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, 1990, 1995, 2008, and 2016 to make other, minor word changes.

For a review of the sources of some of Alaska law, see Brown, The Sources of the Alaska and Oregon Codes (pts. 1 and 2), 2 UCLA — Alaska L. Rev. 15, 87 (1972-1973).

Collateral references. —

Isidore Silver, Police Civil Liability (Matthew Bender).

Cook and Sobieski, Civil Rights Actions (Matthew Bender).

Rudstein, Erlinder, and Thomas, Criminal Constitutional Law (Matthew Bender).

Erickson, George, and Tymkovich, United States Supreme Court Cases and Comments: Criminal Law and Procedure (Matthew Bender).

Thomas P. Mauriello, Criminal Investigation Handbook (Matthew Bender).

Chapter 05. Jurisdiction.

Sec. 12.05.010. Crime commenced outside state but consummated inside.

When the commission of a crime commenced outside the state is consummated inside the state, the defendant is liable to punishment in this state even though out of the state at the time of the commission of the crime charged, if the defendant consummated the crime through the intervention of an innocent or guilty agent, or by other means proceeding directly from the defendant.

History. (§ 1.06 ch 34 SLA 1962)

Legislative history reports. —

For report on original bill, see 1962 House Journal, pp. 224-231.

Notes to Decisions

Crime consummated where prohibited result occurred. —

If the prohibited result occurs in a place other than the place of the conduct which occasioned it, the location of the result may fairly be deemed the place where the crime is “consummated.” Wheat v. State, 734 P.2d 1007 (Alaska Ct. App. 1987).

Custodial interference. —

The state of Alaska is vested with authority to convict an individual for the crime of custodial interference when all the acts constituting the offense were committed outside of the state, since the location of the injurious result (Alaska) flowing from the out-of-state conduct is the place where the crime is “consummated” pursuant to this section. Wheat v. State, 734 P.2d 1007 (Alaska Ct. App. 1987).

Canadian territorial waters. —

Where a defendant’s criminal misconduct and the results of that misconduct occurred in Canadian territorial waters, this section did not create jurisdiction to prosecute the defendant in Alaska. State v. Jack, 67 P.3d 673 (Alaska Ct. App. 2003), rev'd, 125 P.3d 311 (Alaska 2005).

Cited in

Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989).

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 442 et seq.

Sec. 12.05.020. Offenses committed on aircraft or ferries and other watercraft owned or operated by the state.

A person may be prosecuted under the laws of this state for an offense committed on or against an aircraft owned or operated by the state or a ferry or other watercraft owned or operated by the state, even if the aircraft, ferry, or watercraft is in airspace or water outside the state when the offense is alleged to have occurred. This jurisdiction is in addition to that provided by AS 44.03 and any other jurisdictional basis expressed or implied in law.

History. (§ 1 ch 87 SLA 2002)

Sec. 12.05.030. Crimes involving minors committed outside state.

In addition to any other jurisdictional basis expressed or implied in law, a person may be prosecuted under the laws of this state for conduct occurring outside the state for a violation of

  1. AS 11.41.452 if the other person with whom the defendant communicated was in the state; or
  2. AS 11.61.116 if the minor whose image is published or distributed was in the state.

History. (§ 14 ch 20 SLA 2011)

Effective dates. —

Section 30, ch. 20, SLA 2011 makes this section effective July 1, 2011.

Chapter 10. Limitations of Actions.

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 247 et seq.

22 C.J.S., Criminal Law, § 250 et seq.

Sec. 12.10.010. General time limitations.

  1. Prosecution for the following offenses may be commenced at any time:
    1. murder;
    2. attempt, solicitation, or conspiracy to commit murder or hindering the prosecution of murder;
    3. felony sexual abuse of a minor;
    4. sexual assault that is an unclassified, class A, or class B felony or a violation of AS 11.41.425 (a)(2) — (4);
    5. a violation of AS 11.41.425 , 11.41.427 , 11.41.450 — 11.41.458 , AS 11.66.110 — 11.66.130 , or former AS 11.41.430 , when committed against a person who, at the time of the offense, was under 18 years of age;
    6. kidnapping;
    7. distribution of child pornography in violation of AS 11.61.125 ;
    8. sex trafficking in violation of AS 11.66.110 — 11.66.130 that is an unclassified, class A, or class B felony or that is committed against a person who, at the time of the offense, was under 20 years of age;
    9. human trafficking in violation of AS 11.41.360 or 11.41.365 .
  2. Except as otherwise provided by law or in (a) of this section, a person may not be prosecuted, tried, or punished for an offense unless the indictment is found or the information or complaint is instituted not later than
    1. 10 years after the commission of a felony offense in violation of AS 11.41.120 — 11.41.330 , 11.41.425(a)(1) , 11.41.425(a)(5) , 11.41.425(a)(6) , or 11.41.450 — 11.41.458 ; or
    2. five years after the commission of any other offense.

History. (§ 1.02 ch 34 SLA 1962; am § 1 ch 99 SLA 1962; am § 19 ch 79 SLA 1992; am § 2 ch 86 SLA 2001; am § 18 ch 24 SLA 2007; am § 15 ch 20 SLA 2011; am § 11 ch 43 SLA 2013)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2007 amendment, effective July 1, 2007, added paragraphs (a)(2) and (a)(6), and made related changes.

The 2011 amendment, effective July 1, 2011, in (a)(4), substituted “AS 11.41.425(a)(2) —(4)” for “AS 11.41.425(a)(2) or (3).”

The 2013 amendment, effective July 1, 2013, in (a), added (7), (8), and (9); rewrote (b)(1), which read, “10 years after the commission of a felony offense in violation of AS 11.41.120 — 11.41.370 , 11.41.425(a) , or 11.41.450 — 11.41.458 ; or”.

Editor’s notes. —

Section 36(b), ch. 24, SLA 2007, provides that the 2007 amendment of (a) of this section applies “to acts committed on or after July 1, 2007.”

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to this section apply to offenses committed on or after July 1, 2013.

Notes to Decisions

The statute of limitations is jurisdictional. Padie v. State, 557 P.2d 1138 (Alaska 1976).

It is to be construed in favor of the defendant. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Statute of limitations for manslaughter. —

While there is no statute of limitations in Alaska for the offense of murder, the crime of manslaughter is subject to a five-year statute of limitations. Padie v. State, 594 P.2d 50 (Alaska 1979).

Speedy trial. —

Defendant becomes formally accused for speedy trial purposes under the Alaska Constitution not just upon indictment or arrest but also when the State files an information charging the defendant with a crime because (1) the filing of an information marks the beginning of litigation against a defendant, (2) filing an information clearly manifests a prosecutor's decision to prosecute, and (3) the filing of an information is sufficient to toll the statute of limitations on a criminal charge. State v. Wright, 404 P.3d 166 (Alaska 2017).

Perjury charge held time-barred. —

Defendant’s perjury conviction was time-barred under this section and AS 12.10.020(a) , where the state had probable cause to believe that defendant had committed perjury on his medical license application at the time of an affidavit supporting a search warrant for his personnel file, but did not commence the prosecution within one year of the affidavit’s date. Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Defendant may not be convicted of time-barred lesser included offense. —

Just as a defendant may not be charged with a time-barred offense, he may not be convicted of it, even as a lesser offense included in one which is not time-barred. Padie v. State, 557 P.2d 1138 (Alaska 1976).

But jury may be instructed on elements of such offense. —

A criminal trial jury may be instructed on the elements of a lesser included offense when the statute of limitations has run on the lesser offense but not the charged offense. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Where defendant was charged with first degree murder and the statute of limitations had run on the lesser offense of manslaughter, while the jury should not be instructed that they might find defendant guilty of manslaughter, defendant was entitled to an instruction on the mitigating effects of passion and provocation, requiring the jury to acquit him if he presented such evidence in mitigation and the state did not negate it. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Theft by receiving. —

Because a criminal statute should not be construed as creating a continuing offense unless it plainly appears that the legislature intended to define the offense as a continuing course of conduct, where the defendant committed the offense of theft by receiving when he discovered that an antique rifle was most likely stolen, his motion to dismiss a prosecution commenced nine years later should have been granted. Saathoff v. State, 991 P.2d 1280 (Alaska Ct. App. 1999), aff'd, 29 P.3d 236 (Alaska 2001).

Promoting prostitution in the second-degree. —

The promoting prostitution in the second-degree count in defendant's indictment was not barred by the statute of limitations because a prosecution for a class B felony sex trafficking offense may be commenced at any time. Williams v. State, — P.3d — (Alaska Ct. App. May 13, 2020).

A statute of limitations can be waived if the trial court determines that the following prerequisites have been met: (1) The waiver is knowing, intelligent, and voluntary; (2) it is made for the defendant’s benefit and after consultation with counsel; and (3) the defendant’s waiver does not handicap his defense or contravene any other public policy reasons motivating the enactment of the statute. Padie v. State, 594 P.2d 50 (Alaska 1979).

Case-by-case analysis as to waivability issue. —

Although most courts have treated the waivability issue as dependent on whether a statute is treated as jurisdictional or as an affirmative defense, this arbitrary distinction should be abandoned in favor of a case-by-case analysis focusing on the language of the applicable statute of limitations and the public policies behind its enactment. Padie v. State, 594 P.2d 50 (Alaska 1979).

By seeking an instruction on an offense which is time-barred, defendant does not waive the defense of this section. Padie v. State, 557 P.2d 1138 (Alaska 1976).

Applied in

Coffey v. State, 585 P.2d 514 (Alaska 1978); Jensen v. State, 707 P.2d 940 (Alaska Ct. App. 1985); State v. Saathoff, 29 P.3d 236 (Alaska 2001).

Quoted in

State v. Creekpaum, 753 P.2d 1139 (Alaska 1988).

Stated in

Yarbor v. State, 546 P.2d 564 (Alaska 1976); State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984).

Cited in

Marks v. State, 496 P.2d 66 (Alaska 1972); P.H. v. State, 504 P.2d 837 (Alaska 1972); Linton v. State, 880 P.2d 123 (Alaska Ct. App. 1994); Catholic Bishop of N. Alaska v. Does, 141 P.3d 719 (Alaska 2006); Weber v. State, 166 P.3d 899 (Alaska 2007).

Sec. 12.10.020. Specific time limitation.

  1. Even if the general time limitation has expired, a prosecution for any offense that includes a material element of fraud or breach of fiduciary obligation may be commenced within one year after the discovery of the offense by an aggrieved party or by a person who has legal capacity to represent an aggrieved party or a legal duty to report the offense and who is not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.
  2. Even if the general time limitation has expired, a prosecution for any offense based upon misconduct in office by a public officer or employee may be commenced within one year after discovery of the offense by a person having a duty to report such offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.
  3. [Repealed, § 3 ch 86 SLA 2001.]

History. (§ 1.03 ch 34 SLA 1962; am § 7 ch 78 SLA 1983; am § 3 ch 39 SLA 1985; am § 20 ch 79 SLA 1992; am § 10 ch 81 SLA 1998; am § 3 ch 86 SLA 2001)

Notes to Decisions

Extension of limitation period constitutional. —

Extension of the statute of limitations for the offense of sexual abuse of a minor, before the original period of limitations has expired, does not violate the federal or Alaska constitution. State v. Creekpaum, 753 P.2d 1139 (Alaska 1988).

Perjury charge held time-barred. —

Defendant’s perjury conviction was time-barred under AS 12.10.010 and this section, where the state had probable cause to believe that defendant had committed perjury on his medical license application at the time of an affidavit supporting a search warrant for his personnel file, but did not commence the prosecution within one year of the affidavit’s date. Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Applied in

State, Dep't of Nat. Res. v. Transamerica Premier Ins. Co., 856 P.2d 766 (Alaska 1993).

Stated in

State v. Brinkley, 681 P.2d 351 (Alaska Ct. App. 1984); Linton v. State, 880 P.2d 123 (Alaska Ct. App. 1994).

Sec. 12.10.030. When period of limitation runs.

  1. An offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.
  2. A prosecution is commenced either when an indictment is found or when a warrant is issued, provided that such warrant is executed without unreasonable delay.

History. (§ 1.04 ch 34 SLA 1962)

Notes to Decisions

Warrant requirements. —

Subsection (b) and AS 12.10.040(b) do not require that a warrant be based on an indictment, information, or other charging document before the statute of limitations is tolled by its issuance. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Theft by receiving. —

Because a criminal statute should not be construed as creating a continuing offense unless it plainly appears that the legislature intended to define the offense as a continuing course of conduct, where the defendant committed the offense of theft by receiving when he discovered that an antique rifle was most likely stolen, his motion to dismiss a prosecution commenced nine years later should have been granted. Saathoff v. State, 991 P.2d 1280 (Alaska Ct. App. 1999), aff'd, 29 P.3d 236 (Alaska 2001).

Theft by receiving under AS 11.46.190(a) is not a continuing crime, allowing the tolling of the statute of limitations. State v. Saathoff, 29 P.3d 236 (Alaska 2001).

Unlawful employment benefits comprising series of thefts. —

Where defendant was convicted of theft arising out of unlawful claim of unemployment benefits for two years, trial court properly sentenced defendant as a second offender because the series of thefts met the monetary requirement for felony theft long before the 10-year period expired. McDole v. State, 121 P.3d 166 (Alaska Ct. App. 2005).

Reasonable delay found. —

Where defendant did not appear for sentencing on felony convictions and the trial court issued a bench warrant for his failure to appear, yet not until six years, 10 months, and four days later was defendant indicted for his failure to appear, the issuance of the warrant constituted a pending prosecution under AS 12.10.040(b) which, when combined with the finding of the trial court that under subsection (b) there was a reasonable basis for delay in executing the warrant to toll the statute of limitations, was sufficient to bring prosecution of the offense within the five-year period allowed by the statute of limitations. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Cited in

Gottlieb v. State, 175 P.3d 664 (Alaska Ct. App. 2008).

Collateral references. —

Issuance or service of state-court arrest warrant, summons, citation, or other process as tolling criminal statute of limitations. 71 ALR4th 554.

Sec. 12.10.040. When period of limitation does not run.

  1. The period of limitation does not run during any time when the accused, with a purpose to avoid detection, apprehension, or prosecution, is outside the state or is absent from the accused’s usual place of abode within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.
  2. The period of limitation does not run during any time when a prosecution against the accused for the same conduct is pending in this state.

History. (§ 1.05 ch 34 SLA 1962)

Notes to Decisions

Warrant requirements. —

AS 12.10.030(b) and subsection (b) do not require that a warrant be based on an indictment, information, or other charging document before the statute of limitations is tolled by its issuance. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Pending prosecution found. —

Where defendant did not appear for sentencing on felony convictions and the trial court issued a bench warrant for his failure to appear, yet not until six years, 10 months, and four days later was defendant indicted for his failure to appear, the issuance of the warrant constituted a pending prosecution under subsection (b) which, when combined with the finding of the trial court that under AS 12.10.030(b) there was a reasonable basis for delay in executing the warrant to toll the statute of limitations, was sufficient to bring prosecution of the offense within the five-year period allowed by the statute of limitations. Shaw v. State, 634 P.2d 381 (Alaska Ct. App. 1981).

Collateral references. —

Necessity of alleging in indictment or information limitation-tolling facts. 52 ALR3d 922.

Chapter 15. Parties.

[Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 11.16.]

Chapter 20. Bars to Actions.

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 181 et seq.

22 C.J.S., Criminal Law, § 265 et seq.

Sec. 12.20.010. Conviction or acquittal elsewhere as bar. [Repealed, § 40 ch 75 SLA 2008.]

Editor’s notes. —

Section 43(a), ch. 75, SLA 2008 provides that the 2008 repeal of this section “[applies] to an offense occurring on or after July 1, 2008.”

Section 44, ch. 75, SLA 2008 explicitly declares that § 40, ch. 75, SLA 2008, repealing this section, is subject to severability as authorized by AS 01.10.030 .

Sec. 12.20.020. When acquittal or dismissal is not a bar.

If the defendant is acquitted on the ground of a variance between the charge and the proof, or the charge is dismissed upon an objection to its form or substance, or discharged for want of prosecution, without a judgment of acquittal or in bar of another prosecution, it is not an acquittal of the crime and does not bar a subsequent prosecution for the same crime.

History. (§ 1.12 ch 34 SLA 1962)

Cross references. —

For related court rule, see Alaska Rule of Criminal Procedure 43.

Notes to Decisions

Not applicable. —

In a case where defendant’s kidnapping conviction was overturned, and defendant was sentenced on remand to an assault charge that was “dismissed” for double jeopardy purposes after a verdict, this section and AS 12.20.050 did not bar such action because the dismissal was actually a merger. Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005).

Applied in

Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003).

Sec. 12.20.030. When acquittal is a bar.

When the defendant is acquitted on the merits, the defendant is acquitted of the same crime, notwithstanding any defect in form or substance in the charge, information, or complaint on which the trial was had.

History. (§ 1.13 ch 34 SLA 1962)

Sec. 12.20.040. When conviction or acquittal is a bar to other offenses.

When the defendant is convicted or acquitted of a crime consisting of different degrees, the conviction or acquittal is a bar to another prosecution for the crime charged in the former or for any inferior degree of that crime, or for an attempt to commit that crime, or for an offense necessarily included in the crime of which the defendant might have been convicted under the information, indictment, or complaint.

History. (§ 1.14 ch 34 SLA 1962)

Notes to Decisions

Origin. —

This section was taken originally from the laws of Oregon. United States v. Farwell, 76 F. Supp. 35, 11 Alaska 507 (D. Alaska 1948), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (U.S. 1970).

This section only prohibits successive prosecutions. Mead v. State, 489 P.2d 738 (Alaska 1971).

But it does not prohibit multiple convictions in the same prosecution. Mead v. State, 489 P.2d 738 (Alaska 1971).

Retrial not barred. —

Trial court did not err by allowing the jury at defendant's first trial to return verdicts on the assault and theft charges after it was unable to reach a verdict on the first-degree robbery charge because theft was not a lesser-included offense of robbery and, under the court's decision in the Hughes case, after the trial court declared the jury hung as to the robbery count, it was proper to allow the jury to continue deliberating on the assault count and return a verdict on that crime. Because the trial court did not enter judgment against defendant until all of the charges were resolved, retrial on the greater offense of robbery was not barred by the double jeopardy clause. Dere v. State, 444 P.3d 204 (Alaska Ct. App. 2019).

Acquittal or conviction of violation of a municipal ordinance does not bar prosecution by the state for the same act. United States v. Farwell, 76 F. Supp. 35, 11 Alaska 507 (D. Alaska 1948), disapproved, Waller v. Florida, 397 U.S. 387, 90 S. Ct. 1184, 25 L. Ed. 2d 435 (U.S. 1970).

Effect of reversal on appeal. —

By appealing, the accused waives the right to thereafter plead once in jeopardy when he has obtained a reversal of the judgment even as to that part of it which acquitted him of the higher while convicting him of the lower offense. When, at his own request, he has obtained a new trial, he must take the burden with the benefit and go back for a new trial of the whole case. United States v. Frank, 8 Alaska 436 (D. Alaska 1933).

The defendant could not avail himself of the provision of this section, for, by appealing and asking for the reversal of his conviction of murder in the second degree, he waived the right to avail himself of the former acquittal of the greater offense, murder in the first degree. United States v. Frank, 8 Alaska 436 (D. Alaska 1933).

Question of law or fact on plea of former acquittal. —

If the defendant succeeds in offering a plea of former acquittal, which the court will accept as sufficient in form, an issue of fact will arise thereby, which must be submitted to a jury; but the question of former jeopardy is so much a question of law that a verdict of the jury must in any case be dependent upon the instructions of the court. United States v. Libby, McNeill & Libby, 7 Alaska 356 (D. Alaska 1925).

Sec. 12.20.050. Dismissal as bar.

  1. It is a bar to another prosecution for the same crime if the crime is a misdemeanor, but it is not a bar if the crime charged is a felony when a person is
    1. held to answer to the grand jury and the court dismisses the charge before the case is presented to the grand jury upon the motion of the prosecuting attorney;
    2. held to answer to the grand jury and the court dismisses the charge because the indictment is not found against the person at the next session of the grand jury; or
    3. indicted for a crime and the indictment is dismissed because the trial is not held within a reasonable period of time, there is not good cause shown for the delay, and the delay was not upon the application of the defendant or with the defendant’s consent.
  2. Unless the court directs a judgment of acquittal to be entered, it is not a bar to another action for the same crime if the court orders an indictment to be discharged because the prosecuting attorney is not prepared to go to trial when the indictment is called for trial and does not show sufficient cause for postponing the trial.

History. (§ 1.15 ch 34 SLA 1962)

Cross references. —

For related court rule, see Alaska Rule of Criminal Procedure 43.

Notes to Decisions

Not applicable. —

In a case where defendant’s kidnapping conviction was overturned and defendant was sentenced on remand for an assault charge that was “dismissed” for double jeopardy purposes after a verdict, AS 12.20.020 and this section did not bar such action since the dismissal was actually a merger. Hurd v. State, 107 P.3d 314 (Alaska Ct. App. 2005).

Dismissal of misdemeanor. —

If a court dismisses a misdemeanor criminal charge under any of the circumstances listed in this section, the dismissal constitutes a bar to further prosecution; however, the State was permitted to refile two previously dismissed hunting charges because defendants had not been held to answer before a grand jury, nor had they been indicted for the crimes, as set forth by subsection (a). Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003).

Sec. 12.20.060. Discharge of codefendant as bar.

It is an acquittal of the defendant discharged and a bar to another prosecution for the same crime when two or more persons are charged in the same indictment, and the court dismisses the indictment against a defendant

  1. before that defendant has begun to present a defense and on the application of the prosecuting attorney so that the defendant may be a witness for the state; or
  2. before the evidence is closed and on the application of another defendant on trial so that the discharged defendant may be a witness for a codefendant, and when, in the opinion of the court, there is not sufficient evidence to require the discharged defendant to present a defense.

History. (§ 1.16 ch 34 SLA 1962)

Chapter 25. Arrests and Citations.

Collateral references. —

5 Am. Jur. 2d, Arrest, § 1 et seq.

68 Am. Jur. 2d, Searches and Seizures, § 1 et seq.

6A C.J.S. Arrest, § 1 et seq.

22 C.J.S. Criminal Law, §§ 213-216, 436 et seq.

Article 1. Arrests.

Sec. 12.25.010. Persons authorized to arrest.

An arrest may be made by a peace officer or by a private person.

History. (§ 2.02 ch 34 SLA 1962)

Sec. 12.25.020. Judge or magistrate may order arrest.

When a crime is committed in the presence of a judge or magistrate, the judge or magistrate may, by an oral or written order, command any person to arrest the offender, and may immediately proceed as though the offender had been brought before the court on a warrant of arrest.

History. (§ 2.03 ch 34 SLA 1962; am § 7 ch 8 SLA 1971)

Sec. 12.25.030. Grounds for arrest by private person or peace officer without warrant.

  1. A private person or a peace officer without a warrant may arrest a person
    1. for a crime committed or attempted in the presence of the person making the arrest;
    2. when the person has committed a felony, although not in the presence of the person making the arrest;
    3. when a felony has in fact been committed, and the person making the arrest has reasonable cause for believing the person to have committed it.
  2. In addition to the authority granted by (a) of this section, a peace officer
    1. shall make an arrest under the circumstances described in AS 18.65.530 ;
    2. without a warrant may arrest a person if the officer has probable cause to believe the person has, either in or outside the presence of the officer,
      1. committed a crime involving domestic violence, whether the crime is a felony or a misdemeanor; in this subparagraph, “crime involving domestic violence” has the meaning given in AS 18.66.990 ;
      2. committed the crime of violating a protective order in violation of AS 11.56.740 ; or
      3. violated a condition of release imposed under AS 12.30.016(e) or 12.30.027 ;
    3. without a warrant may arrest a person when the peace officer has probable cause for believing that the person has
      1. committed a crime under or violated conditions imposed as part of the person’s release before trial on misdemeanor charges brought under AS 11.41.270 ;
      2. violated AS 04.16.050 or an ordinance with similar elements; however, unless there is a lawful reason for further detention, a person who is under 18 years of age and who has been arrested for violating AS 04.16.050 or an ordinance with similar elements shall be cited for the offense and released to the person’s parent, guardian, or legal custodian;
      3. violated conditions imposed as part of the person’s release under the provisions of AS 12.30; or
      4. violated AS 11.41.230 at a health care facility, and the person
        1. was not seeking medical treatment at the facility; or
        2. was stable for discharge.
  3. [Repealed, § 16 ch 61 SLA 1982.]
  4. [Repealed, § 72 ch 64 SLA 1996.]
  5. In this section, “health care facility” has the meaning given in AS 18.07.111 .

History. (§ 2.04 ch 34 SLA 1962; am § 11 ch 166 SLA 1978; am § 33 ch 102 SLA 1980; am §§ 11, 16 ch 61 SLA 1982; am § 3 ch 43 SLA 1985; am § 1 ch 27 SLA 1986; am § 9 ch 30 SLA 1992; am § 5 ch 40 SLA 1993; am §§ 2, 3 ch 115 SLA 1994; am § 1 ch 80 SLA 1995; am § 3 ch 81 SLA 1995; am § 7 ch 30 SLA 1996; am §§ 8, 72 ch 64 SLA 1996; am § 11 ch 81 SLA 1998; am § 3 ch 19 SLA 2010; am §§ 8, 9 ch 22 SLA 2018)

Revisor's notes. —

In 1995, (b)(1) of this section was reorganized to harmonize amendments made by § 1, ch. 80 SLA 1995 and § 3, ch. 81, SLA 1995.

In 1996, reference to “AS 04.16.050 or an ordinance with similar elements” was deleted from (b)(3)(A) and a reference to “an ordinance with similar elements” was added in two places in (b)(3)(B) to reconcile § 7, ch. 30, SLA 1996 and § 8, ch. 64, SLA 1996.

Cross references. —

For temporary detention of persons, AS 12.50.201 .

For provision relating to applicability of the 2018 amendments to subsection (b), see sec. 30(a), ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (b)(2)(C), substituted “AS 12.30.016(c) ” for “AS 12.30.025”, in (b)(3) substituted “probable” for “reasonable” following “when the peace officer has”, in (3)(C), substituted “under the provisions of AS 12.30” for “before trial on felony charges brought under AS 11.41.410 — 11.41.458 ”, and made a stylistic change.

The 2018 amendment, effective September 12, 2018, added (b)(3)(D); added (e); and made related changes.

Editor's notes. —

Section 13, ch. 80, SLA 1995 provides that the amendment made to subsection (b) by § 1, ch. 80, SLA 1995 applies “to offenses that are committed on or after September 13, 1995, except that references to previous conviction include convictions occurring before, on, or after September 13, 1995.”

Section 31(b), ch. 19, SLA 2010, provides that the 2010 amendment of (b) of this section applies “to arrests for violation of conditions of release occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Legislative history reports. —

For governor's transmittal letter for ch. 19, SLA 2010 (House Bill 324), relating to the amendment of (b) of this section, see 2010 House Journal 1401 — 1404.

Opinions of attorney general. —

The Violence Against Women Act, 18 U.S.C. § 2265 (VAWA) requires the State of Alaska to enforce tribal protection orders and foreign protection orders, even where those orders are not registered as required by Alaska law. The unregistered protective order must meet due process requirements, including notice and the opportunity to be heard. If the order would qualify for arrest of the violator under an equivalent Alaska law, the violator may be arrested. The legislature is encouraged to revise Alaska's statutes to comply with VAWA. July 30, 2015 Op. Atty Gen.

Notes to Decisions

Common law breach-of-the-peace requirement discarded. —

Although at common law a police officer was authorized to arrest without a warrant anyone who had committed a misdemeanor in his presence amounting to a breach of the peace, over the years most states, including Alaska, have dropped the breach-of-the-peace requirement, retaining the in-the-presence requirement. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Constitutionality. —

Subsection (b)(3) is constitutional. Felony arrests based on probable cause can be made without a warrant. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Validity of arrest. —

An arrest is lawful where the peace officer has perceived facts which would lead a reasonable man to believe that the arrestee has committed or attempted to commit an offense in his presence. Miller v. State, 462 P.2d 421 (Alaska 1969); McCoy v. State, 491 P.2d 127 (Alaska 1971).

An arrest for a misdemeanor made by an officer without a warrant is valid if the offense is committed in his presence. Miller v. State, 462 P.2d 421 (Alaska 1969); Howes v. State, 503 P.2d 1055 (Alaska 1972).

Trial court did not err in holding defendant’s arrest was valid under this section because defendant had admitted to smoking marijuana and, based on the entire factual record, the trooper had probable cause to arrest defendant for possessing marijuana while in the trooper’s presence. Johnston v. State, — P.3d — (Alaska Ct. App. Nov. 18, 2009).

Authority of state trooper. —

Making arrests and seizing property incident to arrests is conduct that falls within state troopers’ usual authority. Prentzel v. State, 169 P.3d 573 (Alaska 2007).

Officer's presence essential for arrest of person for misdemeanor violation. —

Under this section a peace officer may not arrest a person for a misdemeanor violation unless the crime was actually committed or attempted in the officer’s 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 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); overruled on other grounds Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

Two elements are involved in the term “presence”: (1) The officer must observe acts which are indicative of the commission of an offense; (2) The officer must be aware that he is in fact seeing an offense being committed. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Presence requirement met by officer witnessing one segment of continuing offense. —

The presence requirement of this section may be met by the officer witnessing one segment of a continuing offense or of an offense that spans a considerable period of time. Howes v. State, 503 P.2d 1055 (Alaska 1972).

An officer may rely on information and observations reported by other officers helping in the investigation to establish probable cause for his belief that the arrestee has committed, or attempted to commit, an offense in his presence. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Paragraph (3) of subsection (a) must be given a reasonable construction. McCoy v. State, 491 P.2d 127 (Alaska 1971); City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Sufficient evidence for conviction unnecessary under paragraph (a)(3). —

In order to effect a lawful arrest without a warrant under paragraph (3) of subsection (a), it is not necessary that at the time the arrest is made the peace officer have sufficient evidence for conviction. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It was not necessary that the police officer have evidence sufficient to prove defendant’s perpetration of the crime beyond a reasonable doubt. It was necessary only that there be evidence which would cause a reasonably prudent person to reach the conclusion that the person arrested was, in all probability, the one who committed the crime. Richardson v. State, 563 P.2d 266 (Alaska 1977).

Conditions to constitutionally valid arrest. —

Whether an arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it; whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Police did not need a warrant to arrest defendant for sexual assault in the first degree under AS 11.41.410(a)(1) and AS 11.16.110 because they had probable cause, based in part on the victim’s statement that she had been raped by two men and an identification of defendant by the other man. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Violation of this section, limiting warrantless misdemeanor arrests, does not by itself establish a per se violation of the federal constitution. Prentzel v. State, 169 P.3d 573 (Alaska 2007).

A person has no right to use force to resist a peaceful, but unlawful, arrest made by a police officer. Wilson v. State, 473 P.2d 633 (Alaska 1970).

And right to protect oneself against excessive force is forfeited by commission of armed robbery. —

A person who commits an armed robbery forfeits his right to claim as a defense to a charge of assault the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any person intervening to prevent the crime or to apprehend the criminal, absent a factual showing that, at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Private person may arrest intruder. —

Where an intruder enters a private person’s home at 3:00 a.m., armed with a knife, the private person may arrest him. Wilson v. State, 473 P.2d 633 (Alaska 1970).

An intruder would have no right to resist a private person’s effort to restrain him, absent some showing of excessive force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

The use of bare hands against an armed intruder does not constitute unnecessary force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Citizens' arrest not government action. —

Where two citizens arrested a drunken driver and notified the police that they were holding him, their action in detaining the driver was not government action for purposes of the 4th amendment and the exclusionary rule. O'Connor v. Municipality of Anchorage, 907 P.2d 1377 (Alaska Ct. App. 1995).

Domestic violence. —

The legislature consistently uses the phrase “crimes involving domestic violence” in a context which indicates that the reference is to a criminal act, not a criminal conviction. State v. Bingaman, 991 P.2d 227 (Alaska Ct. App. 1999).

English and American law has always recognized the power to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of the crime. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The Alaska supreme court is not bound by the U.S. Supreme Court’s interpretations of the 4th amendment in expounding the corresponding section of Alaska Const., art. I, § 14. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Searches conducted outside the judicial process. —

Subject only to a few specifically established and well-delineated exceptions, searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971).

To require the police to get a search warrant to search the person of every felony arrestee, when it is to be expected that the magistrate will always find probable cause that evidence of the crime is on his person, will inundate the magistrates with warrant petitions which will be granted as a matter of course and run the risk that magistrates will not carefully examine the circumstances in more deserving cases. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Legal arrest removes personal privacy from realm of protection. —

While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence. McCoy v. State, 491 P.2d 127 (Alaska 1971).

No exact formula for determining reasonableness. —

There seems to be no exact formula for the determination of reasonableness in connection with a search and seizure and so each case must be decided on its own facts and circumstances. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Search without warrant valid where made incident to lawful arrest. —

A search would be unreasonable because made without a warrant, unless the facts were such as to bring this case within an exception to the rule that a search must rest upon a search warrant. The exception is that which recognizes the validity of a search made without a warrant where the search is made incident to a lawful arrest. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

And lawfulness of arrest without warrant depends on probable cause. —

Where an arrest is made without a warrant, its lawfulness depends on whether it was based on probable cause, which exists if the facts and circumstances known to the officer would warrant a prudent man in believing that an offense had been or was being committed. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

A valid arrest without a warrant may be effected where the arresting officer acted upon probable cause or, in the case of a misdemeanor, was present at the commission of the offense. Drahosh v. State, 442 P.2d 44 (Alaska 1968).

Under paragraph (3) of subsection (a), a peace officer, without a warrant, may arrest a person for a felony when the officer has probable cause to believe that a felony has been committed and probable cause to believe that the person committed it. McCoy v. State, 491 P.2d 127 (Alaska 1971); City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977); Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

“Probable cause”. —

Probable cause exists where the facts and circumstances within the officers’ knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. McCoy v. State, 491 P.2d 127 (Alaska 1971); Pistro v. State, 590 P.2d 884 (Alaska 1979).

Probable cause for arrest will exist when facts and circumstances known to a police officer would justify a man of reasonable caution in believing that an offense had been or was being committed and that the person to be arrested is the one who committed it. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

In dealing with probable cause, as the very name implies, a court deals with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt. And this means less than evidence which would justify condemnation or conviction. McCoy v. State, 491 P.2d 127 (Alaska 1971).

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).

Facts and circumstances necessary to establish probable cause. —

Probable cause cannot be established solely on the basis of a good faith belief on the part of the officer that there is probable cause to arrest. In order to establish probable cause, there must exist facts and circumstances known to the officer which would warrant a prudent person in believing that an offense has been or is being committed. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977); Schmid v. State, 615 P.2d 565 (Alaska 1980).

Probable cause may rest on reasonably trustworthy information from an informant. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977); Pistro v. State, 590 P.2d 884 (Alaska 1979); Schmid v. State, 615 P.2d 565 (Alaska 1980).

However, some of the details of the information given by the informant must be verified before an arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

If the informant is a cooperative citizen rather than informant from the criminal milieu, his or her reliability need not be established before the arrest. However, some of the details of the information given by the informant must be verified before the arrest. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Information from the informant was sufficiently corroborated by the police officer’s own observations to establish probable cause for arrest. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Aggregate weight of factors established probable cause. —

Although the various factors, if taken individually, were as readily consistent with innocence as guilt, the factors did not occur individually, or in isolation from each other, and the aggregate weight was fully sufficient to meet the established standard of probable cause. Dunn v. State, 653 P.2d 1071 (Alaska Ct. App. 1982).

Where there were no disputes of fact relevant to the determination of whether the officers had probable cause to arrest, the trial court should have made that determination as a legal matter. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Officer could constitutionally observe what was in plain view. —

Where the driveway involved was a normal means of ingress and egress impliedly open to public use by one desiring to speak to occupants of the garage, or to park off the street while visiting occupants of the house, there was no invasion of rights to privacy when the police officer moved up the driveway, and the officer could constitutionally observe what was in plain view in the garage. Pistro v. State, 590 P.2d 884 (Alaska 1979).

Arrest held lawful. —

Where the facts which were observed by a police officer, together with his prior knowledge of the physical characteristics of a certain package and its illegal contents, were sufficient to lead a reasonable person to believe that the defendants had committed an offense in his presence, arrest was lawful. Howes v. State, 503 P.2d 1055 (Alaska 1972).

Police officers had probable cause to arrest defendant for disorderly conduct committed in their presence, where he was loud and belligerent when approached by the officers at 3:15 a.m. and his conduct and attitude supported a reasonable belief that he would have continued to disturb the peace of his neighbors unless he had been taken into custody. Earley v. State, 789 P.2d 374 (Alaska Ct. App. 1990).

Where defendant was arrested based on a citizen complaint and defendant argued that this section does not authorize arrest for a misdemeanor that was not committed in officers’ presence because officers did not see the transactions reported to police, this argument was rejected because defendant did not raise this issue in superior court and information police had when they contacted defendant established a substantial chance that defendant had committed a felony by selling a drug other than a small quantity of marijuana. Duncan v. State, 178 P.3d 467 (Alaska Ct. App. 2008).

Scope of search and seizure. —

Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons, for the fruit of the crime, or for implements used to commit the crime. This right to search and seize without a search warrant extends to things under the accused’s immediate control and, to an extent depending on the circumstances of the case, to the place where he is arrested. The rule allowing contemporaneous searches is justified by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Officers may search and seize not only the things physically on the person arrested, but also those things within his immediate physical control. McCoy v. State, 491 P.2d 127 (Alaska 1971).

A search which is reasonable at its inception may violate the 4th amendment by virtue of its intolerable intensity and scope. The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible. McCoy v. State, 491 P.2d 127 (Alaska 1971).

When a search goes far beyond defendant’s person and the area into which he could reach to obtain a weapon to harm the officer or escape or evidence which he might conceal or destroy, it is unreasonable. McCoy v. State, 491 P.2d 127 (Alaska 1971).

It is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for, and seize, any evidence on the arrestee’s person in order to prevent its concealment or destruction. The area into which an arrestee might reach in order to grab a weapon or evidentiary items must be governed by a like rule. There is ample justification, therefore, for a search of the arrestee’s person and the area within his immediate control. There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Once warrantless searches beyond the area of the arrestee’s immediate control are allowed, the 4th amendment, with its “reasonableness” requirement, suggests no rational limits to circumscribe the search. Searches of the person, on the other hand, have their own inherent physical limitations. Thus, there is less danger that this exception to the warrant requirement will become unrestrained. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The mere fact of arrest does not ipso facto justify an unlimited search of the person. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Defining boundaries incident to arrest exception. —

In defining the boundaries of incident to the arrest exception, the need for the exercise of common sense is apparent. McCoy v. State, 491 P.2d 127 (Alaska 1971).

A search of an arrestee remains incident to an arrest when it is conducted shortly thereafter at the jail or place of detention rather than at the time and place of arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Restrictions on warrantless incidental searches. —

Adequate protection for the arrestee’s legitimate interests in privacy will be provided by the following restrictions on warrantless incidental searches of the person: (1) the arrest must be valid — probable cause for the arrest must exist or the search is unconstitutional; (2) the search must be roughly contemporaneous with the arrest, at least within the boundaries suggested by United States v. De Leo, 422 F.2d 487 (1st Cir. Mass.), cert. denied, 397 U.S. 1037, 90 S. Ct. 1355, 25 L. Ed. 2d 648 (U.S. 1970); (3) the arrest must not be a pretext for the search; a search incident to a sham arrest is not valid. The search must be incident to the arrest, and not vice versa; (4) the arrest must be for a crime, evidence of which could be concealed on a person. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Searching packet of cocaine incident to arrest for forgery. —

Since the search was incident to a valid arrest for the crime of forgery, and evidence of that crime might well have been concealed on accused’s person, the search of a packet containing cocaine was valid and the conviction based on such evidence was proper. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Arrest and subsequent search by a store security guard of a suspected shoplifter in which nondeadly force was used was legal and reasonable, and therefore, permissible under state and federal constitutions. Jackson v. State, 657 P.2d 405 (Alaska Ct. App. 1983).

Application of incidental search doctrine to traffic violations and vagrancy. —

While in most felony cases the incidental search may well turn out to be reasonable, the nexus between the item to be seized and the criminal behavior involved is more difficult to establish in cases involving arrest for such offenses as traffic violations and vagrancy. Automatic application of the incidental search doctrine in such cases may well result in the sanctioning of unreasonable searches in individual cases, contrary to the requirement of the 4th amendment. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The stop and frisk doctrine, a limited exception to the rule that officers can detain a person only on probable cause, is designed to aid police officers in street encounters where suspicious circumstances exist not amounting to probable cause. McCoy v. State, 491 P.2d 127 (Alaska 1971).

The scope of a protective search for weapons in a stop and frisk situation should be more limited than a search incident to an arrest. McCoy v. State, 491 P.2d 127 (Alaska 1971).

Right of police to enter and investigate in an emergency without the accompanying intent to either search or arrest is inherent in the very nature of their duties as police officers and derives from the common law. Herrin v. State, 449 P.2d 674 (Alaska 1969).

Delay in making arrest without warrant. —

Under some circumstances, there may be justification for delay in making an arrest without a warrant, as, for instance, when the interval between the commission of the offense and the actual arrest is spent by the officer in pursuing the offender or in summoning assistance where such may reasonably appear to be necessary. Herrin v. State, 449 P.2d 674 (Alaska 1969).

Release of minor to parents. —

This section serves to protect minors arrested by peace officers by calling for detention, as opposed to release to parents, only where peace officers have a lawful reason for further detention, and the statute establishes duty of police officers to act reasonably when releasing detained minors to parents; under this statute, police officers act non-negligently where they reasonably believed that there was no lawful reason for further detention. Estate of Logusak v. City of Togiak, 185 P.3d 103 (Alaska 2008).

Arrest without warrant for breach of peace or misdemeanor. —

In making an arrest without a warrant for breach of the peace or a misdemeanor, an officer must act promptly at the time of the offense. If he does not act immediately after the offense has been committed, he can, thereafter, make arrests only by procuring a warrant and proceeding in accordance with its terms. In order to justify a delay, there should be a continued attempt on the part of the officer or person apprehending the offender to make the arrest; he cannot delay for any purpose which is foreign to the accomplishment of the arrest. Herrin v. State, 449 P.2d 674 (Alaska 1969).

Applied in

Jacobson v. State, 551 P.2d 935 (Alaska 1976); Sumdum v. State, 612 P.2d 1018 (Alaska 1980); Cullom v. State, 673 P.2d 904 (Alaska Ct. App. 1983); Ford v. State, 699 P.2d 889 (Alaska Ct. App. 1985); Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Quoted in

Soolook v. State, 447 P.2d 55 (Alaska 1968); Deal v. State, 626 P.2d 1073 (Alaska 1980); Unger v. State, 640 P.2d 151 (Alaska Ct. App. 1982).

Stated in

Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002).

Cited in

Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982); Moxie v. State, 662 P.2d 990 (Alaska Ct. App. 1983); State v. Burke, 714 P.2d 374 (Alaska Ct. App. 1986); Jones v. State, 771 P.2d 462 (Alaska Ct. App. 1989); Garcia v. State, — P.3d — (Alaska Ct. App. Aug. 29, 2018).

Collateral references. —

Peace officer’s delay in making arrest without a warrant for misdemeanor or breach of peace. 58 ALR2d 1056.

Police officer’s power to enter private house or inclosure [sic] to make arrest, without a warrant, for a suspected misdemeanor. 76 ALR2d 1432.

Validity, in criminal trial, of arrest without warrant by identified police officer outside of jurisdiction, when not in fresh pursuit. 34 A.L.R.4th 328.

Sec. 12.25.031. Alternative to arrest.

  1. As an alternative to arrest, a peace officer may, at the officer’s discretion, deliver a person to a crisis stabilization center or an evaluation facility or decline to arrest the person if
    1. the arresting officer believes in good faith that the person is suffering from an acute behavioral health crisis; and
    2. the person voluntarily agrees to be taken to a crisis stabilization center or an evaluation facility or to promptly seek outpatient mental health treatment.
  2. Notwithstanding (a) of this section, a peace officer may, as an alternative to arrest, take a person into emergency custody under AS 47.30.705 and deliver the person to a crisis stabilization center or an evaluation facility.
  3. Delivery of a person to a crisis stabilization center or an evaluation facility for examination under (a) of this section does not constitute an involuntary commitment under AS 47.30 or an arrest.
  4. Before a person delivered to a crisis stabilization center or an evaluation facility under (a) or (b) of this section is released to the community, a mental health professional shall make reasonable efforts to inform the arresting officer of the planned release if the officer has specifically requested notification and provided the officer’s contact information to the crisis stabilization center or evaluation facility.
  5. A peace officer is not liable for civil damages arising from an act or omission done with reasonable care and in good faith under this section.
  6. An agreement to participate in outpatient treatment or to be delivered to a crisis stabilization center or an evaluation facility under (a) of this section
    1. may not require a person to stipulate to any facts regarding the alleged criminal activity as a prerequisite to participation in a mental health treatment alternative;
    2. is inadmissible in any criminal or civil proceeding; and
    3. does not create immunity from prosecution for the alleged criminal activity.
  7. If a person violates an agreement to be delivered to a crisis stabilization center or an evaluation facility or to seek outpatient treatment under (a) of this section,
    1. a mental health professional shall make reasonable efforts to inform the arresting officer of the person’s decision to leave the crisis stabilization center or evaluation facility; and
    2. the original charges may be filed or referred to the prosecutor, as appropriate, and the matter may proceed as provided by law.
  8. Notwithstanding the other provisions of this section, charges may be filed or referred to the prosecutor, as appropriate, at any time in accordance with law.
  9. In this section,
    1. “crisis stabilization center” means a facility licensed under AS 47.32 that meets the definition of “crisis stabilization center” in AS 47.32.900 ;
    2. “evaluation facility” has the meaning given in AS 47.30.915 ;
    3. “mental health professional” has the meaning given in AS 47.30.915 .

History. (§ 1 ch 28 SLA 2020)

Effective dates. —

Section 1, ch. 28, SLA 2020, which enacted this section, took effect on July 28, 2020.

Sec. 12.25.033. Arrest without warrant for operating vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance.

A peace officer may arrest a person without a warrant, whether or not the offense is committed in the presence of the officer, when the officer has probable cause to believe that the person to be arrested has committed the crime of operating a motor vehicle, an aircraft, or a watercraft in violation of AS 28.35.030 or a similar city or borough ordinance, if the violation is alleged to have occurred less than eight hours before the time of arrest.

History. (§ 1 ch 196 SLA 1975; am § 6 ch 117 SLA 1982; am § 3 ch 60 SLA 2002)

Notes to Decisions

Constitutionality. —

This section which permits a police officer to arrest a defendant for violation of AS 28.35.030 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, because these 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).

Sec. 12.25.035. Arrest without warrant by state trooper when judicial officer is unavailable.

A state trooper may arrest a person without a warrant for a misdemeanor or for the violation of an ordinance when

  1. the officer has reasonable grounds to believe that the person to be arrested has committed a misdemeanor or has violated an ordinance;
  2. personal or property damage is likely to be done unless the person is immediately arrested; and
  3. there is no known judicial officer empowered to issue a warrant within a radius of 25 miles of the person to be apprehended.

History. (§ 1 ch 92 SLA 1968)

Sec. 12.25.040. Taking before judge or magistrate person arrested by bystander.

A peace officer may, without warrant, take before a judge or magistrate a person who, being engaged in a breach of the peace, is arrested by a bystander and delivered to the peace officer.

History. (§ 2.05 ch 34 SLA 1962; am § 8 ch 8 SLA 1971)

Sec. 12.25.050. Method of making arrest.

An arrest is made by the actual restraint of a person or by a person’s submission to the custody of the person making the arrest.

History. (§ 2.06 ch 34 SLA 1962)

Notes to Decisions

Whether an individual was in fact arrested is to be determined by an objective standard. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Individual held arrested in fact. —

Where an individual was placed by the police in the back of a police vehicle which had no handles on the inside of the back doors in order to prevent escape by occupants in the rear seat, and the jury concluded that the individual did not enter the vehicle voluntarily, there was sufficient evidence from which the jury could have properly found that the individual in question was put under “actual restraint” within the meaning of this section and that he was in fact arrested. City of Nome v. Ailak, 570 P.2d 162 (Alaska 1977).

Drawn guns and handcuffing do not necessarily turn stop into arrest. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Lawful stops and custodial arrest distinguished. —

See Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Applied in

Richardson v. State, 563 P.2d 266 (Alaska 1977).

Stated in

Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982).

Sec. 12.25.060. Method of arrest by officer without warrant.

When making an arrest without a warrant, the peace officer shall inform the person to be arrested of the officer’s authority and the cause of the arrest, unless the person to be arrested is then engaged in the commission of a crime, or is pursued immediately after its commission or after an escape.

History. (§ 2.07 ch 34 SLA 1962)

Notes to Decisions

Suppression of evidence denied. —

Failure to suppress evidence was not plain error, even though officers failed to inform defendant of the cause of the arrest as required by this section. Shorty v. State, 214 P.3d 374 (Alaska Ct. App. 2009).

Sec. 12.25.070. Limitation on restraint in arrest.

A peace officer or private person may not subject a person arrested to greater restraint than is necessary and proper for the arrest and detention of the person.

History. (§ 2.08 ch 34 SLA 1962)

Notes to Decisions

Applicability of section. —

This section only speaks to the force that a private person may use to subject a person already arrested to continued arrest and detention. Grant v. State, 621 P.2d 1338 (Alaska 1981).

Necessary force may be used to restrain. —

An officer in making an arrest is privileged by this section to use only that force which is necessary to restrain the arrested person. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

But if more than necessary force is used, then the officer commits an unprivileged assault on the arrested person. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Use of excessive force. —

When the police responded to a request for a welfare check at defendant’s home, defendant became belligerent; he kicked at two officers, attempted to bite an officer, and continued to scream and swear; the officers’ initial deployments of the taser were objectively reasonable because the officers were faced with an immediate threat of bodily harm from defendant kicking and biting them in a rapidly deteriorating situation in the home. However, when defendant was handcuffed, seated on the floor, and then placed on his stomach, the need for force changed. The superior court erred by failing to consider whether the police department’s policy on taser use or the nature of the officers’ actions provided notice that the force they used may have been excessive under the Fourth Amendment. Olson v. City of Hooper Bay, 251 P.3d 1024 (Alaska 2011).

Level of force must be objectively reasonable. —

Regardless of whether the individual officer actually believed that his use of force was reasonable, and regardless of the reasonableness of that belief, the officer is not privileged to use an objectively unreasonable level of force in making an arrest. Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000), overruled in part, Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008).

On a claim of excessive force, the court erred in applying an immunity analysis, driven by the officers’ subjective beliefs as to the reasonableness of the force used. Samaniego v. City of Kodiak, 2 P.3d 78 (Alaska 2000), overruled in part, Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008).

Police officers reasonably used pepper spray in responding to a domestic dispute where the father resisted the officers’ commands to come out of the bathroom and attempted to shut the door against the officers while holding his wife and child in the bathroom. The officers reasonably handcuffed the father, they did not use excessive force when they failed to provide water to ameliorate the effects of pepper spray, and they called an ambulance about eight minutes after spraying him. Lum v. Koles, 314 P.3d 546 (Alaska 2013).

No excessive force found. —

Officer who shot fleeing person after an extended vehicle pursuit, and search of a wooded area on foot did not use excessive force. The fleeing person, the subject of an involuntary commitment order, was armed and had fired shots earlier in the incident. Maness v. Daily, 307 P.3d 894 (Alaska 2013).

It was not unreasonable for a police officer to grasp and examine a driver’s wrist during a traffic stop. The driver reached inside her coat without telling the officer that she was reaching for her wallet. Summary judgment in favor of the officer on the basis of qualified immunity was proper. Manteufel v. Tarbox, — P.3d — (Alaska Dec. 11, 2013) (memorandum decision).

There is no right to resist a peaceful arrest, even though the arrest was unlawful. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

A person has no right to use force to resist a peaceful, but unlawful arrest, made by a police officer. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Hence, to the use of necessary force the arrested person cannot claim the privilege of self-defense. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

But he may defend against unprivileged use of force. —

To an arresting officer’s unprivileged use of force, the arrested person must have the right to use reasonable force to defend himself. Gray v. State, 463 P.2d 897 (Alaska), limited, Wilson v. State, 473 P.2d 633 (Alaska 1970).

Immunity standard for police officers clarified. —

After clarifying the standard for qualified immunity to emphasize that the question was whether an officer reasonably believed that his actions were lawful, the court found that a police officer was not on notice under AS 11.81.370 , this section, or through case law or regulation, that a bear hug and a take down were excessive uses of force when applied to an intoxicated and assaultive arrestee, and the officer was entitled to immunity. Sheldon v. City of Ambler, 178 P.3d 459 (Alaska 2008).

Right to protect oneself against excessive force forfeited by commission of armed robbery. —

A person who commits an armed robbery forfeits his right to claim as a defense to a charge of assault the necessity to protect himself against the use of excessive force by either the intended victim of the robbery or by any person intervening to prevent the crime or to apprehend the criminal, absent a factual showing that at the time the violence occurred, the dangerous situation created by the armed robbery no longer existed. Wilson v. State, 473 P.2d 633 (Alaska 1970).

An intruder would have no right to resist a private person’s efforts to restrain him, absent some showing of excessive force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

The use of bare hands against an armed intruder does not constitute unnecessary force. Wilson v. State, 473 P.2d 633 (Alaska 1970).

Use of taser on child. —

Where an 11-year-old girl was driving an ATV dangerously through city streets, and an officer tasered the girl twice even though she was never aggressive toward the officer and did not pose a threat to the officer or others, the officer’s action could be found to constitute conduct so egregious that any reasonable officer would have known it was an excessive use of force. Russell ex rel. J.N. v. Virg-In, 258 P.3d 795 (Alaska 2011).

Cited in

Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Collateral references. —

Private person’s authority, in making arrest for felony, to shoot or kill alleged felon. 32 ALR3d 1078.

Right to resist excessive force used in accomplishing lawful arrest. 77 ALR3d 281.

Peace officer’s liability for death or personal injuries caused by intentional force in arresting misdemeanant. 83 ALR3d 238.

Sec. 12.25.080. Means to effect resisted arrest. [Repealed, § 21 ch 59 SLA 1982. For present provisions, see AS 11.81.370 — 11.81.390.]

Sec. 12.25.090. Peace officer’s authority to summon aid to make arrest.

A peace officer making an arrest may orally summon as many persons as the officer considers necessary to aid in making the arrest. A person when required by an officer shall aid in making the arrest.

History. (§ 2.10 ch 34 SLA 1962)

Notes to Decisions

Quoted in

Herrin v. State, 449 P.2d 674 (Alaska 1969).

Sec. 12.25.100. Breaking into building or vessel to effect arrest.

A peace officer may break into a building or vessel in which the person to be arrested is or is believed to be, if the officer is refused admittance after the officer has announced the authority and purpose of the entry.

History. (§ 2.11 ch 34 SLA 1962)

Notes to Decisions

This section, in conjunction with AS 12.35.040 , establishes the procedure for forcing entry in executing both a search warrant and an arrest warrant. Davis v. State, 525 P.2d 541 (Alaska 1974).

This section and AS 12.35.040 operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

This section does not address the separate question of whether a warrant is also required in addition to compliance with this section in order for a peace officer to make an entry to make an arrest of a suspect in his home where exigent circumstances are not involved. Pascua v. State, 633 P.2d 1033 (Alaska Ct. App. 1981), overruled, Johnson v. State, 662 P.2d 981 (Alaska Ct. App. 1983).

Alternative remedies precluded suit for damages. —

Summary judgment on a family’s unlawful entry claim was warranted because the family could have brought a common law trespass claim or a federal civil rights action, and those alternative remedies precluded a suit for damages under the Alaska constitution. Lum v. Koles, 314 P.3d 546 (Alaska 2013).

Noncompliance renders subsequent search unlawful. —

If the police entry does not comply with the requirements of this section, the subsequent search is unlawful and the evidence obtained will not be admissible. Davis v. State, 525 P.2d 541 (Alaska 1974).

The purposes of the announcement requirement are: (1) To protect the occupant’s right to privacy, (2) to safeguard the police who might be mistaken for prowlers and be shot, and (3) to protect other persons who might be injured by violent resistance to unannounced entries. Davis v. State, 525 P.2d 541 (Alaska 1974); Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Purpose of requirement that police be refused admittance before breaking in. —

The requirement that the police be refused admittance before breaking in, in addition to providing another safeguard to protect the occupant’s privacy and the security of people on or near the premises, has the purpose of preventing damage to property and providing for the convenience of the occupant. Davis v. State, 525 P.2d 541 (Alaska 1974).

The phrase “refused admittance” is not restricted to an affirmative refusal. Indeed, it would be an unusual case coming before the courts where an occupant affirmatively “refused admittance” or otherwise made his refusal known verbally after being given notice. Davis v. State, 525 P.2d 541 (Alaska 1974).

Interval between announcing identity and purpose and entering house held sufficient. —

A wait of 30 seconds to one minute and 15 seconds between the time the police knocked and announced their identity and purpose and the time they entered the house was held sufficient for the police to reasonably infer that they had been refused admittance. Davis v. State, 525 P.2d 541 (Alaska 1974).

Reasonable belief of peril to the police may excuse full compliance with knock-and-announce rules. Sandland v. State, 636 P.2d 1196 (Alaska Ct. App. 1981).

Noncompliance held excusable. —

When examination of the totality of the circumstances reveals that the level of hindrance to the dual statutory purposes is justified in light of the exigencies of the case, lack of literal compliance with the knock-and-announce requirements of this section may be excused. Sandland v. State, 636 P.2d 1196 (Alaska Ct. App. 1981).

Where police officers saw objects deposited outside a window, parted the window curtains and looked inside, saw defendant and, on his kitchen table, plates, measuring spoons, and a gun, and ordered him to freeze and entered through the window, any noncompliance with the provisions of this section was excusable because of the existence of “exigent circumstances.” United States v. Fluker, 543 F.2d 709 (9th Cir. Alaska 1976).

Strict compliance with the knock and announce rule is not required when a balancing test indicates that the exigencies outweigh the hindrance to the dual purposes behind the rule of respecting individual’s privacy and minimizing the destruction of property. Trosper v. State, 721 P.2d 134 (Alaska Ct. App. 1986).

Exigent circumstances justified police entry into a residence where defendant and the victim were present because the officers were responding to the second report of an assault at the residence that evening, and heard a male and female yelling inside; the police reasonably believed the female was in danger, obviating the need to knock and announce. Olsen v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

Conduct constituting substantial compliance. —

Where a police officer knocked on the motel room door, and in response to a question in the room, used a ruse; there was activity in the room, after which codefendant opened the door a few inches; the police officer then said it was the police; codefendant attempted to close the door but the police officer pushed it open; and once inside, announced that he was there pursuant to a search warrant, although there was no literal compliance with the statutory knock and announce requirements in that the police officer stepped into the room before announcing his purpose, the police conduct constituted substantial compliance. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Though the “knock and announce” rule requires that the police announce their authority and purpose before breaking into dwellings to execute a search warrant, there was substantial compliance with the “knock and announce” sections where the defendant had called the police to turn herself in for possessing over five pounds of marijuana, she refused to admit the police when they arrived, the police staked out her house while they acted to secure a warrant, they knocked on the door after securing the warrant, announced “It’s the police,” waited approximately a minute without getting a response, and forced open the door. Fleener v. State, 686 P.2d 730 (Alaska Ct. App. 1984).

Police substantially complied with the knock and announce requirement by announcing their identity and their intent to search while simultaneously entering defendant’s hotel room, and exigent circumstances excused further compliance where police had reason to believe that defendant was armed and that evidence might be destroyed. Hudson v. State, 792 P.2d 290 (Alaska Ct. App. 1990).

Officers’ failure to comply with this section did not constitute plain error. —

See Moreau v. State, 588 P.2d 275 (Alaska 1978).

Failure to announce authority for entry constituted breaking. —

Officers did not substantially comply with this section because, although they identified themselves as police officers as they began their entry into the hotel room, they never announced authority for or the purpose of their entry, and they never requested or demanded entry into the room; because of this, no one ever refused them admittance, and when the officers used the hotel pass key to open the door, it was a breaking under this section. Berumen v. State, 182 P.3d 635 (Alaska Ct. App. 2008).

