expert witness from the State Crime Laboratory during its rebuttal case. While the defendant testified at trial that he only consumed five drinks, that he was only slightly intoxicated, and that he had a good recall of the events being litigated, the expert witness’s testimony tended to show that he consumed at least twice as much alcohol as he admitted in his testimony. Brennick v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2013) (memorandum decision).

Evidence held sufficient to support verdict of guilty. —

Even though defendant’s two prior convictions were entered on the same day and each was treated as a first offense for sentencing purposes, those convictions were sufficient to find his next conviction to be a third conviction. Beck v. State, 408 P.2d 996 (Alaska 1965).

Trial court did not err by denying defendant’s motion for a judgment of acquittal because reasonable jurors could have believed the officer’s remaining testimony, after excluding that testimony that contradicted the videotape of the traffic stop, and used that testimony to find defendant guilty of driving under the influence beyond a reasonable doubt. Abyo v. State, 166 P.3d 55 (Alaska Ct. App. 2007).

Although defendant attributed his poor performance on field sobriety tests and his later breath test result to the fact that he was surreptitiously taking drinks from a bottle of vodka after he was pulled over, evidence presented at defendant’s trial was legally sufficient to prove defendant was under the influence at the time of the traffic stop; police officers who conducted the stop testified that they did not see defendant drinking anything following the stop. Johnson v. State, 188 P.3d 700 (Alaska Ct. App. 2008).

Defendant’s conviction for felony DUI pursuant to subsection (n) was appropriate because he had two prior qualifying DUI convictions, and when he was stopped his speech was slurred, he had bloodshot and watery eyes, and defendant also admitted that he had been drinking. Bradley v. State, 197 P.3d 209 (Alaska Ct. App. 2008).

Speeding driver crossed the median, hitting another car and injuring its occupants. His blood alcohol level was in excess of .2. The evidence supported convictions for first degree and third degree assault, reckless driving, driving under the influence, and failing to render assistance in an accident where there is an injury. King v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2009) (memorandum decision).

In a case involving felony driving under the influence, there was sufficient evidence to show that defendant’s impairment was directly caused by his ingestion of Clonazepam because his driving was extremely erratic and dangerous; moreover, a trooper who contacted defendant observed many signs of impairment: he was sluggish, his speech was slurred, he staggered when he walked, and he performed poorly on field sobriety tests. In addition, an expert testified that .03 milligrams of Clonazepam per liter in a person’s blood was enough to cause the impairments. Adams v. State, 359 P.3d 990 (Alaska Ct. App. 2015).

Evidence that defendant appeared to the arresting officer to be intoxicated based on his unsteadiness, animated hand and arm movements, bloodshot eyes, slurred speech, and strong odor of alcohol on his breath, that he would not or could not turn off his vehicle, admitted to drinking ‘a beer and a half or two’; and that defendant exhibited irrational behavior during Datamaster processing was sufficient to find defendant guilty of driving while under the influence of an alcohol. Conway v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2012) (memorandum decision).

Evidence was legally sufficient to support defendant's convictions for driving under the influence and the lesser-included offense of reckless driving; defendant drove her car into a ditch and abandoned it with the motor running, the trooper who interviewed her smelled alcohol on her, she performed poorly on field sobriety tests, and, contrary to her argument, the jury's determination that defendant's excuses were not credible was not second-guessed on appeal. Wolverton v. State, — P.3d — (Alaska Ct. App. Aug. 15, 2018) (memorandum decision).

Evidence was insufficient to prove beyond a reasonable doubt that defendant was driving under the influence of a controlled substance because the testimony was clear that defendant himself did not know whether he had ingested Klonopin rather than some other benzodiazepine, and there was no blood test or other evidence indicating what defendant had actually consumed. Rogers v. State, — P.3d — (Alaska Ct. App. Feb. 3, 2021) (memorandum decision).

There was sufficient evidence to support the trial court's finding that defendant was in actual physical control of his car because it found that defendant was the sole occupant of the car and was sitting in the driver's seat with his seatbelt buckled and the key in the ignition when the officers contacted him. Washam v. State, — P.3d — (Alaska Ct. App. May 5, 2021) (memorandum decision).

Conviction under this section admissible as evidence in proving negligence in subsequent civil action. —

See Scott v. Robertson, 583 P.2d 188 (Alaska 1978).

Driver was estopped from denying his negligence and recklessness at the time of an accident where he pled no contest to, and was convicted of, driving while intoxicated. However, driver still could argue that his negligence and recklessness were not the cause of the accident. Moore v. Peak Oilfield Serv. Co., 175 P.3d 1278 (Alaska 2008).

License revocation and prosecution for driving under the influence not double jeopardy. —

Administrative license revocation is a “remedial” sanction, not a “punitive” sanction, for purpose of double jeopardy; therefore, the administrative revocation of defendants’ licenses was no impediment to their later prosecution for driving while intoxicated, refusing the breath test, or both. State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995), limited, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Sentencing considerations. —

Trial court did not err in independently evaluating the facts and determining, if based upon substantial evidence, that defendant was driving at the time of a fatal accident and could properly take into account the fact that one person died and two others were severely injured as a result of defendant’s conduct, even though defendant had been acquitted on related charges of manslaughter and assault. Brakes v. State, 796 P.2d 1368 (Alaska Ct. App. 1990).

Sentencing judge found that defendant was a “worst offender” based both on the circumstances surrounding defendant’s present offense and on the defendant’s criminal history. Foley v. State, 9 P.3d 1038 (Alaska Ct. App. 2000).

Mandatory minimum sentencing provisions of AS 28.35.030(b) allowed the court to consider all prior DUI offenses when imposing sentences upon defendants convicted of DUI, even those that occurred more than ten years prior to defendants’ current offenses. Ault v. State, 73 P.3d 1248 (Alaska Ct. App. 2003).

Defendant’s sentence of 11 1/2 years imprisonment was not clearly excessive where, based upon defendant’s prior record and his current convictions, trial judge found that it was necessary to protect the public because defendant was eventually going to kill someone if he was not incarcerated; trial judge’s findings were supported by the record and supported the sentence imposed. Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008).

It was not plain error to sentence defendant without the required substance abuse evaluation, as the judge was aware from presentence reports that defendant had an alcohol problem and had been unsuccessful in prior treatment attempts, and it did not appear that a new evaluation would have led to a more favorable sentence. Olson v. State, — P.3d — (Alaska Ct. App. Apr. 22, 2015) (memorandum decision).

Judge’s comments in defendant’s felony driving under the influence case were read as indicating, consistent with applicable case law, that the consistently minor harm mitigator would apply only in unusual driving under the influence cases; defendant failed to establish both proposed mitigators of minor harm, as he was intoxicated and actively drinking while driving, which endangered both defendant and his passenger. Greenway v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2015) (memorandum decision).

The imposition of consecutive fines for driving under the influence and refusal to submit to a chemical test violated double jeopardy because the court was authorized to, and did, previously impose concurrent fines in a final order, and AS 28.35.032(g)(2)(A) did not require consecutive fines, as the statute says nothing about whether a court has to impose fines concurrently or consecutively to other fines. Trumbly v. State, 379 P.3d 996 (Alaska Ct. App. 2016).

Sentencing. —

Since each of defendant’s offenses carried a mandatory minimum sentence, and because the imposition of consecutive jail terms was statutorily required, the sentencing court properly determined that defendant was required to serve the mandatory minimum terms separately. However, consecutive imposition of mandatory minimum fines and license revocations may not be required. Snyder v. State, 879 P.2d 1025 (Alaska Ct. App. 1994), rev'd, 930 P.2d 1274 (Alaska 1996).

Revocation of license for operating motor vehicle in parking lot. —

It is unlawful for an intoxicated person to operate a motor vehicle in any area of this state, whether the area is publicly or privately owned. Caulkins v. State, Dep't of Pub. Safety, 743 P.2d 366 (Alaska 1987).

Enhanced sentences. —

Before a prior conviction for an ostensibly noncriminal infraction, such as a “civil forfeiture,” can properly be relied on as the sole basis for imposition of an enhanced mandatory minimum jail term, fundamental fairness under Alaska Const., art. I, § 7 requires the sentencing court to determine that the defendant was afforded the right to counsel in the prior case; an uncounseled conviction is too unreliable to be depended on for purposes of imposing a sentence of incarceration, whether that sentence is imposed directly or collaterally. Pananen v. State, 711 P.2d 528 (Alaska Ct. App. 1985).

Where an Oregon DWI statute was less restrictive than an Anchorage ordinance, an earlier conviction under the Oregon statute could not be treated as a prior conviction for purposes of enhanced or presumptive sentencing under the Anchorage ordinance. Burnette v. Municipality of Anchorage, 823 P.2d 10 (Alaska Ct. App. 1991).

Because Alaska law focused on the dates of prior convictions, while Arkansas law focused on the dates of the conduct that led to those prior convictions, defendant’s Arkansas conviction could not be deemed a prior felony conviction for presumptive sentencing purposes under the definition contained in AS 12.55.145(a)(1)(B) ; however, all four of defendant’s Arkansas DWI convictions counted as prior convictions for purposes of determining defendant’s minimum sentence under paragraph (n)(1) of this section. Smith v. State, 83 P.3d 12 (Alaska Ct. App. 2004).

Judge had good reasons justifying the length of defendant’s composite sentence where he found that defendant refused to take responsibility for his actions, was willing to manipulate others, rationalized his criminal conduct, and was a danger to the community. Van Doren v. State, — P.3d — (Alaska Ct. App. Apr. 15, 2009) (memorandum decision).

Imposition of doubled fine. —

Trial court erred in imposing double the statutory minimum fine after defendant was convicted of driving under the influence of alcohol in a traffic safety corridor because the statute at issue applied to both criminal and non-criminal offenses, the phrase “the fine, or maximum fine” referred to set fines and maximum fines, but not minimum fines, the words “maximum fine” were not a redundancy, the legislature doubled fines in cases in which a judge had no discretion about the amount—those involving set fines—doubled the maximum in cases in which the judge's discretion to increase the fine was bounded by statute, and left alone cases in which the judge's discretion to increase the fine was already unrestricted—those involving minimum fines. State v. Fyfe, 370 P.3d 1092 (Alaska 2016).

Suspension of fine. —

Former subsection (c), which provided for a minimum sentence when a person was convicted of a second DWI offense within 10 years and also provided that “execution of sentence [could] not be suspended nor . . . probation be granted except on condition that the minimum sentence provided in this section was served,” limited a sentencing court’s authority to suspend the term of imprisonment but did not limit the court’s authority to suspend the fine; thus, because former subsection (c) did not restrict a sentencing court from suspending all or part of the mandatory minimum fine, the court retained this power. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

Conditions of probation. —

Condition of probation prohibiting one who pled nolo contendere to driving while intoxicated from entering the town where he lived and worked for the term of his probation, one year, without prior written permission from the court was not a reasonable condition and was vacated. The condition was not reasonably related to the nature of the underlying offense, the condition was unnecessarily severe and restrictive, and the condition did not appear to be reasonably related to rehabilitation since there was no evidence to suggest that some endemic characteristic of the town contributed to the probationer’s criminal behavior and the condition was not reasonably related to the protection of the public. Edison v. State, 709 P.2d 510 (Alaska Ct. App. 1985).

Rehabilitative confinement as incarceration. —

Amended sentence authorizing DWI defendant’s placement in a residential treatment facility violated defendant’s double jeopardy rights, as custodial confinement in a residential alcohol treatment program is the functional equivalent of jail time and therefore constituted a sentence of imprisonment. Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

Sentence upheld. —

Sentence of 120 days’ incarceration, three years’ license revocation, and a $1,000 fine was not excessive for offense of driving while intoxicated. Kennedy v. State, 657 P.2d 859 (Alaska Ct. App. 1983).

Maximum term of five years imprisonment was upheld for felony driving while intoxicated, where supported by finding that defendant’s criminal history included repeated instances of assault and finding that defendant was “worst offender” for sentencing purposes. White v. State, 969 P.2d 646 (Alaska Ct. App. 1998).

Trial court did not err when it sentenced defendant, who was convicted of felony driving while intoxicated, to the maximum sentence of five years in prison; the record supported the trial court’s conclusion that defendant’s potential for rehabilitation was very low, that he could not be deterred by methods short of imprisonment, and that he had to be isolated to protect the public. Coles v. State, 64 P.3d 149 (Alaska Ct. App. 2003).

In a case where defendant was convicted of manslaughter, first-degree assault, and driving under the influence arising from a collision between a snowmobile and a dog sled, a sentence of 19 years, with 15 years to serve, was not clearly mistaken because the trial court carefully considered the relevant sentencing criteria; defendant had prior contact with the juvenile court, had committed another felony after these offenses, and defendant had taken positive steps towards improvement. However, the trial court determined that death and serious injury were foreseeable consequences of operating a snow machine along a public trail at a high rate of speed, and with reduced visibility, while under the influence. Tickett v. State, 334 P.3d 708 (Alaska Ct. App. 2014).

Under the terms of a plea agreement in which defendant pleaded guilty to felony driving under the influence (DUI), with open sentencing, and defendant received a sentence of five years to serve, although defendant claimed that his sentence was excessive and that the sentencing judge gave insufficient weight to the sentencing goal of rehabilitation, the judge's sentencing decision was reasonable because the judge expressly considered defendant's potential for rehabilitation as she declared that there was little reason to expect a change in his behavior based on his history of similar offenses and his repeated failed efforts at rehabilitation; and she concluded that isolation should be the paramount goal of defendant's sentence. Mumchuck v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2016) (memorandum decision).

Under the terms of a plea agreement in which defendant pleaded guilty to felony driving under the influence (DUI), with open sentencing, and defendant received a sentence of five years to serve, defendant's five-year sentence was not greater than what was needed to deter him from future criminal conduct because the record showed that prior convictions and prior treatment programs had failed to deter defendant; and his risk of re-offending was high and significant. Mumchuck v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2016) (memorandum decision).

Under the terms of a plea agreement in which defendant pleaded guilty to felony driving under the influence (DUI), with open sentencing, and defendant received the maximum sentence of five years to serve, the sentencing judge implicitly found that defendant was a “worst offender” as the judge found that defendant had a lengthy history of driving under the influence; that it would be fruitless to release defendant on probation again as no conditions of probation would deter him; and that defendant needed to be isolated from the community. Mumchuck v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2016) (memorandum decision).

Defendant was properly convicted of second- and fourth-degree assault, second-degree failure to stop at the direction of a peace officer, and misdemeanor driving under the influence because, while the superior court should have merged his two convictions for second-degree assault, defendant's attack on his ex-girlfriend and her new boyfriend was unprovoked and left the boyfriend permanently disfigured, defendant failed a sobriety test, and the sentencing judge properly rejected the proposed mitigator where defendant's conduct was within the “heartland” of the definition of the offenses, his prospects for rehabilitation were “guarded,” and he had no remorse. Lewis v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Composite sentence held proper. —

A composite sentence of 720 days upon convictions of driving while intoxicated and driving while license was revoked was not clearly mistaken, where defendant had six prior DWI convictions and five prior DWLS convictions within the last ten years. Alward v. State, 767 P.2d 1175 (Alaska Ct. App. 1989).

Where defendant was convicted of the offense of driving while intoxicated and the offense of driving with a revoked license while on probation from two prior DWLR convictions, his composite sentence of 690 days to serve with an additional 300 days suspended was proper. Downs v. State, 872 P.2d 1229 (Alaska Ct. App. 1994).

Defendant’s composite sentence for felony driving under the influence, driving while his license was revoked, and sixth-degree controlled substance misconduct (possession of marijuana) was not clearly mistaken in light of defendant’s criminal history. Lewis v. State, 356 P.3d 795 (Alaska Ct. App. 2015).

Sentence held too lenient. —

Where defendant was convicted of DWI, and his conduct and the two injuries that resulted from it justified a sentence of several months’ incarceration and he was also convicted of one count of felony assault, and defendant, a Coast Guard yeoman, might have been ordered to undergo a period of up to 90 days’ voluntary restriction to quarters, because the sentencing court ignored the 90-day confinement alternative to imprisonment that defendant himself had argued for and without explanation or comment imposed only the requirement of community service, the sentence was disapproved. State v. Monk, 886 P.2d 1315 (Alaska Ct. App. 1994).

New trial ordered. —

Defendant was entitled to a new trial on felony driving while intoxicated charges under AS 28.35.030(a) , (n) because defendant was prevented from presenting evidence and from arguing that defendant’s blood alcohol content was less than .10 percent at the time defendant was driving. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

Applied in

Deere v. United States, 268 F.2d 912 (9th Cir. Alaska 1959); State v. Gibson, 543 P.2d 406 (Alaska 1975); Wirz v. State, 577 P.2d 227 (Alaska 1978); Ledbetter v. State, 581 P.2d 1129 (Alaska 1978); State v. Guarderas, 589 P.2d 870 (Alaska 1979); Keel v. State, 609 P.2d 555 (Alaska 1980); Nelson v. State, 650 P.2d 426 (Alaska Ct. App. 1982); Ahsogaek v. State, 652 P.2d 505 (Alaska Ct. App. 1982); Metzker v. State, 658 P.2d 147 (Alaska Ct. App. 1983); Coleman v. State, 658 P.2d 1364 (Alaska Ct. App. 1983); Wilson v. State, 680 P.2d 1173 (Alaska Ct. App. 1984); Meissner v. State, 715 P.2d 714 (Alaska Ct. App. 1986); Annas v. State, 726 P.2d 552 (Alaska Ct. App. 1986); Yancy v. State, 733 P.2d 1058 (Alaska Ct. App. 1987); Wilson v. State, 765 P.2d 106 (Alaska Ct. App. 1988); Cunningham v. State, 768 P.2d 634 (Alaska Ct. App. 1989); Sorenson v. State, 938 P.2d 1084 (Alaska Ct. App. 1997); Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Quoted in

Fairbanks v. Schrock, 457 P.2d 242 (Alaska 1969); Solberg v. State, 568 P.2d 1 (Alaska 1977); Ebona v. State, 577 P.2d 698 (Alaska 1978); Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226 (Alaska 1987); Alfred v. State, 758 P.2d 130 (Alaska Ct. App. 1988); Morris v. State, 186 P.3d 575 (Alaska 2008).

Stated in

Godwin v. State, 554 P.2d 453 (Alaska 1976); Williams v. State, 616 P.2d 881 (Alaska 1980); Pascua v. State, 633 P.2d 1033 (Alaska Ct. App. 1981); Kavorkian v. Tommy's Elbow Room, 694 P.2d 160 (Alaska 1985); Gonzales v. Safeway Stores, 882 P.2d 389 (Alaska 1994).

Cited in

Gullard v. State, 497 P.2d 93 (Alaska 1972); State v. Nease, Superior Court, 1st Jud. Dist., Cr. No. 72-23 (1972); Ravin v. State, 537 P.2d 494 (Alaska 1975); Layland v. State, 549 P.2d 1182 (Alaska 1976); City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978); Westdahl v. State, 592 P.2d 1214 (Alaska 1979); Graham v. State, 633 P.2d 211 (Alaska 1981); Ketzler v. State, 634 P.2d 561 (Alaska Ct. App. 1981); City of Anchorage v. Richards, 654 P.2d 797 (Alaska Ct. App. 1982); Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983); Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983); State v. Moran, 667 P.2d 734 (Alaska Ct. App. 1983); Effenbeck v. State, 700 P.2d 811 (Alaska Ct. App. 1985); Commonwealth v. Hooks, 375 Mass. 284, 376 N.E.2d 857 (Mass. 1978); Morris v. State, 734 P.2d 1012 (Alaska Ct. App. 1987); Clark v. State, 738 P.2d 772 (Alaska Ct. App. 1987); Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987); Selig v. State, 750 P.2d 834 (Alaska Ct. App. 1988); State v. Straetz, 758 P.2d 133 (Alaska Ct. App. 1988); Stewart v. State, 763 P.2d 515 (Alaska Ct. App. 1988); Stocker v. State, 766 P.2d 48 (Alaska Ct. App. 1988); Dionne v. State, 766 P.2d 1181 (Alaska Ct. App. 1989); Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989); Williamson v. State, Dep't of Pub. Safety, 779 P.2d 1238 (Alaska 1989); Hiler v. Municipality of Anchorage, 781 P.2d 24 (Alaska Ct. App. 1989); Gibson v. State, 789 P.2d 383 (Alaska Ct. App. 1990); Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360 (Alaska 1991); Pruitt v. State, Dep't of Pub. Safety, 825 P.2d 887 (Alaska 1992); Goodlataw v. State, 847 P.2d 589 (Alaska Ct. App. 1993); Williams v. State, 853 P.2d 537 (Alaska Ct. App. 1993); In re D.D.S., 869 P.2d 160 (Alaska 1994); Clum v. State, 893 P.2d 1277 (Alaska Ct. App. 1995); Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151 (Alaska 1997); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Gottschalk v. State, 36 P.3d 49 (Alaska Ct. App. 2001); State v. Simpson, 73 P.3d 596 (Alaska Ct. App. 2003); Black v. State, 76 P.3d 417 (Alaska Ct. App. 2003); Yang v. State, 107 P.3d 302 (Alaska Ct. App. 2005); Baker v. State, 110 P.3d 996 (Alaska Ct. App. 2005); Nevers v. State, 123 P.3d 958 (Alaska 2005); Tyler v. State, 133 P.3d 686 (Alaska Ct. App. 2006); Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006); State v. Herrmann, 140 P.3d 895 (Alaska Ct. App. 2006); Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006); Matthew v. State, 152 P.3d 469 (Alaska Ct. App. 2007); Bush v. State, 157 P.3d 1059 (Alaska Ct. App. 2007); Haywood v. State, 193 P.3d 1203 (Alaska Ct. App. 2008); State v. Campbell, 198 P.3d 1170 (Alaska Ct. App. 2008); Rockwell v. State, 215 P.3d 369 (Alaska Ct. App. 2009); Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009); Tegoseak v. State, 221 P.3d 345 (Alaska Ct. App. 2009); Brown v. State, 221 P.3d 20 (Alaska Ct. App. 2009); Stewart v. Elliott, 239 P.3d 1236 (Alaska 2010); Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010); Anderson v. State, 246 P.3d 930 (Alaska Ct. App. 2011); Beattie v. State, 258 P.3d 888 (Alaska Ct. App. 2011); Brockway v. State, — P.3d — (Alaska Ct. App. Feb. 16, 2011); Oskolkoff v. State, 276 P.3d 490 (Alaska Ct. App. 2012); Daniels v. State, 339 P.3d 1027 (Alaska Ct. App. 2014); State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016); Akers v. State, 389 P.3d 65 (Alaska Ct. App. 2016); Rask v. State, 404 P.3d 1236 (Alaska Ct. App. 2017); Belknap v. State, 426 P.3d 1156 (Alaska Ct. App. 2018); Good v. Mun. of Anchorage, 450 P.3d 693 (Alaska Ct. App. 2019); Lemieux v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019); Sherwood v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2019); Bragaw v. State, 482 P.3d 1023 (Alaska Ct. App. 2021); Billum v. State, — P.3d — (Alaska Ct. App. Mar. 31, 2021); Wyatt v. State, — P.3d — (Alaska Ct. App. Apr. 14, 2021); Simpson v. State, 489 P.3d 1181 (Alaska Ct. App. 2021).

Collateral references. —

7AAm. Jur. 2d, Automo- biles and Highway Traffic, § 356 et seq.

61A C.J.S., Motor Vehicles, § 1382 et seq.

What is a “motor vehicle” within statutes making it an offense to drive while intoxicated, 66 ALR2d 1146.

Right to trial by jury in criminal prosecution for driving while intoxicated or similar offense, 16 ALR3d 1373.

Driving under the influence, or when addicted to the use, of drugs as criminal offense, 17 ALR3d 815.

Applicability, to operation of motor vehicle on private property, of legislation making drunken driving a criminal offense, 29 ALR3d 938.

What amounts to violation of drunken driving statute in officer’s “presence” or “view” so as to permit warrantless arrest, 74 ALR3d 1138.

What constitutes driving, operating, or being in control of motor vehicle for purposes of driving while intoxicated statute or ordinance, 93 A.L.R.3d 7.

Reckless driving as lesser included offense of driving while intoxicated or similar charge, 10 ALR4th 1252.

Denial of accused’s request for initial contact with attorney — drunk driving cases, 18 A.L.R.4th 705.

Validity, construction and application of statutes proscribing driving with blood-alcohol level in excess of established percentage, 54 ALR4th 149.

Snowmobile operation as DWI or DUI, 56 ALR4th 1092.

Use of horizontal gaze nystagmus test in impaired driving prosecution, 60 ALR4th 1129.

Nature and elements of offense of alcohol-related vehicular homicide, 64 ALR4th 166.

“Choice of evils” defense that driving was necessary to protect life or property, 64 ALR4th 298.

Cough medicine as “intoxicating liquor” under DUI statute, 65 ALR4th 1238.

Horseback riding or operation of horsedrawn vehicle as within drunk driving statute, 71 ALR4th 1129.

Operation of bicycle as within drunk driving statute, 73 ALR4th 1139.

Validity, construction, and application of statute permitting forfeiture of motor vehicle for operating while intoxicated, 89 ALR5th 539.

Admissibility and sufficiency of extrapolation evidence in DUI prosecutions, 119 ALR5th 379.

Assimilation, under assimilative crimes act (18 U.S.C.A. § 13), of state statutes relating to driving while intoxicated or under influence of alcohol, 175 ALR Fed. 293.

Sec. 28.35.031. Implied consent.

  1. A person who operates or drives a motor vehicle in this state or who operates an aircraft as defined in AS 28.35.030(w) or who operates a watercraft as defined in AS 28.35.030(w) shall be considered to have given consent to a chemical test or tests of the person’s breath for the purpose of determining the alcoholic content of the person’s blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance or if lawfully arrested under AS 28.35.280 for the offense of minor operating a vehicle after consuming alcohol. The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle or operating an aircraft or a watercraft in this state while under the influence of an alcoholic beverage, inhalant, or controlled substance or that the person was a minor operating a vehicle after consuming alcohol.
  2. A person who operates or drives a motor vehicle in this state or who operates an aircraft or watercraft shall be considered to have given consent to a preliminary breath test for the purpose of determining the alcoholic content of the person’s blood or breath. A law enforcement officer may administer a preliminary breath test at the scene of the incident if the officer has probable cause to believe that a person’s ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person
    1. was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident;
    2. committed a moving traffic violation or unlawfully operated an aircraft or watercraft; in this paragraph, “unlawfully” means in violation of any federal, state, or municipal statute, regulation, or ordinance, except for violations that do not provide reason to believe that the operator’s ability to operate the aircraft or watercraft was impaired by the ingestion of alcoholic beverages; or
    3. was operating or driving a motor vehicle in violation of AS 28.35.029(a) .
  3. Before administering a preliminary breath test under (b) of this section, the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is an infraction.  If the person refuses to submit to the test, the test shall not be administered.
  4. The result of the test under (b) of this section may be used by the law enforcement officer to determine whether the driver or operator should be arrested.
  5. Refusal to submit to a preliminary breath test at the request of a law enforcement officer is an infraction.
  6. If a driver or operator is arrested, the provisions of (a) of this section apply.  The preliminary breath test authorized in this section is in addition to any tests authorized under (a) of this section.
  7. A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person’s breath and blood for the purpose of determining the alcoholic content of the person’s breath and blood and shall be considered to have given consent to a chemical test or tests of the person’s blood and urine for the purpose of determining the presence of controlled substances in the person’s blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.
  8. Nothing in this section shall be construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to a test permitted under this section.

History. (§ 1 ch 83 SLA 1969; am § 11 ch 129 SLA 1980; am § 16 ch 117 SLA 1982; am § 16 ch 77 SLA 1983; am §§ 1 — 4 ch 76 SLA 1985; am § 2 ch 142 SLA 1988; am § 7 ch 55 SLA 1994; am § 8 ch 143 SLA 1996; am § 12 ch 63 SLA 2001; am §§ 34 — 36 ch 60 SLA 2002)

Revisor's notes. —

The last clause of (b)(2) of this section was enacted as AS 28.35.031(g) . Reorganized in 1985.

In 1995, in subsection (a), “AS 28.35.030(o) (2)” was substituted for “AS 28.35.030(m) (2)” and “AS 28.35.030(o) (3)” was substituted for “AS 28.35.030(m) (3)” to reflect the 1995 relettering of AS 28.35.030(m) as AS 28.35.030(o).

In 2002, in subsection (a), “AS 28.35.030(r) ” was substituted for “AS 28.35.030(o) ” to reflect the 2002 relettering of AS 28.35.030(o) .

In 2004, in subsection (a), “AS 28.35.030(t) ” was substituted for “AS 28.35.030(r) ” to reflect the 2004 relettering of AS 28.35.030(r) as AS 28.35.030(t) .

In 2008, in subsection (a), “AS 28.35.030(u) ” was substituted for “AS 28.35.030(t) ” to reflect the 2008 relettering of AS 28.35.030(t) as AS 28.35.030(u) .

In 2019, in subsection (a), “ AS 28.35.030(w) ” was substituted for “ AS 28.35.030(u) ” to reflect the 2019 relettering of AS 28.35.030(u) as AS 28.35.030(w) .

Cross references. —

For provisions concerning validity of breath test, see AS 28.90.020 .

Opinions of attorney general. —

The Intoximeter 3000, an infrared alcohol breath test apparatus, is a “chemical test” under this section. 1984 Alas. Op. Att'y Gen. No. 01.

Notes to Decisions

Section constitutional. —

The portable breath test authorized by this section does not constitute an unreasonable search under the fourth amendment to the United States Constitution.Leslie v. State, 711 P.2d 575 (Alaska Ct. App. 1986).

The imposition of criminal penalties upon a motorist for his peaceful refusal to submit to a breath test does not violate his right to equal protection under the law. Burnett v. Municipality of Anchorage, 634 F. Supp. 1029 (D. Alaska), aff'd, 806 F.2d 1447 (9th Cir. Alaska 1986).

The implied consent statute clearly serves a legitimate state interest. All drivers lawfully stopped are treated equally, and, from the perspective of the fourth and fourteenth amendments, those drivers are treated no differently from other sorts of persons suspected of committing criminal acts. Burnett v. Municipality of Anchorage, 634 F. Supp. 1029 (D. Alaska), aff'd, 806 F.2d 1447 (9th Cir. Alaska 1986).

Arrest was not a prerequisite to a valid exigent circumstances warrantless breath test under subsection (g) of this section; subsection (g) satisfied minimal constitutional requirements for warrantless searches when exigent circumstances existed, and because neither lower court reached the issue whether exigent circumstances justified the search, remand was necessary. State v. Blank, — P.3d — (Alaska Feb. 27, 2004), op. withdrawn, sub. op., 90 P.3d 156 (Alaska 2004).

Subsection (g) unconstitutional. —

Having considered the three factors from the Supreme Court’s analysis in Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995), the court concluded that subsection (g) permits unreasonable intrusions contrary to the Fourth Amendment of the U.S. Constitution and to Alaska Const., art. I, § 14. Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000), rev'd, — P.3d — (Alaska 2004).

Constitutionality and construction of subsection (g). —

Subsection (g) of this section, allowing a law enforcement officer with reasonable grounds to believe a person was operating a motor vehicle involved in an accident causing death or serious injury to administer blood or breath alcohol tests based on the person’s implied consent, implicitly contemplates warrantless searches under circumstances that may be inherently exigent and that may consequently render warrantless searches constitutional, and subsection (g) is constitutional in the context of warrantless searches for breath or blood in accident cases involving death or serious physical injury when probable cause to search exists and the search falls within a recognized exception to the warrant requirement; so construed, subsection (g) has the effect of specifying that such tests are authorized under Alaska’s implied consent statute. State v. Blank, 90 P.3d 156 (Alaska 2004).

Legislative intent. —

In the implied consent statutes, the legislature has gone to great lengths to avoid authorizing the police to take blood alcohol tests forcibly from defendants charged with driving while intoxicated; the legislature has, instead, provided extremely strong incentives to a defendant to take a breath test for blood alcohol by providing criminal penalties. Bass v. Municipality of Anchorage, 692 P.2d 961 (Alaska Ct. App. 1984).

Legislature understood the distinction between the court’s general authority to issue a search warrant for a chemical test of a person’s breath or blood and the authority of the police to administer a warrantless chemical test as part of a search incident to a driving under the influence arrest. State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Applicability. —

This section does not apply to everyone who is in police custody under circumstances that amount to a fourth amendment arrest. It applies only to persons lawfully arrested on the specific charge of operating a motor vehicle while intoxicated. Longley v. State, 776 P.2d 339 (Alaska Ct. App. 1989).

Exigent circumstances justify warrantless taking of blood sample. —

Exigent circumstances authorized the police to obtain a nonconsensual, warrantless sample of defendant’s blood. Obtaining the sample did not violate defendant’s right to be free from unreasonable searches and seizures, Alaska Const. art. I, § 14. Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Consent to breathalyzer test when driver operates motor vehicle in state. —

It is clear from this section that a driver consents to take the breathalyzer test when he operates a motor vehicle in the State of Alaska. State v. Nease, Superior Court, 1st Jud. Dist., Cr. No. 72-23 (1972).

Just as a driver’s failure to cooperate in the search conducted by means of a breathalyzer test is no impediment to the classification of the proceeding as a search incident to arrest, the absence of cooperation is no bar to the characterization of the taking of breath as a consent search for which consent has already been supplied by the act of driving on Alaska roads. Burnett v. Municipality of Anchorage, 634 F. Supp. 1029 (D. Alaska), aff'd, 806 F.2d 1447 (9th Cir. Alaska 1986).

Analysis of this section and AS 28.35.032 demonstrates the legislature’s intention that drivers be considered to have consented to a chemical test for determining the alcohol content of their blood and that refusal on the driver’s part to submit to such a test will trigger certain specified consequences. Wirz v. State, 577 P.2d 227 (Alaska 1978).

As the supreme court analyzes the legislature’s intent in enacting this section and AS 28.35.032 , the sections provide that the operator of a motor vehicle in Alaska has consented to chemical tests of his blood’s alcohol content and that after the arrested operator refuses to take the chemical test, he must be advised of the consequences flowing from his contemplated refusal. The arrestee must be permitted to reconsider his refusal in light of that information. Wirz v. State, 577 P.2d 227 (Alaska 1978).

The warnings contained in this section and AS 28.35.032(a) are designed to prompt a motorist to give consent to a breath test by making sure he understands the consequences of refusal, and they do not impliedly limit the government’s introduction of evidence concerning field sobriety tests. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Legislature dropped the “of breath” language from AS 28.35.032(f) because it added subsection (g) of this section and now, depending on circumstances of the case, defendant could be prosecuted for refusal to submit to either a breath or blood test, or both. Mattox v. State, 191 P.3d 148 (Alaska Ct. App. 2008).

Motorists can't choose testing method. —

The due process clause does not confer on motorists the right to control or dictate the form of chemical testing. Hamilton v. Municipality of Anchorage, 878 P.2d 653 (Alaska Ct. App. 1994).

Application of case law. —

Trial court erred in suppressing breathalyzer evidence where the breathalyzer test was administered before the Court of Appeals decisions in Cooley v. Municipality of Anchorage, 649 P.2d 251 (Alaska App. 1982) and Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982) were issued. Because defendant’s breathalyzer test in this case predated the Cooley and Serrano opinions, the rulings in those cases did not apply retroactively. State v. Lamb, 649 P.2d 971 (Alaska Ct. App. 1982).

Statutes do not explicitly grant right to refuse test. —

Neither this section nor AS 28.35.032(a) explicitly grants or recognizes a right on the part of an arrestee to refuse to take a breathalyzer test. Wirz v. State, 577 P.2d 227 (Alaska 1978).

One required to take a breathalyzer test under this section does not have any statutory or constitutional right to refuse to take it. Pears v. State, 672 P.2d 903 (Alaska Ct. App. 1983).

Nor do they impose a duty upon the arresting officer to advise the driver that he has the right to refuse to take the test. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Neither this section nor AS 28.35.032 requires that the arrested operator be advised he has the right to refuse to take a chemical test for the purpose of determining the alcohol content of his blood. Wirz v. State, 577 P.2d 227 (Alaska 1978).

One required to take a breathalyzer test under this section does not have to be advised that he does not have to take examination. Pears v. State, 672 P.2d 903 (Alaska Ct. App. 1983).

And the supreme court would not imply a requirement that an arrestee be advised that he has the right to refuse to take a breathalyzer test. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Given the absence of a specific requirement that arrestees be advised of a right to refuse to undergo the chemical test, it would be inappropriate for this court to engraft such a requirement onto this section. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Although several states have chosen to provide that the arrestee has a right to refuse to take a breathalyzer test and, further, that the arresting officer must inform him of such right, Alaska’s legislature has not adopted such provisos. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Testing after misrepresentation by police. —

Suppression motion was properly denied where police misrepresented their authority to collect samples of bodily fluids from defendant following a fatal car accident. Defendant consulted with his attorney before consenting to give samples, such that conversation with counsel dissipated the taint of the illegal police conduct, and his consent was deemed voluntary. Anderson v. State, 246 P.3d 930 (Alaska Ct. App. 2011).

Misinformation from police about consequences for refusal. —

It would be fundamentally unfair to allow the State to assert one penalty, on which an arrestee’s decision to refuse a chemical test relies, and then later convict the arrestee of a charge that carries a greater penalty. Therefore, a due process issue was raised when defendant was convicted of a felony after being erroneously advised, through an out-of-date form, as to the criteria for determining if the refusal constituted a felony rather than a misdemeanor. Olson v. State, 260 P.3d 1056 (Alaska 2011).

Police officer misread the implied consent form and told defendant he had a duty to submit to a chemical test of his breath or blood, or face criminal prosecution for refusal to submit to a chemical test. The trial court erred in finding that advice adequate for purposes of assuring defendant's due process rights. Rask v. State, 404 P.3d 1236 (Alaska Ct. App. 2017).

Advice to arrestee confused about rights. —

Where an arrested person refuses to submit to a breathalyzer test, the administering officer must inquire into the nature of the refusal and, if it appears that the refusal is based on a confusion about the person’s rights, the officer must clearly advise that person that the rights contained in the Miranda warning do not apply to the breathalyzer examination. Graham v. State, 633 P.2d 211 (Alaska 1981).

Warnings of consequences of refusal. —

While evidence of the warnings given regarding the consequences of refusal to take a breathalyzer test may have been relevant to the issue of mens rea, the absence of more detailed warnings regarding penalties for refusal did not deprive defendant of due process or warrant a directed verdict of acquittal in his favor. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

Motorist under arrest upon being read the form. —

When motorist was read the implied consent form informing him that he was under arrest for driving while intoxicated, he was under arrest as that term is defined in AS 12.25.160 , and therefore, was under arrest for Criminal Rule 45 purposes. Longley v. State, 776 P.2d 339 (Alaska Ct. App. 1989).

Intoxication while operating towed snowmobile. —

A towed snowmobile is a motor vehicle because steering such a vehicle, even if only partially, involves exercising control over the vehicle, and it amounts to operating the vehicle; where a motorist was operating a towed snowmobile while intoxicated and refused to submit to a chemical breath test under the implied consent law, his driver’s license was properly revoked. Conkey v. Dep't of Admin., 113 P.3d 1235 (Alaska 2005).

Test justified by reasonable belief that accident had caused death. —

When an officer seized a sample of defendant’s breath, pursuant to subsection (g) of this section, because he had reasonable grounds to believe defendant was involved in an accident causing a death, a substantially contemporaneous arrest of defendant was not required to justify such an exigent circumstances search of defendant’s blood alcohol content. State v. Blank, 90 P.3d 156 (Alaska 2004).

Probable cause. —

Officer had probable cause to believe defendant was driving under the influence where defendant had red, watery, bloodshot eyes, and she admitted consuming alcohol, although the officer did not consider her admission of one beer consistent with her level of impairment. In addition, defendant exhibited all six clues on the HGN test. Wilbanks v. State, — P.3d — (Alaska Ct. App. May 16, 2012) (memorandum decision).

Defendant was not entitled to suppress evidence obtained during a traffic stop for driving with the vehicle taillights off because the police officer did not unlawfully extend the stop — as the officer noticed defendant's bloodshot eyes and the odor of alcohol emanating from his vehicle — and once defendant admitted to drinking the officer had reasonable suspicion to ask defendant to complete field sobriety tests. After defendant failed to complete the tests, the officer had probable cause to ask defendant to submit to a portable breath test. Rogers v. State, — P.3d — (Alaska Ct. App. Oct. 7, 2020).

Officers' authority. —

There was no merit to defendant's claim that officers lacked authority to require him to submit to a breath test, given Alaska's implied consent law and the fact that defendant was arrested in part based on probable cause that he was operating a motor vehicle while under the influence. Simpson v. State, 489 P.3d 1181 (Alaska Ct. App. 2021).

Exigent circumstances. —

When an officer seized a sample of defendant’s breath, pursuant to subsection (g) of this section, because he had reasonable grounds to believe defendant was involved in an accident causing a death, defendant’s inculpatory statements showed the officer had probable cause to believe defendant was involved in the accident and she did not challenge the procedures the officer used to obtain the sample, so the matter was remanded to the trial court to determine if exigent circumstances justifying the seizure were present. State v. Blank, 90 P.3d 156 (Alaska 2004).

Waiver of right to challenge breath test. —

A defendant waives his constitutional right to challenge the results of an intoximeter test despite his intoxication where he is read a notice form advising him of his right to obtain an independent test of his blood alcohol level by having a sample of blood drawn at a police chosen medical facility, where he checks the appropriate box in the notice form declining the independent test, and where he appears to know what he is doing. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

Refusal irelevant after administration of breath test. —

Revocation of her driver’s license was improper where driver could not be deemed to have refused the breath test after officers actually administered a breath test and obtained potentially probative evidence. Department of Pub. Safety v. Shakespeare, 4 P.3d 322 (Alaska 2000).

Police officer had probable cause to arrest a driver for driving while intoxicated, where the driver was stopped for speeding, failed to pass a horizontal gaze nystagmus (HGN) test but passed four other field sobriety tests, and exhibited several signs of intoxication, including the odor of alcohol, watery and bloodshot eyes, unsteady balance, “bouncy” gait, confusion, talkativeness, and difficulty in showing vehicle registration. State v. Grier, 791 P.2d 627 (Alaska Ct. App. 1990).

Breath test illegally obtained. —

Defendant’s convictions were reversed because defendant’s breath test was illegally obtained and admitted at her trial where the police did not have any individualized suspicion that defendant’s ability to operate a motor vehicle was impaired by the ingestion of alcoholic beverages. Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000), rev'd, — P.3d — (Alaska 2004).

This section and AS 28.35.032 do not contemplate an evidentiary use of the fact of refusal to submit to a breathalyzer test. Puller v. Municipality of Anchorage, 574 P.2d 1285 (Alaska 1978).

Warnings not elements of crime. —

Jury instructions on the elements of breath test refusal were correct because the statutory warnings in AS 28.35.032 are not elements of the crime. Yang v. State, 107 P.3d 302 (Alaska Ct. App. 2005).

Preservation of breath samples. —

Due process clause of the Alaska Constitution requires prosecution to make reasonable efforts to preserve breath samples or to take other steps to allow defendant to verify results of breathalyzer test. Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska Ct. App. 1982).

No right to demand preliminary breath test. —

District court did not err by denying defendant's motion to suppress the DataMaster results based on the police officer's decision not to administer a preliminary breath test (PBT) at the scene of his arrest as AS 28.35.031(b) did not authorize a motorist to demand a PBT. Leydon v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. June 16, 2021).

Test with portable device not exclusively preliminary. —

This section does not provide that a breath test administered with a portable device is exclusively a preliminary breath test under subsection (b). Blank v. State, 142 P.3d 1210 (Alaska Ct. App. 2006).

Request for counsel before breathalyzer test. —

District court judge’s finding that defendant, convicted of driving while intoxicated under municipal code, did not request counsel prior to taking the breathalyzer examination where he never asked to speak to an attorney but asked whether he might need an attorney, with testimony supporting the conclusion that he wondered if he needed an attorney in order to make bail, not because he wanted advice about submitting to a breathalyzer exam, was not clearly erroneous, and superior court judge should not have reversed the conviction. Anchorage v. Erickson, 690 P.2d 20 (Alaska Ct. App. 1984).

Right to counsel before breathalyzer test. —

When a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, the arrestee must be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test; and where arrestee is denied that opportunity, subsequently obtained evidence, whether in form of test results or of refusal to take test, must be suppressed. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

The statutory right to contact and consult with counsel prior to being required to decide whether or not to submit to a breathalyzer test is not an absolute one, which might involve a delay long enough to impair testing results, but rather a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

A person suspected of driving while intoxicated had a statutory right to contact an attorney before deciding whether or not to submit to a breathalyzer test if (1) he requested an opportunity to contact an attorney, and (2) granting the request would not involve a delay long enough to impair test results. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

A breathalyzer exam is not a “critical stage” at which the constitution requires counsel’s presence. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

While a defendant has a statutory right to contact counsel, where he never requested an opportunity to contact counsel and there was nothing in the record to show that the police affirmatively interfered with any attempt by defendant to obtain counsel, he was not denied right to counsel. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

It is only where the totality of the arrestee’s words constitute a request, express or implied, for an opportunity to contract counsel for the purpose of discussing a breathalyzer examination that an opportunity to consult counsel must be provided prior to administration of the breathalyzer. Once the breathalyzer examination is completed or refused and videotaping finished, the suspect is entitled to the full use of the rights guaranteed by AS 12.25.150(b) and Criminal Rule 5(b). Van Wormer v. State, 699 P.2d 895 (Alaska Ct. App. 1985), overruled, Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

Where the judge determined, based on the evidence, that the DWI defendant’s statements regarding having somebody present did not relate to a desire to consult with counsel about breathalyzer examinations or field sobriety test, but rather related to having someone present to observe the administration of the test, perhaps a technician, to insure its validity, the judge was not clearly erroneous in concluding that the defendant did not properly invoke his Copelin rights and that the results of the breathalyzer examination should not be suppressed. Van Wormer v. State, 699 P.2d 895 (Alaska Ct. App. 1985), overruled, Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

The result of a breathalyzer test secured in violation of the right to counsel should be excluded in a civil license revocation proceeding. Whisenhunt v. State, Dep't of Pub. Safety, 746 P.2d 1298 (Alaska 1987).

Trooper’s failure to read yellow pages listing of attorneys to defendant when he knew defendant did not have his glasses, and failure to advise defendant regarding persons he might call for assistance, did not violate defendant’s right to speak with an attorney prior to deciding whether to submit to a breath test. Saltz v. State, Dep't of Pub. Safety, 942 P.2d 1151 (Alaska 1997).

Miranda rights. —

Defendant’s constitutional rights were not violated by not informing him of his Miranda rights prior to asking him to take a breathalyzer exam. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983), construing municipal law .

Videotape recording of defendant while a breathalyzer examination was being administered to him and while he performed other sobriety tests, made at state trooper headquarters following defendant’s arrest for operating a motor vehicle while under the influence of intoxicating liquor [now driving while intoxicated], did not violate defendant’s right to privacy under Alaska Const., art. I, § 22. Palmer v. State, 604 P.2d 1106 (Alaska 1979). But see, Copelin v. State, 659 P.2d 1206 (Alaska 1983); Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983).

The implied consent statute was intended to provide an exclusive method for obtaining direct evidence of a suspect’s blood alcohol content, absent his or her express consent to the use of some other form of testing. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Right to independent test after refusal of breath test. —

A person arrested for driving while intoxicated is entitled by the Alaska Constitution to an independent chemical test even if that person refuses to take the statutorily prescribed breath test. Snyder v. State, 930 P.2d 1274 (Alaska 1996).

Due process requires opportunity for independent test. —

Since the results of an intoximeter test provide the state with potentially incriminating evidence at the risk of criminal penalties, due process requires that the defendant be given an opportunity to challenge the reliability of the evidence with an independent test. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

Motorist was denied due process and his breath test results should have been suppressed, where his minimal ability to speak and understand English prevented him from understanding the arresting officer’s explanation of his right to obtain independent testing of the intoximeter result. Ahtuangaruak v. State, 820 P.2d 310 (Alaska Ct. App. 1991).

Opportunity for drawing of blood at police-selected facility preserves defendant's right to independent test. —

A form notice notifying the defendant of the right to challenge the results of an intoximeter test by having a sample of blood drawn at a local medical facility chosen by the police satisfies the defendant’s right to obtain an independent test of his own choosing performed by a physician of his own choosing because the drawing of blood is a reasonable alternative test procedure and because the defendant made no allegation that the police-selected facility would not administer a reliable test. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

Unavailability of breath testing device no reason for blood draw. —

In two specific circumstances Alaska’s implied consent statutes permit a driver’s blood to be drawn for chemical testing for evidence of driving while intoxicated, and those circumstances do not include unavailability of a breath testing device. Sosa v. State, 4 P.3d 951 (Alaska 2000).

No other chemical test allowed after breath test refused. —

The express language of AS 28.35.032(a) , coupled with the legislative history of this section, leads to the conclusion that in enacting the implied consent statute the legislature intended that once a breath test had been refused no other chemical test would be allowed. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979) decided prior to the enactment of AS 28.35.035 , authorizing the administration of a chemical test without consent in certain circumstances.

In prosecuting a charge of operating a motor vehicle while under the influence of intoxicating liquor [now driving while intoxicated], law enforcement officials cannot utilize the results of a blood alcohol test, when the blood used in performing the test was extracted from the accused against his or her will, after refusal to submit to a breathalyzer examination. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979) decided prior to the enactment of AS 28.35.035 , authorizing the administration of a chemical test without consent in certain circumstances.

Use of search warrant. —

The implied consent statute does not constitute an affirmative prohibition against the independent means of using a search warrant to obtain a sample of blood from a person who has refused to submit to a breathalyzer test after being arrested for an offense arising from an act committed by him while driving under the influence of intoxicating liquor. Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983), rev'd, 684 P.2d 864 (Alaska 1984).

Implied consent statutes in effect at the time of the arrests of defendants in 1980 and 1981 precluded the admission into evidence of chemical sobriety test results obtained pursuant to a search warrant after the arrestees had refused to take such a test. Pena v. State, 684 P.2d 864 (Alaska 1984).

Validity of search warrant issued for chemical testing. —

In situations where the police are relying on the implied consent statutory scheme as their authority for subjecting a person to alcohol testing, they are prohibited from administering non-consensual chemical tests to persons who have refused to submit to a breath test except in certain circumstances; but there are no such limitations to the court’s authority to issue search warrants for chemical tests for which probable cause otherwise exists. State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Defendant’s motion to suppress the results of a blood test should have been denied because it improperly interpreted the implied consent law as restricting the court’s authority to issue a search warrant for a chemical test of a person’s blood upon a proper showing of probable cause; the statute authorizes courts to issue search warrants when a motorist refuses to take a breath test for the purpose of establishing the motorist’s blood-alcohol level. State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Limitation for purposes other than DWI prosecutions. —

AS 28.35.032(a) cannot be restricted to apply solely to driving while intoxicated prosecutions, and to the extent that the statute, by providing that “a chemical test shall not be given” following a breathalyzer refusal, affirmatively limits the manner in which evidence of intoxication may be obtained, its limitation must apply with equal force in all prosecutions “arising out of acts alleged to have been committed while the defendant was operating or driving a motor vehicle while intoxicated.” Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983), rev'd, 684 P.2d 864 (Alaska 1984).

This section does not apply just to the offense of driving while intoxicated but also to any offense which arose out of acts which were committed while a person was driving while intoxicated. Pears v. State, 672 P.2d 903 (Alaska Ct. App. 1983).

“Chemical test” means any chemical test. —

The language of AS 28.35.032(a) stating that after refusal to submit to a test of the breath, “a chemical test shall not be given,” means any chemical test, be it of the breath, blood, urine, or otherwise, and not just a chemical test of the breath. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Defendant should be permitted to check the specific ampoules used in his breathalyzer test. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Since they could be evidence of propriety of test. —

The test and reference ampoules could be probative evidence of the propriety or impropriety of the breathalyzer test. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Denial of right to analyze components is reversible error. —

Where defendant was charged with operating a motor vehicle while intoxicated, denial of the right to make an analysis of some of the components of the breathalyzer machine, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be a denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

District court was correct in suppressing results of breathalyzer test where state unable to produce ampoules used in test. —

Where police did not produce, in response to defendant’s motion for discovery and inspection, the ampoule used in defendant’s breathalyzer test, the trial court properly ordered the results of the test suppressed. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

State need not necessarily preserve breath sample. —

The state need not preserve a defendant’s breath sample where it provides the defendant with a reasonable opportunity to obtain an independent test by giving the defendant clear and express notice of his right to an independent test and by offering assistance in obtaining the test. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

Chemical tests not conclusively presumed accurate. —

Due process will not allow the results of a chemical test authorized under subsection (a) to be conclusively presumed accurate. Barcott v. State, Dep't of Pub. Safety, 741 P.2d 226 (Alaska 1987).

Rule announced is prospective but also has partial retroactive effect. —

Supreme Court decision, that the trial court properly suppressed evidence of the breathalyzer test when police were unable to produce either the test ampoule or the reference ampoule, was to be applied prospectively except for limited retroactive application to cases pending in the courts that have not been completed prior to the date of the opinion, and where requests or motions for production of ampoules has been made either prior to or after the date of the opinion, as well as to the appellants in this case. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Jury demonstration of intoximeter test. —

Where the main issue at trial was whether defendant, an asthmatic, was physically capable of blowing enough air into an intoximeter machine to trigger the mechanism and run the breath test, the trial judge did not abuse his discretion when he allowed the jurors to go to the local police station and blow into the intoximeter. Bowlin v. State, 823 P.2d 676 (Alaska Ct. App. 1991).

Applied in

Nelson v. State, 650 P.2d 426 (Alaska Ct. App. 1982); Lawrence v. State, 715 P.2d 1213 (Alaska Ct. App. 1986); Halley v. State, — P.2d — (Alaska Ct. App. Jan. 16, 1991).

Quoted in

Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981); Lundquist v. Department of Pub. Safety, 674 P.2d 780 (Alaska 1983); Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983); Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987); Department of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232 (Alaska 1988); Haynes v. State, Dep't of Pub. Safety, 865 P.2d 753 (Alaska 1993).

Stated in

Javed v. Dep't of Pub. Safety, 921 P.2d 620 (Alaska 1996).

Cited in

Coleman v. State, 658 P.2d 1364 (Alaska Ct. App. 1983); Burgess v. Burgess, 710 P.2d 417 (Alaska 1985); Cunningham v. State, 768 P.2d 634 (Alaska Ct. App. 1989); Thorne v. Department of Pub. Safety, 774 P.2d 1326 (Alaska 1989); State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995); Snyder v. Alaska, Dep't of Public Safety, Div. of Motor Vehicles, 31 P.3d 770 (Alaska 2001); Fraiman v. Dep't of Admin., DMV, 49 P.3d 241 (Alaska 2002); Guerre-Chaley v. State, 88 P.3d 539 (Alaska Ct. App. 2004); Moberg v. Municipality of Anchorage, 152 P.3d 1170 (Alaska Ct. App. 2007); Garibay v. Dep't of Admin., Div. of Motor Vehicles, 341 P.3d 446 (Alaska 2014); Velarde v. State, 353 P.3d 355 (Alaska Ct. App. 2015).

Collateral references. —

60 C.J.S., Motor Vehicles, § 328 et seq.

Duty of law enforcement officer to offer suspect chemical sobriety test under implied consent law, 95 ALR3d 710.

Validity, construction and application of statutes proscribing driving with blood-alcohol level in excess of established percentage, 54 ALR4th 149.

Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual alcohol is inaccurate, 90 ALR4th 155.

Sec. 28.35.032. Refusal to submit to chemical test.

  1. If a person under arrest for operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.33.031(a)(1) or AS 28.35.031(a) , or if a person involved in a motor vehicle accident that causes death or serious physical injury to another person refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.33.031(a)(2) or AS 28.35.031(g) , after being advised by the officer that the refusal will result in the denial or revocation of the driver’s license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that the refusal is a crime, a chemical test may not be given, except as provided by AS 28.35.035 . If a person under arrest for operating a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.35.031(a) , after being advised by the officer that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that the refusal is a crime, a chemical test may not be given, except as provided by AS 28.35.035 .
  2. [Repealed, § 25 ch 77 SLA 1983.]
  3. [Repealed, § 25 ch 77 SLA 1983.]
  4. [Repealed, § 25 ch 77 SLA 1983.]
  5. The refusal of a person to submit to a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a) or (g) is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating or driving a motor vehicle or operating an aircraft or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance.
  6. Except as provided under (p) of this section, refusal to submit to a chemical test authorized by AS 28.33.031(a) or AS 28.35.031(a) or (g) is a class A misdemeanor.
  7. Upon conviction under this section,
    1. the court shall impose a minimum sentence of imprisonment of
      1. not less than 72 consecutive hours, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of six months, and impose a fine of not less than $1,500 if the person has not been previously convicted;
      2. not less than 20 days, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 12 months, and impose a fine of not less than $3,000 if the person has been previously convicted once;
      3. not less than 60 days, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 18 months, and impose a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (p) of this section;
      4. not less than 120 days, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 24 months, and impose a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (p) of this section;
      5. not less than 240 days, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 30 months, and impose a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (p) of this section;
      6. not less than 360 days, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 36 months, and impose a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (p) of this section;
    2. the court may not
      1. suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person
        1. serve the minimum imprisonment under (1) of this subsection;
        2. pay the minimum fine required under (1) of this subsection;
      2. suspend imposition of sentence; or
      3. suspend the requirement for an ignition interlock device;
    3. the court shall revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.181 , and may order that the motor vehicle, aircraft, or watercraft that was used in commission of the offense be forfeited under AS 28.35.036 ;
    4. the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law; and
    5. the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person.
  8. Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under this section shall supply the judge, prosecutor, defendant, and an agency involved in the defendant’s treatment with information and reports concerning the defendant’s past and present assessment, treatment, and progress. Information compiled under this subsection is confidential and may only be used in connection with court proceedings involving the defendant’s treatment, including use by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a pre-sentence report for the use of the court in sentencing a person convicted under this section.
  9. A person who is sentenced to imprisonment for 72 consecutive hours under (g) of this section and who is not released from imprisonment after 72 hours may not bring an action against the state or a municipality or its agents, officers, or employees for damages resulting from the additional period of confinement if
    1. the employee or employees who released the person exercised due care and, in releasing the person, followed the standard release procedures of the prison facility; and
    2. the additional period of confinement did not exceed 12 hours.
  10. For purposes of this section, convictions under AS 28.33.030 or AS 28.35.030 and for refusal to submit to a chemical test under this section, if arising out of a single transaction and a single arrest, are considered one previous conviction.
  11. Notwithstanding (g) of this section, the court may reduce the fine required to be imposed under (g) of this section by the cost of the ignition interlock device.
  12. The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services under AS 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (p) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.
  13. A program of inpatient treatment may be required by the authorized agency under (l) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral.  The request for review shall be made within seven days of the agency’s referral, and shall specifically set out the grounds upon which the request for review is based.  The court may order a hearing on the request for review.
  14. If a person fails to satisfy the requirements of an authorized agency under (m) of this section, the court
    1. may impose any portion of a suspended sentence; however, if the person was convicted under (p) of this section, the court shall impose a part or all of the remaining portion of any suspended sentence;
    2. may punish the failure as contempt of the authority of the court under AS 09.50.010 or as a violation of a condition of probation; and
    3. shall order the revocation or suspension of the person’s driver’s license, privilege to drive, and privilege to obtain a driver’s license until the requirements are satisfied.
  15. Imprisonment required under (g)(1)(A) of this section shall be served at a community residential center or by electronic monitoring at a private residence under AS 33.30.065 . If a community residential center or electronic monitoring at a private residence is not available, imprisonment required under (g)(1)(A) of this section may be served at another appropriate place determined by the commissioner of corrections. Imprisonment required under (g)(1)(B) — (F) of this section may be served at a community residential center or at a private residence if approved by the commissioner of corrections. Imprisonment served at a private residence must include electronic monitoring under AS 33.30.065 . The cost of imprisonment resulting from the sentence imposed under (g)(1) of this section shall be paid to the state by the person being sentenced. The cost of imprisonment required to be paid under this subsection may not exceed $2,000. Upon the person’s conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the state shall seek reimbursement from the person’s permanent fund dividend as provided under AS 43.23.140 . A person sentenced under (g)(1)(B) of this section shall perform at least 160 hours of community service work, as required by the director of the community residential center or other appropriate place, or as required by the commissioner of corrections if the sentence is being served at a private residence. In this subsection, “appropriate place” means a facility with 24-hour on-site staff supervision that is specifically adapted to provide a residence, and includes a correctional center, residential treatment facility, hospital, halfway house, group home, work farm, work camp, or other place that provides varying levels of restriction.
  16. A person is guilty of a class C felony if the person is convicted under this section and either has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense, or punishment under this subsection or under AS 28.35.030(n) was previously imposed within the last 10 years. For purposes of determining minimum sentences based on previous convictions, the provisions of AS 28.35.030(w)(4) apply. Upon conviction,
    1. the court shall impose a fine of not less than $10,000, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 60 months, and impose a minimum sentence of imprisonment of not less than
      1. 120 days if the person has been previously convicted twice;
      2. 240 days if the person has been previously convicted three times;
      3. 360 days if the person has been previously convicted four or more times;
    2. the court may not
      1. suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person
        1. serve the minimum imprisonment under (1) of this subsection;
        2. pay the minimum fine required under (1) of this subsection;
      2. suspend imposition of sentence; or
      3. suspend the requirements for an ignition interlock device;
    3. the court shall permanently revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license subject to restoration under (q) of this section;
    4. the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug, or combination of drugs intended to prevent consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law;
    5. the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person;
    6. the court shall order forfeiture under AS 28.35.036 , of the motor vehicle, aircraft, or watercraft used in the commission of the offense, subject to remission under AS 28.35.037 ; and
    7. the court shall order the department to revoke the registration for any vehicle registered by the department in the name of the person convicted under this subsection; if a person convicted under this subsection is a registered co-owner of a vehicle, the department shall reissue the vehicle registration and omit the name of the person convicted under this subsection.
  17. Upon request, the department shall review a driver’s license revocation imposed under (p)(3) of this section and, unless the revocation was ordered in a case in which the person was also convicted of a crime under AS 11.41.100 11.41.210 , 11.41.280 , 11.41.282 , or a similar law in another jurisdiction or the revocation was ordered under AS 28.35.030(u) or (v), may restore the driver’s license if
    1. the license has been revoked for a period of at least 10 years;
    2. the person has not been convicted of a driving-related criminal offense or a felony in the 10 years preceding the request for restoration of the license; and
    3. the person provides proof of financial responsibility.
  18. [Repealed, § 7 ch 56 SLA 2006.]
  19. For purposes of this section, the director of the division within the department responsible for administration of this section or a person designated by the director may request and receive criminal justice information available under AS 12.62.
  20. Notwithstanding (g) or (p) of this section, the court shall waive the requirement of the use of an ignition interlock device when a person operates a motor vehicle in a community included on the list published by the department under AS 28.22.011(b) .
  21. In this section,
    1. “cost of imprisonment” means the cost of imprisonment as determined under AS 28.35.030 (l);
    2. “previously convicted” has the meaning given in AS 28.35.030 .

History. (§ 1 ch 83 SLA 1969; am § 28 ch 71 SLA 1972; am § 12 ch 129 SLA 1980; am § 17 ch 117 SLA 1982; am §§ 17 — 20, 25 ch 77 SLA 1983; am § 17 ch 60 SLA 1986; am §§ 6, 7 ch 57 SLA 1989; am §§ 26, 27 ch 119 SLA 1990; am §§ 8, 9 ch 188 SLA 1990; am §§ 24 — 27 ch 3 SLA 1992; am §§ 9, 10 ch 59 SLA 1993; am §§ 8 — 11 ch 55 SLA 1994; am §§ 8 — 12 ch 80 SLA 1995; am §§ 9 — 11 ch 143 SLA 1996; am § 13 ch 63 SLA 2001; am §§ 37 — 44 ch 60 SLA 2002; am § 17 ch 99 SLA 2004; am § 28 ch 124 SLA 2004; am §§ 4 — 6 ch 68 SLA 2005; am §§ 5, 7 ch 56 SLA 2006; am § 27 ch 23 SLA 2007; am §§ 8 — 10 ch 97 SLA 2008; am §§ 7 — 9 ch 85 SLA 2010; am § 110 ch 36 SLA 2016; am §§ 97, 98 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection (o) enacted as (p); relettered in 1993, at which time former (o) was relettered as (p) (now (u)). In 1990, the phrase “the driver's license, privilege to drive, or privilege to obtain a license,” was substituted for “this license or nonresident privilege to drive,” in (a) of this section to conform to the language of AS 28.15.165(a) , as amended by § 3, ch. 119, SLA 1990, and other provisions of this title amended by that Act. Section 28, ch. 119, SLA 1990 added subsections ( l )-(n), identical to those added by ch. 188, SLA 1990. Because ch. 188 took effect before ch. 119, the amendments by ch. 119 are not noted in the historical citation for this section.

Subsection (p) was enacted as (q). Relettered in 1995, at which time former subsection (p) was relettered as (q) (now (t)) and internal references in subsections (f), (g), ( l ), and (n) were conformed. Also in 1995, in subsection (p), “AS 28.35.030(o)(4)” was substituted for “AS 28.35.030(m) (4)” to reflect the 1995 relettering of AS 28.35.030(m) .

Subsections (q), (r), and (s) were enacted as (r), (s), and (t). Relettered in 2002, at which time former subsection (q) was relettered as (t) and internal cross-references in subsections (g) and (p) were conformed to the relettering. In 2002, in subsection (p), “ AS 28.35.030(r) (4)” was substituted for “ AS 28.35.030(o) (4)” to reflect the 2002 relettering of AS 28.35.030(o) , and in subsection (r), “ AS 28.35.030(p) ” was substituted for “ AS 28.35.030(q) ” to reflect the 2002 relettering of AS 28.35.030(q) . In 2004, in subsection (p), “ AS 28.35.030(t) (4)” was substituted for “ AS 28.35.030(r) (4)” to reflect the 2004 relettering of AS 28.35.030(r) as AS 28.35.030(t) . In 2008, in subsection (p), “ AS 28.35.030(u) (4)” was substituted for “ AS 28.35.030(t)(4)” to reflect the 2008 relettering of AS 28.35.030(t) as AS 28.35.030(u) . In 2019, in subsection (p), “ AS 28.35.030(w)(4) ” was substituted for “ AS 28.35.030(u)(4)” to reflect the 2019 relettering of AS 28.35.030(u) as AS 28.35.030(w) .

Subsection (t) was enacted as (u). Relettered in 2008, at which time former subsection (t) was relettered as (u).

In 2018, “AS 43.23.140 ” was substituted for “AS 43.23.065 ” in subsection (o) to reflect the renumbering of that section.

In subsection (q), the cross-reference to AS 28.35.030(v) or (w) was changed to AS 28.35.030(u) or (v) to reflect the 2019 relettering of those subsections.

Cross references. —

For effect of the 1993 enactment of (o) of this section on Alaska Rule of Criminal Procedure 32(b), see § 11, ch. 59, SLA 1993 in the Temporary and Special Acts.

For provision relating to the applicability of the 2016 amendments to subsection (o), see sec. 185(d)(6), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2008 amendment, effective January 1, 2009, added the references to the use of ignition interlock devices in subparagraphs (g)(1)(A) — (F) and in paragraph (p)(1), and added subsection (u) [now (t)].