Standing to complain of violation. —

A person who is not present when a search warrant is executed does not have standing to complain of the state’s failure to comply with the “knock and announce” requirements of Alaska law. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

Burden of proof. —

A defendant complaining of a violation of the knock and announce statutes must make a prima facie showing that the statutes were not complied with; the state then bears the burden of persuasion to show that the requirements were met or that exigent circumstances existed. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

Suppression of evidence as remedy. —

Suppression of evidence is the remedy for serious violations of this section; that is, violations that can not be excused under the doctrine of substantial compliance. Berumen v. State, 182 P.3d 635 (Alaska Ct. App. 2008).

Cited in

Gallmeyer v. State, 640 P.2d 837 (Alaska Ct. App. 1982).

Collateral references. —

What constitutes compliance with knock-and-announce rule in search of private premises — State cases. 85 ALR5th 1.

Sec. 12.25.110. Breaking open building or vessel to liberate.

A peace officer may break open a building or vessel to liberate a person who entered to make an arrest and is detained, or to liberate oneself when necessary.

History. (§ 2.12 ch 34 SLA 1962)

Sec. 12.25.120. Retaking escaped prisoner.

If a person arrested escapes or is rescued, the person from whose custody that person escaped or was rescued may immediately pursue and retake that person at any time and in any place in the state.

History. (§ 2.13 ch 34 SLA 1962)

Sec. 12.25.130. Means usable to retake prisoner. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 11.81.370 — 11.81.390.]

Sec. 12.25.140. Property taken from defendant on arrest.

When money or other property is taken from a person arrested upon a charge of a crime, the officer taking it shall immediately make duplicate receipts for the property, specifying particularly the amount of money or kind of property taken. The officer shall deliver one receipt to the person arrested and the other to the judge or magistrate who examines the charge or, if the arrest is after the information or indictment, to the clerk of the court where the action is pending.

History. (§ 2.15 ch 34 SLA 1962; am § 9 ch 8 SLA 1971)

Administrative Code. —

For admission to adult correctional facilities, see 22 AAC 5, art. 1.

Legislative history reports. —

For report on ch. 8, SLA 1971 (HB 15), see 1971 House Journal, p. 52.

Collateral references. —

Right to compensation for real property damaged by law enforcement personnel in course of apprehending suspect. 23 ALR5th 834.

Sec. 12.25.150. Rights of prisoner after arrest.

  1. A person arrested shall be taken before a judge or magistrate without unnecessary delay and in any event within 24 hours after arrest, absent compelling circumstances, including Sundays and holidays. The unavailability of a report prepared by the pretrial services officer under AS 33.07 or a delay in the transmittal of that report to the parties or to the court may not be considered a sufficient compelling circumstance to justify delaying a hearing beyond 24 hours. The hearing before the judge or magistrate may not take place more than 48 hours after arrest. This requirement applies to municipal police officers to the same extent as it does to state troopers.
  2. Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner’s attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friend of the prisoner, have the right to immediately visit the person arrested. This subsection does not provide a prisoner with the right to initiate communication or attempt to initiate communication under circumstances proscribed under AS 11.56.755 .
  3. It shall be unlawful for an officer having custody of a person so arrested to wilfully refuse or neglect to grant the prisoner the rights provided by this section.  A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
  4. In addition to the criminal liability in (c) of this section, an officer having a prisoner in custody who refuses to allow an attorney to visit the prisoner when proper application is made therefor shall forfeit and pay to the party aggrieved the sum of $500, recoverable in a court of competent jurisdiction.

History. (§ 2.16 ch 34 SLA 1962; am § 10 ch 8 SLA 1971; am § 2 ch 31 SLA 1973; am § 18 ch 127 SLA 1974; am § 5 ch 86 SLA 1998; am § 16 ch 20 SLA 2011; am § 50 ch 36 SLA 2016)

Cross references. —

For procedures, see Alaska Rule of Criminal Procedure 5.

Administrative Code. —

For admission to adult correctional facilities, see 22 AAC 5, art. 1.

For operations, see 22 AAC 5, art. 3.

For communications, see 22 AAC 5, art. 8.

For discharge, see 22 AAC 5, art. 9.

Effect of amendments. —

The 2011 amendment, effective July 1, 2011, in (a), substituted “within 48 hours after arrest” for “within 24 hours after arrest”.

The 2016 amendment, effective January 1, 2018, rewrote (a), which read, “A person arrested shall be taken before a judge or magistrate without unnecessary delay, and in any event within 48 hours after arrest, including Sundays and holidays. This requirement applies to municipal police officers to the same extent as it does to state troopers.”

Editor’s notes. —

Section 28(a), ch. 20, SLA 2011, provides that the 2011 amendment to this section applies “to arrests for offenses committed before, on, or after July 1, 2011.”

Notes to Decisions

Analysis

I.General Consideration

Applied in

Eben v. State, 599 P.2d 700 (Alaska 1979); Babb v. Anchorage, 813 P.2d 312 (Alaska Ct. App. 1991); Moses v. State, 32 P.3d 1079 (Alaska Ct. App. 2001); Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Stated in

Moran v. State, 380 P.3d 92 (Alaska Ct. App. 2016).

Cited in

Yerrington v. Anchorage, 675 P.2d 649 (Alaska Ct. App. 1983); Smith v. State, 948 P.2d 473 (Alaska 1997); Smith v. State, 948 P.2d 473 (Alaska 1997).

II.Presentment to Judge or Magistrate

Delay in presentment of defendant to magistrate did not render confessions involuntary. —

See Sovalik v. State, 612 P.2d 1003 (Alaska 1980).

III.Right to Contact Attorney

Similarity of Cr. R. 5(b). —

Criminal R. 5(b) is substantially similar to this section, but specifically provides for a “private” visit. Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska Ct. App. 1984).

No distinction between calls to relatives and attorneys. —

This section is intended to serve, the broad goal of preventing suspects from being held incommunicado. Distinctions are not to be drawn between calls to relatives and to attorneys. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

Where an arrested motorist was allowed to make a telephone call to his wife before taking a breath test in the field and before waiving his right to an independent chemical test, this satisfied his rights under subsection (b). Moses v. State, 32 P.3d 1079 (Alaska Ct. App. 2001).

Time of attachment of right. —

An arrestee’s statutory right to “immediate” communication with attorneys, relatives, and friends normally does not attach until the arrestee is brought to a place of detention such as a police station or a jail. Wardlow v. State, 2 P.3d 1238 (Alaska Ct. App. 2000).

Pre-test communication with a non-lawyer. —

The rationale articulated in Copelin v. State, 659 P.2d 1206 (Alaska 1983), does, in fact, support interpreting the immediacy requirement of subsection (b) to require pre-breathalyzer test results communications with a non-lawyer such as a relative; and to the extent that Van Wormer v. State, 699 P.2d 895 (Alaska Ct. App. 1985), suggests that the request must specifically be for an attorney, it is overruled. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

Suppression of defendant’s breath test results was not warranted under subsection (b) of this section because neither of defendant’s requests to make a phone call was related to the breath test; the exclusionary rule did not apply to violations of the statute that were unrelated to the breath test or some other defense purpose. Winfrey v. State, 78 P.3d 725 (Alaska Ct. App. 2003).

Immediate visit with counsel. —

The express language of subsection (b) of this section provides for an immediate visit with counsel following an arrest. Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska Ct. App. 1984).

Right of driving while intoxicated suspect to contact attorney. —

Phone conversation with the public defender constituted contact with an attorney under Copelin v. State, 659 P.2d 1206 (Alaska 1983).Pappas v. Municipality of Anchorage, 698 P.2d 1236 (Alaska Ct. App. 1985).

Right to private consultation with a lawyer was not abrogated during a phone call with the public defender even though the police officer could overhear the suspect due to his yelling and shouting. Pappas v. Municipality of Anchorage, 698 P.2d 1236 (Alaska Ct. App. 1985).

A DWI suspect cannot be forced to contact an attorney chosen by the police; but where the suspect agreed to speak with the public defender, argument that, if the suspect is dissatisfied with an attorney he has agreed to speak with, he should be permitted another opportunity to contact counsel was foreclosed where the suspect never requested a specific attorney or even asked to see a phone book. Pappas v. Municipality of Anchorage, 698 P.2d 1236 (Alaska Ct. App. 1985).

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, subsection (b) of this section requires that arrestee 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).

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).

Even though a police officer violated Copelin by not offering defendant the opportunity to try to contact an attorney before the breath test as required by this section, the officer cured the violation as, after defendant expressly told the officer that he had declined to take the breath test because he had not had the opportunity to talk to a lawyer, the officer offered to let defendant try to contact an attorney. Hostetter v. State, — P.3d — (Alaska Ct. App. Dec. 3, 2014).

Opportunity to call attorney from station after DUI arrest. —

Defendant’s statutory right to call an attorney under subsection (b) of this section was not violated when he was told that he could call his attorney when he got to the station after his DUI arrest; further, the police had no obligation to expressly offer a telephone call to defendant or to remind defendant of his earlier request to speak to attorney. Huntington v. State, 151 P.3d 523 (Alaska Ct. App. 2007).

No invocation of right to contact attorney before deciding to take breath test. —

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).

In a driving under the influence case, police did not violate defendant’s right to counsel by prohibiting her from accessing her cell phone. Defendant merely commented that her cell phone was in her pocket and thus did not invoke her right to consult with an attorney regarding whether to take a breath test. Wing v. State, 268 P.3d 1105 (Alaska Ct. App. 2012).

Finding that defendant did not invoke her right to a phone call when she asked if she got a phone call, the officer responded “Uh huh,” and defendant did not respond but agreed to provide a breath sample without asking to make a call, was proper. Accordingly, the results were not subject to suppression. Clark v. State, — P.3d — (Alaska Ct. App. Apr. 22, 2015).

Reasonable opportunity to contact attorney. —

Although, after an unsuccessful attempt to contact a particular attorney at his business number, the police officer did not attempt to call him at home, the police officer provided defendant with a reasonable opportunity to contact an attorney where defendant was offered the use of a telephone book several times over the course of the DWI processing; the officer asked if there was anyone else defendant wished to call; and defendant’s request had come near the end of the observation period. Rollefson v. Municipality of Anchorage, 782 P.2d 305 (Alaska Ct. App. 1989).

Police limits on communication with attorney. —

Police do not have to compromise their safety to allow a defendant a greater degree of privacy when making a phone call to an attorney, and the officer’s decision to keep defendant handcuffed and hold the telephone for him was but one of the circumstances reviewed when determining what measures to provide privacy should be deemed reasonable. Alexander v. Municipality of Anchorage, 15 P.3d 269 (Alaska Ct. App. 2000).

Officer’s actions not violative of right. —

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).

Right to contact attorney not denied. —

Defendant was given a reasonable opportunity to contact an attorney, but did not do so, his claim that he was tricked into surrendering his cell phone to the trooper was rejected, and he never told the trooper that he wished to make a second phone call; thus the denial of his motion to suppress the breath test result was proper. Greenway v. State, — P.3d — (Alaska Ct. App. Dec. 30, 2015) (memorandum decision).

Right to contact attorney denied. —

Where the state trooper did not provide the defendant with the public defender’s telephone number, defendant was not denied a reasonable opportunity to consult an attorney before taking the breathalyzer. Anderson v. State, 713 P.2d 1220 (Alaska Ct. App. 1986).

Where, during defendant’s telephone conversation with his attorney, a police officer stood next to defendant and took notes on the conversation and, despite specific requests by both defendant and his attorney, the police failed to make even a minimal effort to accommodate defendant’s right to communicate privately with his attorney, defendant was deprived of his right, under this section and Cr. R. 5(b), to a reasonable opportunity to contact his attorney; all evidence subsequently obtained by police from defendant, including defendant’s refusal to take a breathalyzer test and the videotape of his conduct, had therefore to be suppressed. Farrell v. Municipality of Anchorage, 682 P.2d 1128 (Alaska Ct. App. 1984).

State troopers have no duty to inform a DWI arrestee of the right to have counsel present before field sobriety tests are administered. Anderson v. State, 713 P.2d 1220 (Alaska Ct. App. 1986).

The police failed to take reasonable steps to assure that a defendant had privacy in conversing with his attorney where an officer’s presence throughout the duration of the call, the officers’ repeated conduct that affirmatively intruded on the defendant’s attempts to communicate with counsel, and the activation of a tape recorder precluded him from having any kind of meaningful discussion with his attorney. Reekie v. Municipality of Anchorage, 803 P.2d 412 (Alaska Ct. App. 1990).

Defendant was denied her right to telephone access during the 20-minute period after her arrival at a police station and prior to her intoximeter test, where her four separate requests to telephone her uncle were denied, and exclusion of her breath test result was the appropriate remedy therefor. Zsupnik v. State, 789 P.2d 357 (Alaska 1990).

No right to have counsel present during breath test. —

The 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).

Where a defendant had the opportunity to consult on the telephone with counsel, he received the rights guaranteed him by Copelin v. State, 659 P.2d 1206 (Alaska 1983); and the police were under no duty to delay administration of a breathalyzer examination until counsel could be present, regardless of how short a period that might, in fact, have entailed. Municipality of Anchorage v. Marrs, 694 P.2d 1163 (Alaska Ct. App. 1985).

No right to delay administering of breathalyzer test for further attorney consultation. —

The Court of Appeals does not construe this section to give an arrestee who has spoken with counsel by phone and had a reasonable opportunity to speak with him a right to delay administration of a breathalyzer examination to permit further consultation. Municipality of Anchorage v. Marrs, 694 P.2d 1163 (Alaska Ct. App. 1985).

Collateral references. —

Denial of accused’s request for initial contact with attorney in cases involving offenses other than drunk driving — Cases focusing on presence of inculpatory evidence other than statements by accused and cases focusing on absence of particular inculpatory evidence. 90 ALR5th 225.

Denial of, or interference with, accused’s right to have attorney initially contact accused. 96 ALR5th 327.

Denial of accused’s request for initial contact with attorney — drunk driving cases. 109 ALR5th 611.

Sec. 12.25.160. Definition of “arrest.”

Arrest is the taking of a person into custody in order that the person may be held to answer for the commission of a crime.

History. (§ 2.01 ch 34 SLA 1962)

Notes to Decisions

Arrest for speedy trial purposes. —

“Arrest,” as used in Crim. R. 45, which provides for a 120-day speedy trial period, must be defined in conformity with the statutory definition of an arrest. G.D. v. State, 681 P.2d 366 (Alaska Ct. App. 1984).

Defendant was not arrested on the date of the child-in-need-of-aid hearing, and the 120-day speedy trial period did not begin to run until he was served with a copy of the information charging him with sexual assault in the first degree and contributing to the delinquency of a minor. G.D. v. State, 681 P.2d 366 (Alaska Ct. App. 1984).

Where a defendant was suspected of driving while intoxicated leading to an injury accident, was informed that he could submit to a blood test at the hospital or be arrested and transported to the state police where he would be required by law to submit to a breath test to determine his blood-alcohol level, was released after the blood sample was taken, and was never handcuffed or moved from the hospital, the trial court could find that, although the defendant was in police custody, the custody never amounted to an arrest as defined in this section. Greenawalt v. Municipality of Anchorage, 692 P.2d 983 (Alaska Ct. App. 1985).

Reading Cr. R. 45 and this section together, the time for trial begins to run from the date the defendant is arrested and held to answer for the commission of a specific crime as well as any subsequent charges arising out of the same conduct or same criminal episode. Knowlton v. State, 795 P.2d 1287 (Alaska Ct. App. 1990).

The arrest of a parolee for a parole violation, which is an independent crime, did not trigger the beginning of the 120-day period for prosecution of the underyling offense under Crim. R. 45. Knowlton v. State, 795 P.2d 1287 (Alaska Ct. App. 1990).

The differing purposes governing parole revocation proceedings and criminal trials warranted a conclusion that defendant was not “held to answer” for the commission of the crime of forgery by virtue of his arrest for violating the conditions of his parole, even though the condition violated was that defendant refrain from committing further crimes. Knowlton v. State, 795 P.2d 1287 (Alaska Ct. App. 1990).

Only one hand in handcuffs. —

Defendant’s claim that his arrest was already complete when he prevented the trooper from securing his second arm in handcuffs was meritless; defendant was not entitled to an acquittal because the arrest was not complete for purposes of AS 11.56.700(a) when only one of his arms was in handcuffs. Fallon v. State, 221 P.3d 1016 (Alaska Ct. App. 2010).

Drawn guns and handcuffing do not necessarily turn stop into arrest. Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Lawful stops and custodial arrest distinguished. —

See Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983).

Applied in

Goss v. State, 390 P.2d 220 (Alaska 1964); Aldridge v. State, 602 P.2d 798 (Alaska 1979); Maynard v. State, 652 P.2d 489 (Alaska Ct. App. 1982).

Quoted in

Jacobson v. State, 786 P.2d 388 (Alaska Ct. App. 1990); Demientieff v. State, 814 P.2d 745 (Alaska Ct. App. 1991); Lopez v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018).

Cited in

Cannizzaro v. State, 765 P.2d 110 (Alaska Ct. App. 1988).

Article 2. Citations.

Sec. 12.25.175. Uniform citation format and procedure.

  1. Notwithstanding any contrary provision of law, a citation issued by a peace officer or by another person who is authorized by law to issue a citation in the state must comply with standards concerning uniform citation format and procedure adopted by the Department of Public Safety. The standards must include
    1. a statewide numbering system for citations;
    2. a requirement that a citation be made upon oath or affirmation before a person authorized by law to administer oaths or affirmations or signed with a certification under penalty of perjury that the citation is true and was personally served on the person charged or served in a manner permitted under (d) of this section;
    3. a requirement that the citation contain information required by AS 12.25.200(b) .
  2. The commissioner of public safety shall provide or prescribe citation forms for use by peace officers and other persons who are authorized by law to issue citations.
  3. The commissioner of public safety shall adopt regulations under AS 44.62 (Administrative Procedure Act) to implement this section.
  4. The standards adopted by the department under (a) of this section must allow for service of a citation by other than personal service when the citation is for commission of an infraction or a violation for an offense other than an offense under AS 04.16.050 or an offense involving a moving motor vehicle, the offense is punishable by a fine of $500 or less, and the peace officer or other person authorized by law to issue the citation
    1. leaves the citation in a conspicuous place on the vehicle or other personal or real property that was the subject of the infraction or violation; or
    2. serves the citation in a manner permitted for service of process under Rule 4, Alaska Rules of Civil Procedure.

History. (§ 21 ch 29 SLA 2010; am §§ 1, 2 ch 53 SLA 2014)

Effect of amendments. —

The 2014 amendment, effective June 24, 2014, in the introductory language in (a), substituted “officer or by another person” for “officer and by another person”, in (a)(2), added “or served in a manner permitted under (d) of this section” at the end; added (d).

Effective dates. —

Section 65, ch. 29, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

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

Sec. 12.25.180. When peace officer may issue citation or take person before the court.

  1. When a peace officer stops or contacts a person for the commission of a class C felony offense, a misdemeanor, or the violation of a municipal ordinance, the officer may, in the officer’s discretion, issue a citation to the person instead of taking the person before a judge or magistrate under AS 12.25.150 , except the officer may arrest if
    1. the person does not furnish satisfactory evidence of identity;
    2. the peace officer reasonably believes the person is a danger to others;
    3. the crime for which the person is contacted is one involving violence or harm to another person or to property;
    4. the person asks to be taken before a judge or magistrate under AS 12.25.150 ; or
    5. the peace officer has probable cause to believe the person committed a crime involving domestic violence; in this paragraph, “crime involving domestic violence” has the meaning given in AS 18.66.990 .
  2. When a peace officer stops or contacts a person for the commission of an infraction or a violation, the officer shall issue a citation instead of taking the person before a judge or magistrate under AS 12.25.150 , except the officer may arrest if
    1. the person does not furnish satisfactory evidence of identity;
    2. the person refuses to accept service of the citation.
    3. [Repealed, § 138 ch 4 FSSLA 2019.]
  3. A person may not bring a civil action for damages for a failure to comply with the provisions of this section.

History. (§ 1 ch 31 SLA 1973; am § 19 ch 127 SLA 1974; am § 3 ch 144 SLA 1977; am § 34 ch 102 SLA 1980; am § 9 ch 64 SLA 1996; am § 22 ch 29 SLA 2010; am §§ 51, 52 ch 36 SLA 2016; am § 138 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(s)(1), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “When a peace officer stops or contacts a person” for “When a person is stopped or contacted by a peace officer”; substituted “the officer may, in the officer’s discretion, issue a citation to the person instead of taking the person before a judge or magistrate under AS 12.25.150 ” for “the person may, in the discretion of the contacting peace officer, be issued a citation instead of being taken before a judge or magistrate under AS 12.25.150 ”, in (a)(2) substituted “the contacting officer reasonably believes” for “the contacting officer has reasonable and probable cause to believe”; rewrote the introductory language of (b), which read, “When a person is stopped or contacted by a peace officer for the commission of an infraction or a violation, the person shall be issued a citation instead of being taken before a judge or magistrate under AS 12.25.150”, rewrote (b)(2), which read, “the person refuses to accept the citation or to give a written promise to appear as provided for under AS 12.25.190(c) ”.

The 2016 amendment, effective January 1, 2017, in (a), inserted “a class C felony offense,” following “commission of” and substituted “except the officer may arrest if” for “unless”; in (2), substituted “peace” for “contacting” and deleted “self or” preceding “others”; in (b), substituted “except the officer may arrest if” for “unless”; added (b)(3); added (c); and made stylistic changes.

The 2019 amendment, effective July 1, 2019, repealed (b)(3).

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendments of this section apply “to all citations issued . . . for violations occurring on or after July 1, 2010.”

Legislative history reports. —

For report on ch. 31, SLA 1973 (SB 25), see 1973 Senate Journal Supplement No. 7, p. 2.

Notes to Decisions

Credibility of witnesses. —

Since the trial court has the primary responsibility for evaluating witness credibility, where the court concluded that a police officer’s version of events was credible, probable cause existed to stop the defendant and issue a citation, and there was no error in denying the defendant’s suppression motion. Vigue v. State, 987 P.2d 204 (Alaska Ct. App. 1999).

Intent to issue citation. —

Defendant was properly convicted of fourth- and sixth-degree controlled substance misconduct because the evidence against him was obtained lawfully inasmuch as defendant voluntarily disclosed his possession of a pocket knife as soon as he was asked and readily consented to having a police officer take control of the knife for the duration of their encounter, and the discovery of a pipe and marijuana gave the officer an articulable reason to believe that defendant might be carrying additional evidence of a drug offense, which authorized the officer was to conduct a pat-down search of the rest of defendant's pockets even though the officer had already decided that he was going to issue a summons to defendant and then allow him to leave. McGuire v. State, 425 P.3d 203 (Alaska Ct. App. 2018).

Subsection (a) does not require a citation to be issued. —

Subsection (a) authorizes a police officer to issue a citation to a misdemeanor offender in lieu of making an arrest, unless one of the enumerated exceptions applies. But the statute does not require a police officer to follow this course. Jurco v. State, 825 P.2d 909 (Alaska Ct. App. 1992).

Applied in

Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Stated in

Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002).

Cited in

State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Sec. 12.25.190. When person to be given five-day notice to appear in court.

  1. When a person is contacted by a peace officer and the peace officer exercises one of the options provided for in AS 12.25.180 , the officer shall prepare a written citation and issue it to the person.
  2. The time specified in the notice to appear shall be at least two working days after the issuance of the citation under AS 12.25.180(a) .
  3. The person cited shall accept at least one copy of the written citation prepared by the peace officer.
  4. The time specified in the notice to appear shall be at least five working days after issuance of the citation under AS 12.25.180(b) .

History. (§ 1 ch 31 SLA 1973; am § 20 ch 127 SLA 1974; am § 4 ch 144 SLA 1977; am § 20 ch 178 SLA 1978; am § 12 ch 34 SLA 1984; am § 1 ch 102 SLA 1984; am § 1 ch 132 SLA 1984; am § 1 ch 37 SLA 1987; am § 1 ch 76 SLA 1987; am § 3 ch 81 SLA 1989; am § 25 ch 28 SLA 2000; am § 3 ch 64 SLA 2004; am § 23 ch 29 SLA 2010; am §§ 53, 54 ch 36 SLA 2016)

Delayed amendment of subsection (c). —

Under §§ 26 and 30, ch. 28, SLA 2000, as amended by § 3, ch. 34, SLA 2004, § 41, ch. 12, SLA 2006, § 1, ch. 19, SLA 2009, § 24, ch. 29, SLA 2010, § 1, ch. 47, SLA 2010, and § 3, ch. 31, SLA 2012, effective on the occurrence of the contingency described in § 30(2), ch. 28, SLA 2000, subsection (c) of this section will be repealed and reenacted. The contingency described in § 30(2), ch. 28, SLA 2000, gives effect to the change “90 days after the date the chair of the Alaska Legislative Council notifies the revisor of statutes that in the previous state fiscal year the state did not receive and does not anticipate receiving federal funding for a statewide boating and safety education program; the director of the division of legislative finance shall notify the chair of the Alaska Legislative Council when the state, in the previous fiscal year, did not receive federal funding for a statewide boating and safety program; the chair of the Alaska Legislative Council may not give the notice described in this section unless the notice is approved by a vote of a majority of the members of the Alaska Legislative Council.” Thereafter, subsection (c) will read as follows: “(c) The person cited shall accept at least one copy of the written citation prepared by the peace officer.” As of January 2022, the contingency had not occurred.

Under sec. 1(2), ch. 28, SLA 2000, any other intervening amendments to subsection (c) are not to be retained when that subsection is amended under sec. 30, ch. 28, SLA 2000.

Revisor’s notes. —

In 2008, in (c) of this section, “AS 05.25.090(c) ” was substituted for “AS 05.25.090(b) ” to correct a manifest error.

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(s)(2), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “one of the options provided” for “the option provided”; in (b), substituted “five working days after the issuance of the citation” for “five days after the alleged violation or the issuance of the citation, whichever is later, unless the person cited requests an earlier hearing”; rewrote (c); conditionally rewrote (c), as repealed and reenacted by sec. 26, ch. 28, SLA 2000 and by sec. 41, ch. 12, SLA 2006.

The 2016 amendment, effective January 1, 2017, in (b), substituted “two” for “five” and inserted “under AS 12.25.180(a) ” at the end of the sentence; added (d).

Editor’s notes. —

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

Notes to Decisions

Applied in

Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Sec. 12.25.195. Disposition of scheduled offenses.

  1. If a person cited for an offense for which a scheduled amount of bail or a fine has been established does not contest the citation, the person may mail or personally deliver to the clerk of the court with appropriate jurisdiction if a bailable offense, or to the clerk of the municipality that issued the citation if a scheduled municipal fine, the amount of the bail or fine indicated on the citation for the offense together with a copy of the citation signed by the person indicating the person’s waiver of court appearance, entry of plea of no contest, and forfeiture of bail or fine. The citation with the bail or fine shall be mailed or personally delivered on or before the 30th day after the date the citation was issued.
  2. When bail or a fine is forfeited under this section, a judgment of conviction shall be entered. The bail or fine paid is complete satisfaction for the offense.
  3. Disposition of an offense under (a) of this section may not occur unless the person cited for the offense pays the surcharge prescribed in AS 12.55.039 in addition to the scheduled bail or fine amount. The surcharge required to be paid under this subsection shall be deposited into the general fund and accounted for under AS 37.05.142 .

History. (§ 2 ch 76 SLA 1987; am § 1 ch 56 SLA 1998; am § 25 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), in the first sentence, substituted “If a” for “A”, added “does not contest the citation, the person”, and substituted the last sentence for the last two sentences.

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. 12.25.200. Form for citations.

  1. The chief administrative officer of each law enforcement agency or other agency authorized to issue citations in the state is responsible for the issuance of books containing appropriate citations, and shall maintain a record of each book and each citation contained in it and shall require and retain a receipt for every book issued to a peace officer or other person authorized to issue citations.
  2. A citation issued under AS 12.25.180 or other law authorizing the issuance of a citation must be in writing and indicate, if applicable,
    1. the amount of bail or fine and the surcharge applicable to the offense;
    2. the procedure a person must follow in responding to the citation;
    3. that, if the person fails to pay the bail or fine, the person must appear in court;
    4. that failure to pay the bail or fine or appear in court for an offense involving a moving motor vehicle may result in
      1. suspension of the person’s driver’s license, privilege to drive, or privilege to obtain a license; or
      2. attachment of the person’s permanent fund dividend to pay the fine plus court and collection costs under AS 28.05.155 ; and
    5. that the person has a right to
      1. a trial;
      2. engage counsel;
      3. confront and question witnesses;
      4. testify;
      5. subpoena witnesses on the person’s behalf.

History. (§ 1 ch 31 SLA 1973; am § 3 ch 76 SLA 1987; am § 2 ch 47 SLA 1996; am § 2 ch 56 SLA 1998; am § 26 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), added “or other agency authorized to issue citations” following “law enforcement agency”, and “or other person authorized to issue citations” following “for every book issued to a peace officer”; rewrote the introductory language of (b), which read, “A citation issued under AS 12.25.180 must indicate”, and made stylistic changes.

Editor’s notes. —

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

Sec. 12.25.210. Disposition and records of citations.

  1. A peace officer or other person authorized by law to issue a citation, upon issuing a citation to an alleged violator under AS 12.25.180 or other law, on or before the 10th working day after issuance, shall deposit the original or a copy of the citation with a court having jurisdiction over the alleged offense. If the citation charges an offense under a municipal ordinance for which a scheduled fine has been established, the peace officer shall deposit the original or a copy of the citation with the clerk of the municipality that issued the citation, unless otherwise provided under rule adopted by the supreme court. Failure to file the citation within the prescribed time is not a basis for dismissal of the citation.
  2. Upon the deposit of the original or a copy of the citation with a court having jurisdiction over the alleged offense, the original or copy of the citation may be disposed of only by trial in the court or other official action by a magistrate or judge of the court.
  3. It is unlawful and official misconduct for a peace officer or other officer or public employee to dispose of a citation or copies of it or of the record of the issuance of the citation in a manner other than as required in this section.
  4. The chief administrative officer of each law enforcement or other agency shall require each officer or other person in the agency to retain a copy of every citation issued by the officer or other person to an alleged violator of a law or ordinance and all copies of every citation that has been spoiled or upon which any entry has been made and not issued to an alleged violator.
  5. The chief administrative officer of each law enforcement or other agency shall also maintain, in connection with every citation issued by an officer or other person in the agency, a record of the disposition of the charge by the court in which the original or copy of the citation was deposited.

History. (§ 1 ch 31 SLA 1973; am § 4 ch 76 SLA 1987; am §§ 27 — 29 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), in the first sentence, added “or other person authorized by law to issue a citation” following “A peace officer”, and “or other law, on or before the 10th working day after issuance” following “AS 12.25.180 ”, and added the last sentence; in (d), added “or other” following “each law enforcement”, added “or other person” two times, and substituted “retain” for “return” following “in the agency to”; in (e), added “or other” following “each law enforcement”, “or other person” following “issued by an officer”, and made stylistic changes.

Editor’s notes. —

Under § 61, ch. 29, SLA 2010, the 2010 amendments to (a), (d), and (e) of this section apply “to all citations issued —. for violations occurring on or after July 1, 2010.”

Sec. 12.25.220. When copy of citation considered a lawful complaint.

If the form of citation provided under AS 12.25.200 includes information and is sworn to as required under the laws of this state in respect to a complaint charging commission of the offense alleged in the citation, then the citation when filed with a court having jurisdiction is considered to be a lawful complaint for the purpose of prosecution.

History. (§ 1 ch 31 SLA 1973)

Notes to Decisions

When citation is a charge within meaning of Crim. R. 45. —

When a citation is served which gives a person official notice that he or she is accused of a crime and is summoned to appear in court to answer for such crime upon penalty of fine and/or imprisonment, the citation is a charge within the meaning of Crim. R. 45 which triggers the 120-day period for commencing a trial. Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Service of a Uniform Summons and Complaint triggers the 120-day period in which trial must be commenced under Crim. R. 45. Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Cited in

Bailey v. Municipality of Anchorage, 955 P.2d 947 (Alaska Ct. App. 1998).

Sec. 12.25.230. Failure to obey citation; limitation on penalty.

  1. Except as provided in (b) of this section or otherwise specifically provided by law, a person who fails to appear in court to answer the citation, regardless of the disposition of the charge for which the citation was issued, is guilty of a class A misdemeanor.
  2. A person who fails to pay the bail or fine or appear in court in response to a citation for which a scheduled bail or fine is established, regardless of the disposition of the charge for which the citation was issued, is guilty of a class B misdemeanor.
  3. If a person cited for an offense for which an amount of scheduled bail or fine has been established appears in court and is found guilty, the penalty imposed for the offense may not exceed the bail or fine established for the offense.

History. (§ 1 ch 31 SLA 1973; am § 5 ch 144 SLA 1977; am §§ 5, 6 ch 76 SLA 1987; am §§ 30, 31 ch 29 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), added “or otherwise specifically provided by law” following “in (b) of this section”, and substituted “guilty of a class A misdemeanor” for “guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both.”; repealed and reenacted (b).

Editor’s notes. —

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

Notes to Decisions

Applied in

Ahmaogak v. State, 595 P.2d 985 (Alaska 1979).

Chapter 30. Bail.

Revisor’s notes. —

Chapter 20, SLA 1966, which repealed and reenacted this chapter, was based largely on SB 1357, 89th Congress, First Session.

Cross references. —

For court rules on bail, see Rule 41, Alaska Rules of Criminal Procedure; for constitutional provisions, see art. I, § 11, Alaska Constitution.

Legislative history reports. —

For governor’s transmittal letter for ch. 19, SLA 2010 (House Bill 324), relating to the 2010 additions, amendments, reenactments, and repeals of provisions of this chapter, see 2010 House Journal 1401 — 1404.

Collateral references. —

8A Am. Jur. 2d, Bail and Recognizance, § 1 et seq.

8 C.J.S., Bail, § 1 et seq.

Sec. 12.30.006. Release procedures.

  1. At the first appearance before a judicial officer, a person charged with an offense shall be released or detained under the provisions of this chapter.
  2. At the first appearance before a judicial officer, a person may be detained up to 48 hours for the prosecuting authority to demonstrate that release of the person under AS 12.30.011 would not reasonably ensure the appearance of the person or will pose a danger to the victim, other persons, or the community, if the person has
    1. been charged with an unclassified, class A, class B, or class C felony; or
    2. a criminal conviction or charge outside the state.
  3. A person who remains in custody 48 hours after appearing before a judicial officer because of inability to meet the conditions of release shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. If the judicial officer who imposed the conditions of release is not available, any judicial officer in the judicial district may review the conditions.
  4. If a person remains in custody after review of conditions by a judicial officer under (c) of this section, the person may request a subsequent review of conditions. Unless the prosecuting authority stipulates otherwise or the person has been incarcerated for a period equal to the maximum sentence for the most serious charge for which the person is being held, a judicial officer may not schedule a bail review hearing under this subsection unless
    1. the person provides to the court and the prosecuting authority a written statement that new information not considered at the previous review will be presented at the hearing; the statement must include a description of the information and the reason the information was not presented at a previous hearing; in this paragraph, “new information” includes the person’s inability to post the required bail if the person can show that the person made a good faith effort to post the required bail;
    2. the prosecuting authority and any surety, if applicable, have at least 48 hours’ written notice before the time set for the review requested under this subsection; the defendant shall notify the surety; and
    3. at least seven days have elapsed between the previous review and the time set for the requested review; however, a person may receive only one bail review hearing solely for inability to pay.
  5. A judicial officer may solicit comments by the victim or a parent or guardian of a minor victim who is present at the bail review hearing and wishes to comment. The judicial officer shall consider those comments and any response by the person before making a decision concerning the release of the person.
  6. The judicial officer shall issue written or oral findings that explain the reasons the officer imposed the particular conditions of release or modifications or additions to conditions previously imposed. The judicial officer shall inform the person that a law enforcement officer or a pretrial services officer under AS 33.07 may arrest the person without a warrant for violation of the court’s order establishing conditions of release.
  7. Information offered or introduced at a bail hearing to determine conditions of release need not conform to the rules governing the admissibility of evidence.

History. (§ 4 ch 19 SLA 2010; am §§ 55 — 58 ch 36 SLA 2016; am § 26 ch 1 4SSLA 2017; am § 10 ch 22 SLA 2018; am §§ 56 — 58 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(1) — (4), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendment to subsection (b), see sec. 75(a)(21), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2018, in (b), inserted “, other than a class C felony and the person has been assessed as low risk under AS 12.30.011(c)(1) ,” following “with a felony”; substituted “AS 12.30.011 ” for “AS 12.30.011(a) ”; substituted “ensure” for “assure”; added the last sentence in (c) and added (c)(1) and (c)(2); in (d)(1), substituted “includes the person's inability” for “does not include the inability”; at the end of (d)(3), inserted “; however, a person may receive only one bail review hearing solely for inability to pay”; in (f), inserted “or a pretrial services officer under AS 33.07” preceding “may arrest”.

The 2017 amendment, effective January 1, 2018, in the introductory language in (b), deleted “who is charged with a felony, other than a class C felony and the person has been assessed as low risk under AS 12.30.011(c)(1) ,” preceding “may be detained”, inserted “, if the person has been charged with the following crimes:” at the end, added (b)(1) — (3).

The 2018 amendment, effective June 15, 2018, rewrote (b).

The 2019 amendment, effective July 9, 2019, deleted “that has not been used in determining the person’s risk level in the pretrial risk assessment under AS 33.07” at the end of (b)(2); rewrote (c), which read, “A person who remains in custody 48 hours after appearing before a judicial officer because of inability to meet the conditions of release shall, upon application, be entitled to have the conditions reviewed by the judicial officer who imposed them. If the judicial officer who imposed the conditions of release is not available, any judicial officer in the judicial district may review the conditions. Upon review of the conditions, the judicial officer shall revise any conditions of release that have prevented the defendant from being released unless the judicial officer finds on the record that there is clear and convincing evidence that less restrictive release conditions cannot reasonably ensure the

“(1) appearance of the person in court; and

“(2) safety of the victim, other persons, and the community.”; and in (d), added “if the person can show that the person made a good faith effort to post the required bail” at the end of (d)(1), and substituted “48 hours’” for “48 hours”” in (d)(2).

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 amendments of (b) – (d) of this section apply “to offenses committed on or after July 9, 2019.”

Notes to Decisions

Editor's notes. —

Many of the cases cited in the notes below were decided under former AS 12.30.010 or 12.30.020 .

An indigent defendant does not have an absolute right to be released on his own recognizance prior to trial. Reeves v. State, 411 P.2d 212 (Alaska 1966); Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Pretrial release for all indigent defendants is not required by any provisions of the Criminal Code or under the federal constitution or the Alaska Constitution. Reeves v. State, 411 P.2d 212 (Alaska 1966).

Independent assessment of conditions of release required. —

Superior court was not entitled to clarification of the appellate court’s order to set defendant’s bail because it was up to the superior court to inquire into the assets available to defendant’s family to meet the monetary component of her bail, the appropriate legal framework for the analysis was set out in the Alaska Constitution, the superior court should also consider its obligations under the bail statute, the statutory restrictions were predicated on the assumption that there had already been a full inquiry into the available assets, and specific findings were needed the trial court’s justification for imposing the $ 500,000 cash or corporate surety monetary condition. West v. State, — P.3d — (Alaska Ct. App. Sept. 2, 2014).

Because the superior court was required to independently assess defendant's conditions of release, and the supreme court was unable to say that defendant received the hearing to which he was entitled, his case was remanded to the superior court so that it could conduct the independent review. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

At a first bail review hearing, a judicial officer is required to assess a defendant's conditions of release anew; at a defendant's first bail review hearing, a court is required to conduct an independent assessment of the defendant's conditions of release, and the court may not simply defer to the bail conditions imposed at a defendant's first court appearance. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

When subsections (c) and (d) are read together, it is clear that a defendant need not present any “new” information at the first bail review hearing under subsection (c), that is, the defendant need not present any information that was not previously known at the time of the defendant's first appearance; instead, at a first bail hearing, a defendant who remains in custody is “entitled” to have the conditions reviewed by a judicial officer. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

Requirement that judges conduct an independent assessment of a defendant's conditions of release at the first bail review hearing affords defendants a meaningful opportunity to consult with their attorney and gather any necessary information relevant to the bail decision; it also allows the court an opportunity to explain its bail decision, in order to help foster understanding of the decision by the defendant and the public, and to allow for meaningful appellate review. Torgerson v. State, 444 P.3d 235 (Alaska Ct. App. 2019).

Because the superior court was required to independently assess defendant's conditions of release, and because the court of appeals was unable to say that defendant received the bail review hearing to which he was entitled, the case was remanded to the superior court to conduct that independent review. James v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2020).

The ability of an arrestee to obtain a prompt release by posting bail for a petty offense should not depend on the fortuitous circumstance of one having sufficient money on his person to post the bail at the time he arrives at the jail. Many people do not carry much cash on their person. Those persons should be permitted access to a telephone in order to get in touch with a relative, an employer, a friend, or an attorney, who could come to the stationhouse within a reasonable time and put up the necessary bail. Whether circumstances justify a variance will depend on the particular facts involved. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

Such released arrestee should not be subjected to booking procedures. —

Where a jail had been provided with a bail schedule for petty offenses, the purpose of which was to afford an arrestee the opportunity to avoid incarceration by posting the established bail without need to appear before a magistrate, if one is arrested for a petty offense and has sufficient funds on his person to post the established bail when brought to the jail facility, he should be released immediately. There is no reason to subject such an arrestee to booking procedures with the resultant inventory search of his person since he is not to be incarcerated. Zehrung v. State, 569 P.2d 189 (Alaska 1977).

In camera bail hearings not authorized. —

Neither Alaska’s Bail Reform Act nor the rules of criminal procedure authorize the trial courts of Alaska to conduct in camera bail hearings. Carman v. State, 564 P.2d 361 (Alaska 1977).

Trial judges have wide latitude. Although the trial court may not deny bail to an accused, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Evidence relevant in determining amount of bail or conditions of release. —

Evidence in bail proceedings to the effect that an accused is a danger to the community has been decreed relevant by the legislature for the purpose of determining either the amount of bail or conditions of release. Carman v. State, 564 P.2d 361 (Alaska 1977).

It was error to deny defendants' motions for a second bail review hearing because the existence of the COVID-19 pandemic was "new information" for such purposes, entitling defendants to hearings to individually assess bail release proposals in the context of the pandemic. Karr v. State, 459 P.3d 1183 (Alaska Ct. App. 2020).

Bail review hearing. —

Trial court did not err in holding a bail review hearing at the State's request; if the State has new information related to a person's flight risk or dangerousness, the court has the authority to hear that new information and to determine whether the existing bail conditions are sufficient in light of that new information, but any change in the bail must actually be predicated on this new information. James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Cited in

Sergie v. State, — P.3d — (Alaska Ct. App. July 30, 2021).

Sec. 12.30.010. Bail before or after conviction; restrictions on release without bail. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.011. Release before trial.

  1. Except as otherwise provided in this chapter, a judicial officer shall order a person charged with an offense to be released on the person’s personal recognizance or upon execution of an unsecured appearance bond, on the condition that the person
    1. obey all court orders and all federal, state, and local laws;
    2. appear in court when ordered;
    3. if represented, maintain contact with the person’s lawyer; and
    4. notify the person’s lawyer, who shall notify the prosecuting authority and the court, not more than 24 hours after the person changes residence.
  2. If a judicial officer determines that the release under (a) of this section will not reasonably ensure the appearance of the person or will pose a danger to the victim, other persons, or the community, the officer shall impose the least restrictive condition or conditions that will reasonably ensure the person’s appearance and protect the victim, other persons, and the community. In addition to conditions under (a) of this section, the judicial officer may, singly or in combination,
    1. require the execution of an appearance bond in a specified amount of cash to be deposited into the registry of the court, in a sum not to exceed 10 percent of the amount of the bond;
    2. require the execution of a bail bond with sufficient solvent sureties or the deposit of cash;
    3. require the execution of a performance bond in a specified amount of cash to be deposited in the registry of the court;
    4. place restrictions on the person’s travel, association, or residence;
    5. order the person to refrain from possessing a deadly weapon on the person or in the person’s vehicle or residence;
    6. require the person to maintain employment or, if unemployed, actively seek employment;
    7. require the person to notify the person’s lawyer and the prosecuting authority within two business days after any change in employment;
    8. require the person to avoid all contact with a victim, a potential witness, or a codefendant;
    9. require the person to refrain from the consumption and possession of alcoholic beverages;
    10. require the person to refrain from the use of a controlled substance as defined by AS 11.71, unless prescribed by a licensed health care provider with prescriptive authority;
    11. require the person to be physically inside the person’s residence, or in the residence of the person’s third-party custodian, at time periods set by the court;
    12. require the person to keep regular contact with a law enforcement officer or agency;
    13. order the person to refrain from entering or remaining in premises licensed under AS 04;
    14. place the person in the custody of an individual who agrees to serve as a third-party custodian of the person as provided in AS 12.30.021 ;
    15. if the person is under the treatment of a licensed health care provider, order the person to follow the provider’s treatment recommendations;
    16. order the person to take medication that has been prescribed for the person by a licensed health care provider with prescriptive authority;
    17. order the person to submit to electronic monitoring;
    18. order the person to submit to a pretrial risk assessment by the Department of Corrections under AS 33.07;
    19. order the person to submit to supervision by a pretrial services officer under AS 33.07, which may include the use of electronic monitoring;
    20. order the person to comply with any other condition that is reasonably necessary to ensure the appearance of the person and to ensure the safety of the victim, other persons, and the community; and
    21. require the person to comply with a program established under AS 47.38.020 if the person has been charged with an alcohol-related or substance-abuse-related offense that is an unclassified felony, a class A felony, a sexual felony, or a crime involving domestic violence.
  3. In determining the conditions of release under this chapter, the court shall consider the following:
    1. the nature and circumstances of the offense charged;
    2. the weight of the evidence against the person;
    3. the nature and extent of the person’s family ties and relationships;
    4. the person’s employment status and history;
    5. the length and character of the person’s past and present residence;
    6. the person’s record of convictions and any pending criminal charges;
    7. the person’s record of appearance at court proceedings;
    8. assets available to the person to meet monetary conditions of release;
    9. the person’s reputation, character, and mental condition;
    10. the effect of the offense on the victim, any threats made to the victim, and the danger that the person poses to the victim;
    11. any other facts that are relevant to the person’s appearance or the person’s danger to the victim, other persons, or the community; and
    12. the pretrial risk assessment provided by a pretrial services officer, if available.
  4. In making a finding regarding the release of a person under this chapter,
    1. except as otherwise provided in this chapter, the burden of proof is on the prosecuting authority that a person charged with an offense should be detained or released with conditions described in (b) of this section or AS 12.30.016 ;
    2. there is a rebuttable presumption that there is a substantial risk that the person will not appear and the person poses a danger to the victim, other persons, or the community, if the person is
      1. charged with an unclassified felony, a class A felony, a sexual felony, or a felony under AS 28.35.030 or 28.35.032 ;
      2. charged with a felony crime against a person under AS 11.41, was previously convicted of a felony crime against a person under AS 11.41 in this state or a similar offense in another jurisdiction, and less than five years have elapsed between the date of the person’s unconditional discharge on the immediately preceding offense and the commission of the present offense;
      3. charged with a felony offense committed while the person was on release under this chapter for a charge or conviction of another offense;
      4. charged with a crime involving domestic violence, and has been convicted in the previous five years of a crime involving domestic violence in this state or a similar offense in another jurisdiction;
      5. arrested in connection with an accusation that the person committed a felony outside the state or is a fugitive from justice from another jurisdiction, and the court is considering release under AS 12.70.
  5. If the supreme court establishes a schedule of bail amounts or conditions of release for misdemeanor offenses, the schedule must include a condition providing that a correctional facility shall, at the time of release, conduct a chemical test of the breath of a person who has been arrested and who is intoxicated and shall detain the person until the test result indicates that the person’s breath has less than 0.08 grams of alcohol for each 210 liters of breath or, with the consent of the person, release the person to another person who is willing and able to provide care for the person.

History. (§ 5 ch 19 SLA 2010; am § 20 ch 83 SLA 2014; § 59 ch 36 SLA 2016; am § 27 ch 1 4SSLA 2017; am §§ 11 — 15 ch 22 SLA 2018; am § 59 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(5), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts. For the effect of the 2016 amendments to this section that take effect in 2018 on Rule 41, Alaska Rules of Criminal Procedure, see sec. 180(a), ch. 36, SLA 2016 in the 2016 Temporary and Special Acts.

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

For statement of legislative intent regarding a release decision when a person's criminal conviction or charge outside the state is included in a pretrial risk assessment conducted under AS 33.07, see sec. 1, ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

For provision relating to applicability of the 2018 amendments to this section, see sec. 30(b), ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

For the effect of the 2018 amendments to this section on Rule 41, Alaska Rules of Criminal Procedure, see sec. 29, ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The 2014 amendment, effective July 17, 2014, added (b)(18), and made a related change.

The 2016 amendment, effective January 1, 2018, rewrote the section.

The 2017 amendment, effective January 1, 2018, added ( l ).

The 2018 amendment, effective June 15, 2018, in (a), substituted “Except as otherwise provided by this chapter, a judicial officer” for “A judicial officer”; in (b), deleted “risk shall be released on the person's own recognizance or upon execution of an unsecured appearance bond or unsecured performance bond; or” and made related changes; in (c), deleted “low risk shall be released on the person's own recognizance or upon execution of an unsecured appearance bond or unsecured performance bond; or” and made related and stylistic changes; in the introductory language in (g), substituted “chapter” for “section”, and in (g)(5), added “if the person is represented by an attorney” at the end; in (i)(6), added “, including convictions outside the state”.

The 2019 amendment, effective July 9, 2019, repealed and reenacted this section.

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 36(a), ch. 83, SLA 2014, subsection (b) as amended by sec. 20, ch. 83, SLA 2014, applies to offenses occurring on or after July 17, 2014.

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 repeal and reenactment of this section applies "to offenses committed on or after July 9, 2019.”

Notes to Decisions

Editor's notes. —

Many of the cases cited in the notes below were decided under former AS 12.30.010 or 12.30.020 .

The right to bail under this section is guaranteed prior to conviction. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Statutory presumption. —

Statutory presumption of dangerousness is largely meaningless in a case where the court has already found the defendant to be dangerous and has already accounted for that dangerousness in the court's bail order; likewise, a statutory presumption that a defendant is a flight risk is irrelevant in a case where that presumption was apparently rebutted, and no appearance bond was ever imposed. James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Amount of bond not abuse of discretion. —

Superior court's decision to require a $ 50,000 performance bond was not unreasonable; superior court considered the relevant factors and made explicit findings in support of its decision, and given the seriousness of the current charges and defendant's past criminal history, no abuse of discretion was found. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

Denial of bail prior to conviction is unconstitutional. —

An order denying bail to one accused of a crime, but not yet convicted, is in violation of Alaska Const., art. I, § 11, and the provisions of the Alaska Bail Reform Act. Gilbert v. State, 540 P.2d 485 (Alaska 1975).

Former AS 12.30.011(d)(2) (amended 2018) is unconstitutional as it presumes that a defendant cannot be released on bail, and Alaska Const. art. I, § 11, contains a specific guarantee of pre-conviction bail. Hamburg v. State, 434 P.3d 1165 (Alaska Ct. App. 2018), vacated, — P.3d — (Alaska Ct. App. 2019).

Discretion of court. —

Contrary to defendant's argument, even under the new bail statute, trial courts retain the discretion to require defendants to post 100 percent of the bond, either in cash or by surety. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

But trial judge may consider danger to community in assessing amount of bail. —

Although he may not deny bail to an accused, prior to conviction, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975) (decided under former AS 12.30.010 ).

Cash performance bond did not preclude other conditions. —

There was no merit to defendant's claim that the $5,000 cash performance bond precluded the imposition of any other bail conditions, given that the statute permitted such. Redfox v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2021) (memorandum decision).

Application of new bail statute. —

It was not clear that application of the new bail statute to defendant's case would make any material difference to his bail, as the superior court rescinded its no-bail order and set conditions of release; the new bail statute had essentially the same standard that applied under the former bail statute once the no-bail presumption had been rebutted, as it had been in defendant's case, plus under the new statute, defendant would be subject to the same bail restrictions as under the former statute. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

Increase of performance bond. —

Because the State did not ultimately present any new information regarding James's conduct or dangerousness, the superior court should not have increased defendant's performance bond and should have declined further review. James v. State, — P.3d — (Alaska Ct. App. Dec. 11, 2019).

Ability to pay. —

To the extent superior court might have been wrong in its estimation of defendant's ability to pay, it was incumbent on him to object to the $ 50,000 bond on that basis and provide sufficient financial information to allow the court to assess his argument; without this kind of record, the court would not second-guess the superior court's reasons for imposing the bond, nor assume the amount was outside defendant's ability to pay. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

State properly conceded that the trial court erred in refusing to hear testimony regarding the ability of defendant's family to post a $25,00 cash-only performance bond and in failing to provide case-specific reasons for why that amount of monetary bail was necessary given the factors set fort in AS § 12.30.011(c), the prohibitions on excessive bail in U.S. Const. amend. VIII; Alaska Const. art. I, § 12, and the case law requirements for a particularized statement and explanation. Sergie v. State, — P.3d — (Alaska Ct. App. July 30, 2021).

Bail amount constituted abuse of discretion. —

Monetary amount imposed for bail constituted an abuse of discretion because the superior court approved a highly restrictive bail release plan with electronic monitoring, house arrest, and partial third-party custodians; appellant agreed to augment that plan with a $10,000 unsecured appearance bond and a $3,000 cash-only performance bond; it was not clear why imposing an additional $17,000 beyond what appellant's family had the ability to pay would make the community any safer or her bail plan materially more robust; and the superior court was required to impose the least restrictive bail conditions that would reasonably ensure appellant's appearance and the safety of the community. Francis v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2021).

The purpose of bail in the administration of criminal justice is to insure the defendant’s appearance at trial. Reeves v. State, 411 P.2d 212 (Alaska 1966).

Determining the conditions of release.

Trial court erred in reconsidering the monetary component of defendant's bail because, despite repeated hearings on remand, the court did not sufficiently explain why a $250,000 all-cash appearance bond was the least restrictive monetary amount necessary in light of the other supervisory bail conditions in place. Pisano v. State, — P.3d — (Alaska Ct. App. Sept. 23, 2019).

Superior court was not entitled to clarification of the appellate court’s order to set defendant’s bail because it was up to the superior court to inquire into the assets available to defendant’s family to meet the monetary component of her bail, the appropriate legal framework for the analysis was set out in the Alaska Constitution, the superior court should also consider its obligations under the bail statute, the statutory restrictions were predicated on the assumption that there had already been a full inquiry into the available assets, and specific findings were needed the trial court’s justification for imposing the $ 500,000 cash or corporate surety monetary condition. West v. State, — P.3d — (Alaska Ct. App. Sept. 2, 2014).

Posting of bond. —

Superior court considered defendant's request that he be permitted to post only 10 percent of the appearance bond, but rejected the request because a 100 percent deposit was required to reasonably assure defendant's future court appearances, given his prior convictions for failure to appear; no abuse of discretion was found. Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018).

Independent assessment of conditions of release required.

Because the superior court was required to independently assess defendant's conditions of release, and because the court of appeals was unable to say that defendant received the bail review hearing to which he was entitled, the case was remanded to the superior court to conduct that independent review. James v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2020).

Release of person accused of unclassified felony on unsecured appearance bond. —

Superior court judge had authority to release defendant, who was accused of sexual abuse of a minor in the first degree, which is an unclassified felony, on an unsecured appearance bond. State v. Thompson, 784 P.2d 249 (Alaska Ct. App. 1989).

Trial judges have wide latitude in imposing suitable conditions for prehearing release, other than the denial of bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Although the trial court may not deny bail to an accused, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Remand required for further findings. —

On remand, trial court was ordered to reconsider bail for defendant as it could not be discerned from the record why the trial court believed that bail in amounts totaling $ 1,300,000 was the least restrictive bail necessary in light of the otherwise structured and restrictive supervision plan in place; it also did not appear that the trial court meaningfully integrated the consideration of defendant's ability to pay. Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018).

Stated in

Francis-Fields v. State, — P.3d — (Alaska Ct. App. Dec. 17, 2020).

Cited in

Thomas v. State, — P.3d — (Alaska Ct. App. Apr. 9, 2021).

Sec. 12.30.016. Release before trial in certain cases.

  1. A judicial officer may impose, in addition to those required or authorized under AS 12.30.011 , conditions of release for offenses described in this section, if necessary to reasonably assure the person’s appearance or the safety of the victim, other persons, or the community.
  2. In a prosecution charging a violation of AS 04.11.010 , 04.11.499 , AS 28.35.030 , or 28.35.032 , a judicial officer may order the person
    1. to refrain from
      1. consuming alcoholic beverages; or
      2. possessing on the person, in the person’s residence, or in any vehicle or other property over which the person has control, alcoholic beverages;
    2. to submit to a search without a warrant of the person, the person’s personal property, the person’s residence, or any vehicle or other property over which the person has control, for the presence of alcoholic beverages by a peace officer or pretrial services officer who has reasonable suspicion that the person is violating the conditions of the person’s release by possessing alcoholic beverages;
    3. to submit to a breath test when requested by a law enforcement officer or pretrial services officer;
    4. to provide a sample for a urinalysis or blood test when requested by a law enforcement officer or pretrial services officer;
    5. to take a drug or combination of drugs intended to prevent substance abuse;
    6. to follow any treatment plan imposed by the court under AS 28.35.028 ;
    7. to comply with a program established under AS 47.38.020 .
  3. In a prosecution charging a violation of AS 11.71 or AS 11.73, a judicial officer may order the person
    1. to refrain from
      1. consuming a controlled substance; or
      2. possessing on the person, in the person’s residence, or in any vehicle or other property over which the person has control, a controlled substance or drug paraphernalia;
    2. to submit to a search without a warrant of the person, the person’s personal property, the person’s residence, or any vehicle or other property over which the person has control, for the presence of a controlled substance or drug paraphernalia by a peace officer or pretrial services officer who has reasonable suspicion that the person is violating the terms of the person’s release by possessing controlled substances or drug paraphernalia;
    3. to enroll in a random drug testing program, at the person’s expense, with testing to occur not less than once a week, or to submit to random drug testing by the pretrial services office in the Department of Corrections to detect the presence of a controlled substance, with the results being submitted to the court and the prosecuting authority;
    4. to refrain from entering or remaining in a place where a controlled substance is being used, manufactured, grown, or distributed;
    5. to refrain from being physically present at, within a two-block area of, or within a designated area near, the location where the alleged offense occurred or at other designated places, unless the person actually resides within that area;
    6. to refrain from the use or possession of an inhalant; or
    7. to comply with a program established under AS 47.38.020 .
  4. [Repealed, § 179 ch 36 SLA 2016.]
  5. In a prosecution charging the crime of stalking that is not a crime involving domestic violence, a judicial officer may order the person to
    1. follow the provisions of any protective order to which the person is respondent;
    2. refrain from contacting, in any manner, including by telephone or electronic communication, the victim;
    3. engage in counseling; if available in the community, the judicial officer shall require that counseling ordered include counseling about alternatives to aggressive behavior;
    4. participate in a monitoring program with a global positioning device or similar technological means that meets guidelines for a monitoring program adopted by the Department of Corrections in consultation with the Department of Public Safety.
  6. In a prosecution charging a crime under AS 11.41.410 — 11.41.458 , a judicial officer
    1. may order the person to have no contact with the victim except as specifically allowed by the court;
    2. may order the person to reside in a place where the person is not likely to come into contact with the victim of the offense;
    3. may order the person to have no contact with any person under 18 years of age except in the normal course of business in a public place;
    4. shall assure that the victim and the parent or guardian of a minor victim have been notified by a law enforcement agency or the prosecuting authority of a hearing where release is being considered, or that a reasonable effort at notification has been made; and
    5. shall solicit comments from the victim or a parent or guardian of the minor victim who is present and wishes to comment, and consider those comments before making a decision concerning the release of the person.

History. (§ 5 ch 19 SLA 2010; am § 12 ch 43 SLA 2013; am §§ 21, 22 ch 83 SLA 2014; am §§ 60, 61, 179 ch 36 SLA 2016)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(6) and (7), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (e)(4), and made a stylistic change.

The 2014 amendment, effective July 17, 2014, added (b)(7); added (c)(7), and made related changes.

The 2016 amendment, effective January 1, 2018, in (b)(2) — (4) and (c)(2), inserted “or pretrial services officer” following “officer”; in (c)(3), inserted “with testing to occur not less than once a week, or to submit to random drug testing by the pretrial services office in the Department of Corrections” preceding “to detect” and deleted “with testing to occur not less than once a week, and”; repealed (d) effective July 12, 2016.

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to (e) of this section apply to offenses committed on or after July 1, 2013.

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 36(a), ch. 83, SLA 2014, subsections (b) and (c) as amended by secs. 21 and 22, ch. 83, SLA 2014, apply to offenses occurring on or after July 17, 2014.

Notes to Decisions

But trial judge may consider danger to community in assessing amount of bail. —

Although he may not deny bail to an accused, prior to conviction, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975) (decided under former AS 12.30.010 ).

Sec. 12.30.020. Release before trial. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.021. Third-party custodians.

  1. In addition to other conditions imposed under AS 12.30.011 or 12.30.016 , a judicial officer may appoint a third-party custodian if the officer finds that the appointment will, singly or in combination with other conditions, reasonably ensure the person’s appearance and the safety of the victim, other persons, and the community.
  2. A judicial officer may appoint an individual as a third-party custodian if the proposed custodian
    1. provides information to the judicial officer about the proposed custodian’s residence, occupation, ties to the community, and relationship with the person, and provides any other information requested by the judicial officer;
    2. is physically able to perform the duties of custodian of the person;
    3. personally, by telephone, or by other technology approved by the court, appears in court with the person and acknowledges to the judicial officer orally and in writing that the proposed custodian
      1. understands the duties of custodian and agrees to perform them; the proposed custodian must specifically agree to immediately report in accordance with the terms of the order if the person released has violated a condition of release; and
      2. understands that failure to perform those duties may result in the custodian’s being held criminally liable under AS 09.50.010 or AS 11.56.758 .
  3. A judicial officer may not appoint a person as a third-party custodian if
    1. the proposed custodian is acting as a third-party custodian for another person;
    2. the proposed custodian has been unconditionally discharged within the previous five years from a felony, a crime under AS 11.41, or a similar crime in this or another jurisdiction;
    3. criminal charges are pending in this state or another jurisdiction against the proposed custodian;
    4. the proposed custodian is on probation in this state or another jurisdiction for an offense;
    5. the proposed custodian may be called as a witness in the prosecution of the person;
    6. the proposed custodian resides out of state; however, a nonresident may serve as a custodian if the nonresident resides in the state while serving as custodian.

History. (§ 6 ch 19 SLA 2010; am §§ 62, 63 ch 36 SLA 2016; am §§ 60, 61 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(o)(8) and (9), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2018, in (a), inserted “, on the record,” following “officer finds”; added (1), (2) and the first phrase of (3); deleted “the appointment will, singly or in combination with other conditions,” preceding “reasonably”; substituted “ensure” for “assure” in the last phrase of the subsection; in (c)(5), inserted “there is a reasonable probability that the state will call” preceding “the proposed custodian” and deleted “may be called”.

The 2019 amendment, effective July 9, 2019, rewrote (a), which read, “(a) In addition to other conditions imposed under AS 12.30.011 or 12.30.016 , a judicial officer may appoint a third-party custodian if the officer finds, on the record, that

“(1) pretrial supervision under AS 33.07 is not available in the person’s location;

“(2) no secured appearance or performance bonds have been ordered; and

“(3) no other conditions of release or combination of conditions can reasonably ensure the person’s appearance and the safety of the victim, other persons, and the community.”; in (c), rewrote (2), which read, “the proposed custodian has been convicted in the previous three years of a crime under AS 11.41 or a similar crime in this or another jurisdiction;” and rewrote (5), which read, there is a reasonable probability that the state will call the proposed custodian as a witness in the prosecution of the person;”.

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor's notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Section 142(a), ch. 4, FSSLA 2019, provides that the 2019 amendments of (a) and (c) of this section apply “to offenses committed on or after July 9, 2019.”

Secs. 12.30.023, 12.30.025. Release before trial in cases involving controlled substances or alcohol; release before trial in cases involving stalking. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.027. Release in domestic violence cases.

  1. Before ordering release before or after trial, or pending appeal, of a person charged with or convicted of a crime involving domestic violence, the judicial officer shall consider the safety of the victim or other household member. To protect the victim, household member, other persons, and the community and to reasonably ensure the person’s appearance, the judicial officer
    1. shall impose conditions required under AS 12.30.011 ;
    2. may impose any of the conditions authorized under AS 12.30.011 ;
    3. may impose any of the provisions of AS 18.66.100(c)(1) — (7) and (11);
    4. may order the person to participate in a monitoring program with a global positioning device or similar technological means that meets guidelines for a monitoring program adopted by the Department of Corrections in consultation with the Department of Public Safety; and
    5. may impose any other condition necessary to protect the victim, household member, other persons, and the community, and to ensure the appearance of the person in court, including ordering the person to refrain from the consumption of alcohol.
  2. A judicial officer may not order or permit a person released under (a) of this section to return to the residence or place of employment of the victim or the residence or place of employment of a petitioner who has a protective order directed to the person and issued, filed, or recognized under AS 18.66.100 — 18.66.180 unless
    1. 20 days have elapsed following the date the person was arrested;
    2. the victim or petitioner consents to the person’s return to the residence or place of employment;
    3. the person does not have a prior conviction for an offense under AS 11.41 that is a crime involving domestic violence; and
    4. the court finds by clear and convincing evidence that the return to the residence or place of employment does not pose a danger to the victim or petitioner.
  3. If the court imposes conditions of release under (a) of this section, it shall
    1. issue a written order specifying the conditions of release;
    2. provide a copy of the order to the person arrested or charged; and
    3. immediately distribute a copy of the order to the law enforcement agency that arrested the person.
  4. When a person is released from custody under (a) of this section,
    1. from a correctional facility, the correctional facility shall notify the prosecuting authority and the prosecuting authority shall make reasonable efforts to immediately notify the alleged victim of the release, and to furnish the alleged victim with a copy of the order setting any conditions of release;
    2. from other than a correctional facility, the arresting authority shall make reasonable efforts to immediately notify the alleged victim of the release, and to furnish the alleged victim with a copy of the order setting any conditions of release.
  5. A person arrested for a crime involving domestic violence or for violation of a condition of release in connection with a crime involving domestic violence may not be released from custody until the person has appeared in person before a judicial officer or telephonically for arraignment.
  6. A person may not bring a civil action for damages for a failure to comply with the provisions of this section.
  7. [Repealed, § 30 ch 19 SLA 2010.]

History. (§ 11 ch 64 SLA 1996; am §§ 7, 8, 30 ch 19 SLA 2010; am §§ 13, 14 ch 43 SLA 2013; am § 7 ch 13 SLA 2017)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “judicial officer” for “court”, substituted “community” for “public” in two places, added “other persons” following “household member” in two places, substituted “judicial officer shall impose conditions required under AS 12.30.11, and” for “court” following “assure the person’s appearance, the”, substituted “AS 12.30.011 ” for “AS 12.30.020 ” following “conditions authorized under”, deleted “bail and” following “may impose”, deleted “alleged” preceding “victim” in three places; in (b), in the introductory language, substituted “judicial officer” for “court”, added “or place of employment” twice following “the residence”, added “unless” following “AS 18.66.100 — 18.66.180 ”, and added (b)(1) through (b)(4); and repealed (g).

The 2013 amendment, effective July 1, 2013, in (a), substituted “ensure” for “assure” in the second sentence, inserted “may impose” at the beginning of (a)(3) and (a)(5), added (a)(4), and made stylistic changes; in (e), inserted “or for violation of a condition of release in connection with a crime involving domestic violence” following “A person arrested for a crime involving domestic violence”.

The 2017 amendment, effective September 17, 2017, in (b), near the end of the introductory language, substituted “issued, filed, or recognized” for “issued or filed”.

Editor’s notes. —

Under § 31(e), ch. 19, SLA 2010, the 2010 amendments to (a) and (b) of this section “apply to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to (a) and (e) of this section apply to offenses committed on or after July 1, 2013.

Notes to Decisions

Construction. —

The legislature intended to restrict courts from releasing defendants charged with or convicted of a crime of domestic violence to the residence of the alleged victim, not only to the residence of a petitioner who had obtained a protective order. State v. Roberts, 999 P.2d 151 (Alaska Ct. App. 2000).

Proper consideration by court. —

Given defendant's prior violation of the court order not to contact his girlfriend, her significant fear of him, and the circumstances of his criminal history, including a prior conviction for assaulting the girlfriend, the trial court reasonably found that the in-person supervision and accountability that a third-party custodian provided was necessary in this case, no abuse of discretion was found, and his bail was not excessive. Redfox v. State, — P.3d — (Alaska Ct. App. Apr. 1, 2021) (memorandum decision).

Subsection (b) unconstitutional. —

Subsection (b) of this section violates the equal protection provision of Alaska Const. art. I, § 1 because it unduly restricts the liberty interests of an accused, who is not yet convicted, by prohibiting the accused’s return to the family residence: The accused retains a liberty interest, and there are less restrictive alternatives available to protect alleged domestic violence victims, such as the alternatives in AS 18.66.100 . Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Subsection (b) of this section is unconstitutional in that it deprived an important liberty interest of a husband, accused of assaulting his wife and still awaiting trial after more than two years, by prohibiting his return to the family residence. Williams v. State, 151 P.3d 460 (Alaska Ct. App. 2006).

Legislative intent reflected. —

Crime victim did not have standing to appeal her husband’s sentence for domestic violence because, although judges must consider the interests of the public and crime victims in domestic violence cases before making certain decisions, crime victims are not parties to the criminal prosecution, nor did the legislature intend to have crime victims file appeals whenever they are dissatisfied with a judge’s weighing of their interests. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

Assault in the third degree. —

A conviction for assault in the third degree was a crime involving domestic violence pursuant to this section. State v. Roberts, 999 P.2d 151 (Alaska Ct. App. 2000).

Stated in

Vickers v. State, 175 P.3d 1280 (Alaska Ct. App. 2008).

Cited in

Prentzel v. State, 169 P.3d 573 (Alaska 2007).

Sec. 12.30.029. Release in sexual abuse and sexual assault cases. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.030. Appeal from conditions of release.

  1. If a person remains in custody after a review provided for in AS 12.30.006(c) or (d), an appeal may be taken to the court having appellate jurisdiction over the court imposing the conditions. The appellate court shall affirm the order unless it finds that the lower court abused its discretion.
  2. If the appellate court finds that the lower court abused its discretion, the appellate court may modify the order, remand the matter for further proceedings, or remand the matter directing entry of the appropriate order, including release under AS 12.30.011(a) . The appeal shall be determined promptly.

History. (Sec. 3.01 ch 34 SLA 1962; am § 1 ch 20 SLA 1966; am § 12 ch 69 SLA 1970; am § 12 ch 21 SLA 1991; am § 2 ch 65 SLA 2005; am § 9 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, repealed and reenacted the section.

Effective dates. —

Under § 31(c), ch. 19, SLA 2010, the provisions of the 2010 repeal and reenactment of this section apply “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Notes to Decisions

Many of the cases cited in the notes below were decided under former AS 12.30.010 .

Alaska’s Bail Reform Act provides for expeditious review of bail determinations. Carman v. State, 564 P.2d 361 (Alaska 1977).

The need for rapid review of bail orders is reflected in this section. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Bail amount constituted abuse of discretion.. —

Monetary amount imposed for bail constituted an abuse of discretion because the superior court approved a highly restrictive bail release plan with electronic monitoring, house arrest, and partial third-party custodians; appellant agreed to augment that plan with a $10,000 unsecured appearance bond and a $3,000 cash-only performance bond; it was not clear why imposing an additional $17,000 beyond what appellant's family had the ability to pay would make the community any safer or her bail plan materially more robust; and the superior court was required to impose the least restrictive bail conditions that would reasonably ensure appellant's appearance and the safety of the community. Francis v. State, — P.3d — (Alaska Ct. App. Jan. 15, 2021).

But trial judge may consider danger to community in assessing amount of bail. —

Although he may not deny bail to an accused, prior to conviction, the trial judge can consider danger to the community as a factor in assessing the amount of bail or fixing the terms of a conditional release. He is in a far better position than an appellate court to assess the evidence and to determine, in the first instance, what alternatives are available, and the amount of bail that should be required. Gilbert v. State, 540 P.2d 485 (Alaska 1975) (decided under former AS 12.30.010 ).

The supreme court has implemented this section by the adoption of Appellate Rule 206 and Appellate Rule 207. Griffith v. State, 641 P.2d 228 (Alaska Ct. App. 1982).

Applied in

Gilbert v. State, 540 P.2d 485 (Alaska 1975); A.M. v. State, 653 P.2d 346 (Alaska Ct. App. 1982).

Quoted in

Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984); Pisano v. State, — P.3d — (Alaska Ct. App. Sept. 23, 2019).

Cited in

Pisano v. State, — P.3d — (Alaska Ct. App. Jan. 31, 2020); Vaneyck v. State, — P.3d — (Alaska Ct. App. Oct. 9, 2018); Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018).

Sec. 12.30.031. Temporary release.

  1. A person, either before trial or after conviction, who is detained under this chapter may be released temporarily if
    1. the person is being held in connection with a misdemeanor or class B or C felony;
    2. the release is requested because of the
      1. death of an immediate family member of the person;
      2. birth of the person’s child if the defendant executes an affidavit of paternity before the release;
      3. person’s need for a mental health or substance abuse assessment that the court finds cannot be accommodated in the facility or telephonically; or
      4. person’s need for a medical or dental examination required for acceptance into a residential treatment facility; and
    3. the court solicits information from the Department of Corrections regarding the defendant’s conduct while incarcerated and considers that information when making a decision under this subsection.
  2. If a court orders temporary release of a person under (a) of this section, the court shall order the person to appear in court during normal business hours at the end of the period of temporary release and before the person is returned to a correctional facility.

History. (§ 10 ch 19 SLA 2010)

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Sec. 12.30.035. Release pending appeal by state.

If the state appeals an order dismissing an indictment, information, or complaint, or granting a new trial after verdict or judgment, the court shall treat the defendant in accordance with the provisions governing pretrial release under this chapter.

History. (§ 13 ch 63 SLA 1997)

Sec. 12.30.040. Release before sentence; release after conviction.

  1. Except as provided in (b) of this section, a person who has been convicted of an offense and is awaiting sentence or who has filed an appeal may be released under the provisions of this chapter if the person establishes, by clear and convincing evidence, that the person can be released under conditions that will reasonably assure the appearance of the person and the safety of the victim, other persons, and the community.
  2. A person may not be released under (a) of this section if the person has been convicted of an offense that is
    1. an unclassified or class A felony;
    2. a sexual felony;
    3. a class B felony if the person has been convicted within the previous 10 years of a felony committed in this state or a similar offense committed in another jurisdiction; or
    4. a felony in violation of AS 11.41, and the person has been found guilty but mentally ill.
  3. A person who has been convicted of an offense and who has filed an application for post-conviction relief may not be released under this section until the court enters an order vacating all convictions against the person. A person who has prevailed in an application for post-conviction relief may seek release before trial in accordance with the provisions of this chapter.

History. (Sec. 3.02 ch 34 SLA 1962; am § 1 ch 20 SLA 1966; am § 3 ch 24 SLA 1966; am § 3 ch 39 SLA 1974; am § 36 ch 102 SLA 1980; am § 15 ch 45 SLA 1982; am § 42 ch 6 SLA 1984; am § 2 ch 50 SLA 1995; am § 5 ch 79 SLA 1995; am § 14 ch 63 SLA 1997; am § 2 ch 95 SLA 2000; am § 11 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, repealed and reenacted the section.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, the provisions of the 2010 repeal and reenactment of this section apply “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Notes to Decisions

Application of section is limited. —

This section, which provides for release after trial, is limited in application to convicted persons awaiting sentence or whose appeal is pending. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Application of Alaska Constitution bail clause. —

The bail clause of the Alaska Constitution does not apply after the conviction of a person accused of a crime. State v. Wassillie, 606 P.2d 1279 (Alaska 1980).

Criminal defendants are not guaranteed the right to post-conviction bail by either the Eighth Amendment to the United States Constitution or Article I, Section 12 of the Alaska Constitution.Hosier v. State, 976 P.2d 869 (Alaska Ct. App. 1999).

Factors in deciding whether to remand to custody. —

In making the determination “that no one or more conditions of release will reasonably assure the appearance of the person as required or prevent the person from posing a danger” to other persons and the community, the trial court can consider the facts of the crime of which the defendant was convicted and the likely sentence which he will receive in determining the risk of flight and violence which he presents. Muzzana v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Where the trial court did not make the findings required by subsection (a) of this section as a prerequisite to denying bail after conviction, the court of appeals reversed the decision and remanded for further findings. Muzzana v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Power of trial court to grant bail in derogation of subsection (b). —

Although there is an inherent power in the trial courts to grant bail where no statute or constitutional provision expressly authorizes or prohibits it, since the legislature has here specifically forbidden bail to those convicted of unclassified felonies and class A felonies and the supreme court has enacted a rule which the court of appeals has construed to be consistent with that legislative action, the trial court has no inherent authority to grant bail in derogation of subsection (b). Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

When a defendant asks a trial court to exercise its common-law authority to grant bail release during a sentence appeal, the court must not release the defendant on bail if that same defendant would be barred under subsection (b) from obtaining bail release during a merit appeal. Hosier v. State, 937 P.2d 1360 (Alaska Ct. App. 1998).

Applicability of 1982 amendment. —

Provision of subsection (b) that if a person has been convicted of an offense which is an unclassified felony or a class A felony, the person may not be released on bail either before sentencing or pending appeal, does not apply to defendants whose convictions occurred before its effective date of January 1, 1983, and it was error to revoke defendant’s bail on the basis of that provision where defendant had been convicted prior to January 1, 1983. Kwallek v. State, 658 P.2d 794 (Alaska Ct. App. 1983).

The 1982 amendment of subsection (b), effective January 1, 1983, did not apply to defendant arrested prior to January 1, 1983, but convicted after that date. Parker v. State, 667 P.2d 1272 (Alaska Ct. App. 1983).

Applicability of 2010 amendment. —

Because the offense occurred prior to the legislature’s amendment to this section which prohibited the court from releasing a defendant convicted of “a sexual felony,” that amendment did not apply to defendant. Olsen v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

No conflict exists between subsection (b) and Crim. R. 41, which provides that a defendant in a criminal proceeding is entitled to bail pursuant to AS 12.30.010 — 12.30.080 , since Crim. R. 41 adopted by reference subsequent amendments, including the 1982 amendments to subsection (b). Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Constitutionality of subsection (b). —

For constitutionality of subsection (b) prior to 1982 amendment, see Griffith v. State, 641 P.2d 228 (Alaska Ct. App. 1982). See also Walker v. State, 652 P.2d 88 (Alaska 1982) and Muzzana v. State, 653 P.2d 658 (Alaska Ct. App. 1982).

Subsection (b), which denies release or bail before sentencing or pending appeal to persons convicted of an unclassified or class A felony, is not an unconstitutional invasion of the supreme court’s rule-making power since it does not conflict with any supreme court rule. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

This section does not deny substantive due process or equal protection rights since the average member of the class comprised of those convicted of unclassified felonies and class A felonies will serve a longer sentence and, therefore, present a greater risk of flight than the average offender convicted of a class B felony or a lesser offense and, in addition, it would not have been unreasonable for the legislature to conclude that the average unclassified or class A offender is more dangerous than the average class B or C offender; therefore, a legitimate basis exists for the legislative classification distinguishing unclassified and class A felonies from class B felonies. Stiegele v. State, 685 P.2d 1255 (Alaska Ct. App. 1984).

Superior court properly denied defendant's request for a bail hearing because he had a prior felony conviction within 10 years of his current conviction, the legislative history demonstrated that the legislature's purpose in revising the bail state in 2010 was to protect victims and the public from defendants who demonstrated a certain level of dangerousness, while protecting the right of other less dangerous offenders to bail release, the legislature intended the 10-year look back to be calculated from the date of the defendant's conviction of a class B felony, and, while the line the legislature drew was to some extent arbitrary, it did not render the statute unconstitutionally arbitrary. Bowlin v. State, 366 P.3d 534 (Alaska Ct. App. 2016).

Bail pending appeal. —

Defendant conceded that he was convicted within the previous 10 years of a felony committed in Alaska, under former AS 11.71.040(a)(2) . Accordingly, AS 12.30.040(b)(3) rendered defendant ineligible for bail pending appeal. McGraw v. State, — P.3d — (Alaska Ct. App. Oct. 29, 2020).

Remand for reconsideration.—

Superior court, in denying defendant's request for bail pending a sentence appeal, stated that it was not convinced that the proposed bail conditions ensured the safety of the community, but did not provide any explanation for this finding, nor acknowledge that the applicable legal standard was “reasonably assure” rather than “ensure.” Because the appellate court could not determine whether the court applied the proper legal standard to defendant's request, remand for reconsideration of the request was remanded with appropriate findings. Shepersky v. State, 401 P.3d 990 (Alaska Ct. App. 2017).

In an appeal of a superior court's order denying defendant bail pending a sentence appeal, the appellate court concluded that remand for reconsideration was required. The superior court's written order did not acknowledge the appellate court's decision in Shepersky v. State , nor did the superior court apply the legal standard the appellate court announced in that decision. Skupa v. State, — P.3d — (Alaska Ct. App. Apr. 29, 2019).

Applied in

Nighswonger v. State, 680 P.2d 105 (Alaska Ct. App. 1984).

Quoted in

Dobrova v. State, 674 P.2d 834 (Alaska Ct. App. 1984); Burt v. State, 823 P.2d 14 (Alaska Ct. App. 1991); State v. Shetters, 246 P.3d 338 (Alaska Ct. App. 2010).

Stated in

Walker v. Huston, 689 F.2d 901 (9th Cir. Alaska 1982).

Cited in

Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983); Dyer v. State, 666 P.2d 438 (Alaska Ct. App. 1983); State v. Judson, 45 P.3d 329 (Alaska Ct. App. 2002); Butts v. State, 53 P.3d 609 (Alaska Ct. App. 2002); Michael v. State, 115 P.3d 517 (Alaska 2005).

Sec. 12.30.050. Release of material witnesses.

  1. If the prosecution or defense establishes by affidavit or other evidence that the testimony of a person is material in a criminal proceeding, and that it may be impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and consider the release or detention of the person under the provisions of AS 12.30.011 .
  2. A material witness may not be detained because of inability to comply with any condition of release if the testimony of the witness can adequately be secured by deposition, unless further detention is necessary to prevent a failure of justice.
  3. Release of a material witness under (a) of this section may be delayed for a reasonable period of time for the deposition of the witness to be taken.

History. (§ 1 ch 20 SLA 1966; am § 12 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, rewrote the section.

Editor’s notes. —

Under § 31(d), ch. 19, SLA 2010, the provisions of the 2010 repeal and reenactment of this section apply “to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Notes to Decisions

Cited in

In re Curda, 49 P.3d 255 (Alaska 2002).

Sec. 12.30.055. Persons appearing on petition to revoke.

  1. A person who is in custody in connection with a petition to revoke probation for a felony crime against a person under AS 11.41 does not have a right to be released under this chapter. A judicial officer may, however, release the person under the provisions of this chapter, if it is established by a preponderance of the evidence that the proposed release conditions will reasonably assure the appearance of the person and the safety of the victim, other persons, and the community.
  2. [Repealed, § 138 ch 4 FSSLA 2019.]

History. (§ 13 ch 19 SLA 2010; am § 64 ch 36 SLA 2016; am § 138 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to subsection (b), see sec. 185(e), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, added (b).

The 2019 amendment, effective July 1, 2019, repealed (b).

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Sec. 12.30.060. Penalties for failure to appear. [Repealed, § 30 ch 19 SLA 2010.]

Sec. 12.30.070. Contempt.

Nothing in this chapter shall prevent a court from exercising its power to punish for contempt.

History. (§ 1 ch 20 SLA 1966)

Notes to Decisions

Violations punishable as contempt. —

This section generally characterizes violations of conditions of release as conduct punishable as contempt. Prentzel v. State, 169 P.3d 573 (Alaska 2007).

Stated in

White v. State, 514 P.2d 814 (Alaska 1973).

Collateral references. —

Bail jumping after conviction, failure to surrender or to appear for sentencing and the like as contempt. 34 ALR2d 1100.

Sec. 12.30.075. Forfeited cash and other securities.

  1. Cash or other security posted by a person under AS 12.30.011 that would otherwise be forfeited shall be held by the court in trust for the benefit of the victim if, within 30 days after an order of the court establishing a failure to appear or a violation of conditions of release, the prosecuting authority gives notice that restitution may be requested as part of the sentence if the person is convicted.
  2. If a restitution order is not entered, the court shall order the cash or other security being held in trust to be forfeited to the state.
  3. If a restitution order is entered, the court shall apply the cash or other security to the satisfaction of the order. If the cash or other security held in trust is applied to an order of restitution, the court shall issue a separate judgment against the defendant in favor of the state in the amount that would have otherwise been forfeited, and any cash or other security remaining after payment of the restitution shall be applied against that judgment. Any cash or other security remaining shall be forfeited to the state.

History. (§ 6 ch 92 SLA 2001; am § 14 ch 19 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), substituted “person under AS 12.30.011 ” for “defendant under AS 12.30.020 ” and “person” for “defendant” following “part of the sentence if the”.

Editor’s notes. —

Under § 31(e), ch. 19, SLA 2010, the 2010 amendments to (a) of this section “apply to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Notes to Decisions

Forfeiture of bail money. —

Although both the criminal procedure statute and the criminal rule authorize the court to seize pledged bail money when a defendant willfully fails to appear in court, neither authorize the court to seize a defendant’s bail when he fails to comply with other conditions of release. Lonis v. State, 998 P.2d 441 (Alaska Ct. App. 2000) (decided under former AS 12.30.060 ).

Sec. 12.30.078. Conviction occurrence.

In this chapter, a conviction occurs at the time the person is found guilty, either by plea or verdict, of the offense.

History. (§ 15 ch 19 SLA 2010)

Effective dates. —

Section 32, ch. 19, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Under § 31(c), ch. 19, SLA 2010, this section applies “to bail proceedings occurring on or after July 1, 2010, for offenses occurring on or after July 1, 2010.”

Sec. 12.30.080. Definitions.

In this chapter,

  1. “crime involving domestic violence” has the meaning given in AS 18.66.990 ;
  2. “judicial officer” means a person authorized to release a person pending trial, sentencing, or pending appeal;
  3. “knowingly” has the meaning given in AS 11.81.900 ;
  4. “offense” means any criminal offense;
  5. “peace officer” has the meaning given in AS 11.81.900 ;
  6. “sexual felony” has the meaning given in AS 12.55.185 ;
  7. “stalking” means a violation of AS 11.41.260 or 11.41.270 .

History. (§ 1 ch 20 SLA 1966; am § 16 ch 19 SLA 2010)

Revisor’s notes. —

Paragraphs (1) and (3) were enacted as (3) and (4); renumbered in 2010 to maintain alphabetical order.

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, added definitions of “crime involving domestic violence”, “knowingly”, “peace officer”, “sexual felony”, and “stalking”.

Editor’s notes. —

Under § 31(e), ch. 19, SLA 2010, the 2010 amendments to this section “apply to bail proceedings occurring on or after July 1, 2010, for offenses occurring before, on, or after July 1, 2010.”

Chapter 35. Search and Seizure.

Cross references. —

For court rules on search warrants, see Rule 37, Alaska Rules of Criminal Procedure; for constitutional provisions, see art. I, § 14 of the Alaska Constitution.

Collateral references. —

68 Am. Jur. 2d, Searches and Seizures, § 1 et seq.

79 C.J.S., Searches and Seizures, § 1 et seq.

Sec. 12.35.010. Issuance of search warrant; extraterritorial jurisdiction.

  1. A judicial officer may issue a search warrant upon a showing of probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the thing to be seized. The court may issue a search warrant for a place or property located either in the state or outside the state.
  2. A judicial officer may issue a search warrant upon the sworn oral testimony of a person communicated by telephone or other appropriate means, or sworn affidavit submitted by facsimile machine, in accordance with AS 12.35.015 .

History. (§ 4.01 ch 34 SLA 1962; am § 13 ch 69 SLA 1970; am § 17 ch 143 SLA 1982; am § 1 ch 60 SLA 1991; am § 17 ch 75 SLA 2008)

Effect of amendments. —

The 2008 amendment, effective July 1, 2008, added the last sentence of subsection (a).

Notes to Decisions

For discussion of when an affidavit contains sufficient facts to establish probable cause for the issuance of a search warrant, see Keller v. State, 543 P.2d 1211 (Alaska 1975).

Glass warrant. —

Glass warrant ( State v. Glass, 583 P.2d 872 (Alaska 1978), requiring police to obtain judicial authorization before secretly recording a person’s private conversations) issued pursuant to an informant’s testimony that defendant confessed his involvement in a robbery and homicide was valid; the informant led police to the murder weapon. State v. Anderson, 73 P.3d 1242 (Alaska Ct. App. 2003).

Applied in

Nelson v. State, 628 P.2d 884 (Alaska 1981).

Cited in

Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989).

Collateral references. —

Propriety and legality of issuing only one search warrant to search more than one place or premises occupied by same person. 31 ALR2d 864.

Sufficiency of description of automobile or other conveyance to be searched. 47 ALR2d 1444.

Interest in, or connection with, premises searched as affecting standing to attack legality of search. 78 ALR2d 246.

Lawfulness of nonconsensual search and seizure without warrant, prior to arrest. 89 ALR2d 715.

Sufficiency of showing as to time of occurrence of facts relied upon. 100 ALR2d 525.

Propriety of considering hearsay or other incompetent evidence in establishing probable cause for issuance of search warrant. 10 ALR3d 359.

Sufficiency of description, in search warrant, of apartment or room to be searched in multiple-occupancy structure. 11 ALR3d 1330.

Modern status of rule as to validity of nonconsensual search and seizure made without warrant after lawful arrest as affected by lapse of time between, or difference in places of, arrest and search. 19 ALR3d 727.

Disputation of truth of matters stated in affidavit in support of search warrant — modern cases. 24 ALR4th 1266.

Propriety in state prosecution of severance of partially valid search warrant and limitation of suppression to items seized under invalid portions of warrant. 32 ALR4th 378.

Seizure of books, documents, or other papers under search warrant not describing such items. 54 A.L.R.4th 391.

Lawfulness of search of person or personal effects under medical emergency exception to warrant requirement. 11 ALR5th 52.

Prisoner’s rights as to search and seizure under state law or constitution — post- Hudson cases. 14 ALR5th 913.

State constitutional requirements as to exclusion of evidence unlawfully seized — post- Leon cases. 19 ALR5th 470.

Search and seizure: lawfulness of demand for driver’s license, vehicle registration, or proof of insurance pursuant to police stop to assist motorist. 19 ALR5th 884.

Admissibility, in motor vehicle license suspension proceedings, of evidence obtained by unlawful search and seizure. 23 ALR5th 108.

Propriety of execution of search warrant at night time. 41 ALR5th 171.

Sufficiency of description of person to be searched. 43 ALR5th 1.

Warrantless detention of mail for investigative purposes as violative of Fourth Amendment. 115 ALR Fed. 439.

Permissibility under Fourth Amendment of detention of motorist by police, following lawful stop for traffic offense, to investigate matters not related to offense. 118 A.L.R. Fed. 567.

Sec. 12.35.015. Issuance of search warrant upon testimony communicated by telephone or other means.

  1. A judicial officer may issue a search warrant upon the sworn oral testimony of a person communicated by telephone or other appropriate means, or sworn affidavit transmitted by facsimile machine.
  2. A judicial officer shall place under oath each person whose oral testimony forms a basis of the application and each person applying for the search warrant. The judicial officer shall record the proceeding by using a voice recording device.
  3. If a facsimile search warrant cannot be transmitted to the applicant under (g) of this section, the applicant shall prepare a document to be known as a duplicate original warrant and shall read it verbatim to the judicial officer. The judicial officer shall enter, verbatim, on an original search warrant what is read to the judicial officer. The judicial officer may direct that the duplicate original search warrant be modified.
  4. Except as provided in (g) of this section, if a search warrant is issued under this section, the judicial officer shall orally authorize the applicant to sign the judicial officer’s name on the duplicate original search warrant. The judicial officer shall immediately sign the original search warrant and enter on the face of the original search warrant the exact time when the search warrant was ordered to be issued.
  5. The person who executes a search warrant issued under this section shall enter the exact time of execution on the face of the facsimile search warrant issued under (g) of this section or the duplicate original search warrant.
  6. [Repealed, § 39 ch 75 SLA 2008.]
  7. A search warrant issued by a judicial officer may be transmitted by facsimile machine to the applicant. The facsimile search warrant shall serve as an original.

History. (§ 18 ch 143 SLA 1982; am §§ 2 — 7 ch 60 SLA 1991; am § 1 ch 42 SLA 2003; am §§ 18, 39 ch 75 SLA 2008)

Cross references. —

For court rule governing the issuance of search warrants by telephone, see Rule 38.1, Alaska Rule of Criminal Procedure.

Effect of amendments. —

The 2008 amendment, effective July 1, 2008, rewrote subsection (a), in part by deleting specific required findings of probable cause, and repealed subsection (f), regarding motions to suppress warrants issued under this section.

Notes to Decisions

Purported violation of section. —

Where defendant did not claim that purported violation of this section was in bad faith, nor that absent the questioned telephonic testimony of state trooper, the warrant would be invalid, the exclusionary rule embodied in Alaska Rule of Evidence 412 was inapplicable, and evidence produced by the search was properly admitted. Burrece v. State, 976 P.2d 241 (Alaska Ct. App. 1999).

Cited in

State v. Gutman, 670 P.2d 1166 (Alaska Ct. App. 1983); Gregg v. Gregg, 776 P.2d 1041 (Alaska 1989).

Sec. 12.35.020. Grounds for issuance.

A search warrant may be issued if the judicial officer reasonably believes any of the following:

  1. that the property was stolen or embezzled;
  2. that the property was used as a means of committing a crime;
  3. that the property is in the possession of a person who intends to use it as the means of committing a crime, or in possession of another to whom the person may have delivered it for the purpose of concealing it or preventing its being discovered;
  4. that the property constitutes evidence of a particular crime or tends to show that a certain person has committed a particular crime;
  5. that either reasonable legislative or administrative standards for conducting a routine or area inspection with regard to air pollution are satisfied with respect to the particular place, dwelling, structure, premises, or vehicle, or there is reason to believe that a condition of nonconformity exists with respect to the particular place, dwelling, structure, premises, or vehicle.

History. (§ 4.02 ch 34 SLA 1962; am §§ 1, 2 ch 198 SLA 1968; am § 3 ch 86 SLA 1969; am § 14 ch 69 SLA 1970)

Notes to Decisions

Probable cause to believe that marijuana possession is illegal. —

Court might properly issue a search warrant if the state establishes probable cause to believe that the marijuana is possessed for commercial purposes, or that the amount of marijuana is in excess of the permitted quantity. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Defendant was entitled to suppress evidence of marijuana plants seized from his home pursuant to a search warrant where the warrant application failed to establish probable cause to believe that defendant’s possession of marijuana was illegal. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Anticipatory search warrants. —

An anticipatory search warrant, i.e., one which is based upon an affidavit showing probable cause that at some future time certain evidence will be at the location set forth in the warrant, is constitutionally permissible and not invalid for lack of present probable cause. It is not precluded by the statutory authority of paragraph (3), which requires only reasonable belief of possession of the item for issuance of the warrant, without specifying that possession must be contemporaneous with the issuance, as distinct from the execution, of the warrant. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

For an anticipatory warrant to be valid, there must be probable cause to believe that the items to be seized will be at the place to be searched at the time the warrant is executed, or in other words, that the warrant will not be prematurely executed. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

In anticipatory warrant situations, the magistrate should insert a direction in the search warrant making execution contingent on the happening of an event which evidences probable cause that the item to be seized is in the place to be searched, rather than directing that the warrant be executed immediately or forthwith. Johnson v. State, 617 P.2d 1117 (Alaska 1980).

Issuance of search warrant prohibited. —

Evidence that a person possesses an unspecified quantity of marijuana in his home does not, standing alone, establish probable cause to believe that the person is breaking the law. Without some additional indication of illegality, the search and seizure provision of Alaska Const. art. I, § 14 prohibits the issuance of a search warrant. State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004).

Cited in

Braund v. State, 12 P.3d 187 (Alaska Ct. App. 2000); State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016).

Sec. 12.35.025. Seizure of property.

  1. Property described in AS 12.35.020 may be taken on a warrant from
    1. a house or other place in which it is concealed or may be found;
    2. the possession of the person by whom it was stolen, embezzled, or used in the commission of a crime;
    3. a person who is in possession of the property;
    4. the possession of a person to whom the property has been delivered for the purpose of concealing it or preventing its being discovered, or from a house or other place occupied by that person or under that person’s control.
  2. When property is seized under this chapter, the peace officer taking the property shall give to the person from whom or from whose premises the property was taken a copy of the warrant, a copy of the supporting affidavit, and a receipt for the property taken, or shall leave the copies and the receipt at the place from which the property was taken.
  3. The return of the warrant to the court shall be made promptly and shall be accompanied by a written inventory of the property taken.  The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one other person as a witness.
  4. The inventory required by (c) of this section shall be signed by the peace officer under penalty of perjury under AS 09.63.020 .  The judge or magistrate shall, upon request, deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

History. (§ 15 ch 69 SLA 1970; § 19 ch 143 SLA 1982)

Notes to Decisions

Exclusive jurisdiction over seized property. —

A search warrant is clearly more than just a means of establishing in personam jurisdiction; it also enables a court to exercise exclusive jurisdiction over the property seized pursuant to it. Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993).

Cited in

Braund v. State, 12 P.3d 187 (Alaska Ct. App. 2000).

Collateral references. —

Authority to consent for another to search or seizure. 31 ALR2d 1078.

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding. 8 ALR3d 473.

Validity of consent to search given by one in custody of officers. 9 ALR3d 858.

Sec. 12.35.030. Showing of probable cause. [Repealed, § 16 ch 69 SLA 1970.]

Sec. 12.35.040. Authority of officer executing warrant.

In the execution or service of a search warrant, the officer has the same power and authority in all respects to break open any door or window, to use the necessary and proper means to overcome forcible resistance made to the officer, or to call any other person to the officer’s aid as the officer has in the execution or service of a warrant of arrest.

History. (§ 4.04 ch 34 SLA 1962)

Cross references. —

For authority to execute arrest warrant, see AS 12.25.

Notes to Decisions

AS 12.25.100 , in conjunction with this section, establishes the procedure for forcing entry in executing both a search warrant and an arrest warrant. Davis v. State, 525 P.2d 541 (Alaska 1974).

AS 12.25.100 and this section operate jointly to establish the procedure required for the lawful execution of a search warrant. Lockwood v. State, 591 P.2d 969 (Alaska 1979).

Civilian aid authorized. —

State troopers were authorized to enlist civilian aid in executing a warrant to electronically monitor telephone conversations with the defendant. Bohanan v. State, 992 P.2d 596 (Alaska Ct. App. 1999).

Because state troopers are not explicitly required to be physically present when civilians aid them in executing a warrant, where troopers instructed the civilian on the use of recording equipment and coached her as to the kinds of statements that would be helpful to the investigation, they were held to have supervised her participation in the execution of the warrant. Bohanan v. State, 992 P.2d 596 (Alaska Ct. App. 1999).

Standing to complain of violation. —

A person who is not present when a search warrant is executed does not have standing to complain of the state’s failure to comply with the “knock and announce” requirements of Alaska law. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

Police substantially complied with the knock and announce requirement by announcing their identity and their intent to search while simultaneously entering defendant’s hotel room, and exigent circumstances excused further compliance where police had reason to believe that defendant was armed and that evidence might be destroyed. Hudson v. State, 792 P.2d 290 (Alaska Ct. App. 1990).

Burden of proof. —

A defendant complaining of a violation of the knock and announce statutes must make a prima facie showing that the statutes were not complied with; the state then bears the burden of persuasion to show that the requirements were met, or that exigent circumstances existed. State v. Johnson, 716 P.2d 1006 (Alaska Ct. App. 1986).

National Guard soldiers could be called by police officers to assist them in serving a search warrant. Wallace v. State, 933 P.2d 1157 (Alaska Ct. App. 1997), cert. denied, 528 U.S. 987, 120 S. Ct. 447, 145 L. Ed. 2d 364 (U.S. 1999).

Applied in

Fleener v. State, 686 P.2d 730 (Alaska Ct. App. 1984).

Quoted in

Sandland v. State, 636 P.2d 1196 (Alaska Ct. App. 1981).

Cited in

Lum v. Koles, 314 P.3d 546 (Alaska 2013).

Collateral references. —

What constitutes compliance with knock-and-announce rule in search of private premises — State cases. 85 ALR5th 1.

Sec. 12.35.050. Disposition of property taken. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.36.]

For present provisions, see AS 12.36.

For present provisions, see AS 12.36.

Sec. 12.35.060. Malicious procurement of search warrant.

A person who maliciously and without probable cause causes a search warrant to be issued and executed is guilty of a misdemeanor.

History. (§ 4.06 ch 34 SLA 1962)

Sec. 12.35.070. Search of defendant in presence of judge or magistrate.

When a person charged with a crime is believed by the judge or magistrate before whom that person is brought to have on the person a dangerous weapon, or anything that may be used as evidence of the commission of the crime, the judge or magistrate may direct the accused to be searched in the presence of the judge or magistrate, and the weapon or other thing be retained subject to the order of the judge or magistrate or the order of the court in which the defendant may be tried.

History. (§ 4.07 ch 34 SLA 1962)

Secs. 12.35.080 — 12.35.110. Disposition of stolen property. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.36.]

For present provisions, see AS 12.36.

For present provisions, see AS 12.36.

Sec. 12.35.120. Definition of search warrant.

A search warrant is an order in writing, signed by a judge or magistrate or signed at the direction of a judicial officer in accordance with AS 12.35.015 , directed to a peace officer, commanding the peace officer to search for personal property and bring it before the judge or magistrate.

History. (§ 4.01 ch 34 SLA 1962; am § 14 ch 8 SLA 1971; am § 20 ch 143 SLA 1982)

Notes to Decisions

Quoted in

Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993).

Chapter 36. Disposition of Recovered or Seized Property; Preservation of Evidence.

Cross references. —

For provisions relating to abandoned property, see AS 34.45.110 — 34.45.780 .

Collateral references. —

68 Am. Jur. 2d, Searches and Seizures, §§ 301-304.

79 C.J.S., Searches and Seizures, § 276 et seq.

Article 1. Property Disposition.

Sec. 12.36.010. Property disposition.

When property not belonging to a law enforcement agency comes into the custody of the agency, the property shall be disposed of in accordance with this chapter.

History. (§ 21 ch 143 SLA 1982)

Sec. 12.36.020. Return of property.

  1. A law enforcement agency may
    1. not return property in its custody to the owner or the agent of the owner, except as provided in AS 12.36.200 , if
      1. the property is in custody in connection with a children’s court proceeding, a criminal proceeding, or an official investigation of a crime; or
      2. the property in custody is subject to forfeiture under the laws of the
        1. state; or
        2. United States, and the United States has commenced forfeiture proceedings against the property or has requested the transfer of the property for the commencement of forfeiture proceedings; and
    2. with the approval of the court, transfer the property to another state or federal law enforcement agency for forfeiture proceedings by that agency; the court having jurisdiction shall grant the approval under this paragraph if the property
      1. will be retained within the jurisdiction of the court by the agency to which the property is being transferred; or
      2. is
        1. not needed as evidence; or
        2. needed as evidence, and the property is fungible or the property’s evidentiary value can otherwise be preserved without retaining the property within the jurisdiction of the court.
  2. In a criminal proceeding or a children’s court proceeding involving the wrongful taking or damaging of property where photographs of the property are used as evidence in place of the property, the prosecuting attorney may release the property to the owner upon presentation of satisfactory proof of ownership.
  3. If wrongfully taken or damaged property is not photographed and authenticated under AS 12.45.086 and the property is used as evidence in a criminal proceeding or a children’s court proceeding, the law enforcement agency in possession of the property shall return it to the owner upon presentation of satisfactory proof of ownership within 60 days after the final disposition of the case.

History. (§ 21 ch 143 SLA 1982; am § 1 ch 129 SLA 1996; am § 1 ch 20 SLA 2010)

Revisor’s notes. —

In 1995, in subsection (c), “AS 12.45.086 ” was substituted for “AS 12.80.050 ” to reflect the 1995 renumbering of AS 12.80.050 .

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (a), at the end of (a)(1) added “, except as provided in AS 12.36.200 ,”.

Notes to Decisions

Municipal liability for unauthorized property transfer. —

The municipal police had no authority to unilaterally transfer a criminal defendant’s money seized by a search warrant because it was within the custody and exclusive jurisdiction of the court, and the transfer of the money without court approval to a federal agency violated this section, rendering the federal agency’s forfeiture actions invalid. Consequently, the municipality was liable for the full value of the resulting conversion. Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993).

Sec. 12.36.030. Disposal of unclaimed property used as evidence.

  1. Unless the property is a firearm, ammunition, or a firearm part subject to AS 18.65.340 , if property that is used as evidence in a criminal proceeding or a children’s court proceeding, including wrongfully taken or damaged property, is not claimed by the owner within one year after the final disposition of the case, the law enforcement agency having custody of the property shall dispose of it under (b) of this section.
  2. Property referenced in (a) of this section shall be disposed of by a
    1. municipal law enforcement agency in the following manner:
      1. for that part of the property that is subject to AS 34.45.110 — 34.45.780 , in accordance with AS 34.45.110 — 34.45.780 ;
      2. for that part of the property that is not subject to AS 34.45.110 — 34.45.780, by selling the property in the same manner as a sale upon execution; after paying the expenses for the preservation and sale of the property, the law enforcement agency shall dispose of the proceeds of the sale in the same manner as money collected upon a judgment;
    2. state law enforcement agency in the following manner:
      1. if the property is a firearm or ammunition, in the manner provided in AS 18.65.340 ;
      2. if the property is other than a firearm or ammunition, and the property is
        1. subject to AS 34.45.110 — 34.45.780, in accordance with AS 34.45.110 — 34.45.780;
        2. not subject to AS 34.45.110 — 34.45.780, by selling the property in the same manner as a sale upon execution; after paying the expenses for the preservation and sale of the property, the law enforcement agency shall dispose of the proceeds of the sale in the same manner as money collected upon a judgment.
  3. This section does not apply to property that comes into the custody of a law enforcement agency of a municipality if the municipality has adopted an ordinance providing for the custody and disposition of the property and if the ordinance requires that
    1. property held or collected as evidence in a children’s court proceeding, a criminal proceeding, or an official investigation of a crime is to be held until at least 30 days after final disposition of the case to which the evidence pertains; and
    2. the municipality make reasonable attempts to identify and locate the owner of the property that is unclaimed.

History. (§ 21 ch 143 SLA 1982; am § 4 ch 133 SLA 1986; am § 1 ch 13 SLA 1996; am § 2 ch 129 SLA 1996; am § 1 ch 70 SLA 2006)

Sec. 12.36.040. Disposal of property when owner unknown; exceptions.

  1. When the owner of property is unknown and the property comes into the possession of a law enforcement agency as suspected evidence of a crime but is not used in a criminal proceeding or a children’s court proceeding, or when the property comes into the possession of a law enforcement agency by other means, the property shall be held for one year. If the property is not claimed within one year of the date it comes into the possession of a law enforcement agency, the property shall be disposed of as provided in AS 12.36.030(b) .
  2. This section does not apply to property that comes into the custody of a law enforcement agency of a municipality that has adopted an ordinance providing for the custody and disposition of property that meets the requirements specified in AS 12.36.030(c) .

History. (§ 21 ch 143 SLA 1982; am § 3 ch 129 SLA 1996; am § 1 ch 26 SLA 2000)

Notes to Decisions

Quoted in

Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988).

Sec. 12.36.045. When finder of property is considered the owner.

  1. When a private individual obtains property of another that is lost, mislaid, or delivered to the individual by mistake, the individual delivers that property to a law enforcement agency, and the true owner of the property remains unknown for a period of one year or does not claim the property within one year, the individual delivering the property shall be considered the owner of the property under this chapter if possession of the property by the individual is otherwise legal. If, after the one-year period, the private individual who delivered the property to the law enforcement agency cannot be found or does not want the property, the property shall be disposed of by the agency as if the owner is unknown.
  2. This section does not apply to property that comes into the custody of a law enforcement agency of a municipality that has adopted an ordinance providing for the custody and disposition of property that meets the requirements specified in AS 12.36.030(c) .

History. (§ 2 ch 26 SLA 2000)

Sec. 12.36.050. Remission of forfeited property.

  1. A claimant seeking remission of the claimant’s interest in a weapon ordered forfeited under AS 12.55.015(a)(9) shall prove to the court by a preponderance of evidence that the claimant
    1. has a valid interest in the weapon, acquired in good faith;
    2. did not knowingly participate in the commission of the crime in which the weapon was used; and
    3. did not know or have reasonable cause to believe that the weapon was used or would be used to commit a crime.
  2. Upon a showing that a claimant is entitled to relief under (a) of this section, the court may order that the weapon be released to the claimant.
  3. A claim may not be filed under this section more than 120 days after the entry of the last final judgment in the case in which the weapon was ordered forfeited.

History. (§ 1 ch 169 SLA 1988; am § 29 ch 50 SLA 1989)

Sec. 12.36.060. Disposal of forfeited deadly weapons.

  1. A deadly weapon, other than a firearm or ammunition, forfeited to the state under AS 12.55.015(a)(9) , unless remitted under AS 12.36.050 , shall be disposed of by the commissioner of public safety under this section. Under this subsection, the commissioner of public safety
    1. may declare a weapon surplus and transfer it to the commissioner of administration;
    2. may, if the weapon is suitable for law enforcement purposes, training, or identification, retain the weapon for use by the Department of Public Safety or transfer the weapon to the municipal law enforcement agency making the arrest that led to the forfeiture;
    3. shall destroy a weapon that is unsafe or unlawful.
  2. The commissioner of public safety may adopt regulations necessary to carry out the provisions of this section.
  3. A firearm or ammunition forfeited to the state under AS 12.55.015(a)(9) , unless remitted under AS 12.36.050 , shall be disposed of as provided in AS 18.65.340 .

History. (§ 1 ch 169 SLA 1988; am §§ 2, 3 ch 13 SLA 1996; am § 4 ch 129 SLA 1996)

Sec. 12.36.070. Return of property by hearing.

  1. A crime victim who is the owner of property not belonging to a law enforcement agency that is in the custody of the agency under this chapter may request that the office of victims’ rights request that the agency return the property to the crime victim. The request under this subsection shall be filed by the office of victims’ rights on behalf of the crime victim after the office has conducted an investigation and has concluded that the crime victim is entitled to the return of the property under the factors listed in (c) of this section.
  2. Within 10 days after receipt of a request under (a) of this section and following reasonable notice to the prosecution, defense, and other interested parties, the agency shall request a hearing before the court to determine if the property shall be released to the crime victim. If the property is being held in connection with a criminal case, the hearing shall be before the court with jurisdiction of the criminal case. If no criminal case is pending regarding the property, the hearing shall be before a district or superior court where the property is located.
  3. At the hearing, a party that objects to the return of the property shall state the reason on the record. After a hearing, the court may order the return of the property in the custody of a law enforcement agency to the crime victim if
    1. the crime victim by a preponderance of the evidence provides satisfactory proof of ownership; and
    2. the party that objects to the return of the property fails to prove by a preponderance of the evidence that the property must be retained by the agency for evidentiary purposes under the provisions of this chapter or another law.
  4. If the court orders the return of the property to the crime victim, the court may impose reasonable conditions on the return. Those conditions may include an order that the crime victim retain and store the property so that the property is available for future court hearings, requiring photographs of the property to be taken, or any other condition the court considers necessary to maintain the evidentiary integrity of the property.
  5. In this section, “crime victim” has the meaning given to “victim” in AS 12.55.185 .
  6. If the agency fails to act on a request under (a) of this section within the deadline set in (b) of this section, the victims’ advocate may request a hearing under (b) of this section. If the victims’ advocate requests a hearing under this subsection, the role of the victims’ advocate in the hearing is limited to advocating for the return of the victim’s property. The victims’ advocate may not participate in the case as a party or an intervenor unless the court orders otherwise.

History. (§ 1 ch 3 SLA 2012; am § 1 ch 91 SLA 2014)

Effect of amendments. —

The 2014 amendment, effective October 14, 2014, added (f).

Effective dates. —

Section 1, ch. 3, SLA 2012, which enacted this section, took effect on June 19, 2012.

Sec. 12.36.090. Definitions.

In AS 12.36.010 — 12.36.090 ,

  1. “final disposition of a case” means the time when all appeals have been exhausted or the time when all appeals that could have been taken has expired;
  2. “law enforcement agency” means a public agency that performs as one of its principal functions an activity relating to crime prevention, control, or reduction or relating to the enforcement of the criminal law; “law enforcement agency” does not include a court.

History. (§ 21 ch 143 SLA 1982; am § 53 ch 30 SLA 1996; am § 2 ch 20 SLA 2010)

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in the introductory language, substituted “AS 12.36.010 — 12.36.090 ” for “this chapter”.

Article 2. Preservation of Evidence.

Sec. 12.36.200. Preservation of evidence.

  1. Notwithstanding AS 12.36.010 — 12.36.090 , the Department of Law, the Department of Public Safety, the Alaska Court System, or a municipal law enforcement agency shall preserve
    1. all evidence that is obtained in relation to an investigation or prosecution of a crime under AS 11.41.100 — 11.41.130 , 11.41.410 , or 11.41.434 for the period of time that the crime remains unsolved or 50 years, whichever ends first;
    2. biological evidence in an amount and manner that is sufficient to develop a DNA profile from any material contained in or included on the evidence that was obtained in relation to the prosecution of a person convicted of, or adjudicated a delinquent for, a crime under AS 11.41.100 — 11.41.130 , a person convicted of a crime after being indicted under AS 11.41.410 or 11.41.434 while the person remains a prisoner in the custody of the Department of Corrections or subject to registration as a sex offender, or a person adjudicated a delinquent for a crime after the filing of a petition alleging a violation of AS 11.41.410 or 11.41.434 while the person remains committed to a juvenile facility or subject to registration as a sex offender.
  2. Under (a) of this section, an agency is not required to preserve physical evidence of a crime that is of a size, bulk, quantity, or physical character that renders preservation impracticable. When preservation of evidence of a crime is impracticable, the agency shall, before returning or disposing of the evidence, remove and preserve portions of the material likely to contain relevant evidence related to the crime in a quantity sufficient to permit future DNA testing. In making decisions under this section, an agency shall follow written policies on evidence retention.
  3. Upon written request of a person convicted of a crime and a prisoner, adjudicated delinquent for a crime and committed, or subject to registration as a sex offender, an agency shall prepare or provide an inventory of biological evidence that has been preserved under (a)(2) of this section in connection with the person’s criminal case.
  4. An agency required to preserve biological evidence under (a) of this section may destroy biological evidence before the expiration of the time period in (a)(2) of this section if
    1. the agency is not required to maintain the evidence under another provision of state or federal law;
    2. the agency sends, by certified mail with proof of delivery, notice of its intent to destroy evidence to
      1. each person who remains a prisoner or committed or subject to registration as a sex offender for the crime for which the evidence was preserved under (a)(2) of this section;
      2. the attorneys of record, if known, for each person listed in (A) of this paragraph;
      3. the Public Defender Agency;
      4. the district attorney responsible for prosecuting the crime; and
    3. no person who is notified under (2) of this subsection, within 120 days after receiving the notice,
      1. files a motion for testing of the evidence; or
      2. submits a written request for continued preservation of the evidence.
  5. Upon receipt of a request for continued preservation of biological evidence under (d)(3)(B) of this section, an agency may petition the court for permission to destroy the evidence. The court may grant the petition if the court finds that the request is without merit or that the evidence has no significant value for biological material.
  6. When an agency is required to produce biological evidence required to be preserved under this section and the agency is unable to locate the evidence, the chief evidence custodian of that agency shall submit an affidavit, executed under penalty of perjury, describing the evidence that could not be located and detailing the efforts taken to locate the evidence.
  7. If a court finds that evidence was destroyed in violation of the provisions of this section, the court may order remedies the court determines to be appropriate.
  8. A person may not bring a civil action for damages against the state or a political subdivision of the state, their officers, agents, or employees, or a law enforcement agency, its officers, or employees for any unintentional failure to comply with the provisions of this section.
  9. In this section,
    1. “agency” means the Department of Law, the Department of Public Safety, the Alaska Court System, or a municipal law enforcement agency;
    2. “biological evidence” means
      1. the contents of a sexual assault forensic examination kit;
      2. semen, blood, hair, saliva, skin tissue, fingernail scrapings, bone, bodily fluids, or other identifiable human bodily material collected as part of a criminal investigation;
      3. a slide, swab, or test tube containing material described in (B) of this paragraph; and
      4. swabs or cuttings from items that contain material described in (B) of this section;
    3. “DNA” means deoxyribonucleic acid;
    4. “prisoner” has the meaning given in AS 33.30.901 .

History. (§ 3 ch 20 SLA 2010)

Effective dates. —

Section 19, ch. 20, SLA 2010 makes this section effective July 1, 2010.

Editor’s notes. —

Section 16(a), ch. 20, SLA 2010, provides that this section “applies to all evidence in the possession of an agency, as defined in AS 12.36.200(i) , on or after January 1, 2011, for evidence collected before, on, or after July 1, 2010.”

Chapter 37. Interceptions and Access to Communications.

Cross references. —

For provisions regarding communications, eavesdropping, and wiretapping, see AS 42.20.300 — 42.20.390 .

Legislative history reports. —

For governor’s transmittal letter on the bill (HB 187) that became ch. 61, SLA 1993, which enacted this chapter, see 1993 House Journal 488 — 489.

Notes to Decisions

Legislative intent. —

In passing this chapter, the legislature intended to expand authorization for the interception of communications and to provide procedures similar to those provided in federal law, rather than to eliminate the interception of communications where a participant to the conversation has consented to the interception when the police have obtained a Glass ( State v. Glass, 583 P.2d 872 (Alaska 1978)), requiring police to obtain judicial authorization before secretly recording a person’s private conversations) warrant. Bachlet v. State, 941 P.2d 200 (Alaska Ct. App. 1997).

Article 1. Interception of Private Communications.

Sec. 12.37.010. Authorization to intercept communications.

The attorney general, or a person designated in writing or by law to act for the attorney general, may authorize, in writing, an ex parte application to a court of competent jurisdiction for an order authorizing the interception of a private communication if the interception may provide evidence of, or may assist in the apprehension of persons who have committed, are committing, or are planning to commit, the following offenses:

  1. murder in the first or second degree under AS 11.41.100 — 11.41.110 ;
  2. kidnapping under AS 11.41.300 ;
  3. a class A or unclassified felony drug offense under AS 11.71;
  4. sex trafficking in the first or second degree under AS 11.66.110 and 11.66.120 ; or
  5. human trafficking in the first degree under AS 11.41.360 .

History. (§ 1 ch 61 SLA 1993; am § 15 ch 43 SLA 2013)

Cross references. —

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (4) and (5) and made related changes.

Editor’s notes. —

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to this section apply to offenses committed on or after July 1, 2013.

Notes to Decisions

Quoted in

Bachlet v. State, 941 P.2d 200 (Alaska Ct. App. 1997).

Sec. 12.37.020. Application for order authorizing a communication interception.