The 2010 amendment, effective September 14, 2010, in (g)(1)(A), substituted “a minimum of six months” for “a minimum of 12 months during the period of probation”, in (g)(1)(B), substituted “a minimum of 12 months” for “a minimum of 24 months during the period of probation”, in (g)(1)(C), substituted “a minimum of 18 months” for “a minimum of 36 months during the period of probation”, in (g)(1)(D), substituted “for a minimum of 24 months” for “throughout the period of probation”, in (g)(1)(E), substituted “for a minimum of 30 months” for “throughout the period of probation”, in (g)(1)(F), substituted “for a minimum of 36 months” for “throughout the period of probation”; in (g)(2), added (C), and made related changes; in (k), deleted “if the court imposes probation under AS 12.55.102 ” following “Notwithstanding (g) of this section,”; in (p)(1), substituted “for a minimum of 60 months” for “throughout the period of probation”, added (p)(2)(C), and made related changes.

The 2016 amendment, effective January 1, 2017, in (o), substituted “at a private residence by electronic monitoring under AS 33.30.065 . If electronic monitoring” for “at a community residential center, or if a community residential center”; substituted “imprisonment under (g)(1)(A) of this section shall be served at a private residence by other means as determined by the commissioner of corrections. A person who is serving a sentence of imprisonment required under (g)(1)(A) of this section by electronic monitoring at a private residence may not be subject to a search of the person's dwelling by a peace officer or a person required to administer the electronic monitoring under AS 33.30.065 (a), except upon probable cause” for “at another appropriate place determined by the commissioner of corrections.”; inserted “under AS 33.30.065 or, if electronic monitoring is not available, shall be served by other means as determined by the commissioner of corrections.” following “include electronic monitoring”; substituted “. The” for “provided, however, that the” preceding “cost of imprisonment”; deleted “While at the community residential center or other appropriate place, a person sentenced under (g)(1)(A) of this section shall perform at least 24 hours of community service work.” preceding the last sentence.

The 2019 amendment, effective July 9, 2019, in (o), rewrote the first and second sentences, which read, “Imprisonment required under (g)(1)(A) of this section shall be served at a private residence by electronic monitoring under AS 33.30.065 . If electronic monitoring is not available, imprisonment under (g)(1)(A) of this section shall be served at a private residence by other means as determined by the commissioner of corrections.”, deleted the former third sentence, which read, “A person who is serving a sentence of imprisonment required under (g)(1)(A) of this section by electronic monitoring at a private residence may not be subject to a search of the person's dwelling by a peace officer or a person required to administer the electronic monitoring under AS 33.30.065 (a), except upon probable cause.”, and deleted “or, if electronic monitoring is not available, shall be served by other means as determined by the commissioner of corrections” following “AS 33.30.065” at the end of the current third sentence; and rewrote (q), which read, “(q) Upon request, the department shall review a driver's license revocation imposed under (p)(3) of this section and may restore the driver's license if

“(1) the license has been revoked for a period of at least 10 years;

“(2) the person has not been convicted of a criminal offense since the license was revoked; and

“(3) the person provides proof of financial responsibility.”

Editor's notes. —

Section 18, ch. 63, SLA 2001, provides that the 2001 amendment to subsection (p) “applies to offenses committed on or after [July 4, 2001], except that references to previous convictions include convictions occurring before, on, or after [July 4, 2001].”

Section 57(b), ch. 60, SLA 2002 provides that the amendments to subsections (a), (e), (g), (h), (j), (o), and (p), made by §§ 37- 43, ch. 60, SLA 2002, and subsections (q), (r), and (s), added by § 44, ch. 60, SLA 2002, apply “to offenses committed on or after July 1, 2002, except that references to previous convictions include convictions occurring before, on, or after July 1, 2002.”

Section 32(b), ch. 124, SLA 2004, provides that the 2004 amendment of (p) of this section applies “to offenses occurring on or after July 1, 2004, except that previous punishment [, referred to in the subsection,] . . . includes punishment imposed before, on, or after July 1, 2004.”

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendment to (o) of this section applies “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Section 142(i), ch. 4, FSSLA 2019, provides that the 2019 amendment to (q) of this section applies “to revocation of a driver's license occurring before, on, or after July 9, 2019, for conduct occurring before, on, or after July 9, 2019.”

Legislative history reports. —

For Governor's transmittal letter on HB 445 (from which ch. 55, SLA 1994, which amended this section, derived), see 1994 House Journal 2262-2263.

Notes to Decisions

Legislative intent. —

In the implied consent statutes the legislature has gone to great lengths to avoid authorizing the police to forcibly take blood alcohol tests from defendants charged with driving while intoxicated; the legislature has, instead, provided extremely strong incentives to a defendant to take a breath test for blood alcohol by providing criminal penalties. Bass v. Municipality of Anchorage, 692 P.2d 961 (Alaska Ct. App. 1984).

Purpose of section. —

This section, which directs the Department of Public Safety to suspend or revoke the licenses of those who refuse to submit to a breath-analysis, is merely an internal operating procedure that provides a sanction for those persons who refuse to submit to the test in order to compel submission to a test that provides evidence of intoxication; and although this section may have the effect of keeping the roads safe from drunk drivers by suspending the licenses of those who refuse the test, this was not an intended statutory purpose. Lundquist v. Department of Pub. Safety, 674 P.2d 780 (Alaska 1983).

Lack of cooperation with investigative efforts generally. —

The enactment of the statute relating to a motorist’s refusal to submit to a breath test does not imply that the legislature intended to bar evidence that an arrested motorist declined to cooperate with investigative efforts in some other way. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

The implied consent statute was intended to provide an exclusive method for obtaining direct evidence of a suspect’s blood alcohol content, absent his or her express consent to the use of some other form of testing. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Constitutionality of subsection (f). —

Subsection (f) of this section is reasonably related to the public purpose of obtaining evidence of drunk driving. Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983).

Subsection (f) of this section is sufficiently analogous to a statute punishing concealment of evidence such as AS 11.56.610 to satisfy substantive due process. Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983).

Subsection (f) of this section does not violate the prohibition against cruel and unusual punishment since imposing punishment for refusal to take a breathalyzer test serves the legitimate public goals of deterring such conduct and ensuring that such conduct will not benefit a defendant and the penalty does not result in subjecting a defendant to punishment out of proportion to the conduct in which he has engaged. Jensen v. State, 667 P.2d 188 (Alaska Ct. App. 1983).

Punishing a refusal to take a breathalyzer test bears a fair and substantial relation to the legitimate governmental objective of gathering evidence of possible drunken driving and does not deny equal protection. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983), construing municipal provision nearly identical to subsection (f) of this section .

Subsection (f) does not create inevitable ethical problems for attorneys advising DWI arrestees. There is nothing improper about explaining the alternatives (take the breath test or risk prosecution under subsection (f)) to a client and allowing her to make an informed decision. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

Miranda rights. —

Defendant’s constitutional rights were not violated by not informing him of his Miranda rights prior to asking him to take a breathalyzer exam. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983), construing municipal law .

Imposition of criminal penalties held constitutional. —

The imposition of criminal penalties upon a motorist for his peaceful refusal to submit to a breath test does not violate his right to equal protection under the law. Burnett v. Municipality of Anchorage, 634 F. Supp. 1029 (D. Alaska), aff'd, 806 F.2d 1447 (9th Cir. Alaska 1986).

Inadequate Advisements.—

Police officer misread the implied consent form and told defendant he had a duty to submit to a chemical test of his breath or blood, or face criminal prosecution for refusal to submit to a chemical test. The trial court erred in finding these advisements adequate for purposes of assuring defendant's due process rights. Rask v. State, 404 P.3d 1236 (Alaska Ct. App. 2017).

DUI and sobriety test refusal are separate offenses. —

To convict defendant of DWI, state had to prove that defendant was actually driving while intoxicated, but state did not have to prove that defendant was driving while intoxicated to convict him of breath test refusal, only that he was legally under arrest for DWI; therefore, DWI and refusing a breath or blood test were separate offenses permitting separate convictions and separate sentences. Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008).

Intoximeter test as search incident to arrest. —

Where an intoximeter test is administered in compliance with the implied consent statute, it is reasonable as a search incident to arrest. Longley v. State, 776 P.2d 339 (Alaska Ct. App. 1989).

Statutory requirement of a chemical breath test was a valid search incident to arrest for driving under the influence because police had probable cause to believe defendant’s blood alcohol level was .08 percent or over. Wing v. State, 268 P.3d 1105 (Alaska Ct. App. 2012).

Blood alcohol theory. —

Requirement that an individual arrested on a “blood alcohol level” theory submit to a breath test does not raise an unconstitutional dilemma. Wing v. State, 268 P.3d 1105 (Alaska Ct. App. 2012).

Implied consent. —

Just as a driver’s failure to cooperate in the search conducted by means of a breathalyzer test is no impediment to the classification of the proceeding as a search incident to arrest, the absence of cooperation is no bar to the characterization of the taking of breath as a consent search for which consent has already been supplied by the act of driving on Alaska roads. Burnett v. Municipality of Anchorage, 634 F. Supp. 1029 (D. Alaska), aff'd, 806 F.2d 1447 (9th Cir. Alaska 1986).

The implied consent statute clearly serves a legitimate state interest. All drivers lawfully stopped are treated equally, and, from the perspective of the fourth and fourteenth amendments, those drivers are treated no differently from other sorts of persons suspected of committing criminal acts. Burnett v. Municipality of Anchorage, 634 F. Supp. 1029 (D. Alaska), aff'd, 806 F.2d 1447 (9th Cir. Alaska 1986).

“While” defined. —

The word “while” in former subsection (a) meant “for.” Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987), limited, Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001).

No other chemical test allowed after breath test refused. —

The express language of subsection (a), coupled with the legislative history of the implied consent statute, leads to the conclusion that in enacting the implied consent statute the legislature intended that once a breath test had been refused no other chemical test would be allowed. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979)(Decided prior to the enactment of AS 28.35.035 , authorizing the administration of a chemical test without consent in certain circumstances)

In prosecuting a charge of operating a motor vehicle while under the influence of intoxicating liquor [now driving while intoxicated], law enforcement officials cannot utilize the results of a blood alcohol test when the blood used in performing the test was extracted from the accused against his or her will after refusal to submit to a breathalyzer examination. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979)(Decided prior to the enactment of AS 28.35.035 , authorizing the administration of a chemical test without consent in certain circumstances)

“Chemical test” means any chemical test. —

The language of subsection (a) stating that after refusal to submit to a test of the breath, “a chemical test shall not be given,” meant any chemical test, be it of the breath, blood, urine or otherwise, and not just a chemical test of the breath. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

There is no due process requirement that a person be advised of the right to refuse to submit to a breathalyzer examination. Palmer v. State, 604 P.2d 1106 (Alaska 1979). But see, Copelin v. State, 659 P.2d 1206 (Alaska 1983); Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983).

While subsection (a) of this section prohibits the giving of any other blood test when the person arrested refuses to submit to a breathalyzer examination, it does not otherwise grant or recognize a right on the part of the arrested person to refuse that examination. Palmer v. State, 604 P.2d 1106 (Alaska 1979). But see, Copelin v. State, 659 P.2d 1206 (Alaska 1983); Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983).

Jury was instructed that it could not convict defendant for refusal to submit to a chemical test unless he knew or should have known that he had a legal duty to submit to a breath test; thus, defendant’s due process rights were not violated because the jury must have found that defendant had enough notice of his legal duty to submit to a breath test to be convicted of refusal, even though the officer did not explain to him that he could not satisfy that legal duty by offering to submit to a blood test. Mattox v. State, 191 P.3d 148 (Alaska Ct. App. 2008).

Request for counsel before breathalyzer test. —

District court judge’s finding that defendant, convicted of driving while intoxicated under municipal code, did not request counsel prior to taking the breathalyzer examination where he never asked to speak to an attorney but asked whether he might need an attorney, with testimony supporting the conclusion that he wondered if he needed an attorney in order to make bail, not because he wanted advice about submitting to a breathalyzer exam, was not clearly erroneous, and superior court judge should not have reversed the conviction. Anchorage v. Erickson, 690 P.2d 20 (Alaska Ct. App. 1984).

Right to counsel before breathalyzer test. —

When a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, the arrestee must be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test; and where arrestee is denied that opportunity, subsequently obtained evidence, whether in form of test results or of refusal to take test, must be suppressed. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

The statutory right to contact and consult with counsel prior to being required to decide whether or not to submit to a breathalyzer test is not an absolute one, which might involve a delay long enough to impair testing results, but rather a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes. Copelin v. State, 659 P.2d 1206 (Alaska 1983).

A person suspected of driving while intoxicated had a statutory right to contact an attorney before deciding whether or not to submit to a breathalyzer test if (1) he requested an opportunity to contact an attorney, and (2) granting the request would not involve a delay long enough to impair test results. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

A breathalyzer exam is not a “critical stage” at which the constitution requires counsel’s presence. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

While a defendant has a statutory right to contact counsel, where he never requested an opportunity to contact counsel and there was nothing in the record to show that the police affirmatively interfered with any attempt by defendant to obtain counsel, he was not denied right to counsel. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983).

The result of a breathalyzer test secured in violation of the right to counsel should be excluded in a civil license revocation proceeding. Whisenhunt v. State, Dep't of Pub. Safety, 746 P.2d 1298 (Alaska 1987).

Presence of counsel during breath test. —

Right to contact counsel does not include a right to have counsel physically present while a breath test is administered. Annas v. State, 726 P.2d 552 (Alaska Ct. App. 1986).

Pre-test communication with a nonlawyer. —

The rationale articulated in Copelin does in fact support interpreting the immediacy requirement of AS 12.25.150(b) to require pre-breathalyzer test results communications with a nonlawyer such as a relative, and to the extent that Van Wormer suggests that the request must specifically be for an attorney, it is overruled. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

Analysis of AS 28.35.031 and this section demonstrates the legislature’s intention that drivers be considered to have consented to a chemical test for determining the alcohol content of their blood and that refusal on the driver’s part to submit to such a test will trigger certain specified consequences. Wirz v. State, 577 P.2d 227 (Alaska 1978).

As the supreme court analyzes the legislature’s intent in enacting AS 28.35.031 and this section, the sections provide that the operator of a motor vehicle in Alaska has consented to chemical tests of his blood’s alcohol content and that after the arrested operator refuses to take the chemical test, he must be advised of the consequences flowing from his contemplated refusal. The arrestee must be permitted to reconsider his refusal in light of that information. Wirz v. State, 577 P.2d 227 (Alaska 1978).

The warnings contained in AS 28.35.031(c) and this section are designed to prompt a motorist to give consent to a breath test by making sure he understands the consequences of refusal, and they do not impliedly limit the government’s introduction of evidence concerning field sobriety tests. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Legislature dropped the “of breath” language from subsection (f) of this section because it added AS 28.35.031(g) and now, depending on circumstances of the case, defendant could be prosecuted for refusal to submit to either a breath or blood test, or both. Mattox v. State, 191 P.3d 148 (Alaska Ct. App. 2008).

Statutes do not explicitly grant right to refuse test. —

Neither AS 28.35.031 nor subsection (a) of this section explicitly grants or recognizes a right on the part of an arrestee to refuse to take a breathalyzer test. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Nor do they impose a duty upon the arresting officer to advise the driver that he has the right to refuse to take the test. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Neither AS 28.35.031 nor this section requires that the arrested operator be advised he has the right to refuse to take a chemical test for the purpose of determining the alcohol content of his blood. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Although several states have chosen to provide that the arrestee has a right to refuse to take a breathalyzer test and, further, that the arresting officer must inform him of such right, Alaska’s legislature has not adopted such provisos. Wirz v. State, 577 P.2d 227 (Alaska 1978).

The supreme court would not imply a requirement that an arrestee be advised that he has the right to refuse to take a breathalyzer test. Wirz v. State, 577 P.2d 227 (Alaska 1978).

Given the absence of a specific requirement that arrestees be advised of a right to refuse to undergo the chemical test, it would be inappropriate for this court to engraft such a requirement onto AS 28.35.031 . Wirz v. State, 577 P.2d 227 (Alaska 1978).

This section seems to require that there at least be a reasonable attempt to communicate to a defendant the consequence of a failure to take the breathalyzer examination. Williford v. State, 653 P.2d 339 (Alaska Ct. App. 1982), rev'd, 674 P.2d 1329 (Alaska 1983).

Officer must explain that Miranda rights to silence and to presence of counsel inapplicable to breath test. —

It is not enough for the officer to advise the arrestee that the breath test is mandatory; the officer must also specifically explain that, under the law, the Miranda rights to silence and to the presence of counsel do not apply to the breath test. Fee v. State, 825 P.2d 464 (Alaska Ct. App. 1992).

Absence of detailed warnings regarding penalties for refusal. —

While evidence of the warnings given regarding the consequences of refusal to take a breathalyzer test may have been relevant to the issue of mens rea, the absence of more detailed warnings regarding penalties for refusal did not deprive defendant of due process or warrant a directed verdict of acquittal in his favor. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983), construing municipal ordinance .

Refusal after being informed of consequences not established. —

State failed to establish that defendant refused to take the chemical test after he had been informed of the consequences, where a state trooper had begun reading the implied consent form to defendant when defendant grabbed the form, put it into his mouth, chewed it up, and then spit it out, and the trooper did not finish reading the form and did not again ask defendant to submit to the test. Suiter v. State, 785 P.2d 28 (Alaska Ct. App. 1989).

Warning misinformed defendant of penalty. —

Defendant was not entitled to have the breath test refusal charge dismissed based on the trooper’s misinforming him about the penalty he faced if he refused the test because defendant’s due process rights were not violated. Defendant conceded that, as a matter of law, the trial judge was correct when he found that the flawed notice adequately warned defendant of his obligation to submit to the breath test; the record also supported the finding that defendant’s decision to refuse was not based on the inaccurate warning. Van Doren v. State, — P.3d — (Alaska Ct. App. Apr. 15, 2009) (memorandum decision).

Separate determination of prejudice to misinformed defendant required. —

Where an arrestee is correctly informed of the statutorily-required warning that refusing a breath test is a crime but is given incorrect supplemental information regarding the penalty, the arrestee must prove that he or she was prejudiced by the mistake. Olson v. State, 260 P.3d 1056 (Alaska 2011).

Misinformation from police about consequences for refusal. —

It would be fundamentally unfair to allow the State to assert one penalty, on which an arrestee’s decision to refuse a chemical test relies, and then later convict the arrestee of a charge that carries a greater penalty. Therefore, a due process issue was raised when defendant was convicted of a felony after being erroneously advised, through an out-of-date form, as to the criteria for determining if the refusal constituted a felony rather than a misdemeanor. Olson v. State, 260 P.3d 1056 (Alaska 2011).

Determination as to whether motorist's subsequent consent cures prior refusal. —

When an arrestee initially refuses a breath test but has a change of heart shortly thereafter — while still in the presence of the arresting officer and the breath testing machine — the subsequent consent will be relevant on the issue of whether the initial refusal was unequivocal. To the extent that it is relevant on this issue, evidence of consent is independently admissible and may be relied on by the accused regardless of whether the affirmative defense of subsequent consent has been formally adopted. Lively v. State, 804 P.2d 66 (Alaska Ct. App. 1991).

In determining whether a motorist’s subsequent consent to take a breath test cures the prior refusal, the following factors should be considered: that the subsequent consent occurred within a reasonable time after the prior first refusal; that the test administered following the subsequent consent will still be accurate; that the test will not result in any substantial expense or inconvenience to the police; and that the arrestee has been in continuous custody of the arresting officer and under observation for the entire time. Pruitt v. State, Dep't of Pub. Safety, 825 P.2d 887 (Alaska 1992).

Motorist’s refusal to take a breath test was not cured where he was read the implied consent notice, was allowed to call his attorney, and continued to refuse to take the test after several opportunities, and only consented after spraying breath spray containing alcohol down his throat. Pruitt v. State, Dep't of Pub. Safety, 825 P.2d 887 (Alaska 1992).

Right to independent test after refusal of breath test. —

A person arrested for driving while intoxicated is entitled by the Alaska Constitution to an independent chemical test even if that person refuses to take the statutorily prescribed breath test. Snyder v. State, 930 P.2d 1274 (Alaska 1996).

No privilege against self-incrimination. —

A refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the state or federal privilege against self-incrimination. Svedlund v. Municipality of Anchorage, 671 P.2d 378 (Alaska Ct. App. 1983), construing municipal provision .

Purpose of subsection (e). —

The purpose of the provision in subsection (e) of this section, that evidence of refusal to submit to a breathalyzer test is admissible at trial if the defendant was lawfully under arrest for driving while intoxicated at the time of his refusal, is to assure that individuals arrested for driving while intoxicated do not benefit from failure to comply with the requirements of Alaska’s implied consent statute, AS 28.35.031 . Coleman v. State, 658 P.2d 1364 (Alaska Ct. App. 1983).

Admissibility of evidence of refusal. —

Even though this section makes the refusal to take the breathalyzer examination admissible, it does not make the refusal admissible without regard to the other evidence rules, and to be admissible, evidence of refusal is required to be relevant, and the probative value of the evidence should not be outweighed by its prejudicial impact. Williford v. State, 653 P.2d 339 (Alaska Ct. App. 1982), rev'd, 674 P.2d 1329 (Alaska 1983).

Whether evidence of a refusal to take a breathalyzer examination is admissible is committed to the discretion of the trial court. Williford v. State, 653 P.2d 339 (Alaska Ct. App. 1982), rev'd, 674 P.2d 1329 (Alaska 1983).

Defendant’s refusal to take the breathalyzer test did not give rise to a constitutional claim of privilege since even assuming the breathalyzer refusal could have been deemed to have amounted to a testimonial statement, this statement could not properly have been considered privileged since defendant had no legal right to make it. Coleman v. State, 658 P.2d 1364 (Alaska Ct. App. 1983).

By its holding that admission of evidence of defendant’s refusal to take a breathalyzer test did not violate defendant’s constitutional right against self-incrimination, the court did not mean to indicate that evidence of breathalyzer refusals is per se admissible in all cases; as with other types of circumstantial evidence, admissibility of breathalyzer refusals should be determined pursuant to Evidence Rules 401-403, on a case-by-case basis, by weighing probative value against potential for unfair prejudice. Coleman v. State, 658 P.2d 1364 (Alaska Ct. App. 1983).

Admission into evidence of defendant’s refusal to submit to a breathalyzer test did not violate his fifth amendment right against self-incrimination, even though Alaska has made refusal to submit to a breathalyzer test a separate criminal offense. Deering v. Brown, 839 F.2d 539 (9th Cir. Alaska 1988).

A showing that the warnings required by the implied consent statute were given is necessary to establish a foundation for the admission of evidence of a refusal. Longley v. State, 776 P.2d 339 (Alaska Ct. App. 1989).

Where defendant was charged with refusal to submit to a breath test, court did not err in allowing the state to cross-examine defendant concerning a prior episode in which he took a breath test; it was relevant to show that defendant was familiar with the breath test and that he understood what the officer was asking him to do. Yang v. State, 107 P.3d 302 (Alaska Ct. App. 2005).

Refusal following unjustified stop. —

In an investigative stop of a party to a reported domestic dispute predicated on a 911 call, after that party had left the scene, there was insufficient objective basis to believe that the reported argument had led, or would lead, to a crime to justify the stop, and evidence of the party’s refusal to submit to a breath test at the time of the stop should have been suppressed. Miller v. State, 145 P.3d 627 (Alaska Ct. App. 2006), rev'd, 207 P.3d 541 (Alaska 2009).

Subsequent consent after initial refusal. —

Defendant’s initial refusal to take a chemical test was not cured by a subsequent consent where, when he offered his subsequent consent, the arresting officer had already turned him over to jail custodians and left the building, and defendant had been allowed to have contact with his brother and had tried to smoke a cigarette. Lively v. State, 804 P.2d 66 (Alaska Ct. App. 1991).

Culpable mental state. —

Defendant was not entitled to post-conviction relief because defendant could have argued at trial that the evidence was insufficient to establish that defendant voluntarily drove defendant's vehicle in that defendant had not knowingly consumed alcohol or knowingly operated the vehicle as defendant was suffering from a medical episode induced by low blood sugar. Furthermore, defendant failed to explain how an involuntary act defense was materially different than the mens rea defense that defendant did advance at trial. Hayden v. State, — P.3d — (Alaska Ct. App. Apr. 22, 2020).

Officer must advise arrestee confused about rights. —

Where an arrested person refuses to submit to a breathalyzer test, the administering officer must inquire into the nature of the refusal and, if it appears that the refusal is based on a confusion about the person’s rights, the officer must clearly advise that person that the rights contained in the Miranda warning do not apply to the breathalyzer examination. Graham v. State, 633 P.2d 211 (Alaska 1981).

But burden on arrestee to show confusion in fact. —

Where defendant motorist refused to submit to a breathalyzer test based on a confusion about her rights, the burden was on the defendant to show that she was in fact confused. Graham v. State, 633 P.2d 211 (Alaska 1981).

Evidence sufficient. —

Court did not err in denying a motion for acquittal because the evidence was sufficient to sustain defendant’s conviction for refusal to take a breath test where defendant claimed he did not understand what the officer was asking him to do; during the field sobriety tests, defendant followed directions in performing the tests, and responded appropriately to questions by identifying himself and his vehicle. Yang v. State, 107 P.3d 302 (Alaska Ct. App. 2005).

Evidence was sufficient to convict defendant for felony refusal to submit to a chemical test where his offer to submit to blood test did not satisfy his legal duty, he refused to perform field sobriety tests, sign the implied consent form, and submit to a breath test, and he refused the opportunity for an independent chemical test. Mattox v. State, 191 P.3d 148 (Alaska Ct. App. 2008).

Evidence of refusal to take the breathalyzer was not error where the evidence did have possible probative value. Williford v. State, 653 P.2d 339 (Alaska Ct. App. 1982), rev'd, 674 P.2d 1329 (Alaska 1983).

Admissibility of chemical test taken for diagnostic purposes. —

Where a blood test was administered for medical diagnostic purposes independent of the police, the blood test is admissible as evidence even though the defendant has previously refused to submit to a breathalyzer examination. Nelson v. State, 650 P.2d 426 (Alaska Ct. App. 1982).

Jury demonstration of intoximeter test. —

Where the main issue at trial was whether defendant, an asthmatic, was physically capable of blowing enough air into an intoximeter machine to trigger the mechanism and run the breath test, the trial judge did not abuse his discretion when he allowed the jurors to go to the local police station and blow into the intoximeter. Bowlin v. State, 823 P.2d 676 (Alaska Ct. App. 1991).

Use of search warrant. —

The implied consent statute does not constitute an affirmative prohibition against the independent means of using a search warrant to obtain a sample of blood from a person who has refused to submit to a breathalyzer test after being arrested for an offense arising from an act committed by him while driving under the influence of intoxicating liquor. Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983), rev'd, 684 P.2d 864 (Alaska 1984).

Implied consent statutes in effect at the time of the arrests of defendants in 1980 and 1981 precluded the admission into evidence of chemical sobriety test results obtained pursuant to a search warrant after the arrestees had refused to take such a test. Pena v. State, 684 P.2d 864 (Alaska 1984).

In situations where the police are relying on the implied consent statutory scheme as their authority for subjecting a person to alcohol testing, they are prohibited from administering non-consensual chemical tests to persons who have refused to submit to a breath test except in certain circumstances; but there are no such limitations to the court's authority to issue search warrants for chemical tests for which probable cause otherwise exists. State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Burden of proving refusal. —

The state always bears the burden of proving, as an element of the offense of refusal, that the defendant unequivocally refused to take a breath test; the affirmative defense of subsequent consent assumes that the state has met this burden. Lively v. State, 804 P.2d 66 (Alaska Ct. App. 1991).

Requirements for conviction. —

The jury need not find that defendant operated a motor vehicle while under the influence of intoxicating liquor as a condition prerequisite to convicting him or her of refusal to provide a chemical breath test. Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987), limited, Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001).

Probable cause to arrest is not an element of the offense of refusing a chemical test of breath. Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987), limited, Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001).

In order to convict a person of refusing to submit to a chemical test of his or her breath, the state must prove that the individual in question knew or perhaps should have known that the breath test was sought as evidence in connection with an investigation of his or her driving while intoxicated, and, second, that with that culpable mental state, he or she declined the test. Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987), limited, Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001).

Defendant's claims, premised on a contention that defendant could not be convicted of refusal to submit to a chemical test, were rejected as case law did not require that machine calibration and a 15-minute observation had to be completed before defendant's refusal to take a breath test would constitute a crime. Smith v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2020).

Warnings not elements of crime. —

Jury instructions on the elements of breath test refusal were correct because the statutory warnings in this section are not elements of the crime. Yang v. State, 107 P.3d 302 (Alaska Ct. App. 2005).

Admission of intoxication. —

While a trial court might consider defendant’s admission of intoxication in mitigation of punishment, it is not a defense to a refusal to provide a chemical breath test. Brown v. State, 739 P.2d 182 (Alaska Ct. App. 1987), limited, Ritter v. State, 16 P.3d 191 (Alaska Ct. App. 2001).

License revocation and prosecution for refusal to take test not double jeopardy. —

Administrative license revocation is a “remedial” sanction, not a “punitive” sanction, for purpose of double jeopardy; therefore, the administrative revocation of defendants’ licenses was no impediment to their later prosecution for driving while intoxicated, refusing the breath test, or both. State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995), limited, State v. Esmailka, 961 P.2d 432 (Alaska Ct. App. 1998).

Harmless error as to instructions. —

Judge's remarks failed to avoid discouraging jurors from asking questions, plus defendant was not given the chance to review the remarks before the judge addressed the jury, but this was harmless error given the overwhelming evidence to support defendant's convictions for driving under the influence and refusal to submit to a chemical test; he exhibited indicia of intoxication and failed two sobriety tests, plus he admitted he knew he could be charged with another crime if he did not provide a breath sample, yet he still refused to do so. Phetamphone v. State, — P.3d — (Alaska Ct. App. Oct. 28, 2020) (memorandum decision).

Sentencing. —

Since each of defendant’s offenses carried a mandatory minimum sentence, and because the imposition of consecutive jail terms was statutorily required, the sentencing court properly determined that defendant was required to serve the mandatory minimum terms separately. However, consecutive imposition of mandatory minimum fines and license revocations may not also be required. Snyder v. State, 879 P.2d 1025 (Alaska Ct. App. 1994), rev'd, 930 P.2d 1274 (Alaska 1996).

Under subsection (g), the trial court was only required to impose a sentence consecutive to defendant’s DWI sentence of the mandatory minimum of 120 days; otherwise, the trial court had the discretion to impose the remaining two years and 245 days of defendant’s breath test refusal concurrently to defendant’s DWI sentence as the language of subsection (g) only required consecutive sentencing with regard to the mandatory minimum sentence. Baker v. State, 30 P.3d 118 (Alaska Ct. App. 2001).

Municipal sentencing provision that allowed concurrent sentences for convictions of driving under the influence and refusing to submit to a chemical test under Anchorage, Alaska, Mun. Code 9.28.020A, 9.28.022.C was not fatally inconsistent with subsection (a) of this section for purposes of AS 28.01.010(a) because the fact that the district court might have different sentencing authority, depending on whether a motorist is charged under state or municipal law, did not affect the statutory goal of statewide uniformity of traffic laws. Lampley v. Municipality of Anchorage, 159 P.3d 515 (Alaska Ct. App. 2007).

Defendant’s sentence of 11 1/2 years imprisonment was not clearly excessive where, based upon defendant’s prior record and his current convictions, trial judge found that it was necessary to protect the public because defendant was eventually going to kill someone if he was not incarcerated; trial judge’s findings were supported by the record and supported the sentence imposed. Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008).

Where offender had an extensive criminal history and repeated failed rehabilitation attempts, applying the five-year worst offender sentence to his most recent charges of driving a boat under the influence and refusal of breath test was reasonable. Anderson v. State, — P.3d — (Alaska Ct. App. Apr. 10, 2013), (memorandum opinion).

Trial court's imposition of consecutive fines for driving under the influence and refusal to submit to a chemical test violated double jeopardy because (1) the court was authorized to, and did, previously impose concurrent fines in a final order, and (2) AS 28.35.032(g)(2)(A) did not require consecutive fines, as the statute said nothing about whether a court had to impose fines concurrently or consecutively to other fines. Trumbly v. State, 379 P.3d 996 (Alaska Ct. App. 2016).

Superior court erred in imposing two years of defendant's sentence for felony breath-test refusal consecutively to his sentence for felony driving under the influence, because the law only required that the sentences be consecutive to the extent of defendant's 240-day mandatory minimum sentence for felony breath-test refusal. Powell v. State, — P.3d — (Alaska Ct. App. Aug. 1, 2018) (memorandum decision).

Duty to public. —

This section does not create a duty by the Department of Public Safety toward the public which, if breached, can form the basis of a civil action for negligence against the department. Lundquist v. Department of Pub. Safety, 674 P.2d 780 (Alaska 1983).

Limitation for purposes other than DWI prosecutions. —

Subsection (a) could not be restricted to apply solely to driving while intoxicated prosecutions, and to the extent that the provision, by providing that “a chemical test shall not be given” following a breathalyzer refusal, affirmatively limited the manner in which evidence of intoxication might be obtained, its limitation had to apply with equal force in all prosecutions “arising out of acts alleged to have been committed while the defendant was operating or driving a motor vehicle while intoxicated.” Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983), rev'd, 684 P.2d 864 (Alaska 1984).

Conviction affirmed. —

This section does not deprive drivers of their constitutional rights of equal protection and freedom from warrantless searches under the fourth and fifth amendments to the U.S. Constitution. Because defendant’s arguments were without merit, his conviction was affirmed. McCracken v. State, 685 P.2d 1275 (Alaska Ct. App. 1984).

Former subsection (b) construed. —

Where an arrested person refuses to submit to a breathalyzer test, the administering officer must inquire into the nature of the refusal and, if it appears that the refusal is based on a confusion about the person’s rights, the officer must clearly advise that person that the rights contained in the Miranda warning do not apply to the breathalyzer examination. Graham v. State, 633 P.2d 211 (Alaska 1981).

Applied in

Skuse v. State, 714 P.2d 368 (Alaska Ct. App. 1986); Callahan v. State, 769 P.2d 444 (Alaska Ct. App. 1989); Hamilton v. Municipality of Anchorage, 878 P.2d 653 (Alaska Ct. App. 1994).

Quoted in

Cunningham v. State, 768 P.2d 634 (Alaska Ct. App. 1989).

Stated in

State v. Fyfe, 370 P.3d 1092 (Alaska 2016); Stoner v. State, 421 P.3d 108 (Alaska Ct. App. 2018).

Cited in

Wilson v. State, 714 P.2d 362 (Alaska Ct. App. 1984); Witt v. State, 692 P.2d 976 (Alaska Ct. App. 1984); Srala v. Municipality of Anchorage, 765 P.2d 103 (Alaska Ct. App. 1988); Stocker v. State, 766 P.2d 48 (Alaska Ct. App. 1988); Gottschalk v. State, 36 P.3d 49 (Alaska Ct. App. 2001); Baker v. State, 110 P.3d 996 (Alaska Ct. App. 2005); Grohs v. State, 118 P.3d 1080 (Alaska Ct. App. 2005); Nevers v. State, 123 P.3d 958 (Alaska 2005); Tyler v. State, 133 P.3d 686 (Alaska Ct. App. 2006); Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006); State v. Herrmann, 140 P.3d 895 (Alaska Ct. App. 2006); Matthew v. State, 152 P.3d 469 (Alaska Ct. App. 2007); Bush v. State, 157 P.3d 1059 (Alaska Ct. App. 2007); Haywood v. State, 193 P.3d 1203 (Alaska Ct. App. 2008); Oskolkoff v. State, 276 P.3d 490 (Alaska Ct. App. 2012); Stoner v. State, — P.3d — (Alaska Ct. App. Jan. 19, 2018); Spiers v. State, — P.3d — (Alaska Ct. App. Aug. 19, 2020); Sherwood v. State, — P.3d — (Alaska Ct. App. Dec. 18, 2019).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 132 et seq.

60 C.J.S., Motor Vehicles, § 328 et seq.

Requiring submission to physical examination or test as violation of constitutional rights, 25 ALR2d 1407.

Suspension or revocation of driver’s license for refusal to take sobriety test, 88 ALR2d 1064.

Request before submitting to chemical sobriety test to communicate with counsel as refusal to take test, 97 ALR3d 852.

Request for prior administration of additional test as constituting refusal to submit to chemical sobriety test under implied consent law, 98 ALR3d 572.

Admissibility of test results where blood was taken despite defendant’s objection or refusal to submit to test, 14 ALR4th 690, 26 ALR4th 1112.

Validity, construction and application of statutes proscribing driving with blood-alcohol level in excess of established percentage, 52 ALR4th 1161.

Use of horizontal gaze nystagmus test in impaired driving prosecution, 60 ALR4th 1129.

Sufficiency of showing of physical inability to take tests for driving while intoxicated to justify refusal, 68 ALR4th 776.

Sec. 28.35.033. Presumptions and chemical analysis of breath or blood.

  1. Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, the amount of alcohol in the person’s blood or breath at the time alleged shall give rise to the following presumptions:
    1. If there was 0.04 percent or less by weight of alcohol in the person’s blood, or 40 milligrams or less of alcohol per 100 milliliters of the person’s blood, or 0.04 grams or less of alcohol per 210 liters of the person’s breath, it shall be presumed that the person was not under the influence of an alcoholic beverage.
    2. If there was in excess of 0.04 percent but less than 0.08 percent by weight of alcohol in the person’s blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of the person’s blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of the person’s breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage.
    3. If there was 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 the person’s blood, or 0.08 grams or more of alcohol per 210 liters of the person’s breath, it shall be presumed that the person was under the influence of an alcoholic beverage.
  2. For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood.
  3. Except as provided in AS 28.35.030(s) , the provisions of (a) of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of intoxicating liquor.
  4. To be considered valid under the provisions of this section the chemical analysis of the person’s breath or blood shall have been performed according to methods approved by the Department of Public Safety.  The Department of Public Safety is authorized to approve satisfactory techniques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis.  If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.
  5. The person tested may have a physician, or a qualified technician, chemist, registered or advanced practice registered nurse, or other qualified person of the person’s own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. The person who administers the chemical test shall clearly and expressly inform the person tested of that person’s right to an independent test described under this subsection, and, if the person being tested requests an independent test, the department shall make reasonable and good-faith efforts to assist the person being tested in contacting a person qualified to perform an independent chemical test of the person’s breath or blood.
  6. Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or the person’s attorney.

History. (§ 1 ch 83 SLA 1969; am § 6 ch 104 SLA 1971; am § 13 ch 129 SLA 1980; am §§ 18 — 20 ch 117 SLA 1982; am E.O. No. 67, § 2 (1987); am § 14 ch 63 SLA 2001; am §§ 45, 46 ch 60 SLA 2002; am § 29 ch 124 SLA 2004; am § 46 ch 33 SLA 2016)

Administrative Code. —

For forensic alcohol testing, see 13 AAC 63.

Effect of amendments. —

The 2016 amendment, effective July 7, 2016, in (e), inserted “or advanced practice registered” preceding “nurse”; made stylistic changes.

Notes to Decisions

The implied consent statute was intended to provide an exclusive method for obtaining direct evidence of a suspect’s blood alcohol content, absent his or her express consent to the use of some other form of testing. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

No right to demand preliminary breath test. —

District court did not err by denying defendant's motion to suppress the DataMaster results based on the police officer's decision not to administer a preliminary breath test (PBT) at the scene of his arrest as AS 28.35.031(b) did not authorize a motorist to demand a PBT. Leydon v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. June 16, 2021) (memorandum decision).

No other chemical test allowed after breath test refused. —

The express language of AS 28.35.032(a) , coupled with the legislative history of the implied consent statute, leads to the conclusion that in enacting the implied consent statute the legislature intended that once a breath test had been refused no other chemical test would be allowed. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), overruled on other grounds, State v. Blank, 90 P.3d 156 (Alaska 2004)decided prior to the enactment of AS 28.35.035 , authorizing the administration of a chemical test without consent in certain circumstances.

In prosecuting a charge of operating a motor vehicle while under the influence of intoxicating liquor, law enforcement officials cannot utilize the results of a blood alcohol test when the blood used in performing the test was extracted from the accused against his or her will, after refusal to submit to a breathalyzer examination. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979)(decided prior to the enactment of AS 28.35.035 , authorizing the administration of a chemical test without consent in certain circumstances)

“Chemical test” means any chemical test. —

The language of AS 28.35.032(a) stating that after refusal to submit to a test of the breath, “a chemical test shall not be given,” means any chemical test, be it of the breath, blood, urine, or otherwise, and not just a chemical test of the breath. Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Alaska legislature has specified the foundational facts necessary for the admissibility of a chemical analysis of breath in subsection (d). Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975).

This section does not specify the method of proof of the foundational facts, which is controlled by the applicable rules of evidence. Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975).

Rigid proof of such facts not required. —

With the increasing acceptance and reliability of the breathalyzer has come a relaxation of any notion of rigid proof of foundational facts. Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975).

Effect of last sentence of subsection (d). —

The last sentence of subsection (d) merely defines the elements that must be proved before breathalyzer test results may be admitted into evidence; it does not make those results unassailable. Indeed, the statute creates only a presumption of the test’s validity. Keel v. State, 609 P.2d 555 (Alaska 1980).

Compliance with “Breathalyzer Operational Checklist” required. —

The approved methods of administering the breathalyzer, established by the Department of Health and Social Services in accord with subsection (d) of this section, are set forth in former 7 AAC 30.020. Completion of the “Breathalyzer Operational Checklist” is the first of 13 procedures established for proper test administration. Completion of the checklist is required under subsection (d) of this section; however, absolute compliance in completing the checklist is not required in order to render the test results valid and admissible in evidence. Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978).

Effect of compliance with “Breathalyzer Operational Checklist”. —

The “Breathalyzer Operational Checklist” is a simplified method of establishing the admissibility of the evidence. It furnished the court with a clear record that all the substantive test procedures were accomplished, thereby minimizing the possibilities of human error and failed memory. This then warrants the presumption under subsection (d) of this section that the results are valid without any additional showing of foundational facts. If the checklist is not complete, the presumption of validity is inapplicable. But it does not necessarily follow that the test results are, therefore, automatically inadmissible. Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978).

Where there has been substantial compliance with the “Breathalyzer Operational Checklist” provision of former 7 AAC 30.020, and where the record demonstrates that the test was properly performed, the test results are admissible under subsection (d) of this section. Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978).

Where the checklist for administering the breathalyzer test was complete but for one checkmark, all other pertinent data were filled in, and there was uncontroverted testimony that the step in question was performed despite the failure to check off the box representing that step, once the trier of fact believed the evidence that the step in question was performed, a proper foundation was laid to find the results valid under subsection (d) of this section. Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978).

Compliance with the observation period of former 7 AAC 30.020 prior to the administration of the breathalyzer test is a requirement for the admissibility of the test results. Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975).

Where substantial compliance with the observation period provision is established on the record, a prima facie showing of the foundational fact of the observation period necessary to establish admissibility is satisfied. Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975); Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978).

Although defendant claimed he burped or regurgitated prior to submitting to a breath test and a police officer should have restarted the 15-minute observation period, the trial judge did not err in concluding the prosecution met the foundational requirements for admission of the breath test result. The officer testified that had defendant burped, she would have restarted the observation period, and defendant did not present any evidence that regurgitation occurred during the observation period. Hallam v. City & Borough of Juneau, — P.3d — (Alaska Ct. App. July 27, 2011) (memorandum decision).

A clerical error by the breathalyzer test operator ought not to render the results inadmissible without a showing that the validity of the results is tainted. Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978).

Observation period. —

Where there was no evidence that defendant had eaten or drunk anything during the observation period, even if the full 15 minutes was not observed, the breathalyzer results were admissible. Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975).

Deviation from normal procedure. —

Record supported the trial judge’s decision to admit defendant’s breath test. Admission of the breath test was not precluded although a police officer turned off an audio recording of her contact with defendant while defendant was talking with his attorney. Hallam v. City & Juneau, — P.3d — (Alaska Ct. App. June 1, 2011), op. withdrawn, sub. op., — P.3d — (Alaska Ct. App. 2011), (memorandum opinion).

Personal testimony not necessary as to breathalyzer calibration or ampoule certification. —

While it is required that a qualified witness explain the functional effect of the chemical testing, personal testimony is not required as to the calibration of the instrument or the accuracy of the ampoules. Wester v. State, 528 P.2d 1179 (Alaska 1974), cert. denied, 423 U.S. 836, 96 S. Ct. 60, 46 L. Ed. 2d 54 (U.S. 1975).

Waiver of right to challenge breath test. —

A defendant waives his constitutional right to challenge the results of an intoximeter test despite his intoxication where he is read a notice form advising him of his right to obtain an independent test of his blood alcohol level by having a sample of blood drawn at a police chosen medical facility, where he checks the appropriate box in the notice form declining the independent test, and where he appears to know what he is doing. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

In a driving while intoxicated case, the defendant was entitled to insist that his exercise of the right to refuse independent blood alcohol testing under subsection (e) of this section not be chilled by the state’s use of his refusal as a badge of guilt; the evidence created a risk of potential prejudice in violation of Alaska R. Evid. 403. Bluel v. State, 153 P.3d 982 (Alaska 2007).

Inadmissibility of refusal of independent blood alcohol test. —

In a driving while intoxicated case, under the broad standards for relevant evidence in Alaska R. Evid. 401 and 402, challenged evidence of the inmate’s refusal to have an independent blood alcohol test performed under subsection (e) of this section unquestionably qualified as relevant evidence because it had at least some tendency to make his testimonial claim of surprise less probable than it might have been otherwise; however, the evidence was inadmissible because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Bluel v. State, 153 P.3d 982 (Alaska 2007).

A defendant can guarantee the reliability of the results of a breathalyzer test by retesting the ampoules. The ampoules are preserved and the amount of fluid and the chemical composition of the control ampoule are not significantly altered by performance of the test. Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978).

Defendant should be permitted to check the specific ampoules used in his breathalyzer test. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Since they could be evidence of propriety of test. —

The test and reference ampoules could be probative evidence of the propriety or impropriety of the breathalyzer test. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Denial of right to analyze components is reversible error. —

Where defendant was charged with operating a motor vehicle while intoxicated, denial of the right to make an analysis of some of the components of the breathalyzer machine, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be a denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

District court was correct in suppressing results of breathalyzer test where state unable to produce ampoules used in test. —

Where police did not produce, in response to defendant’s motion for discovery and inspection, the ampoule used in defendant’s breathalyzer test, the trial court properly ordered the results of the test suppressed. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

Rule announced generally to have prospective effect but also to have partial retroactive effect. —

Holding, that denial of the right of defendants to obtain and analyze breathalyzer ampoules, to “cross-examine” the results of the test, was reversible error without any need to show prejudice, had prospective application except as to the petitioners in this case. Further, the ruling applied retroactively to cases pending but not completed prior to the date of the opinion, and where requests or motions for production of breathalyzer ampoules in such cases have been made prior to or after the date of this opinion. Lauderdale v. State, 548 P.2d 376 (Alaska 1976).

No evidentiary privilege established. —

Subsection (a) does not expressly establish an evidentiary privilege, and the Court of Appeals of Alaska stated that it would be inappropriate for the courts to construe subsection (a) as establishing such a privilege by implication. Russell v. Municipality of Anchorage, 706 P.2d 687 (Alaska Ct. App. 1985).

Testing breathalyzer for radio frequency interference. —

When a timely and appropriate challenge to admissibility of a breathalyzer test result is made, a municipality must, at a minimum, demonstrate that the breathalyzer instrument in question was tested successfully for radio frequency interference (RFI) at least once in a manner substantially complying with the manufacturer’s recommendations, and that none of the conditions for retesting listed in the manufacturer’s RFI advisory occurred between the time of the initial RFI test and the challenged breath test. Thayer v. Municipality of Anchorage, 686 P.2d 721 (Alaska Ct. App. 1984).

Defendant’s right to challenge protects due process. —

AS 28.35.030 did not violate due process by creating impermissible presumptions that a motorist was at least as intoxicated at the time of driving as at the time of a chemical test administered within four hours of driving, because defendant could attack the accuracy of the chemical test, or show that alcohol was consumed after driving. Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007).

Due process requires opportunity for independent test. —

Since the results of an intoximeter test provide the state with potentially incriminating evidence at the risk of criminal penalties, due process requires that the defendant be given an opportunity to challenge the reliability of the evidence with an independent test. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

Right to independent test after refusal of breath test. —

A person arrested for driving while intoxicated is entitled by the Alaska Constitution to an independent chemical test even if that person refuses to take the statutorily prescribed breath test. Snyder v. State, 930 P.2d 1274 (Alaska 1996).

This section contains no requirement that advice of the right to obtain an independent blood alcohol test be given, and it is not required by any provision of the state or federal constitution. Palmer v. State, 604 P.2d 1106 (Alaska 1979). But see, Copelin v. State, 659 P.2d 1206 (Alaska 1983), cert. denied, 469 U.S. 1017, 105 S. Ct. 430, 83 L. Ed. 2d 357 (1984), and Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983).

Opportunity for drawing of blood at police-selected facility preserves defendant’s right to independent test. —

A form notice notifying the defendant of the right to challenge the results of an intoximeter test by having a sample of blood drawn at a local medical facility chosen by the police satisfies the defendant’s right to obtain an independent test of his own choosing performed by a physician of his own choosing because the drawing of blood is a reasonable alternative test procedure and because the defendant made no allegation that the police-selected facility would not administer a reliable test. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

Trial court properly denied defendant’s motion to suppress his breath test results because a state trooper did not interfere with defendant’s right to an independent chemical test where the trooper’s offer of a blood test without other options fulfilled the constitutional right to an independent test and complied with the statutory requirements. Velarde v. State, 353 P.3d 355 (Alaska Ct. App. 2015).

Independent chemical test forfeited if not demanded. —

A statutory right to an independent sobriety test is available but it is forfeited if not demanded. Gundersen v. Municipality of Anchorage, 762 P.2d 104 (Alaska Ct. App. 1988), aff'd, 792 P.2d 673 (Alaska 1990).

Knowledge of breath test results not required for waiver of independent test. —

An arrestee can knowingly and intelligently decline to take an independent blood test before being apprised of the results of the mandatory breath test. Crim v. Municipality of Anchorage, 903 P.2d 586 (Alaska Ct. App. 1995).

Police interference with independent testing. —

The statutory right to an independent sobriety test is actually a motorist’s right to be free of police interference when obtaining such a test by his own efforts and at his own expense. Whether the police have substantially interfered with a defendant’s opportunity to obtain an independent test is a question of fact to be decided by the trial judge. Gundersen v. Municipality of Anchorage, 762 P.2d 104 (Alaska Ct. App. 1988), aff'd, 792 P.2d 673 (Alaska 1990).

Denial of right to independent chemical test. —

Where the police deprive a defendant of his or her statutory right to an independent blood test, the results of the defendant’s breath test must be excluded. Ward v. State, 758 P.2d 87 (Alaska 1988).

Police denied defendant his right to obtain an independent blood test where the only reason given for not taking him to the hospital where he had requested the test be performed was that the state did not have a contract with that hospital. Ward v. State, 758 P.2d 87 (Alaska 1988).

The deterent policy of the exclusionary rule for interfering with the right to an independent blood test similarly applies to the conduct of state corrections officers guarding arrested drivers as it does to arresting police officers, even though the advice not to take the test was given in the spirit of friendship; thus, the breath test result should have been suppressed. Lau v. State, 896 P.2d 825 (Alaska Ct. App. 1995).

Defendant’s challenge of the fact that there was no retention of a second blood sample for testing in conjunction with blood test performed at a hospital following a motorcycle accident was invalid, where the regulation at issue, 13 AAC 63.110, did not govern blood testing conducted by medical care providers for medical purposes. Moberg v. Municipality of Anchorage, 152 P.3d 1170 (Alaska Ct. App. 2007).

Waiver of right to independent test. —

The government is not required to obtain the defendant’s express waiver of the right to an independent test; it is sufficient that a defendant be informed of the right to an independent test, that the defendant understand this right, and that the defendant be provided a reasonable opportunity to obtain an independent test. Zemljich v. Municipality of Anchorage, 151 P.3d 471 (Alaska Ct. App. 2006).

In appeal from DUI conviction, defendant’s argument that he had not waived his right to have an independent chemical test was not persuasive, where it was determined that defendant understood his right to have an independent test, but simply could not decide whether he wanted a test. Zemljich v. Municipality of Anchorage, 151 P.3d 471 (Alaska Ct. App. 2006).

Failure to present evidence of results of independent testing. —

Where the court allowed the prosecution to present testimony establishing that the arresting officers gave defendant a sample of his breath for independent testing, and the prosecution was allowed to argue that his failure to present evidence concerning the results of the independent tests of this sample indicated the accuracy of the intoximeter test, any error was clearly harmless since overwhelming evidence was presented to establish that he was under the influence of intoxicating liquor when contacted by the troopers following his arrest and in his own testimony he acknowledged consuming a substantial quantity of alcoholic beverages. Lee v. State, 760 P.2d 1039 (Alaska Ct. App. 1988).

Discovery of results of independent test. —

No statute expressly prohibits a blood test of a defendant where the defendant consents to a chemical test of his breath, nor does any statute limit prosecution access to the results of an independent test performed pursuant to subsection (e); the state is entitled to discover the results of any independent test actually obtained. Cunningham v. State, 768 P.2d 634 (Alaska Ct. App. 1989).

Cross-examination improperly restricted. —

In a prosecution for operation of a motor vehicle while intoxicated, the court improperly restricted defendant’s cross-examination of the person who administered the breathalyzer test when it sustained the state’s objection to defendant’s line of inquiry, where defendant was seeking through his attempted questioning to raise doubts in the jury’s mind regarding the reliability of the test. Keel v. State, 609 P.2d 555 (Alaska 1980).

Given the defense attorney's failure to clearly articulate the intended purpose of the objected-to question, it was reasonable for the trial court to assume that it was directed at eliciting evidence regarding the breathalyzer's margin of error, which was irrelevant in driving under the influence prosecutions. Thus, the trial court did not abuse its discretion in curtailing cross-examination of the detective in that manner. Lemieux v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Presumption in breathalyzer result. —

Under the wording of this section, the breathalyzer result is clearly viewed as the presumptive equivalent of the amount of alcohol in the person’s blood “at the time alleged”; in other words, at the time that the offense was committed, not just when the breathalyzer examination was administered. Doyle v. State, 633 P.2d 306 (Alaska Ct. App. 1981).

Rebuttable presumption. —

Superior court properly convicted defendant of felony DUI because his two prior DUI convictions from Utah constituted “previous convictions” where both state codes provided that a blood alcohol reading of .08 percent or higher established a motorist's guilt, regardless of any evidence that the motorist was not actually impaired, the motorist could defend the charges by introducing evidence that his or her subsequent blood alcohol level was the result of consuming alcohol after he or she stopped operating or controlling the vehicle, and while the Alaska statue created a rebuttable presumption that the motorist was under the influence, similarly situated motorists in Utah did not face this presumption. Welsh v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2016) (memorandum decision).

AS 28.35.165(c) does not violate due process by allowing a hearing officer to rely solely on the result of a properly administered breath test; while AS 28.35.033 creates a presumption of the chemical test's validity, it does not make those test results unassailable, and other evidence may call into question the reliability or validity of a chemical breath test result. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

Substantial compliance with regulations. —

Under subsection (d), even if the state does not strictly comply with the regulations, it can still show that it has substantially complied with the regulations in order to establish a sufficient foundation to admit the breathalyzer examination. Ahsogaek v. State, 652 P.2d 505 (Alaska Ct. App. 1982); Gilbreath v. Municipality of Anchorage, 773 P.2d 218 (Alaska Ct. App. 1989).

Results of the breathalyzer test were admissible even though the records for the breathalyzer instrument showed that it had been calibrated at an interval of 61 days instead of within 60 days as required by former 7 AAC 30.050. Ahsogaek v. State, 652 P.2d 505 (Alaska Ct. App. 1982).

Admission of breath test results where there is substantial compliance with regulations. —

Even where defendant’s breath test was administered by an uncertified officer on an intoximeter that was not recalibrated at 60-day intervals as required by former 7 AAC 30.050, the test results were still admissible because only substantial compliance with the applicable regulations is required. Herter v. State, 715 P.2d 274 (Alaska Ct. App. 1986).

Use and admissibility of portable breath tests. —

If defendant’s breath test had been taken with an Intoximeter 3000, the results of the test could have been submitted into evidence under subsection (d) of this section without a further showing of validity because the Intoximeter 3000 was an approved device; tests on other devices are subject to the normal rules of admissibility and reliability as required by the rules of evidence, and the use of portable breath test results to aid in the decision whether to arrest a potentially-intoxicated driver is not limited. Blank v. State, 142 P.3d 1210 (Alaska Ct. App. 2006).

Breathalyzer packet admissible as evidence. —

The admission of the breathalyzer packet as a foundation for the introduction of breathalyzer evidence in a drunk driving case is the introduction of a public record of factual findings recorded in the regular course of official business, made independently and well in advance of any particular prosecution, and does not violate the defendant’s right to confrontation under the 6th amendment. State v. Huggins, 659 P.2d 613 (Alaska Ct. App. 1982).

Documents referred to as a breathalyzer packet were admissible under the public records exception to the hearsay rule. State v. Huggins, 659 P.2d 613 (Alaska Ct. App. 1982).

State need not necessarily preserve breath sample. —

The state need not preserve a defendant’s breath sample where it provides the defendant with a reasonable opportunity to obtain an independent test by giving the defendant clear and express notice of his right to an independent test and by offering assistance in obtaining the test. Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990).

Suppression of breath test results. —

A defendant has the burden of showing that by virtue of some action or inaction on the part of the prosecuting authority, he was not furnished a reasonable means of verifying an adverse breath test result. Once the defendant has sustained his burden of showing that he was not furnished a reasonable means of verification, he has established a prima facie case that the breath test results should be suppressed, and in order to avoid suppression, the governmental agency in question must then prove by a preponderance of the evidence that its failure to provide the defendant an independent means of verifying the result was free of fault. State v. Kerr, 712 P.2d 400 (Alaska Ct. App. 1985).

Waiver of objection. —

In the absence of a specific reservation of the issue during the course of a trial, a party failing to object on foundational grounds to admission of blood- or breath-alcohol test results cannot later object to the application of the statutory presumption of intoxication. Macauly v. State, 734 P.2d 1020 (Alaska Ct. App. 1987), overruled in part, Moberg v. Municipality of Anchorage, 152 P.3d 1170 (Alaska Ct. App. 2007).

Effect of alcohol consumption after accident is jury question. —

The issue of whether and to what extent defendant’s consumption of alcohol after the accident but before a breathalyzer examination affected his breathalyzer result was a question which was properly left for the jury. Doyle v. State, 633 P.2d 306 (Alaska Ct. App. 1981).

Jury should be made aware of statutory presumption. —

A jury considering drunk driving, assault (involving motor vehicles), manslaughter, and negligent homicide cases should be made aware of the statutory presumption concerning intoxication in subsection (a). Dresnek v. State, 697 P.2d 1059 (Alaska Ct. App. 1985), aff'd, 718 P.2d 156 (Alaska 1986).

Jury instructions. —

In prosecution for drunk driving manslaughter and second-degree assault, the trial court did not err in instructing the jury that if it found that there was .10% or more alcohol in defendant’s blood at the time of the accident, it could infer that he was under the influence of intoxicating liquor. Dresnek v. State, 697 P.2d 1059 (Alaska Ct. App. 1985), aff'd, 718 P.2d 156 (Alaska 1986).

Applied in

Catlett v. State, 585 P.2d 553 (Alaska 1978); Erickson v. Municipality of Anchorage, 662 P.2d 963 (Alaska Ct. App. 1983); Valentine v. State, 215 P.3d 319 (Alaska 2009).

Quoted in

Godwin v. State, 554 P.2d 453 (Alaska 1976); Simpson v. Municipality of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981); Cooley v. Municipality of Anchorage, 649 P.2d 251 (Alaska Ct. App. 1982); Morris v. State, 186 P.3d 575 (Alaska 2008).

Stated in

Wren v. State, 577 P.2d 235 (Alaska 1978); Lyle v. State, 600 P.2d 1357 (Alaska 1979); O'Leary v. State, 604 P.2d 1099 (Alaska 1979); Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska Ct. App. 1982).

Cited in

Sullivan v. Municipality of Anchorage, 577 P.2d 1070 (Alaska 1978); Reeves v. State, 599 P.2d 727 (Alaska 1979); Nygren v. State, 616 P.2d 20 (Alaska 1980); Graham v. State, 633 P.2d 211 (Alaska 1981); Morris v. Farley Enters., 661 P.2d 167 (Alaska 1983); Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983); Edgmon v. State, 702 P.2d 643 (Alaska Ct. App. 1985); Lamb v. Anderson, 147 P.3d 736 (Alaska 2006); McCarthy v. State, 285 P.3d 285 (Alaska Ct. App. 2012).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 346-349

8 Am. Jur. 2d, Automobiles and Highway Traffic, § 988.

61A C.J.S., Motor Vehicles, §§ 1574-1598.

Validity, construction, and application of legislation creating presumption of intoxication or the like from presence of specified percentage of alcohol in blood, 46 ALR2d 1176, 16 ALR3d 748.

Qualification as expert to testify as to findings or results of scientific test to determine alcoholic content of blood, 77 ALR2d 971.

Admissibility in criminal case of blood alcohol test where blood was taken from unconscious driver, 72 ALR3d 325.

Necessity and sufficiency of proof that tests of blood alcohol concentration were conducted in conformance with prescribed methods, 96 ALR3d 745.

Admissibility in criminal case of blood alcohol test where blood was taken despite defendant’s objection or refusal to submit to test, 14 ALR4th 690.

Destruction of ampoule used in alcohol breath test as warranting suppression of result of test, 19 ALR4th 509.

Drunk driving: Motorist’s right to private sobriety test, 45 ALR4th 11.

Validity, construction and application of statutes proscribing driving with blood-alcohol level in excess of established percentage, 54 ALR4th 149.

Use of horizontal gaze nystagmus test in impaired driving prosecution, 60 ALR4th 1129.

Right of indigent defendant in state criminal case to assistance of chemist, toxicologist, technician, narcotics expert, or similar nonmedical specialist in substance analysis, 74 ALR4th 388.

Challenges to use of breath tests for drunk drivers based on claim that partition or conversion ratio between measured breath alcohol and actual blood alcohol is inaccurate, 90 ALR4th 155.

Admissibility and sufficiency of extrapolation evidence in DUI prosecutions, 119 ALR5th 379.

Sec. 28.35.034. Surrender of license or permit.

A person whose license or permit to operate or drive a motor vehicle has been revoked under AS 28.15.165 or 28.15.181 shall surrender the license or permit to the department on receipt of notice of the revocation. After the period of revocation has expired, the person may make application for a new license as provided by law.

History. (§ 1 ch 83 SLA 1969; am § 14 ch 129 SLA 1980; am § 21 ch 77 SLA 1983)

Notes to Decisions

Quoted in

Graham v. State, 633 P.2d 211 (Alaska 1981); Hurlburt v. State, 425 P.3d 189 (Alaska Ct. App. 2018).

Cited in

Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979); Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 138-140, 143-145.

60 C.J.S., Motor Vehicles, §§ 391 et seq., 403.

Sec. 28.35.035. Administration of chemical tests without consent.

  1. If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person’s breath or blood or to determine the presence of controlled substances in that person’s blood and urine.
  2. A person who is unconscious or otherwise in a condition rendering that person incapable of refusal is considered not to have withdrawn the consent provided under AS 28.33.031(a) or AS 28.35.031(a) or (g) and a chemical test may be administered to determine the amount of alcohol in that person’s breath or blood or to determine the presence of controlled substances in that person’s blood and urine. A person who is unconscious or otherwise incapable of refusal need not be placed under arrest before a chemical test may be administered.
  3. If a chemical test is administered to a person under (a) or (b) of this section, that person is not subject to the penalties for refusal to submit to a chemical test provided by AS 28.35.032 .

History. (§ 21 ch 117 SLA 1982; am § 22 ch 77 SLA 1983; am § 29 ch 119 SLA 1990; am § 36 ch 21 SLA 1991; am § 28 ch 3 SLA 1992; am §§ 12, 13 ch 55 SLA 1994; am § 47 ch 60 SLA 2002)

Administrative Code. —

For forensic alcohol testing, see 13 AAC 63.

Notes to Decisions

Constitutionality. —

For due process and search and seizure analysis, a blood test is not viewed as materially more intrusive than a breath test. The search and seizure provisions of the federal and state constitutions are not offended by a statute that allows the police to take a blood sample from an arrested motorist where the motorist has injured or killed another person without seeking a breath sample first. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

The right to privacy granted by Article I, Section 22 of the Alaska Constitution does not create a separate, independent right to seek exclusion of evidence. Subsection (a) does not violate a right to privacy under Article I, Section 22 of the Alaska Constitution.Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

Section should not be read broadly. —

In light of the fact that the legislature has gone to great lengths to avoid authorizing the police to forcibly take blood tests, this section should not be read broadly. Bass v. Municipality of Anchorage, 692 P.2d 961 (Alaska Ct. App. 1984).

Effect of section. —

The legislature has eliminated a driver’s ability to refuse a chemical sobriety test when an arrestee is involved in an accident that results in the death of or injury to another person. Pena v. State, 684 P.2d 864 (Alaska 1984).

Requirement for either test. —

This statute authorizes the police to require a motorist to submit to a blood test even though there has been no prior attempt to obtain the motorist’s consent to a breath test. Municipality of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993).

Validity of search warrant issued for chemical testing. —

In situations where the police are relying on the implied consent statutory scheme as their authority for subjecting a person to alcohol testing, they are prohibited from administering non-consensual chemical tests to persons who have refused to submit to a breath test except in certain circumstances; but there are no such limitations to the court's authority to issue search warrants for chemical tests for which probable cause otherwise exists. State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Legislature understood the distinction between the court's general authority to issue a search warrant for a chemical test of a person's breath or blood and the authority of the police to administer a warrantless chemical test as part of a search incident to a driving under the influence arrest. State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Application of subsection (b). —

The fact that it was not practical to offer a defendant a breathalyzer test does not bring the case within subsection (b) of this section; what does seem to fall within subsection (b) is a narrow class of cases where the defendant is unconscious or otherwise incapable of manifesting his intent to refuse. Bass v. Municipality of Anchorage, 692 P.2d 961 (Alaska Ct. App. 1984).

The legislature’s choice of language seems to be consistent with the theory that subsection (b) of this section was intended to apply only to situations where a blood-alcohol test could be conducted without any violence such as where an arrestee is unconscious. Bass v. Municipality of Anchorage, 692 P.2d 961 (Alaska Ct. App. 1984).

Stated in

Copelin v. State, 659 P.2d 1206 (Alaska 1983); Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983).

Cited in

Herter v. State, 715 P.2d 274 (Alaska Ct. App. 1986); Srala v. Municipality of Anchorage, 765 P.2d 103 (Alaska Ct. App. 1988); Moberg v. Municipality of Anchorage, 152 P.3d 1170 (Alaska Ct. App. 2007).

Collateral references. —

Admissibility of test results where blood was taken despite defendant’s objection or refusal to submit to test, 14 ALR4th 690, 26 ALR4th 1112.