  1. An application for an order authorizing the interception of a private communication shall be made in writing upon oath or affirmation and must state
    1. the authority of the applicant to make the application;
    2. the identity of the peace officer for whom the authority to intercept the communication is sought;
    3. the facts relied upon by the applicant for the order, including
      1. if known, the identity of the particular person committing the offense and whose communication is to be intercepted;
      2. the details as to the particular offense that has been, is being, or is about to be committed;
      3. the specific type of communication to be intercepted;
      4. a showing that there is probable cause to believe that the communication will be communicated on the specific communication facility involved or at the specific place where the oral communication is to be intercepted;
      5. a showing that there is probable cause to believe that the facility from which, or the place where, the communication is to be intercepted, is, has been, or is about to be used in connection with the commission of the offense, or is leased to, listed in the name of, or commonly used by, the person whose communication is to be intercepted;
      6. the character and location of the specific communication facility involved or the specific place where the oral communication is to be intercepted;
      7. the objective of the investigation;
      8. a statement of the period of time for which the interception is required to be maintained, and, if the objective of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a specific statement of facts establishing probable cause to believe that additional communications of the same type will continue to occur;
      9. a specific statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed, or reasonably appear to be unlikely to succeed if tried, or are too dangerous to employ;
    4. the facts known to the applicant concerning all previous applications made to a court for the issuance of an order authorizing the interception of a private communication involving any of the same facilities or places specified in the current application or involving the same person whose communication is to be intercepted, and the action taken by the court on each application;
    5. if the application is for an extension of a previously issued order, a statement of facts showing the results obtained thus far from the interception, or a reasonable explanation for the failure to obtain results;
    6. a proposed order authorizing the communication interception; and
    7. any additional facts in support of the application considered appropriate by the applicant or by the court.
  2. If an applicant for an order authorizing a communications interception is relying upon uncorroborated evidence provided by a confidential informant, the court may hold an in camera hearing at which it may inquire as to the identity of the informant or as to any other relevant information concerning the basis upon which the applicant is applying for the order.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.030. Requirements for an order authorizing a communications interception.

  1. Upon consideration of an application, the court may enter an ex parte order authorizing the interception of a private communication if the court determines, on the basis of the application, that
    1. there is probable cause to believe that the person whose communication is to be intercepted is committing, has committed, or is planning to commit an offense listed in AS 12.37.010 ;
    2. there is probable cause to believe that a communication concerning the offense may be obtained through the interception;
    3. there is probable cause to believe that the facility from which, or the place where, the communication is to be intercepted, is, has been, or is about to be used in connection with the commission of the offense, or is leased to, listed in the name of, or commonly used by, the person whose communication is to be intercepted;
    4. normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be either unlikely to succeed if tried or too dangerous to employ; and
    5. if the application, other than an application for an extension, is for an order to intercept a communication of a person, or involving a communications facility, that was the subject of a previous application, the current application is based upon new evidence or information different from and in addition to the evidence or information offered to support the previous application.
  2. In addition to exercising authority under (a) of this section, on consideration of an application relating to a private communication of a minor, the court may enter an ex parte order authorizing the interception of the private communication. The court may enter the order only if the court determines, after making appropriate findings of fact and on the basis of the application, that there is probable cause to believe that
    1. a party to the private communication
      1. has committed, is committing, or is about to commit a felony or misdemeanor;
      2. has been, is, or is about to be a victim of a felony or misdemeanor; or
      3. has been, is, or is about to be a witness to a felony or misdemeanor;
    2. the health or safety of a minor is in danger; or
    3. a parent of a minor has consented in good faith to the interception of a communication of the minor based on the parent’s objectively reasonable belief that it is necessary for the welfare of the minor and is in the best interest of the minor.
  3. In (b) of this section, “minor” and “parent” have the meanings given in AS 42.20.390 .

History. (§ 1 ch 61 SLA 1993; am § 1 ch 104 SLA 2006)

Effect of amendments. —

The 2006 amendment, effective November 2, 2006, added subsections (b) and (c).

Sec. 12.37.040. Contents of order authorizing a communications interception; limitations on disclosure.

  1. An order entered under AS 12.37.030 must state
    1. that the court is authorized to enter the order;
    2. if known, the identity of, or a particular description of, the person whose communications are to be intercepted;
    3. the character and location of the particular communication facility or the particular place of the communication as to which authority to intercept is granted;
    4. a specific description of the type of communication to be intercepted and a statement of the particular offense to which it relates;
    5. the identity of the peace officer or officers to whom the authority to intercept a communication is given and the identity of the person who authorized the application; and
    6. the period of time during which the interception is authorized, including a statement as to whether or not the interception automatically terminates when the described communication has been first obtained, and a statement that the interception shall begin and terminate as soon as practicable and be conducted in such a manner as to minimize the interception of communications not otherwise subject to interception.
  2. An order entered under AS 12.37.030 may not authorize the interception of private communications for a period of time exceeding 30 days or that period necessary to achieve the objective of the authorization, whichever is shorter. The authorized interception period begins on the day on which the peace officer first begins to conduct an interception under the order or 10 days after the order is entered, whichever is earlier. Extensions of 30 days or less may be granted if application for each extension order is made under AS 12.37.020 and the necessary findings are made by the court under AS 12.37.030 .
  3. The court may require an applicant to file periodic reports with the court, showing what progress is being made toward achieving the authorized objective of the communication interception and what need exists for continued interception. The intervals at which the reports are to be filed shall be determined by the court.
  4. An order entered under AS 12.37.030 may, upon request of the applicant, direct that a communications common carrier, provider of wire or electronic communication services, landlord, owner, building operator, custodian, or other person furnish the applicant, without delay, all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively. The obligations of a communications common carrier under an order may include the obligation to conduct an in-progress trace during an interception. A communications common carrier, provider of wire or electronic communication services, landlord, owner, building operator, custodian, or other person who furnishes facilities or technical assistance under this subsection shall be compensated by the applicant at prevailing rates.
  5. A communications common carrier, provider of wire or electronic communication services, landlord, owner, building operator, custodian, or other person who, under this section, has been shown a copy of an order authorizing the interception of a private communication may not disclose the existence of the order or of the device used to accomplish the interception unless
    1. the person is required to do so by legal process; and
    2. the person gives prior notification to the attorney general or the attorney general’s designee who authorized the application for the order.
  6. An order entered under AS 12.37.030 may, upon the request of the applicant, authorize the applicant to enter a designated place or facility as often as necessary to install, maintain, or remove an intercepting device. The applicant shall notify the court of each such entry before its occurrence, if practicable. If prior notice is not practicable, the applicant shall notify the court within 72 hours after the entry.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.050. Privileged communications.

An otherwise privileged communication intercepted in accordance with, or in violation of, the provisions of AS 12.37.010 — 12.37.130 does not lose its privileged character by reason of the interception.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.060. Collateral authority of court; interpretation of AS 12.37.010 — 12.37.130.

  1. Notwithstanding any other provision of AS 12.37.010 — 12.37.130 , a court to which an application is made for an order authorizing the interception of a private communication may take the evidence, make the findings, or issue the other orders necessary to conform the proceedings or the entry of an order to the United States Constitution, the Constitution of the State of Alaska, or any applicable law of the United States or of the state.
  2. When the language of AS 12.37.010 — 12.37.130 is the same or similar to the language of 18 U.S.C. 2510 — 2521, the courts of this state in construing AS 12.37.010 — 12.37.130 shall follow the construction given to those federal statutes by the federal courts.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.070. Records and recordings and custody of them.

  1. A communication intercepted under AS 12.37.010 — 12.37.130 shall, if practicable, be recorded by tape or wire or other comparable method. The recording shall, if practicable, be done in a way that will protect it from editing or other alteration. During an interception, the peace officer authorized to act under the court’s order shall, if practicable, keep a signed, written record of the interception, that shall include the following information:
    1. the date and hours during which the interception equipment or site was monitored;
    2. the time and duration of each intercepted communication;
    3. the parties to each intercepted communication, if known; and
    4. a summary of the contents of each intercepted communication.
  2. Immediately upon expiration of the authorized interception period specified in an order entered under AS 12.37.030 or, if an extension order has been entered, upon expiration of the authorized interception period specified in that order, any tapes or other recordings, and any records made during the interception, and all orders authorizing the interception, shall be transferred to the court that entered the order and shall be sealed under its direction. Custody of the tapes, other recordings, and records of the interception shall be maintained as the court directs. The tapes, recordings, and records of the interception may not be destroyed except upon order of the court, and in any event shall be kept for a minimum period of 10 years. Duplicate recordings and records of the interception may be made for disclosure or use under AS 12.37.090(d) and 12.37.110 . The presence of the seal required by this subsection, or a satisfactory explanation for its absence, is a prerequisite for the use or disclosure of the contents of any communication intercepted under AS 12.37.010 — 12.37.130 .

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.080. Custody of applications and orders; penalty for disclosure.

  1. Except for a copy that may be retained for use by the applicant, all applications made and orders entered under AS 12.37.010 — 12.37.130 for the interception of private communications shall be sealed by the court and maintained as the court directs. The applications and orders may not be destroyed except upon order of the court and in any event shall be kept for a minimum period of 10 years.
  2. In addition to any other remedies or penalties provided by law, the disclosure of applications and orders in violation of AS 12.37.010 — 12.37.130 is punishable under AS 09.50.020 as contempt of court.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.090. Notice of interception and disclosure.

  1. Within a reasonable period of time, but no later than 90 days following the expiration of the authorized interception period specified in an order entered under AS 12.37.030 or, if an extension order has been entered, upon expiration of the authorized interception period specified in that order, the court entering the order shall cause a notice of interception to be served on
    1. a person who is named in the order; or
    2. a party to the intercepted communications if the court determines in its discretion that the party should be informed in the interest of justice.
  2. The notice of interception must include a statement of
    1. the fact of the entry of the order under AS 12.37.030 ;
    2. the date of the entry of the order;
    3. the period of time for which the interception was authorized; and
    4. whether and how many private communications were intercepted.
  3. On an ex parte showing of good cause, the court may postpone service of the notice of interception.
  4. Upon the filing of a motion, the court may make available for inspection to a person or the person’s attorney, as the court determines to be in the interest of justice, those portions of an intercepted communication, an application for an order, and an order that the court considers appropriate.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.100. Approval for unanticipated interception.

If, while intercepting a private communication under the provisions of AS 12.37.010 — 12.37.130 , a peace officer intercepts a communication that relates to a felony offense other than one specified in the order of authorization, the attorney general, or a person designated in writing or by law to act for the attorney general, may file a motion for an order approving that interception so that the communication, or evidence derived from it, may be used during testimony in an official proceeding. A court may enter an order approving the interception if it finds that the person who intercepted the communication was otherwise acting under the provisions of AS 12.37.010 — 12.37.130 .

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.110. Use of intercepted communication.

An intercepted private communication, and evidence derived from it, may not be received in evidence or otherwise disclosed in an official proceeding unless each party to the communication who is a party in the official proceeding was furnished, at least 10 days before the proceeding, with a copy of the court order authorizing the interception and of the application for authorization under which the order was issued. The 10-day period may be waived by the presiding official if the presiding official finds that it was not practicable to furnish the person with the information 10 days before the proceeding and also finds that the person will not be prejudiced by the delay in receiving the information.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.120. Suppression of unlawful interceptions.

  1. A motion to suppress the contents of an intercepted private communication, or evidence derived from it, may be filed in a proceeding on the ground that the
    1. interception was unlawful;
    2. order of authorization under which the communication was intercepted is insufficient on its face; or
    3. interception was not made in substantial compliance with the order of authorization.
  2. Upon the filing of a motion to suppress under this section, the court may make available to the moving party or that party’s attorney, for inspection, the portion or portions of the intercepted communication, applications, and orders that the court determines to be in the interest of justice.
  3. Suppression is the only judicial sanction available for a nonconstitutional violation of AS 12.37.010 — 12.37.130 involving an intercepted private communication.

History. (§ 1 ch 61 SLA 1993)

Sec. 12.37.130. Required reports.

  1. Within 30 days after the expiration of the authorized interception period specified in an order entered under AS 12.37.030 or, if an extension order has been entered, upon expiration of the authorized interception period specified in that order, the court entering the order shall report to the Administrative Office of the United States Courts the following information:
    1. the fact that an order or extension order was applied for;
    2. the kind of order or extension order applied for;
    3. whether the order or extension order was granted as applied for or was granted as modified;
    4. the period of time for which the interception is authorized by the order and the number of, and duration of the authorized interception period specified in, any extension orders regarding that order;
    5. the offense specified in the order, extension order, or application;
    6. the name and title of the applicant; and
    7. the nature of the facilities from which or the place where the communication was to be intercepted.
  2. In January of each year, the attorney general or the attorney general’s designee shall report to the Administrative Office of the United States Courts the following information with respect to orders and extension orders obtained in the preceding calendar year:
    1. the information required by (a) of this section with respect to each application for an order or extension order made;
    2. a general description of the interceptions made under the order or extension, including the approximate
      1. nature and frequency of incriminating communications intercepted;
      2. nature and frequency of other communications intercepted;
      3. number of persons whose communications were intercepted; and
      4. nature, amount, and cost of the manpower and other resources used in the interceptions;
    3. the number of arrests resulting from interceptions made under the order or extension order, and the offenses for which arrests were made;
    4. the number of trials resulting from the interceptions;
    5. the number of motions to suppress made with respect to the interceptions, the number of such motions granted, and the number of such motions denied; and
    6. the number of convictions resulting from interceptions and the offenses for which the convictions were obtained, and a general assessment of the importance of the interceptions.
  3. In addition to the report required by (b) of this section, the attorney general or the attorney general’s designee shall prepare and make available to the public annual reports on the operation of AS 12.37.010 — 12.37.130 . The reports shall contain the following information:
    1. the number of applications made under AS 12.37.010 — 12.37.130 ;
    2. the number of orders entered by the court;
    3. the effective period of time for which each interception was authorized;
    4. the number of, and duration of the authorized interception period specified in, any extension orders;
    5. the offenses in connection with which the communications were sought;
    6. the names and titles of the applicants;
    7. the number of indictments or other charges resulting from each application;
    8. the offenses that each indictment or other charge relates to; and
    9. the disposition of each indictment or other charge.

History. (§ 1 ch 61 SLA 1993)

Article 2. Pen Registers and Trap Devices.

Sec. 12.37.200. Authorization to use pen registers and trap devices.

Upon application by a peace officer made in conformity with any provision of federal law authorizing such an application, a court may issue an order authorizing or concerning the use of a pen register or a trap device as permitted under federal law.

History. (§ 1 ch 61 SLA 1993)

Article 3. Communications in Electronic Storage.

Sec. 12.37.300. Authorization for access to and use of communications in electronic storage.

Upon application by a peace officer made in conformity with any provision of federal law authorizing such an application, a court may issue an order authorizing or concerning access to and disclosure or use of communications in electronic storage as permitted under federal law.

History. (§ 1 ch 61 SLA 1993)

Article 4. Police Use of Body Wires.

Sec. 12.37.400. Police use of body wire.

  1. A peace officer may intercept an oral communication by use of an electronic, mechanical, or other eavesdropping device that is concealed on or carried on the person of the peace officer and that transmits that oral communication by means of radio to a receiving unit that is monitored by other peace officers, if
    1. the interception and monitoring occurs
      1. during the investigation of a crime or the arrest of a person for a crime; and
      2. for the purpose of ensuring the safety of the peace officer conducting the investigation or making the arrest;
    2. the peace officer intercepting the conversation is a party to the oral communication and has consented to the interception; and
    3. the communication intercepted is not recorded.
  2. A peace officer monitoring a receiving unit under (a) of this section, or any other person intercepting an oral communication transmitted under (a) of this section, is not competent to testify in a criminal proceeding involving a party to the oral communication about the contents of the oral communication that was intercepted or the fact that the communication occurred.

History. (§ 3 ch 64 SLA 1999)

Article 5. General Provisions.

Sec. 12.37.900. Definitions.

In this chapter,

  1. “communications common carrier” has the meaning given in AS 42.20.390 ;
  2. “contents” has the meaning given in AS 42.20.390 ;
  3. “court” means superior court, except that in AS 12.37.200 it means either superior or district court;
  4. “electronic communication” has the meaning given in AS 42.20.390 ;
  5. “electronic communication service” has the meaning given in AS 42.20.390 ;
  6. “electronic storage” means any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission of the communication, and any storage of the communication by an electronic communication service for purposes of backup protection of the communication;
  7. “in-progress trace” means to determine the origin of a wire communication to a telephone instrument, equipment, or facility during the course of the communication;
  8. “intercept” has the meaning given in AS 42.20.390 ;
  9. “official proceeding” means a judicial, legislative, or administrative proceeding or any other proceeding before a government agency or official authorized to hear evidence under oath, other than a grand jury;
  10. “oral communication” has the meaning given in AS 42.20.390 ;
  11. “peace officer” has the meaning given in AS 11.81.900(b) ;
  12. “pen register” means a device or apparatus that is connected to a telephone instrument, equipment, or facility to determine the destination of a wire communication to a telephone instrument, equipment, or facility, but that does not intercept the contents of the communication; “pen register” does not include a device used by a provider or customer of a wire or electronic communication service for billing, or for recording as an incident to billing, for communications services provided by the provider, nor a device used by a provider or customer of a wire communication service for cost accounting or other like purposes in the ordinary course of its business;
  13. “private communication” has the meaning given in AS 42.20.390 ;
  14. “trap device” means a device or apparatus that is connected to a telephone instrument, equipment, or facility to determine the origin of a wire communication to the telephone instrument, equipment, or facility, but that does not intercept the contents of the communication;
  15. “wire communication” has the meaning given in AS 42.20.390 .

History. (§ 1 ch 61 SLA 1993; am §§ 36 — 38 ch 13 SLA 2019)

Revisor's notes. —

In 2008, the paragraphs of this section were renumbered to maintain alphabetical order.

Effect of amendments. —

The 2019 amendment, effective October 17, 2019, in (7), (12), and (14), deleted “or telegraph” following “a telephone” five times.

Chapter 40. Grand Jury.

Cross references. —

For court rules on grand juries, see Rules 6 and 6.1, Alaska Rule of Criminal Procedure; for constitutional provisions, see art. I, § 8 of the Alaska Constitution.

For provisions relating to a requirement of a grand jury before a general court martial, see AS 26.05.440 and 26.05.445 .

Notes to Decisions

Grand jury bias due to preindictment publicity. —

See Chief v. State, 718 P.2d 475 (Alaska Ct. App. 1986).

Collateral references. —

38 Am. Jur. 2d, Grand Jury, § 1 et seq.

38A C.J.S., Grand Juries, § 1 et seq.

Sec. 12.40.010. Qualifications and manner of drawing grand jurors.

Grand jurors shall have the qualifications and be drawn as are trial jurors under AS 09.20.010 — 09.20.080 .

History. (§ 5.01 ch 34 SLA 1962)

Notes to Decisions

Exclusionary method of jury selection held invalid. —

Any method of jury selection which is in reality a subterfuge to exclude from juries, systematically and intentionally some cognizable group or class of citizens in the community must be held invalid. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Juror not selected at public drawing held not qualified. —

See Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Collateral references. —

Exclusion of attorneys from jury list in criminal cases. 32 ALR2d 890.

Validity of indictment where grand jury heard incompetent witness. 39 ALR3d 1064.

Law enforcement officers as qualified jurors in criminal cases. 72 ALR3d 895.

Former law enforcement officers as qualified jurors in criminal cases. 72 ALR3d 958.

Age group under representation in grand jury or petit jury venire. 62 ALR4th 859.

Sec. 12.40.020. Number of jurors.

The grand jury consists of not less than 12 nor more than 18 members.

History. (§ 5.02 ch 34 SLA 1962)

Notes to Decisions

Cited in

Sanford v. State, 24 P.3d 1263 (Alaska Ct. App. 2001).

Sec. 12.40.030. Duty of inquiry into crimes and general powers.

The grand jury shall inquire into all crimes committed or triable within the jurisdiction of the court and present them to the court. The grand jury shall have the power to investigate and make recommendations concerning the public welfare or safety.

History. (§ 5.03 ch 34 SLA 1962)

Notes to Decisions

A grand jury proceeding is not a criminal action. It is merely an inquiry to determine whether there is probable cause to believe the accused is guilty of the offense charged. Brown v. State, 372 P.2d 785 (Alaska 1962).

Cited in

Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003).

Sec. 12.40.040. Juror to disclose knowledge of crime.

If an individual grand juror knows or has reason to believe that a crime has been committed that is triable by the court, the juror shall disclose it to the other jurors, who shall investigate it.

History. (§ 5.04 ch 34 SLA 1962)

Sec. 12.40.050. Holding to answer as affecting indictment or presentment.

The grand jury may indict or present a person for a crime upon sufficient evidence, whether that person has been held to answer for the crime or not.

History. (§ 5.05 ch 34 SLA 1962)

Notes to Decisions

Sufficiency of the evidence is the test prescribed by this section. State v. Parks, 437 P.2d 642 (Alaska 1968); Sleziak v. State, 454 P.2d 252 (Alaska), cert. denied, 396 U.S. 921, 90 S. Ct. 252, 24 L. Ed. 2d 202 (U.S. 1969).

Hearsay. —

Hearsay, if relevant, is evidence, and if it is such that, unexplained or uncontradicted, it would persuade a grand jury that it would warrant the conviction of the defendant at the trial, then it is sufficient evidence to justify the finding of an indictment. State v. Parks, 437 P.2d 642 (Alaska 1968).

Indictment against defendant for escaping from a halfway house was invalid because it was based on an incident report — prepared by a staff member at the halfway house, relaying another resident's description of defendant's conduct, and introduced to the grand jury through the testimony of an uninvolved supervisor — that was not admissible under the business records exception and without the report the evidence before the grand jury was insufficient to support an indictment. The error was not rendered harmless by defendant's conviction. Wassillie v. State, 411 P.3d 595 (Alaska 2018).

Cited in

Schouten v. State, 77 P.3d 739 (Alaska Ct. App. 2003); State v. Leighton, 336 P.3d 713 (Alaska Ct. App. 2014); Smith v. State, — P.3d — (Alaska Ct. App. July 3, 2018).

Sec. 12.40.060. Access to public jails, prisons, and public records.

The grand jury is entitled to access, at all reasonable times, to the public jails and prisons, to offices pertaining to the courts of justice in the state, and to all other public offices, and to the examination of all public records in the state.

History. (§ 5.06 ch 34 SLA 1962)

Sec. 12.40.070. Duty of prosecuting attorney.

The prosecuting attorney

  1. shall submit an indictment to the grand jury and cause the evidence in support of the indictment to be brought before them in every case when a person is held to answer a criminal charge in the court where the jury is formed;
  2. may submit an indictment in any case when the prosecuting attorney has good reason to believe a crime has been committed that is triable by the court; and
  3. shall, when required by the grand jury, prepare indictments or presentments for them and attend their sittings to advise them in relation to their duties or to examine witnesses in their presence.

History. (§ 5.07 ch 34 SLA 1962)

Notes to Decisions

The same duties of the district attorney that are set out in Alaska Rule of Criminal Procedure 6(i) are stated in this section. Coleman v. State, 553 P.2d 40 (Alaska 1976).

Prosecutor’s function in the grand jury process. —

See Coleman v. State, 553 P.2d 40 (Alaska 1976).

Right to indictment by grand jury free of prosecutor-instigated prejudice. —

Although no provision of the United States or Alaska constitution specifically guarantees the right of an accused to be indicted by a grand jury free of prosecutor-instigated prejudice, a strong historical basis exists for holding that the grand jury should operate to control abuses by the government and protect the interests of the accused. Coleman v. State, 553 P.2d 40 (Alaska 1976).

When presenting a case to a grand jury, the prosecutor should not make statements or arguments which would influence the grand jury in a manner which would be impermissible at trial. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Liability for utterances of witness. —

Absent some evidence that the prosecutor knew or should have known that the response to his question would contain improper evidence, he is not held answerable for the utterances of the witness. This does not mean to imply that a prosecutor need not be concerned with the answers which his questions might elicit. He remains under a duty to present to the grand jury only that evidence which he believes would be admissible at trial. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Overriding prior immunity grant. —

If a grand jury seeks, under this section, to compel a prosecutor to override a prior immunity grant, any resulting indictment is to be dismissed with prejudice. Surina v. Buckalew, 629 P.2d 969 (Alaska 1981).

Stated in

Bujaki v. Egan, 237 F. Supp. 822 (D. Alaska 1965).

Collateral references. —

Limitations on state prosecuting attorney’s discretion to initiate prosecution by indictment or information. 44 ALR4th 401.

Sec. 12.40.080. Effect of failure to return indictment.

When a grand jury does not return an indictment, the charge is dismissed, and it may not be again submitted to or inquired into by the grand jury unless the court so orders.

History. (§ 5.08 ch 34 SLA 1962)

Notes to Decisions

Reconsideration decision. —

A grand jury may, sua sponte, reconsider a decision to return a “no true bill” and hear new evidence so long as the reconsideration takes place prior to the foreperson’s endorsing the indictment “no true bill” and signing it. Andreanoff v. State, 746 P.2d 473 (Alaska Ct. App. 1987).

Decision to reconsider a decision to return a “no true bill” was not coerced by the prosecution where after the prosecutor’s inquiries regarding possible lesser-included offenses, it became clear that the entire grand jury was interested in considering additional evidence and postponing its ultimate decision until that evidence was received. Andreanoff v. State, 746 P.2d 473 (Alaska Ct. App. 1987).

Applied in

Bujaki v. Egan, 237 F. Supp. 822 (D. Alaska 1965).

Sec. 12.40.090. Questioning juror for conduct.

A grand juror cannot be questioned for anything the juror may say or any vote the juror may give while acting as a grand juror, in relation to any matter legally pending before the grand jury, except for a perjury of which the juror may have been guilty in giving testimony before that jury.

History. (§ 5.09 ch 34 SLA 1962)

Sec. 12.40.100. Contents of indictment.

  1. The indictment must be direct and certain as it regards
    1. the party charged;
    2. the crime charged; and
    3. the particular circumstances of the crime charged when they are necessary to constitute a complete crime.
  2. The statement of the facts constituting the offense must be in ordinary and concise language, without repetition, and in a manner that will enable a person of common understanding to know what is intended.
  3. An indictment that complies with this section and with applicable rules adopted by the supreme court is valid and need not specify aggravating factors set out in AS 12.55.155 .

History. (§ 5.10 ch 34 SLA 1962; am § 2 ch 2 SLA 2005)

Cross references. —

For similar court rule, see Rule 7(c), Alaska Rule of Criminal Procedure.

For a statement of legislative intent relating to (c) of this section, see § 1, ch. 2, SLA 2005, in the 2005 Temporary and Special Acts.

Effect of amendments. —

The 2005 amendment, effective March 23, 2005, added subsection (c).

Editor’s notes. —

Section 33, ch. 2, SLA 2005, provides that (c) of this section applies “to offenses committed before, on, or after March 23, 2005.” See § 33, ch. 2, SLA 2005, in the 2005 Temporary and Special Acts.

Notes to Decisions

Indictment must answer purpose for which intended. —

An indictment has a purpose — to require a defendant to stand trial for a criminal offense with which he is charged. If the indictment is not adequate to answer the purpose for which it is intended, then it is insufficient, regardless of the fact that it may meet all the formal statutory requisites and have all the appearances of validity. State v. Shelton, 368 P.2d 817 (Alaska 1962).

No conflict between Criminal Rule 7(c) and paragraph (a)(3). —

There is no conflict between Criminal Rule 7(c) and the provisions of paragraph (a)(3) of this section, for it has been established that the means and manner by which the victim met his death are not elements of the crime of murder. Flores v. State, 443 P.2d 73 (Alaska 1968).

Use of conjunctive and disjunctive in indictment and instructions was not prejudicial. —

Where there was only one offense charged in one count of the indictment, i.e., one assault with a dangerous weapon, but the jury was told that the assault was directed at either or both of two people, though the conjunctive was used in the indictment and in one of the instructions and the disjunctive used in other instructions, this in no way operated to prejudice any of the defendant’s substantial rights. Larson v. State, 569 P.2d 783 (Alaska 1977).

Indictment sufficient to charge murder in first degree. —

See Flores v. State, 443 P.2d 73 (Alaska 1968).

The charging words of an indictment for first degree murder, that the defendant “did, with deliberate and premeditated malice, willfully, unlawfully and feloniously kill one Don Iannitti by shooting said Don Iannitti with a .357 caliber magnum revolver,” should leave no doubt in the mind of a person of common understanding that the element of purpose was intended to be, and is, reflected in the words used in the indictment to describe the nature of the killing. Marrone v. State, 359 P.2d 969 (Alaska 1961).

For cases construing earlier law, see United States v. Clark, 46 F. 633, 1 Alaska Fed. 215 (D. Alaska 1891); Fitzpatrick v. United States, 178 U.S. 304, 20 S. Ct. 944, 44 L. Ed. 1078 (U.S. 1900); Stockslager v. United States, 116 F. 590, 1 Alaska Fed. 810 (9th Cir. Alaska 1902); Griggs v. United States, 158 F. 572, 3 Alaska Fed. 1 (9th Cir. Alaska 1908); United States v. Smith, 4 Alaska 396 (D. Alaska 1911); Canoe Pass Packing Co. v. United States, 270 F. 533, 5 Alaska Fed. 25 (9th Cir. Alaska 1921); Freihage v. United States, 56 F.2d 127, 5 Alaska Fed. 618 (9th Cir. Alaska 1932); United States v. Abrahamson, 10 Alaska 518 (D. Alaska 1945); Barbeau v. United States, 193 F.2d 945, 13 Alaska 551 (9th Cir. Alaska 1951), cert. denied, 343 U.S. 968, 72 S. Ct. 1064, 96 L. Ed. 1364 (U.S. 1952); United States v. Aloowsine, 17 F.R.D. 211, 15 Alaska 483 (D. Alaska 1955).

Applied in

Spight v. State, 450 P.2d 157 (Alaska 1969).

Stated in

Wassillie v. State, 411 P.3d 595 (Alaska 2018).

Cited in

Stewart v. State, 438 P.2d 387 (Alaska 1968); State v. Dague, 143 P.3d 988 (Alaska Ct. App. 2006).

Collateral references. —

38A C.J.S., Grand Juries, § 100 et seq.

Sec. 12.40.110. Hearsay evidence in prosecutions for sexual offenses.

  1. In a prosecution for an offense under AS 11.41.410 — 11.41.458 , hearsay evidence of a statement related to the offense, not otherwise admissible, made by a child who is the victim of the offense may be admitted into evidence before the grand jury if
    1. the circumstances of the statement indicate its reliability;
    2. the child is under 10 years of age when the hearsay evidence is sought to be admitted;
    3. additional evidence is introduced to corroborate the statement; and
    4. the child testifies at the grand jury proceeding or the child will be available to testify at trial.
  2. In this section “statement” means an oral or written assertion or nonverbal conduct if the nonverbal conduct is intended as an assertion.

History. (§ 1 ch 41 SLA 1985; am § 12 ch 81 SLA 1998)

Notes to Decisions

Constitutionality. —

This section is constitutional. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

A statutory classification which permits hearsay from child declarants to be presented to grand juries in sexual abuse cases, but implicitly rejects the use of hearsay in other cases involving crimes against children, does not violate equal protection. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Permitting hearsay before a grand jury in cases of sexual assault on children does not deprive a defendant of due process or of the constitutional right to a grand jury review of the prosecution’s evidence before the return of an indictment. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Legislative intent. —

The legislature adopted this section with the express intention of amending Alaska Rule of Criminal Procedure 6(r), which governs the admissibility of testimony at a grand jury proceeding. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Factors for assessing reliability of child hearsay statements include (1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Corroboration. —

One child’s claims of sexual abuse may corroborate another child’s claim against the same individual. Murray v. State, 770 P.2d 1131 (Alaska Ct. App. 1989).

Burden of corroboration upon state. —

Where the declarants are truly unavailable and the defendant denies their allegations under oath, the state should bear the burden of proving the veracity of each declarant and corroborating his or her testimony. Hamilton v. State, 771 P.2d 1358 (Alaska Ct. App. 1989).

Applied in

Petersen v. State, 838 P.2d 812 (Alaska Ct. App. 1992).

Chapter 45. Trial, Evidence, Compromise.

Collateral references. —

75 Am. Jur. 2d, Trial, § 1 et seq.

23A C.J.S., Criminal Law, § 1556 et seq.

88 C.J.S., Trial, § 1 et seq.

Article 1. Trial Jury.

Sec. 12.45.010. Formation of trial jury.

The qualification, disqualification, and exemption of jurors, the preparation of jury lists, and the composition of jury panel in criminal actions are the same as provided in civil actions.

History. (§ 6.01 ch 34 SLA 1962)

Cross references. —

For provisions in civil actions, see AS 09.20.010 — 09.20.100 ; for court rules, see Rule 24, Alaska Rule of Criminal Procedure and Rule 47, Alaska Rule of Civil Procedure.

Notes to Decisions

Invalid method of jury selection. —

Any method of jury selection which is in reality a subterfuge to exclude from juries, systematically and intentionally, some cognizable group or class of citizens in the community must be held invalid. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Applying the “cognizable group” standards for jury composition to less-than-one-year residents, a defendant’s 6th amendment right to an impartial jury is not impaired. The excluded group is not a static one with definite parameters. There is no common thread, a basic similarity in attitudes or ideas or experience, except the lack of familiarity with the community. Hampton v. State, 569 P.2d 138 (Alaska 1977), cert. denied, 434 U.S. 1056, 98 S. Ct. 1225, 55 L. Ed. 2d 757 (U.S. 1978).

Defendant may not take advantage of nonprejudicial departures from statutory procedure. —

The defendant in a criminal action cannot take advantage of slight departures from the procedure enacted for selecting jurors without showing that his rights have been prejudiced thereby. Hauptman v. United States, 43 F.2d 86, 5 Alaska Fed. 556 (9th Cir. Alaska 1930), cert. denied, 282 U.S. 900, 51 S. Ct. 212, 75 L. Ed. 793 (U.S. 1931).

Applied in

Vail v. State, 599 P.2d 1371 (Alaska 1979).

Cited in

Crawford v. State, 408 P.2d 1002 (Alaska 1965).

Collateral references. —

Validity and construction of statute or court rule prescribing number of peremptory challenges in criminal cases according to nature of offense or extent of punishment. 8 ALR4th 149.

Necessity for presence of judge during voir dire examination of prospective jurors in state criminal case. 39 ALR4th 465.

Propriety, under state statute or court rule, of substituting state trial juror with alternate after case has been submitted to jury. 88 ALR4th 711.

Exclusion of public and media from voir dire examination of prospective jurors in state criminal case. 16 ALR5th 152.

Sec. 12.45.015. Introduction of victim and defendant to jury.

  1. During jury selection or as part of an opening statement at trial, the prosecuting attorney may introduce the victim to the jury, and the attorney for the defendant may introduce the defendant to the jury.
  2. In this section, “victim” has the meaning given in AS 12.55.185 .

History. (§ 3 ch 65 SLA 2005)

Editor’s notes. —

Section 7, ch. 65, SLA 2005, provides that the enactment of this section has the effect of amending Rule 27, Alaska Rules of Criminal Procedure, by changing the order of proceedings of a trial before a jury to allow for the introduction to the jury of the defendant and the victim.

Sec. 12.45.018. Juror counseling following graphic evidence or testimony.

  1. The trial judge may offer not more than 10 hours of post-trial psychological counseling, without charge, to a juror or an alternate juror who serves on a trial jury in a trial involving extraordinarily graphic, gruesome, or emotional evidence or testimony.
  2. The counseling offered under (a) of this section applies only to a juror or alternate juror who serves on a trial jury for a trial involving the following offenses:
    1. murder under AS 11.41.100 and 11.41.110 ;
    2. manslaughter under AS 11.41.120 ;
    3. criminally negligent homicide under AS 11.41.130 ;
    4. felonious assault under AS 11.41.200 — 11.41.220 ;
    5. a sexual offense under AS 11.41.410 — 11.41.460 .
  3. The counseling offered under (a) of this section
    1. must occur not later than 180 days after the jury is dismissed;
    2. may be provided by the court system, by a state agency, or by contract; and
    3. may be individual or group counseling.

History. (§ 1 ch 111 SLA 2010)

Effective dates. —

Section 1, ch 111, SLA 2010, which enacted this section, took effect on September 26, 2010.

Article 2. Discovery, Testimony, and Evidence.

Cross references. —

For court rules on evidence, see Alaska Rules of Evidence.

Collateral references. —

What constitutes crime involving “dishonesty or false statement” under Rule 609(a)(2) of the Uniform Rules of Evidence. 83 ALR5th 277.

Sec. 12.45.020. Conviction on testimony of accomplice and corroboration.

A conviction shall not be had on the testimony of an accomplice unless it is corroborated by other evidence that tends to connect the defendant with the commission of the crime; and the corroboration is not sufficient if it merely shows the commission of the crime or the circumstances of the commission.

History. (§ 6.02 ch 34 SLA 1962)

Notes to Decisions

Analysis

I.General Consideration

Oregon statute is identical. —

The Oregon statute on corroboration of the testimony of an accomplice is identical with that of Alaska. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

Applied in

Carman v. State, 602 P.2d 1255 (Alaska 1979); Miller v. State, 629 P.2d 546 (Alaska Ct. App. 1981).

Quoted in

Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980); Price v. State, 647 P.2d 611 (Alaska Ct. App. 1982).

Stated in

Daniels v. State, 388 P.2d 813 (Alaska 1964).

II.Accomplice

An accomplice’s testimony is viewed with distrust, because the accomplice usually believes he has a personal interest in aiding the prosecution. Fresneda v. State, 458 P.2d 134 (Alaska 1969); Lemon v. State, 514 P.2d 1151 (Alaska 1973).

Inherent distrust attaches to accomplice testimony; such testimony may be motivated by blackmail, malice, or an abnormal psychological condition. Johnson v. State, 501 P.2d 762 (Alaska 1972).

“Accomplice”. —

An accomplice is generally defined as one who in some manner, knowingly and with criminal intent, aids, abets, assists or participates in a criminal act. Mahle v. State, 371 P.2d 21 (Alaska 1962); Daniels v. State, 383 P.2d 323 (Alaska 1963), cert. denied, 375 U.S. 979, 84 S. Ct. 502, 11 L. Ed. 2d 424 (U.S. 1964); Taylor v. State, 391 P.2d 950 (Alaska 1964); Beavers v. State, 492 P.2d 88 (Alaska 1971); Evans v. State, 550 P.2d 830 (Alaska 1976).

Neither knowledge that a crime is being committed nor the concealment of that knowledge by itself makes a person an accomplice. Evans v. State, 550 P.2d 830 (Alaska 1976); Bendle v. State, 583 P.2d 840 (Alaska 1978).

Complicity is established only if there is conduct voluntarily undertaken for the purpose of participating or assisting in the completion of a crime. Evans v. State, 550 P.2d 830 (Alaska 1976); Bendle v. State, 583 P.2d 840 (Alaska 1978).

To qualify as an accomplice a person need not commit every element of the offense with which the defendant is charged. However, it is essential that he in some way associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. Evans v. State, 550 P.2d 830 (Alaska 1976).

In order to find a person an accomplice to a crime, it is essential that he in some way associate himself with the criminal venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. Bendle v. State, 583 P.2d 840 (Alaska 1978).

Mere presence at the scene of the crime is not in itself enough to make out complicity. Evans v. State, 550 P.2d 830 (Alaska 1976); Bendle v. State, 583 P.2d 840 (Alaska 1978).

One is not an accomplice unless he can be charged with the same crime for which the defendant is prosecuted. Howard v. State, 496 P.2d 657 (Alaska 1972).

Hence, a purchaser of illegally sold narcotics cannot be an accomplice to the sale. Howard v. State, 496 P.2d 657 (Alaska 1972).

Therefore, his testimony need not be corroborated. Howard v. State, 496 P.2d 657 (Alaska 1972).

Statutory requirement of corroboration is limited by its terms to the testimony of an accomplice. Evans v. State, 550 P.2d 830 (Alaska 1976).

Requirement not extended to all addict informers. —

Where an addict informer is not in the status of accomplice, broad cross-examination and argument is sufficient to suggest to the jury the possibility of prevarication on the informer’s part. The supreme court, therefore, declined to extend the corroboration requirement to all addict informers. Evans v. State, 550 P.2d 830 (Alaska 1976).

Accomplice as a matter of law. —

One who voluntarily participated in the completion of the crime by assisting in forcing open a safe, extracting the contents therefrom, and then disposing of the safe and its contents, made himself an accomplice in a larceny. In such a state of the record, the court should not have left it to the jurors to decide whether he was an accomplice, but should have instructed them that he was an accomplice as a matter of law — certainly with respect to the crime of larceny. Mahle v. State, 371 P.2d 21 (Alaska 1962).

Facts showing witness was accomplice. —

In a prosecution for uttering and publishing forged checks, a witness who brought to Alaska the checks to be forged, as well as the check protector, assisted one of the defendants in typing in the names and amounts on the checks, including those to be uttered, and assisted in running the checks through the check protector, could have been indicted and punished for the offenses of which the defendants were convicted and was an accomplice. Ing v. United States, 278 F.2d 362 (9th Cir. Alaska 1960).

Facts showing witness was not accomplice. —

General statement by witness that he and defendant, “had talked over the fact of burglarizing King Builders” was not enough to show that he conspired in a prearranged plan to commit the particular crimes with which defendant was charged, or that he in any manner aided, abetted, assisted or participated in the criminal acts. Taylor v. State, 391 P.2d 950 (Alaska 1964).

That witness later disposed of the stolen goods, knowing they were stolen, did not make him an accomplice to the original crime. Taylor v. State, 391 P.2d 950 (Alaska 1964).

III.Corroboration

Corroboration required. —

The testimony of accomplices must be corroborated in order to support a conviction. Johnson v. State, 501 P.2d 762 (Alaska 1972).

Historical basis for requirement of corroboration. —

The requirement of corroboration was based historically on the assumption or suspicion that the accomplice might expect to purchase immunity from punishment by falsely accusing and procuring the conviction of others. Implicit here was the assumption that the accomplice was not to be trusted in the story that he told. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

The statutory requirement of corroboration is based on an assumption that an accomplice might falsely accuse others of a crime in order to purchase for himself immunity from punishment. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The statutory requirement of corroboration is based on an assumption that an accomplice might falsely accuse others of a crime in order to purchase for himself immunity from punishment. This assumption is dispelled and the statutory requirement satisfied when the corroborating evidence tends to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999); Anthony v. State, 521 P.2d 486 (Alaska 1974).

Required corroboration of accomplice’s testimony. —

To meet the statutory requirement, the state must show no more than that the corroborating evidence strengthens or confirms the testimony of the accomplice; there is no requirement that every element of an offense testified to by an accomplice be independently corroborated by other evidence. Brown v. State, 693 P.2d 324 (Alaska Ct. App. 1984).

“Corroborate”. —

The word “corroborate” means to strengthen, to make certain, to confirm. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

Evidence corroborates when it induces a rational belief that the narrative of the accomplice is a correct one; when it dispels the assumed notion that he was an inventor of facts and incidents. If it does this, then the element of distrust is removed, and the object of the statute is accomplished. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

The fact that a jar with the defendant’s fingerprint on it was found in one of the buildings where burglary occurred would lend credence to, and thus tend to corroborate, the accomplice’s story. Braham v. State, 376 P.2d 714 (Alaska 1962).

Section does not provide that “other evidence” be considered alone. —

The language of this section does not provide that the other evidence be considered by itself and without the aid of the testimony of the accomplice. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

In determining whether there is evidence sufficient to inspire the fact-finders with confidence in the story of the accomplice, it is impracticable to require that what the accomplice has said be put aside and that the other evidence be examined alone to see if it “tends to connect the defendant with the commission of the crime.” Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961); Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

“Tend”. —

One of the definitions of “tend” is “to serve as a means.” Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961).

Corroborating evidence need not be direct and positive, but may be circumstantial in character. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

It need not establish corpus delicti. —

Corroborating evidence need not establish the actual commission of the offense, the corpus delicti. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

But must tend to connect defendant with commission of crime. —

Corroborating evidence is sufficient if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the witness, who must be corroborated, is telling the truth. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

Corroborative evidence ought to be reviewed in relation to, rather than apart from, the accomplice’s narrative in order that it might be fairly and rationally appraised for whatever worth it may have. If such evidence can be brought into contact with the circumstances related by the accomplice, and if at all points of contact there is consistency and harmony rather than incongruity and discord, then there is good ground for presuming that what the accomplice said is true. Oxenberg v. State, 362 P.2d 893 (Alaska), appeal dismissed and cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (1961); Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999). But see Ing v. United States, 278 F.2d 362 (9th Cir. 1960), holding that corroborative evidence must be considered without the aid of the testimony to be corroborated, and that such corroborating evidence must connect or tend to connect the accused with the commission of the crime with which he is charged.

The corroborating evidence should be considered in conjunction with the accomplice’s testimony, and such evidence must be consistent and harmonious with his testimony. Johnson v. State, 501 P.2d 762 (Alaska 1972).

Knowledge of crime or concealment of that knowledge is insufficient. —

Neither the knowledge that a crime is being committed, nor the concealment of that knowledge, makes a person an accomplice, unless he aided or participated in the offense or conspired to commit it. Daniels v. State, 383 P.2d 323 (Alaska 1963), cert. denied, 375 U.S. 979, 84 S. Ct. 502, 11 L. Ed. 2d 424 (U.S. 1964).

Wife may corroborate testimony of husband. —

The trial court ruled correctly that wife was not an accomplice and that her evidence could be used to corroborate the testimony of the defendants’ accomplice, her husband. Daniels v. State, 383 P.2d 323 (Alaska 1963), cert. denied, 375 U.S. 979, 84 S. Ct. 502, 11 L. Ed. 2d 424 (U.S. 1964).

Function of court. —

It is the court’s function to determine whether the evidence was sufficient to meet the statutory requirement of corroboration. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961); Thomas v. State, 391 P.2d 18 (Alaska 1964), limited, Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

It is for the trial judge to determine whether the corroborative evidence could justify a reasonable belief that the accomplice was speaking the truth and the supreme court shall not set aside his determination unless there has been an abuse of discretion. Braham v. State, 376 P.2d 714 (Alaska 1962).

And jury. —

It is the jury’s function to decide whether the evidence is effective in making the accomplice’s testimony worthy of belief. Oxenberg v. State, 362 P.2d 893 (Alaska), cert. denied, 368 U.S. 56, 82 S. Ct. 189, 7 L. Ed. 2d 128 (U.S. 1961); Thomas v. State, 391 P.2d 18 (Alaska 1964), limited, Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

The weight of the corroborating evidence is for the jury. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

It is the province of the jury to determine the weight and credibility to be given to the evidence of corroboration and to the evidence of the accomplice. Braham v. State, 376 P.2d 714 (Alaska 1962).

And there is question for court only when there is no evidence connecting defendant with crime. —

It is only when there is no evidence tending to connect the defendant with the commission of the crime that a question of law arises upon motion for directed verdict of acquittal. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

Evidence not connecting defendants with crime. —

Where the facts and circumstances relied upon for corroboration did no more than show an opportunity for the defendants to have committed the crimes or connect them with the perpetrators, such evidence did not tend to connect the defendants with the commission of the crimes of which they were convicted. Ing v. United States, 278 F.2d 362 (9th Cir. Alaska 1960).

Sufficiency of corroborating testimony. —

Corroborating testimony is not sufficient if it requires the interpretation and direction of the testimony to be corroborated. Ing v. United States, 278 F.2d 362 (9th Cir. Alaska 1960).

Evidence was sufficient to satisfy the statutory requirement of corroboration. Thomas v. State, 391 P.2d 18 (Alaska 1964), limited, Doisher v. State, 632 P.2d 242 (Alaska Ct. App. 1981).

The statutory requirement of corroboration is satisfied when the corroborating evidence tends to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Dimmick v. State, 473 P.2d 616 (Alaska 1970).

The corroborative evidence fulfills the requirement that it tend to connect the defendant with the commission of the crime where it serves as a means of inducing in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Pulakis v. State, 476 P.2d 474 (Alaska 1970), overruled, State v. Coon, 974 P.2d 386 (Alaska 1999).

Corroborating evidence need only be sufficient to induce in the minds of the jurors a rational belief that the accomplice was speaking the truth when he implicated the defendant in the criminal event. Anthony v. State, 521 P.2d 486 (Alaska 1974).

Corroborating evidence in appellant juvenile's case was sufficient to support a rational belief that appellant's accomplice was speaking the truth when he implicated appellant in a theft. M.H. v. State, 382 P.3d 1201 (Alaska Ct. App. 2016).

Accomplice’s testimony sufficiently corroborated to satisfy this section. —

See Jackson v. State, 695 P.2d 227 (Alaska Ct. App. 1985); Silvernail v. State, 777 P.2d 1169 (Alaska Ct. App. 1989).

In a prosecution for unnatural carnal copulation, there was ample corroboration of alleged accomplice’s testimony. Christy v. United States, 261 F.2d 357, 17 Alaska 107 (9th Cir. Alaska 1958), cert. denied, 360 U.S. 919, 79 S. Ct. 1438, 3 L. Ed. 2d 1535 (U.S. 1959).

In defendant’s assault trial, evidence was sufficient to corroborate accomplice testimony that defendant participated in the assault where a police officer testified that he interviewed defendant and defendant admitted hitting the victim in the chest, where another witness testified that defendant admitted participating in the assault, and where the bottoms of defendant’s shoes matched footprints that the police found at the scene of the assault. Itta v. State, 191 P.3d 1013 (Alaska Ct. App. 2008).

Raising issue of erroneously allowing uncorroborated testimony to go to jury. —

That it was error for the court to allow uncorroborated testimony to go to the jury is an issue properly raised by a motion for judgment of acquittal. Beavers v. State, 492 P.2d 88 (Alaska 1971).

Section inapplicable to grand jury proceedings. —

This section’s evidentiary requirement of corroboration is inapplicable to grand jury proceedings. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

There is no requirement in either Alaska’s Code of Criminal Procedure, or in its Rules of Criminal Procedure, that an accomplice’s testimony be corroborated before an indictment can be properly returned. Merrill v. State, 423 P.2d 686 (Alaska), cert. denied, 386 U.S. 1040, 87 S. Ct. 1497, 18 L. Ed. 2d 607 (U.S. 1967).

Sec. 12.45.030. Necessary evidence for false pretenses. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.45.035. Admissibility of DNA profiles.

  1. In a criminal action or proceeding, evidence of a DNA profile is admissible to prove or disprove any relevant fact, if the court finds that the technique underlying the evidence is scientifically valid. The admission of the DNA profile does not require a finding of general acceptance in the relevant scientific community of DNA profile evidence.
  2. In this section,
    1. “deoxyribonucleic acid” means the molecules in all cellular forms that contain genetic information in a patterned chemical structure for each individual;
    2. “DNA profile”
      1. means an analysis of blood, semen, tissue, or other cells bearing deoxyribonucleic acid resulting in the identification of the individual’s patterned chemical structure of genetic information;
      2. includes statistical population frequency comparisons of the patterned chemical structures described in (A) of this paragraph.

History. (§ 2 ch 7 SLA 1995)

Notes to Decisions

Admission of DNA was harmless error. —

Admission of DNA evidence during defendant’s trial for sexual abuse of a minor was error because it was not accompanied by population frequency statistics; however, the error was harmless because such admission did not appreciably affect the jury’s verdict. Peters v. State, 18 P.3d 1224 (Alaska Ct. App. 2001).

Cited in

Harmon v. State, 908 P.2d 434 (Alaska Ct. App. 1995).

Sec. 12.45.037. Admissibility of expert testimony relating to criminal street gang activity.

  1. In a criminal prosecution, expert testimony is admissible to show, in regard to a specific criminal street gang or criminal street gangs whose conduct is relevant to the case,
    1. common characteristics of persons who are members of the criminal street gang or criminal street gangs;
    2. rivalries between specific criminal street gangs;
    3. common practices and operations of the criminal street gang or criminal street gangs and the members of those gangs;
    4. social customs and behavior of members of the criminal street gang or the criminal street gangs;
    5. terminology used by members of the criminal street gang or the criminal street gangs;
    6. codes of conduct of the particular criminal street gang or criminal street gangs; and
    7. the types of crimes that are likely to be committed by the particular criminal street gang.
  2. In this section, “criminal street gang” has the meaning given in AS 11.81.900(b) .

History. (§ 6 ch 60 SLA 1996)

Sec. 12.45.040. Necessary evidence for prostitution or seduction. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.45.042. Mental examination of victim.

In a criminal prosecution under AS 11.41, the court may not order or compel the victim to undergo a psychiatric or psychological examination unless

  1. the victim’s psychiatric or psychological condition is an element of the offense charged; or
  2. the prosecution has given notice that it will present evidence at trial that the victim suffers from a continuing psychological or psychiatric condition that resulted from the offense charged.

History. (§ 15 ch 63 SLA 1997)

Notes to Decisions

Evaluation denied. —

Superior court did not err in denying defendant's request for an independent psychological evaluation of his daughter because it did not deny the request outright; rather, it indicated that it would order an independent evaluation if the defense attorney could show that the proposed evaluation would have a "beneficial purpose," i.e., that it would provide information that would be useful to the superior court's decision whether to allow the daughter to testify via closed-circuit television. Hughes v. State, — P.3d — (Alaska Ct. App. May 20, 2020).

Sec. 12.45.045. Evidence of past sexual conduct in trials of certain sexual offenses.

  1. In prosecutions for the crimes of sexual assault in any degree, sexual abuse of a minor in any degree, unlawful exploitation of a minor, or an attempt to commit any of these crimes, evidence of the sexual conduct of the complaining witness, occurring either before or after the offense charged, may not be admitted nor may reference be made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit the evidence for any purpose, the defendant shall apply for an order of the court not later than five days before trial or at a later time as the court may, for good cause, permit. The defendant may, for good cause shown, apply for an order during trial if the request is based on information learned after the deadline or during the trial. After the application is made, the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and that the probative value of the evidence offered is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness, the court shall make an order stating what evidence may be introduced and the nature of the questions that may be permitted. The defendant may then offer evidence under the order of the court.
  2. In the absence of a persuasive showing to the contrary, evidence of the complaining witness’ sexual conduct occurring more than one year before the date of the offense charged is presumed to be inadmissible under this section.
  3. In this section “complaining witness” means the alleged victim of the crime charged, the prosecution of which is subject to this section.

History. (§ 1 ch 165 SLA 1975; am § 18 ch 166 SLA 1978; am § 4 ch 39 SLA 1985; am § 16 ch 43 SLA 2013)

Cross references. —

For similar court rule, see Alaska Rule of Evidence 404(a)(2).

For effect of the 2013 amendments to AS 12.45.045(a) on Rule 404(a), Alaska Rules of Evidence, see sec. 45, ch. 43, SLA 2013 in the 2013 Temporary and Special Acts.

For governor’s transmittal letter for ch. 43, SLA 2013 (SB 22), see 2013 Senate Journal 38 — 39.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, in the first sentence of (a), substituted “the sexual conduct of the complaining witness, occurring either before or after the offense charged,” for “the complaining witness’ previous sexual conduct”; in the second sentence of (a), substituted “not later than five days before the trial or at a later time as the court may, for good cause, permit” for “at any time before or during the trial or preliminary hearing”; added the third sentence of (a).

Editor’s notes. —

Under sec. 46(b), ch. 43, SLA 2013, the 2013 changes to (a) of this section apply to offenses committed before, on, or after July 1, 2013.

Notes to Decisions

Constitutionality. —

When properly applied, the rape shield statute will not encroach on the confrontation clause, because there is no right to confront and cross-examine on irrelevant issues. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

Legislative intent. —

The legislative history of this section clearly indicates that the original statute, even before it was amended in 1985, was meant to include victims of sexual abuse as well as victims of rape. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

Good cause exception to deadline. —

In response to defendant’s challenge to this section, the appellate court concluded that the statute does, in fact, contain a general good cause exception to the statutory deadline; and that the exception allows a court to consider a mid-trial application to present evidence of the complaining witness’s sexual history even if the defendant was aware of that information before the statutory deadline. State v. Stidston, 343 P.3d 911 (Alaska Ct. App. 2015).

Screening of evidence. —

Although the rape shield law requires the defendant to seek the court’s permission before introducing any evidence of the victim’s prior sexual activity, this procedural safeguard does not bar all evidence of prior sexual activity between the defendant and the victim, but rather is written broadly to ensure that all evidence is screened before being presented to the jury. Napoka v. State, 996 P.2d 106 (Alaska Ct. App. 2000).

When evidence excluded. —

The primary purpose of the rape shield statute is to prevent the use of evidence of past sexual conduct as proof of the victim’s current willingness to consent. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

The rape shield statute is not intended to exclude evidence of prior sexual conduct when such evidence is directly relevant to establish bias, prejudice, or motive to fabricate. Daniels v. State, 767 P.2d 1163 (Alaska Ct. App. 1989).

Both the rape shield statute’s rule of exclusion and Alaska Rule of Evidence 404(b)(1) bar specified evidence when that evidence is offered for a specific prohibited purpose. Napoka v. State, 996 P.2d 106 (Alaska Ct. App. 2000).

Virginity evidence excluded. —

This rule precludes the use of evidence of a victim’s virginity or lack of sexual experience as circumstantial proof of the victim’s current unwillingness to consent to a particular sexual act, its probative value being relatively inconsequential since it renders consent neither more nor less likely. Heath v. State, 849 P.2d 786 (Alaska Ct. App. 1993).

Balancing test for admissibility. —

The balancing test established by the rape shield statute is substantially similar to the test of Alaska Rule of Evidence 403, which provides for the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Only when the probative value of evidence relating to prior sexual conduct is outweighed by its potential for prejudice can that evidence be excluded. Jager v. State, 748 P.2d 1172 (Alaska Ct. App. 1988).

Defense based on misunderstanding as to victim’s age. —

Defendant was entitled to defend a charge of sexual abuse of a minor in the second degree on the ground that he reasonably believed the thirteen year old victim was sixteen years of age or older, where most of the information he knew about her came from a telephone conversation with her in which he claimed she discussed her prior sexual history and experience in detail. Bibbs v. State, 814 P.2d 738 (Alaska Ct. App. 1991).

In camera hearing before presenting evidence. —

In prosecution for attempted sexual assault in the first degree, defendant’s counsel should have moved for an in camera hearing before presenting any evidence relating to the victim’s prior sexual conduct. Baden v. State, 667 P.2d 1275 (Alaska Ct. App. 1983).

Evidence properly excluded. —

Where the primary purpose for which the evidence was offered was to show that, in the months prior to the alleged assault, the parties had been involved in a relationship that was sexual, rather than merely platonic, the evidence was properly excluded. Wood v. State, 736 P.2d 363 (Alaska Ct. App. 1987).

Defendant, who was convicted of sexually abusing his two daughters, was not allowed to introduce evidence of prior abuse years earlier of one victim by her grandfather. There was no evidence suggesting that the victim confused the abuse by the grandfather with the abuse by her father. Hersh v. State, — P.3d — (Alaska Ct. App. Dec. 21, 2011) (memorandum decision).

Evidence of the victim’s alleged flirtatious conduct with a cab driver which occurred more than a year after the assault with which the defendant was charged was inadmissible. Exclusion of the evidence did not violate defendant’s right of confrontation, and was proper based on the policy underlying this section. The judge concluded the victim’s behavior with the cab driver had little relevance and that admission of the evidence would be unfairly prejudicial. Olsen v. State, — P.3d — (Alaska Ct. App. Feb. 13, 2013) (memorandum decision).

During defendant's trial for second-degree sexual assault, the trial court did not err by excluding defendant's girlfriend's testimony about the victim's alleged sexual overture toward her because the trial court could have reasonably concluded that the evidence said little or nothing about the victim's willingness to engage in consensual activity with defendant several hours later and that it was not particularly relevant to whether the victim was incapacitated when defendant engaged in sex with her several hours after the alleged overture. Ackerman v. State, — P.3d — (Alaska Ct. App. Feb. 20, 2019) (memorandum decision).

Evidence of a sexual assault victim's prior assault was properly excluded because (1) it was not shown that the two assaults were similar, and (2) the victim's characterization of the experience during the charged assault as being in a dreamlike state did not show the victim imagined the assault. Dunn v. State, — P.3d — (Alaska Ct. App. Nov. 20, 2019) (memorandum decision).

Evidence improperly excluded. —

The trial court erred in excluding evidence regarding the victim’s prior sexual activity with the defendant where that evidence did not hinge on any inference concerning the victim’s character but was important because of what it revealed about the relationship between the victim and the defendant and how that might have influenced the defendant’s perception of whether consent to sexual activity had been given. Napoka v. State, 996 P.2d 106 (Alaska Ct. App. 2000).