Sec. 28.35.036. Forfeiture of vehicle, aircraft, or watercraft.

  1. After conviction of an offense under AS 28.15.291(b) , AS 28.35.030 , or 28.35.032 , a motor vehicle, aircraft, or watercraft involved in the commission of the offense is subject to forfeiture as provided under AS 28.15.291(b) , AS 28.35.030 , and 28.35.032 .
  2. Before forfeiture of a motor vehicle, aircraft, or watercraft, the court shall schedule a hearing on the matter and shall notify the state and the convicted person of the time and place set for the hearing. Except for a motor vehicle, aircraft, or watercraft that is required to be forfeited under AS 28.35.030 or 28.35.032 , the court may order the forfeiture of the motor vehicle if the court, sitting without a jury, determines, by a preponderance of the evidence, that the forfeiture of the motor vehicle, aircraft, or watercraft will serve one or more of the following purposes:
    1. deterrence of the convicted person from the commission of future offenses under AS 28.15.291(b) , AS 28.35.030 , or 28.35.032 ;
    2. protection of the safety and welfare of the public;
    3. deterrence of other persons who are potential offenders under AS 28.15.291(b) , AS 28.35.030, or 28.35.032; or
    4. expression of public condemnation of the serious or aggravated nature of the convicted person’s conduct.
  3. Upon forfeiture of a motor vehicle, aircraft, or watercraft, the court shall require the
    1. surrender of the registration and certificate of title of that motor vehicle; the registration and certificate of title shall be delivered to the department;
    2. convicted person to pay all administrative costs incurred by the state in forfeiting the motor vehicle, aircraft, or watercraft, including costs incurred by the department, law enforcement personnel, or the court system.
  4. If not released under AS 28.35.037 , a motor vehicle, aircraft, or watercraft forfeited under this section may be disposed of at the discretion of the Department of Public Safety.
  5. Disposal under this subsection includes
    1. sale, as a unit or in parts, including sale at an auction, and the proceeds deposited into the general fund;
    2. transfer to a state or municipal law enforcement agency;
    3. being declared surplus and transferred to the Department of Administration;
    4. being destroyed; or
    5. transfer to a charitable organization; in this paragraph, “charitable organization” means a charity that is exempt from taxation under 26 U.S.C. 501(c)(3) (Internal Revenue Code).

History. (§ 23 ch 77 SLA 1983; am § 30 ch 119 SLA 1990; am § 14 ch 55 SLA 1994; am E.O. No. 99 § 56 (1997); am § 48 ch 60 SLA 2002; am § 26 ch 22 SLA 2015)

Cross references. —

For statement of intent that the 2002 amendment to this section was intended to follow the forfeiture process established in Anchorage and Fairbanks, see § 1, ch. 60, SLA 2002 in the 2002 Temporary and Special Acts.

Effect of amendments. —

The 2015 amendment, effective May 15, 2015, deleted “, by way of example and not of limitation,” at the end of the introductory language in (e).

Notes to Decisions

Section inapplicable to airboats. —

A court may not forfeit the vehicle of a person convicted of driving while intoxicated on public property in an airboat; an airboat is not “a motor vehicle of a type for which a driver’s license is required.” State v. Stagno, 739 P.2d 198 (Alaska Ct. App. 1987).

Cited in

McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Collateral references. —

Validity, construction, and application of statute permitting forfeiture of motor vehicle for operating while intoxicated, 89 ALR5th 539.

Sec. 28.35.037. Remission of forfeitures.

  1. Upon receiving notice from the court of the time and place set for a hearing under AS 28.35.036 , the state shall provide to every person who has an ascertainable ownership or security interest in the motor vehicle, aircraft, or watercraft written notice that includes
    1. a description of the motor vehicle, aircraft, or watercraft;
    2. the time and place of the forfeiture hearing;
    3. the legal authority under which the motor vehicle, aircraft, or watercraft, may be forfeited;
    4. notice of the right to intervene to protect the interest in the motor vehicle, aircraft, or watercraft.
  2. At the hearing, a person who claims an ownership or security interest in the motor vehicle, aircraft, or watercraft, must establish by a preponderance of the evidence that
    1. the petitioner has an interest in the motor vehicle, aircraft, or watercraft, acquired in good faith;
    2. a person other than the petitioner was convicted of the offense that resulted in the forfeiture; and
    3. before parting with the motor vehicle, aircraft, or watercraft, the petitioner did not know or have reasonable cause to believe that it would be used in the commission of an offense.
  3. If a person satisfies the requirements of (b) of this section, the court shall order that an amount equal to the value of the petitioner’s interest in the motor vehicle, aircraft, or watercraft be paid to the petitioner, or the court shall order that the motor vehicle, aircraft, or watercraft be released to the petitioner together with title to the motor vehicle, aircraft or watercraft.
  4. Forfeiture of a motor vehicle, aircraft, or watercraft under AS 28.35.036 is without prejudice to the rights and does not extinguish the claims of a creditor with an interest in the motor vehicle, aircraft, or watercraft.

History. (§ 23 ch 77 SLA 1983; am § 31 ch 119 SLA 1990; am § 49 ch 60 SLA 2002)

Sec. 28.35.038. Municipal impoundment and forfeiture. [Repealed, § 55 ch 60 SLA 2002.]

Sec. 28.35.039. Definitions for AS 28.35.029 — 28.35.039.

In AS 28.35.029 28.35.039 ,

  1. “alcohol safety action program” means a program for alcohol and substance abuse screening, referral, and monitoring developed and implemented or approved by the Department of Health and Social Services under AS 47.37;
  2. “controlled substance” has the meaning given in AS 28.33.190 .

History. (§ 15 ch 55 SLA 1994; am § 12 ch 143 SLA 1996; am § 50 ch 60 SLA 2002)

Revisor’s notes. —

Paragraph (1) was enacted as (2); renumbered in 1996, at which time former (1) was renumbered as (2).

Notes to Decisions

Quoted in

In the Disciplinary Matter Involving Merrill, 305 P.3d 288 (Alaska 2013).

Sec. 28.35.040. [Renumbered as AS 28.35.400.]

Sec. 28.35.045. [Renumbered as AS 28.35.410.]

Article 2. Duties Following Accidents.

Sec. 28.35.050. Action of operator immediately after accident.

  1. An operator of a vehicle involved in an accident resulting in injury to or death of a person shall immediately stop the vehicle at the scene of the accident or as close to it as possible and return to, and remain at, the scene until the operator has fulfilled the requirements of AS 28.35.060 .
  2. The operator of a vehicle involved in an accident resulting only in damage to a vehicle driven or attended by a person shall immediately stop the vehicle at the scene of the accident or as close to it as possible and return to, and remain at, the scene of the accident until the operator has fulfilled the requirements of AS 28.35.060 .
  3. The operator of a vehicle involved in an accident resulting only in damage to a vehicle that is unattended shall immediately stop at the scene of the accident and undertake reasonable means and efforts to locate and notify the operator or owner of the damaged unattended vehicle of the name and address of the operator and owner of the vehicle striking the unattended vehicle.  If the operator or owner of the unattended vehicle cannot be located then the operator shall leave in a conspicuous place in or upon the unattended vehicle, a writing stating the name and address of the operator and of the owner of the vehicle that struck the unattended vehicle and setting forth a statement of the circumstances of the accident.

History. (§ 50-5-5 a, b ACLA 1949; am § 1 ch 69 SLA 1960)

Notes to Decisions

Both this section and AS 28.35.060 define the duties of drivers of motor vehicles “involved in an accident.” Drahosh v. State, 442 P.2d 44 (Alaska 1968).

And constitute an interlocking statutory scheme. —

It is apparent from a reading of AS 28.35.050(a) and 28.35.060(a) that together they constitute an interlocking statutory scheme proscribing conduct commonly known as “hit and run” driving. Drahosh v. State, 442 P.2d 44 (Alaska 1968).

Separate offenses. —

Leaving the scene of an accident is a separate and distinct offense from the crime of failure to render assistance. Drahosh v. State, 442 P.2d 44 (Alaska 1968).

“Accident” defined. —

An “accident” is any incident in which someone suffers injury or death. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

“Involved in an accident” defined. —

A vehicle is “involved in an accident” if there is a causal nexus between the vehicle and the injury or death. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

When a passenger jumps from a moving vehicle and as a result suffers injury or death, the motorist is obligated to stop and render assistance and notify the proper authorities, and this is true whether or not the operator was warned of the passenger’s desire to leave the vehicle. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Effect of intoxication on knowledge. —

Trial court did not err in instructing the jurors that they could not consider defendant’s intoxication in deciding whether he acted knowingly with regard to the offenses of failing to remain at the scene of an accident and failing to render assistance to an injured person. Williams v. State, 737 P.2d 360 (Alaska Ct. App. 1987).

Double jeopardy not violated. —

Separate convictions for failure to stop, failure to assist, and failure to contact the authorities do not violate double jeopardy. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Violations of subsection (a) are punishable under former AS 28.35.230 (now see AS 28.90.010 ). Drahosh v. State, 442 P.2d 44 (Alaska 1968).

Illegally severe sentence. —

In view of the fact that the maximum term for the offense of leaving the scene of a non-injury accident is 90 days' imprisonment, the trial court imposed an illegal sentence when it ordered a consecutive term of 1 year to serve. Sapp v. State, 379 P.3d 1000 (Alaska Ct. App. 2016).

Remand for resentencing. —

Case was remanded for resentencing on convictions of failing to stop, render aid, and contact authorities, where the trial court enhanced a first felony offender’s sentence on the basis of aggravating factors without giving advance notice and the court’s findings included a finding of physical injury, which appeared to be an element of the offenses. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Applied in

Winslow v. State, 685 P.2d 1273 (Alaska Ct. App. 1984); Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Quoted in

Miller v. State, 652 P.2d 494 (Alaska Ct. App. 1982).

Stated in

State v. Dunlop, 721 P.2d 604 (Alaska 1986); Connolly v. State, 758 P.2d 633 (Alaska Ct. App. 1988).

Cited in

Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981); Gottschalk v. State, 36 P.3d 49 (Alaska Ct. App. 2001); Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 324 et seq.

61A C.J.S., Motor Vehicles, § 1692 et seq.

Applicability of criminal “hit-and-run” statute to accidents occurring on private property, 77 ALR2d 1171.

Necessity and sufficiency of showing in a criminal prosecution under a “hit-and-run” statute accused’s knowledge of accident, injury, or damage, 23 ALR3d 497.

Sec. 28.35.060. Duty of operator to give information and render assistance.

  1. The operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle that is driven or attended by a person shall give the operator’s name, address, and vehicle license number to the person struck or injured, or the operator or occupant, or the person attending, and the vehicle collided with and shall render to any person injured reasonable assistance, including making of arrangements for attendance upon the person by a physician and transportation, in a manner that will not cause further injury, to a hospital for medical treatment if it is apparent that treatment is desirable.  Under no circumstances is the giving of assistance or other compliance with the provisions of this paragraph evidence of the liability of an operator for the accident.
  2. Except as provided in (c) of this section, a person who fails to comply with any of the requirements of this section is, upon conviction, punishable by imprisonment for not more than one year, or by a fine of not more than $500, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement.
  3. A person who fails to comply with a requirement of this section regarding assisting an injured person is, upon conviction, punishable by imprisonment for not more than 10 years, or by a fine of not more than $10,000, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement.

History. (§ 50-5-5 c, d ACLA 1949; am §§ 1, 2 ch 85 SLA 1968)

Notes to Decisions

New statutory offense. —

This section does not codify a common-law crime but rather creates a new statutory offense. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

On its face, this section appears constitutionally defective for its failure to require criminal intent, or more particularly, for its failure to require that a person knowingly failed to render assistance. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

On its face this section does not require that a person have knowledge of the accident or of the fact that injuries have resulted to be guilty of a serious crime. Thus the statute appears to hold a person strictly liable for failure to render assistance even if he is unaware of any wrongdoing, i.e., unaware of the circumstances giving rise to the duty and thus unaware that he is in fact failing to do the required act. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

But the requisite intent may be read into the statute by implication. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

The legislature intended that criminal liability under this section attach only where the operator of a motor vehicle knowingly fails to stop and render assistance. The statute requires an affirmative course of action to be taken by the driver and it necessarily follows that one must be aware of the facts giving rise to this affirmative duty in order to perform such a duty. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

When criminal liability under subsection (c) attaches. —

Criminal liability under subsection (c) of this section attaches to a driver who leaves the scene of an accident where the state can prove by direct or circumstantial evidence that the driver actually knew of the injury or that he knew that the accident was of such a nature that one would reasonably anticipate that it resulted in injury to a person. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

“Accident” defined. —

An “accident” is any incident in which someone suffers injury or death. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

“Involved in an accident” defined. —

A vehicle is “involved in an accident” if there is a causal nexus between the vehicle and the injury or death. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

When a passenger jumps from a moving vehicle and as a result suffers injury or death, the motorist is obligated to stop and render assistance and notify the proper authorities, and this is true whether or not the operator was warned of the passenger’s desire to leave the vehicle. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Intoxication. —

Where one is charged with failure to render assistance under this section, and where there is evidence of intoxication, the jury may consider the fact that the accused was intoxicated in determining whether he had the requisite knowledge. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Trial court did not err in instructing the jurors that they could not consider defendant’s intoxication in deciding whether he acted knowingly with regard to the offenses of failing to remain at the scene of an accident and failing to render assistance to an injured person. Williams v. State, 737 P.2d 360 (Alaska Ct. App. 1987).

Fault. —

Resentencing was necessary following defendant’s guilty plea to failure to render assistance to an injured person after an automobile accident. There was no support in the record for the conclusion that defendant’s speed, driving, attentiveness, or state of sobriety rendered defendant at fault for the accident. Therefore, the appellate court perceived a substantial possibility that the sentencing judge penalized defendant based on an unsupported finding of fault. Smith v. State, 369 P.3d 555 (Alaska Ct. App. 2016).

No error in manner in which state permitted to argue element of knowledge to jury. —

Where the prosecution never argued that the reasonable person standard could be substituted for actual knowledge that injuries had occurred, defendant’s argument that no reference could be made of the reasonable person standard was without merit. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

Instruction that the jury could find knowledge of injury “where the circumstances were such that they would lead a reasonably prudent person to assume that an accident resulting in injury” must have occurred was erroneous, since it is not the reasonable person who is on trial but the defendant and it is the defendant’s knowledge which must be proved and not that of a hypothetical reasonable person. Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Where the trial court’s first instruction on the elements of the offense of failure to render aid adequately apprised the jury of all necessary elements with the exception of the element of knowledge, but two additional instructions specifically addressing the element of knowledge conformed precisely to the requirements of Kimoktoak v. State, 584 P.2d 25 (Alaska 1978), no error was committed by the court in instructing the jury. Atchak v. State, 640 P.2d 135 (Alaska Ct. App. 1981).

The crime of leaving the scene of an accident is not amenable to civil compromise. Hensel v. State, 585 P.2d 878 (Alaska 1978).

The act constituting the crime of leaving the scene of an accident is the failure to stop and make the necessary exchanges of information or assistance after the accident has occurred. This omission is not one which causes injury to the private citizen within the meaning of the civil compromise statutes. Settlement of the claim for injuries resulting from the accident cannot settle the state’s claim for a violation of its laws. Hensel v. State, 585 P.2d 878 (Alaska 1978).

Evidence of identity of driver. —

Evidence that defendant’s sister repeatedly drove while intoxicated, and that she was present in the car at the time of the accident, could not be used to prove that defendant was not the driver. Such evidence is character evidence, barred by Alaska R. Evid. 404(b), and not habit evidence under Alaska R. Evid. 406. Wacker v. State, 171 P.3d 1164 (Alaska Ct. App. 2007).

Double jeopardy not violated. —

Separate convictions for failure to stop, failure to assist, and failure to contact the authorities do not violate double jeopardy. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Remand for resentencing. —

Case was remanded for resentencing on convictions of failing to stop, render aid, and contact authorities, where the trial court enhanced a first felony offender’s sentence on the basis of aggravating factors without giving advance notice and the court’s findings included a finding of physical injury, which appeared to be an element of the offenses. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Sentence upheld. —

Sentence imposed for manslaughter, assault in the third degree, and failure to render assistance to an injured person after an accident was not clearly mistaken; the judge’s findings were supported by the record, as defendant was highly intoxicated and yet chose to drive, and in spite of the fact that he knew he struck a person, a boy of thirteen, defendant fled from the scene, leaving the victim to die. Bottcher v. State, 262 P.3d 224 (Alaska Ct. App. 2011), aff'd, 300 P.3d 528 (Alaska 2013).

Ten-year sentence for failure to render assistance affirmed. —

Defendant’s argument that the court erred in finding him the worst type of offender for failing to stop and render aid after he struck a pedestrian was without merit. Rosendahl v. State, 591 P.2d 538 (Alaska 1979).

Ten-year sentence with five years suspended for failure to render assistance affirmed. —

Where defendant struck and killed a pedestrian in a rural area at night, and testimony showed the victim may have survived if she had received immediate emergency care, the trial court did not err in finding defendant to be a worst offender and in sentencing him to ten years with five years suspended. Winslow v. State, 685 P.2d 1273 (Alaska Ct. App. 1984).

Applied in

Lupro v. State, 603 P.2d 468 (Alaska 1979); Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).

Quoted in

Thibedeau v. State, 617 P.2d 759 (Alaska 1980); Miller v. State, 652 P.2d 494 (Alaska Ct. App. 1982); Connolly v. State, 758 P.2d 633 (Alaska Ct. App. 1988); Bollerud v. State, Dep't of Pub. Safety, 929 P.2d 1283 (Alaska 1997).

Stated in

State v. Dunlop, 721 P.2d 604 (Alaska 1986); Luckart v. State, 314 P.3d 1226 (Alaska Ct. App. 2013).

Cited in

Gonzales v. State, 691 P.2d 285 (Alaska Ct. App. 1984); Smith v. State, 739 P.2d 1306 (Alaska Ct. App. 1987); Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000); State v. Blank, — P.3d — (Alaska Feb. 27, 2004); Blank v. State, 142 P.3d 1210 (Alaska Ct. App. 2006); Zemljich v. Municipality of Anchorage, 151 P.3d 471 (Alaska Ct. App. 2006); Haywood v. State, 193 P.3d 1203 (Alaska Ct. App. 2008); Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010); Frankson v. State, 282 P.3d 1271 (Alaska Ct. App. 2012).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 330, 331.

61A C.J.S., Motor Vehicles, § 1692 et seq.

Violation of statute requiring one involved in an accident to stop and render aid as affecting civil liability, 80 ALR2d 299.

Sufficiency of compliance with requirement of criminal “hit and run” statute that motorist identify himself, 48 ALR3d 685.

Sufficiency of showing of driver’s involvement in motor vehicle accident to support prosecution for failure to stop, furnish identification, or render aid, 82 ALR4th 232.

Sec. 28.35.070. Examination or impounding before repair.

A person may not make or have made repairs to damage or injury to a motor vehicle that could have been caused by collision with a person or property without first notifying the Department of Public Safety, chief of police, or in the absence of these, the nearest police officer or other peace officer, who shall immediately examine the vehicle and make a full report subscribed by the person in whose custody the vehicle then is. A copy of the report shall be mailed or delivered to the Department of Public Safety. If no official is within 10 miles of the place where the vehicle is brought for repair, then no notice or examination is required. If there is ground for suspecting that the vehicle was involved in a collision with a person, the vehicle shall be impounded at the expense of the owner, for which the custodian shall have a lien, and shall be accessible only to officers detailed to the investigation of the case until released. If, however, there is no reason to suspect that the damage to the motor vehicle was caused by collision with a person or property, the repair of the vehicle may be authorized by the officer in charge of the investigation at any time after the expiration of 24 hours thereafter.

History. (§ 50-5-5 f ACLA 1949; am § 2 ch 123 SLA 1959)

Revisor’s notes. —

In 1989, the term “police officer” was substituted for “policeman” in this section under § 59, ch. 50, SLA 1989.

Notes to Decisions

Applied in

Lupro v. State, 603 P.2d 468 (Alaska 1979).

Collateral references. —

Lien for storage of automobile, 31 ALR 834, 48 ALR2d 894.

Lien for towing or storage, ordered by public officer, of motor vehicle, 85 ALR3d 199.

Sec. 28.35.080. Immediate notice of accident.

  1. The driver of a vehicle involved in an accident resulting in bodily injury to or death of a person or total property damage to an apparent extent of $2,000 or more shall immediately by the quickest means of communication give notice of the accident to the local police department if the accident occurs within a municipality, otherwise to the Department of Public Safety.
  2. The driver of a vehicle involved in an accident resulting in bodily injury to or death of a person or total property damage to an apparent extent of $2,000 or more shall, within 10 days after the accident, forward a written or electronic report of the accident to the Department of Administration and to the local police department if the accident occurs within a municipality. A report is not required under this subsection if the accident is investigated by a peace officer.
  3. The form of accident report required under (b) of this section can be obtained from the department’s Internet website, any local police department, or the Department of Public Safety.
  4. The Department of Administration may require the driver of a vehicle involved in an accident of which a report must be made to file supplemental reports whenever the original report is insufficient in the opinion of that department.
  5. Every law enforcement officer who, in the regular course of duty, investigates a motor vehicle accident for which a report must be made, either at the time of and at the scene of the accident or thereafter by interviewing the participants or witnesses, shall, within 24 hours after completing the investigation, forward an electronic report of the accident to the Department of Administration. However, the law enforcement officer may submit a written report if the law enforcement agency employing the officer has received an exemption from the Department of Public Safety because the law enforcement agency does not have the technological capacity to submit reports of motor vehicle accidents electronically. The commissioner of public safety shall notify the Department of Administration of the exemption and the period for which the exemption was granted under this subsection.
  6. An accident report is not required under this section from a person who is physically incapable of making the report during the period of incapacity.
  7. The Department of Administration shall consider accident reports under this section to satisfy any requirements for reporting of motor vehicle crashes in the state.

History. (am E.O. No. 99 §§ 57 — 59 (1997); §§ 50-5-5 f, g ACLA 1949; §§ 50-5-5 h, i, j ACLA 1949; added by § 3 ch 123 SLA 1959; added by § 3 ch 123 SLA 1959; am §§ 2, 3 ch 69 SLA 1960; am § 20 ch 144 SLA 1977; am §§ 25, 26 ch 6 FSSLA 1996; am §§ 10 — 13 ch 45 SLA 2014)

Administrative Code. —

For safety responsibility, see 2 AAC 90, art. 3.

Effect of amendments. —

The 2014 amendment, effective July 1, 2014, in (b), inserted “or electronic” following “forward a written”; in (c), inserted “the department’s Internet website,” following “obtained from”, and made a stylistic change; in (e), near the end of the first sentence, substituted “an electronic report” for “a written report”, added the second and third sentences; added (g).

Notes to Decisions

“Accident” defined. —

An “accident” is any incident in which someone suffers injury or death. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

“Involved in an accident” defined. —

A vehicle is “involved in an accident” if there is a causal nexus between the vehicle and the injury or death. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

When a passenger jumps from a moving vehicle and as a result suffers injury or death, the motorist is obligated to stop and render assistance and notify the proper authorities, and this is true whether or not the operator was warned of the passenger’s desire to leave the vehicle. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Injury to subsequent traveller due to roadway hazard resulting from earlier accident. —

Subsection (a) did not apply to a situation where the primary cause of plaintiff’s injuries was a roadway hazard created by defendant’s earlier collision with a moose. In this case the damage to defendant’s vehicle was not clearly in excess of the statutory amount, and subsection (a) does not speak to the creation of roadway hazards that might cause damage in the statutory amount to a subsequent traveller. Parnell v. Peak Oilfield Serv. Co., 174 P.3d 757 (Alaska 2007), modified, — P.3d — (Alaska 2008).

Self-incrimination. —

Appellant’s admission that he was driving vehicle in question at time of accident was not inadmissible under the fifth amendment to the United States Constitution and Alaska Const., art. I, § 9 as being compelled by this section, since this section does not require any incriminating information, but merely requires a person who is involved in an accident covered by the statute to give notice of the accident to the appropriate police department. Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983).

Valid investigatory stop, when Miranda warning required. —

Defendant was properly convicted of failure to give notice of an accident where he ran his truck into a gate at an air force base and then walked away. Evidence gathered by a police officer who questioned the driver when he was found walking a distance from the truck, bloody and bruised, was part of a valid investigatory stop and the officer was not required to read defendant his Miranda rights. Charles v. State, — P.3d — (Alaska Ct. App. Sept. 26, 2012) (memorandum decision).

Investigating officer’s written report of an accident is not admissible in evidence under this section. Menard v. Acevedo, 418 P.2d 766 (Alaska 1966).

Admissibility of investigating officer’s observations. —

Although under AS 28.35.120 a written report itself is generally inadmissible, the police officer who investigates the accident may testify to the observations he made in preparing the report, and his observations would include any statements made to him in the course of the investigation that were otherwise admissible, including the statement of a defendant that he was the driver of the vehicle in question. Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983).

Double jeopardy not violated. —

Separate convictions for failure to stop, failure to assist, and failure to contact the authorities do not violate double jeopardy. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Remand for resentencing. —

Case was remanded for resentencing on convictions of failing to stop, render aid, and contact authorities, where the trial court enhanced a first felony offender’s sentence on the basis of aggravating factors without giving advance notice and the court’s findings included a finding of physical injury, which appeared to be an element of the offenses. Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990).

Applied in

Adkins v. Lester, 530 P.2d 11 (Alaska 1974); Kaps Transp. v. Henry, 572 P.2d 72 (Alaska 1977); Rutherford v. State, 605 P.2d 16 (Alaska 1979).

Cited in

Ashley v. State, 6 P.3d 738 (Alaska Ct. App. 2000).

Collateral references. —

61A C.J.S., Motor Vehicles, § 1492.

Failure to comply with statute requiring one involved in automobile accident to stop or report, as affecting question as to suspension or tolling of statute of limitation, 10 ALR2d 564.

Sufficiency of showing of driver’s involvement in motor vehicle accident to support prosecution for failure to stop, furnish identification, or render aid, 82 ALR4th 232.

Admissibility in state court proceedings of police reports as business records, 111 ALR5th 1.

Sec. 28.35.090. Rendering of report by others.

  1. Whenever the driver of a vehicle is physically incapable of giving an immediate notice of an accident as required in AS 28.35.080 and there was another occupant in the vehicle at the time of the accident capable of doing so, the occupant shall make or give the notice not given by the driver.
  2. Whenever the driver is physically incapable of making a written report of an accident as required in AS 28.35.080 and the driver is not the owner of the vehicle, then the owner of the vehicle involved in the accident shall within five days after learning of the accident make the report not made by the driver.

History. (§ 50-5-5 j ACLA 1949; am § 3 ch 123 SLA 1959)

Sec. 28.35.100. Form of reports.

  1. The Department of Public Safety shall prepare and upon request supply to police departments, coroners, local peace officers, garages, and other suitable agencies or individuals, forms for accident reports. The written reports by persons involved in accidents and by investigating officers shall require sufficiently detailed information to disclose the cause of the accident, conditions existing at the time of the accident, and the persons and vehicles involved.
  2. Every accident report required to be made in writing shall be made on the appropriate form approved by the Department of Public Safety and must contain all of the information required unless not available.

History. (§ 50-5-5 k ACLA 1949; added by § 3 ch 123 SLA 1959; am E.O. No. 99 § 60 (1997))

Notes to Decisions

Quoted in

Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983).

Sec. 28.35.110. Penalty for giving false information in report or failing to report.

  1. A person who gives information in reports as required in AS 28.35.080 knowing or having reason to believe that the information is false is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both.
  2. The department shall suspend the license or permit to drive and the nonresident operating privileges of a person failing to report an accident as provided in AS 28.35.080 until the report is filed. The department may extend the suspension by not more than 30 days.  A person failing to make a report as required in AS 28.35.080 is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $200, or by imprisonment for not more than 90 days, or by both.

History. (§ 50-5-5 l, m ACLA 1949; added by § 3 ch 123 SLA 1959)

Notes to Decisions

Cited in

Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983); Haywood v. State, 193 P.3d 1203 (Alaska Ct. App. 2008).

Collateral references. —

61A C.J.S., Motor Vehicles, § 1492.

Sufficiency of showing of driver’s involvement in motor vehicle accident to support prosecution for failure to stop, furnish identification, or render aid, 82 ALR4th 232.

Sec. 28.35.120. Use of accident reports in evidence.

A report made in accordance with this chapter may not be used in evidence in a criminal or civil action arising out of the accident that is the subject of the report.

History. (§ 4 ch 123 SLA 1959)

Notes to Decisions

Investigating officer’s written report of an accident is not admissible in evidence under this section. Menard v. Acevedo, 418 P.2d 766 (Alaska 1966).

This section bars admission into evidence of an investigating police officer’s report made in connection with a traffic accident. Adkins v. Lester, 530 P.2d 11 (Alaska 1974).

Policies underlying statutes barring the use of accident reports as evidence. —

Among the reasons for refusing evidentiary status to accident reports is their hearsay character; a second consideration is to prevent the jury from being unduly influenced by an official document. These issues are not present when the contents of the report are testified to by the investigator. Thus, only use of the actual report is barred. Adkins v. Lester, 530 P.2d 11 (Alaska 1974).

This section does not prohibit the oral testimony or expert opinions of an investigator which are also contained in an automobile accident report. Adkins v. Lester, 530 P.2d 11 (Alaska 1974).

In view of Alaska’s established rule favoring admission of expert opinion testimony, it would seem wise not to exclude such expert testimony simply because the witness prepared the written report which is barred by the statute. Adkins v. Lester, 530 P.2d 11 (Alaska 1974).

Although under this section a written report itself is generally inadmissible, the police officer who investigates the accident may testify to the observations which he made in preparing the report, and his observations would include any statements which were made to him in the course of the investigation that were otherwise admissible, including the statement of a defendant that he was the driver of the vehicle in question. Creary v. State, 663 P.2d 226 (Alaska Ct. App. 1983).

Although a state trooper had little independent recollection of the accident, he could rely upon his report as a proper basis for his testimony in a negligence action. It was still his testimony and not the report itself which was placed in evidence. Kaps Transp. v. Henry, 572 P.2d 72 (Alaska 1977).

Where a state trooper was permitted to refer to the accident report he had prepared as part of his investigation in order to recreate for the jury a diagram of the scene of the accident, and he was also permitted to read from his report the statement he took from one of the two witnesses to the accident, this testimony was properly admitted. Kaps Transp. v. Henry, 572 P.2d 72 (Alaska 1977).

Testimony of witnesses named in report. —

The holding that this section does not bar oral testimony or expert opinions of an investigator which are also contained in an automobile accident report clearly overrules any implication in Mace v. Jung, 386 P.2d 579 (Alaska 1963) that witnesses named in the report would not be able to testify before the court. The doctrine of “fruit of the poisonous tree” is simply not applicable to this type of a situation. Adkins v. Lester, 530 P.2d 11 (Alaska 1974).

Memoranda prepared by state trooper investigating another trooper’s involvement in an accident were not inadmissible police investigatory reports in terms of this section’s language and purpose. Rutherford v. State, 605 P.2d 16 (Alaska 1979).

Quoted in

Wester v. State, 528 P.2d 1179 (Alaska 1974).

Collateral references. —

8 Am. Jur. 2d, Automobiles and Highway Traffic, § 1179.

61 C.J.S., Motor Vehicles, §§ 1253-1255, 1286.

61A C.J.S., Motor Vehicles, §§ 1701-1703.

Sec. 28.35.130. False report or destruction of evidence involving a vehicle.

An officer or person who knowingly makes or subscribes a false report concerning an investigation of a vehicle or damage or injury caused by a vehicle, as provided in this chapter, is guilty of unsworn falsification in the second degree. A person who destroys, obliterates, conceals, or removes, or who aids, abets, or assists in the destruction, obliteration, concealment, or removal from a vehicle, of evidence showing or tending to show that the vehicle collided with a person or property, is punishable by a fine of not more than $500, or by imprisonment for not more than six months, or by both.

History. (§ 50-5-6 ACLA 1949; am § 8 ch 168 SLA 1990; am § 18 ch 42 SLA 2006)

Article 3. Miscellaneous Offenses.

Sec. 28.35.135. Unlawful to knowingly make false statement, application, or certification.

  1. A person may not knowingly make a false affidavit, statement, or representation, or affirm falsely with respect to a matter or fact required to be set out under this title, nor may the person use a name other than the person’s true name. A person convicted of violating this section is guilty of unsworn falsification in the second degree and is punishable as prescribed by law.
  2. A person who has a certification, registration, title, license, or other form issued under this title, or who has applied for a certification, registration, license, or other form, and who changes the person’s name or moves from the address shown on the department’s records or forms, shall notify the department of the change in name or address within 30 days
    1. on a form or in a format specified by the department; and
    2. in a manner prescribed in regulations adopted by the department.

History. (§ 7 ch 241 SLA 1976; am § 43 ch 102 SLA 1980; am § 19 ch 42 SLA 2006; am § 28 ch 23 SLA 2007)

Cross references. —

For crime of unsworn falsification, see AS 11.56.210 .

Sec. 28.35.140. Unlawful obstruction or blocking of traffic; duty to yield to following traffic.

  1. A person may not purposely obstruct or block traffic on any roadway by any means.  However, a service vehicle such as a bus, garbage truck, tow truck, or ambulance may make brief stops on a roadway, which stops on the roadway are necessary in the performance of its services.
  2. A person operating a motor vehicle at any time on a two-lane roadway outside of an urban area shall pull the motor vehicle off the roadway at the first opportunity to pull over safely if there are five or more motor vehicles immediately following that motor vehicle. A person operating a motor vehicle who violates this subsection is guilty of an infraction as described in AS 28.90.010(d) and shall be punished by a fine of at least $100.