Where the victim had previously falsely alleged that another man had sexually assaulted her on an earlier occasion and the state interjected the alleged rape into the present case and made its occurrence a central part of the case against defendant, defendant was entitled to litigate the truth or falsity of the victim’s earlier rape report, and because it was an abuse of discretion to exclude the testimony of the man accused on the earlier occasion, reversal was required. Worthy v. State, 999 P.2d 771 (Alaska 2000).

Defendant offered evidence of alleged victim’s prior sexual abuse to explain the victim’s sexualized behavior and why the victim might falsely have accused defendant. Therefore, to the extent that the superior court excluded the evidence under the rape shield law, the court erred. W.L. v. State, — P.3d — (Alaska Ct. App. Apr. 15, 2015) (memorandum decision).

Applied in

Padgett v. State, 590 P.2d 432 (Alaska 1979); Moss v. State, 620 P.2d 674 (Alaska 1980); Kvasnikoff v. State, 674 P.2d 302 (Alaska Ct. App. 1983); Patterson v. State, 689 P.2d 146 (Alaska Ct. App. 1984); Williamson v. State, 692 P.2d 965 (Alaska Ct. App. 1984).

Quoted in

Wood v. Alaska, 957 F.2d 1544 (9th Cir. Alaska 1992).

Cited in

Oswald v. State, 715 P.2d 276 (Alaska Ct. App. 1986).

Collateral references. —

Modern status of admissibility, in statutory rape prosecution, of complainant’s prior sexual acts or general reputation for unchastity. 90 ALR3d 1300.

Modern status of admissibility, in forcible rape prosecution, of complainant’s prior sexual acts. 94 ALR3d 257.

Sec. 12.45.046. Testimony of children in criminal proceedings.

  1. In a criminal proceeding under  AS 11.41 involving the prosecution of an offense committed against a child under the age of 16, or witnessed by a child under the age of 16, the court
    1. may appoint a guardian ad litem for the child;
    2. on its own motion or on the motion of the party presenting the witness or the guardian ad litem of the child, may order that the testimony of the child be taken by closed circuit television or through one-way mirrors if the court determines that the testimony by the child victim or witness under normal court procedures would result in the child’s inability to effectively communicate.
  2. In making a determination under (a)(2) of this section, the court shall consider factors it considers relevant, including
    1. the child’s chronological age;
    2. the child’s level of development;
    3. the child’s general physical health;
    4. any physical, emotional, or psychological injury experienced by the child; and
    5. the mental or emotional strain that will be caused by requiring the child to testify under normal courtroom procedures.
  3. If the court determines under (a)(2) of this section that the testimony by the child victim or witness under normal court procedures would result in the child’s inability to effectively communicate, the court may order that the testimony of the child be taken in a room other than the courtroom and be televised by closed circuit equipment in the courtroom to be viewed by the defendant, the court, and the finder of fact in the proceeding. If the court authorizes use of closed circuit televised testimony under this subsection,
    1. each of the following may be in the room with the child when the child testifies:
      1. the prosecuting attorney;
      2. the attorney for the defendant; and
      3. operators of the closed circuit television equipment;
    2. the court may, in addition to persons specified in (1) of this subsection, admit a person whose presence, in the opinion of the court, contributes to the well-being of the child.
  4. When a child is to testify under (c) of this section, only the court and counsel may question the child. The persons operating the equipment shall do so in as unobtrusive a manner as possible. If the defendant requests, the court shall excuse the defendant from the courtroom, shall permit the defendant to attend in another location, and shall afford the defendant a means of viewing the child’s testimony and of communicating with the defendant’s attorney throughout the proceedings. Upon request of the defendant or the defendant’s attorney, the court shall permit a recess to allow them to confer. The court shall provide a means of communicating with the attorneys during the questioning of the child. Objections made by the attorneys to questions of a child witness may be resolved in the courtroom if the court finds it necessary.
  5. If the court determines under (a)(2) of this section that the testimony by the child victim or witness under normal court procedures would result in the child’s inability to effectively communicate, the court may authorize the use of one-way mirrors in conjunction with the taking of the child’s testimony. The attorneys may pose questions to the child and have visual contact with the child during questioning, but the mirrors shall be placed to provide a physical shield so that the child does not have visual contact with the defendant and jurors.
  6. If the court does not find under (a)(2) of this section that the testimony by the child victim or witness under normal court procedures will result in the child’s inability to effectively communicate, the court may, after taking into consideration the factors specified in (b) of this section, supervise the spatial arrangements of the courtroom and the location, movement, and deportment of all persons in attendance so as to safeguard the child from emotional harm or stress. In addition to other procedures it finds appropriate, the court may
    1. allow the child to testify while sitting on the floor or on an appropriately sized chair;
    2. schedule the procedure in a room that provides adequate privacy, freedom from distractions, informality, and comfort appropriate to the child’s developmental age; and
    3. order a recess when the energy, comfort, or attention span of the child warrants.

History. (§ 2 ch 92 SLA 1988; am § 1 ch 78 SLA 1994)

Cross references. —

For statement of legislative purpose, see sec. 1, ch. 92, SLA 1988 in the Temporary and Special Acts.

See Rule 801(d)(3), Alaska Rules of Evidence, for the admissibility into evidence of a prior recorded statement of a crime victim who is less than 16 years of age as an exception to the rule barring use of hearsay evidence.

See Rule 38.3, Alaska Rules of Criminal Procedure, for related procedure for testimony by video conference.

Notes to Decisions

Confrontation with accuser. —

The constitution forbids denying the accused face-to-face confrontation with an accuser in a criminal trial absent specific evidence and an express finding that the probable effect of the defendant’s presence on the witness would significantly impair the substance of the witness’s testimony. A mere finding of some general, or de minimis effect will not suffice. Likewise, generalized, subjective impressions or assumptions will not substitute for case-specific evidence. Blume v. State, 797 P.2d 664 (Alaska Ct. App. 1990).

Right to confront witnesses. —

A defendant’s constitutional right to confront the witnesses against him was not violated where, in his trial for assault on his wife, his son testified from a smaller chair arranged perpendicular to where the defendant was sitting, and the trial judge’s finding that the child’s position relative to his father was “not really different from where their positions would be if he were in the regular witness chair” was not clearly erroneous. Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992).

The preponderance of the evidence standard cannot provide sufficient protection against violation of a defendant’s right to confrontation, and no dilution of the right of confrontation should be permitted without an express finding that the requirements of this section, including the requirements of Maryland v. Craig, 497 U.S. 836 (1990), that are implicit therein, have been met by clear and convincing evidence. Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994).

Requirements for showing inability to communicate. —

This section requires that a determination of the child’s inability to effectively communicate under paragraph (a)(2) must be based on case-specific evidence establishing that (1) the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant, (2) confrontation would pose a threat of serious emotional harm to the child; and (3) the use of the special procedure authorized under this section is therefore necessary to protect the welfare of the particular child witness who seeks to testify. Reutter v. State, 886 P.2d 1298 (Alaska Ct. App. 1994), incorporating the requirements of Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (U.S. 1990).

Stated in

Vince B. v. Sarah B., 425 P.3d 55 (Alaska 2018).

Cited in

Renkel v. State, 807 P.2d 1087 (Alaska Ct. App. 1991).

Collateral references. —

Closed-circuit television witness examination. 61 ALR4th 1155.

Exclusion of public from state criminal trial by conducting trial or part thereof at other than regular place or time. 70 A.L.R.4th 632.

Secs. 12.45.047, 12.45.048. Testimony by young victim of sexual offense. [Repealed, § 4 ch 92 SLA 1988.]

Sec. 12.45.049. Privilege relating to domestic violence and sexual assault counseling.

Confidential communications between a victim of domestic violence or sexual assault and a victim counselor are privileged under AS 18.66.200 — 18.66.250 .

History. (§ 2 ch 95 SLA 1992)

Revisor’s notes. —

In 1996, “AS 18.66.200 — 18.66.250 ” was substituted for “AS 25.35.100 — 25.35.150” to reflect the 1996 renumbering of AS 25.35.100 — 25.35.150.

Sec. 12.45.050. Limitation on discovery of statement of prosecution witness.

In a criminal prosecution, no statement or report in the possession of the state which was made by a prosecution witness or prospective prosecution witness (other than the defendant) to an agent of the state may be the subject of subpoena, discovery, or inspection until the witness has testified on direct examination at the preliminary hearing, or in the trial of the case.

History. (§ 6.05 ch 34 SLA 1962; am § 1 ch 22 SLA 1965)

Notes to Decisions

Quoted in

Miller v. State, 462 P.2d 421 (Alaska 1969).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Sec. 12.45.060. Discovery after direct examination of witness.

After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state that relates to the subject matter as to which the witness has testified. If the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for examination and use.

History. (§ 6.06 ch 34 SLA 1962)

Notes to Decisions

Based on Jencks Act. —

This statute was modeled after the federal Jencks Act, 18 U.S.C. § 3500. Therefore, when faced with questions requiring the interpretation of the statute the court has turned to federal case law for instruction. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Criminal R. 16 and Jencks Act not inconsistent. —

Alaska Rule of Criminal Procedure 16 governs pretrial discovery while the Jencks Act, 18 U.S.C. § 3500, governs discovery during trial. Although the same evidence may be discoverable under both the rule and the statute, they are not so overlapping as to be inconsistent. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Duty of state to preserve evidence. —

It is the state’s duty to preserve any evidence which is discoverable by the defendant. This duty attaches once any arm of the state has first gathered and taken possession of the evidence in question. Putnam v. State, 629 P.2d 35 (Alaska 1980).

The state’s duty to preserve evidence that is discoverable by the defendant attaches once any arm of the state has first gathered and taken possession of the evidence in question. In this case involving killing a moose same day airborne, the state never had possession or control of any items that might have been found at the remote kill site, so the duty to preserve evidence was never activated. March v. State, 859 P.2d 714 (Alaska Ct. App. 1993).

Discovery of confidential materials. —

The proper procedure to be followed when a party requests discovery of confidential materials is for the court to conduct an in camera inspection of those materials and then determine which, if any, are discoverable. As long as the party seeking discovery has a good faith basis for asserting that the materials in question may lead to the disclosure of favorable evidence, the trial court should conduct an in camera review before ruling on a request for discovery. March v. State, 859 P.2d 714 (Alaska Ct. App. 1993).

When sanctions appropriate. —

Where it appears that the evidence was lost or destroyed in good faith, the imposition of sanctions will depend upon the degree to which the defendant has been prejudiced. Putnam v. State, 629 P.2d 35 (Alaska 1980); Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Where the evidence in question was destroyed in bad faith or as part of a deliberate attempt to avoid production, sanctions will normally follow. Putnam v. State, 629 P.2d 35 (Alaska 1980); Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

When sanctions inappropriate. —

Assuming, without deciding, that the state has a duty to preserve police dispatch tapes, the state court of appeals found that the state had met its burden of establishing that the destruction of the tape was done in good faith and had demonstrated that the defendant was not prejudiced by the tape’s destruction where. Even if the tape had been preserved, it would have been cumulative of other evidence and not particularly favorable to the defendant. Abdulbaqui v. State, 728 P.2d 1211 (Alaska Ct. App. 1986).

Discretion of trial court. —

What sanction is appropriate in a given case is best left to the sound discretion of the trial court. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Good faith alone does not excuse breach. —

That evidence was deliberately not preserved in good faith as a result of ignorance or as part of a department policy, established practice, or anything of this nature will not automatically excuse the state’s breach of its duty. The mere fact of good faith does not make the state’s breach any less a violation of Alaska Rule of Criminal Procedure 16 or the Jencks Act, 18 U.S.C. § 3500. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Burden of proof. —

The heavy burdens of establishing that the failure to preserve the evidence occurred in good faith and not out of a desire to suppress evidence and of demonstrating that the defendant has suffered no resulting prejudice rest squarely on the shoulders of the state. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Strict application of harmless error doctrine. —

The difficulties involved in speculating whether or not the lost or destroyed materials could have been utilized effectively at trial mandate that the harmless error doctrine be strictly applied. Putnam v. State, 629 P.2d 35 (Alaska 1980).

Cryptic summaries of statements made by interviewed witnesses are not producible. —

While there is generally no “work product” exception to production under the Jencks Act, 18 U.S.C. § 3500, “mere jottings” or cryptic summaries of statements made by interviewed witnesses are not producible. Wright v. State, 501 P.2d 1360 (Alaska 1972).

As cryptic summaries of statements made by an interviewed witness, notes made by a district attorney do not qualify as producible statements under the Jencks Act, 18 U.S.C. § 3500. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Where notes taken by the district attorney were part of the record before the supreme court and consisted of seven pages of legal sized note paper filled with comments, questions, and one diagram which according to testimony were taken during a one hour interview between a witness and the district attorney, such notes did not qualify as a statement under the Jencks Act, 18 U.S.C. § 3500, since they were neither a substantially verbatim statement of what the witness said nor were they ever approved by the witness. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Destruction of notes prior to trial viewed as device to avoid production. —

The destruction of notes prior to trial has been viewed as a device used by some law enforcement officials to avoid production under the Jencks Act, 18 U.S.C. § 3500. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Unless destruction was in good faith. —

If notes were destroyed in good faith, without the intent to avoid production, it is the general rule that their destruction is not a ground for reversal. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Where notes taken by a police captain appear to have been destroyed in good faith by police personnel during the absence of the captain from the state, where they were in cryptic form, it is quite possible that they did not seem to be important documents and were destroyed during a periodic clean-up of the captain’s office; therefore their destruction cannot be viewed as prejudicial. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Quoted in

Miller v. State, 462 P.2d 421 (Alaska 1969).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Sec. 12.45.070. Discovery of portions of statement.

If the state claims that any statement ordered to be produced under AS 12.45.060 contains matter that does not relate to the subject matter of the testimony of the witness, the court shall order the state to deliver the statement for the inspection of the court in chambers. Upon delivery the court shall excise the portions of the statement that do not relate to the subject matter of the testimony of the witness. With the material excised, the court shall then direct delivery of the statement to the defendant for the use of the defendant. If, pursuant to this procedure, any portion of the statement is withheld from the defendant and the defendant objects to the withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of the statement shall be preserved by the state and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. When a statement is delivered to a defendant, the court may recess the trial for the defendant’s examination of the statement and preparation for its use in the trial.

History. (§ 6.07 ch 34 SLA 1962)

Notes to Decisions

Duty of state to preserve evidence. —

See case annotations following AS 12.45.060 .

Applied in

Putnam v. State, 629 P.2d 35 (Alaska 1980).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Collateral references. —

23 C.J.S., Criminal Law, § 1220 et seq.

26B C.J.S., Depositions, § 1 et seq.

Exclusion of evidence in state criminal action for failure of prosecution to comply with discovery requirements as to physical or documentary evidence or the like—modern cases. 27 ALR4th 105.

Sec. 12.45.080. Disposition of proceeding upon failure of state to comply with order.

If the state elects not to comply with an order of the court to deliver to the defendant a statement or a portion of a statement as the court may direct, the court shall strike from the record the testimony of the witness, and the preliminary hearing or trial shall proceed unless the court in its discretion determines that the interests of justice require that the preliminary hearing be terminated immediately or a mistrial be declared.

History. (§ 6.08 ch 34 SLA 1962; am § 2 ch 22 SLA 1965)

Notes to Decisions

Failure to comply with production order results in striking testimony or in mistrial. —

Failure of the state to comply with a production order results either in striking the testimony of the witness or in a mistrial. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Destruction of notes prior to trial viewed as device to avoid production. —

The destruction of notes prior to trial has been viewed as a device used by some law enforcement officials to avoid production under the Jencks Act, 18 U.S.C. § 3500. Wright v. State, 501 P.2d 1360 (Alaska 1972).

Duty of state to preserve evidence. —

See note to AS 12.45.060 , Notes to Decisions.

Applied in

Putnam v. State, 629 P.2d 35 (Alaska 1980).

Quoted in

Miller v. State, 462 P.2d 421 (Alaska 1969).

Cited in

Martinez v. State, 423 P.2d 700 (Alaska 1967).

Sec. 12.45.082. Definition of “statement”.

In AS 12.45.060 — 12.45.080 , the term “statement,” in relation to any witness called by the state, means

  1. a written statement made by the witness and signed or otherwise adopted or approved by the witness; or
  2. a stenographic, mechanical, electrical, or other recording, or a transcription of the statement that is a substantially verbatim recital of an oral statement made by the witness to an agent of the state and recorded contemporaneously with the making of the oral statement.

History. (§ 6.09 ch 34 SLA 1962)

Revisor’s notes. —

Formerly AS 12.45.160 . Renumbered in 1984.

Notes to Decisions

Applied in

Wright v. State, 501 P.2d 1360 (Alaska 1972).

Sec. 12.45.083. Mental disease or defect excluding responsibility. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.47.]

For present provisions, see AS 12.47.

For present provisions, see AS 12.47.

Sec. 12.45.084. Laboratory report of controlled substances.

  1. In a prosecution under AS 11.71.010 — 11.71.060 , a complete copy of an official laboratory report from the Department of Public Safety or a laboratory operated by another law enforcement agency is prima facie evidence of the content, identity, and weight of a controlled substance.  The report must be signed by the person performing the analysis and must state that the substance which is the basis of the alleged offense has been weighed and analyzed.  In the report, the author shall state with specificity findings as to the content, weight, and identity of the substance.
  2. A sworn statement prepared by the author of the report provided for in (a) of this section must be attached to the report.  The statement must set out the identity of the author and include a statement that the author is an employee of the laboratory issuing the report and that performing the analysis is a part of the author’s regular duties.  The statement must also include an outline of the author’s education, training, and experience for performing an analysis. The author shall state that scientifically accepted tests were performed with due caution, and whether to the author’s knowledge the evidence was handled in accordance with established and accepted procedures while in the custody of the laboratory.
  3. The prosecuting attorney shall serve a copy of the report on the attorney of record for the accused, or on the defendant if the defendant has no attorney, not later than 20 days before a proceeding in which the report is to be used against the accused.  However, at a preliminary hearing or grand jury proceeding, the report may be used without having previously been served upon the accused.
  4. The accused or the accused’s attorney may demand the testimony of the person signing the report, by serving a written demand showing cause upon the prosecuting attorney within seven days from receipt of the report.
  5. A report issued for use under this section must contain notice of the right of the accused to demand the testimony of the person signing the report.

History. (§ 16 ch 45 SLA 1982)

Revisor’s notes. —

Formerly AS 12.45.155 . Renumbered in 1995.

In 2008, “11.71.060” was substituted for “11.71.070” in subsection (a) to reflect the 1991 repeal of AS 11.71.070 .

Sec. 12.45.085. Evidence of mental disease or defect. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.47.]

For present provisions, see AS 12.47.

For present provisions, see AS 12.47.

Sec. 12.45.086. Photographic evidence of property wrongfully taken or damaged.

  1. In a criminal proceeding or a children’s court proceeding involving the wrongful taking or damaging of property, photographs of the property are competent evidence of the property and are admissible in the proceeding to the same extent as if the property had been introduced as evidence.
  2. Photographs of property that are to be introduced as evidence under this section shall be accompanied by a written description of the property, the name of the owner of the property, the location where the alleged crime occurred, the name of the investigating peace officer, the date the photograph was taken, and the name and signature of the photographer.  The written description shall be signed by the investigating peace officer under penalty of perjury under AS 09.63.020 .
  3. In a prosecution for a violation of AS 11.46.120 — 11.46.150 in which the property is commercial fishing gear as defined in AS 16.43.990 , the gear shall be returned to the owner as soon as possible.  The prosecutor may obtain photographs of the gear for use as evidence in accordance with (a) and (b) of this section.

History. (§ 40 ch 143 SLA 1982; am § 2 ch 73 SLA 1986)

Revisor’s notes. —

Formerly AS 12.80.050 . Renumbered in 1995. To the extent that the provisions of this section conflict with the Alaska Rules of Evidence, the rules control, as § 44, ch. 143, SLA 1982 did not receive the required 2/3 vote in the legislature.

Notes to Decisions

Applied in

Hatfield v. State, 663 P.2d 987 (Alaska Ct. App. 1983).

Quoted in

Page v. State, 725 P.2d 1082 (Alaska 1986).

Secs. 12.45.087 — 12.45.115. Psychiatric examination; procedure. [Repealed, § 42 ch 143 SLA 1982. For present provisions, see AS 12.47.]

For present provisions, see AS 12.47.

For present provisions, see AS 12.47.

Article 3. Compromise and Satisfaction.

Sec. 12.45.120. Authority to compromise misdemeanors for which victim has civil action.

If a defendant is held to answer on a charge of misdemeanor for which the person injured by the act constituting the crime has a remedy by a civil action, the crime may be compromised except when it was committed

  1. by or upon a peace officer, judge, or magistrate while in the execution of the duties of that office;
  2. riotously;
  3. with an intent to commit a felony;
  4. larcenously;
  5. against
    1. a spouse or a former spouse of the defendant;
    2. a parent, grandparent, child, or grandchild of the defendant;
    3. a member of the social unit comprised of those living together in the same dwelling as the defendant; or
    4. a person who is not a spouse or former spouse of the defendant but who previously lived in a spousal relationship with the defendant.

History. (§ 6.13 ch 34 SLA 1962; am § 15 ch 8 SLA 1971; am § 1 ch 4 SLA 1988)

Notes to Decisions

No authority to dismiss indictment. —

Because the trial court did not conduct a hearing or approve the civil compromise until after the State indicted defendant, and because Alaska law did not authorize the compromise of a felony crime, the court had no authority to dismiss the charges against defendant under the civil compromise statutes after defendant was indicted; thus, the trial court erred in dismissing the indictment. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Approval by court required. —

Civil compromise is not effective unless and until it is approved by the court. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Accused has no right to dismissal. —

Under the Alaska civil compromise statute, the decision whether to dismiss or prosecute is vested in the sound discretion of the trial court; and no right to dismissal is conferred upon the accused. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No prosecutorial consent to dismissal necessary. —

There is no suggestion in the civil compromise statutes that the court’s power to dismiss is conditioned upon the agreement of the prosecutor; in fact, the contrary appears to be the case. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No automatic stay of proceedings. —

Filing of the notice of civil compromise did not automatically stay the proceedings, such that the State was barred from securing an indictment until after the trial court conducted the civil compromise hearing because the civil compromise statutes provided that the prosecution could not be stayed except as authorized by law; and there was nothing in the civil compromise statutes to suggest that a stay as a matter of law once a notice was filed. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Leaving the scene of accident. —

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).

No double jeopardy violation. —

Trial court's finding that prosecution of the indictment violated double jeopardy was incorrect as the State's decision to indict him was not the result of prosecutorial vindictiveness or an attempt to secure two opportunities to prosecute him; and the State did not convene the grand jury and secure an indictment in response to defendant's notice of civil compromise. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Legislative concern over domestic violence. —

By enacting the aggravating factor in AS 12.55.155(c)(18)(A) , the legislature has declared that felony assaults against spouses and former spouses are to be considered atypically serious, all else being equal. That provision, along with paragraph (5) of this section, embodies concern over the alarming frequency and devastating consequences of domestic violence. Pickard v. State, 965 P.2d 755 (Alaska Ct. App. 1998).

Applicability of (5)(D). —

The bar against civil compromise set forth in subparagraph (5)(D) is not limited to crimes classified as “offenses against the person,” but applies to all crimes committed against the victims enumerated therein, including property crimes. Municipality of Anchorage v. Sanders, 902 P.2d 347 (Alaska Ct. App. 1995).

Applied in

State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

Sec. 12.45.130. Acknowledgment of satisfaction by injured party.

If the party injured appears before the court in which the defendant is bound to appear, at any time before trial, and acknowledges in writing that satisfaction has been received for the injury, the court may, on payment of the costs incurred, order the prosecution dismissed and the defendant discharged. The order is a bar to another prosecution for the same crime.

History. (§ 6.14 ch 34 SLA 1962)

Notes to Decisions

No automatic stay of proceedings. —

Filing of the notice of civil compromise did not automatically stay the proceedings, such that the State was barred from securing an indictment until after the trial court conducted the civil compromise hearing because the civil compromise statutes provided that the prosecution could not be stayed except as authorized by law; and there was nothing in the civil compromise statutes to suggest that a stay as a matter of law once a notice was filed. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Accused has no right to dismissal. —

Under the Alaska civil compromise statute, the decision whether to dismiss or prosecute is vested in the sound discretion of the trial court; and no right to dismissal is conferred upon the accused. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No authority to dismiss indictment. —

Because the trial court did not conduct a hearing or approve the civil compromise until after the State indicted defendant, and because Alaska law did not authorize the compromise of a felony crime, the court had no authority to dismiss the charges against defendant under the civil compromise statutes after defendant was indicted; thus, the trial court erred in dismissing the indictment. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Approval by court required. —

Civil compromise is not effective unless and until it is approved by the court. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

No prosecutorial consent to dismissal necessary. —

There is no suggestion in the civil compromise statutes that the court’s power to dismiss is conditioned upon the agreement of the prosecutor; in fact, the contrary appears to be the case. State v. Nelles, 713 P.2d 806 (Alaska Ct. App. 1986).

No double jeopardy violation. —

Trial court's finding that prosecution of the indictment violated double jeopardy was incorrect as the State's decision to indict him was not the result of prosecutorial vindictiveness or an attempt to secure two opportunities to prosecute him; and the State did not convene the grand jury and secure an indictment in response to defendant's notice of civil compromise. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Leaving scene of accident. —

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).

Sec. 12.45.140. Compromise or stay upon compromise by other means prohibited.

A crime may not be compromised or the prosecution or punishment upon a compromise dismissed or stayed except as provided by law.

History. (§ 6.15 ch 34 SLA 1962)

Notes to Decisions

Leaving scene of accident. —

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).

No authority to dismiss indictment. —

Because the trial court did not conduct a hearing or approve the civil compromise until after the State indicted defendant, and because Alaska law did not authorize the compromise of a felony crime, the court had no authority to dismiss the charges against defendant under the civil compromise statutes after defendant was indicted; thus, the trial court erred in dismissing the indictment. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Approval by court required. —

Civil compromise is not effective unless and until it is approved by the court. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

No automatic stay of proceedings. —

Filing of the notice of civil compromise did not automatically stay the proceedings, such that the State was barred from securing an indictment until after the trial court conducted the civil compromise hearing because this statute provided that the prosecution could not be stayed except as authorized by law; and there was nothing in the civil compromise statutes to suggest that a stay entered as a matter of law once a notice was filed. State v. Azzarella, 483 P.3d 904 (Alaska Ct. App. 2021).

Sec. 12.45.150. Order for private prosecutor to pay costs for malicious prosecution without probable cause. [Repealed, § 1 ch 19 SLA 1987.]

Sec. 12.45.155. [Renumbered as AS 12.45.084.]

Renumbered as AS 12.45.084 .

Renumbered as AS 12.45.084 .

Sec. 12.45.160. [Renumbered as AS 12.45.082.]

Renumbered as AS 12.45.082 .

Renumbered as AS 12.45.082 .

Chapter 47. Insanity and Competency to Stand Trial.

Notes to Decisions

Consideration of mental state and mental illness. —

A trial court, in imposing a presumptive sentence, may consider the interplay between the defendant’s mental state and any mental illness he may have in determining whether the defendant has proved by clear and convincing evidence the requirements of paragraph (d)(3). Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985), declining to overrule Bell v. State, 658 P.2d 787 (Alaska Ct. App. 1983).

Sec. 12.47.010. Insanity as affirmative defense.

  1. In a prosecution for a crime, it is an affirmative defense that when the defendant engaged in the criminal conduct, the defendant was unable, as a result of a mental disease or defect, to appreciate the nature and quality of that conduct.
  2. The affirmative defense defined in (a) of this section may not be raised at trial unless the defendant, within 10 days of entering a plea or such later time as the court may for good cause permit, files a written notice of intent to rely on the defense.
  3. Evidence of a mental disease or defect that is manifested only by repeated criminal or other antisocial conduct is not sufficient to establish the affirmative defense under (a) of this section.
  4. The affirmative defense specified in (a) of this section is the affirmative defense of insanity.  A defendant who successfully raises the affirmative defense of insanity shall be found not guilty by reason of insanity and the verdict shall so state.

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Definition of “affirmative defense,” “mental disease or defect” — AS 12.47.130

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Psychiatric examination — AS 12.47.070

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — AS 12.45.083 .

Notes to Decisions

Constitutionality. —

The court of appeals rejected defendant’s argument that this section was adopted in a bill that was not passed by both houses of legislature for the same reasons. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

Examination erroneously ordered. —

It was error to make defendant waive rights to remain silent and present a defense and submit to psychiatric exams to assert an involuntariness defense because (1) the court did not clearly understand the proposed defense's factual contours without letting defendant make a full offer of proof describing supporting evidence, (2) the facts were not necessarily inconsistent with involuntariness, and (3) the defense was distinct from insanity or diminished capacity. Palmer v. State, 379 P.3d 981 (Alaska Ct. App. 2016).

Construction of subsection (a). —

If the legislature had intended subsection (a) to encompass a defendant’s capacity to appreciate the wrongfulness of his or her conduct, it would have had little reason to enact that language in the AS 12.47.030(a) definition of “guilty but mentally ill.” State v. Patterson, 740 P.2d 944 (Alaska 1987).

Under the rule derived from M’Naghten’s Case , 8 Eng. Rep. 718 (H.L. 1843), a defendant could be found not guilty by reason of insanity: (1) if she did not appreciate the quality and nature of her conduct, or (2) if she did not understand the wrongfulness of her conduct. The statutory definition of the insanity defense in subsection (a) encompasses only the first prong of the traditional M’Naghten insanity defense. State v. Patterson, 740 P.2d 944 (Alaska 1987).

Defendant properly found guilty but mentally ill. —

Defendant who murdered her three sons was properly found to be guilty but mentally ill, rather than not guilty by reason of insanity, despite findings that she killed her children to save them from “Evil” because of her mental illness and that she believed she was doing the right thing. The requisite intent was established because defendant engaged in a deliberate, conscious, and detailed plan to kill her children. Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Distinguished from rebuttal evidence. —

This section and AS 12.47.030 are consistent with traditional statutes purporting to describe insanity defenses in that they both involve something distinct from, and in addition to, a claim that by virtue of mental illness a person either acted unconsciously or involuntarily or was unable to formulate the necessary mens rea to be guilty of an offense. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985) (discussing in depth the history of the insanity defense in Alaska).

Defendant could be examined by an independent psychiatrist under AS 12.47.070 , even though defendant never gave formal notice of a defense under either this section or AS 12.47.020 . Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Former law construed. —

See Smith v. State, 614 P.2d 300 (Alaska 1980); Walunga v. State, 630 P.2d 527 (Alaska 1980); Nielsen v. State, 623 P.2d 304 (Alaska 1981); Evans v. State, 645 P.2d 155 (Alaska 1982) (these cases were decided under former AS 12.45.083 ).

Cited in

Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008); Lane v. Ballot, 330 P.3d 338 (Alaska 2014); Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021); Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021).

Sec. 12.47.020. Mental disease or defect negating culpable mental state.

  1. Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a culpable mental state which is an element of the crime.  However, evidence of mental disease or defect that tends to negate a culpable mental state is not admissible unless the defendant, within 10 days of entering a plea, or at such later time as the court may for good cause permit, files a written notice of intent to rely on that defense.
  2. When the trier of fact finds that all other elements of the crime have been proved but, as a result of mental disease or defect, there is a reasonable doubt as to the existence of a culpable mental state that is an element of the crime, it shall enter a verdict of not guilty by reason of insanity.  A defendant acquitted under this subsection, and not found guilty of a lesser included offense, shall automatically be considered to have established the affirmative defense of insanity under AS 12.47.010 . The defendant is then subject to the provisions of AS 12.47.090 .
  3. If a verdict of not guilty by reason of insanity is reached under (b) of this section, the trier of fact shall also consider whether the defendant is guilty of any lesser included offense.  If the defendant is convicted of a lesser included offense, the defendant shall be sentenced for that offense and shall automatically be considered guilty but mentally ill under AS 12.47.030 and 12.47.050 . Upon completion of a sentence for a lesser included offense, a hearing shall be held under AS 12.47.090(c) to determine the necessity of further commitment of the defendant, based on the acquittal for the greater charge under (b) of this section.  If the defendant is committed under AS 12.47.090(c) , the defendant is subject to the provisions of AS 12.47.090(d) — (i) and (k).

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Definition of “culpable mental state,” “mental disease or defect” — AS 12.47.130

Guilty but mentally ill — AS 12.47.030

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — AS 12.45.085 .

Revisor’s notes. —

In 1995, in subsection (c), “AS 12.47.090(d) — (i) and (k)” was substituted for “AS 12.47.090(d) — (j)” to reflect the 1995 relettering of AS 12.47.090(j) and (k).

Notes to Decisions

Defendant could be examined by an independent psychiatrist under AS 12.47.070 , even though defendant never gave formal notice of a defense under either AS 12.47.010 or this section. Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Examination erroneously ordered.—

It was error to make defendant waive rights to remain silent and present a defense and submit to psychiatric exams to assert an involuntariness defense because (1) the court did not clearly understand the proposed defense's factual contours without letting defendant make a full offer of proof describing supporting evidence, (2) the facts were not necessarily inconsistent with involuntariness, and (3) the defense was distinct from insanity or diminished capacity. Palmer v. State, 379 P.3d 981 (Alaska Ct. App. 2016).

Sufficient mental disease or defect for not guilty verdict. —

The mental disease or defect need only be a substantial factor in causing the lack of the requisite mens rea in order to substitute a not guilty by reason of insanity verdict for a not guilty verdict. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Ability to form requisite intent. —

Defendant who murdered her three sons was properly found to be guilty but mentally ill, rather than not guilty by reason of insanity, despite findings that she killed her children to save them from “Evil” because of her mental illness and that she believed she was doing the right thing. The requisite intent was established because defendant engaged in a deliberate, conscious, and detailed plan to kill her children. Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Jury instruction. —

Instruction requiring the jury to find a mental disease or defect as a matter of fact before considering its relevance to a finding of mens rea did not substantially prejudice defendant and was not a plain error. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Defendant’s argument that the jury should not have been given the option of returning a verdict of guilty but mentally ill was rejected because AS 12.47.040(a) requires presentation of that option; evidence of defendant’s mental diseases or defects was relevant and admissible to rebut his claim that his erratic behavior was due entirely to his ingestion of the drug, and tended to prove the state’s allegations of third-degree assault. Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Ineffective assistance of counsel not shown.—

Documents suggested that petitioner might have been suffering from some mental health issues, possibly drug-related, at the time of the shooting, but they did not alone show that his attorney was incompetent for concluding that petitioner did not have a meritorious mental disease or defect defense that could have been raised at trial. Coday v. State, — P.3d — (Alaska Ct. App. Jan. 11, 2017) (memorandum decision).

Petitioner had not shown that he was incompetent to assist in his own defense, and given the attorney's reliance on an expert opinion that there was no viable mental disease or defect defense, petitioner had not established a prima facie case that his attorney was incompetent for considering petitioner’s own strongly stated wishes as part of the attorney's determination of what defenses to raise at trial. Coday v. State, — P.3d — (Alaska Ct. App. Jan. 11, 2017) (memorandum decision).

Appellate review of order permitting psychiatric testimony. —

The defendant’s abandonment of his diminished capacity defense, as a result of the trial court’s denial of his motion for a protective order to exclude expert testimony of a psychiatrist testifying against him, barred the defendant from raising on appeal the issue of whether or not the psychiatrist’s testimony should have been barred at the trial level. Meaningful appellate review is impeded in such situations by the uncertainty attendant to determining whether any error might ultimately have proven harmless. Sam v. State, 842 P.2d 596 (Alaska Ct. App. 1992).

Quoted in

Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985); State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Cited in

State v. Patterson, 740 P.2d 944 (Alaska 1987); State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Collateral references. —

21 Am. Jur. 2d, Criminal Law, §§ 86-109.

22 C.J.S., Criminal Law, § 128 et seq.

Modern status of rules as to burden and sufficiency of proof of mental irresponsibility in criminal case. 17 ALR3d 146.

Mental or emotional condition as diminishing responsibility for crime. 22 A.L.R.3d 1228.

XYY syndrome as affecting criminal responsibility. 42 ALR3d 1414.

Amnesia as affecting capacity to commit crime or stand trial. 46 A.L.R.3d 544.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological or hospital reports. 55 ALR3d 551.

Modern status of test of criminal responsibility — state cases. 9 ALR4th 526.

Adequacy of defense counsel’s representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness. 79 ALR5th 419.

Sec. 12.47.030. Guilty but mentally ill.

  1. A defendant is guilty but mentally ill if, when the defendant engaged in the criminal conduct, the defendant lacked, as a result of a mental disease or defect, the substantial capacity either to appreciate the wrongfulness of that conduct or to conform that conduct to the requirements of law.  A defendant found guilty but mentally ill is not relieved of criminal responsibility for criminal conduct and is subject to the provisions of AS 12.47.050 .
  2. Evidence of a mental disease or defect that is manifested only by repeated criminal or antisocial conduct is not sufficient to establish that the defendant was guilty but mentally ill under (a) of this section.

History. (§ 22 ch 143 SLA 1982; am § 43 ch 6 SLA 1984)

Cross references. —

Definition of “mental disease or defect” — AS 12.47.130

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Original Code Provision — None.

Notes to Decisions

State may constitutionally eliminate separate insanity defense based on “irresistible impulse” or inability to conform one’s conduct to the requirements of the law. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985) (discussing in depth the history of the insanity defense in Alaska).

Error to equate involuntary intoxication defense with guilty but mentally ill verdict. —

Trial court erred in equating defendant's proposed involuntary intoxication defense with a guilty but mentally ill verdict because the mild transient delirium diagnosed by defendant's expert did not meet the statutory definition of mental disease or defect. Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Rebuttal evidence distinguished. —

Whatever insanity defense exists, it is different from and in addition to the use of psychiatric rebuttal evidence to show diminished capacity to negate the prosecution’s proof that the defendant had the necessary mens rea to commit a particular offense, at least an offense requiring specific intent. Hart v. State, 702 P.2d 651 (Alaska Ct. App. 1985).

Collateral estoppel. —

“Guilty but mentally ill” conviction was subject to the collateral estoppel doctrine, as the jury’s verdict established beyond a reasonable doubt that defendant knowingly engaged in sexual penetration with victim without her consent and recklessly caused serious physical injury, satisfying the elements of several tort causes of action, including assault and battery and civil rape. Lane v. Ballot, 330 P.3d 338 (Alaska 2014).

Burden of proof. —

Under AS 12.47.030(a) , proof that a defendant suffered from mental illness at the time of the offense is not enough to support a verdict of “guilty but mentally ill”. Rather, the government must prove that the defendant suffered from a mental illness and that, because of this mental illness, the defendant lacked the substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Requisite intent. —

Defendant who murdered her three sons was properly found to be guilty but mentally ill, rather than not guilty by reason of insanity, despite findings that she killed her children to save them from “Evil” because of her mental illness and that she believed she was doing the right thing. The requisite intent was established because defendant engaged in a deliberate, conscious, and detailed plan to kill her children. Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Conviction reversed. —

Where a jury instruction directed the jury to consider and decide the issue of insanity after a threshold determination of actus reus only, before any consideration of culpable mental state, the instruction diluted the state’s burden of proving culpable mental state. This error in instruction required reversal of a jury finding of guilty but mentally ill and a remand for a new trial. Patterson v. State, 708 P.2d 712 (Alaska Ct. App. 1985), rev'd, 740 P.2d 944 (Alaska 1987).

Trial court erred in equating involuntary intoxication defense with guilty but mentally ill verdict. —

Trial court erred in equating defendant's proposed involuntary intoxication defense with a guilty but mentally ill verdict because the mild transient delirium diagnosed by defendant's expert did not meet the statutory definition of mental disease or defect. Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Jury properly instructed on guilty but mentally ill verdict. See Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Applied in

Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Quoted in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987).

Stated in

Lane v. State, — P.3d — (Alaska Ct. App. Jan. 28, 2015).

Cited in

Beaudoin v. State, 57 P.3d 703 (Alaska Ct. App. 2002); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008); Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021).

Collateral references. —

“Guilty but mentally ill” statutes: validity and construction. 71 ALR4th 702.

Sec. 12.47.040. Form of verdict in certain cases involving insanity or mental disease or defect.

  1. In a prosecution for a crime when the affirmative defense of insanity is raised under AS 12.47.010 , or when evidence of a mental disease or defect of the defendant is otherwise admissible at trial under AS 12.47.020 , the trier of fact shall find, and the verdict shall state, whether the defendant is
    1. guilty;
    2. not guilty;
    3. not guilty by reason of insanity; or
    4. guilty but mentally ill.
  2. To return a verdict under (a)(4) of this section, the fact finder must find beyond a reasonable doubt that the defendant committed the crime and that, when the defendant committed the crime, the defendant was guilty but mentally ill as defined in AS 12.47.030 .
  3. When the jury is instructed as to the verdicts under (a) of this section, it shall also be instructed on the dispositions available under AS 12.47.050 and 12.47.090 .

History. (§ 22 ch 143 SLA 1982; am § 5 ch 70 SLA 2012)

Cross references. —

Insanity excluding responsibility — AS 12.47.010

Mental disease or defect negating culpable mental state — AS 12.47.020

Guilty but mentally ill — AS 12.47.030

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — None.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, in (b), substituted “fact finder” for “jury” and deleted “find by a preponderance of the evidence” following “committed the crime and”.

Editor’s notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendment to subsection (b) applies “to proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012.”

Notes to Decisions

Jury instructions. —

Defendant’s argument that the jury should not have been given the option of returning a verdict of guilty but mentally ill was rejected because trial court was obligated to do so under subsection (a) of this section; evidence of defendant’s mental diseases or defects was relevant and admissible to rebut his claim that his erratic behavior was due entirely to his ingestion of the drug and tended to prove the state’s allegations of third-degree assault. Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Cited in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989); State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Sec. 12.47.050. Disposition of defendant found guilty but mentally ill.

  1. If the trier of fact finds that a defendant is guilty but mentally ill, the court shall sentence the defendant as provided by law and shall enter the verdict of guilty but mentally ill as part of the judgment.
  2. The Department of Corrections shall provide mental health treatment to a defendant found guilty but mentally ill. The treatment must continue until the defendant no longer suffers from a mental disease or defect that causes the defendant to be dangerous to the public peace or safety.  Subject to (c) and (d) of this section, the Department of Corrections shall determine the course of treatment.
  3. When treatment terminates under (b) of this section, the defendant shall be required to serve the remainder of the sentence imposed.
  4. Notwithstanding any contrary provision of law, a defendant receiving treatment under (b) of this section may not be released
    1. on furlough under AS 33.30.101 — 33.30.131 , except for treatment in a secure setting; or
    2. on parole.
  5. Not less than 30 days before the expiration of the sentence of a defendant found guilty but mentally ill, the commissioner of corrections shall file a petition under AS 47.30.700 for a screening investigation to determine the need for further treatment of the defendant if
    1. the defendant is still receiving treatment under (b) of this section; and
    2. the commissioner has good cause to believe that the defendant is suffering from a mental illness that causes the defendant to be dangerous to the public peace or safety; in this paragraph, “mental illness” has the meaning given in AS 47.30.915 .

History. (§ 22 ch 143 SLA 1982; am E.O. No. 55, §§ 3, 4 (1984); am § 5 ch 88 SLA 1986)

Revisor’s notes. —

Subsection (e) was enacted as (f). Relettered in 1982 when the original (e) was renumbered as AS 12.47.055 .

Opinions of attorney general. —

Placements in properly licensed private treatment facilities became available for persons committed to the commissioner of the Department of Corrections, pursuant to AS 12.47.050(b) , on September 4, 1986, when ch. 88, SLA 1986, became effective. July 8, 1986 Op. Att’y Gen.

“Treatment,” for purposes of this section, means the therapeutic milieu, process and/or medication employed by a mental health professional to achieve a behavioral state in the guilty but mentally ill inmate who is no longer dangerous to public peace or safety. December 5, 1986 Op. Att’y Gen.

The treatment and restrictions placed upon the guilty but mentally ill inmate need only last until a determination is made that the inmate is no longer dangerous to the public peace or safety. This determination does not mean that treatment must cease after the inmate is determined to be no longer dangerous. It means that the disabilities associated with this section may be removed upon determination that the inmate does not constitute a danger; he may then be “treated” like any other prisoner in need of psychological or psychiatric treatment. December 5, 1986 Op. Att’y Gen.

While legislative intent involuntarily subjects the guilty but mentally ill inmate to most conventional mental health treatment methods, approaches which fall within the “spirit of intrusion” reflected in such examples as psychosurgery and medical or psychiatric programs involving adverse conditioning should be closely scrutinized and applied only pursuant to clearly defined policy. December 5, 1986 Op. Att’y Gen.

The determination of whether a guilty but mentally ill inmate is a danger to public peace or safety rests with the commissioner. December 5, 1986 Op. Att’y Gen.

While at present it appears that there is no department policy whereby the guilty but mentally ill inmate can receive a review of dangerousness, without a “dangerousness review” there could be guilty but mentally ill inmates who, while behaviorally indistinguishable from the mentally ill offender in the general population, may be denied furlough or parole pursuant to AS 12.47.050(d) , which would raise the serious question of denial of equal protection. December 5, 1986 Op. Att’y Gen.

Notes to Decisions

Incarceration constitutional. —

Incarceration of a person found guilty but mentally ill does not violate the due process or cruel and unusual punishment clauses of the Alaska Constitution. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

As is denial of furlough or parole. —

The provision in this section which denies a defendant the opportunity for furloughs or releases on parole, so long as he is mentally ill and a danger to the public, does not violate his right to equal protection of the laws. Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Parole eligibility review required. —

A defendant found guilty but mentally ill must be provided some procedural mechanism to seek eligibility for parole or furlough by demonstrating his lack of continued dangerousness. Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Length of confinement. —

While the current statutory scheme requires the state to provide appropriate medical and psychiatric care to offenders found guilty but mentally ill, it does not call for any reduction in the overall length of confinement to be imposed. It strongly suggests that an offender whose crime is the product of a mental illness should not automatically be entitled to a more mitigated sentence than would have been appropriate had no mental illness existed. Washington v. State, 828 P.2d 172 (Alaska Ct. App. 1992).

No release while still ill. —

Alaska law restricts the parole eligibility of defendants who are found guilty but mentally ill. Such defendants cannot be released on parole until they no longer suffer from a mental disease or defect that causes them to be dangerous to the public. Beaudoin v. State, 57 P.3d 703 (Alaska Ct. App. 2002).

Sentence upheld. —

The superior court did not abuse its discretion in imposing a sentence on a defendant found guilty but mentally ill when it went considerably beyond the established benchmark for regular offenders. The sentence was held to reflect the defendant’s history of violence, the seriousness of the conduct behind the current offense, and the exceptional danger posed by the defendant’s demonstrated resistance to his prescribed treatment. Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Post-conviction relief. —

Superior court properly dismissed defendant's application for post-conviction relief for failure to state a prima facie claim for relief because her trial attorneys were not incompetent for failing to interview an expert witness regarding defendant's conditions of confinement if she were found guilty-but-mentally-ill since questioning the expert witness about the conditions of defendant's confinement was not clearly within the scope of the trial attorneys' duties, and defendant did not suffer any prejudice by her attorneys' failure to raise a legal argument that was expressly rejected two years after her direct appeal. Lord v. State, 489 P.3d 374 (Alaska Ct. App. 2021).

Stated in

Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Cited in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008); State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013); Lane v. Ballot, 330 P.3d 338 (Alaska 2014).

Sec. 12.47.055. Treatment for other defendants not limited.

Nothing in AS 12.47.050 limits the discretion of the court to recommend, or of the Department of Corrections to provide, psychiatrically indicated treatment for a defendant who is not adjudged guilty but mentally ill.

History. (§ 22 ch 143 SLA 1982; am E.O. No. 55, § 5 (1984))

Cross references. —

Definition of “mental disease or defect” — AS 12.47.130

Definition of “mental illness” — AS 47.30.915

Guilty but mentally ill — AS 12.47.030

Original Code Provision — None.

Revisor’s notes. —

Enacted as AS 12.47.050(e) . Renumbered in 1982.

Sec. 12.47.060. Post conviction determination of mental illness.

  1. In a prosecution for a crime when the affirmative defense of insanity is not raised and when evidence of mental disease or defect of the defendant is not admitted at trial under AS 12.47.020 , the defendant or the prosecuting attorney may raise the issue of whether the defendant is guilty but mentally ill. A party that seeks a post-conviction determination of guilty but mentally ill must give notice 10 days before trial of intent to do so; however, this deadline is waived if the opposing party presents evidence or argument at trial tending to show that the defendant may be guilty but mentally ill. A hearing must be held on this issue before the same fact finder that returned the verdict of guilty under procedures set by the court. In cases decided by a jury, at the request of the defendant and with the concurrence of the prosecuting attorney, the court may decide the issue. A waiver of consideration by a jury must be in writing and in person before the court. At the hearing, the fact finder shall determine whether the defendant has been shown to be guilty but mentally ill beyond a reasonable doubt, considering evidence presented at the hearing and any evidence relevant to the issue that was presented at trial.
  2. If the fact finder finds that a defendant is guilty but mentally ill, the court shall sentence the defendant as provided by law and shall enter the finding of guilty but mentally ill as part of the judgment.
  3. A defendant determined to be guilty but mentally ill under this section is subject to the provisions of AS 12.47.050 .
  4. In this section, “guilty but mentally ill” has the meaning given in AS 12.47.030 .

History. (§ 22 ch 143 SLA 1982; am §§ 6, 7 ch 70 SLA 2012)

Cross references. —

Guilty but mentally ill — AS 12.47.030

Disposition of defendant found guilty but mentally ill — AS 12.47.050

Original Code Provision — None.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, rewrote (a); in (b), substituted “If the fact finder” for “If the court”, and made a stylistic change.

Editor’s notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendments to subsections (a) and (b) apply “to proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012.”

Notes to Decisions

Elements. —

Even in the cases covered by this section, where no evidence of the defendant’s mental illness is presented at trial, and the litigation regarding the “guilty but mentally ill” verdict occurs after the jury has found the defendant guilty — (1) the elements of the “guilty but mentally ill” verdict are the same, (2) the State bears the burden of proving those elements beyond a reasonable doubt, (3) the defendant is entitled to demand that the same jury decide both the underlying offense and the question of whether the defendant is guilty but mentally ill, and (4) the same consequences attach to any resulting verdict of “guilty but mentally ill.” State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Applicability. —

The procedure set forth in this section applies only in cases where neither the State nor the defendant presents evidence of the defendant’s mental disease or defect during litigation of the defendant’s guilt. State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Trial court could convene another jury. —

In a case in which defendant had been convicted of attempted murder and third-degree assault but had not yet been sentenced, the trial court could lawfully convene another jury to determine whether defendant should be found guilty but mentally ill. State v. Clifton, 315 P.3d 694 (Alaska Ct. App. 2013).

Applied in

Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993).

Cited in

Hastings v. State, 736 P.2d 1157 (Alaska Ct. App. 1987); Washington v. State, 828 P.2d 172 (Alaska Ct. App. 1992); Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Sec. 12.47.070. Psychiatric examination.

  1. If a defendant has filed a notice of intention to rely on the affirmative defense of insanity under AS 12.47.010 or has filed notice under AS 12.47.020(a) , or there is reason to doubt the defendant’s fitness to proceed, or there is reason to believe that a mental disease or defect of the defendant will otherwise become an issue in the case, the court shall appoint at least two qualified psychiatrists or two forensic psychologists certified by the American Board of Forensic Psychology to examine and report upon the mental condition of the defendant.  If the court appoints psychiatrists, the psychiatrists may select psychologists to provide assistance. If the defendant has filed notice under AS 12.47.090(a) , the report shall consider whether the defendant can still be committed under AS 12.47.090(c) .  The court may order the defendant to be committed to a secure facility for the purpose of the examination for not more than 60 days or such longer period as the court determines to be necessary for the purpose and may direct that a qualified psychiatrist retained by the defendant be permitted to witness and participate in the examination.
  2. In an examination under (a) of this section, any method may be employed which is accepted by the medical profession for the examination of those alleged to be suffering from mental disease or defect.
  3. The report of an examination under (a) of this section shall include the following:
    1. a description of the nature of the examination;
    2. a diagnosis of the mental condition of the defendant;
    3. if the defendant suffers from a mental disease or defect, an opinion as to the defendant’s capacity to understand the proceedings against the defendant and to assist in the defendant’s defense;
    4. if a notice of intention to rely on the affirmative defense of insanity under AS 12.47.010(b) has been filed, an opinion as to the extent, if any, to which the capacity of the defendant to appreciate the nature and quality of the defendant’s conduct was impaired at the time of the crime charged; and
    5. if notice has been filed under AS 12.47.020(a) , an opinion as to the capacity of the defendant to have a culpable mental state which is an element of the crime charged.
  4. If the examination under (a) of this section cannot be conducted by reason of the unwillingness of the defendant to participate in it, the report shall so state and shall include, if possible, an opinion as to whether the unwillingness of the defendant was the result of mental disease or defect.
  5. The report of the examination under (a) of this section shall be filed with the clerk of the court, who shall cause copies to be delivered to the prosecuting attorney and to counsel for the defendant.

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Insanity excluding responsibility — AS 12.47.010

Mental disease or defect negating culpable mental state — AS 12.47.020

Procedure after raising defense of insanity — AS 12.47.090

Original Code Provision — AS 12.45.087 .

Notes to Decisions

Annotator’s notes. —

Many of the cases annotated below were decided under former AS 12.45.087 .

The conviction of a person who is incompetent to stand trial violates due process of law. Schade v. State, 512 P.2d 907 (Alaska 1973).

The defendant must have some minimum ability to provide his counsel with information necessary or relevant to his defense. He must also be able to understand the nature of the proceedings sufficiently to participate in certain decisions about the conduct of the defense. Schade v. State, 512 P.2d 907 (Alaska 1973).

But this does not mean that a defendant must possess any high degree of legal sophistication or intellectual prowess. Schade v. State, 512 P.2d 907 (Alaska 1973).

Not every emotional flaw renders one incompetent to stand trial. Schade v. State, 512 P.2d 907 (Alaska 1973).

The presence of some degree of mental illness is not an invariable barrier to prosecution. There may be an impaired functioning of some aspects of the defendant’s personality and yet he may still be minimally able to aid in his defense and to understand the nature of the proceedings against him. Schade v. State, 512 P.2d 907 (Alaska 1973).

No violation of Fifth Amendment rights. —

Trial court did not err by ordering psychiatric evaluations of defendant, and the evaluations did not violate defendant’s Fifth Amendment rights because defendant waived his Fifth Amendment privilege to object to the evaluations by: (1) putting his mental health at issue when he asserted that his behavior was attributable to ingestion of a drug not prescribed to him; and (2) arguing at trial that because of his underlying mental diseases or defects, he lacked the culpable mental states required for third-degree assault. Lewis v. State, 195 P.3d 622 (Alaska Ct. App. 2008).

Standard for determining competency is relative. —

See Schade v. State, 512 P.2d 907 (Alaska 1973).

Where psychiatric examination of defendant yields professional findings that he is competent to stand trial, the question of whether to hold any further or evidentiary hearings is addressed to the sound discretion of the trial court. Schade v. State, 512 P.2d 907 (Alaska 1973).

Physical examination did not violate predecessor section. —

A physical examination between a clinical psychologist and defendant shortly after defendant was arrested and taken into custody, because the police feared defendant was suicidal, was properly authorized under former AS 33.30.130(a), which specified the duty of the commissioner of public safety to provide for persons pending arraignment or commitment, and did not violate subsection (a) of former AS 12.45.087 . The evidence resulting from the examination was, therefore, legally obtained. Loveless v. State, 592 P.2d 1206 (Alaska 1979).

Duty to order examination. —

Once motion for competency evaluation was made under former AS 12.45.100 that was neither frivolous nor lacking in good faith and that set forth reasonable cause to believe accused might be incompetent, trial court had mandatory duty to order examination. Leonard v. State, 658 P.2d 798 (Alaska Ct. App. 1983).

If possible Alaska Psychiatric Institute must perform examinations.—

If it becomes necessary for the superior court to conduct an evidentiary hearing, that hearing must be searching and produce a comprehensive record for review; while the Alaska Psychiatric Institute may not employ psychologists certified by the American Board of Forensic Psychology as required by the statute, no such limiting certification is required by the statute for psychiatrists: the statute only requires "qualified psychiatrists." State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Alaska Psychiatric Institute (API) is required to provide qualified psychiatrists or psychologists as defined by the statute to serve as court-appointed, neutral expert witnesses or must explain at an evidentiary hearing why it cannot; if statutorily adequate experts can be appointed from API, they must be. State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Examination erroneously ordered.—.

It was error to make defendant waive rights to remain silent and present a defense and submit to psychiatric exams to assert an involuntariness defense because (1) the court did not clearly understand the proposed defense's factual contours without letting defendant make a full offer of proof describing supporting evidence, (2) the facts were not necessarily inconsistent with involuntariness, and (3) the defense was distinct from insanity or diminished capacity. Palmer v. State, 379 P.3d 981 (Alaska Ct. App. 2016).

Under this section, defendant could be examined by independent psychiatrist even though defendant never gave formal notice of a defense under either AS 12.47.010 or AS 12.47.020 . Nelson v. State, 874 P.2d 298 (Alaska Ct. App. 1994).

Court to determine whether expert qualified.—

Whether a psychiatrist is qualified within the meaning of the statute is a determination to be made by the court; thus, because it was not clear from the record whether the superior court made its own independent determination or simply accepted the Alaska Psychiatric Institute's (API) representation, the matter was remanded for the superior court to appoint qualified API psychiatrists or psychologists unless there is a legitimate reason not to. State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Court system must bear costs of court-appointed experts.—

Superior court's order that the parties each bear the cost of one expert was error because if the Alaska Psychiatric Institute (API) could not provide experts to perform the evaluations, then the Court System had to bear the costs of the court-appointed experts; when API is determined to be unable to provide qualified experts, the Court System must bear the costs of the court-appointed experts. State v. Groppel, 433 P.3d 1113 (Alaska 2018).

Payment of court-appointed experts. —

Superior court erred in holding that the State would pay for one of the appointed experts and the Alaska Office of Public Advocacy, which was appointed to represent defendant, would pay for the other court-appointed expert because, upon certification from the court of appeals, the Supreme Court of Alaska held that court-appointed experts were neutral experts appointed to answer the statutory questions and any other questions requested by the court. State v. Groppel, — P.3d — (Alaska Jan. 24, 2018).

Appellate review of order permitting psychiatric testimony. —

The defendant’s abandonment of his diminished capacity defense, as a result of the trial court’s denial of his motion for a protective order to exclude expert testimony of a psychiatrist testifying against him, barred the defendant from raising on appeal the issue of whether or not the psychiatrist’s testimony should have been barred at the trial level. Meaningful appellate review is impeded in such situations by the uncertainty attendant to determining whether any error might ultimately have proven harmless. Sam v. State, 842 P.2d 596 (Alaska Ct. App. 1992).

Defendant was not illegally subjected to pre-trial psychological evaluations because defense counsel affirmatively told the trial court that he did not object and then actively worked to arrange and facilitate the psychological examinations. Kangas v. State, 463 P.3d 189 (Alaska Ct. App. 2020).

Use of defendant's statements to the two forensic psychologists was not barred because the record showed that the trial court had proper grounds for concluding that the mental examinations were authorized and defendant was not compelled to participate in the psychological examinations against his will, as defense counsel took repeated steps in the ensuing weeks to promote and facilitate these examinations and defendant was expressly warned by at least one of the forensic psychologists that he had the right not to participate in the examination and he agreed to participate in both examinations. Kangas v. State, 463 P.3d 189 (Alaska Ct. App. 2020).

Where trial judge erroneously denied defendant’s motion for competency evaluation under former AS 12.45.100, proper remedy was new trial preceded by competency determination. Leonard v. State, 658 P.2d 798 (Alaska Ct. App. 1983).

Cited in

Samaniego v. City of Kodiak, 80 P.3d 216 (Alaska 2003); State v. Alexander, 364 P.3d 458 (Alaska Ct. App. 2015).

Sec. 12.47.080. Procedure upon verdict of not guilty.

  1. If a defendant is found not guilty under AS 12.47.040(a)(2) , the prosecuting attorney shall, within 24 hours, file a petition under AS 47.30.700 for a screening investigation to determine the need for treatment if the prosecuting attorney has good cause to believe that the defendant is suffering from a mental illness and as a result is gravely disabled or likely to cause serious harm to self or others.
  2. In this section, “mental illness” has the meaning given in AS 47.30.915 .

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Definition of “mental illness” — AS 47.30.915 (12)

Form of verdict when evidence of mental disease or defect admissible — AS 12.47.040

Original Code Provision — None.

Notes to Decisions

Quoted in

Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Sec. 12.47.090. Procedure after raising defense of insanity.

  1. At the time the defendant files notice to raise the affirmative defense of insanity under AS 12.47.010 or files notice under AS 12.47.020(a) , the defendant shall also file notice as to whether, if found not guilty by reason of insanity under AS 12.47.010 or 12.47.020(b) , the defendant will assert that the defendant is not presently suffering from any mental illness that causes the defendant to be dangerous to the public peace or safety.
  2. If the defendant is found not guilty by reason of insanity under AS 12.47.010 or 12.47.020(b) , and has not filed the notice required under (a) of this section, the court shall immediately commit the defendant to the custody of the commissioner of health and social services.
  3. If the defendant is found not guilty by reason of insanity under AS 12.47.010 or 12.47.020(b) , and has filed the notice required under (a) of this section, a hearing shall be held immediately after a verdict of not guilty by reason of insanity to determine the necessity of commitment.  The hearing shall be held before the same trier of fact as heard the underlying charge.  At the hearing, the defendant has the burden of proving by clear and convincing evidence that the defendant is not presently suffering from any mental illness that causes the defendant to be dangerous to the public.  If the court or jury determines that the defendant has failed to meet the burden of proof, the court shall order the defendant committed to the custody of the commissioner of health and social services.  If the hearing is before a jury, the verdict must be unanimous.
  4. A defendant committed under (b) or (c) of this section shall be held in custody for a period of time not to exceed the maximum term of imprisonment for the crime for which the defendant was acquitted under AS 12.47.010 or 12.47.020(b) or until the mental illness is cured or corrected as determined at a hearing under (e) of this section.
  5. A defendant committed under (b) or (c) of this section may have the need for continuing commitment under this section reviewed by the court sitting without a jury under a petition filed in the superior court at intervals beginning no sooner than a year from the defendant’s initial commitment, and yearly thereafter.  The burden and standard of proof at a hearing under this subsection are the same as at a hearing under (c) of this section.  A copy of all petitions for release shall be served on the attorney general at Juneau, Alaska.  A copy shall also be served upon the attorney of record, if the attorney of record is not the attorney general, who represented the state or a municipality at the time the defendant was first committed.
  6. Continued commitment following expiration of the maximum term of imprisonment for the crime for which the defendant was acquitted under AS 12.47.010 or 12.47.020(b) is governed by the standards pertaining to civil commitments as set out in AS 47.30.735 .
  7. A person committed under this section may not be released during the term of commitment except upon court order following a hearing in accordance with (e) of this section. On the grounds that the defendant has been cured of any mental illness that would cause the defendant to be dangerous to the public peace or safety, the state may at any time request the court to hold a hearing to decide if the defendant should be released.
  8. The commissioner of health and social services or the commissioner’s authorized representative shall submit periodic written reports to the court on the mental condition of a person committed under this section.
  9. An order entered under (c) or (e) of this section may be reviewed by the court of appeals on appeal brought by either the defendant or the state within 40 days from the entry of the order.
  10. If the court finds that a defendant committed under (b) or (c) of this section can be adequately controlled and treated in the community with proper supervision, the court may order the defendant conditionally released from confinement under AS 12.47.092 for a period of time not to exceed the maximum term of imprisonment for the crime for which the defendant was acquitted under AS 12.47.010 or 12.47.020(b) or until the mental illness is cured or corrected, whichever first occurs, as determined at a hearing under (c) of this section.
  11. In this section,
    1. “dangerous” means a determination involving both the magnitude of the risk that the defendant will commit an act threatening the public peace or safety, as well as the magnitude of the harm that could be expected to result from this conduct; a finding that a defendant is “dangerous” may result from a great risk of relatively slight harm to persons or property, or may result from a relatively slight risk of substantial harm to persons or property;
    2. “mental illness” means any mental condition that increases the propensity of the defendant to be dangerous to the public peace or safety; however, it is not required that the mental illness be sufficient to exclude criminal responsibility under AS 12.47.010 , or that the mental illness presently suffered by the defendant be the same one the defendant suffered at the time of the criminal conduct.

History. (§ 22 ch 143 SLA 1982; am § 1 ch 74 SLA 1986)

Cross references. —

Insanity excluding responsibility — AS 12.47.010

Mental disease or defect negating culpable mental state — AS 12.47.020

Original Code Provision — AS 12.45.090.

Revisor’s notes. —

Subsection (j) was formerly (k) and subsection (k) was formerly (j). Relettered in 1995.

Opinions of attorney general. —

Properly licensed private treatment facilities may be used for the placement of persons committed to the commissioner of the Department of Health and Social Services pursuant to AS 12.47.090 and 12.47.110 . July 8, 1986 Op. Att’y Gen.

According to the House Commentary (House J. Supp. No. 64, at 7 (June 2, 1982)), the not guilty by reason of insanity commitment procedure “provides substantial protection for the public by requiring a person criminally committed to bear the burden of demonstrating his lack of danger to others before he is released,” the focus being on whether the mentally ill defendant is a threat to public peace or safety. December 5, 1986 Op. Att’y Gen.

Notes to Decisions

Link to underlying crime. —

Based on the provisions of AS 47.30.745(b) , AS 47.30.755(a) , AS 47.30.770(c) , and this section the legislature has linked an insanity acquittee’s commitment term to the underlying crime. Alto v. State, 64 P.3d 141 (Alaska Ct. App. 2003).

Prior statute construed. —

See Clark v. State, 645 P.2d 1236 (Alaska Ct. App. 1982) (decided under former AS 12.45.090).

Quoted in

Barrett v. State, 772 P.2d 559 (Alaska Ct. App. 1989).

Stated in

Lord v. State, 262 P.3d 855 (Alaska Ct. App. 2011).

Cited in

Blackburn v. State, 661 P.2d 1100 (Alaska Ct. App. 1983).

Sec. 12.47.092. Procedure for conditional release.

  1. A defendant committed to the custody of the commissioner of health and social services under AS 12.47.090(b) or (c) may be conditionally released from confinement subject to the conditions and requirements for treatment that the court may impose, and placed under the supervision of the Department of Health and Social Services, a local government agency, a private agency, or an adult, who agrees to assume supervision of the defendant.
  2. The commissioner of health and social services or the commissioner’s authorized representative shall submit, at a minimum, quarterly written reports to the court describing the defendant’s progress in treatment, compliance with conditions of release, and other information required by the court for defendants conditionally released under this section.
  3. A person or agency responsible for supervision or treatment under an order for conditional release shall immediately notify the commissioner of health and social services upon the defendant’s failure to appear for required medication or treatment, or for failure to comply with other conditions imposed by the court.
  4. If the court, after petition or on its own motion, reasonably believes that a conditionally released defendant is failing to adhere to the terms and conditions of the conditional release, the court may order that the conditionally released defendant be apprehended and held until a hearing can be scheduled with the court to determine the facts and whether or not the defendant’s conditional release should be revoked or modified.  Nothing in this subsection is intended to limit procedures available for emergency situations, including emergency detention under AS 47.30.705 .
  5. The commissioner of health and social services or the conditionally released defendant may petition the court for modification of an order of conditional release.  A petition by the defendant for modification of conditional release may not be filed more often than once every six months.
  6. A defendant conditionally released under AS 12.47.090(j) may petition the court for discharge in accordance with AS 12.47.090(e) .

History. (§ 2 ch 74 SLA 1986)

Cross references. —

Procedure After Raising Defense of Insanity — AS 12.47.090

Emergency Detention for Evaluation — AS 47.30.705

Original Code Provision — AS 12.45.090.

Revisor’s notes. —

In 1995, in subsection (f), “AS 12.47.090(j) ” was substituted for “AS 12.47.090(k) ” to reflect the 1995 relettering of AS 12.47.090(j) and (k).

Notes to Decisions

Ex parte communications. —

Judge who conducted hearings on a request for conditional release engaged in a series of improper ex parte communications with the Commissioner of the Department of Health and Social Services that were not authorized by law and required the judge’s disqualification from the case under Alaska Code Jud. Conduct 3E(1). State v. Dussault, 245 P.3d 436 (Alaska Ct. App. 2011).

Collateral references. —

Right to notice and hearing prior to revocation of conditional release status of mental patient. 29 ALR4th 394.

Sec. 12.47.095. Notice to victims.

  1. If an offender has been committed to the custody of the commissioner of health and social services under AS 12.47.090 , the victim of that crime is entitled to notice of a pending or actual change in the status of the offender. The commissioner of health and social services shall give notice as required by this section if
    1. the offender has been continued in commitment following expiration of the maximum term of imprisonment under AS 12.47.090(f) and the commissioner gives notice of release of the offender;
    2. the court is to consider modification of an order of conditional release for the offender under AS 12.47.092(e) ;
    3. a court is to consider conditional release of the offender under AS 12.47.090(j) and 12.47.092(a) ;
    4. the offender petitions for discharge under AS 12.47.092(f) ; or
    5. the offender escapes, is released from custody on conditional release, furlough or authorized absence, or is discharged or released from custody for any reason.
  2. If a victim desires notice under this section, the victim shall maintain a current, valid mailing address on file with the commissioner of health and social services. The commissioner shall send the notice required by this section to the victim’s last known address. The victim’s address may not be disclosed to the offender or offender’s attorney.
  3. The commissioner of health and social services is required to give notice of a change in the status of an offender under this section to any victim who has requested notice.
  4. If more than one person who qualifies as a victim under AS 12.55.185 desires notice, the commissioner of health and social services shall designate one person for purposes of receiving any notice required and exercising the rights granted by this section.
  5. A victim who has received notice under (a) of this section that a change in the status of the offender is pending before a court has the right to submit to the court a written statement, or to appear personally at a hearing to present a written statement, and to give sworn testimony or an unsworn oral presentation to the court.
  6. In this section,
    1. “offender” has the meaning given in AS 12.61.020 ;
    2. “victim” has the meaning given in AS 12.55.185 .

History. (§ 3 ch 59 SLA 1989; am §§ 1, 2 ch 10 SLA 1992)

Revisor’s notes. —

Subsection (e) enacted as (f). Relettered in 1992, at which time former subsection (e) was relettered as (f).

In 1995, in paragraph (a)(3), “AS 12.47.090(j) ” was substituted for “AS 12.47.090(k) ” to reflect the 1995 relettering of AS 12.47.090(j) and (k).

Sec. 12.47.100. Incompetency to proceed.

  1. A defendant who, as a result of mental disease or defect, is incompetent because the defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense may not be tried, convicted, or sentenced for the commission of a crime so long as the incompetency exists.
  2. If, before imposition of sentence, the prosecuting attorney or the attorney for the defendant has reasonable cause to believe that the defendant is presently suffering from a mental disease or defect that causes the defendant to be unable to understand the proceedings or to assist in the person’s own defense, the attorney may file a motion for a judicial determination of the competency of the defendant. Upon that motion, or upon its own motion, the court shall have the defendant examined by at least one qualified psychiatrist or psychologist, who shall report to the court concerning the competency of the defendant. For the purpose of the examination, the court may order the defendant committed for a reasonable period to a suitable hospital or other facility designated by the court. If the report of the psychiatrist or psychologist indicates that the defendant is incompetent, the court shall hold a hearing, upon due notice, at which evidence as to the competency of the defendant may be submitted, including that of the reporting psychiatrist or psychologist, and make appropriate findings. Before the hearing, the court shall, upon request of the prosecuting attorney, order the defendant to submit to an additional evaluation by a psychiatrist or psychologist designated by the prosecuting attorney.
  3. A defendant is presumed to be competent. The party raising the issue of competency bears the burden of proving the defendant is incompetent by a preponderance of the evidence. When the court raises the issue of competency, the burden of proving the defendant is incompetent shall be on the party who elects to advocate for a finding of incompetency. The court shall then apply the preponderance of the evidence standard to determine whether the defendant is competent.
  4. A statement made by the defendant in the course of an examination into the person’s competency under this section, whether the examination is with or without the consent of the defendant, may not be admitted in evidence against the defendant on the issue of guilt in a criminal proceeding unless the defendant later relies on a defense under AS 12.47.010 or 12.47.020 . A finding by the judge that the defendant is competent to stand trial in no way prejudices the defendant in a defense based on insanity; the finding may not be introduced in evidence on that issue or otherwise be brought to the notice of the jury.
  5. In determining whether a person has sufficient intellectual functioning to adapt or cope with the ordinary demands of life, the court shall consider whether the person has obtained a driver’s license, is able to maintain employment, or is competent to testify as a witness under the Alaska Rules of Evidence.
  6. In determining if the defendant is unable to understand the proceedings against the defendant, the court shall consider, among other factors considered relevant by the court, whether the defendant understands that the defendant has been charged with a criminal offense and that penalties can be imposed; whether the defendant understands what criminal conduct is being alleged; whether the defendant understands the roles of the judge, jury, prosecutor, and defense counsel; whether the defendant understands that the defendant will be expected to tell defense counsel the circumstances, to the best of the defendant’s ability, surrounding the defendant’s activities at the time of the alleged criminal conduct; and whether the defendant can distinguish between a guilty and not guilty plea.
  7. In determining if the defendant is unable to assist in the defendant’s own defense, the court shall consider, among other factors considered relevant by the court, whether the defendant’s mental disease or defect affects the defendant’s ability to recall and relate facts pertaining to the defendant’s actions at times relevant to the charges and whether the defendant can respond coherently to counsel’s questions. A defendant is able to assist in the defense even though the defendant’s memory may be impaired, the defendant refuses to accept a course of action that counsel or the court believes is in the defendant’s best interest, or the defendant is unable to suggest a particular strategy or to choose among alternative defenses.
  8. In a hearing to determine competency under this section, the court may, at the court’s discretion, allow a witness, including a psychiatrist or psychologist who examined the defendant, to testify concerning the competency of the defendant by contemporaneous two-way video conference if the witness is in a place from which people customarily travel by air to the court, and the procedure allows the parties a fair opportunity to examine the witness. The video conference technician shall be the only person in the presence of the witness unless the court, at the court’s discretion, determines that another person may be present. Any person present with the witness must be identified on the record. In this subsection, “contemporaneous two-way video conference”
    1. means a conference among people at different places by means of transmitted audio and video signals;
    2. includes all communication technologies that allow people at two or more places to interact by two-way video and audio transmissions simultaneously.

History. (§ 22 ch 143 SLA 1982; am § 1 ch 62 SLA 1996; am § 18 ch 1 TSSLA 2012)

Cross references. —

Definition of “mental disease or defect” — AS 12.47.130

Commitment on finding of incompetency — AS 12.47.110

Determination of sanity after commitment — AS 12.47.120

Original Code Provision — AS 12.45.100.

Revisor’s notes. —

In 1996, “preponderance of the” was substituted for “preponderance of” in the second sentence of subsection (c), to correct a manifest error in § 1, ch. 62, SLA 1996.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, added (h).

Editor’s notes. —

Section 27(b), ch. 1, TSSLA 2012, provides that subsection (h) applies to offenses committed on or after July 1, 2012.

Legislative history reports. —

For legislative letter of intent concerning the amendment of this section made by § 1, ch. 62, SLA 1996 (HCS SB 321(JUD)), see 1996 House Journal 4203-4205.

For the governor's transmittal letter concerning ch. 1, TSSLA 2012 (HB 359), see 2012 House Journal 1666 — 1668.

Notes to Decisions

Annotator’s notes. —

Many of the cases annotated below were decided under former AS 12.45.100.

Mandate of former AS 12.45.100 was of constitutional dimensions. —

Subsection (a) of former AS 12.45.100 prohibited the trial, conviction and sentencing of a defendant who could not assist in his own defense or understand the proceedings against him. That statutory mandate is of constitutional dimensions. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

The conviction of a person who is incompetent to stand trial violates due process of law. Schade v. State, 512 P.2d 907 (Alaska 1973); Fajeriak v. State, 520 P.2d 795 (Alaska 1974); McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

And his sentence is therefore vulnerable to post-conviction attack. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

This is true whether or not defendant presented issue of incompetency at trial. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

But incompetency to stand trial is a concept of restricted application. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

One of the primary reasons for requiring that defendant be competent before standing trial is to safeguard the accuracy of the guilt finding process. Schade v. State, 512 P.2d 907 (Alaska 1973).

Former AS 12.45.100 appeared to codify the common law rule. Schade v. State, 512 P.2d 907 (Alaska 1973).

It was the rule at common law that an accused should not be subjected to a criminal trial if he is in such a mental condition that he is unable to understand the proceedings against him or to properly assist in his own defense. Bosel v. State, 398 P.2d 651 (Alaska 1965); Schade v. State, 512 P.2d 907 (Alaska 1973).

Subsection (b) of former AS 12.45.100 was patterned after former 18 U.S.C. § 4244. Bosel v. State, 398 P.2d 651 (Alaska 1965); Smiloff v. State, 579 P.2d 28 (Alaska 1978)(See now 18 U.S.C. § 4241 et seq.).

The test in former AS 12.45.100 was substantially identical to the federal statutory standard of incompetency. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Subsection (b) of former AS 12.45.100 was clear enough. Thessen v. State, 454 P.2d 341 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525 (U.S. 1970).

A defendant need not be proved certifiably incompetent to stand trial before the court is required to order a psychiatric examination. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Subsection (b) of former AS 12.45.100 directed only that “reasonable cause” to believe that the defendant might be incompetent to stand trial be shown. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

The defendant must have some minimum ability to provide his counsel with information necessary or relevant to his defense. He must also be able to understand the nature of the proceedings sufficiently to participate in certain decisions about the conduct of the defense. Schade v. State, 512 P.2d 907 (Alaska 1973).

Some strategic choices must be the product of meaningful communication between the defendant and his counsel. Schade v. State, 512 P.2d 907 (Alaska 1973).

But this does not mean that a defendant must possess any high degree of legal sophistication or intellectual prowess. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Numerous persons are subjected to criminal prosecution, even though they are of relatively low intelligence or are suffering from some significant emotional or physical impairment. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Not every emotional flaw renders one incompetent to stand trial. Schade v. State, 512 P.2d 907 (Alaska 1973).

The presence of some degree of mental illness is not an invariable barrier to prosecution. There may be an impaired functioning of some aspects of the defendant’s personality and yet he may still be minimally able to aid in his defense and to understand the nature of the proceedings against him. Schade v. State, 512 P.2d 907 (Alaska 1973); McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

That there may be something mentally wrong with a defendant or that he may be emotionally unstable does not necessarily render him mentally incompetent to understand the proceedings against him. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Not every mental illness necessarily disables a defendant from functioning adequately in a criminal proceeding. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Possibility that defendant might suffer episodes of vertigo or momentary unconsciousness during trial is not enough to render a defendant mentally incompetent. It could with equal justification be argued that a chronically drowsy defendant could not be tried because he might doze off during proceedings. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Amnesia, be it partial or total, is not an adequate ground for a declaration of incompetency to stand trial. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Policy cojoins with precedent to oppose an expansion of the doctrine of incompetency to include amnesia. The potential for fraudulent allegations of memory loss is so great that the supreme court would for this reason alone be reluctant to allow amnesia as a ground for a finding of incompetency even if it were otherwise inclined to do so. Fajeriak v. State, 520 P.2d 795 (Alaska 1974).

Memory loss, whether partial or total, is not an adequate ground for a declaration of incompetency. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Temporary psychosis, though serious, may not necessarily preclude competency, even where it involves loss of memory. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Duty to determine competency is not one that can be once determined and then ignored. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Self-incrimination privilege in competency hearing. —

Requiring defendant, who had been charged with two counts of second degree assault, to testify at his competency hearing would violate his rights under the Fifth Amendment and Alaska Const. art. I, § 9, not to take the stand against his will. Diggs v. State, 274 P.3d 504 (Alaska Ct. App. 2012).

Competency demonstrated by preponderance of evidence. —

Competency to stand trial need be demonstrated only by a preponderance of the evidence; the court rejected the contention that the state prove competency beyond a reasonable doubt. McCarlo v. State, 677 P.2d 1268 (Alaska Ct. App. 1984).

In determining competency, the standard of judgment must be a relative one. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Some comparison must be made between the apparent competency of the accused and the ability level of the average criminal defendant. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

To a large extent each case must be considered on its particular facts and must call for the application of judicial discretion. Schade v. State, 512 P.2d 907 (Alaska 1973).

The determination is a relative one, and each case must be determined on its own facts. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Great deference is to be accorded defense counsel’s assessment in matters of defendant’s competence to stand trial, insofar as he is better able than the trial judge or the prosecutor to assess the defendant’s ability to participate in his defense and to understand the nature of the proceedings against him. Fajeriak v. State, 520 P.2d 795 (Alaska 1974); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

But his opinion is not determinative. —

A defense attorney’s duty as an advocate will often require him to present arguments of incompetence on behalf of his client; and while his opinion is relevant, it is not determinative. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Defendant was competent to stand trial despite his attorney’s continuing objections that defendant could not meaningfully participate in his own defense. The trial court made its own independent findings and continued to make additional findings at later hearings, demonstrating its awareness that defendant’s situation was not necessarily stable and that the highly intrusive delusions that previously presented a barrier to defendant’s competency could quickly return. Gamble v. State, 334 P.3d 714 (Alaska Ct. App. 2014).

The evaluation by defense counsel of the defendant’s competency is only of evidentiary value and is not dispositive of the issue. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Commitment not mandatory. —

Subsection (b) of this section states that the court “may order the accused committed for a reasonable period,” but such commitment is not mandatory. Vail v. State, 599 P.2d 1371 (Alaska 1979).

Reasonable cause for commitment. —

This section assumes that the person making the motion to commit the accused to a mental hospital to determine his competency has “reasonable cause” to believe that the accused is laboring under a mental disease or defect. Vail v. State, 599 P.2d 1371 (Alaska 1979).

Where the psychiatric examination of the defendant yields professional findings that he is competent to stand trial, the question of whether to hold any further or evidentiary hearings is addressed to the sound discretion of the trial court. Schade v. State, 512 P.2d 907 (Alaska 1973); Smiloff v. State, 579 P.2d 28 (Alaska 1978).

This section is silent on procedures to be employed if psychiatrist’s reports indicate that accused is competent. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Where defendant chooses not to assist in defense. —

Although a defendant’s decisions may reflect an unwise choice not to aid in his defense, the fact that he chooses not to assist in his defense does not mean he is incapable of doing so. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Disagreements with defendant. —

Where the main thrust of the trial counsel’s showing was the fact that he had encountered difficulties and disagreements with defendant over whether to accept a plea bargain and whether to have a jury trial and defense counsel did not refer to any bizarre behavior on defendant’s part or any specific facts indicating defendant’s incompetency, the superior court did not err in ruling that a fresh competency hearing was not required. Smiloff v. State, 579 P.2d 28 (Alaska 1978).

Limited appellate role on review. —

See McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Viewing the evidence in the light most favorable to the state, the supreme court will examine whether or not there was substantial evidence in the record to uphold the ruling below. If there is substantial evidence, it will not substitute its opinion for that of the trial court. McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Substantial evidence supporting ruling that defendant was competent. —

See McKinney v. State, 566 P.2d 653 (Alaska 1977), overruled, Evans v. State, 645 P.2d 155 (Alaska 1982).

Quoted in

Jones v. State, 812 P.2d 613 (Alaska Ct. App. 1991).

Cited in

Burks v. State, 748 P.2d 1178 (Alaska Ct. App. 1988); Ortberg v. State, 751 P.2d 1368 (Alaska Ct. App. 1988); Monroe v. State, 847 P.2d 84 (Alaska Ct. App. 1993); Samaniego v. City of Kodiak, 80 P.3d 216 (Alaska 2003).

Sec. 12.47.110. Commitment on finding of incompetency.

  1. When the trial court determines by a preponderance of the evidence, in accordance with AS 12.47.100 , that a defendant is so incompetent that the defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense, the court shall order the proceedings stayed, except as provided in (d) of this section, and shall commit a defendant charged with a felony, and may commit a defendant charged with any other crime, to the custody of the commissioner of health and social services or the commissioner’s authorized representative for further evaluation and treatment until the defendant is mentally competent to stand trial, or until the pending charges against the defendant are disposed of according to law, but in no event longer than 90 days.
  2. On or before the expiration of the initial 90-day period of commitment, the court shall conduct a hearing to determine whether or not the defendant remains incompetent. If the court finds by a preponderance of the evidence that the defendant remains incompetent, the court may recommit the defendant for a second period of 90 days. The court shall determine at the expiration of the second 90-day period whether the defendant has become competent. If, at the expiration of the second 90-day period, the court determines that the defendant continues to be incompetent to stand trial, the charges against the defendant shall be dismissed without prejudice, and continued commitment of the defendant shall be governed by the provisions relating to civil commitments under AS 47.30.700 — 47.30.915 unless the defendant is charged with a crime involving force against a person and the court finds that the defendant presents a substantial danger of physical injury to other persons and that there is a substantial probability that the defendant will regain competency within a reasonable period of time, in which case the court may extend the period of commitment for an additional six months. If the defendant remains incompetent at the expiration of the additional six-month period, the charges shall be dismissed without prejudice, and continued commitment proceedings shall be governed by the provisions relating to civil commitment under AS 47.30.700 — 47.30.915 . If the defendant remains incompetent for five years after the charges have been dismissed under this subsection, the defendant may not be charged again for an offense arising out of the facts alleged in the original charges, except if the original charge is a class A felony or unclassified felony.
  3. The defendant is not responsible for the expenses of hospitalization or transportation incurred as a result of the defendant’s commitment under this section.  Liability for payment under AS 47.30.910 does not apply to commitments under this section.
  4. A defendant receiving medication for either a physical or a mental condition may not be prohibited from standing trial, if the medication either enables the defendant to understand the proceedings and to properly assist in the defendant’s defense or does not disable the defendant from understanding the proceedings and assisting in the defendant’s own defense.
  5. A defendant charged with a felony and found to be incompetent to proceed under this section is rebuttably presumed to be mentally ill and to present a likelihood of serious harm to self or others in proceedings under AS 47.30.700 — 47.30.915 . In evaluating whether a defendant is likely to cause serious harm, the court may consider as recent behavior the conduct with which the defendant was originally charged.

History. (§ 22 ch 143 SLA 1982; am § 2 ch 62 SLA 1996; am §§ 19 — 21 ch 75 SLA 2008)

Cross references. —

Incompetency to proceed — AS 12.47.100

Determination of sanity after commitment — AS 12.47.120

Original Code Provision — AS 12.45.110.

Opinions of attorney general. —

Properly licensed private treatment facilities may be used for the placement of persons committed to the commissioner of the Department of Health and Social Services pursuant to AS 12.47.090 and 12.47.110 . July 8, 1986 Op. Att’y Gen.

Notes to Decisions

Jurisdiction. —

Superior court was the proper court for commencement of civil proceedings for commitment and involuntary medication, and the superior court did not err when it denied a criminal defendant's motions to stay or dismiss the proceedings because of the competency commitment ordered by the district court. The superior court was the only court with jurisdiction to entertain an involuntary medication petition despite the fact that a district court had committed the defendant for competency purposes. In re Hospitalization of Linda M., 440 P.3d 168 (Alaska 2019).

Defendant’s due process rights. —

Prolonged delay in obtaining competency restoration treatment violated defendant's right to substantive due process and required dismissal without prejudice of his criminal case because he was charged with a misdemeanor and it was apparent within days of the issuance of the commitment order that he was unlikely to be transferred to the Alaska Psychiatric Institute within a reasonable time and that he was likely to languish in jail, further decompensating mentally, for most, if not all, of the 90-day commitment order. J.K. v. State, 469 P.3d 434 (Alaska Ct. App. 2020).

Cited in

State v. Galbraith, 199 P.3d 1216 (Alaska Ct. App. 2009).

Sec. 12.47.120. Determination of sanity after commitment.

  1. When, in the medical judgment of the custodian of an accused person committed under AS 12.47.110 , the accused is considered to be mentally competent to stand trial, the committing court shall hold a hearing, after due notice, as soon as conveniently possible.  At the hearing, evidence as to the mental condition of the accused may be submitted including reports by the custodian to whom the accused was committed for care.
  2. If at the hearing the court determines that the accused is presently mentally competent to understand the nature of the proceedings against the accused and to assist in the accused’s own defense, appropriate criminal proceedings may be commenced against the accused.
  3. If at the hearing the court determines that the accused is still presently mentally incompetent, the court shall recommit the accused in accordance with AS 12.47.110 .
  4. A finding by the court that the accused is mentally competent to stand trial in no way prejudices the accused in a defense based on mental disease or defect excluding responsibility. This finding may not be introduced in evidence on that issue or otherwise brought to the notice of the jury.

History. (§ 22 ch 143 SLA 1982)

Cross references. —

Incompetency to proceed — AS 12.47.100

Commitment on finding of incompetency — AS 12.47.110

Original Code Provision — AS 12.45.115.

Sec. 12.47.130. Definitions.

In this chapter,

  1. “affirmative defense” has the meaning given in AS 11.81.900(b) ;
  2. “assist in the defendant’s own defense” means to consult with a lawyer while exercising a reasonable degree of rational functioning;
  3. “culpable mental state” has the meaning given in AS 11.81.900(b) ;
  4. “incompetent” means a defendant is unable to understand the proceedings against the defendant or to assist in the defendant’s own defense;
  5. “mental disease or defect” means a disorder of thought or mood that substantially impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life; “mental disease or defect” also includes intellectual and developmental disabilities that result in significantly below average general intellectual functioning that impairs a person’s ability to adapt to or cope with the ordinary demands of life;
  6. “understand the proceedings against the defendant” means that the defendant’s elementary mental process is such that the defendant has a reasonably rational comprehension of the proceedings.

History. (§ 22 ch 143 SLA 1982; am § 3 ch 62 SLA 1996; am § 2 ch 42 SLA 2013)

Revisor’s notes. —

Paragraph (2) was enacted as (4) and paragraph (4) was enacted as (5). Renumbered in 1996, at which time former paragraph (2) was renumbered as (3) and former paragraph (3) was renumbered as (5), alphabetizing the defined terms.

Effect of amendments. —

The 2013 amendment, effective September 1, 2013, in (5), substituted “intellectual and developmental disabilities that result in” for “mental retardation, which means a”.

Notes to Decisions

Quoted in

Jackson v. State, 890 P.2d 587 (Alaska Ct. App. 1995); Dorsey v. State, 480 P.3d 1211 (Alaska Ct. App. 2021).

Cited in

Pieniazek v. State, 394 P.3d 621 (Alaska Ct. App. 2017).

Chapter 50. Witnesses.

Collateral references. —

81 Am. Jur. 2d, Witnesses, § 1 et seq.

98 C.J.S., Witnesses, § 1 et seq.

Article 1. Uniform Act to Secure Attendance in Criminal Proceedings.

Notes to Decisions

Effect of article. —

For witnesses not in prison, this article provides a means by which prosecuting authorities from one state can obtain an order from a court in the state where the witness is found directing the witness to appear in court in the first state to testify. The state seeking his appearance must pay the witness a specified sum as a travel allowance and compensation for his time. Stores v. State, 625 P.2d 820 (Alaska 1980).

Cited in

Morton v. State, 684 P.2d 144 (Alaska Ct. App. 1984).

Sec. 12.50.010. Witness subpoenaed in this state to testify in another state.

  1. If a judge of a court of record in any state which by its laws has made provision for commanding persons within the state to attend and testify in this state certifies under the seal of the court that there is a criminal prosecution pending in the court, or that a grand jury investigation has commenced or is about to commence, that a person within this state is a material witness in that prosecution or grand jury investigation, and that the presence of that person will be required for a specified number of days, then, upon presentation of the certificate to a judge of a court of record in the judicial district in which the person is, the judge shall fix a time and place for a hearing and shall make an order directing the witness to appear at a time and place certain for the hearing.
  2. If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution or grand jury investigation in the other state, and that the laws of the state in which the prosecution is pending or grand jury investigation has commenced or is about to commence will give to the witness protection from arrest and the service of civil and criminal process, the judge shall issue a subpoena, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending or where a grand jury investigation has commenced or is about to commence at a time and place specified in the subpoena.  In any such hearing the certificate shall be prima facie evidence of all of the facts stated therein.
  3. If the certificate recommends that the witness be taken into immediate custody and delivered to an officer of the requesting state to assure attendance in the requesting state, the judge may, in lieu of notification of the hearing, direct that the witness be immediately brought before the judge for said hearing; and if the judge at the hearing is satisfied of the desirability of the custody and delivery, for which determination the certificate shall be prima facie proof of this desirability, the judge may, in lieu of issuing subpoena, order that the witness be immediately taken into custody and delivered to an officer of the requesting state.
  4. If the witness who is subpoenaed as provided in this section, after being paid or tendered by a properly authorized person a sum equivalent to the cost of air fare round trip passage on a certificated carrier or such prepaid passage and reasonable incidental travel allowance for going to and from airports plus $20 per day for each day that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the subpoena, the witness shall be punished in the manner provided for the punishment of a witness who disobeys a subpoena issued from a court of record in this state.

History. (§ 7.04 ch 34 SLA 1962)

Notes to Decisions

Constitutionality. —

Use and derivative use immunity is constitutionally infirm. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

This section impermissibly dilutes the protection art. I, § 9, of the Alaska Constitution. Problems of proof and ordinary human frailties combine to pose a potent threat to an individual compelled to testify. The state cannot meaningfully safeguard against nonevidentiary use of compelled testimony. State v. Gonzalez, 853 P.2d 526 (Alaska 1993).

Applied in

Wahl v. State, 441 P.3d 424 (Alaska 2019).

Cited in

Lewis v. State, 452 P.2d 892 (Alaska 1969); Commercial Union Cos. v. Smallwood, 550 P.2d 1261 (Alaska 1976).

Sec. 12.50.020. Witness from another state subpoenaed to testify in this state.

  1. If a person in a state which by its laws has made provision for commanding persons inside its borders to attend and testify in criminal prosecutions or grand jury investigations commenced or about to commence in this state as a material witness in a criminal action pending in a court of record of this state, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required.  The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure attendance in this state. This certificate shall be presented to a judge of a court of record in the county or judicial district in which the witness is found.  This order of a court in the other state delivering custody of a witness to an officer of this state shall be sufficient authority to an officer of this state to take the witness into custody and hold the witness until discharged by a court of this state.
  2. If the witness is subpoenaed to attend and testify in this state the witness shall be tendered a sum equivalent to the cost of air fare round trip passage on a certificated carrier or such prepaid passage and reasonable incidental travel allowance for going to and from airports plus $20 per day for each day that the witness is required to travel and attend as a witness.  A witness who has appeared in accordance with the provisions of the subpoena shall not be required to remain within the state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court.  If the witness, after coming into this state, fails without good cause to attend and testify as directed in the subpoena, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a subpoena issued from a court of record in this state.

History. (§ 7.05 ch 34 SLA 1962)

Notes to Decisions

Securing presence of witness in criminal case. —

This section specifies that, upon issuance of a certificate by a judge of this state, presence of a witness may be secured in a criminal case if the witness is located in a state which also adheres to the Uniform Act to Secure Attendance of Witnesses in Criminal Proceedings. Tarnef v. State, 492 P.2d 109 (Alaska 1971).

Sec. 12.50.030. Immunity of witness from arrest or service of process.

If a person comes into this state in obedience to a subpoena directing the person to attend and testify in this state, the person shall not, while in this state pursuant to the subpoena, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before entering this state under the subpoena.

History. (§ 7.06 ch 34 SLA 1962)

Notes to Decisions

Cited in

Morton v. State, 684 P.2d 144 (Alaska Ct. App. 1984).

Collateral references. —

98 C.J.S., Witnesses, § 14 et seq.

Sec. 12.50.040. Immunity of foreign witness passing through state from arrest or process.

If a person passes through this state while going to another state in obedience to a subpoena to attend and testify in that state or while returning therefrom, the person shall not, while so passing through this state, be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before entering this state under the subpoena.

History. (§ 7.07 ch 34 SLA 1962)

Sec. 12.50.050. Party seeking witness.

The right to obtain witnesses under AS 12.50.010 — 12.50.080 in criminal proceedings shall extend to the state or a defendant. Witness fees shall be paid by the party calling the witness, except as provided in Rule 17(b), Alaska Rules of Criminal Procedure. If the time estimate in the certificate of the requesting court is exceeded, the nonindigent defendant shall be required to tender additional per diem or post bond to insure payment of total witness fees.

History. (§ 7.09 ch 34 SLA 1962)

Sec. 12.50.060. Uniformity of interpretation.

AS 12.50.010 — 12.50.080 shall be so interpreted and construed as to effectuate the general purpose to make uniform the laws of the states which enact similar legislation.

History. (§ 7.08 ch 34 SLA 1962)

Sec. 12.50.070. Definitions.

In AS 12.50.010 — 12.50.080 ,

  1. “state” means a state, territory of the United States, and the District of Columbia;
  2. “subpoena” includes a summons in a state where a summons is used in lieu of subpoena, order, or other notice requiring the appearance of a witness; the word subpoena also includes a subpoena duces tecum;
  3. “witness” includes a person whose testimony is desired in a proceeding or investigation by a grand jury or in a criminal action, prosecution, or proceeding.

History. (§ 7.03 ch 34 SLA 1962)

Sec. 12.50.080. Short title.

AS 12.50.010 — 12.50.080 may be cited as the Uniform Act to Secure Attendance of Witnesses in Criminal Proceedings.

History. (§ 7.10 ch 34 SLA 1962)

Notes to Decisions

Cited in

Lewis v. State, 452 P.2d 892 (Alaska 1969).

Secs. 12.50.090 — 12.50.100. Material witnesses. [Repealed, § 2 ch 20 SLA 1966. For current law, see AS 12.30.050.]

For current law, see AS 12.30.050 .

For current law, see AS 12.30.050 .

Article 2. Witness Immunity.

Sec. 12.50.101. Immunity of witnesses.

  1. If a witness refuses, on the basis of the privilege against self-incrimination, to testify or provide other information in a criminal proceeding before or ancillary to a court or grand jury of this state, and a judge issues an order under (b) of this section, the witness may not refuse to comply with the order on the basis of the privilege against self-incrimination. If the witness fully complies with the order, the witness may not be prosecuted for an offense about which the witness is compelled to testify, except in a prosecution based on perjury, giving a false statement or otherwise knowingly providing false information, or hindering prosecution.
  2. In the case of an individual who has been or may be called to testify or provide other information in a criminal proceeding before or ancillary to a court or a grand jury of this state, a superior or district court for the judicial district in which the proceeding is or may be held shall issue, upon the application of the attorney general or the attorney general’s designee in accordance with (d) of this section, an order requiring the individual to give testimony or provide other information that the individual refuses to give or provide based on the privilege against self-incrimination.
  3. An order issued under (b) of this section is effective when communicated to the individual specified in the order.
  4. The attorney general or the attorney general’s designee may apply for an order under (b) of this section when, in the judgment of the attorney general or the attorney general’s designee,
    1. the testimony or other information may be necessary to the administration of criminal justice; and
    2. the individual who is the subject of the application has refused or is likely to refuse to testify or to provide other information on the basis of the privilege against self-incrimination.
  5. If a witness refuses, or there is reason to believe the witness will refuse, to testify or provide other information based on the privilege against self-incrimination, and if the attorney general or the attorney general’s designee has not applied for an order under (b) of this section, the court shall inform the witness of the right to be represented by an attorney, and that an attorney will be appointed for the witness if the witness qualifies for counsel under AS 18.85. The court shall recess the proceeding to allow the witness to consult with the attorney for the witness.
  6. If the attorney general or the attorney general’s designee declines to seek an order under (b) of this section after the witness has had an opportunity to consult with an attorney, and the witness continues to refuse to testify or provide other information, the court shall hold a hearing to determine the validity of the claim of privilege by the witness. The hearing shall be in camera.
  7. At the hearing under (f) of this section, the attorney for the witness, in the form of a proffer, shall describe the testimony or other information that the witness claims is privileged. The proffer must include a description of how the testimony or other information could connect the witness with a crime. The proffer is privileged and inadmissible for any other purpose. If the proffer establishes a factual basis that there is a real or substantial danger that the testimony or other information to be compelled would support a conviction or would furnish a link in the chain of evidence leading to conviction for a crime, the court may find that the witness has a valid claim of privilege.
  8. If the court finds that the witness has a valid claim of privilege, it shall advise an attorney designated by the attorney general of that finding and inform the attorney of the category or categories of offense to which the privilege applies: a higher-level felony, a lower-level felony, or a misdemeanor. If the designated attorney decides that granting immunity to the witness is appropriate, the designated attorney shall inform the prosecution of that decision, and shall deliver or cause to be delivered a letter to the witness, or an attorney for the witness, granting immunity to the witness. The designated attorney may not disclose the category of offense to anyone.
  9. In this section,
    1. “higher-level felony” means an unclassified or class A felony;
    2. “lower-level felony” means a class B or class C felony;
    3. “other information” means books, papers, documents, records, recordings, or other similar material;
    4. “proffer” means a written or oral statement by the attorney for the witness, stating the attorney’s good faith belief of the substance of the witness’s testimony or other information.

History. (§ 23 ch 143 SLA 1982; am §§ 20 — 22 ch 124 SLA 2004)

Cross references. —

Perjury — AS 11.56.200

Hindering prosecution — AS 11.56.770 , 11.56.780

Revisor’s notes. —

Subsections (e) - (h) were enacted as subsections (f) - (i). Relettered in 2004, at which time former subsection (e) was relettered as subsection (i).

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, rewrote the second sentence of subsection (a), added the definitions of “higher-level felony,”, “lower-level felony,” and “proffer” in subsection (i), and added subsections (e) through (h).

Editor’s notes. —

Section 32(d), ch. 124, SLA 2004, provides that the 2004 amendment of subsection (a) of this section and the 2004 enactment of subsections (e) - (h) of this section apply “to criminal proceedings for offenses committed before, on, or after July 1, 2004.”

Notes to Decisions

Constitutionality. —

This section violates the Alaska Constitution’s privilege against self-incrimination. State v. Gonzalez, 853 P.2d 526 (Alaska 1993) (decided prior to 2004 amendments).

Trial court did not abuse its discretion in ordering counts charging defendant with sexually abusing his daughter to be dismissed in the interest of justice after the state refused to grant use immunity to a critical witness whose proposed testimony was deemed to be of crucial exculpatory value. State v. Echols, 793 P.2d 1066 (Alaska Ct. App. 1990).

Refusal of immunized witness to testify. —

Immunized witness could not refuse to testify because a witness cannot assert the privilege against self-incrimination under Alaska Const. art. I, § 9 and U.S. Const. amend. 5 based on the possibility that the State will disbelieve the witness’s testimony and prosecute the witness for committing perjury during the immunized testimony. Dan v. Dan, 286 P.3d 772 (Alaska Ct. App. 2012).

Cited in

O'Leary v. Superior Court, Third Judicial Dist., 816 P.2d 163 (Alaska 1991); State v. Finley, 337 P.3d 527 (Alaska Ct. App. 2014).

Article 3. Temporary Detention and Identification of Persons.

Sec. 12.50.201. Temporary detention and identification of persons.

  1. A peace officer may temporarily detain a person under circumstances that give the officer reasonable suspicion that
    1. the person witnessed or was at or near the scene of the commission of a felony crime against a person under AS 11.41, arson under AS 11.46.400 or 11.46.410 , criminal mischief under AS 11.46.475 or 11.46.480 , or misconduct involving weapons under AS 11.61.190 or 11.61.195(a)(3) ;
    2. the person has information of material aid in the investigation of that crime; and
    3. the temporary detention of the person is reasonably necessary to obtain or verify the identification of the person, to obtain an account of the crime, to protect a crime victim from imminent harm, or for other exigent circumstances.
  2. A peace officer who temporarily detains a person under (a) of this section may
    1. detain the person only as long as reasonably necessary to accomplish the purposes of that subsection;
    2. take one or more photographs of the person, if photographs can be taken without unreasonably delaying the person or removing the person from the vicinity; and
    3. if the person does not provide valid government-issued photographic identification or other valid identification that the officer finds to be reliable to identify the person, or the officer has reasonable suspicion that the identification is not valid,
      1. serve a subpoena on the person to appear before the grand jury where the crime was committed; and
      2. take the person’s fingerprint impressions if
        1. the crime under investigation is murder, attempted murder, or misconduct involving weapons under AS 11.61.190 or 11.61.195(a)(3) ; and
        2. fingerprint impressions can be taken without unreasonably delaying the person or removing the person from the vicinity.
  3. A peace officer electing to serve a subpoena under (b) of this section may not require the person to sign the subpoena or another document. The officer or the subpoena must advise the person that failure to honor the subpoena may be punishable as criminal contempt of court under AS 09.50.010 . A person receiving a subpoena to testify under (b) of this section may request the district attorney to withdraw the subpoena if, before the grand jury proceeding for which the person has been served a subpoena to appear, the person provides the peace officer who served the subpoena or the lead investigator with valid government-issued photographic identification or other valid identification that the officer or lead investigator finds to be reliable to identify the person.
  4. Photographs or fingerprints taken under (b) of this section
    1. may be used for identification purposes only, and not for criminal investigative purposes unless it is determined that the person is suspected of committing a crime within the scope of the investigation; and
    2. must be destroyed upon the earlier of the following occurrences unless it is determined that the person is suspected of committing a crime within the scope of the investigation:
      1. the person has testified in a grand jury or court proceeding in connection with the matter under investigation; or
      2. completion of the prosecution of the crime being investigated.
  5. This section does not limit the authority of peace officers to investigate crimes, to collect evidence, to photograph crime scenes, evidence, or bystanders, to issue lawful court process, or to ensure the welfare of crime victims or other persons.
  6. A person who refuses or resists the taking of photographs or fingerprints under this section commits a class B misdemeanor, punishable as provided in AS 12.55, except that a sentence of imprisonment, if imposed, may not exceed 10 days.
  7. Notwithstanding (f) of this section, if the person establishes that the person does not have information of material aid in the investigation of the crime, it is within the discretion of the court to determine that this is a civil matter punishable by a civil fine of not more than $1,000.

History. (§ 2 ch 1 TSSLA 2006)

Legislative history reports. —

For governor’s transmittal letter for ch. 1, TSSLA 2006 (SB 3005), proposing to give police statutory authority temporarily to detain witnesses to crimes substantially as set out in this section, see 2006 Senate Journal 3679 — 3682.

Chapter 55. Sentencing and Probation.

Legislative history reports. —

For report on ch. 166, SLA 1978 (HB 661), see 1978 Senate Journal Supplement No. 47 (June 12, 1978).

Notes to Decisions

Constitutionality of presumptive sentencing provisions. —

The presumptive sentencing provisions, AS 12.55.125 — 12.55.175 , do not conflict with Alaska Const., art. I, § 12 because the legislature has the authority to reasonably restrict judicial discretion in order to accomplish the goal of eliminating unjustified sentencing disparity. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

The presumptive sentencing provisions contained in AS 12.55.125 — 12.55.175 are not an unconstitutional violation of the separation of powers doctrine or of Alaska Const., art. IV, § 1 as a legislative infringement on the power of the judiciary to sentence on the basis of the particular facts of the case and the nature of a particular offender because although the presumptive sentencing statutes do limit the discretion of a judge in imposing a sentence, they do not foreclose sentences of less than the presumptive sentence or the possibility of placing a person on probation. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982).

Applied in

Hornaday v. Rowland, 674 P.2d 1333 (Alaska 1983).

Collateral references. —

21 Am. Jur. 2d, Criminal Law, § 736 et seq., 588 to 631

21A Am. Jur. 2d, Criminal Law, § 844 et seq.

24 C.J.S. Criminal Law, § 1995 et seq.

Sec. 12.55.005. Declaration of purpose.

The purpose of this chapter is to provide the means for determining the appropriate sentence to be imposed upon conviction of an offense. The legislature finds that the elimination of unjustified disparity in sentences and the attainment of reasonable uniformity in sentences can best be achieved through a sentencing framework fixed by statute as provided in this chapter. In imposing sentence, the court shall consider

  1. the seriousness of the defendant’s present offense in relation to other offenses;
  2. the prior criminal history of the defendant and the likelihood of rehabilitation;
  3. the need to confine the defendant to prevent further harm to the public;
  4. the circumstances of the offense and the extent to which the offense harmed the victim or endangered the public safety or order;
  5. the effect of the sentence to be imposed in deterring the defendant or other members of society from future criminal conduct;
  6. the effect of the sentence to be imposed as a community condemnation of the criminal act and as a reaffirmation of societal norms; and
  7. the restoration of the victim and the community.

History. (§ 12 ch 166 SLA 1978; am § 1 ch 103 SLA 2000)

Cross references. —

Original Code Provision — None.

TD: VI, 18-22.

Notes to Decisions

Chaney criteria incorporated in section. —

The criteria of State v. Chaney, 477 P.2d 441 (Alaska 1970) have essentially been incorporated into the criminal code as this section. Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987).

Legislative intent reflected. —

The presumptive sentencing provisions contained in AS 12.55.125 and 12.55.155 reflect the legislature’s intent to assure predictability and uniformity in sentencing by the use of fixed and relatively inflexible sentences, statutorily prescribed, for persons convicted of second or subsequent felony offenses. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

The comprehensive and highly regimented provisions of the presumptive sentencing statute were enacted to assure that sentencing would become a predictable process and that disparity in sentencing between similarly situated offenders would be eliminated. Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982).

When the legislature enacted Alaska’s presumptive sentencing laws, the legislature declared that its primary goals were to attain reasonable uniformity in sentences and to eliminate unjustified sentencing disparity. Brown v. State, 4 P.3d 961 (Alaska Ct. App. 2000).

Crime victim did not have standing to appeal her husband’s sentence for domestic violence because crime victims are not parties to the criminal prosecution of the perpetrator; nor did the legislature intend to have crime victims file appeals whenever they are dissatisfied with a judge’s weighing of their interests. Cooper v. Dist. Court, 133 P.3d 692 (Alaska Ct. App. 2006).

Reasonable uniformity in sentences required. —

The principle of reasonable sentencing uniformity requires a sentencing judge who decides that an offender deserves a sentence which is significantly different from sentences previously given to similarly situated offenders to expressly find some legitimate basis for the difference — some basis related to “legally relevant sentencing criteria.” That basis should be spelled out on the sentencing record, so that the defendant and a reviewing court can understand the reasons for the disparity. Ross v. State, 836 P.2d 378 (Alaska Ct. App. 1992).

Purpose of benchmark range. —

Benchmarks in sentencing range are intended to help courts avoid unjustified disparity in sentencing by forcing judges to articulate reasons for imposing atypical sentences and to foster the goal of better-informed appellate review of sentencing decisions. Brown v. State, 973 P.2d 1158 (Alaska Ct. App. 1999).

Deviation from sentencing benchmarks. —

Appellate courts should not place inflexible restrictions on a sentencing judge’s authority based on pre-established criteria. Instead, sentencing benchmarks serve only as guidelines, and that any sentencing decision ultimately must be justified on the particular facts of a defendant’s offense and background, evaluated in light of the sentencing criteria and the range of sentences authorized by the legislature. Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010).

Where defendant was charged with and pled guilty to 23 offenses—including second-degree murder, first-degree assault, vehicle theft, and driving under the influence—after stealing a car and becoming involved in a high-speed chase, the trial court’s imposition of a 66-year sentence was not inappropriate given the totality of defendant’s conduct and his lengthy criminal history. Defendant’s conduct demonstrated a level of blameworthiness far exceeding the conduct of the typical defendants in vehicular homicide cases. Felber v. State, 243 P.3d 1007 (Alaska Ct. App. 2010).

Court of appeals erred in ruling that the parole restriction made part of defendant’s sentence was excessive because it was not clearly mistaken; the sentencing court considered the relevant factors in fashioning its overall sentence and entered specific findings that the parole restriction was necessary to protect defendant’s children and society at large for an extended period of time, and was appropriate due to the severity of the case and defendant’s lack of remorse and concern. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Criteria enumerated in this section must be given primary significance in the sentencing of first offenders. Kimbrell v. State, 647 P.2d 618 (Alaska Ct. App. 1982).

The “clearly mistaken” test implies a permissible range of reasonable sentences which a reviewing court, after an independent review of the record, will not modify. This “range of reasonableness” should be determined not by imposition of an artificial ceiling which limits a large class of offenses to the lower end of the sentencing spectrum, but, rather, by an examination of the particular facts of the individual case in light of the total range of sentences authorized by the legislature for the particular offense. State v. Wentz, 805 P.2d 962 (Alaska 1991).

Mandatory consideration of criteria. —

The court must base any modification or reduction on the criteria set forth in this section. State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002).

Defendant’s one-year sentence for throwing urine on a correctional officer was not excessive or mistaken because, while the sentence was imposed primarily to deter other inmates from similar conduct by threating criminal sanctions, the judge was aware of and addressed the statutory criteria, including defendant’s serious criminal history, his lengthy sentence, his many disciplinary violations, and the judge’s comments indicated that he had very little hope for defendant’s rehabilitation. Carney v. State, — P.3d — (Alaska Ct. App. Jan. 29, 2014) (memorandum decision).

Defendant’s composite sentence was not excessive because, given the conduct underlying defendant’s original offenses and defendant’s frequent and serious violations of probation; the sentence was not clearly beyond that which a court might have imposed on an offender who rejected further probation and asked for a sentence comprised solely of active imprisonment. Logan v. State, — P.3d — (Alaska Ct. App. Sept. 24, 2014) (memorandum decision).

Remand for further sentencing findings was required because (1) the court did not explicitly find public protection or other sentencing goals in AS 12.55.005 required a sentence greater than the 10-year maximum for first-degree burglary, and (2) the court mistakenly stated defendant had six prior felony convictions when defendant had only four. Beaty v. State, — P.3d — (Alaska Ct. App. Sept. 20, 2017).

Adjustment of presumptive sentence. —

When applied to the adjustment of a presumptive sentence, the State v. Chaney, 477 P.2d 441 (Alaska 1970), analysis, as stated in this section, should not be broadened into a consideration of all circumstances of the offense, as if the sentence were being imposed anew, without regard for the presumptive term. Instead, consideration of the Chaney criteria should focus specifically on the aggravating and mitigating conduct in the particular case. The presumptive term should remain as the starting point of the analysis, and the Chaney criteria should be employed for the limited purpose of determining the extent to which the totality of the aggravating and mitigating factors will justify deviation from the presumptive term. Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982), modified, 665 P.2d 30 (Alaska Ct. App. 1983).

Trial court could properly conclude that the facts of the case and defendant’s background required it to sentence him to a term of eight years’ imprisonment with four years suspended for the interference with official proceedings conviction. Sentence was not excessive where defendant, a first-felony offender, had a record of assaultive behavior, where the offense was aggravated, where alcohol was involved, and where the court was concerned for the safety of the community. Bailey v. State, — P.3d — (Alaska Ct. App. Sept. 30, 2009) (memorandum decision).

Based on evidence showing multiple acts of aggravated indecent exposure to a minor, and failure to appear for over 15 years, conviction on four misdemeanor counts was proper. While defendant’s composite sentence could not exceed one year under the Neal-Mutschler rule, the sentencing court was permitted to impose a composite sentence of one and a half years based upon a consideration of the factors set forth in this section; defendant’s offenses were among the most serious, his failure to appear prolonged the criminal prosecution, and he caused the victim to suffer emotional problems. Phelps v. State, 236 P.3d 381 (Alaska Ct. App. 2010).

After defendants requested that a probation term be terminated and that they simply be sentenced to an active prison term, sentencing judges did not err in imposing less than the full term that was previously suspended after considering Chaney sentencing criteria in applying this section; a plea bargain did not require defendants to give up the right to reject further probation. State v. Henry, 240 P.3d 846 (Alaska Ct. App. 2010).

Aggravating factors were properly imposed to sentence defendant because (1) the record was clear that the court found only the AS 12.55.005(c)(15) and (21) factors, and (2) whether three prior convictions should have been counted as one made no difference as it did not affect the judge's sentencing authority to sentence defendant as a third felony offender. Beaty v. State, — P.3d — (Alaska Ct. App. Sept. 20, 2017).

Length of suspended sentence held excessive. —

72-year suspended portion of defendant’s sentence was excessive because the sentencing court found that defendant’s conduct was extremely typical for possession of child pornography, it found reasons to be cautiously optimistic about his potential for rehabilitation, it did not find that 72 years was the appropriate period of time needed to motivate defendant or to protect the public if he were to violate any of the terms of his probation, and it made no findings to justify such a lengthy suspended term based on the individual circumstances of defendant’s case. Smith v. State, 349 P.3d 1087 (Alaska Ct. App. 2015).

Impact of statutory aggravator on sentencing and probation revocation. —

Having found a statutory aggravator, a sentencing judge must weigh that factor in light of the sentencing criteria codified in this section to determine whether the presence of the aggravator shows a defendant to be an atypically serious offender or shows his crime to be more serious than a typical instance of the charged crime. Surrells v. State, 151 P.3d 483 (Alaska Ct. App. 2006).

Nature of offense is relevant factor in sentencing. —

Throughout the supreme court’s review of sentences, the degree of physical or psychological violence involved in the offense has been an important factor. Kelly v. State, 622 P.2d 432 (Alaska 1981).

Tailoring sentence to fit crime committed in the specific case is a central tenet of the sentencing provisions contained in the Revised Alaska Criminal Code. Maal v. State, 670 P.2d 708 (Alaska Ct. App. 1983).

Plea agreement. —

Restriction on defendant’s parole eligibility was not clearly mistaken because his plea agreement left the terms of the sentence to the court, he did not seek to rescind the agreement on the basis that the restriction was outside its scope, and the superior court considered the statutory factors as they related to defendant’s dangerousness, community condemnation, general and specific deterrence, and that, without the restriction, the sentence would be too lenient. Dixiano v. State, — P.3d — (Alaska Ct. App. Feb. 5, 2014) (memorandum decision).

Second-degree murder. —

The benchmark sentencing range established in Page v. State, 657 P.2d 850 (Alaska Ct. App. 1983), governs sentencing in second-degree murder cases. Brown v. State, 973 P.2d 1158 (Alaska Ct. App. 1999).

Trial judge did not err in sentencing defendant to 40 years for second-degree murder under AS 11.41.110(a)(2) and AS 12.55.125(b) , the jury was not required to decide whether defendant’s sentence should exceed the Page benchmark range, and defendant’s prior history under this section and repeated perjury were sufficient reasons to exceed the range. Carlson v. State, 128 P.3d 197 (Alaska Ct. App.), cert. denied, 549 U.S. 966, 127 S. Ct. 415, 166 L. Ed. 2d 294 (U.S. 2006).

Defendant's composite sentence of 32 years for two counts of second-degree murder based on vehicular homicide was remanded to the trial court for reconsideration because the trial court erred by concluding that at 20- to 30-year benchmark sentencing range applied to first felony offenders convicted of second-degree murder arising from a vehicular homicide, as the Page benchmark range applied only to second-degree murders that arose from intentional assaults. The trial court also erred by concluding that defendant's sentence should be increased because his conduct endangered three or more people and it relied on an improper interpretation of community condemnation that incorporated raw emotion and notions of retribution. Graham v. State, 440 P.3d 309 (Alaska Ct. App. 2019).

Lesser prior sentence not limit on sentencing discretion. —

In reviewing a sentence of 25 years imprisonment with seven years suspended (18 years to serve) for a vehicular homicide involving three deaths, a sentence higher than any other that had been affirmed on appeal in Alaska, the fact that lesser sentences had been affirmed for such offense did not mean that they constituted the limit of sentencing discretion. Pusich v. State, 907 P.2d 29 (Alaska Ct. App. 1995).

Sentencing of “worst offender.” —

A “worst offender” designation, standing alone, permits imposition of the maximum term for the single most serious offense. The designation does not, however, automatically permit consecutive sentences exceeding the maximum for the single most serious crime. In order to impose such a sentence, the court must actually find, as a matter of fact, that the defendant will continue to pose a danger to the community during the extended term and that his continued isolation is actually necessary. Such a finding does not necessarily justify pyramiding consecutive maximum sentences; rather, such a finding permits only an incrementally more severe sentence based on the actual need for protection of the public under the totality of the circumstances of the prosecution’s case. Hancock v. State, 741 P.2d 1210 (Alaska Ct. App. 1987).