History. (§ 50-5-7 ACLA 1949; am § 1 ch 174 SLA 1970; am § 1 ch 70 SLA 2002)

Revisor’s notes. —

In 2006, in (b) of this section, “AS 28.90.010(d) ” was substituted for “AS 28.40.050 (d)” to reflect the 2006 renumbering of AS 28.40.050 .

Notes to Decisions

This law pertains to roads of sufficient width and condition to permit vehicles to pass without injury to their tires or other parts and without danger of collision. Vogler v. Greimann, 78 F. Supp. 575, 12 Alaska 19 (D. Alaska 1948).

On a two-lane highway, even a one-foot obstruction could easily cause a following car to swerve into the opposite lane to clear a parked vehicle. This would interfere with the normal flow of traffic and amount to a violation under this section. Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978).

This section is not an exclusive list of service vehicles. Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978).

A driver, while not operating a professional service vehicle, may be engaged in the same activity as a service vehicle would have been. Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978).

Such as pulling over to aid occupants of overturned car. —

This section describes service vehicles as buses, garbage trucks, tow trucks or ambulances, but a reasonable construction of the statute would hold that one who pulled his car over to the side of the road in an emergency situation in order to aid the occupants of an overturned car was acting in a service capacity. Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978).

A person who pulled over to the side of the road in an emergency situation to aid the occupants of an overturned car, apparently parking as far over on the right as he could given the snow conditions and the presence of a ditch on the side of the road, and who also turned his emergency flasher lights on, was entitled to make a brief stop on the roadway as necessary in the performance of Samaritan efforts. Beaumaster v. Crandall, 576 P.2d 988 (Alaska 1978).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 275.

61A C.J.S., Motor Vehicles, §§ 1531 et seq., 1749.

Sec. 28.35.145. Overtaking and passing school bus.

  1. The driver of a vehicle that approaches from any direction a school bus stopped on a highway or vehicular way or area shall stop not less than 30 feet from the school bus before reaching it when there are in operation on the school bus flashing red lights as required by regulation.  The driver may not proceed until the school bus proceeds and the flashing lights are no longer illuminated.
  2. When a school bus is stopped on a highway or vehicular way or area, whether or not there are in operation on the school bus flashing red lights as required by regulation, the driver of a vehicle shall yield the right-of-way to a person crossing a highway, vehicular way, or area to embark on or disembark from the school bus, whether or not the person is crossing within a marked crosswalk.
  3. The driver of a vehicle on a highway with separate roadways is not required to stop when meeting or passing a school bus that is on a different roadway or, if upon a controlled access highway, when a school bus is stopped off the highway in a loading zone that is part of, or adjacent to, the controlled access highway, and pedestrians are not permitted to cross the highway.
  4. A driver convicted under this section is guilty of a class B misdemeanor and, in addition to other penalties as provided by law, is subject to a mandatory assessment of six demerit points under AS 28.15.221 28.15.261 .
  5. A vehicle owner, or in the case of a leased vehicle a lessee, is guilty of an infraction as described in AS 28.90.010(d) and may be punished by a fine not to exceed $100, if the vehicle owned or leased by the person is operated in violation of this section.  The owner or lessee may not be penalized if the vehicle was stolen, or the driver of the vehicle is convicted under (d) of this section.  This subsection does not apply to a lessor of a vehicle if the lessor keeps a record of the name and address of the lessee.  A violation of this subsection may not result in the loss of a driver’s license or privilege to drive and does not constitute grounds for assessment of demerit points under AS 28.15.221 28.15.261 .  This subsection does not prohibit or limit the prosecution of a vehicle driver for violating (a) or (b) of this section.

History. (§ 1 ch 8 SLA 1986; am § 10 ch 76 SLA 1987)

Revisor’s notes. —

In 2006, in (e) of this section, “AS 28.90.010(d) ” was substituted for “AS 28.40.050 (d)” to reflect the 2006 renumbering of AS 28.40.050 .

Opinions of attorney general. —

The 1987 amendment to this section, providing that the owner or lessee of an offending vehicle will now be guilty of an infraction, would be likely to survive constitutional challenge. Although generally a person may not be found guilty of an offense unless he or she acts with a “culpable mental state,” AS 11.81.600(b)(2) provides that no culpable mental state need be proven if the legislature intended to “dispense with” such a requirement, and the legislature so intended here. June 11, 1987, Op. Att’y Gen.

Sec. 28.35.150. Unlawful to interfere with or destroy official traffic control device or highway construction; action by state for damages. [Repealed, § 25 ch 144 SLA 1977.]

Sec. 28.35.155. Operation of vehicle with certain tires prohibited.

  1. It is unlawful to operate a motor vehicle with studded tires or tires with chains attached on a paved highway or road from May 1 through September 15, inclusive, north of 60 North Latitude and from April 15 through September 30, inclusive, south of 60 North Latitude, except that at any latitude on a paved portion of the Sterling Highway a person may not operate a motor vehicle with studded tires or tires with chains attached from May 1 through September 15, inclusive. The commissioner of public safety shall by emergency order provide for additional lawful operating periods based on unusual seasonal or weather conditions. An emergency order adopted under this section is not subject to AS 44.62 (Administrative Procedure Act). Upon application, a special individual traction permit may be issued by the Department of Administration allowing the operation of a motor vehicle with studded tires or chains at any time at the discretion of the vehicle owner. The fee for the special individual permit is one-third of the biennial registration fee applicable to that class of vehicle under AS 28.10.421 . The department may provide an appropriate sticker or other device identifying the vehicle to which the permit applies.
  2. In this section, “studded tire” means a tire with metal studs or spikes imbedded in the periphery of the tire surface, and protruding not more than one-fourth inch from the tire surface.

History. (§ 9 ch 241 SLA 1976; am § 29 ch 94 SLA 1980; am § 1 ch 22 SLA 1996; am § 16 ch 44 SLA 1996; am E.O. No. 99 § 61 (1997))

Cross references. —

For transitional provisions that relate to the amendments to subsection (a) made by § 16, ch. 44, SLA 1996, see § 20, ch. 44, 1996 in the Temporary and Special Acts.

Sec. 28.35.160. Unlawful injury to or destruction of traffic regulations or guidance device. [Repealed, § 25 ch 144 SLA 1977.]

Sec. 28.35.161. Use of electronic devices while driving; unlawful installation of television, monitor, or similar device.

  1. A person commits the crime of driving while texting, while communicating on a computer, or while a screen device is operating if the person is driving a motor vehicle, and
    1. the vehicle has a television, video monitor, portable computer, or any other similar means capable of providing a visual display that is in full view of a driver in a normal driving position while the vehicle is in motion, and the monitor or visual display is operating while the person is driving; or
    2. the person is reading or typing a text message or other nonvoice message or communication on a cellular telephone, personal data assistant, computer, or any other similar means capable of providing a visual display that is in the view of the driver in a normal driving position while the vehicle is in motion and while the person is driving.
  2. A person may not install or alter equipment described in (a) of this section that allows the images to be viewed by the driver in a normal driving position while the vehicle is in motion.
  3. Subsections (a) and (b) of this section do not apply to
    1. portable cellular telephones or personal data assistants being used for voice communication or displaying caller identification information;
    2. equipment that is displaying only
      1. audio equipment information, functions, and controls;
      2. vehicle information or controls related to speed, fuel level, battery charge, and other vehicle safety or equipment information;
      3. navigation or global positioning;
      4. maps;
      5. visual information to
        1. enhance or supplement the driver’s view forward, behind, or to the sides of the motor vehicle for the purpose of maneuvering the vehicle; or
        2. allow the driver to monitor vehicle occupants seated behind the driver;
      6. vehicle dispatching and response information for motor vehicles providing emergency road service or roadside assistance;
      7. vehicle dispatching information for passenger transport or freight or package delivery;
      8. information for use in performing highway construction, maintenance, or repair or data acquisition by the Department of Transportation and Public Facilities or a municipality; or
      9. information for use in performing utility construction, maintenance, repair, or data acquisition by a public utility; in this subparagraph, “public utility” has the meaning given in AS 42.05.990 .
  4. Subsections (a) and (b) of this section do not apply to devices and equipment installed in an emergency vehicle, whether removable or permanently installed, or to the viewing of authorized screen devices by police, fire, or emergency medical service personnel if the user of the equipment or device reasonably believes the information on the device is necessary to respond to a health, safety, or criminal matter. In this subsection, “emergency vehicle” means a police, fire, or emergency medical service vehicle.
  5. It is an affirmative defense to a prosecution under (b) of this section that the equipment installed or altered includes a device that, when the motor vehicle is being driven, disables the equipment for all uses except those described in (c) of this section.
  6. A person who violates (a) of this section is guilty of
    1. a violation and shall be punished as provided in AS 12.55, unless any of the circumstances described in (2) - (4) of this subsection apply;
    2. a class C felony if the person’s driving causes physical injury to another person;
    3. a class B felony if the person’s driving causes serious physical injury to another person;
    4. a class A felony if the person’s driving causes the death of another person.
  7. A person who violates (b) of this section is guilty of a class A misdemeanor.

History. (§ 1 ch 99 SLA 2008; am § 1 ch 42 SLA 2009; am §§ 2 — 5 ch 14 SLA 2012; am § 2 ch 23 SLA 2016)

Cross references. —

For statement of purpose relating to the 2012 amendments to this section, see § 1, ch. 14, SLA 2012 in the 2012 Temporary and Special Acts.

Effect of amendments. —

The 2009 amendment, effective September 18, 2009, added (c)(2)(I), and made related stylistic changes.

The 2012 amendment, effective May 11, 2012, rewrote (a), which read §(a) A person commits the crime of driving with a screen device operating if

“(1) the person is driving a motor vehicle;

“(2) the vehicle has a television, video monitor, portable computer, or any other similar means capable of providing a visual display that is in full view of a driver in a normal driving position while the vehicle is in motion; and

“(3) the monitor or visual display is operating while the person is driving”;

In (b), substituted “in (a) of this section” for “in (a)(2) of this section”; in (c)(1), substituted “voice communication” for “verbal communication”; and in (d), added the language beginning “whether removable or permanently installed” at the end of the first sentence.

The 2016 amendment, effective July 1, 2016, in (f)(1), substituted “violation and shall be punished as provided in AS 12.55” for “class A misdemeanor”.

Editor's notes. —

Under sec. 3, ch. 23, SLA 2016, the 2016 amendments to subsection (f) of this section apply "to violations occurring on or after" July 1, 2016.

Notes to Decisions

Construction. —

Legislative intent behind the former version of this section was ambiguous with regard to prohibition of text-messaging while driving; the rule of lenity applied, and the former statute could not be construed to prohibit text-messaging while driving. State v. Adams, — P.3d — (Alaska Ct. App. Nov. 6, 2013) (memorandum decision).

Sec. 28.35.170. Operation with more than three persons in driver’s seat. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.35.175. Propane gas detector required.

A person may not sell a recreational motor vehicle manufactured after 1990 or rent a recreational motor vehicle to another if the vehicle is equipped with a propane stove or propane heating device unless the vehicle is also equipped with a propane gas detector.

History. (§ 1 ch 110 SLA 1990)

Sec. 28.35.180. Disobedience to signals of officer regulating traffic prohibited.

A driver of a vehicle may not refuse to obey a lawful order or direction of a peace officer, firefighter, or authorized flagman regulating and directing traffic. A peace officer or firefighter regulating or directing traffic shall, upon request of a driver, produce evidence of authorization unless the officer or firefighter is wearing in view the badge or uniform of office.

History. (§ 50-5-11 ACLA 1949; am § 10 ch 241 SLA 1976)

Revisor’s notes. —

In 1989, the term “fire fighter” was substituted for “fireman” in this section under § 60, ch. 50, SLA 1989.

Sec. 28.35.182. Failure to stop at direction of peace officer.

  1. A person commits the offense of failure to stop at the direction of a peace officer in the first degree if the person violates (b) of this section, and, during the commission of that offense,
    1. the person violates AS 28.35.400 ;
    2. the person is committing vehicle theft in the first or second degree; or
    3. as a result of the person’s operation or driving, an accident occurs or a person suffers serious physical injury; in this paragraph, “serious physical injury” has the meaning given in AS 11.81.900 .
  2. A person commits the offense of failure to stop at the direction of a peace officer in the second degree if the person, while driving or operating a vehicle or motor vehicle or while operating an aircraft or watercraft, knowingly fails to stop as soon as practical and in a reasonably safe manner under the circumstances when requested or signaled to do so by a peace officer.
  3. In a prosecution under this section, it is an affirmative defense, if the peace officer, when requesting or signaling the defendant to stop,
    1. was operating a vehicle, motor vehicle, aircraft, or watercraft, and the vehicle, motor vehicle, aircraft, or watercraft
      1. did not meet lighting and audible signaling requirements of law for law enforcement vehicles; and
      2. was not marked appropriately so that a reasonable person would recognize it as a law enforcement vehicle; or
    2. was not operating a vehicle, motor vehicle, aircraft, or watercraft, and the peace officer was not wearing the uniform of office or displaying a badge or other symbol of authority so as to be reasonably identifiable as a peace officer.
  4. In this section,
    1. “knowingly” has the meaning given in AS 11.81.900 ;
    2. “signal” means a hand motion, audible mechanical or electronic noise device, visual light device, or combination of them, used in a manner that a reasonable person would understand to mean that the peace officer intends that the person stop.
  5. Failure to stop at the direction of a peace officer in the first degree is a class C felony punishable as provided in AS 12.55. Failure to stop at the direction of a peace officer in the second degree is a class A misdemeanor.

History. (§ 1 ch 66 SLA 1984; am § 1 ch 136 SLA 1998; am § 1 ch 93 SLA 2002)

Revisor’s notes. —

In 2006, in (a)(1) of this section, “AS 28.35.400 ” was substituted for “AS 28.35.040 ” to reflect the 2006 renumbering of AS 28.35.040 .

Notes to Decisions

Construction.—

The crime of felony eluding presents a single crime, with alternative ways to commit it; the four different aggravating circumstances that raise an act of eluding to a felony do not amount to four separate crimes, but rather are four different ways of committing the same crime. Taylor v. State, 400 P.3d 130 (Alaska Ct. App. 2017) (memorandum decision).

Sufficiency of evidence. —

Evidence was sufficient to convict defendant of eluding police because it showed that a police officer attempted to make a traffic stop and that defendant, rather than stopping, accelerated and weaved through traffic before making a sharp right turn onto an intersecting street and abandoning his vehicle; while driving in a reckless manner was an element of the eluding charge, the evidence sufficiently established reckless driving where defendant accelerated, changed lanes quickly, darted between adjacent cars, and made a right turn so abruptly that his tires went over the curb in the process. Newsom v. State, 199 P.3d 1181 (Alaska Ct. App. 2009).

Sufficient evidence supported defendant’s conviction for failure to stop at the direction of a peace officer in the first degree, when defendant initially stopped and then drove away, drove recklessly by driving over the speed limit through a residential area, where streets were covered with snow and ice, at times driving in the opposing lane of travel, and driving well over the speed limit on a highway that was icy in some areas, forcing other cars to pull off of the highway to avoid a collision. Williams v. State, — P.3d — (Alaska Ct. App. July 29, 2015) (memorandum decision).

Defendant’s convictions were proper because reasonable jurors could have concluded that defendant intentionally steered his vehicle toward the officer, that defendant’s protestations of fear to the 911 operator were not genuine, and that defendant’s driving maneuvers during the police chase amounted to reckless driving, which was the other component of the felony eluding charge. Shorthill v. State, 354 P.3d 1093 (Alaska Ct. App. 2015).

Evidence was sufficient to convict defendant of first-degree failure to stop at the direction of a police officer where he committed the crime of reckless driving while he was eluding the police. Defendant sped away from the police, the roads were icy and snowy at the time, he barely slowed down as he drove through two stop signs, and he had a blood alcohol level of .197 percent (more than twice the legal limit). Lovett v. State (Alaska Ct. App. Jan. 27, 2016) (memorandum decision).

Sufficient evidence supported defendant’s conviction for failure to stop at the direction of a peace officer because, viewed in the light most favorable to the State, multiple witnesses identified defendant. Elia v. State, — P.3d — (Alaska Ct. App. June 29, 2016) (memorandum decision).

Defendant was properly convicted of second- and fourth-degree assault, second-degree failure to stop at the direction of a peace officer, and misdemeanor driving under the influence because, while the superior court should have merged his two convictions for second-degree assault, defendant's attack on his ex-girlfriend and her new boyfriend was unprovoked and left the boyfriend permanently disfigured, defendant failed a sobriety test, and the sentencing judge properly rejected the proposed mitigator where defendant's conduct was within the “heartland” of the definition of the offenses, his prospects for rehabilitation were “guarded,” and he had no remorse. Lewis v. State, — P.3d — (Alaska Ct. App. Aug. 31, 2016) (memorandum decision).

Jury properly convicted defendant of attempted first-degree murder, third-degree assault, first-degree harming a police dog, and felony failure to stop at the direction of a peace officer because the evidence that defendant shot and killed a police dog, and fired multiple rounds in the direction of the two officers was sufficient to conclude that defendant intended to kill the officers. Abarca v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020) (memorandum decision).

No fatal variance.—

Even if some of the jurors relied on the fact that defendant had caused an accident when they found him guilty of felony eluding, there was no fatal variance; there was no reason to believe that the grand jurors viewed the collision with the patrol car as separate from the dangerous driving that preceded it, and the fact that defendant purposely backed into the patrol car at the end of the chase was simply a component of the evidence that he drove recklessly. Taylor v. State, 400 P.3d 130 (Alaska Ct. App. 2017).

Unanimity regarding theory not required.—

Defendant’s reckless driving and his collision with the patrol car were simply different aspects of one continuing act of eluding, and because his case involved only one act of eluding, the jurors did not need to reach unanimity regarding the theory that made this act of eluding a felony-level offense. Taylor v. State, 400 P.3d 130 (Alaska Ct. App. 2017).

Exculpatory evidence. —

Defendant’s convictions for felony eluding and third-degree assault were proper because the State did not violate its duty to present exculpatory evidence to the grand jury. Related 911 calls were susceptible of conflicting interpretations and were therefore not the kind of evidence that, standing alone, negated defendant’s guilt. Shorthill v. State, 354 P.3d 1093 (Alaska Ct. App. 2015).

Reckless driving as an element of eluding police charge. —

In a felony eluding case, because the State presented evidence that defendant drove at speeds of up to 80 miles per hour along a winding, hilly two-lane road with limited visibility, at times crossing the center line, reasonable jurors could find that his driving posed a substantial and unjustifiable risk of harm, not only to defendant, but also to the pursuing officer and to the public at large; thus, even if the judge had instructed the jury to disregard any risk to defendant or to his own vehicle when it considered whether he drove recklessly, the jury would have returned the same verdict. Accordingly, any error the judge might have committed regarding the scope of the reckless driving statute was harmless. Snider v. State, — P.3d — (Alaska Ct. App. Oct. 10, 2018) (memorandum decision).

Police officer’s stop of vehicle. —

When defendant pulled away from the scene of a party, a trooper walked into the road to look at his license plate and waved at defendant; a reasonable person in defendant’s position would not have felt free to leave the scene. Majaev v. State, 223 P.3d 629 (Alaska 2010).

Peace officer. —

Defendant was improperly convicted for failing to stop at the direction of a peace officer under AS 28.35.182 because the probation officer who directed him to park his car was not a “peace officer” for purposes of the statute. Sapp v. State, 379 P.3d 1000 (Alaska Ct. App. 2016).

Special agents of the Alaska Railroad's security force are “peace officers” within the meaning of AS 01.10.060 (7)(F), as interpreted in Sapp v. State, 379 P.3d 1000 (Alaska App. 2016). Therefore, a district court properly denied a motion for judgment of acquittal on a charge of failure to stop for a peace officer because defendant knowingly failed to stop for an agent of the Alaska Railroad's security force; the agent was in active pursuit of defendant for a violation that had just occurred on Alaska Railroad property. Forsythe v. State, 391 P.3d 643 (Alaska Ct. App. 2017).

Cited in

Fraiman v. Dep't of Admin., DMV, 49 P.3d 241 (Alaska 2002); Matthew v. State, 152 P.3d 469 (Alaska Ct. App. 2007); State v. Campbell, 198 P.3d 1170 (Alaska Ct. App. 2008); Rogers v. State, 280 P.3d 582 (Alaska Ct. App. 2012); Meyer v. State, 368 P.3d 613 (Alaska Ct. App. 2016); Berezyuk v. State, 407 P.3d 512 (Alaska Ct. App. 2017).

Sec. 28.35.185. Overtaking and passing certain stationary vehicles.

  1. The driver of a vehicle that approaches a stationary emergency vehicle, fire vehicle, law enforcement vehicle, tow truck in the act of picking up a vehicle, vehicle in the act of performing maintenance or road service work, or animal control vehicle being used to perform official duties, when the stationary vehicle is displaying flashing emergency lights on a highway or roadway
    1. with two or more lanes traveling in the same direction, unless otherwise directed by law enforcement or emergency personnel, shall
      1. if possible in the existing safety and traffic conditions, vacate the lane closest to the emergency vehicle, fire vehicle, law enforcement vehicle, tow truck in the act of picking up a vehicle, vehicle in the act of performing maintenance or road service work, or animal control vehicle being used to perform official duties; or
      2. if a lane change under (A) of this paragraph would be impossible, prohibited by law, or unsafe, slow to a reasonable and prudent speed considering the traffic, roadway, and weather conditions;
    2. with fewer than two lanes traveling in the same direction, unless otherwise directed by law enforcement or emergency personnel, shall slow to a reasonable and prudent speed considering the traffic, roadway, and weather conditions.
  2. A person who violates this section is guilty of
    1. a class A misdemeanor if personal injury results from the person’s failure to vacate the lane or slow as required by this section;
    2. an infraction, under circumstances other than in (1) of this subsection.

History. (§ 1 ch 44 SLA 2004; am § 1 ch 49 SLA 2006; am § 1 ch 7 SLA 2007; am § 4 ch 76 SLA 2018)

Effect of amendments. —

The 2018 amendment, effective November 4, 2018, in (a), twice inserted “vehicle in the act of performing maintenance or road service work” following “picking up a vehicle,”.

Notes to Decisions

Conviction upheld. —

Defendant’s conviction for improperly passing a parked emergency vehicle was upheld where he did not show good cause for an additional continuance, or for setting aside the judgment; his discovery claims were not properly up for review. Buberge v. State, — P.3d — (Alaska Ct. App. Oct. 13, 2010) (memorandum decision).

Probable cause existed for traffic stop. —

An officer had probable cause to conduct a traffic stop because defendant had ample time to observe the two police vehicles (with their activated lights) and to move his own vehicle into the left lane of the roadway as required by this section; the only other vehicle on the road did not block defendant from moving into the left lane; and, even if the other vehicle had been alongside defendant when he first spotted the police cars, there was plenty of time for defendant to slow his van and move into the left lane behind the other vehicle. George v. State, — P.3d — (Alaska Ct. App. Jan. 13, 2016) (memorandum decision).

Sec. 28.35.190. Penalty for violation of certain sections. [Repealed, § 47 ch 32 SLA 1971.]

Sec. 28.35.191. Failure to use headlights.

  1. A person commits the offense of failure to use headlights if the person operates a motor vehicle without the use of motor vehicle headlights
    1. between one half-hour after sunset and one half-hour before sunrise;
    2. at any other time when, because of insufficient light or other atmospheric conditions, persons or motor vehicles are not clearly discernible at a distance of 1,000 feet; or
    3. on a road that is a designated traffic safety corridor under AS 19.10.075 .
  2. A person operating a motor vehicle may not be required to use motor vehicle headlights except as required in (a) of this section.
  3. Failure to use headlights is an infraction.

History. (§ 99 ch 4 FSSLA 2019)

Effective dates. —

Section 150, ch. 4, FSSLA 2019 makes this section effective July 1, 2019.

Sec. 28.35.200. Unlawful operation of vehicles. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.35.210. Seizure of unsafe or defectively equipped vehicles. [Repealed by implication by AS 28.05.091, enacted by § 6 ch 178 SLA 1978.]

Sec. 28.35.220. Action by state for damages. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.35.225. Enforcement.

All law enforcement officers in this state and employees of the Department of Public Safety designated by that department’s commissioner shall enforce this title and regulations adopted under this title. The state troopers shall advise and instruct all other law enforcement officers in the state concerning the requirements of this title and regulations adopted under this title.

History. (§ 11 ch 241 SLA 1976; am § 7 ch 54 SLA 1979; am E.O. No. 99 § 62 (1997))

Notes to Decisions

“Law enforcement officers”. —

Any member of the police force of an incorporated city or borough is a “law enforcement officer” for purposes of this section. State v. Burke, 714 P.2d 374 (Alaska Ct. App. 1986).

An airport police officer is a law enforcement officer for purposes of this section. Clark v. State, 738 P.2d 772 (Alaska Ct. App. 1987).

Enforcement authority. —

This section authorizes all “law enforcement officers” to stop any vehicle whose driver has committed a statewide traffic offense in the officer’s presence, regardless not only of whether the offense was committed within the territorial limits of the jurisdiction which employed the officer, but also of whether the vehicle is in the territorial limits at the time the officer decides to make the stop. State v. Burke, 714 P.2d 374 (Alaska Ct. App. 1986).

Sec. 28.35.230. [Renumbered as AS 28.90.010.]

Sec. 28.35.235. Unauthorized use of parking reserved for persons with disabilities; penalties.

  1. A person may not park a motor vehicle in a parking place reserved for a person with a disability unless
    1. the person operating the vehicle has a special permit issued by the department under AS 28.10.495 ;
    2. the person operating the vehicle has parked the vehicle for the purpose of transporting a person who has a special permit issued by the department under AS 28.10.495 and the person who has the special permit actually exits or enters the vehicle;
    3. the motor vehicle displays a special license plate issued to a person with a disability under AS 28.10.181(d) and is operated by or used for the purpose of transporting a person with a disability; or
    4. the motor vehicle displays a special license plate or permit issued to persons with disabilities by another state, province, territory, or country and is being operated by or used for the purpose of transporting a person with a disability.
  2. A municipality may enact ordinances necessary to enforce this section.
  3. A person who violates this section is guilty of an infraction. Upon conviction, the court shall impose a fine of not less than $125, or, if the person has been previously convicted under this section, the court shall impose a fine of not less than $250. However, a person who violates this section and who was, at the time of the violation, operating a vehicle displaying a special license plate issued under AS 28.10.181(d) or a special permit issued under AS 28.10.495(a) shall, upon conviction, pay a fine of $250 or, if the person has been previously convicted under this section, pay a fine of $500.

History. (§ 2 ch 11 SLA 1987; am §§ 7, 8 ch 56 SLA 2002)

Revisor’s notes. —

Subsection (b) was enacted as (c); relettered in 2002, at which time former subsection (b) was relettered as (c).

Cross references. —

For a statement of legislative intent relating to enforcement of this section by local law enforcement agencies, see § 1, ch. 56, SLA 2002, in the 2002 Temporary and Special Acts.

Sec. 28.35.240. Duty to obey school patrol. [Repealed, § 3 ch 68 SLA 1964.]

Sec. 28.35.245. Motorcycle helmet.

  1. A motorcycle helmet may not be manufactured or sold in the state unless the helmet conforms to standards established by regulation by the commissioner of public safety. The regulations must provide for helmets that allow normal peripheral vision and hearing and minimize neck injuries to the wearer potentially caused by the helmet. The regulations shall be adopted under the provisions of AS 44.62 (Administrative Procedure Act).
  2. A person who is 18 years of age or older may not be required to wear a helmet while operating a motorcycle if the person is the holder of a license or endorsement to operate a motorcycle.

History. (§ 1 ch 230 SLA 1976; am § 1 ch 96 SLA 1996)

Cross references. —

For provisions regulating the manufacture and sale of motorcycle helmets, see AS 28.05.081(c) .

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 192.

Validity of traffic regulations requiring motorcyclists to wear protective headgear, 32 ALR3d 1270.

Sec. 28.35.250. Application of law. [Repealed, § 20 ch 241 SLA 1976.]

Sec. 28.35.251. Failure to contain or confine a load.

  1. A person commits the crime of failure to contain or confine a load in the first degree if the person, with criminal negligence, violates (c) of this section and, as a result of that violation, causes serious physical injury to another person.
  2. A person commits the crime of failure to contain or confine a load in the second degree if the person, with criminal negligence, violates (c) of this section and damages the property of another person in an amount of $5,000 or more.
  3. A person commits the offense of failure to contain or confine a load in the third degree if the person drives or moves a motor vehicle loaded with any material on a highway unless
    1. the load is
      1. contained or confined to prevent the load from
        1. dropping, leaking, or escaping; or
        2. shifting on or within the vehicle to the extent that the motor vehicle’s stability or maneuverability is adversely affected; and
      2. subjected to treatment by methods, approved by the commissioner of public safety by regulation, designed to settle the load or remove loose material before the vehicle is driven or moved on the highway; and
    2. at least six inches of freeboard is maintained around the entire perimeter of a load consisting of sand, gravel, dirt, rock, or similar materials or the load is covered and securely fastened to prevent the cover from becoming loose or detached or from being a hazard to other users of the highway.
  4. This section does not apply to
    1. a vehicle that drops, sprinkles, or sprays sand, liquids, or other materials for the purpose of cleaning or maintaining the highway or providing or improving traction;
    2. a commercial motor vehicle that is subject to the federal motor carrier cargo securement standards implemented through state or federal law;
    3. the natural accumulation of snow, ice, mud, dirt, or similar materials on a motor vehicle;
    4. a vehicle that is removing snow or hauling snow after removal; or
    5. random litter; in this paragraph, “litter” includes plastic wrappers, empty plastic bags, leaves, paper, or similar soft materials.
  5. Failure to contain or confine a load in the
    1. first degree is a class A misdemeanor punishable as provided in AS 12.55;
    2. second degree is a class B misdemeanor punishable as provided in AS 12.55;
    3. third degree is an infraction punishable by a fine of not more than
      1. $2,500 if the person has been previously convicted three or more times of a violation of this section;
      2. $1,500 if the person has been previously convicted twice of a violation of this section;
      3. $750 if the person has been previously convicted one time of a violation of this section; or
      4. $300 if the person has not been previously convicted of a violation of this section.
  6. In this section, “criminal negligence” has the meaning given in AS 11.81.900 .

History. (§ 1 ch 62 SLA 1986; am E.O. No. 99 § 63 (1997); am § 3 ch 107 SLA 2018)

Effect of amendments. —

The 2018 amendment, effective December 23, 2018, rewrote the section.

Sec. 28.35.253. Anti-spray devices required.

  1. A person may not drive a motor vehicle on a highway unless the vehicle is equipped with fenders, mud flaps, or other anti-spray devices adequate to prevent the vehicle from being a hazard to other users of the highway.
  2. Violation of this section is an infraction.

History. (§ 1 ch 62 SLA 1986; am § 4 ch 107 SLA 2018)

Effect of amendments. —

The 2018 amendment effective December 23, 2018, added (b).

Sec. 28.35.255. Penalty.

History. [Repealed, § 5 ch 107 SLA 2018.]

Sec. 28.35.260. [Renumbered as AS 28.90.990.]

Sec. 28.35.261. Operation of low-speed vehicles.

  1. The operator of a low-speed vehicle is subject to all the traffic and other laws applicable to operators of passenger vehicles.
  2. The operator of a low-speed vehicle may not operate that vehicle on a highway that has a maximum speed limit of more than 35 miles an hour. Notwithstanding this subsection, the operator of a low-speed vehicle may operate that vehicle
    1. on a highway with a maximum speed limit of 45 miles an hour if the highway is
      1. within a municipality that
        1. has a population of less than 35,000;
        2. is not connected by road to Anchorage or Fairbanks; and
        3. has passed an ordinance allowing for the operation of low-speed vehicles as provided for in this subparagraph; or
      2. within an area of the unorganized borough, outside of a city, that is not connected by road to Anchorage or Fairbanks;
    2. across an intersection with a highway that has a maximum speed limit greater than is permissible for low-speed vehicles under this subsection.
  3. Notwithstanding AS 28.01.010 , a municipality may, by ordinance, further restrict the operation of low-speed vehicles within its jurisdiction.

History. (§ 4 ch 95 SLA 2006; am § 1 ch 1 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective May 17, 2010, in the introductory language of (b), added “limit” following “maximum speed”, and “operate that vehicle”, added (b)(1), and rewrote (b)(2).

Notes to Decisions

Cited in

Haar v. State, 349 P.3d 173 (Alaska 2015).

Sec. 28.35.270. [Renumbered as AS 28.90.995.]

Article 4. Certain Offenses Relating to Minors.

Sec. 28.35.280. Minor operating a vehicle after consuming alcohol.

  1. 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 or operates an aircraft or a watercraft after having consumed any quantity of alcohol. A peace officer who has probable cause to believe that a person has committed the offense of minor operating a vehicle after consuming alcohol may
    1. place the person under arrest;
    2. request that the person submit to a chemical test or tests of the person’s breath for the purpose of determining the alcoholic content of the person’s blood or breath; and
    3. transport the person to a location at which a chemical or other test authorized under (2) of this subsection may be administered.
  2. If a chemical test under this section reveals any alcohol concentration within the person’s blood or breath, the person shall be cited for violating this section and then released unless there is a lawful reason for further detention. A person who is 18 years of age or older shall be released on the person’s own recognizance. A person who is under the age of 18 shall be released to a parent, guardian, or legal custodian.
  3. A person who is cited for violating this section shall be advised by a peace officer that it is unlawful under AS 28.35.290 for the person to operate a motor vehicle, aircraft, or watercraft during the 24 hours following the issuance of the citation.
  4. The offense of a minor operating a vehicle after consuming alcohol is an infraction, and, if the minor
    1. has not been previously convicted under this section, AS 28.35.285 , or 28.35.290 , upon conviction, the court shall impose a
      1. fine of $500; and
      2. period of community work service of not less than 20 hours nor more than 40 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;
    2. has been previously convicted once under this section, AS 28.35.285 , or 28.35.290 , upon conviction, the court shall impose a
      1. fine of $1,000; and
      2. period of community work service of not less than 40 hours nor more than 60 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;
    3. has been previously convicted two or more times under this section, AS 28.35.285, or 28.35.290, upon conviction, the court shall impose a
      1. fine of $1,500; and
      2. period of community work service of not less than 60 hours nor more than 80 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service.
  5. In this section,
    1. “operate an aircraft” has the meaning given in AS 28.35.030(w) ;
    2. “operate a watercraft” has the meaning given in AS 28.35.030(w) .

History. (§ 13 ch 143 SLA 1996; am § 1 ch 128 SLA 2004)

Revisor's notes. —

In 2002, in subsection (e), “AS 28.35.030(r) ” was substituted for “AS 28.35.030(o) ” to reflect the 2002 relettering of AS 28.35.030(o) .

In 2004, in subsection (e), “AS 28.35.030(t) ” was substituted for “AS 28.35.030(r) ” to reflect the 2004 relettering of AS 28.35.030(r) as AS 28.35.030(t) .

In 2008, in subsection (e), “AS 28.35.030(u) ” was substituted for “AS 28.35.030(t) ” to reflect the 2008 relettering of AS 28.35.030(t) as AS 28.35.030(u) .

In 2019, in subsection (e), “ AS 28.35.030(w) ” was substituted for “ AS 28.35.030(u) ” to reflect the 2019 relettering of AS 28.35.030(u) as AS 28.35.030(w) .

Editor's notes. —

Section 5, ch. 128, SLA 2004, provides that the 2004 repeal and reenactment of (d) of this section applies “to offenses committed on or after July 1, 2004”, and that “[r]eferences to prior convictions under [that section] apply to convictions occurring before, on, or after July 1, 2004.”

Notes to Decisions

Cited in

Oskolkoff v. State, 276 P.3d 490 (Alaska Ct. App. 2012).

Sec. 28.35.285. Minor’s refusal to submit to chemical test.

  1. If a person under arrest for minor operating a vehicle after consuming alcohol refuses the request of a peace officer to submit to a chemical test or tests of the person’s breath authorized under AS 28.35.031(a) and 28.35.280(a) , after being advised by the officer that the refusal will result in the denial or revocation of the driver’s license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a vehicle after consuming alcohol, and that the refusal is a violation, a chemical test may not be given.
  2. A person who is cited for violating this section shall be advised by a peace officer that it is unlawful under AS 28.35.290 for the person to operate a motor vehicle, aircraft, or watercraft during the 24 hours following the issuance of the citation.
  3. The refusal of a minor to submit to a chemical test authorized under AS 28.35.031(a) and 28.35.280(a) is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a vehicle after consuming alcohol.
  4. Refusal to submit to a chemical test or tests of the person’s breath requested under AS 28.35.280 is an infraction, and, if the minor
    1. has not been previously convicted under this section, AS 28.35.280 , or 28.35.290 , upon conviction, the court shall impose a
      1. fine of $500; and
      2. period of community work service of not less than 20 hours nor more than 40 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;
    2. has been previously convicted once under this section, AS 28.35.280, or 28.35.290 , upon conviction, the court shall impose a
      1. fine of $1,000; and
      2. period of community work service of not less than 40 hours nor more than 60 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;
    3. has been previously convicted two or more times under this section, AS 28.35.280, or 28.35.290, upon conviction, the court shall impose a
      1. fine of $1,500; and
      2. period of community work service of not less than 60 hours nor more than 80 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service.

History. (§ 13 ch 143 SLA 1996; am § 2 ch 128 SLA 2004)

Editor’s notes. —

Section 5, ch. 128, SLA 2004, provides that the 2004 repeal and reenactment of (d) of this section applies “to offenses committed on or after July 1, 2004”, and that “[r]eferences to prior convictions under [that section] apply to convictions occurring before, on, or after July 1, 2004.”

Sec. 28.35.290. Driving during the 24 hours after being cited for alcohol or breath test offenses.

  1. A person who has been cited for minor operating a vehicle after consuming alcohol under AS 28.35.280 or for refusal to submit to a chemical test of breath under AS 28.35.285 may not operate a motor vehicle, aircraft, or watercraft during the 24 hours following issuance of the citation.
  2. Operating a motor vehicle during the 24 hours after being cited for minor operating a vehicle after consuming alcohol or for minor’s refusal to submit to a chemical test is an infraction, and, if the minor
    1. has not been previously convicted under this section, AS 28.35.280 , or 28.35.285 , upon conviction, the court shall impose a
      1. fine of $500; and
      2. period of community work service of not less than 20 hours nor more than 40 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;
    2. has been previously convicted once under this section, AS 28.35.280 , or 28.35.285 , upon conviction, the court shall impose a
      1. fine of $1,000; and
      2. period of community work service of not less than 40 hours nor more than 60 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service;
    3. has been previously convicted two or more times under this section, AS 28.35.280, or 28.35.285, upon conviction, the court shall impose a
      1. fine of $1,500; and
      2. period of community work service of not less than 60 hours nor more than 80 hours; the community work service under this subparagraph must be related to education about or prevention or treatment of misuse of alcohol if opportunities are available for that type of work service in the community; if such opportunities are not available, the court shall make other provisions for the work service.
  3. In this section,
    1. “operate an aircraft” has the meaning given in AS 28.35.030(w) ;
    2. “operate a watercraft” has the meaning given in AS 28.35.030(w) .

History. (§ 13 ch 143 SLA 1996; am § 3 ch 128 SLA 2004)

Revisor's notes. —

In 2002, in subsection (c), “AS 28.35.030(r) ” was substituted for “AS 28.35.030(o) ” to reflect the 2002 relettering of AS 28.35.030(o) .

In 2004, in subsection (c), “AS 28.35.030(t) ” was substituted for “AS 28.35.030(r) ” to reflect the 2004 relettering of AS 28.35.030(r) as AS 28.35.030(t) .

In 2008, in subsection (c), “AS 28.35.030(u) ” was substituted for “AS 28.35.030(t) ” to reflect the 2008 relettering of AS 28.35.030(t) as AS 28.35.030(u) .

In 2019, in subsection (c), “AS 28.35.030(w) ” was substituted for “AS 28.35.030(u) ” to reflect the 2019 relettering of AS 28.35.030(u) as AS 28.35.030(w) .

Editor's notes. —

Section 5, ch. 128, SLA 2004, provides that the 2004 repeal and reenactment of (b) of this section applies “to offenses committed on or after July 1, 2004”, and that “[r]eferences to prior convictions under [that section] apply to convictions occurring before, on, or after July 1, 2004.”

Notes to Decisions

Cited in

Oskolkoff v. State, 276 P.3d 490 (Alaska Ct. App. 2012).

Article 5. Offenses Involving Property Rights.

Sec. 28.35.300. Tampering with or damaging a vehicle.

A person, without the right to do so, may not tamper with a vehicle, set or attempt to set a vehicle in motion, or damage a part or component of a vehicle.

History. (§ 5 ch 241 SLA 1976)

Revisor’s notes. —

Formerly AS 28.35.015 . Renumbered in 2006.

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 394, 395.

61A C.J.S., Motor Vehicles, § 1690.

Validity and construction of statute making it a criminal offense to “tamper” with motor vehicle or contents, or to obscure registration plates, 57 A.L.R.3d 606.

Construction and application of statute making it unlawful to tamper with motor vehicle odometer, 76 A.L.R.3d 981.

Sec. 28.35.310. Renting a motor vehicle.

  1. A person may not rent a motor vehicle to a person unless the person renting the vehicle is properly licensed under this title or, if a nonresident, the person is properly licensed under the laws of the jurisdiction of a person’s residence.
  2. A person may not rent a motor vehicle until the person has inspected the license of the person to whom the vehicle is to be rented, and has verified the identification of the licensee.
  3. Every person renting a motor vehicle shall keep a record of the registration number of the vehicle rented, the name, address and license number of the person to whom the vehicle is rented, and the date and place when and where the license of the intended driver was issued. The record shall be open to inspection by a peace officer or employee of the Department of Public Safety acting in an official capacity.
  4. Every person renting a motor vehicle shall comply with the financial responsibility requirements of this title.
  5. A person who rents motor vehicles to others shall provide child safety devices in sufficient quantity that all persons to whom the vehicles are to be rented can comply with the requirements of AS 28.05.095 .

History. (§ 5 ch 241 SLA 1976; am § 2 ch 99 SLA 1984; am E.O. No. 99 § 55 (1997))

Revisor’s notes. —

Formerly AS 28.35.024 . Renumbered in 2006.

Collateral references. —

61A C.J.S., Motor Vehicles, § 1678 et seq.

Sec. 28.35.320. Failure to return rental vehicle.

  1. A person in possession of a motor vehicle under an agreement in writing that requires the person to return the vehicle to a particular place or at a particular time who refuses or wilfully neglects to return it to the place and at the time specified in the agreement in writing with the intent to deprive the owner of the vehicle or to convert it to the person’s own use, or who secretes, converts, sells, or attempts to sell the vehicle or any part of it is, upon conviction, punishable by imprisonment for not more than five years, or by a fine of not more than $1,000, or by both.
  2. In this section, “wilfully neglects” means omits, fails, or forbears, with a conscious purpose to injure, or without regard for the rights of the owner, or with indifference whether a wrong is done the owner or not.

History. (§ 1 ch 37 SLA 1964; am § 18 ch 144 SLA 1977)

Revisor’s notes. —

Formerly AS 28.35.026 . Renumbered in 2006.

Notes to Decisions

This section is not vague. Speidel v. State, 460 P.2d 77 (Alaska 1969).

Concern of section. —

All that this section is concerned with is the protection of one select group of persons in the business community — those who rent automobiles. Speidel v. State, 460 P.2d 77 (Alaska 1969).

This section does not represent what could be classified as a “public welfare offense.” The health, safety and welfare of the public is not involved. Speidel v. State, 460 P.2d 77 (Alaska 1969).

The basic infirmity of this section prior to the 1977 amendment was apparent. —

This section allowed a man to be convicted of a crime though he had acted entirely innocently, inadvertently or negligently. Alex v. State, 484 P.2d 677 (Alaska 1971).

Under the terminology of this section prior to the 1977 amendment, it was possible to be guilty of the offense when there was an entire lack of any conscious deprivation of property or intentional injury. Alex v. State, 484 P.2d 677 (Alaska 1971).

Under this section prior to the 1977 amendment, a person might suffer a felony conviction for a simple negligent failure to act. To make such an act a serious crime without regard to an awareness of wrongdoing or the intentional infliction of injury is inconsistent with the general law. To convict a person of a felony for such an act, without proving criminal intent, is to deprive such person of due process of law. Alex v. State, 484 P.2d 677 (Alaska 1971).

If one failed to return an automobile out of neglect, without any intention to deprive the owner of his property or to convert property to his own use, or of doing wrong to the owner, he was made guilty of a felony prior to the 1977 amendment of this section although he might have acted unwittingly or inadvertently or negligently. This was contrary to the general condition of criminal liability which required not only the doing of an act, but also the existence of a guilty mind during the commission of the act. Alex v. State, 484 P.2d 677 (Alaska 1971).

Extent to which section was valid. —

This section prior to the 1977 amendment was valid and might be utilized to impose criminal responsibility on one to the extent that he failed to return a motor vehicle “with conscious purpose to injure” the owner of the vehicle. Speidel v. State, 460 P.2d 77 (Alaska 1969).

Extent to which section was invalid. —

Under the terms of this section prior to the 1977 amendment, there was no escape from a felony conviction and a possible five-year prison term for simple neglectful or negligent failure to return a rented automobile at the time specified in the rental agreement. To make such an act, without consciousness of wrongdoing or intention to inflict injury, a serious crime, and criminals of those who fall within its interdiction, is inconsistent with the general law. To convict a person of a felony for such an act, without proving criminal intent, is to deprive such person of due process of law. To the extent that this section permitted that to happen, it was invalid and of no effect. However, this section was invalid and ineffective only to the extent mentioned, and not in its entirety. It was severable by virtue of AS 01.10.030 . Speidel v. State, 460 P.2d 77 (Alaska 1969).

In overturning this section, the supreme court adhered to the general rule of law and dictate of justice which requires that to constitute guilt there must be not only a wrongful act but a criminal intention. Alex v. State, 484 P.2d 677 (Alaska 1971).

The essential purpose of Speidel v. State, 460 P.2d 77 (Alaska 1969) was to prevent criminal liability for a serious felony from being imposed in a manner akin to strict liability, that is, without regard to the accused’s awareness of his conduct and intent to commit the proscribed act. Alex v. State, 484 P.2d 677 (Alaska 1971).

The gist of the offense under this section is failure to return an automobile with a conscious purpose to injure the owner and not mere failure to pay the rental price. Hence, the constitutional prohibition against imprisonment for debt has not been violated. Speidel v. State, 460 P.2d 77 (Alaska 1969).

Felonious intent not inherent in offense. —

By defining “wilfully neglects” so specifically, the legislature indicated that the ordinary criminal or felonious intent, as in the case of larceny, is not inherent in the offense of failing to return a rented automobile. Speidel v. State, 460 P.2d 77 (Alaska 1969).

Quoted in

State v. Campbell, 536 P.2d 105 (Alaska 1975).

Cited in

Kimoktoak v. State, 584 P.2d 25 (Alaska 1978).

Collateral references. —

Criminal offenses in connection with rental of motor vehicles, 38 ALR3d 949.

Article 6. Reckless and Negligent Driving.

Sec. 28.35.400. Reckless driving.

  1. A person who drives a motor vehicle in the state in a manner that creates a substantial and unjustifiable risk of harm to a person or to property is guilty of reckless driving. A substantial and unjustifiable risk is a risk of such a nature and degree that the conscious disregard of it or a failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.
  2. A person convicted of reckless driving is guilty of a misdemeanor and is punishable by a fine of not more than $1,000 or by imprisonment for not more than one year or by both.
  3. Lawfully conducted automobile, snowmobile, motorcycle, or other motor vehicle racing or exhibition events are not subject to the provisions of this section.

History. (§ 50-5-4 ACLA 1949; am § 1 ch 182 SLA 1955; am § 1 ch 70 SLA 1961; am § 2 ch 121 SLA 1967; am § 1 ch 13 SLA 1971; am § 46 ch 32 SLA 1971; am § 6 ch 74 SLA 1974)

Revisor’s notes. —

Formerly AS 28.35.040 . Renumbered in 2006.

Notes to Decisions

Codification of common-law standard of care. —

This section and former AS 28.35.045 [now AS 28.35.410 ], defining reckless and negligent driving, do not set forth precise standards of care, but merely codify the usual common-law standard of care. Bailey v. Lenord, 625 P.2d 849 (Alaska 1981).

Specific conduct not proscribed. —

This section and former AS 28.35.045 [now AS 28.35.410 ], defining reckless and negligent driving, do not proscribe specific conduct, but rather state that a person shall not drive a motor vehicle in a manner which creates an unjustifiable risk. Bailey v. Lenord, 625 P.2d 849 (Alaska 1981).

Risks to safety of general public. —

Reckless driving involves risks to the safety of the public at large. Calder v. State, 619 P.2d 1026 (Alaska 1980).

A defendant was not placed in double jeopardy by his conviction of the lesser included offense of reckless driving on a felony charge of assault with a dangerous weapon even though a misdemeanor charge of reckless driving had already been adjudicated against him because, although the charges arose out of the same general incidents, they were based on different conduct during that incident. Calder v. State, 619 P.2d 1026 (Alaska 1980).

Lesser included offense of driving while intoxicated. —

Trial court erred in refusing defendant’s request, at his trial for driving while intoxicated, for an instruction on the lesser included offense of reckless driving and negligent driving, where the issue of defendant’s intoxication was in dispute and the state presented evidence from which the jury could have found him guilty of reckless driving or negligent driving even if it acquitted him of DWI. Comeau v. State, 758 P.2d 108 (Alaska Ct. App. 1988).

Because defendant disputed whether he was intoxicated, and the state supported its impairment case under AS 28.35.030(a)(1) with evidence that defendant drove erratically, defendant was entitled to a jury instruction on reckless driving under former AS 28.35.040 [now AS 28.35.400 ]. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

Proof required. —

To prove reckless driving, the state has to show that a person drove in a manner that created a substantial and unjustifiable risk of harm to a person or to property; a person who drinks alcoholic beverages and then drives, but who is not impaired, is not necessarily driving recklessly. Bertilson v. State, 64 P.3d 180 (Alaska Ct. App. 2003).

Defendant was “in actual physical control” of her vehicle, where she was seated in the driver’s seat behind the steering wheel, had possession of the ignition key and was attempting to put the key in the ignition; given these factors of control, it is not necessary that the engine be running. Department of Pub. Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232 (Alaska 1988).

Trooper arriving at accident scene cannot arrest for reckless driving without warrant. —

The Alaska legislature has classified both reckless driving and operating or driving an automobile under the influence of intoxicating liquor as misdemeanors. Thus, a state trooper who arrived at an accident scene could not arrest a driver without a warrant for either reckless driving or drunk driving since neither of these offenses was committed or attempted in his presence. Layland v. State, 535 P.2d 1043 (Alaska 1975), overruled, Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), overruled in part, State v. Blank, 90 P.3d 156 (Alaska 2004).

Reckless driving as an element of eluding police charge. —

Evidence was sufficient to convict defendant of eluding police because it showed that a police officer attempted to make a traffic stop and that defendant, rather than stopping, accelerated and weaved through traffic before making a sharp right turn onto an intersecting street and abandoning his vehicle; while driving in a reckless manner was an element of the eluding charge, the evidence sufficiently established reckless driving where defendant accelerated, changed lanes quickly, darted between adjacent cars, and made a right turn so abruptly that his tires went over the curb in the process. Newsom v. State, 199 P.3d 1181 (Alaska Ct. App. 2009).

Defendant’s convictions were proper because reasonable jurors could have concluded that defendant intentionally steered his vehicle toward the officer, that defendant’s protestations of fear to the 911 operator were not genuine, and that defendant’s driving maneuvers during the police chase amounted to reckless driving, which was the other component of the felony eluding charge. Shorthill v. State, 354 P.3d 1093 (Alaska Ct. App. 2015).

Jury properly convicted defendant of attempted first-degree murder, third-degree assault, first-degree harming a police dog, and felony failure to stop at the direction of a peace officer because the evidence that defendant shot and killed a police dog, and fired multiple rounds in the direction of the two officers was sufficient to conclude that defendant intended to kill the officers. Abarca v. State, — P.3d — (Alaska Ct. App. Dec. 9, 2020) (memorandum decision).

Search incident to reckless driving arrest. —

Where the police officer searched the center console of defendant’s vehicle after arresting defendant for reckless driving under former AS 28.35.040 [now AS 28.35.400 ], the search incident to lawful arrest was only lawful if the officer had a reasonable suspicion that the console contained a weapon; while normally the officer could have also been looking for evidence of the crime, the offense of reckless driving generally had no evidence associated with it. Crawford v. State, 68 P.3d 1281 (Alaska Ct. App. 2003).

Sentencing considerations. —

Where it was undisputed at trial that there were three people in the rear of defendant’s pickup who were extremely vulnerable in case of any accident, the judge could properly consider this fact at sentencing in evaluating the extent of defendant’s recklessness, even though he could not properly consider the fact that they had died from defendant’s recklessness. Huckaby v. State, 632 P.2d 975 (Alaska Ct. App. 1981).

Thirty-day sentencing ceiling applied to sentencing for reckless driving under both AS 28.35.400(a) and non-classified Anchorage, Alaska, Mun. Code § 09.28.010(A) because the legislature could not have intended to create the sentencing discrepancy that would exist if the ceiling applied to the more serious offense of driving under the influence but not reckless driving, even though the municipal offense was not a class A misdemeanor, as the municipality did not prove a factor in AS 12.55.135(a)(1). Municipality of Anchorage v. Beezley, 435 P.3d 978 (Alaska Ct. App. 2018).

Considering uncounseled moving violations in sentencing held harmless error. —

Any error that might have occurred by reason of the trial court’s consideration of two uncounseled moving violations in determining the sentence for negligent driving was harmless where the court also considered three counseled moving violations and where it did not restrict or suspend defendant’s license but imposed a fine of $100, which was only $25 above that suggested by defendant’s counsel. McKenzie v. State, 520 P.2d 791 (Alaska 1974).

Circumstantial evidence enough to convict. —

Although the state’s case against the driver of the vehicle was almost entirely circumstantial, the courts of Alaska have repeatedly held that there is no special test that applies to cases based on circumstantial evidence; therefore, the state’s evidence was sufficient to convince reasonable people, beyond a reasonable doubt, that the driver was guilty of reckless driving. Ashley v. State, 6 P.3d 738 (Alaska Ct. App. 2000).

Evidence sufficient to support an inference of recklessness. —

Where defendant was driving a motor vehicle that, without apparent reason, began to swerve back and forth across the highway and finally left the road, these circumstances, if unexplained, were sufficient to support an inference of recklessness. Ashley v. State, 6 P.3d 738 (Alaska Ct. App. 2000).

Speeding driver crossed the median, hitting another car and injuring its occupants. His blood alcohol level was in excess of .2. The evidence supported convictions for first degree and third degree assault, reckless driving, driving under the influence, and failing to render assistance in an accident where there is an injury. King v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2009) (memorandum decision).

Sufficient evidence supported defendant’s reckless driving conviction where witnesses said a truck matching the description of defendant’s truck passed the witnesses in a reckless manner, a trooper spotted a matching truck within three or four minutes of a witness’s report, and defendant admitted having passed vehicles. Griffeth v. State, — P.3d — (Alaska Ct. App. Mar. 5, 2014), (memorandum opinion).

District court properly denied defendant's motion to suppress because a state trooper had reasonable suspicion to believe she committed the offense of reckless driving where he observed skid marks on the road, tire gouges in a ditch, a bent newspaper box pole, and a trail of vehicle fluid, the vehicle was found within a mile or two of the accident, a woman collecting items from the vehicle and a station attendant identified defendant as the driver, the woman informed the trooper where defendant could be located, and during that contact, he observed signs that she was intoxicated, which justified shifting the focus of his investigation to the risk that she had been driving under the influence. Handley v. State, — P.3d — (Alaska Ct. App. Jan. 20, 2016) (memorandum decision).

Evidence was sufficient to convict defendant of first-degree failure to stop at the direction of a police officer. He committed the crime of reckless driving while he was eluding the police because he sped away from the police, the roads were icy and snowy at the time, he barely slowed down as he drove through two stop signs, and he had a blood alcohol level of .197 percent (more than twice the legal limit). Lovett v. State, — P.3d — (Alaska Ct. App. Jan. 27, 2016) (memorandum decision).

Evidence held sufficient to support verdict of guilty.—

Evidence was legally sufficient to support defendant's convictions for driving under the influence and the lesser-included offense of reckless driving; defendant drove her car into a ditch and abandoned it with the motor running, the trooper who interviewed her smelled alcohol on her, she performed poorly on field sobriety tests, and contrary to her argument, the jury's determination that defendant's excuses were not credible was not second-guessed on appeal. Wolverton v. State, — P.3d — (Alaska Ct. App. Aug. 15, 2018) (memorandum decision).

Sentence upheld. —

Severity of defendant’s offense within the crime of reckless driving and the need to deter him, to deter others, and to reaffirm societal norms justified a one-year sentence. Huckaby v. State, 632 P.2d 975 (Alaska Ct. App. 1981).

Stated in

Macmurray v. State, — P.3d — (Alaska Ct. App. Mar. 13, 2019).

Cited in

Hood v. Smedley, 498 P.2d 120 (Alaska 1972); Williford v. State, 674 P.2d 1329 (Alaska 1983); Wilson v. State, 680 P.2d 1173 (Alaska Ct. App. 1984); Smith v. State, 787 P.2d 1038 (Alaska Ct. App. 1990); Brockway v. State, 37 P.3d 427 (Alaska Ct. App. 2001); Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008); Taylor v. State, 400 P.3d 130 (Alaska Ct. App. 2017).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 350 et seq.

61A C.J.S., Motor Vehicles, § 1547 et seq.

What amounts to reckless driving within statute making reckless driving of automobile a criminal offense, 52 ALR2d 1337.

Reckless driving as lesser included offense of driving while intoxicated or similar charge, 10 ALR4th 1252.

Definiteness and certainty of statute prohibiting reckless driving, 52 ALR4th 1161.

Sec. 28.35.410. Negligent driving.

  1. A person who drives a motor vehicle in the state in a manner that creates an unjustifiable risk of harm to a person or to property and who, as a result of the creation of the risk, actually endangers a person or property is guilty of negligent driving.  An unjustifiable risk is a risk of such a nature and degree that a failure to avoid it constitutes a deviation from the standard of care that a reasonable person would observe in the situation.  Proof that a defendant actually endangered a person or property is established by showing that, as a result of the defendant’s driving,
    1. an accident occurred;
    2. a person, including the defendant, took evasive action to avoid an accident;
    3. a person, including the defendant, stopped or slowed down suddenly to avoid an accident; or
    4. a person or property, including the defendant or the defendant’s property, was otherwise endangered.
  2. The offense of negligent driving is a lesser offense than, and included in, the offense of reckless driving, and a person charged with reckless driving may be convicted of the lesser offense of negligent driving.
  3. A person convicted of negligent driving is guilty of an infraction as provided under AS 28.90.010 .
  4. Lawfully conducted automobile, snowmobile, motorcycle or other motor vehicle racing or exhibition events are not subject to the provisions of this section.

History. (§ 7 ch 74 SLA 1974; am § 6 ch 241 SLA 1976; am § 19 ch 144 SLA 1977; am § 43 ch 21 SLA 1985)

Revisor’s notes. —

Formerly AS 28.35.045 . Renumbered in 2006. In 2006, in (c) of this section, “AS 28.90.010 ” was substituted for “AS 28.40.050 ” to reflect the 2006 renumbering of AS 28.40.050 .

Notes to Decisions

Codification of common-law standard of care. —

This section and AS 28.35.040 [now AS 28.35.400 ], defining reckless and negligent driving, do not set forth precise standards of care, but merely codify the usual common-law standard of care. Bailey v. Lenord, 625 P.2d 849 (Alaska 1981).

Specific conduct not proscribed. —

This section and AS 28.35.040 [now AS 28.35.400 ], defining reckless and negligent driving, do not proscribe specific conduct, but rather state that a person shall not drive a motor vehicle in a manner which creates an unjustifiable risk. Bailey v. Lenord, 625 P.2d 849 (Alaska 1981).

Negligent driving is an infraction, not an offense for double jeopardy purposes, and pleading no contest to negligent driving does not preclude a subsequent prosecution for the offense of second-degree assault. Carlson v. State, 676 P.2d 603 (Alaska Ct. App. 1984).

Negligent driving is an infraction, not an offense for suspending imposition of sentence. —

District court erred in suspending imposition of sentence when sentencing defendant for an infraction because a court was not statutorily authorized to impose probation for a noncriminal offense under Title 28 and defendant was convicted of negligent driving, an infraction, in violation of a Title 28 offense. State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Lesser included offense of driving while intoxicated. —

Trial court erred in refusing defendant’s request, at his trial for driving while intoxicated, for an instruction on the lesser included offense of reckless driving and negligent driving, where the issue of defendant’s intoxication was in dispute and the state presented evidence from which the jury could have found him guilty of reckless driving or negligent driving even if it acquitted him of DWI. Comeau v. State, 758 P.2d 108 (Alaska Ct. App. 1988).

Cited in

Williford v. State, 674 P.2d 1329 (Alaska 1983); McCollum v. State, 808 P.2d 268 (Alaska Ct. App. 1991).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, § 351 et seq.

61A C.J.S., Motor Vehicles, § 1553.

Chapter 37. Driver License Compact.

Article 1. General Provisions.

Sec. 28.37.010. Compact enacted.

The Driver License Compact is enacted into law and entered into with all other jurisdictions legally joining in it in the form substantially contained in AS 28.37.110 28.37.190 .

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.020. Licensing authority.

In this chapter the term “licensing authority” with reference to this state means the entity in the Department of Administration that administers AS 28.15.011 28.15.151 . The department shall furnish to the appropriate authority of another party state the information or documents reasonably necessary to facilitate the administration of AS 28.37.130 28.37.150 .

History. (§ 18 ch 60 SLA 1986; am E.O. No. 99 § 64 (1997))

Sec. 28.37.030. Expenses of administrator.

The compact administrator provided for in AS 28.37.170 is not entitled to additional compensation on account of service as the administrator, but is entitled to expenses incurred in connection with the duties and responsibilities as the administrator, in the same manner as for expenses incurred in connection with other duties or responsibilities of the office or employment.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.040. Executive head.

In this chapter, with reference to this state, the term “executive head” means the governor.

History. (§ 18 ch 60 SLA 1986)

Article 2. Compact Terms.

Sec. 28.37.110. Findings and policy statement.

  1. The party states find that
    1. the safety of their streets and highways is materially affected by the degree of compliance with state laws and local ordinances relating to the operation of motor vehicles;
    2. violation of a law or ordinance is evidence that the violator engages in conduct that is likely to endanger the safety of persons and property;
    3. the continuance in force of a license to drive is predicated upon compliance with laws and ordinances relating to the operation of motor vehicles, in whichever jurisdiction the vehicle is operated.
  2. It is the policy of the party states to
    1. promote compliance with the laws, ordinances, and administrative regulations relating to the operation of motor vehicles by their drivers in each of the jurisdictions where those drivers operate motor vehicles;
    2. make the reciprocal recognition of licenses to drive and eligibility for them more just and equitable by considering the overall compliance with motor vehicle laws, ordinances, and administrative regulations as a condition precedent to the continuance or issuance of a license by reason of which the licensee is authorized or permitted to operate a motor vehicle in the party states.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.120. [Renumbered as AS 28.37.199.]

Sec. 28.37.130. Reports of convictions.

The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. The report shall clearly identify the person convicted; describe the violation specifying the section of the statute, code, or ordinance violated; identify the court in which action was taken; indicate whether a plea of guilty or not guilty was entered, or the conviction was a result of the forfeiture of bail, bond or other security; and shall include any special findings made in connection with the conviction.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.140. Effect of conviction in party state.

  1. The licensing authority in the home state, for the purposes of suspending, revoking, or limiting the license to operate a motor vehicle, shall give the same effect to the conduct reported under AS 28.37.130 as it would if the conduct had occurred in the home state, in the case of a conviction for
    1. manslaughter or negligent homicide resulting from the operation of a motor vehicle;
    2. driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree that renders the driver incapable of safely driving a motor vehicle;
    3. any felony in the commission of which a motor vehicle is used;
    4. failure to stop and render aid in the event of a motor vehicle accident resulting in the death or personal injury of another.
  2. As to another conviction, reported under AS 28.37.130 , the licensing authority in the home state shall give the effect to the conduct that is provided by the laws of the home state if the offense constituting the conduct report under AS 28.37.130 has elements similar to those of the home state as defined in the home state at the time the offense constituting the conduct report under AS 28.37.130 was committed.
  3. If the laws of a party state do not provide for offenses or violations denominated or described in precisely the words employed in (a) of this section, the party state shall construe the denominations and descriptions appearing in (a) of this section as being applicable to and identifying the offenses or violations of a substantially similar nature, and the laws of the party state shall contain the provisions necessary to ensure that full force and effect is given to this section.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.150. Grounds requiring refusal to issue license.

Upon application for a license to drive, the licensing authority in a party state shall ascertain whether the applicant has ever held, or is the holder of a license to drive issued by another party state. The licensing authority in the state where application is made may not issue a license to drive to the applicant if

  1. the applicant has held a license, but the license has been suspended, revoked, or canceled, or the applicant has been disqualified from operating a commercial motor vehicle by reason, in whole or in part, of a violation, and the suspension period has not terminated;
  2. the applicant has held a license, but the license has been revoked by reason, in whole or in part, of a violation, and the revocation has not terminated; except that after the expiration of one year from the date the license was revoked, the person may make application for a new license if permitted by law; the licensing authority may refuse to issue a license to an applicant if, after investigation, the licensing authority determines that it will not be safe to grant to the person the privilege of driving a motor vehicle on the public highways;
  3. the applicant is the holder of a license to drive issued by another party state and currently in force, unless the applicant surrenders the license;
  4. the applicant has held a license, but has been disqualified from operating a commercial motor vehicle by reason, in whole or in part, of a violation, and the disqualification has not terminated; however, a person may make an application for a noncommercial driver’s license if permitted by other law.

History. (§ 18 ch 60 SLA 1986; am § 29 ch 23 SLA 2007)

Sec. 28.37.160. Application of other state laws.

Except as expressly required by provisions of this chapter, nothing in this chapter shall be construed to affect the right of a party state to apply any of its other laws relating to licenses to drive to any person or circumstance, nor to invalidate or prevent any driver license agreement or other cooperative arrangement between a party state and a nonparty state.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.170. Administrator of compact.

  1. The head of the licensing authority of each party state shall be the administrator of the compact for that state.  The administrators of all party states, acting jointly, shall have the power to formulate all necessary and proper procedures for the exchange of information under this compact.
  2. The administrator of each party state shall furnish to the administrator of each other party state the information or documents reasonably necessary to facilitate the administration of the compact.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.180. Compact as law; withdrawal procedure.

  1. The compact shall become effective as to any state in which the compact becomes effective as the law of that state.
  2. A party state may withdraw from the compact by enacting a statute repealing the compact as the law of the state, but a withdrawal may not take effect until six months after the executive head of the withdrawing state has given notice of the withdrawal to the executive heads of all other party states.  Withdrawal does not affect the validity or applicability by the licensing authorities of states remaining party to the compact of any report of conviction occurring before the withdrawal.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.190. Construction and validity; severability.