Defendant had a colorable claim that his 99-year sentence for first-degree murder was excessive where he had no significant adult criminal record, did not appear to have a juvenile record, and appeared to have unaddressed mental health issues; defendant would have to show some reason to believe that his offense was mitigated or that his background was atypically favorable. Johnson v. State, 77 P.3d 11 (Alaska Ct. App. 2003).

Sentencing for extended term for deterrence and rehabilitation. —

In order to make the determination that a defendant requires a period in excess of 15 years for deterrence and rehabilitation, it is imperative that the trial court compare his background, experience, and offenses with those of others sentenced to extended terms, disregarding eligibility for parole. Hancock v. State, 741 P.2d 1210 (Alaska Ct. App. 1987).

Sentencing for extended term to protect the public. —

Where a sentencing judge imposes consecutive sentences totalling more than the maximum sentence for a defendant’s most serious offense, the judge must expressly find that the total sentence is necessary to protect the public; the judge has the authority to protect the public from the commission of property crimes as well as from violent crime. Vandergriff v. State, 125 P.3d 360 (Alaska Ct. App. 2005).

Statutory maximum sentence. —

Because defendant was a third felony offender, the high end of the presumptive sentencing ranges he faced by virtue of his convictions was the same as the maximum statutory penalties for those crimes. Thus, the trial court was authorized to impose the statutory maximum sentence for defendant's burglary and assault convictions without finding any aggravating factors. Beaty v. State, — P.3d — (Alaska Ct. App. Sept. 20, 2017).

Emphasis on isolation in sentencing. —

Based on the trial judge’s discretion under the State v. Chaney (477 P.2d 441 (Alaska 1970)) criteria and the defendant’s status as a repeat offender and a worst offender in his class, the original sentence of seven years’ imprisonment, with five and one-half years suspended, for 14 fish and game violations was reinstated; the sentencing judge specifically emphasized the Chaney factor of isolation based on the defendant’s extensive record of flagrant fish and game violations. State v. Graybill, 695 P.2d 725 (Alaska 1985).

Factors considered provided reasonable basis. —

Where defendant served one year of his three-year term of imprisonment on an attempted second-degree sexual abuse conviction, revocation of his probation and imposition of the remaining two years imprisonment was proper, as his conduct on probation provided reasonable basis for sentencing judge to be pessimistic about defendant’s prospects for rehabilitation. Oyoumick v. State, 185 P.3d 771 (Alaska Ct. App. 2008).

In a murder case, defendant’s 106 year sentence was proper where his criminal history stretched back to 1980, and he was on felony probation at the time of the murder. Defendant’s previous probation and parole supervision had done nothing to deter him from engaging in further criminal conduct, and similar measures were unlikely to deter him in the future. Christian v. State, 276 P.3d 479 (Alaska Ct. App. 2012).

Trial judge properly sentenced defendant to a sentence above the low end of the applicable presumptive range because defendant’s blood alcohol level was substantially above the legal limit, the driver of the vehicle that defendant rear-ended suffered a broken neck, defendant tampered with evidence when he prevailed on a bystander to remove the beer from his vehicle and hide it, and the sentencing judge was concerned about defendant’s potential for rehabilitation. Stacks v. State, — P.3d — (Alaska Ct. App. Feb. 26, 2014) (memorandum decision).

Not all factors will be relevant to every parole eligibility determination, and the most relevant factors often will be public safety and potential for rehabilitation; a sentencing court must consider all of the statutory factors, determine which are relevant to the case, and support its overall sentence, including parole eligibility restrictions, with expressly articulated reasons backed by substantial evidence. State v. Korkow, 314 P.3d 560 (Alaska 2013).

In sentencing the defendant, the court carefully considered the seriousness of the assault on the victim, its impact on her, and defendant’s criminal history. The judge evaluated possible probation conditions and imposed those addressing alcohol treatment, domestic violence, and anger management. Tracey v. State, — P.3d — (Alaska Ct. App. Dec. 26, 2013) (memorandum decision).

Sentence imposed upon defendant for attempted medical assistance fraud, was within the permissible range of sentences that a reasonable judge would impose under the circumstances and was not clearly mistaken; the sentencing judge took into account defendant's lack of criminal history, her prospects for rehabilitation, and her remorse, but concluded that they were outweighed by the other sentencing criteria. Francisco v. State, — P.3d — (Alaska Ct. App. Nov. 16, 2016) (memorandum decision).

Defendant was required to serve one year of his previously suspended jail time because he willfully failed to comply with his sex offender treatment programs on three separate occasions, and, although the court did not expressly address the statutory sentencing criteria individually, it was clear that the court focused on defendant's failure to pursue rehabilitative efforts in a meaningful way, and the resulting danger that defendant, because he was untreated, would re-offend. Tanner v. State, — P.3d — (Alaska Ct. App. Sept. 21, 2016).

Sentence for manslaughter was not excessive because the sentencing court recognized the extreme recklessness of defendant's conduct when defendant fired a handgun while intoxicated, was concerned about defendant's admitted history of recklessly handling loaded firearms while intoxicated, found a need to express the community's condemnation and to try to achieve general deterrence, found that defendant's conduct was so reckless that it bordered on intentional, and noted that it was not convinced by defendant's explanation of what occurred. Degenstein v. State, — P.3d — (Alaska Ct. App. July 31, 2019).

Defendant's composite sentence was not excessive when defendant pleaded guilty to second-degree assault and misdemeanor assault for assaulting defendant's paramour, the paramour's minor child, an adult, and a police officer because the court considered aggravating factors—defendant's conduct manifested deliberate cruelty, defendant knew or should have known that the victim was particularly vulnerable, and defendant's conduct was among the most serious included in the definition of second-degree assault—and defendant's rehabilitative potential. Van Kapotak v. State, — P.3d — (Alaska Ct. App. June 26, 2019).

Defendant's composite sentence was not excessive when defendant pleaded guilty to second-degree assault and misdemeanor assault for assaulting defendant's paramour, the paramour's minor child, an adult, and a police officer because the court considered the appropriate aggravating factors and defendant's rehabilitative potential as did not have a lengthy criminal record, was intelligent, and had the support of family and friends. Van Kapotak v. State, — P.3d — (Alaska Ct. App. June 26, 2019).

Superior court properly convicted defendant, following a jury trial, of second-degree sexual assault for vaginally penetrating his cousin (the victim) while she was unconscious because the evidence established that the victim was incapacitated and that defendant knew that she was incapacitated—she had four to six shots of whiskey, did not remember lying down in the bed in which she woke up, did not remember the sexual assault, and never would have consciously consented to have sex with defendant—defendant failed to explain how an error in the timing of the admission of the text messages prejudiced him, and the court engaged in a thorough review of the statutory criteria and explained in detail the reasons it imposed the sentence it did. Williams v. State, 486 P.3d 1134 (Alaska Ct. App. 2021).

Relevant factors considered.—

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 a driving while license revoked conviction. His composite sentence of 7 1/2 years to serve was not clearly mistaken because 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. Also, 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).

The relevant factors were applied when sentencing defendant, and while the judge did not specifically mention the word rehabilitation, many of his comments were directed to this sentencing factor; the judge concluded that defendant could not be rehabilitated on probation given his secretiveness and unwillingness to engage in meaningful conversations with his probation officer or the sex offender clinician, and thus defendant’s sentence was not clearly mistaken. Ripplinger v. State, — P.3d — (Alaska Ct. App. Sept. 14, 2016).

Sentencing factors must not be simply recited. —

It is insufficient for the trial judge to simply recite the sentencing factors set forth in State v. Chaney and the statute in list form without further discussion, as the judge did here; the judge did not reveal whether or not he took defendant's 81-month federal sentence into account when he imposed a consecutive four-year sentence, largely for the same conduct. Davis v. State, — P.3d — (Alaska Ct. App. Nov. 21, 2018).

Restricting discretionary parole. —

Specific factors govern the sentencing court’s authority under AS 12.55.115 to restrict discretionary parole as part of a sentence of imprisonment; the statutory language is clear and uncontradicted by any legislative history, a sentencing court must consider all the enumerated criteria in the statute when restricting discretionary parole as a part of a sentence, not just public protection and the defendant’s reformation. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Role of appellate court in review of sentencing. —

A benchmark range is but a starting point for sentencing analysis, and any sound reason can justify a departure from the benchmark range; however, when the record fails to support a sentencing judge’s offered justifications for departing from a benchmark range, an appellate court should direct the sentencing judge to impose a sentence within the benchmark range. Brown v. State, 4 P.3d 961 (Alaska Ct. App. 2000).

Applied in

Hartley v. State, 653 P.2d 1052 (Alaska Ct. App. 1982); Tazruk v. State, 655 P.2d 788 (Alaska Ct. App. 1982); Peetook v. State, 655 P.2d 1308 (Alaska Ct. App. 1982); Weston v. State, 656 P.2d 1186 (Alaska Ct. App. 1982); Graybill v. State, 672 P.2d 138 (Alaska Ct. App. 1983); Clemans v. State, 680 P.2d 1179 (Alaska Ct. App. 1984); State v. Andrews, 707 P.2d 900 (Alaska Ct. App. 1985); Bland v. State, 846 P.2d 815 (Alaska Ct. App. 1993); Haire v. State, 877 P.2d 1302 (Alaska Ct. App. 1994); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000).

Quoted in

Kelly v. State, 663 P.2d 967 (Alaska Ct. App. 1983); Hancock v. State, 706 P.2d 1164 (Alaska Ct. App. 1985); Aveoganna v. State, 757 P.2d 75 (Alaska Ct. App. 1988); Williams v. State, 809 P.2d 931 (Alaska Ct. App. 1991).

Stated in

Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Brown v. State, 12 P.3d 201 (Alaska Ct. App. 2000); Hunt v. State, 18 P.3d 69 (Alaska Ct. App. 2001).

Cited in

Nukapigak v. State, 645 P.2d 215 (Alaska Ct. App. 1982); Howard v. State, 664 P.2d 603 (Alaska Ct. App. 1983); Martin v. State, 664 P.2d 612 (Alaska Ct. App. 1983); Heathcock v. State, 670 P.2d 1155 (Alaska Ct. App. 1983); Pickens v. State, 675 P.2d 665 (Alaska Ct. App. 1984); Crouse v. State, 736 P.2d 783 (Alaska Ct. App. 1987); Kirby v. State, 748 P.2d 757 (Alaska Ct. App. 1987); State v. Ambrose, 758 P.2d 639 (Alaska Ct. App. 1988); Williams v. State, 800 P.2d 955 (Alaska Ct. App. 1990); Lewis v. State, 845 P.2d 447 (Alaska Ct. App. 1993); State v. McPherson, 855 P.2d 420 (Alaska 1993); Ross v. State, 877 P.2d 777 (Alaska Ct. App. 1994); State v. McKinney, 946 P.2d 456 (Alaska Ct. App. 1997); Morrison v. State, 7 P.3d 955 (Alaska Ct. App. 2000); Foley v. State, 9 P.3d 1038 (Alaska Ct. App. 2000); Buckwalter v. State, 23 P.3d 81 (Alaska Ct. App. 2001); State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001); Hamilton v. State, 59 P.3d 760 (Alaska Ct. App. 2002); Allen v. Municipality of Anchorage, 168 P.3d 890 (Alaska Ct. App. 2007); Tsen v. State, 176 P.3d 1 (Alaska Ct. App. 2008); Baker v. State, 182 P.3d 655 (Alaska Ct. App. 2008); Doe v. State, 189 P.3d 999 (Alaska 2008); Gray v. State, 267 P.3d 667 (Alaska Ct. App. 2011); Johnson v. State, 334 P.3d 701 (Alaska Ct. App. 2014); Ghosh v. State, 400 P.3d 147 (Alaska Ct. App. 2017); Mendenhall v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2018); Pisano v. State, — P.3d — (Alaska Ct. App. May 24, 2018)Swartz v. Municipality of Anchorage, 436 P.3d 1104 (Alaska Ct. App. 2019); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019); Oviok v. State, — P.3d — (Alaska Ct. App. Oct. 14, 2020); Williams v. State, 480 P.3d 95 (Alaska Ct. App. 2021); Galindo v. State, 481 P.3d 686 (Alaska Ct. App. 2021); Collins v. State, 494 P.3d 60 (Alaska Ct. App. 2021).

Sec. 12.55.010. Imprisonment on judgment for payment of fine. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 12.55.035(a).]

Sec. 12.55.011. Victim and community involvement in sentencing.

  1. A court, when considering the sentence to be imposed under this chapter for an offense other than a violation of AS 11.41, AS 11.46.400 , or a crime involving domestic violence, may permit the victim and the offender to submit a sentence for the court’s review based upon a negotiated agreement between the victim and the offender, or between the offender and the community if there is no victim. The court may, with the consent of the victim and the offender, impose the sentence that has been determined by the negotiated agreement between the offender and the victim, or between the offender and the community if there is no victim, if that sentence otherwise complies with this chapter and accomplishes the goals of restoration of the victim and the community and rehabilitation of the offender. Before accepting a negotiated agreement, the court shall determine that the victim has not been intimidated or coerced in reaching the agreement. In this section, “community” has the meaning determined by the court.
  2. At the time of sentencing, the court shall, if practicable, provide the victim with a form that
    1. provides information on
      1. whom the victim should contact if the victim has questions about the sentence or release of the offender;
      2. the potential for release of the offender on furlough, probation, or parole or for good time credit; and
    2. allows the victim to update the victim’s contact information with the court, the Victim Information and Notification Everyday service, and the Department of Corrections.

History. (§ 2 ch 103 SLA 2000; am § 65 ch 36 SLA 2016; am § 8 ch 13 SLA 2017)

Effect of amendments. —

The 2016 amendment, effective October 9, 2016, added (b).

The 2017 amendment, effective June 20, 2017, in (b), in the introductory language, inserted “, if practicable,” following “the court shall”.

Sec. 12.55.015. Authorized sentences; forfeiture.

  1. Except as limited by AS 12.55.125 — 12.55.175 , the court, in imposing sentence on a defendant convicted of an offense, may singly or in combination
    1. impose a fine when authorized by law and as provided in AS 12.55.035 ;
    2. order the defendant to be placed on probation under conditions specified by the court that may include provision for active supervision;
    3. impose a definite term of periodic imprisonment, but only if an employment obligation of the defendant preexisted sentencing and the defendant receives a composite sentence of not more than two years to serve;
    4. impose a definite term of continuous imprisonment;
    5. order the defendant to make restitution under AS 12.55.045 ;
    6. order the defendant to carry out a continuous or periodic program of community work under AS 12.55.055 ;
    7. suspend execution of all or a portion of the sentence imposed under AS 12.55.080 ;
    8. suspend entry of judgment under AS 12.55.078 or suspend imposition of sentence under AS 12.55.085 ;
    9. order the forfeiture to the commissioner of public safety or a municipal law enforcement agency of a deadly weapon that was in the actual possession of or used by the defendant during the commission of an offense described in AS 11.41, AS 11.46, AS 11.56, or AS 11.61;
    10. order the defendant, while incarcerated, to participate in or comply with the treatment plan of a rehabilitation program that is related to the defendant’s offense or to the defendant’s rehabilitation if the program is made available to the defendant by the Department of Corrections;
    11. order the forfeiture to the state of a motor vehicle, weapon, electronic communication device, or money or other valuables, used in or obtained through an offense that was committed for the benefit of, at the direction of, or in association with a criminal street gang;
    12. order the defendant to have no contact, either directly or indirectly, with a victim or witness of the offense until the defendant is unconditionally discharged;
    13. order the defendant to refrain from consuming alcoholic beverages for a period of time.
  2. The court, in exercising sentencing discretion as provided in this chapter, shall impose a sentence involving imprisonment when
    1. the defendant deserves to be imprisoned, considering the seriousness of the present offense and the defendant’s prior criminal history, and imprisonment is equitable considering sentences imposed for other offenses and other defendants under similar circumstances;
    2. imprisonment is necessary to protect the public from further harm by the defendant; or
    3. sentences of lesser severity have been repeatedly imposed for substantially similar offenses in the past and have proven ineffective in deterring the defendant from further criminal conduct.
  3. In addition to the penalties authorized by this section, the court may invoke any authority conferred by law to order a forfeiture of property, suspend or revoke a license, remove a person from office, or impose any other civil penalty. When forfeiting property under this subsection, a court may award to a municipal law enforcement agency that participated in the arrest or conviction of the defendant, the seizure of property, or the identification of property for seizure, (1) the property if the property is worth $5,000 or less and is not money or some other thing that is divisible, or (2) up to 75 percent of the property or the value of the property if the property is worth more than $5,000 or is money or some other thing that is divisible. In determining the percentage a municipal law enforcement agency may receive under this subsection, the court shall consider the municipal law enforcement agency’s total involvement in the case relative to the involvement of the state.
  4. [Repealed, § 1 ch 188 SLA 1990.]
  5. If the defendant is ordered to serve a definite term of imprisonment, the court may recommend that the defendant serve all or part of the term
    1. in a correctional restitution center;
    2. by electronic monitoring.
  6. Notwithstanding (a) of this section, the court shall order the forfeiture to the commissioner of public safety or a municipal law enforcement agency of a deadly weapon that was in the actual possession of or used by the defendant during the commission of a crime involving domestic violence.
  7. Unless a defendant is ineligible for a deduction under AS 33.20, when a defendant is sentenced to a term of imprisonment of two years or more, the sentence consists of two parts: (1) a minimum term of imprisonment that is equal to not less than two-thirds of the total term of imprisonment; and (2) a maximum term of supervised release on mandatory parole that is equal to not more than one-third of the total term of imprisonment; the amount of time that the inmate actually serves in imprisonment and on supervised release is subject to the provisions of AS 33.20.010 — 33.20.060 .
  8. In addition to penalties authorized by this section, the court shall order a person convicted of an offense requiring the state to collect a blood sample, oral sample, or both, for the deoxyribonucleic acid identification registration system under AS 44.41.035 to submit to the collection of
    1. the sample or samples when requested by a health care professional acting on behalf of the state to provide the sample or samples; or
    2. an oral sample when requested by a juvenile or adult correctional, probation, or parole officer, or a peace officer.
  9. In addition to penalties authorized by this section, the court may order a defendant convicted of a violation of AS 11.41.410 or 11.41.434 where the victim of the offense was under 13 years of age to be subject to electronic monitoring up to the maximum length of probation on the person’s release from a correctional facility.
  10. Nothing in (a)(13) of this section limits or restricts the authority of a court to order a person to refrain from the consumption of alcohol as a condition of sentence or probation.
  11. In making a determination under (a)(12) of this section for a defendant convicted of a crime involving a sex offense as defined in AS 12.63.100 or a crime involving domestic violence as defined in AS 18.66.990 , there is a presumption that, unless the court finds on the record that contact between a defendant and the victim of the offense is necessary, the court shall order the defendant to have no contact, either directly or indirectly, with the victim until the defendant is unconditionally discharged.
  12. In this section “deadly weapon” has the meaning given in AS 11.81.900 .

History. (§ 12 ch 166 SLA 1978; am § 37 ch 102 SLA 1980; am § 3 ch 45 SLA 1982; am § 3 ch 72 SLA 1985; am §§ 2, 3 ch 169 SLA 1988; am §§ 1, 12 ch 188 SLA 1990; am § 1 ch 79 SLA 1994; am § 7 ch 60 SLA 1996; am § 12 ch 64 SLA 1996; am §§ 5, 6 ch 129 SLA 1996; am § 2 ch 37 SLA 1997; am § 6 ch 86 SLA 1998; am § 5 ch 95 SLA 1998; am § 3 ch 116 SLA 1998; am § 2 ch 44 SLA 2000; am § 3 ch 2 SLA 2005; am § 2 ch 42 SLA 2008; am § 4 ch 33 SLA 2009; am §§ 17, 18 ch 19 SLA 2010; am § 9 ch 13 SLA 2017; am § 62 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection (f) was enacted as (g). Relettered in 1996, at which time former (f) was relettered as (g). Subsection (g) was enacted as (h) in 1997 and subsection (h) was enacted as (i) in 1998. Both were relettered in 1998, at which time former subsection (g) (relettered from (f) in 1996) was relettered as (i). Subsection (i) was enacted as subsection (j); relettered in 2008, at which time former subsection (i) was relettered as (j), then relettered as (k) [now ( l )] in 2010; subsection (j) was enacted as (k) and relettered in 2010.

Subsection (k) was enacted as ( l ). Relettered in 2019, at which time former (k) was relettered as ( l ).

Effect of amendments. —

The 2009 amendment, effective September 14, 2009, repealed (a)(1)(B).

The 2010 amendment, effective July 1, 2010, in (a), deleted the (1)(A) and (1)(B) designations, added (a)(13); added (k) (now (j)).

The 2017 amendment, effective June 20, 2017, in (a)(8), inserted “entry of judgment under AS 12.55.078 or suspend” near the beginning.

The 2019 amendment, effective July 9, 2019, added ( l ) [now (k)].

Editor's notes. —

Section 15, ch. 95, SLA 1998 provides that the 1998 enactment of subsection (h) applies “to offenses committed before, on, or after September 10, 1998.”

Section 6(b), ch. 42, SLA 2008 provides that (j) of this section, relettered as (i), “applies to persons convicted of offenses on or after January 1, 2009.”

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 addition of ( l ) [now (k)] of this section applies “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Legislative history reports. —

For report on ch. 102, SLA 1980 (HCS CSSB 511), see 1980 Senate Journal Supplement, No. 44, (May 29, 1980) or 1980 House Journal Supplement, No. 79, (May 29, 1980).

Notes to Decisions

Paragraph (a)(10) not unconstitutionally vague. —

The language of paragraph (a)(10) which allows a court to order a defendant to participate in and comply with a treatment program is not unconstitutionally vague. Williams v. State, 924 P.2d 104 (Alaska Ct. App. 1996).

Sentence after plea of no contest. —

Defendant’s no contest plea to attempted first-degree abuse of a minor conclusively established his guilt; therefore, the sentencing judge court had a reasoned basis for ordering him to undergo sex offender treatment while in prison. Scott v. State, 928 P.2d 1234 (Alaska Ct. App. 1996).

Restricting discretionary parole. —

When imposing a discretionary parole eligibility restriction beyond the statutory minimum for any sentence, a sentencing court may consider whether the parole board will at a later date be better able to assess the defendant’s prospects for successful parole; however, there is no legal presumption against a restriction beyond the statutory minimum set by AS 33.16.090(b)(1) . State v. Korkow, 314 P.3d 560 (Alaska 2013).

The factors contained in AS 12.55.005 govern the sentencing court’s authority to restrict discretionary parole as part of a sentence of imprisonment; because the statutory language is clear and uncontradicted by any legislative history, a sentencing court must consider all the enumerated criteria in AS 12.55.005 when restricting discretionary parole as a part of a sentence, not just public protection and the defendant’s reformation. State v. Korkow, 314 P.3d 560 (Alaska 2013).

There is no authority which would sanction expansion of superior court’s jurisdiction to pass sentence into a realm of review and modification which is statutorily vested in either the supreme court or the executive branch of government. Therefore, the superior court lacks jurisdiction to review its own sentence, after it has entered a judgment on the matter, more than 60 days after it has imposed sentence. Davenport v. State, 543 P.2d 1204 (Alaska 1975); Szeratics v. State, 572 P.2d 63 (Alaska 1977).

Modification of probation. —

A court may modify probation to the defendant’s detriment without violating the double jeopardy clause when the applicable statutes authorize the modification, as they do when the court finds that the defendant has violated probation; but, once sentence is meaningfully imposed, a sentencing court does not have the power to alter probation to the defendant’s detriment simply because the court comes to believe that a longer probationary term or more onerous conditions of probation would be better. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Trial court exceeded scope of sentencing powers by ordering defendant to attend a sexual offender rehabilitation program while incarcerated, where the order was set out as a separate provision of the written judgment and not as a condition of probation, and any failure to abide by the order could not have served as a predicate for a finding of criminal contempt. Benboe v. State, 738 P.2d 356 (Alaska Ct. App. 1987).

Parole restriction not clear error. —

Parole restriction made part of defendant’s sentence was not reversible as excessive because it was not clearly mistaken; the sentencing court considered the relevant factors in fashioning its overall sentence and entered specific findings that the parole restriction was necessary to protect defendant’s children and society at large for an extended period of time and was appropriate due to the severity of the case and defendant’s lack of remorse and concern. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Power to restrict discretionary parole eligibility. —

Nothing in this section’s plain language or legislative history suggests room for a legal presumption limiting a sentencing court’s power to restrict discretionary parole eligibility beyond one-third of the prisoner’s actual term, and nothing in it’s plain language or legislative history suggests sentencing courts are to limit this power out of deference to the parole board. State v. Korkow, 314 P.3d 560 (Alaska 2013).

Restricting parole eligibility. —

When imposing a discretionary parole eligibility restriction beyond the statutory minimum for any sentence, a sentencing court may consider whether the parole board will at a later date be better able to assess the defendant’s prospects for successful parole, but there is no legal presumption against a restriction beyond the statutory minimum set by AS 33.16.090(b)(1) . State v. Korkow, 314 P.3d 560 (Alaska 2013).

Test to be used in determining whether multiple offenses can be punished separately. —

See State v. Occhipinti, 562 P.2d 348 (Alaska 1977).

Separate sentences were called for where defendant’s conduct in kidnapping and raping his victim and assaulting her with a deadly weapon constituted the commission of three distinct offenses, each of which violated a different societal interest. State v. Occhipinti, 562 P.2d 348 (Alaska 1977).

Power to suspend sentence. —

While courts do not have the inherent power to suspend execution of a sentence, the legislature has given this power to the trial courts. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

When a statute of general application grants sentencing courts the power to suspend all or part of a sentence, that statute will govern unless the legislature specifically provides otherwise. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

Community work service. —

Upon conviction of defendant for negligent discharge of oil under AS 46.03.740 , the trial court had authority to impose both a fine and imprisonment and could impose 1000 hours of community work service in lieu thereof. Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

Sentence allowing periodic jailing. —

A sentencing judge is empowered to require a defendant to serve time in jail as a condition of a suspended imposition of sentence, and under paragraph (a)(3), a sentencing court is authorized to allow a defendant to serve a term of imprisonment in periodic installments, or seasonally, so as not to jeopardize the defendant’s livelihood. State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001).

Authority to award restitution to state for drug buy money. —

Where the statutes that govern awards of restitution as part of a sentence authorize the court to order restitution “to the victim or other person injured by the offense,” the court has the authority to award restitution for drug buy money to the state, both as a condition of probation and as part of a sentence. Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001).

Revocation of probation. —

Revocation of probation for failure to complete sex offender program was improper because defendant was not told that the failure to complete a timely application would have resulted in a violation of the terms of probation; moreover, defendant never indicated an unwillingness to participate in such a program. Hamrick v. State, 64 P.3d 175 (Alaska Ct. App. 2003).

Anticipatory revocation of parole. —

The parole board had the authority to anticipatorily revoke the scheduled release of a prisoner for failure to complete a sex offender treatment program. Webb v. Alaska Dep't of Corr., 963 P.2d 1074 (Alaska Ct. App. 1998).

Parole Board had the authority to anticipatorily revoke scheduled mandatory parole release on account of prisoner’s failure to complete the sex offender treatment ordered by the sentencing court. Gwalthney v. State, 964 P.2d 1285 (Alaska Ct. App. 1998).

Where trial court ruled that sex offender “take advantage of sex offender programs that were available in the facility,” defendant’s failure to “fully participate” in the treatment program constituted grounds for revoking his parole status. Alexander v. State, 38 P.3d 543 (Alaska Ct. App. 2001).

Applied in

Austin v. State, 627 P.2d 657 (Alaska Ct. App. 1981); State Dep't of Corr. v. Lundy, 188 P.3d 692 (Alaska Ct. App. 2008); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019); Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019).

Quoted in

Leuch v. State, 633 P.2d 1006 (Alaska 1981); Hancock v. State, 706 P.2d 1164 (Alaska Ct. App. 1985); State v. Wagner, 835 P.2d 454 (Alaska Ct. App. 1992).

Stated in

Kimbrell v. State, 647 P.2d 618 (Alaska Ct. App. 1982); Erhart v. State, 656 P.2d 1199 (Alaska Ct. App. 1982); State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Cited in

Whittlesey v. State, 626 P.2d 1066 (Alaska 1980); Juneby v. State, 641 P.2d 823 (Alaska Ct. App. 1982); Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982); Schnecker v. State, 739 P.2d 1310 (Alaska Ct. App. 1987); State v. Ambrose, 758 P.2d 639 (Alaska Ct. App. 1988); State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002); Parrott v. Municipality of Anchorage, 69 P.3d 1 (Alaska Ct. App. 2003).

Collateral references. —

Permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine. 35 ALR4th 192.

Persons or entities entitled to restitution as “victim” under state criminal restitution statute. 92 ALR5th 35.

Sec. 12.55.020. Enforcing judgment to pay money. [Repealed, § 21 ch 166 SLA 1978. For present provisions, see AS 12.55.025(f), AS 12.55.035(a), (d) and AS 12.55.051.]

Sec. 12.55.022. Victim impact statement.

As part of the presentence report prepared on each felony offender, the probation officer shall prepare a victim impact statement reporting the following information:

  1. the financial, emotional, and medical effects of the offense on the victim;
  2. the need of the victim for restitution; and
  3. any other information required by the court.

History. (§ 1 ch 154 SLA 1984)

Cross references. —

Definition of “victim” — AS 12.55.185

Restitution — AS 12.55.045

Original Code Provision — None.

Collateral references. —

Victim impact evidence in capital sentencing hearings — post- Payne v. Tennessee . 79 ALR5th 33.

Sec. 12.55.023. Participation by victim in sentencing.

  1. If a victim requests, the prosecuting attorney shall provide the victim, before the sentencing hearing, with a copy of the following portions of the presentence report:
    1. the summary of the offense prepared by the Department of Corrections;
    2. the defendant’s version of the offense;
    3. all statements and summaries of statements of the victim;
    4. the sentence recommendation of the Department of Corrections; and
    5. letters of support submitted to the court for consideration.
  2. A victim may submit to the sentencing court a written statement that the victim believes is relevant to the sentencing decision and may give sworn testimony or make an unsworn oral presentation to the court at the sentencing hearing. If there are numerous victims, the court may reasonably limit the number of victims who may give sworn testimony or make an unsworn oral presentation during the hearing. When requested by the victim of a felony or a class A misdemeanor, if the class A misdemeanor is a crime involving domestic violence or a crime against a person under AS 11.41, when the victim does not submit a statement, give testimony, or make an oral presentation, the victims’ advocate may submit a written statement or make an unsworn oral presentation at the sentencing hearing on behalf of the victim.

History. (§ 4 ch 59 SLA 1989; am § 6 ch 57 SLA 1991; am § 7 ch 92 SLA 2001; am § 17 ch 43 SLA 2013)

Cross references. —

Definition of “victim” — AS 12.55.185

Designation of representative — AS 12.55.172

Original Code Provision — None.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (a)(5) and made a related change.

Sec. 12.55.025. Sentencing procedures.

  1. When imposing a sentence for conviction of a felony offense or a sentence of imprisonment exceeding 90 days or upon a conviction of a violation of AS 04, a regulation adopted under AS 04, or an ordinance adopted in conformity with AS 04.21.010 , the court shall prepare, as a part of the record, a sentencing report that includes the following:
    1. a verbatim record of the sentencing hearing and any other in-court sentencing procedures;
    2. findings on material issues of fact and on factual questions required to be determined as a prerequisite to the selection of the sentence imposed;
    3. a clear statement of the terms of the sentence imposed; if a term of imprisonment is imposed, the statement must include
      1. the approximate minimum term the defendant is expected to serve before being released or placed on mandatory parole if the defendant is eligible for and does not forfeit good conduct deductions under AS 33.20.010 ; and
      2. if applicable, the approximate minimum term of imprisonment the defendant must serve before becoming eligible for release on discretionary parole;
    4. any recommendations as to the place of confinement or the manner of treatment; and
    5. in the case of a conviction for a felony offense, information assessing
      1. the financial, emotional, and medical effects of the offense on the victim;
      2. the need of the victim for restitution; and
      3. any other information required by the court.
  2. The sentencing report required under (a) of this section shall be furnished within 30 days after imposition of sentence to the Department of Law, the defendant, the Department of Corrections, the state Board of Parole if the defendant will be eligible for parole, and to the Alcoholic Beverage Control Board if the defendant is to be sentenced for a conviction of a violation of AS 04, a regulation adopted under AS 04, or an ordinance adopted under AS 04.21.010 .
  3. Except as provided in (d) of this section, when a defendant is sentenced to imprisonment, the term of confinement commences on the date of imposition of sentence unless the court specifically provides that the defendant must report to serve the sentence on another date. If the court provides another date to begin the term of confinement, the court shall provide the defendant with written notice of the date, time, and location of the correctional facility to which the defendant must report. A defendant shall receive credit for time spent in custody pending trial, sentencing, or appeal, if the detention was in connection with the offense for which the sentence was imposed. A defendant may not receive credit for more than the actual time spent in custody pending trial, sentencing, or appeal. The time during which a defendant is voluntarily absent from official detention after the defendant has been sentenced may not be credited toward service of the sentence.
  4. A sentence of imprisonment shall be stayed if an appeal is taken and the defendant is admitted to bail. If an appeal is taken and the defendant is not admitted to bail, the Department of Corrections shall designate the facility in which the defendant shall be detained pending appeal or admission to bail.
  5. [Repealed, § 7 ch 125 SLA 2004.]
  6. A sentence that the defendant pay money, either as a fine or in restitution or both, constitutes a lien in the same manner as a judgment for money entered in a civil action. Nothing in this section limits the authority of the court to otherwise enforce payment of a fine or restitution.
  7. [Repealed, § 7 ch 125 SLA 2004.]
  8. [Repealed, § 7 ch 125 SLA 2004.]
  9. Except as otherwise provided in this chapter, the preponderance of the evidence standard of proof applies to sentencing proceedings.
  10. The approximate minimum terms provided under (a)(3) of this section in the sentencing report are for information purposes only. The approximate minimum terms are not part of the sentence imposed and do not form a basis for review or appeal of the sentence imposed or provide a defendant with a right to any specific term of imprisonment or supervised release on mandatory parole.
  11. If a defendant intends to claim credit under AS 12.55.027 toward a sentence of imprisonment for time spent in a treatment program as a condition of bail in connection with an offense for which the defendant is being sentenced, the defendant shall file notice with the court and the prosecutor 10 days before the sentencing hearing. The notice shall include the number of days the defendant is claiming. The defendant must prove by a preponderance of evidence that the requirements of AS 12.55.027 are met before credit may be awarded. Except as provided in (l) of this section, except for good cause, a court may not consider a request for credit made under this subsection more than 90 days after the sentencing hearing.
  12. If a defendant intends to claim credit under AS 12.55.027 toward a sentence of imprisonment for time spent in a treatment program as a condition of bail while pending appeal, the defendant shall file notice with the court and the prosecutor not later than 90 days after return of the case to the trial court following appeal. The notice shall include the number of days the defendant is claiming. The defendant must prove by a preponderance of evidence that the requirements of AS 12.55.027 are met before credit may be awarded. Except for good cause, the court may not consider a request for credit made under this subsection after the deadline.
  13. When imposing a sentence for conviction of a felony offense or a sentence of imprisonment exceeding 90 days or, upon a conviction of a violation of AS 04, a regulation adopted under AS 04, or an ordinance adopted in conformity with AS 04.21.010 , the court shall orally state on the record the terms of the sentence of imprisonment imposed and the approximate minimum sentence that must be served before the defendant may be eligible for mandatory parole and that the period of active incarceration may be reduced under other provisions of law.

History. (§ 12 ch 166 SLA 1978; §§ 7, 8 ch 131 SLA 1980; am §§ 24, 25 ch 143 SLA 1982; am E.O. No. 55, §§ 6, 7 (1984); am § 2 ch 154 SLA 1984; am §§ 5, 6 ch 66 SLA 1988; am §§ 21, 22 ch 79 SLA 1992; am § 2 ch 7 SLA 1996; am §§ 3, 4 ch 37 SLA 1997; am § 13 ch 81 SLA 1998; am § 6 ch 124 SLA 2000; am §§ 2, 7 ch 125 SLA 2004; am § 4 ch 2 SLA 2005; am § 8 ch 70 SLA 2012; am § 18 ch 43 SLA 2013; am §§ 66, 67 ch 36 SLA 2016; am § 28 ch 1 4SSLA 2017; am §§ 63, 64 ch 4 FSSLA 2019)

Cross references. —

Original Code Provisions — AS 11.05.040; AS 11.05.050; AS 12.55.020 .

TD: VI, 23-26.

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(d)(1) and (2), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Administrative Code. —

For eligibility for discretionary parole, see 22 AAC 20, art. 1.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, in (i), substituted “Except as otherwise provided in this chapter” for “Except as provided by AS 12.55.125(a)(3) , 12.55.145(d) , 12.55.155(f) , and 12.55.165 ”.

The 2013 amendment, effective July 1, 2013, added (k) and ( l ).

The 2016 amendment, effective January 1, 2017, in (a)(3)(B), inserted “or administrative” preceding “parole”; in (c), inserted “including a technical violation of probation as provided in AS 12.55.110 ” following “sentence was imposed”.

The 2017 amendment, effective November 27, 2017, in (a)(3)(B), deleted “or administrative” following “release on discretionary”.

The 2019 amendment, effective July 9, 2019, in (c), substituted “for which the sentence was imposed” for “for which sentence was imposed including a technical violation of probation as provided in AS 12.55.110 ”; and added (m).

Editor's notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendment to subsection (i) applies “to proceedings occurring on or after July 1, 2012 for offenses occurring before, on, or after July 1, 2012.”

Under sec. 46(c), ch. 43, SLA 2013, subsections (k) and ( l ), added by sec. 18, ch. 43, SLA 2013, apply to sentencing hearings occurring on or after July 1, 2013.

Section 142(e), ch. 4, FSSLA 2019, provides that the 2019 amendment of (c) of this section applies “to probation ordered before, on, or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Section 142(j), ch. 4, FSSLA 2019, provides that the 2019 addition of (m) of this section applies “to sentences imposed on or after July 9, 2019, for offenses committed before, on, or after July 9, 2019.”

Legislative history reports. —

For sectional analysis of CS SSSB 239, the predecessor of FCCSSB 239 (ch. 131, SLA 1980), see 1980 Senate Journal Supplement No. 23, April 1, 1980.

For House letter of intent on ch. 66, SLA 1988 (CSHB 237 (Jud)), which amended this section, see 1988 House Journal 2330-2333.

Opinions of attorney general. —

Authority exists to both award and forfeit statutory good time for pretrial detainees. February 18, 1986 Op. Att’y Gen.

Notes to Decisions

Analysis

I.General Consideration

Construction with other laws. —

Even if the Department of Law was mistaken in telling the House Judiciary Committee that their proposed statute was simply a codification of the Nygren v. State rule, this does not mean that the court could disregard the wording of the statute and continue to apply the Nygren rule. The debate over the precise wording of AS 12.55.027(c)(2) , demonstrates that the Committee members fully understood the restrictions they were placing on the types of treatment programs that would qualify for sentencing credit. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

Construction with other laws. —

Even if the Department of Law was mistaken in telling the House Judiciary Committee that their proposed statute was simply a codification of the Nygren v. State rule, this does not mean that the court could disregard the wording of the statute and continue to apply the Nygren rule. The debate over the precise wording of AS 12.55.027(c)(2) , demonstrates that the Committee members fully understood the restrictions they were placing on the types of treatment programs that would qualify for sentencing credit. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

For cases construing former AS 12.55.075, relating to imposition of sentences, see Perrin v. State, 543 P.2d 413 (Alaska 1975); Andrews v. State, 552 P.2d 150 (Alaska 1976); Rust v. State, 582 P.2d 134 (Alaska 1978); Morgan v. State, 582 P.2d 1030 (Alaska 1978).

Consideration of totality of defendant's conduct. —

Regardless of the trial court’s decision to sentence consecutively or concurrently, the total sentence must reflect the totality of the defendant’s conduct considered in light of his background and experience and measured against the standards of rehabilitation, deterrence of self and others, and affirmation of community norms. Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987).

Consideration of uncharged offenses or police contacts. —

A sentencing court may properly consider uncharged offenses where they are verified by supporting data or information and the defendant is given the opportunity to deny the allegations and offer rebuttal evidence. Pascoe v. State, 628 P.2d 547 (Alaska 1980).

Effect of perjury at trial. —

It is improper to increase a sentence because a defendant has committed perjury at trial, but the fact of such perjury may be considered as relevant to the defendant’s prospects for rehabilitation. La Pierre v. State, 626 P.2d 1065 (Alaska 1980).

Oral sentence controls. —

The written judgment should conform to the oral sentence. The latter ordinarily controls. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

Unsolicited letters. —

Judges must make available to counsel for the state and the defendant any unsolicited letters received concerning sentencing of a particular defendant. Bowlin v. State, 643 P.2d 1 (Alaska Ct. App. 1982).

The sentencing record must affirmatively reflect whether unsolicited letters received by the court have been considered at sentencing. Bowlin v. State, 643 P.2d 1 (Alaska Ct. App. 1982).

Composite sentence for multiple crimes. —

When an offender is convicted of multiple crimes, the presumptive term for the most serious crime remains an important benchmark — a benchmark that is not to be exceeded without good reason. Nevertheless, the appropriate focus is no longer on the narrow issue of public danger, but rather on whether a composite sentence exceeding the presumptive term is warranted under the totality of the circumstances. Farmer v. State, 746 P.2d 1300 (Alaska Ct. App. 1987).

A composite sentence of five years with two years suspended, imposed upon a first felony offender upon conviction of two counts of burglary in the second degree, one count of theft in the second degree, and one count of theft in the third degree, was not excessive, where defendant’s conviction of two separate burglaries and related thefts, and his admission of two additional burglaries and related thefts, justified a greater sentence than would a conviction of an isolated burglary and theft. Comegys v. State, 747 P.2d 554 (Alaska Ct. App. 1987).

No credit for time served for prior offense. —

Defendant was not entitled to credit for the excess time he served on his 1982 robbery offense toward his 1987 robbery offense, where the only connection shown between the earlier and later offenses was that the 1987 offense may have been committed while defendant was on parole on the 1982 offense and that the state originally used the 1982 conviction as a prior felony offense to enhance defendant’s sentence on the 1987 offense. Marker v. State, 829 P.2d 1191 (Alaska Ct. App. 1992).

Electronic monitoring does not support credit for time served. —

Defendant who was electronically monitored before sentence with a tracking device that also sensed if defendant had drunk alcohol was not entitled to receive credit for the time that he was monitored, because the conditions of defendant’s release did not sufficiently approximate the conditions defendant would have experienced if incarcerated. Matthew v. State, 152 P.3d 469 (Alaska Ct. App. 2007)(See AS 12.55.027 ).

Superior court properly denied defendant's request for credit against his sentence for the time he spent under the conditions of his release because the conditions—house arrest with supervision by one of two third-party custodians—did not approximate conditions of imprisonment, the 2015 amendments to the subject statute—authorizing sentencing credit for time spent on electronic monitoring—demonstrated that the legislature did not intend to authorize credit for time spent on house arrest or third-party custodianship unaccompanied by electronic monitoring. Collins v. State, — P.3d — (Alaska Ct. App. June 30, 2021) (memorandum decision).

Credit for residential treatment after probation revocation. —

Even assuming AS 12.55.025(c) applied to defendant's request for credit, the superior court erred in concluding that the statute precluded defendant from seeking credit for the time he spent in residential treatment after the court sentenced him to a term of imprisonment in connection with a subsequent probation revocation in the same case where his days in treatment and incarceration term were in connection with his underlying criminal offenses. Medina v. State, 418 P.3d 861 (Alaska Ct. App.), aff'd, — P.3d — (Alaska Ct. App. 2018).

Delegation of authority to impose conditions. —

The sentencing court may not delegate its authority to impose conditions of probation which are the functional equivalent of incarceration, such as by abiding by the recommendation of a local council on alcoholism that defendant serve 30 days in a residential alcohol treatment center. Hester v. State, 777 P.2d 217 (Alaska Ct. App. 1989).

Applied in

Schwing v. State, 633 P.2d 311 (Alaska Ct. App. 1981); O'Shea v. State, 683 P.2d 286 (Alaska Ct. App. 1984); Lewis v. State, 706 P.2d 715 (Alaska Ct. App. 1985); Oswald v. State, 715 P.2d 276 (Alaska Ct. App. 1986); State v. Moody, 726 P.2d 194 (Alaska 1986); State v. Merry, 784 P.2d 253 (Alaska Ct. App. 1989); Kepley v. State, 791 P.2d 1020 (Alaska Ct. App. 1990); Griffin v. State, 9 P.3d 301 (Alaska Ct. App. 2000); State v. Howard, 357 P.3d 1207 (Alaska Ct. App. 2015).

Quoted in

Jennings v. State, 713 P.2d 1222 (Alaska Ct. App. 1986); Helton v. State, 778 P.2d 1156 (Alaska Ct. App. 1989).

Cited in

State v. Ahwinona, 635 P.2d 488 (Alaska Ct. App. 1981); Houston v. State, 648 P.2d 1024 (Alaska Ct. App. 1982); State v. Rastopsoff, 659 P.2d 630 (Alaska Ct. App. 1983); Hodges v. State, 660 P.2d 1203 (Alaska Ct. App. 1983); Juneby v. State, 665 P.2d 30 (Alaska Ct. App. 1983); LeFever v. State, 877 P.2d 1298 (Alaska Ct. App. 1994); Callan v. State, 904 P.2d 856 (Alaska Ct. App. 1995); Jackson v. State, 31 P.3d 105 (Alaska Ct. App. 2001); State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002); Yang v. State, 107 P.3d 302 (Alaska Ct. App. 2005); Billum v. State, 151 P.3d 507 (Alaska Ct. App. 2006); Smith v. State, 187 P.3d 511 (Alaska Ct. App. 2008); State v. Walker, 283 P.3d 668 (Alaska Ct. App. 2012).

II.Computation of Term

Determination of credit for time served. —

The appropriate time to resolve credit for time served is at the sentencing hearing and the trial court should expressly identify those periods of time for which credit is to be allowed. Ackermann v. State, 716 P.2d 5 (Alaska Ct. App. 1986).

Superior court properly denied defendant’s request for credit against his sentence for the time spent on electronic monitoring because prior case law, which concluded that constraints imposed by electronic monitoring were not the equivalent of incarceration for purposes of this section, was not originally erroneous. Ackerman v. State, 179 P.3d 951 (Alaska Ct. App. 2008)(See AS 12.55.027 ).

If the Board later revokes parole and orders mandatory parolees to serve some or all of their remaining sentence, their time in custody in a correctional restitution center, a halfway house, or other non-prison correctional center by order of the Alaska Parole Board is properly considered in determining credit for time served and good-time credit under AS 33.20.010(a) , corresponding to the period of their confinement. State v. Shetters, 246 P.3d 338 (Alaska Ct. App. 2010).

Provision in formal judgment. —

In order to prevent problems arising when sentence is served outside Alaska, judges should include a provision granting credit for time served in the formal judgment. Black v. State, 569 P.2d 804 (Alaska 1977).

Although credit for time already served in prison is awarded automatically by statute and is not dependent on the judge’s stating that credit should be given, judgment forms should expressly state that the defendant will receive credit for time served in order to protect defendants who may serve all or part of their terms in out-of-state prisons. Qualle v. State, 652 P.2d 481 (Alaska Ct. App. 1982).

Credit for time spent on probation. —

A person in third-party custody who has the freedom to move about the community, limited only by his custodian’s accompaniment, and one who is confined to a fishing boat while it is at sea is not entitled to credit for time spent on probation. Ackermann v. State, 716 P.2d 5 (Alaska Ct. App. 1986).

Where a sentencing court, in imposing the original sentence, has unambiguously manifested its intent to require that a specified term of imprisonment be served in addition to time previously served, the Alaska Court of Appeals has not hesitated to hold that subsection (c) does not require additional credit to be given; conversely, where there has been ambiguity in a trial court’s sentencing remarks, the court has applied subsection (c) and required that credit be given for time previously served. Coates v. State, 721 P.2d 655 (Alaska Ct. App. 1986).

Credit for time served since arrest for subsequent offenses. —

Where defendant’s sentences were to be served consecutively to a sentence then being served for a parole revocation on an earlier offense, the trial court’s order that the defendant receive no credit for time served since his arrest was proper in view of the court’s action in making the sentences consecutive to the time to be served on the parole revocation, for the time served from defendant’s arrest should properly have been credited toward the parole revocation sentence. Reynolds v. State, 595 P.2d 21 (Alaska 1979).

Where defendant, while on probation following a sentence for theft, was arrested and charged with misconduct involving a controlled substance, he was entitled to credit for the 13 days he spent in custody between the time he was arrested for the drug offense and the date his probation officer filed a petition to revoke probation. Walters v. State, 798 P.2d 357 (Alaska Ct. App. 1990).

In determining if a facility is such so that confinement there warrants credit for time spent in custody, the court suggests as a point of reference that common characteristics of incarcerative facilities are that their residents are invariably sent there by court order; the facilities require residency, and residency requirements are sufficiently stringent to involve a definite element of confinement; residents of the facilities are subject to 24-hour physical custody or supervision; any periods during which residents may be permitted to leave the facility are expressly limited, both as to time and purpose; while in the facility, residents are under a continuing duty to conform their conduct to institutional rules and to obey orders of persons who have immediate custody over them; and residents are subject to sanctions if they violate institutional rules or orders and to arrest if they leave the facility without permission. Nygren v. State, 658 P.2d 141 (Alaska Ct. App. 1983)(See AS 12.55.027 ).

In determining if a facility is such that confinement there warrants credit for time spent in custody, defendant was not entitled to credit against her sentence for the five months she spent at a transitional house. Even though defendant was obliged to follow house guidelines if she wished to continue living there, defendant was not subject to custody or to monitoring during most of the day. Deemer v. State, — P.3d — (Alaska Ct. App. Apr. 11, 2012) (memorandum decision).

Credit for time spent in residential alcohol treatment programs. —

Defendant was entitled to credit for time she spent in residential alcohol treatment programs while she was on bail pending trial and while she was on bail pending appeal after her conviction and sentence. Nygren v. State, 658 P.2d 141 (Alaska Ct. App. 1983)(See AS 12.55.027 ).

The Alaska Supreme Court’s decision in Nygren v. State, 658 P.2d 141 (Alaska Ct. App. 1983), allows a person credit for time served in a therapeutic community, but only when the individual is confined in the therapeutic program by virtue of a court order validly issued requiring that she remain there. A defendant is not entitled to Nygren credit when his residence at a treatment facility is required by his employer. State v. Fortuny, 42 P.3d 1147 (Alaska Ct. App. 2002)(See AS 12.55.027 ).

Where defendant voluntarily entered treatment facility before sentencing, he was only entitled to credit against his sentence for the period of time he spent in the facility after the court ordered that he remain there and complete the program as a condition of release. State v. Fortuny, 42 P.3d 1147 (Alaska Ct. App. 2002)(See AS 12.55.027 ).

Superior court did not err in sentencing defendant for second-degree theft because defendant was not entitled to credit for time he spent in aftercare of a rehabilitation program, as this time did not approximate incarceration under this section. McKinley v. State, 215 P.3d 378 (Alaska Ct. App. 2009).

Good time credit allowed. —

When the Parole Board orders a mandatory parolee to reside at a correctional restitution center, a halfway house, or any other non-prison correctional center, the mandatory parolee is entitled to both credit for time served under AS 12.55.025(c) and good time credit under AS 33.20.010(a) , corresponding to the period of enforced residence at the correctional center, if the Board later revokes parole and imposes some or all of the remaining sentence. State v. Shetters, 246 P.3d 332 (Alaska Ct. App.), reaff'd, 246 P.3d 338 (Alaska Ct. App. 2010).

Consecutive sentences upheld. —

In defendant’s sexual assault case, consecutive 15-year sentences were proper because the trial court found that defendant had a “profound antisocial nature,” and that he was a “particularly violent and dangerous” offender; the sexual assaults were “reprehensible and destructive” to both the victim and the community, and defendant was a worst offender with no likelihood of rehabilitation. Douglas v. State, 151 P.3d 495 (Alaska Ct. App. 2006).

In a case in which defendant was convicted of several offenses related to the burglary of a grocery store and a social club, the sentencing judge’s decision to impose consecutive three-year sentences was not clearly mistaken. The judge recognized her discretion to impose either consecutive or concurrent sentences and stated valid reasons supporting her decision to impose consecutive sentences. Gage v. State, — P.3d — (Alaska Ct. App. Apr. 18, 2012) (memorandum decision).

For cases construing former computation of term statute, see Thompson v. State, 496 P.2d 651 (Alaska 1972); Lock v. State, 609 P.2d 539 (Alaska 1980).

Collateral references. —

Right of convicted defendant or prosecution to receive updated presentence report at sentencing proceedings. 22 ALR5th 660.

Sec. 12.55.027. Credit for time spent toward service of a sentence of imprisonment.

  1. A court may grant a defendant credit toward a sentence of imprisonment for time spent in a treatment program that furthers the reformation and rehabilitation of the defendant if the court finds that the program places a substantial restriction on the defendant’s freedom of movement and behavior and is consistent with this section.
  2. A court may only grant credit under this section
    1. in the amount of one day of credit toward a sentence of imprisonment for each full day the defendant spent in a treatment program; and
    2. if the court ordered the defendant to participate in and comply with the conditions of the treatment program before the defendant entered the program.
  3. In granting credit toward a sentence of imprisonment for time spent in a treatment program, a court shall consider the following factors:
    1. the restrictions on the defendant's freedom of movement and behavior;
    2. the circumstances under which the defendant was enrolled in the program;
    3. the residency requirements of the program;
    4. the physical custody and supervision of the defendant at the program;
    5. the circumstances under which the defendant is permitted to leave the program's facility;
    6. the rules of the program and the requirement that the defendant obey the orders of persons who have immediate custody or control over the defendant;
    7. the sanctions on the defendant for violating the program's rules or orders;
    8. whether the defendant is subject to arrest for leaving the program's facility without permission;
    9. the use of an electronic monitoring device;
    10. whether the program provides substance abuse treatment;
    11. the use of other technology that monitors or restricts the defendant's movement and behavior;
    12. other factors that support the court's finding that the program places a substantial restriction on the defendant's freedom of movement and behavior;
    13. other factors that support the court's finding that the program furthers the reformation and rehabilitation of the defendant.
  4. A court may grant credit against a sentence of imprisonment for time spent under electronic monitoring if the person has not committed a criminal offense while under electronic monitoring and the court imposes restrictions on the person’s freedom of movement and behavior while under the electronic monitoring program, including requiring the person to be confined to a residence except for a
    1. court appearance;
    2. meeting with counsel; or
    3. period during which the person is at a location ordered by the court for the purposes of employment, attending educational or vocational training, performing community volunteer work, or attending a rehabilitative activity or medical appointment.
  5. If a defendant intends to claim credit toward a sentence of imprisonment for time spent in a treatment program or under electronic monitoring either as a condition of probation or as a condition of bail release after a petition to revoke probation has been filed, the defendant shall file notice with the court and the prosecutor 10 days before the disposition hearing. The notice shall include the amount of time the defendant is claiming. The defendant must prove by a preponderance of the evidence that the credit claimed meets the requirements of this section. A court may not consider, except for good cause, a request for credit made under this subsection more than 90 days after the disposition hearing.
  6. To qualify as a treatment program under this section, a program must
    1. be intended to address criminogenic traits or behaviors;
    2. provide measures of progress or completion; and
    3. require notification to the prosecuting authority, pretrial services officer, or probation officer if the person is discharged from the program for noncompliance.
  7. Unless the defendant participated in a residential treatment program under (c) and (f) of this section while under electronic monitoring, a court may not grant credit against a sentence of imprisonment under (d) of this section if the sentence is for
    1. a felony crime against a person under AS 11.41;
    2. a crime involving domestic violence as defined in AS 18.66.990 ;
    3. an offense under AS 11.71 involving the delivery of a controlled substance to a person under 19 years of age;
    4. burglary in the first degree under AS 11.46.300 ; or
    5. arson in the first degree under AS 11.46.400 .
  8. Nothing in this section authorizes the release of a person on electronic monitoring after conviction and while awaiting sentencing if the person is ineligible for release under AS 12.30.040(b) .
  9. A court may not grant credit under this section for time spent in a treatment program or under electronic monitoring for a sex offense as defined in AS 12.63.100 .
  10. A court may grant credit under this section for time spent in a treatment program or under electronic monitoring if the court finds that the sentence, including credit toward the sentence of imprisonment, meets the requirements of AS 12.55.005 .
  11. When a court grants credit toward a sentence of imprisonment under this section, if a defendant spends time in a treatment program while under electronic monitoring, the court may grant credit for either the time spent in the treatment program or for the time spent under electronic monitoring, but not for both.
  12. A court granting credit against a sentence of imprisonment under (a) of this section may grant credit of not more than 365 days against the total term of imprisonment imposed.

History. (§ 20 ch 24 SLA 2007; am § 19 ch 43 SLA 2013; am § 23 ch 83 SLA 2014; am §§ 1 — 3 ch 20 SLA 2015; am §§ 68 — 71 ch 36 SLA 2016; am § 29 ch 1 4SSLA 2017; am §§ 6, 7 ch 11 SLA 2019; am §§ 65, 66 ch 4 FSSLA 2019)

Revisor's notes. —

Subsection ( l ) was enacted as (i). Relettered in 2019.

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(c), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, added (e).

The 2014 amendment, effective July 17, 2014, in (c), in the introductory language, substituted “for a day” for “for time”, and inserted “on that day” following “a person’s liberty”, rewrote (c)(2), which read, “must be confined at all times to the grounds of the facility or be in the physical custody of an employee of the facility, except for court appearances, meetings with counsel, and work required by the treatment program and approved in advance by the court”, added (c)(2)(D).

The 2015 amendment, effective August 12, 2015, in (a), inserted “or under electronic monitoring” following “time spent in a treatment program”; rewrote (d), which read, “A court may not grant credit against a sentence of imprisonment for time spent in a private residence or under electronic monitoring”; in (e), in the first sentence, inserted “or under electronic monitoring” following “for time spend in a treatment program”.

The 2016 amendment, effective October 9, 2016, in (a), substituted “that furthers the reformation and rehabilitation of the defendant if the court finds that the program places a substantial restriction on the defendant's freedom of movement and behavior and is consistent with” for “or under electronic monitoring only as provided in”; rewrote (b ) and (c); added (f) and (g).

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

The first 2019 amendment, effective October 17, 2019, rewrote (g), added (i) through (k).

The second 2019 amendment, effective July 9, 2019, in (f)(3), substituted “notification to the prosecuting authority, pretrial services officer, or” for “notification to the pretrial services office or”; and added (i) [now ( l )].

Editor's notes. —

Section 36(a), ch. 24, SLA 2007, provides that this section “applies to credit for time served for a sentence imposed on or after July 1, 2007, regardless of when the criminal act was committed.”

Under sec. 46(d), ch. 43, SLA 2013, subsection (e), added by sec. 19, ch. 43, SLA 2013, applies to disposition hearings occurring in proceedings on petitions to revoke probation filed on or after July 1, 2013.

Although the 2014 amendments were to have taken effect July 1, 2014 under Sec. 42, ch. 83, SLA 2014, the Governor did not sign the bill until July 16, 2014, and so the actual effective date of the 2014 amendments was July 17, 2014 under AS 01.10.070(d) .

Under sec. 36(a), ch. 83, SLA 2014, subsection (c) as amended by sec. 23, ch. 83, SLA 2014, applies to offenses occurring on or after July 17, 2014.

Under sec. 5(a), ch. 20, SLA 2015, the changes made to subsections (a), (d), and (e) in secs. 1 — 3, ch. 20, SLA 2015 apply to “an offense committed before, on, or after August 12, 2015.”

Section 11, ch. 11, SLA 2019, provides that the 2019 amendments of (i) — (k) of this section apply “to offenses committed on or after October 17, 2019.”

Section 142(b)(3), ch. 4, FSSLA 2019, provides that the 2019 amendment to (i) [now ( l )] of this section applies to “sentences imposed on or after July 9, 2019 for conduct occurring on or after July 9, 2019.”