The compact shall be liberally construed so as to effectuate its purposes. The provisions of the compact are severable and if any phrase, clause, sentence, or provision of the compact is declared to be contrary to the constitution of any party state or of the United States or the applicability of it to a government, agency, person or circumstance is held invalid, the validity of the remainder of the compact and the applicability of it to any government, agency, person or circumstance shall not be affected by it. If the compact is held contrary to the constitution of any party state, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

History. (§ 18 ch 60 SLA 1986)

Sec. 28.37.199. Compact definitions.

In this chapter,

  1. “conviction” means a conviction of an offense related to the use or operation of a motor vehicle that is prohibited by state law, municipal ordinance, or administrative regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed an offense described in this paragraph, and that is required to be reported to the licensing authority under AS 28.37.130 ;
  2. “home state” means the state that has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle;
  3. “state” means a state, territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

History. (§ 18 ch 60 SLA 1986)

Revisor’s notes. —

Formerly AS 28.37.120 . Renumbered in 2006.

Chapter 39. Snowmobiles.

Administrative Code. —

For hunting from snowmobiles, see 5 AAC 92.080.

Collateral references. —

Accidents involving negligence in operation of snowmobile, skimobile, or similar vehicle, 42 ALR3d 1422.

Criminal liability based on violation of statute specifically regulating operation of snowmobile, 45 ALR3d 1438.

Liability for injury or death allegedly caused by defect in snowmobile or other recreational-purpose vehicle, 81 ALR3d 394; 66 ALR4th 622.

Sec. 28.39.010. Snowmobile registration.

  1. Except as provided in this subsection, a person may not operate a snowmobile within the state unless the snowmobile has been registered and numbered as required by this chapter. Registration under this subsection is not required for a snowmobile owned by the United States.
  2. A person who violates (a) of this section is guilty of an infraction and is subject to a $300 fine under AS 28.90.010(c) .

History. (§ 1 ch 134 SLA 1998)

Revisor’s notes. —

In 2006, in (b) of this section, “AS 28.90.010(c) ” was substituted for “AS 28.40.050 (c)” to reflect the 2006 renumbering of AS 28.40.050 .

Sec. 28.39.020. Authority of department; registration agents; registration applications.

  1. The department is authorized to assign identification numbers and register snowmobiles.
  2. The department shall authorize agents, including snowmobile dealers, to register snowmobiles. The department may authorize a snowmobile dealer authorized as an agent for snowmobile registration to issue temporary and permanent registrations, and to renew registrations.
  3. A snowmobile dealer shall require a purchaser of a new or used snowmobile sold at retail to complete a registration application and pay the registration fee before the snowmobile leaves the dealer’s premises unless the snowmobile is exempt from registration or a registration fee under this chapter.
  4. In a manner set out in this chapter and as may be prescribed by the department, an authorized agent shall accept a registration application and registration fee, issue a registration, and forward the application and registration fee to the department.
  5. The original and each renewal registration fee for a snowmobile is as provided under AS 28.10.421 , except that the fee shall be multiplied by two for a four-year registration and multiplied by three for a six-year registration.

History. (§ 1 ch 134 SLA 1998)

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Sec. 28.39.030. Proof of ownership for registration purposes.

The department may require proof of ownership of the snowmobile before registering a snowmobile under this chapter.

History. (§ 1 ch 134 SLA 1998)

Sec. 28.39.040. Issuance of a certificate of registration and decals; inspection of registration; expiration of registration.

  1. Upon receipt of a completed application for registration of a snowmobile, the department shall record the registration of the snowmobile under a number assigned to the snowmobile by the department. A number assigned to a snowmobile at the time of the original registration must remain with the snowmobile until the snowmobile is destroyed, abandoned, or permanently removed from the state or until the registration number is changed or terminated by the department.
  2. The department shall issue a registration without the payment of a fee if the snowmobile is owned by a state agency, a political subdivision of the state, or another state. The department may, upon request, issue a registration without the payment of a fee if the snowmobile is owned by the United States.
  3. The department shall, upon assignment of a registration number, issue and deliver to the owner a certificate of registration in a form prescribed by the department. A certificate of registration is not valid unless it is signed by the person who signed the application for registration.
  4. At the issuance of the original certificate of registration and upon renewal, the department shall issue to the registrant a validation decal indicating the validity of the current registration and the expiration date. A validation decal must be affixed to the snowmobile in the manner prescribed by the department. A snowmobile is not validly registered under this chapter unless a validation decal and current registration have been issued as required by this section.
  5. A snowmobile shall display the registration number assigned to it at all times in the manner prescribed by the department.
  6. While operating a snowmobile that is required to be registered under this chapter, a person shall have in possession or carry in the snowmobile a valid registration. Upon demand by a peace officer authorized to enforce this chapter, a person operating a snowmobile shall produce for inspection the certificate of registration for the snowmobile and furnish to the peace officer any information necessary for the identification of the snowmobile and its owner.
  7. A snowmobile owner holding a certificate of registration shall notify the department in writing of a change of residence within 15 days after the change occurs.
  8. A snowmobile may be registered for two, four, or six years. A snowmobile registration expires at the end of the last season for which it is issued. An application for renewal of registration for the succeeding years must be made at a time and in a form prescribed by the department.
  9. The department may issue a replacement certificate of registration if the owner demonstrates to the department that the original certificate has been lost, mutilated, or destroyed.

History. (§ 1 ch 134 SLA 1998)

Sec. 28.39.050. Change of ownership; used snowmobiles held for resale; termination of use.

  1. If there is a change of ownership of a snowmobile, the seller and buyer shall fill out the transfer of ownership section of the registration, and the seller shall sign over the registration to the new owner. The seller shall promptly submit the transfer of ownership section to the department, and the department shall issue a new certificate of registration to the new owner.
  2. This chapter does not require a snowmobile dealer to renew the registration of a used snowmobile held solely for purposes of resale until the snowmobile is resold.
  3. An owner of a snowmobile registered under this chapter shall notify the department in writing of the termination of use, destruction, or permanent removal of the snowmobile from the state within 15 days after the termination of use, destruction, or removal.

History. (§ 1 ch 134 SLA 1998)

Sec. 28.39.060. Regulations authorized.

The commissioner shall adopt regulations governing the registration of snowmobiles and display of registration numbers on snowmobiles as may be necessary to carry out this chapter.

History. (§ 1 ch 134 SLA 1998)

Administrative Code. —

For registration, title, and transfer, see 2 AAC 92, art. 1.

Sec. 28.39.250. Definitions.

In this chapter,

  1. “commissioner” means the commissioner of administration;
  2. “dealer” means a person engaged in the business of selling snowmobiles predominantly for purposes other than resale;
  3. “department” means the Department of Administration;
  4. “operate” means to ride in or on and control the operation of a snowmobile;
  5. “operator” means a person who operates or is in actual physical control of a snowmobile;
  6. “owner” means a person, other than a lienholder, having title to a snowmobile and who is entitled to the use or possession of the snowmobile;
  7. “possession” means physical custody of a snowmobile by an owner of a snowmobile or by an owner of a motor vehicle or trailer on or in which a snowmobile is placed for the purpose of transport;
  8. “retail” means the sale of a snowmobile for any purpose other than resale;
  9. “season” means one calendar year beginning October 1 and ending September 30;
  10. “snowmobile” means a self-propelled vehicle primarily designed or altered for travel on snow or ice when supported in part by skis, belts, or cleats; “snowmobile” does not include machinery used strictly for the grooming of snowmobile trails or ski slopes.

History. (§ 1 ch 134 SLA 1998)

Chapter 40. General Provisions.

Sec. 28.40.050. [Renumbered as AS 28.90.010.]

Sec. 28.40.060. [Renumbered as AS 28.90.020.]

Sec. 28.40.070. [Renumbered as AS 28.90.030.]

Sec. 28.40.072. [Renumbered as AS 28.90.035.]

Sec. 28.40.075. [Renumbered as AS 28.90.040.]

Sec. 28.40.100. [Renumbered as AS 28.90.990.]

Sec. 28.40.110. [Renumbered as AS 28.90.995.]

Chapter 90. General and Miscellaneous Provisions.

Article 1. Miscellaneous Provisions.

Sec. 28.90.010. Penalties for violations of law, regulations, and municipal ordinances.

  1. It is a misdemeanor for a person to violate a provision of this title unless the violation is by this title or other law declared to be a felony or an infraction.
  2. A person convicted of a misdemeanor for a violation of a provision of this title for which another penalty is not specifically provided is punishable by a fine of not more than $500, or by imprisonment for not more than 90 days, or by both. In addition, the privilege to drive or the registration of vehicles may be suspended or revoked.
  3. Unless otherwise specified by law a person convicted of a violation of a regulation adopted under this title, or a municipal ordinance regulating vehicles or traffic when the municipal ordinance does not correspond to a provision of this title, is guilty of an infraction and is punishable by a fine not to exceed $300.
  4. An infraction, as provided for in (c) of this section, is not considered a criminal offense and may not result in imprisonment, nor is a fine imposed for the commission of an infraction considered a penal or criminal punishment; nor may the commission of a single infraction result in the loss of a driver’s license or privilege to drive in this state except as may result from the accumulation of points under AS 28.15.221 28.15.261 , or the registration of vehicles; nor does a person cited with an infraction have a right to trial by jury or to court-appointed counsel.
  5. [Repealed, § 5 ch 85 SLA 1987.]

History. (§ 50-1-8 ACLA 1949; am § 12 ch 241 SLA 1976; am §§ 22, 23 ch 144 SLA 1977; am § 5 ch 85 SLA 1987)

Revisor’s notes. —

Formerly AS 28.35.230 . Renumbered as AS 28.40.050 in 1984 and renumbered again in 2006.

Notes to Decisions

This section governs the penalties for violations of this title, and creates three categories of traffic offenses: felonies, misdemeanors and infractions. State v. Clayton, 584 P.2d 1111 (Alaska 1978).

Violations of AS 28.35.050(a) are punishable under this section. Drahosh v. State, 442 P.2d 44 (Alaska 1968).

Prerequisite to suspension of license or privilege to drive. —

A driver’s license or privilege to drive cannot properly be suspended unless the driver was in fact licensed or otherwise actually privileged to drive a motor vehicle within the state. Roberts v. State, 700 P.2d 815 (Alaska Ct. App. 1985).

Generic penalty provision. —

Subsection (b) is not a penalty provision dealing specifically with the offense of driving while license suspended; rather it is a generic penalty provision, broadly applicable to violations of all Title 28 provisions for which the specific penalties are given. Roberts v. State, 700 P.2d 815 (Alaska Ct. App. 1985).

Meaning of “law” in subsection (c). —

The term “law,” as used in subsection (c) of this section, refers to statutory enactments of the Alaska legislature and cannot be read to include the provisions of municipal ordinances. Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

Nature of “correspondence” between ordinance and statute required by subsection (c). —

The requirement of correspondence stated in subsection (c) of this section calls for a level of similarity between a municipal ordinance and a provision of AS 28 that would make the ordinance a functional equivalent of its statutory counterpart. Anderson v. Municipality of Anchorage, 645 P.2d 205 (Alaska Ct. App. 1982).

The legislature’s purpose in enacting subsection (d) was to eliminate the criminal stigma from minor traffic offenses while keeping the enforcement of such offenses within the criminal system’s procedures. State v. Clayton, 584 P.2d 1111 (Alaska 1978).

A prosecution for a traffic infraction is a quasi-criminal proceeding to which certain criminal procedures including the issuance of warrants are applicable. State v. Clayton, 584 P.2d 1111 (Alaska 1978).

Although the language in subsection (d) with regard to an infraction not being considered a criminal offense nor a fine therefor a criminal punishment indicates that the legislature did not intend to make minor traffic offenses criminal offenses, it does not follow that the legislature by labeling infractions “noncriminal” meant that they are civil in nature and thus that criminal procedures are not available for the enforcement of infractions. State v. Clayton, 584 P.2d 1111 (Alaska 1978).

Notwithstanding the legislative labeling of a traffic infraction a noncriminal offense by this section, it retains many criminal terms, such as “convicted,” “violation,” “guilty,” “punishable by a fine.” State v. Clayton, 584 P.2d 1111 (Alaska 1978).

An infraction is not an offense for double jeopardy purposes. Carlson v. State, 676 P.2d 603 (Alaska Ct. App. 1984).

Jury trial. —

AS 28.10.105(a) (now repealed) and the other registration statutes in pari materia do not specify a violation of the registration statutes as an infraction, and thus under this section, such a violation is a misdemeanor punishable by up to 90 days’ imprisonment, and entitling a defendant to a jury trial, denial of which right constitutes prejudicial error requiring a new trial. Epperly v. State, 648 P.2d 609 (Alaska Ct. App. 1982).

Traditional use of criminal process not affected. —

In the absence of express contrary declaration, the legislature did not intend by the enactment of subsection (d) to affect the traditional use of the criminal process for enforcement of traffic infractions. State v. Clayton, 584 P.2d 1111 (Alaska 1978).

This section makes no changes in the traditional mode of proceeding in criminal matters with the exception of its declaration that a person cited with an infraction does not have a right to trial by jury or to court-appointed counsel. The action is brought in the name of the state; it is commenced by the filing of a complaint by a law enforcement official; it is prosecuted by the district attorney. The exceptions appear to merely codify existing constitutional law. State v. Clayton, 584 P.2d 1111 (Alaska 1978).

Applied in

Manderson v. State, 655 P.2d 1320 (Alaska Ct. App. 1983).

Stated in

Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982).

Quoted in

State v. Dutch Harbor Seafoods, Ltd., 965 P.2d 738 (Alaska 1998); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Cited in

Lowry v. State, 655 P.2d 780 (Alaska Ct. App. 1982); Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002); Walsh v. State, 134 P.3d 366 (Alaska Ct. App. 2006).

Collateral references. —

7A Am. Jur. 2d, Automobiles and Highway Traffic, §§ 263-267.

61A C.J.S., Motor Vehicles, §§ 1624-1626.

Sec. 28.90.020. Breath test result validity.

Except for an offense under AS 28.35.280 , if an offense described under this title requires that a chemical test of a person’s breath produce a particular result, and the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument’s working tolerance.

History. (§ 17 ch 143 SLA 1996)

Revisor’s notes. —

Formerly AS 28.40.060 . Renumbered in 2006.

Notes to Decisions

Administrative license revocation. —

AS 28.35.165(c) does not violate due process by allowing a hearing officer to rely solely on the result of a properly administered breath test; the legislature's enactment of AS 28.90.020 clarifies that a testing machine's "working tolerance" is not to be considered as affecting the result under AS 28.35.030(a)(2) , and judicial interpretations ultimately define the offense under AS 28.35.030(a)(2) as dependent solely on the result of a properly administered chemical test. Barnebey v. Dep't of Admin., DMV, 473 P.3d 682 (Alaska 2020) (memorandum decision).

Effect of section on definition of driving while intoxicated. —

The practical effect of this section is to modify the definition of driving while intoxicated under AS 28.35.030(a)(2) ; the fact that a driver’s true blood-alcohol or breath-alcohol level may be slightly lower, due to intoximeter’s acknowledged margin of error, is no longer relevant to guilt under AS 28.35.030(a)(2) . Mangiapane v. Municipality of Anchorage, 974 P.2d 427 (Alaska Ct. App. 1999).

Working tolerance of intoximeter. —

In light of the history of the intoximeter and its established working tolerance, the discussion in Haynes v. State, Dep’t of Public Safety, 865 P.2d 753 (Alaska 1993), and the language of this section, it is clear that the legislature implicitly decided that a .01 percent working tolerance was “tolerably inaccurate,” and, therefore, irrelevant to the driver’s guilt under AS 28.35.030(a)(2) , and not in violation of state or federal due process rights. Bushnell v. State, 5 P.3d 889 (Alaska Ct. App. 2000).

Expert testimony on margin of error. —

Defendant's trial attorney was not incompetent for failing to present an expert witness to testify about the breath test machine's inherent .005 percent margin of error because defendant's application for post-conviction relief contained no offer of proof regarding what the envisioned expert witness would have said about the machine's margin of error; and his application did not contain any explanation as to how expert testimony about the machine's margin of error would have been relevant given the fact that defendant's guilt of the driving under the influence charge hinged on his breath test result, not on his actual blood alcohol level. Weston v. State, — P.3d — (Alaska Ct. App. Oct. 28, 2020) (memorandum decision).

Cited in

McCarthy v. State, 285 P.3d 285 (Alaska Ct. App. 2012); Lemieux v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Sec. 28.90.030. Fines for offenses committed within highway work zones and traffic safety corridors doubled.

  1. Whenever a person violates a provision of this title or a regulation adopted under the authority of this title within a highway work zone or traffic safety corridor, notwithstanding the amount of the fine or the maximum fine set under this title, the fine, or maximum fine, is double the amount provided in this title.
  2. Fines imposed and collected under this section for offenses that are committed in a traffic safety corridor shall be separately accounted for under AS 37.05.142 .
  3. Notwithstanding the requirements of (b) of this section and AS 37.05.142 , the Alaska Court System shall deposit fines collected under this section for offenses committed in a traffic safety corridor in the general fund if the fine is collected at a court location where separate accounting for traffic safety corridor fines is not achievable.
  4. The administrative director of the Alaska Court System shall notify the Department of Administration
    1. of court locations where separate accounting under (b) of this section is not achievable; and
    2. when a court location identified under (1) of this subsection becomes able to separately account for fines under (b) of this section.

History. (§ 2 ch 64 SLA 1998; am §§ 4, 5 ch 45 SLA 2006)

Revisor’s notes. —

Formerly AS 28.40.070 . Renumbered in 2006.

Legislative history reports. —

For governor’s transmittal letter for ch. 45, SLA 2006 (SB 261), relating to the designation of traffic safety corridors, see 2006 Senate Journal 2037 — 2038.

Notes to Decisions

Application. —

Defendant was charged with DUI in a traffic safety corridor. On conviction, the occurrence in the safety corridor doubles the fine which is imposed in other DUIs. Defendant, who had a prior DUI conviction, rejected an offered plea agreement which included his admission that he was in a safety corridor, stating that he did not want to make that admission. The plea agreement proceeding continued and the defendant pled guilty without being specifically asked if he admitted the safety corridor element, and without being told of his right to a jury trial on that issue. Because defendant never admitted that he was in a safety corridor, nor did he waive his right to a jury trial on the safety corridor issue, the plea agreement was invalid. Johnnie v. State, — P.3d — (Alaska Ct. App. Dec. 6, 2013) (memorandum decision).

Defendant’s double fine for driving under the influence in a traffic safety corridor was vacated because, inter alia, when the legislature extended double fines to such corridors, the legislature did not change prior legislative intent to limit this penalty to offenses amenable to disposition without court appearance. Fyfe v. State, 334 P.3d 183 (Alaska Ct. App. 2014), aff'd, 370 P.3d 1092 (Alaska 2016).

Trial court erred in imposing double the statutory minimum fine after defendant was convicted of driving under the influence of alcohol in a traffic safety corridor because the statute at issue applied to both criminal and non-criminal offenses, the phrase “the fine, or maximum fine” referred to set fines and maximum fines, but not minimum fines, the words “maximum fine” were not a redundancy, the legislature doubled fines in cases in which a judge had no discretion about the amount—those involving set fines—doubled the maximum in cases in which the judge's discretion to increase the fine was bounded by statute, and left alone cases in which the judge's discretion to increase the fine was already unrestricted—those involving minimum fines. State v. Fyfe, 370 P.3d 1092 (Alaska 2016).

Sec. 28.90.035. Prohibition of damage claims regarding highway work zone signs.

A claim for damages may not be made against the state or its officers, employees, or agents for an act or omission relating to the designation of and erection of signs regarding a highway work zone.

History. (§ 6 ch 45 SLA 2006)

Revisor’s notes. —

Enacted as AS 28.40.072 and renumbered in 2006.

Sec. 28.90.040. Administration of highway safety program.

The governor may contract and do all other things necessary on behalf of this state under 23 U.S.C. 401 — 404 (Highway Safety Act of 1966), and may cooperate with interested persons and agencies to effectuate the purposes of that Act. Contracting under this section is governed by AS 36.30 (State Procurement Code). The governor may designate a person to serve as the governor’s highway safety representative; however, the governor is the official in this state having the ultimate responsibility for dealing with the federal government with respect to programs and activities under the Federal Highway Safety Act of 1966. The governor shall coordinate the activities relating to highway safety of state departments, agencies, and subdivisions.

History. (§ 1 ch 19 SLA 1967; am § 2 ch 3 SLA 1982; am § 1 ch 97 SLA 1986; am § 53 ch 106 SLA 1986)

Revisor’s notes. —

Formerly AS 44.19.025 . Renumbered in 1980 as AS 44.99.001 and in 2004 as AS 28.40.075 . Renumbered again in 2006.

Article 2. General Provisions.

Sec. 28.90.990. Definitions for title.

  1. Unless otherwise specifically defined or unless the context otherwise requires, in this title and in regulations adopted under this title
    1. “cancel” means to annul or terminate, by formal action of the department, a certification, registration, license, permit, or privilege issued or allowed under this title or regulations adopted under this title, because of an error or defect in the document issued or the application for issuance or because the person holding the document is no longer entitled to it;
    2. “commercial motor carrier” means a person that provides transportation for compensation, or that provides a vehicle to a person or entity that provides transportation for compensation, including the person’s agents, officers, representatives, employees responsible for hiring, supervising, training, assigning, or dispatching of drivers, and employees overseeing the safety, installation, inspection, and maintenance of motor vehicle equipment and accessories.
    3. “commercial motor vehicle” means a motor vehicle or a combination of a motor vehicle and one or more other vehicles
      1. used to transport passengers or property;
      2. used upon a land highway or vehicular way; and
      3. that
        1. has a gross vehicle weight rating or gross combination weight rating greater than 26,000 pounds;
        2. is designed to transport more than 15 passengers, including the driver; or
        3. is used in the transportation of materials found by the United States Secretary of Transportation to be hazardous for purposes of  49 U.S.C. 5101 — 5127;
      4. except that the following vehicles meeting the criteria in (A) — (C) of this paragraph are not commercial vehicles:
        1. emergency or fire equipment that is necessary to the preservation of life or property;
        2. farm vehicles that are controlled and operated by a farmer; used to transport agricultural products, farm machinery, or farm supplies to or from that farmer’s farm; not used in the operations of a common or contract motor carrier; and used within 150 miles of the farmer’s farm; and
        3. recreational vehicles used exclusively for purposes other than commercial purposes;
    4. “commercial purposes” means activities for which a person receives direct monetary compensation or activities for which a person receives no direct monetary compensation but that are incidental to and done in furtherance of the person’s business;
    5. “commissioner” means the commissioner of administration;
    6. “criminal justice information” has the meaning given in  AS 12.62.900 ;
    7. “custom collector vehicle” means a vehicle whose body and frame were manufactured before 1949 or a replica of a vehicle whose body and frame were manufactured before 1949 and that has been modified for safe road use; in this paragraph, “modified” includes a material alteration of the drive-train, suspension, brake system, or dimensions of the body;
    8. “department” means the Department of Administration;
    9. “driver” means a person who drives or is in actual physical control of a vehicle;
    10. “driver’s license” or “license,” when used in relation to driver licensing, means a license, provisional license, or permit to drive a motor vehicle, or the privilege to drive or to obtain a license to drive a motor vehicle, under the laws of this state whether or not a person holds a valid license issued in this or another jurisdiction;
    11. “driver’s license that is federally compliant” means a driver’s license issued by the state that has been certified by the United States Department of Homeland Security to be in compliance with the requirements of  P.L. 109-13, Division B (REAL ID Act of 2005).
    12. “electric personal motor vehicle” means an electric personal assistive mobility device that is a self-balancing vehicle with two nontandem wheels, designed to transport only one person, has an electric propulsion system, and has a maximum speed of not more than 15 miles an hour;
    13. “gross combination weight rating” means the value specified by the manufacturer as the loaded weight of a combination vehicle, except that if a value has not been specified by the manufacturer, the gross combination weight rating is determined by adding the gross vehicle weight rating of the power unit and the total weight of the towed unit and the load on the towed unit;
    14. “gross vehicle weight rating” means the value specified by the manufacturer as the loaded weight of a single vehicle;
    15. “highway” means the entire width between the boundary lines of every way that is publicly maintained when a part of it is open to the public for purposes of vehicular travel, including but not limited to every street and the Alaska state marine highway system but not vehicular ways or areas;
    16. “highway work zone” means an area identified by advance signing where road construction, repair, or maintenance work is being done on or adjacent to a highway, whether or not work is actually being done at that time;
    17. “low-speed vehicle” means a motor vehicle that has four wheels, that was manufactured to be capable of propelling itself and achieving a minimum speed of 20 miles an hour and a maximum speed of 25 miles an hour, that has not been modified to have a maximum speed greater than 25 miles an hour, and that meets weight, equipment, and safety standards set by the department by regulation; weight, equipment, and safety standards shall be consistent with, and may not exceed, federal standards;
    18. “motor vehicle” means a vehicle which is self-propelled except a vehicle moved by human or animal power;
    19. “motorcycle” means a vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground; the term does not include a tractor;
    20. “motor-driven cycle” means a motorcycle, motor scooter, motorized bicycle, or similar conveyance with a motor attached and having an engine with 50 or less cubic centimeters of displacement;
    21. “official traffic-control device” means a sign, signal, marking, or other device not inconsistent with this title, placed or erected by authority of a state or municipal agency or official having jurisdiction, for the purpose of traffic regulating, warning, and guiding;
    22. “owner” means a person, other than a lienholder, having the property in or title to a vehicle, including but not limited to a person entitled to the use and possession of a vehicle subject to a security interest in another person, but exclusive of a lessee under a lease not intended as security;
    23. “physical injury” has the meaning given in  AS 11.81.900 ;
    24. “revoke” means the termination, by formal action of the Department of Public Safety or the Department of Administration or by formal action of a court, of a certification, registration, license, permit, or privilege issued or allowed under this title or regulations adopted under this title; the certification, registration, license, permit, or privilege may not be reissued, renewed, or restored during the time for which revoked; however, after that time, an application for a new certificate, registration, license, permit, or privilege may be made;
    25. “roadway” means that portion of a highway designed or ordinarily used for vehicular travel, exclusive of the sidewalk, berm, or shoulder, even though the sidewalk, berm, or shoulder is used by persons riding bicycles or other human powered vehicles; and in the event that a highway includes two or more separate roadways, the term refers to each roadway separately but not to all such roadways collectively;
    26. “serious physical injury” has the meaning given in  AS 11.81.900(b) ;
    27. “suspend” means the temporary withdrawal, by formal action of the Department of Public Safety or the Department of Administration or by formal action of a court, of a certificate, registration, license, permit, or privilege issued or allowed under this title or regulations adopted under this title, effective for a period of time which must be specifically designated by the appropriate department or by the court;
    28. “traffic” means pedestrians, ridden or herded animals, vehicles, and other conveyances either singly or together while using a highway or vehicular way or area that is open to public use for purposes of travel;
    29. “traffic safety corridor” means a portion of a highway on which signs have been erected designating that portion as a traffic safety corridor under  AS 19.10.075 ;
    30. “underinsured motor vehicle” means a motor vehicle licensed for highway use with respect to ownership, operation, maintenance, or use for which there is a bodily injury or property damage insurance policy or a bond applicable at the time of an accident and the amount of insurance or bond is less than the amount the covered person is legally entitled to recover for bodily injury or property damage from the owner or operator of the underinsured motor vehicle;
    31. “vehicle” means a device in, upon, or by which a person or property may be transported or drawn upon or immediately over a highway or vehicular way or area; “vehicle” does not include
      1. devices used exclusively upon stationary rails or tracks;
      2. mobile homes;
    32. “vehicular way or area” means a way, path, or area, other than a highway or private property, that is designated by official traffic control devices or customary usage and that is open to the public for purposes of pedestrian or vehicular travel, and which way or area may be restricted in use to pedestrians, bicycles, or other specific types of vehicles as determined by the Department of Public Safety or other agency having jurisdiction over the way, path, or area.
  2. The commissioner of public safety or the commissioner of administration, as appropriate, shall adopt regulations to define other terms that are used in this title and in regulations adopted under this title.

History. (§ 50-1-1 ACLA 1949; am § 3 ch 81 SLA 1973; am §§ 13, 14 ch 241 SLA 1976; am § 1 ch 135 SLA 1977; am § 14 ch 70 SLA 1984; am § 1 ch 13 SLA 1985; am § 88 ch 74 SLA 1985; am § 2 ch 130 SLA 1988; am § 4 ch 53 SLA 1990; am § 33 ch 119 SLA 1990; am § 9 ch 168 SLA 1990; am § 5 ch 8 SLA 1993; am § 63 ch 63 SLA 1993; am § 16 ch 55 SLA 1994; am §§ 27, 28 ch 6 FSSLA 1996; am § 114 ch 81 SLA 1997; am E.O. No. 99 §§ 65 — 70 (1997); am § 3 ch 64 SLA 1998; am § 11 ch 93 SLA 1998; am § 18 ch 33 SLA 1999; am § 4 ch 142 SLA 2002; am § 7 ch 45 SLA 2006; am § 5 ch 95 SLA 2006; am § 30 ch 23 SLA 2007; am § 2 ch 99 SLA 2008; am § 14 ch 80 SLA 2014; am § 16 ch 8 SLA 2017)

Revisor’s notes. —

Formerly AS 28.35.260 . Renumbered in 1984 as AS 28.40.100 and renumbered again in 2006. Subsection (a) was reorganized in 1984, 1989, 1990, 1993, 1994, 1998, 2002, 2006, 2007, 2008, 2014, and 2018 to retain alphabetical order.

Effect of amendments. —

The 2017 amendment, effective January 1, 2019, added (a)(32) [now (a)(11)].

Editor’s notes. —

Section 87, ch. 63, SLA 1993 provides “[i]f any section of this bill is found to violate the single subject rule it is severed from the rest of the bill.”

Notes to Decisions

Steering a towed vehicle. —

Despite the failure of former paragraph (a)(7) (now (a)(8)) to specifically mention towed vehicles, a person who steers a towed vehicle is “driving” within the meaning of that paragraph and AS 28.35.030(a) . Williams v. State, 884 P.2d 167 (Alaska Ct. App. 1994), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Evidence sufficient to show defendant was “driver”. —

A motor vehicle does not cease to be a motor vehicle whenever it cannot be started within the meaning of paragraph (a)(12) (now (a)(14)). Williams v. State, 884 P.2d 167 (Alaska Ct. App. 1994), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

A towed snowmobile is a motor vehicle because steering such a vehicle, even if only partially, involves exercising control over the vehicle, and it amounts to operating the vehicle; where a motorist was operating a towed snowmobile while intoxicated, and refused to submit to a chemical breath test under the implied consent law, his driver’s license was properly revoked. Conkey v. Dep't of Admin., 113 P.3d 1235 (Alaska 2005).

There was sufficient evidence that defendant was driving or operating a motor vehicle based on testimony that defendant was seen entering into and starting the truck and that she admitted that she started the truck. She was in actual physical control of the truck when she got into the truck and started the engine; thus, the evidence was sufficient to allow a reasonable juror to conclude that she was operating the truck. Hicks v. State, — P.3d — (Alaska Ct. App. Jan. 16, 2013), rev'd, 341 P.3d 1134 (Alaska 2015) (memorandum decision).

An all terrain three-wheeler is a motor vehicle for which a driver’s license is required. State v. Benolken, 838 P.2d 280 (Alaska Ct. App. 1992).

Sufficiency of evidence —

Defendant was properly convicted of driving while license revoked and driving in violation of a restricted license because while someone else might have driven the car to an apartment complex, a witness observed defendant drive it to a different place in an alley, defendant did not question the nature of the alley, and a police detective testified that the alley was open to the public. Lundy v. State, — P.3d — (Alaska Ct. App. July 27, 2016) (memorandum decision).

Defendant was in a vehicle for purposes of the statute because he acknowledged that he was behind the wheel of an automobile when he was stopped; the State presented sufficient evidence at trial that defendant was driving a vehicle on a highway at the time he was stopped. Selby v. State, — P.3d — (Alaska Ct. App. Oct. 21, 2020).

Applied in

Conner v. State, 696 P.2d 680 (Alaska Ct. App. 1985); Caulkins v. State, Dep't of Pub. Safety, 743 P.2d 366 (Alaska 1987).

Quoted in

Burton v. State Farm Fire & Casualty Co., 796 P.2d 1361 (Alaska 1990); Fielding v. State, 842 P.2d 614 (Alaska Ct. App. 1992); Mezak v. State, 877 P.2d 1307 (Alaska Ct. App. 1994); State v. Simpson, 53 P.3d 165 (Alaska Ct. App. 2002).

Stated in

Kingsley v. State, 11 P.3d 1001 (Alaska Ct. App. 2000).

Cited in

Francis v. Municipality of Anchorage, 641 P.2d 226 (Alaska Ct. App. 1982); Uhde v. State, 654 P.2d 1323 (Alaska Ct. App. 1982); State v. Robertson, 749 P.2d 902 (Alaska Ct. App. 1988); State v. Straetz, 758 P.2d 133 (Alaska Ct. App. 1988); Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998); Progressive Cas. Ins. Co. v. Skin, 211 P.3d 1093 (Alaska 2009); Haar v. State, 349 P.3d 173 (Alaska 2015); Allstate Ins. Co. v. Harbour, 491 P.3d 374 (Alaska 2021).

Sec. 28.90.995. Short title.

This title and the regulations adopted under it may be cited as the Alaska Uniform Vehicle Code.

History. (§ 14 ch 241 SLA 1976)

Revisor’s notes. —

Formerly AS 28.35.270 . Renumbered in 1984 as AS 28.40.110 and renumbered again in 2006.

Notes to Decisions

Cited in

Progressive Ins. Co. v. Simmons, 953 P.2d 510 (Alaska 1998).