Notes to Decisions

Retroactive application. —

Even assuming that a superior court’s application of subsection (d) somehow amounted to a retroactive application of the statute, denial of defendant’s request that she be awarded credit against her sentence for certain periods was correct. The Alaska Legislature expressly declared that subsection (d) was to apply to all sentences imposed after the statute took effect, even when the defendant’s underlying crime predated the enactment of the statute. Teayoumeak v. State, — P.3d — (Alaska Ct. App. Mar. 7, 2012) (memorandum decision).

Defendant was not entitled to sentence credit for time spent on electronic monitoring because (1) AS 12.55.027(d) , holding defendant was not entitled to such credit, applied retroactively, as the provision merely clarified existing law, and (2) the restrictions on defendant’s movement were relatively minor. Wright v. State, 347 P.3d 1000 (Alaska Ct. App. 2015), rev'd, 404 P.3d 166 (Alaska 2017).

Construction. —

This section should be interpreted in accordance with its wording, even though it may impose a more restrictive rule than is found in the Nygren v. State line of cases. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

Defendant received credit for the time he spent on electronic monitoring because at the time defendant violated his bail conditions by drinking alcoholic beverages and illicitly using drugs, the offenses were "violations" of the bail conditions, and not criminal offenses. State v. Thompson, 425 P.3d 166 (Alaska Ct. App. 2018).

Legislative intent. —

Even if the Department of Law was mistaken in telling the House Judiciary Committee that their proposed statute was simply a codification of the Nygren v. State rule, this does not mean that the court could disregard the wording of the statute and continue to apply the Nygren rule. The debate over the precise wording of subsection (c)(2), demonstrates that the Committee members fully understood the restrictions they were placing on the types of treatment programs that would qualify for sentencing credit. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

Although defendant claimed that the superior court erred when it applied AS 12.55.027(d) to his request for credit against his sentence because doing so violated the prohibition against ex post facto laws, defendant did not satisfy the Nygren test. Therefore, the appellate court did not have to address defendant’s claim. Milazzo v. State, — P.3d — (Alaska Ct. App. Nov. 12, 2014) (memorandum decision).

Electronic monitoring. —

Defendant was entitled to sentence credit for a period of time spent on electronic monitoring because (1) defendant's electronic monitoring conditions were sufficiently restrictive, and (2) defendant did not commit a new crime during that period. State v. Bell, 421 P.3d 128 (Alaska Ct. App. 2018).

Defendant was not entitled to sentence credit for a certain electronic monitoring period because defendant committed a new crime at the end of the period, depriving a court of discretion to grant defendant sentence credit for the entire period, whether or not defendant was charged with or convicted of the new crime. State v. Bell, 421 P.3d 128 (Alaska Ct. App. 2018).

When defendant was placed on electronic monitoring, defendant was not entitled to sentence credit for time spent grocery shopping because (1) this activity was not specified in the statute, and (2) the legislature could validly distinguish between this activity and statutorily specified activities. Tanner v. State, 436 P.3d 1061 (Alaska Ct. App. 2018).

When defendant was placed on electronic monitoring, defendant was not entitled to sentence credit for time spent grocery shopping under the statutory provision for rehabilitative activities because the statute referred to this authorized purpose for leaving home as “attending a rehabilitative activity,” indicating a reference to enrolling in scheduled sessions of counseling or training, rather than leaving home for an unspecified destination and for an unspecified length of time to go shopping for groceries. Tanner v. State, 436 P.3d 1061 (Alaska Ct. App. 2018).

Right to counsel.

Superior court erred in refusing appellant's request for appointed counsel where he had been represented by private counsel at sentencing, he apparently became unable to pay for his private counsel, private counsel was allowed to withdraw when appellant filed his pro se motion for sentencing credit, and there was no inquiry into whether appellant was eligible for appointed counsel. Belknap v. State, 426 P.3d 1156 (Alaska Ct. App. 2018).

Commission of a new crime. —

State must be allowed to litigate whether defendant did, in fact, commit either fourth-degree assault or fourth-degree criminal mischief, or both, during that first period of electronic monitoring release because, while those charges were dismissed as part of a plea bargain, the statute did not speak to a defendant's conviction for a new crime while on electronic monitoring, rather, the statute spoke to a defendant's commission of a new crime. State v. Thompson, 425 P.3d 166 (Alaska Ct. App. 2018).

Work-related therapy. —

Retroactive approval of defendant’s unaccompanied absences from his treatment program as “work-related therapy” and granting defendant credit for a treatment program that did not otherwise comply with the requirements of this section was error. State v. Derry, — P.3d — (Alaska Ct. App. July 30, 2014) (memorandum decision).

Completion of treatment program not required. —

While defendant failed to complete two residential treatment programs while on bail release prior to her sentencing, this section awards credit to defendant for each day of successful participation in a court-ordered treatment program that meet the requirements of subsection (c), even though defendant may have ultimately been discharged from the program for misbehavior or noncompliance. Gates v. State, 178 P.3d 1173 (Alaska Ct. App. 2008).

Treatment programs qualifying for credit. —

A treatment program did not qualify for sentencing credit where it allowed unsupervised absences from the facility for any purpose other than court appearances, meetings with counsel, and work required by the treatment program and approved in advance by the court. More liberal case law interpreting the circumstances under which credit was allowed was supplanted by the enactment of this section. McKinley v. State, 275 P.3d 567 (Alaska Ct. App. 2012).

No one asserted that defendant would be eligible for jail time credit for her enrollment in a specific treatment program, and the judge’s comments, which were phrased in the conditional, indicated that the issue of credit was an open question; the record did not support that defendant detrimentally relied on the judge’s comments. Baisch v. State, — P.3d — (Alaska Ct. App. Oct. 15, 2014).

It was defendant’s burden to establish that the residential treatment program he attended qualified for credit, and he failed to meet that burden; the request was denied originally because he failed to show that the program was sufficiently restrictive of his liberty, but he was advised to submit any additional information to the court, which he did not do. Coomes v. State, — P.3d — (Alaska Ct. App. Jan. 28, 2015) (memorandum decision).

Ineffective assistance of counsel.—

Application for post-conviction relief was denied because appellant failed to show that his attorney was incompetent for advising him that he would receive credit for time spent on private electronic monitoring and for failing to anticipate that the practice would later change; appellant failed to show prejudice because he accepted the plea knowing he could never be placed on electronic monitoring and thus, could never request credit in the first place. .

Violation of bail conditions. —

In an action where defendant sought credit for time spent under electronic monitoring remand was necessary because the superior court did not specify which of the prosecutor's allegations the court found to be proved and did not address defendant's potential defenses to the alleged violations of his bail conditions. Parsons v. State, — P.3d — (Alaska Ct. App. Dec. 19, 2018) (memorandum decision).

Applied in

State v. Howard, 357 P.3d 1207 (Alaska Ct. App. 2015).

Cited in

Fungchenpen v. State, 181 P.3d 1115 (Alaska Ct. App. 2008); McKinley v. State, 215 P.3d 378 (Alaska Ct. App. 2009); State v. Shetters, 246 P.3d 338 (Alaska Ct. App. 2010).

Sec. 12.55.030. Discharge of indigents imprisoned for nonpayment of fine. [Repealed, § 16 ch 53 SLA 1973.]

Sec. 12.55.035. Fines.

  1. Upon conviction of an offense, a defendant may be sentenced to pay a fine as authorized in this section or as otherwise authorized by law.
  2. Upon conviction of an offense, a defendant who is not an organization may be sentenced to pay, unless otherwise specified in the provision of law defining the offense, a fine of not more than
    1. $500,000 for murder in the first or second degree, attempted murder in the first degree, murder of an unborn child, sexual assault in the first degree, sexual abuse of a minor in the first degree, kidnapping, sex trafficking in the first degree under AS 11.66.110(a)(2) , or misconduct involving a controlled substance in the first degree;
    2. $250,000 for a class A felony;
    3. $100,000 for a class B felony;
    4. $50,000 for a class C felony;
    5. $25,000 for a class A misdemeanor;
    6. $2,000 for a class B misdemeanor;
    7. $500 for a violation.
  3. Upon conviction of an offense, a defendant that is an organization may be sentenced to pay a fine not exceeding the greatest of
    1. an amount that is
      1. $2,500,000 for a felony offense or for a misdemeanor offense that results in death;
      2. $500,000 for a class A misdemeanor offense that does not result in death;
      3. $75,000 for a class B misdemeanor offense that does not result in death;
      4. $25,000 for a violation;
    2. three times the pecuniary gain
      1. realized by the defendant as a result of the offense; or
      2. sought by the defendant for the defendant or for others by the commission of the offense; or
    3. three times the pecuniary damage or loss
      1. caused by the defendant to another, or to the property of another, as a result of the offense; or
      2. to another or the property of another sought by the defendant by the commission of the offense.
  4. If a defendant is sentenced to pay a fine, the court may grant permission for the payment to be made within a specified period of time or in specified installments.
  5. In imposing a fine under (c) of this section, in addition to any other relevant factors, the court shall consider
    1. measures taken by the organization to discipline an officer, director, employee, or agent of the organization;
    2. measures taken by the organization to prevent a recurrence of the offense;
    3. the organization’s obligation to make restitution to a victim of the offense, and the extent to which imposition of a fine will impair the ability of the organization to make restitution; and
    4. the extent to which the organization will pass on to consumers the expense of the fine.
  6. In imposing a fine, the court may not reduce the fine by the amount of a surcharge or otherwise consider the applicability of a surcharge to the offense.
  7. Fines imposed and collected under this section shall be separately accounted for under AS 37.05.142 .
  8. [Repealed, § 5 ch 110 SLA 2010.]

History. (§ 12 ch 166 SLA 1978; am § 17 ch 45 SLA 1982; am § 26 ch 143 SLA 1982; am § 4 ch 59 SLA 1988; am § 18 ch 85 SLA 1988; am §§ 1, 2 ch 142 SLA 1990; am § 2 ch 71 SLA 1992; am §§ 2 — 4 ch 79 SLA 1994; am § 3 ch 56 SLA 1998; am §§ 1, 2 ch 131 SLA 2002; am § 7 ch 73 SLA 2006; am § 21 ch 24 SLA 2007; am §§ 1 — 3 ch 33 SLA 2009; am § 1 ch 54 SLA 2010; am § 8 ch 58 SLA 2010; am §§ 1, 4 ch 110 SLA 2010; am § 19 ch 1 TSSLA 2012; am § 72 ch 36 SLA 2016)

Cross references. —

Definition of “organization” — AS 11.81.900(b)

Sentencing procedures — AS 12.55.025(f)

Enforcement of fines and restitution — AS 12.55.051

Original Code Provision — None.

TD: VI, 49-51.

Revisor’s notes. —

Subsection (h) of this section was enacted as an uncodified section, sec. 4, ch. 110, SLA 2010, codified in 2010, and repealed effective January 31, 2012 under sec. 5, ch. 110, SLA 2010.

Cross references. —

For classification of offenses, see AS 11.81.250 ; for sentences of imprisonment for felonies, see AS 12.55.125 ; for sentences of imprisonment for misdemeanors, see AS 12.55.135 .

For provision relating to the applicability of the 2016 amendments to subsection (b), see sec. 185(a)(31), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2006 amendment, effective September 14, 2006, inserted “murder of an unborn child” in paragraph (b)(1).

The 2007 amendment, effective July 1, 2007, inserted “promoting prostitution in the first degree under AS 11.66.110(a)(2) ” in paragraph (b)(1).

The 2009 amendment, effective September 14, 2009, substituted “Upon” for “Except as provided in AS 12.55.036 , upon”, at the beginning of (a), (b), and (c).

The first 2010 amendment by § 8 ch 58, effective June 10, 2010, in the introductory language of (c), substituted “not exceeding the greatest of” for “not exceeding the greater of”.

The second 2010 amendment by § 1 ch 54, effective September 7, 2010, in (c)(1)(A), substituted “$2,500,000” for “$1, 000,000”, in (c)(1)(B), substituted “$500,000” for “$200,000”, in (c)(1)(C), substituted “$75,000” for “$25,000”, in (c)(1)(D), substituted “$25,000” for “$10,000”; in (c)(2), added the (A) and (B) designations, added (c)(2)(B); in (c)(3), added the (A) and (B) designations, added (c)(3)(B).

The third 2010 amendment by § 1 ch 110, effective September 26, 2010, added (g).

The 2012 amendment, effective July 1, 2012, in (b)(1), substituted “sex trafficking” for “promoting prostitution”; made a stylistic change.

The 2016 amendment, effective July 12, 2016, in (b)(5), substituted “$25,000 for “$10,000”.

Editor’s notes. —

Section 36(d), ch. 24, SLA 2007, provides that the 2007 amendment of (b) of this section applies “to offenses committed on or after July 1, 2007.”

Section 2, ch. 54, SLA 2010, provides that the amendments to (c) of this section made by § 1, ch. 54, SLA 2010 “apply to offenses occurring on or after September 7, 2010.”

Section 27(a), ch. 1, TSSLA 2012, provides that the 2012 amendments to subsection (b) apply to offenses committed before, on, or after July 1, 2012.

Legislative history reports. —

For the governor's transmittal letter concerning ch. 1, TSSLA 2012 (HB 359), see 2012 House Journal 1666 — 1668.

Notes to Decisions

No financial inquiry required. —

Following the 1992 amendment of this section, there is no duty upon the court to inquire into defendant’s ability to pay any fine imposed. Ashton v. State, 737 P.2d 1365 (Alaska Ct. App. 1987); Dodge v. Municipality of Anchorage, 877 P.2d 270 (Alaska Ct. App. 1994).

Where defendant was convicted of numerous counts of assault arising from two separate incidents in which defendant, in his private aircraft, swooped down on hunting parties in an attempt to scare them and compel them to move away from defendant’s own hunting camp, the trial court did not err in imposing a fine of $5,000 on each count without considering defendant’s ability to pay the fine because AS 12.55.035(b)(4) required no such investigation. Lamb v. State, — P.3d — (Alaska Ct. App. Jan. 14, 2009) (memorandum decision).

Forfeitures. —

The monetary limits set out in this section do not apply to forfeitures. Hillman v. Municipality of Anchorage, 941 P.2d 211 (Alaska Ct. App. 1997).

Forfeiture of an airplane worth $40,000 was not grossly disproportionate to defendant’s offense of possessing and transporting illegally taken game, because under AS 08.54.720 when a licensed guide violates a hunting statute or regulation, or aids another person in doing so, the penalty for a first offense includes a fine of not more than $30,000, while the penalty for a second or subsequent offense includes a fine of up to $50,000. Baum v. State, 24 P.3d 577 (Alaska Ct. App. 2001).

Jury trial. —

Because the magistrate had no authority to take or limit defendant’s commercial driver’s license, defendant was properly tried in the district court under the procedures established in Alaska Dist. Ct. R. Crim. P. 8 and defendant was not entitled to a jury trial. Davis v. State, 235 P.3d 1017 (Alaska Ct. App. 2010).

Construction with other statutes. —

Where an assistant district attorney erroneously informed the defendant that a payment was not a fine under AS 08.54.605 , referring to this section rather than AS 12.55.100 , his statement was not technically inconsistent with the licensing commission’s rejection of the defendant’s license renewal application. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

Applied in

Wright v. State, 651 P.2d 846 (Alaska Ct. App. 1982); Wilson v. State, 756 P.2d 307 (Alaska Ct. App. 1988); Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

Stated in

Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Cited in

Manderson v. State, 655 P.2d 1320 (Alaska Ct. App. 1983); Constantine v. State, 739 P.2d 188 (Alaska Ct. App. 1987); State v. Buza, 886 P.2d 1318 (Alaska Ct. App. 1994); Ace v. Aetna Life Ins. Co., 139 F.3d 1241 (9th Cir. Alaska 1998); Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999); State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001); Casciola v. F. S. Air Serv., 120 P.3d 1059 (Alaska 2005); Lamb v. Anderson, 147 P.3d 736 (Alaska 2006); Doe v. State, 189 P.3d 999 (Alaska 2008).

Sec. 12.55.036. Day fines. [Repealed, § 4 ch 33 SLA 2009.]

Sec. 12.55.039. Surcharge.

  1. In addition to any fine or other penalty prescribed by law, a defendant who pleads guilty or nolo contendere to, forfeits bail for, or is convicted of a
    1. felony shall be assessed a surcharge of $200;
    2. violation of a misdemeanor offense under AS 28.33.030 , 28.33.031 , AS 28.35.030 , or 28.35.032 , or a violation of a municipal ordinance comparable to a misdemeanor offense under AS 28.33.030 , 28.33.031 , AS 28.35.030 , or 28.35.032 and adopted under AS 28.01.010 , shall be assessed a surcharge of $150;
    3. misdemeanor or a violation of a municipal ordinance if a sentence of incarceration may be imposed for the misdemeanor or ordinance violation, other than a provision identified in (2) of this subsection, shall be assessed a surcharge of $100;
    4. misdemeanor for which a sentence of incarceration may not be imposed, a violation or an infraction under state law, or a violation of a municipal ordinance imposing a penalty authorized by AS 29.25.070(a) if a sentence of incarceration may not be imposed for the ordinance violation, shall be assessed a surcharge of $20 if the fine or bail forfeiture amount for the offense is $30 or more.
  2. A court may not fail to impose the surcharge required under this section. The surcharge may not be waived, deferred, or suspended. A court may allow a defendant who is unable to pay the surcharge required to be imposed under this section to perform community work under AS 12.55.055(c) in lieu of the surcharge.
  3. The surcharge shall be paid within 10 days of imposition or such shorter period of time as ordered by the court. Failure to pay the surcharge is punishable as contempt of court. Proceedings to collect the surcharge may be instituted by the state, the municipality, or by the court on its own motion.
  4. Money collected under this section shall be deposited into the general fund and accounted for under AS 37.05.142 .

History. (§ 2 ch 119 SLA 1994; am § 4 ch 56 SLA 1998; am § 1 ch 24 SLA 2000; am § 16 ch 22 SLA 2018)

Cross references. —

For provision relating to applicability of the 2018 amendments to subsection (a), see sec. 30(c), ch. 22, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The 2018 amendment, effective January 1, 2019, in (a)(1), substituted “$200” for “$100”, in (a)(2), substituted “$150” for “$75”, in (a)(3), substituted “$100” for “$50”, in (a)(4) substituted “a surcharge of $20” for “a surcharge of $10” following “shall be assessed”, near the end.

Notes to Decisions

Imposition. —

Superior court should not have imposed a separate surcharge pursuant to AS 12.55.039 for each of defendant's 116 convictions. Instead, the superior court should have only assessed a single surcharge of $100. Miller v. State, 382 P.3d 1192 (Alaska Ct. App. 2016).

Even though AS 12.55.039 refers to the money collected under the section as a “surcharge,” this surcharge is the legal equivalent of a mandatory additional fine. Miller v. State, 382 P.3d 1192 (Alaska Ct. App. 2016).

Only one surcharge should be imposed under AS 12.55.039 in any one criminal case. Miller v. State, 382 P.3d 1192 (Alaska Ct. App. 2016).

Sentencing court's imposition of multiple police surcharges were vacated where subsequent case law determined that only a single surcharge was allowed under AS 12.55.039(a) , and under the Charles / Griffith standard, that decision applied retroactively. Vonda v. State, — P.3d — (Alaska Ct. App. Sept. 19, 2018) (memorandum decision).

Sec. 12.55.040. Increased punishment for habitual criminal after conviction of petty larceny or misdemeanor involving fraud. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.55.041. Correctional facility surcharge.

  1. In addition to any fine or other penalty prescribed by law, a defendant who pleads guilty or nolo contendere to, or is convicted of, a crime under state law shall pay a correctional facility surcharge if, in connection with the crime, the defendant
    1. was arrested and taken to a correctional facility, regardless of whether the defendant was released or admitted to the facility; or
    2. is sentenced to serve a term of imprisonment.
  2. The court shall impose a single surcharge under (a) of this section on a defendant being sentenced for one or more crimes in a single judgment. The surcharge is
    1. $100 if the judgment includes a sentence for a felony;
    2. $50 if the judgment does not include a sentence for a felony.
  3. If the court places the defendant on probation, the court shall order that the defendant pay an additional correctional facility surcharge of $100. The additional surcharge shall be suspended but later imposed if the defendant’s probation is revoked and, in connection with the probation revocation, the defendant
    1. was arrested and taken to a correctional facility, regardless of whether the defendant was released or admitted to the facility; or
    2. is ordered to serve a term of imprisonment for the probation revocation.
  4. The court shall include a surcharge imposed under (a) of this section in the judgment of conviction. The court shall include the imposition of a surcharge under (c) of this section in the order revoking probation. For a surcharge that is not paid by the person as required by this section, the state shall seek reimbursement from the person’s permanent fund dividend as provided under AS 43.23.140 . For purposes of collection and priority of attachment under AS 43.23.140 , a surcharge imposed under this section is accounted for in the same manner as a cost of imprisonment under AS 28.35.030(k) and 28.35.032(o) . The state may enforce payment of a surcharge under this section under AS 09.35 as if it were a civil judgment enforceable by execution. This subsection does not limit the authority of the court to enforce surcharges.
  5. In this section, “correctional facility” has the meaning given in AS 33.30.901 .

History. (§ 1 ch 88 SLA 2004)

Revisor’s notes. —

In 2018, “AS 43.23.140 ” was substituted for “43.23.065” in subsection (d) to reflect the renumbering of that section.

Sec. 12.55.045. Restitution and compensation.

  1. The court shall, when presented with credible evidence, unless the victim or other person expressly declines restitution, order a defendant convicted of an offense to make restitution as provided in this section, including restitution to the victim or other person injured by the offense, to a public, private, or private nonprofit organization that has provided or is or will be providing counseling, medical, or shelter services to the victim or other person injured by the offense, or as otherwise authorized by law. The court shall, when presented with credible evidence, unless the victim expressly declines restitution, also order a defendant convicted of an offense to compensate a victim that is a nonprofit organization for the value of labor or goods provided by volunteers if the labor or goods were necessary to alleviate or mitigate the effects of the defendant’s crime. In determining the amount and method of payment of restitution or compensation, the court shall take into account the
    1. public policy that favors requiring criminals to compensate for damages and injury, including loss of income, to their victims; and
    2. financial burden placed on the victim and those who provide services to the victim and other persons injured by the offense as a result of the criminal conduct of the defendant.
  2. An order of restitution under this section does not limit any civil liability of the defendant arising from the defendant’s conduct.
  3. If a defendant is sentenced to pay restitution, the court may grant permission for the payment to be made within a specified period of time or in specified installments. If the defendant fails to make one or more payments required under this section, the victim or the state on the victim’s behalf may enforce the total amount remaining under the order of restitution as provided in (l) of this section.
  4. In any case, including a case in which the defendant is convicted of a violation of AS 11.46.120 — 11.46.150 and the property is commercial fishing gear as defined in AS 16.43.990 , the court shall consider the victim’s loss, and the order of restitution may include compensation for loss of income.
  5. [Repealed, § 7 ch 17 SLA 2004.]
  6. [Repealed, § 7 ch 17 SLA 2004.]
  7. The court may not, in ordering the amount of restitution, consider the defendant’s ability to pay restitution.
  8. In imposing restitution under this section, the court may require the defendant to make restitution by means other than the payment of money.
  9. An order of restitution made under this section is a condition of the defendant’s sentence and, in cases in which the court suspends all or a portion of the defendant’s sentence, the order of restitution is a condition of the suspended sentence. If the court suspends imposition of sentence under AS 12.55.085 , the order of restitution is a condition of the suspended imposition of sentence.
  10. A defendant who is convicted of an offense for which restitution may be ordered shall submit financial information as ordered by the court. The Alaska Court System shall prepare a form, in consultation with the Department of Law, for the submission of the information; the form must include a warning that submission of incomplete or inaccurate information is punishable as unsworn falsification in the second degree under AS 11.56.210 . A defendant who is convicted of (1) a felony shall submit the form to the probation office within 30 days after conviction, and the probation officer shall attach the form to the presentence report, or (2) a misdemeanor shall file the form with the defendant’s response or opposition to the restitution amount. The defendant shall provide a copy of the completed form to the prosecuting authority.
  11. The court, on its own motion or at the request of the prosecuting authority or probation officer, may order a defendant on probation who has been ordered to pay restitution to submit financial information to the court using the form specified in (j) of this section. The defendant shall file the completed form with the court within five days after the court’s order. The defendant shall provide a copy of the completed form to the prosecuting authority and the person’s probation officer, if any.
  12. An order by the court that the defendant pay restitution is a civil judgment for the amount of the restitution. An order by the court that the defendant pay restitution when the court suspends entry of judgment under AS 12.55.078 or suspends imposition of sentence under AS 12.55.085 is a civil judgment for the amount of the restitution and remains enforceable and is not discharged when the proceeding is dismissed under AS 12.55.078 or a conviction is set aside under AS 12.55.085 . The victim or the state on behalf of the victim may enforce the judgment through any procedure authorized by law for the enforcement of a civil judgment. If the victim enforces or collects restitution through civil process, collection costs and full reasonable attorney fees shall be awarded. If the state on the victim’s behalf enforces or collects restitution through civil process, collection costs and full reasonable attorney fees shall be awarded, up to a maximum of twice the amount of restitution owing at the time the civil process was initiated. This section does not limit the authority of the court to enforce orders of restitution.
  13. Notwithstanding another provision of law, the court shall accept
    1. payments of restitution from a defendant at any time; and
    2. prepayments of restitution or payments in anticipation of an order of restitution.
  14. In determining the amount of actual damages or loss for restitution under this section, the court shall value property as the market value of the property at the time and place of the crime or, if the market value cannot reasonably be ascertained, the cost of replacement of the property within a reasonable time after the crime.
  15. In this section,
    1. “conviction” means that the defendant has entered a plea of guilty, guilty but mentally ill, or nolo contendere, or has been found guilty or guilty but mentally ill by a court or jury;
    2. “loss of income” includes the total loss of income a business or person suffers as a result of not having stolen property available during the time it takes to obtain a replacement.

History. (§ 12 ch 166 SLA 1978; am § 38 ch 102 SLA 1980; am § 1 ch 73 SLA 1986; am §§ 1, 2 ch 75 SLA 1988; am § 3 ch 53 SLA 1991; am §§ 3, 4 ch 71 SLA 1992; am § 4 ch 71 SLA 1996; am §§ 3, 4 ch 103 SLA 2000; am §§ 9, 10 ch 92 SLA 2001; am § 1 ch 23 SLA 2002; am § 1 ch 26 SLA 2003; am §§ 1 — 4, 7 ch 17 SLA 2004; am § 11 ch 42 SLA 2006; am §§ 1 — 3 ch 17 SLA 2015; am § 10 ch 13 SLA 2017; am § 1 ch 21 SLA 2018)

Effect of amendments. —

The 2017 amendment, effective June 20, 2017, in ( l ), in the second sentence, inserted “suspends entry of judgment under AS12.55.078 or” following “when the court” and “the proceeding is dismissed under AS 12.55.078 or” following “is not discharged when”.

The 2018 amendment, effective January 1, 2019, in (m)(2), deleted the second sentence, which read, “If the recipient has elected to have the Department of Law collect the judgment of restitution under AS 12.55.051(g) , the court shall forward all payments of restitution to the Department of Law within five days after the court’s acceptance.”

Cross references. —

Enforcement of fines and restitution — AS 12.55.051

Suspension of Commercial License and Entry Permit — AS 16.05.710

Theft in the first, second, third, and fourth degree - AS 11.46.120 — 11.46.150

Original Code Provision — None.

TD: VI, 54-56.

Revisor’s notes. —

Subsection (m) was enacted as (n); relettered in 2004. Subsection (n) was enacted as (o); relettered in 2015. Subsection (o) was relettered from (n) in 2015 and from (m) to (n) in 2004.

Cross references. —

For restitution as condition of probation, see AS 12.55.100 ; for requirement that court suspend commercial fishing privileges of certain defendants, see AS 16.05.710(b) .

For the applicability provision relating to the 2015 amendments to this section amending paragraph (a)(1), adding a new subsection (n), and adding a new paragraph (o)(2), see sec. 5, ch. 17, SLA 2015.

Notes to Decisions

Ex post facto application held error. —

In a robbery case, retrospective application of this section violated the prohibition against ex post facto laws. Trial court was directed to apply the version of the restitution statute that existed at the time defendant committed the robbery. Ortiz v. State, 173 P.3d 430 (Alaska Ct. App. 2007).

No ex post facto violation of defendant’s rights found. —

Subsection ( l ) of this section, allowing a civil judgment and requiring a defendant to pay court-ordered restitution, did not violate defendant’s rights ex post facto because the enactment of ( l ) did not operate to change the amount of restitution or the nature of defendant’s obligation to his victims, nor did it alter the factors that the superior court was to consider when setting restitution. Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009).

Restitution order violative of double jeopardy. —

A trial judge who imposed restitution as a special condition of probation under AS 12.55.100 and not as an independent portion of the defendant’s sentence under this section, could not terminate the defendant’s probation and order her to serve the unserved time remaining on her original sentence while at the same time enforcing this restitution order without violating the constitutional protection against double jeopardy. If the judge wished to order the defendant to pay restitution independent of her conditions of probation, this had to be done at the time she originally imposed sentence. Kelly v. State, 842 P.2d 612 (Alaska Ct. App. 1992).

Where restitution was not imposed as a condition of defendant’s probation at original sentencing, Alaska law does not authorize the judge to go back and add this condition to probation at subsequent resentencing following vacation of original sentence. Reyes v. State, 978 P.2d 635 (Alaska Ct. App. 1999).

Purpose and amount of restitution. —

Restitution should not only compensate the victim for the harm inflicted by the offender, but should further the rehabilitation of the offender; if restitution is ordered in an amount that is clearly impossible for the offender to pay, the offender’s rehabilitation will be inhibited and not furthered. Karr v. State, 686 P.2d 1192 (Alaska 1984).

Restitution order held valid. —

Restitution order was justified where the court found that defendant committed a single continuous assault on the victim and that the offense included both the act of pushing the victim against the wall and the act of stepping on her chest. Miller v. State, 312 P.3d 1112 (Alaska Ct. App. 2013).

Defendant's argument that he was prejudiced by the State's late filing of a restitution request was rejected where even assuming that defendant spent the money in detrimental reliance on the State's failure to file its restitution request by the deadline, he failed to establish that the remedy would have been a reduction in the total restitution owed given that the State's delay was short, the amount of money that defendant spent was relatively small compared to the size of the restitution judgment, the type of restitution ultimately ordered, compensation for medical bills, was readily ascertainable given the injuries the victim suffered from the shooting. Keng Her v. State, — P.3d — (Alaska Ct. App. July 24, 2019) (memorandum decision).

Defendant's attorney expressly told the court that defendant had not disputed the amounts that the Board had paid to doctors for the victim's medical care, and that no testimony on this point was necessary. As a result, any infirmity in failing to submit the question of restitution to a jury was harmless beyond a reasonable doubt in defendant's case. Keng Her v. State, — P.3d — (Alaska Ct. App. July 24, 2019) (memorandum decision).

Restitution order held invalid. —

Where after defendant pleaded guilty to sexual abuse of a minor, portion of a restitution order that compensated the victim’s mother for future lost wages and benefits after she resigned from her job to care for the victim was vacated because these losses were too speculative and attenuated from defendant’s conduct to be made part of restitution. Grubb v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2022).

Meaning of “victim.” —

Trial judge erred in requiring defendant to pay, as part of his sentence for manslaughter, airline fare for decedent’s friends and relatives to attend decedent’s funeral when these friends and relatives did not fit within the definition of victim. Ned v. State, 119 P.3d 438 (Alaska Ct. App. 2005).

Duty of court to make inquiry. —

This section requires the trial courts to make thorough inquiries into the defendant’s ability to pay restitution. Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988).

Penal effect. —

Provisions of this section and AS 12.55.051 demonstrate that, even though restitution orders may further the aim of compensating the victim, these orders also have penal characteristics that cannot be ignored. Ortiz v. State, 173 P.3d 430 (Alaska Ct. App. 2007).

Fruits of the crime. —

Where the trial court finds, based on evidence, that the defendant has possession of, or continuing control over, the fruits of the crime, a recoupment order may properly be entered; however, such an order may not rest purely upon speculation. Kramer v. State, 735 P.2d 754 (Alaska Ct. App. 1987).

Improper assignment of assets. —

Trial court erred in ordering assignment to victim of all defendant’s assets as restitution without first inventorying and valuing them. Brezenoff v. State, 658 P.2d 1359 (Alaska Ct. App. 1983).

Award based on actual loss to victim. —

Where a defendant is charged with a lesser offense but the evidence establishes that he committed a greater offense, a restitutionary award based on the actual loss to the victim is appropriate, even though the loss exceeds the maximum property-value figure which defines the lesser offense. Fee v. State, 656 P.2d 1202 (Alaska Ct. App. 1982).

Insurance company as a victim. —

The plain language of this section and the stated legislative policy to have courts construe subsection (a) broadly support the finding that an insurance company which suffered a loss because of defendant’s conduct was a “victim” entitled to receive restitution. Lonis v. State, 998 P.2d 441 (Alaska Ct. App. 2000).

Restitution awarded to state for drug buy money. —

Where the statutes that govern awards of restitution as part of a sentence authorize the court to order restitution “to the victim or other person injured by the offense,” the court has the authority to award restitution for drug buy money to the state, both as a condition of probation and as part of a sentence. Haynes v. State, 15 P.3d 1088 (Alaska Ct. App. 2001).

Standing. —

In a case in which the State, through its Medicaid program, paid for the medical services that defendant’s daughter required as a result of the mother’s criminal conduct, the government of Alaska was a victim or other person injured by defendant’s offense within the meaning of the restitution statute, and the mother had no standing to complain that the sentencing court ordered her to pay the restitution directly to the State, rather than ordering her to pay the restitution to medical care providers, who would then have to turn the money over to the State. Maillelle v. State, 276 P.3d 476 (Alaska Ct. App. 2012).

Enforcement of restitution under AS 12.55.051 . —

AS 12.55.051 (a) prescribes a specific method for dealing with enforcement of court orders requiring the payment of fines or restitution, regardless of whether such orders are directly imposed as part of the original sentence, under this section, or indirectly imposed as a condition of probation, under AS 12.55.100 ; AS 12.55.051 expressly provides that imprisonment for failure to pay court-ordered restitution is permissible only if the failure to pay was intentional or the result of bad faith. Lominac v. Municipality of Anchorage, 658 P.2d 792 (Alaska Ct. App. 1983).

Conversion of juvenile restitution order. —

Superior courts do not have the authority to convert the unpaid restitution of a juvenile offender into a civil judgment. R.I. v. State, 894 P.2d 683 (Alaska Ct. App. 1995).

Victim’s moving expenses. —

Expense of shooting victim’s move to his parents’ home to recuperate from injuries was attributable to defendant’s crime, and, therefore, was reimbursable under this section. Riley v. State, 60 P.3d 204 (Alaska Ct. App. 2002).

Establishing anticipated future expenses. —

Where the court determines that an award of restitution should be made for anticipated future expenses, the court must at least require that these expenses be firmly established. Lawrence v. State, 764 P.2d 318 (Alaska Ct. App. 1988).

A restitution order for payment of future counseling expenses that was made in the absence of evidence firmly establishing the need for and the amount of such expenses did not comply with the requirements of this section. Peratrovich v. State, 903 P.2d 1071 (Alaska Ct. App. 1995).

Civil damages. —

Restitution and civil damages are totally independent and an order of restitution under this section does not limit any civil liability of the defendant arising from the defendant’s conduct; thus a restitutionary award has no effect on the victim’s ability to recover damages in a civil action. Kramer v. State, 735 P.2d 754 (Alaska Ct. App. 1987).

Quoted in

Whittlesey v. State, 626 P.2d 1066 (Alaska 1980); W.S. v. State, 174 P.3d 256 (Alaska Ct. App. 2008).

Stated in

Dorris v. State, 656 P.2d 578 (Alaska Ct. App. 1982); State v. Anthony, 810 P.2d 155 (Alaska 1991).

Cited in

White v. State, 773 P.2d 211 (Alaska Ct. App. 1989); J.C.W. v. State, 880 P.2d 1067 (Alaska Ct. App. 1994); Grubb v. State, — P.3d — (Alaska Ct. App. Feb. 25, 2022).

Collateral references. —

Measure and elements of restitution to which victim is entitled under state criminal statute. 15 ALR5th 391.

Persons or entities entitled to restitution as “victim” under state criminal restitution statute. 92 ALR5th 35.

Sec. 12.55.050. Increased punishment for persons convicted of more than one felony. [Repealed, § 21 ch 166 SLA 1978. For sentences of imprisonment for felonies, see AS 12.55.125.]

Sec. 12.55.051. Enforcement of fines and restitution.

  1. If the defendant defaults in the payment of a fine or any installment or of restitution or any installment, the court may order the defendant to show cause why the defendant should not be sentenced to imprisonment for nonpayment and, if the payment was made a condition of the defendant’s probation, may revoke the probation of the defendant. In a contempt or probation revocation proceeding brought as a result of failure to pay a fine or restitution, it is an affirmative defense that the defendant was unable to pay despite having made continuing good faith efforts to pay the fine or restitution. If the court finds that the defendant was unable to pay despite having made continuing good faith efforts, the defendant may not be imprisoned solely because of the inability to pay. If the court does not find that the default was attributable to the defendant’s inability to pay despite having made continuing good faith efforts to pay the fine or restitution, the court may order the defendant imprisoned until the order of the court is satisfied. A term of imprisonment imposed under this section may not exceed one day for each $50 of the unpaid portion of the fine or restitution or one year, whichever is shorter. Credit shall be given toward satisfaction of the order of the court for every day a person is incarcerated for nonpayment of a fine or restitution.
  2. When a fine or restitution is imposed on an organization, the person authorized to make disbursements from the assets of the organization shall pay the fine or restitution from those assets.  A person required to pay a fine or restitution under this subsection who intentionally refuses or fails to make a good faith effort to pay is punishable under (a) of this section.
  3. A defendant who has been sentenced to pay a fine or restitution may request a hearing regarding the defendant’s ability to pay the fine or restitution at any time that the defendant is required to pay all or a portion of the fine or restitution. The court may deny the request if it has previously considered the defendant’s ability to pay and the defendant’s request does not allege changed circumstances. If, at a hearing under this subsection, the defendant proves by a preponderance of the evidence that the defendant will be unable through good faith efforts to satisfy the order requiring payment of the fine or restitution, the court shall modify the order so that the defendant can pay the fine or restitution through good faith efforts. The court may reduce the fine ordered, change the payment schedule, or otherwise modify the order. The court may not reduce an order of restitution but may change the payment schedule.
  4. The state may enforce payment of a fine against a defendant under AS 09.35 as if the order were a civil judgment enforceable by execution. This subsection does not limit the authority of the court to enforce fines.
  5. The Department of Law is authorized to collect restitution on behalf of the recipient unless
    1. the recipient elects as provided in (f) of this section to enforce the order of restitution without the assistance of the Department of Law; or
    2. the order requires restitution to be made in a form other than payment of a specific dollar amount.
  6. The court shall forward a copy of an order of restitution to the Department of Law and the office of victims’ rights when the judgment is entered. Along with the copy of the order, the court shall provide the name, date of birth, social security number, and current address of the recipient of the restitution and the defendant, to the extent that the court has that information in its possession. Upon receipt of the order and other information from the court, the Department of Law shall send a notice to the recipient regarding the recipient’s rights under this section, including the right to elect to enforce the order of restitution without the assistance of the Department of Law and of the possibility of, and procedure for, receiving payment from the restorative justice account. The information provided to the Department of Law and the office of victims’ rights under this subsection is confidential and is not open to inspection as a public record under AS 40.25.110 . The Department of Law, the office of victims’ rights, or agents for the Department of Law or office of victims’ rights may not disclose the information except as necessary to collect on the restitution.
  7. The Department of Law may not begin collection procedures on the order of restitution until the recipient has been given notice and has been given 90days after receipt of notice to elect to collect the restitution without the assistance of the Department of Law. If the Department of Law receives a response to the notice before the 90-day period, the Department of Law may begin collection on the restitution. A recipient may inform the Department of Law at a later time of the recipient’s election to collect the restitution without the assistance of the Department of Law; upon receipt of that information, the Department of Law may no longer proceed with collection efforts on behalf of the recipient. A recipient who has elected under this section to collect restitution without the assistance of the Department of Law may not later request the services of that department to collect the restitution.
  8. If the Department of Law or its agents proceed to collect restitution on behalf of a recipient under (g) of this section, the actions of the Department of Law or an agent of the Department of Law on behalf of the recipient do not create an attorney-client relationship between the Department of Law and the recipient. The Department of Law or its agents may not settle a judgment for restitution without the consent of the recipient of the restitution.
  9. An action for damages may not be brought against the state or any of its agents, officers, or employees based on an action or omission under this section.
  10. The Department of Law may enter into contracts on behalf of the state to carry out the collection procedures of this section. The Department of Law may adopt regulations necessary to carry out the collection procedures of this section, including the reimbursement of attorney fees and costs in appropriate cases.

History. (§ 12 ch 166 SLA 1978; am §§ 3, 4 ch 75 SLA 1988; am §§ 5, 6 ch 71 SLA 1992; am §§ 11, 12 ch 92 SLA 2001; am § 5 ch 17 SLA 2004; am § 73 ch 36 SLA 2016; am §§ 2, 3 ch 21 SLA 2018; am § 67 ch 4 FSSLA 2019)

Cross references. —

Fines — AS 12.55.035

Restitution — AS 12.55.045

Definition of “Organization” — AS 11.81.900(b)

Original Code Provision — AS 12.55.010 .

Cross references. —

For provision relating to the applicability of the 2016 amendments to subsection (a), see sec. 185(g), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2004 amendment, effective April 22, 2004, in subsection (c), deleted “or restitution” following “fine” in the next-to-last sentence and added the last sentence.

The 2016 amendment, effective January 1, 2017, in (a), at the end of the first sentence, inserted “subject to the limits set out in AS 12.55.110 ”, at the end of the fourth sentence, substituted “subject to the limits set out in AS 12.55.110 ” for “until the order of the court is satisfied”.

The 2018 amendment, effective January 1, 2019, in (f), inserted “and the office of victims' rights” following “Department of Law” in the first sentence, added “and of the possibility of, and procedure for, receiving payment from the restorative justice account” at the end of the third sentence, rewrote the last sentence, which read, “The Department of Law or its agents may not disclose the information except as necessary to collect on the restitution”; in (g), in the first sentence, substituted “has been given 90 days” for “has been given 30 days” following “given notice and”, added the second sentence.

The 2019 amendment, effective July 9, 2019, in (a), deleted “subject to the limits set out in AS 12.55.110 ” at the end of the first sentence, and substituted “imprisoned until the order of the court is satisfied” for “imprisoned subject to the limits set out in AS 12.55.110 ” at the end of the fourth sentence.

Editor's notes. —

Section 142(b), ch. 4, FSSLA 2019, provides that the 2019 amendment to (a) of this section applies “to sentences imposed on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Opinions of attorney general. —

A prisoner incarcerated for failure to pay a fine should not receive credit for good time during the period of incarceration. October 27, 1986 Op. Att’y Gen.

Notes to Decisions

Generally. —

Subsection (a) of this section prescribes a specific method for dealing with enforcement of court orders requiring the payment of fines or restitution, regardless of whether such orders are directly imposed as part of the original sentence, under AS 12.55.045 , or indirectly imposed as a condition of probation, under AS 12.55.100 ; this section expressly provides that imprisonment for failure to pay court-ordered restitution is permissible only if the failure to pay was intentional or the result of bad faith. Lominac v. Municipality of Anchorage, 658 P.2d 792 (Alaska Ct. App. 1983).

Legislative mandate of AS 12.55.045(a) is not replaced. —

Opportunity provided by this section for the court to later modify a restitution order does not replace the legislative mandate of AS 12.55.045(a) . Karr v. State, 686 P.2d 1192 (Alaska 1984).

Refusal to pay a fine is like a contempt of the court, not an “offense against the state” within the meaning of AS 33.20.010 , which provides for the computation of “good time” for prisoners. Murphy v. City of Wrangell, 763 P.2d 229 (Alaska 1988).

Enforcement of restitution obligation not limited to probation period. —

Defendant argued that his restitution obligation ended when his term of probation ended; however, there was nothing in the 1994 restitution statute, former AS 12.55.051(d) , that limited the enforcement of restitution to a term of probation if restitution was ordered as an independent component of the judgment. (Decided under former version of section.) Lapp v. State, 220 P.3d 534 (Alaska Ct. App. 2009).

Penal effect. —

Provisions of AS 12.55.045 and this section demonstrate that, even though restitution orders may further the aim of compensating the victim, these orders also have penal characteristics that cannot be ignored. Ortiz v. State, 173 P.3d 430 (Alaska Ct. App. 2007).

Applied in

Scudero v. State, 496 P.3d 381 (Alaska 2021).

Cited in

Karr v. State, 660 P.2d 450 (Alaska Ct. App. 1983); Thompson v. State, 64 P.3d 132 (Alaska Ct. App. 2003).

Sec. 12.55.055. Community work.

  1. The court may order a defendant convicted of an offense to perform community work as a condition of probation, a suspended sentence, suspended imposition of sentence, or suspended entry of judgment, or in addition to any fine or restitution ordered. If the defendant is sentenced to imprisonment, the court may recommend to the Department of Corrections that the defendant perform community work.
  2. Community work includes work on projects designed to reduce or eliminate environmental damage, protect the public health, or improve public lands, forests, parks, roads, highways, facilities, or education.  Community work may not confer a private benefit on a person except as may be incidental to the public benefit.
  3. The court may offer a defendant convicted of an offense the option of performing community work in lieu of a fine, surcharge, or portion of a fine or surcharge if the court finds the defendant is unable to pay the fine. The value of community work in lieu of a fine is the state’s minimum wage for each hour.
  4. The court may offer a defendant convicted of an offense the option of performing community work in lieu of a sentence of imprisonment. Substitution of community work shall be at a rate of eight hours for each day of imprisonment. A court may not offer substitution of community work for any mandatory minimum period of imprisonment or for any period within the presumptive range of imprisonment for the offense.
  5. Medical benefits for an individual injured while performing community work at the direction of the state shall be assumed by the state to the extent not covered by collateral sources. When the state pays medical benefits under this subsection, a claim for medical expenses by the injured individual against a third party is subrogated to the state.
  6. [Repealed, § 11 ch 71 SLA 1996.]
  7. The court may not
    1. offer a defendant convicted of an offense the option of serving jail time in lieu of performing uncompleted community work previously ordered by the court; or
    2. convert uncompleted community work hours into a sentence of imprisonment.
  8. If a court orders community work as part of the defendant’s sentence under this section, the court shall provide notice to the defendant at sentencing and include as a provision of the judgment that if the defendant fails to provide proof of community work within 20 days after the date set by the court, the court shall convert those community work hours to a fine equal to the number of uncompleted work hours multiplied by the state’s minimum hourly wage and issue a judgment against the defendant for that amount.

History. (§ 12 ch 166 SLA 1978; am E.O. No. 55, § 8 (1984); am §§ 1, 2 ch 104 SLA 1984; am § 4 ch 53 SLA 1991; am § 3 ch 119 SLA 1994; am § 11 ch 71 SLA 1996; am § 5 ch 2 SLA 2005; am §§ 74 — 76 ch 36 SLA 2016)

Cross references. —

Original Code Provision — None.

TD: VI, 59-60.

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(f), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts. For the effect of the 2016 amendments to this section on Rule 32, Alaska Rules of Criminal Procedure, see sec. 180(b), ch. 36, SLA 2016 in the 2016 Temporary and Special Acts.

Effect of amendments. —

The 2005 amendment, effective March 23, 2005, in subsection (d) substituted “for any period within the presumptive range of imprisonment for the offense” for “for any period of a presumptive term of imprisonment.”

The 2016 amendment, effective July 12, 2016, in (a), substituted “suspended imposition of sentence, or suspended entry of judgment,” for “or suspended imposition of sentence”; in (c), substituted “the state’s minimum wage for each hour” for “$3 per hour”; added (g) and (h).

Notes to Decisions

Sentence of “community labor” is criminal penalty. Booth v. State, 903 P.2d 1079 (Alaska Ct. App. 1995).

Community work replacing jail time altogether. —

Community work cannot properly be relied on to replace jail time altogether when the circumstances surrounding an offender’s conviction for a class B felony, and the consequent need to emphasize community condemnation, would require the imposition of a nonprobationary term. In such cases, reliance by the sentencing court on community work to the exclusion of incarceration would unduly depreciate the seriousness of the offense and underemphasize the community’s condemnation of the offender’s misconduct. State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989).

Sentence requiring 1,000 hours of community work, while suspending the entire term of three years’ incarceration imposed upon a 27 year-old gym teacher convicted of sexually abusing a 14 year-old female student, was disapproved, where the sentence unduly depreciated the significance of his misconduct and inadequately served the sentencing goal of community condemnation. State v. Jackson, 776 P.2d 320 (Alaska Ct. App. 1989).

Allowable sentence. —

Upon conviction of defendant for negligent discharge of oil under AS 46.03.740 , the trial court had authority to impose both a fine and imprisonment and could impose 1000 hours of community work service in lieu thereof. Hazelwood v. State, 962 P.2d 196 (Alaska Ct. App. 1998).

District court erred in requiring defendant's uncompleted community work service hours to convert to jail time because the conversion provision of the plea agreement failed to define a material term of the agreement, namely, what conversion rate should apply. Swartz v. Municipality of Anchorage, 436 P.3d 1104 (Alaska Ct. App. 2019).

Quoted in

State v. Walker, 283 P.3d 668 (Alaska Ct. App. 2012).

Stated in

State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001).

Cited in

State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); State v. Korkow, 314 P.3d 560 (Alaska 2013).

Collateral references. —

Downward departure from United States Sentencing Guidelines (U.S.S.G. §§ 1A1.1 et seq.) based on aberrant behavior. 164 A.L.R. Fed. 61.

Secs. 12.55.060 — 12.55.075. Prior convictions; sentencing reports; imposition of sentence. [Repealed, § 21 ch 166 SLA 1978.]

Sec. 12.55.078. Suspending entry of judgment.

  1. Except as provided in (f) of this section, if a person is found guilty or pleads guilty to a crime, the court may, with the consent of the defendant and the prosecution and without imposing or entering a judgment of guilt, defer further proceedings and place the person on probation. The period of probation may not exceed the applicable terms set out in AS 12.55.090(c) . The court may not impose a sentence of imprisonment under this subsection.
  2. The court shall impose conditions of probation for a person on probation as provided in (a) of this section, which may include that the person
    1. abide by all local, state, and federal laws;
    2. not leave the state without prior consent of the court;
    3. pay restitution as ordered by the court; and
    4. obey any other conditions of probation set by the court.
  3. At any time during the probationary term of the person released on probation, a probation officer may, without warrant or other process, rearrest the person so placed in the officer’s care and bring the person before the court, or the court may, in its discretion, issue a warrant for the rearrest of the person. The court may revoke and terminate the probation if the court finds that the person placed on probation is
    1. violating the conditions of probation;
    2. engaging in criminal practices; or
    3. violating an order of the court to participate in or comply with the treatment plan of a rehabilitation program under AS 12.55.015(a)(10) .
  4. If the court finds that the person has successfully completed probation, the court shall, at the end of the probationary period set by the court, or at any time after the expiration of one year from the date the original probation was imposed, discharge the person and dismiss the proceedings against the person. A person who is discharged under this subsection is not convicted of a crime.
  5. If the court finds that the person has violated the conditions of probation ordered by the court, the court may revoke and terminate the person’s probation, enter judgment on the person’s previous plea or finding of guilt, and pronounce sentence at any time within the maximum probation period authorized by this section.
  6. The court may not suspend the imposition or entry of judgment and may not defer prosecution under this section of a person who
    1. is charged with 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 — 11.41.530 , AS 11.46.400 , AS 11.61.125 — 11.61.128 , or AS 11.66.110 — 11.66.135 ;
    2. uses a firearm in the commission of the offense for which the person is charged;
    3. has previously been granted a suspension of judgment under this section or a similar statute in another jurisdiction, unless the court enters written findings that by clear and convincing evidence the person’s prospects for rehabilitation are high and suspending judgment under this section adequately protects the victim of the offense, if any, and the community;
    4. is charged with a violation of AS 11.41.230 , 11.41.250 , or a felony and the person has one or more prior convictions for a misdemeanor violation of AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction having similar elements to an offense defined as a misdemeanor in AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person shall be considered to have a prior conviction even if
      1. the charges were dismissed under this section;
      2. the conviction has been set aside under AS 12.55.085 ; or
      3. the charge or conviction was dismissed or set aside under an equivalent provision of the laws of another jurisdiction; or
    5. is charged with a crime involving domestic violence, as defined in AS 18.66.990 .

History. (§ 77 ch 36 SLA 2016; am §§ 11 — 13 ch 13 SLA 2017)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(h), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.For the effect of the 2016 amendments to this section on Rule 43, Alaska Rules of Criminal Procedure, see sec. 180(c), ch. 36, SLA 2016 in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendments to this section, see sec. 29, ch. 13, SLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2017 amendment, effective June 20, 2017, in (a), added the last sentence; in (f)(1) and (4), substituted “is charged with” for “is convicted of” at the beginning, in (f)(2), substituted “charged” for “convicted” at the end, in (f)(5), substituted “is charged with” for “has been convicted of” at the beginning.

Effective dates. —

Section 188, ch. 36, SLA 2016 makes this section effective July 1, 2016.

Sec. 12.55.080. Suspension of sentence and probation.

Upon entering a judgment of conviction of a crime, or at any time within 60 days from the date of entry of that judgment of conviction, a court, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution or balance of the sentence or a portion thereof, and place the defendant on probation for a period and upon the terms and conditions as the court considers best.

History. (§ 8.08 ch 34 SLA 1962; am § 24 ch 43 SLA 1964; am § 8 ch 68 SLA 1965)

Cross references. —

For modification of sentences, see AS 12.55.088 .

Notes to Decisions

Analysis

I.General Consideration

The power to suspend sentence is not inherent in the judicial branch of government. Pete v. State, 379 P.2d 625 (Alaska 1963).

Such power must be conferred by the legislature. —

The power to suspend sentences exists only when conferred upon the judiciary by the legislature. Pete v. State, 379 P.2d 625 (Alaska 1963).

While courts do not have the inherent power to suspend execution of a sentence, the legislature has given this power to the trial courts. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

And statute will govern. —

When a statute of general application grants sentencing courts the power to suspend all or part of a sentence, that statute will govern unless the legislature specifically provides otherwise. Curtis v. State, 831 P.2d 359 (Alaska Ct. App. 1992).

Parallels 18 U.S.C. § 3651. —

Alaska’s probation statutes, this section, AS 12.55.090 and AS 12.55.100 closely parallel the federal statute, former 18 U.S.C. § 3651, which empowered federal district courts to grant probation. Brown v. State, 559 P.2d 107 (Alaska 1977); Tiedeman v. State, 576 P.2d 114 (Alaska 1978); Gonzales v. State, 608 P.2d 23 (Alaska 1980).

This section and AS 12.55.090 construed in pari materia. —

Since both essentially identical sections were enacted together in § 1, ch. 195, SLA 1955, this section and AS 12.55.090 must be construed with reference to each other as in pari materia. Jackson v. State, 541 P.2d 23 (Alaska 1975).

This section and AS 12.55.085(a) now apply to Title 17. Stonefield v. State, 635 P.2d 494 (Alaska Ct. App. 1981).

Probation as adjunct to suspension of portion of fine. —

Sentencing court had authority under this section to suspend a portion of defendant’s fine and place him on probation, and nothing in the second sentence of AS 12.55.090(a) limited the court’s authority to order unsuspended incarceration, a partially suspended fine, and a period of probation. Putnam v. State, 930 P.2d 1290 (Alaska Ct. App. 1996).

State law prohibits city from enacting ordinance providing for mandatory minimum sentence. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

Mandatory minimum sentences created by city ordinances are invalid when in irreconcilable conflict with state law. Wright v. Municipality of Anchorage, 590 P.2d 425 (Alaska 1979).

Municipal enactments consistent with state laws. —

Because municipalities are generally authorized to enact traffic laws consistent with state motor vehicle statutes, a municipality does not violate the sentencing provisions of this section and AS 12.55.085 if it follows the lead of the state legislature and enacts mandatory jail sentences and mandatory fines and forfeitures of vehicles for the offenses of driving while under the influence and breath-test refusal. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

With suspended sentence probation is mandatory. —

Under this section whenever a sentencing judge suspends a sentence of imprisonment, the judge is required to place the defendant on probation; while the initial decision whether to suspend a sentence of imprisonment is a discretionary one, once all or part of a sentence is suspended, the statute makes probation mandatory. Figueroa v. State, 689 P.2d 512 (Alaska Ct. App. 1984).

No review of own sentence after 60 days. —

There is no authority which would sanction the expansion of the superior court’s jurisdiction to pass sentence into a realm of review and modification which is statutorily vested in either the supreme court or the executive branch of government. Therefore, the superior court lacks jurisdiction to review its own sentence, after it has entered a judgment on the matter, more than 60 days after it has imposed sentence. Davenport v. State, 543 P.2d 1204 (Alaska 1975).

Court has no power to order probation more than 60 days after sentence is imposed. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

However, recommendation regarding probation does not contravene prohibition. Shagloak v. State, 582 P.2d 1034 (Alaska 1978), vacated, 597 P.2d 142 (Alaska 1979).

Different limitations of probation period. —

Under this section, a court may suspend the execution of all or a portion of a sentence and place the defendant on probation “for a period and upon the terms and conditions as the court considers best.” That period of probation, however, is specifically limited by AS 12.55.090(c) to a maximum of 5 years [now (c)(2) — 10 years]. This differs from probation granted after the court suspends the imposition of any sentence under AS 12.55.085(a) . Tiedeman v. State, 576 P.2d 114 (Alaska 1978); Elstad v. State, 599 P.2d 137 (Alaska 1979).

Where the court actually imposed sentence and suspended the execution of a portion thereof, the only statutory limitation on the term of probation is that contained in AS 12.55.090(c) . Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where probation is granted after the court suspends the imposition of any sentence, the legislature has specifically limited the period of probation to a term not to exceed the maximum sentence which could be imposed for the particular offense. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

The five-year limitation contained in AS 12.55.090(c) [now (c)(2) — 10 years] applies only to the period of probation to be served after the imposition of a sentence and suspension of all or a portion thereof pursuant to this section. Thus, the superior court is not bound to credit the period already served under its original order suspending imposition of sentence pursuant to AS 12.55.085(a) , when considering the maximum sentence or period of probation it can impose under AS 12.55.085(c) upon violation of the original probation conditions. Rice v. State, 603 P.2d 913 (Alaska 1979).

Probationer cannot claim bail under probation statutes, this section and AS 12.55.110 , since they fail to mention bail. Martin v. State, 517 P.2d 1389 (Alaska 1974).

Applied in

Hoffman v. State, 404 P.2d 644 (Alaska 1965); Speas v. State, 511 P.2d 130 (Alaska 1973); Call v. State, 511 P.2d 135 (Alaska 1973); White v. State, 523 P.2d 428 (Alaska 1974); Jones v. State, 548 P.2d 958 (Alaska 1976); Andrews v. State, 552 P.2d 150 (Alaska 1976); Thomas v. State, 566 P.2d 630 (Alaska 1977); Honeycutt v. State, 583 P.2d 805 (Alaska 1978); Deal v. State, 587 P.2d 740 (Alaska 1978); Gilbert v. State, 598 P.2d 87 (Alaska 1979); Loola v. State, 608 P.2d 36 (Alaska 1980); Druck v. State, 616 P.2d 15 (Alaska 1980); Edwin v. State, 762 P.2d 499 (Alaska Ct. App. 1988); Christensen v. State, 844 P.2d 557 (Alaska Ct. App. 1993); State Dep't of Corr. v. Lundy, 188 P.3d 692 (Alaska Ct. App. 2008); Eberhardt v. State, 275 P.3d 560 (Alaska Ct. App. 2012).

Quoted in

Hofhines v. State, 511 P.2d 1292 (Alaska 1973); Charles v. State, 606 P.2d 390 (Alaska 1980); State v. Staael, 807 P.2d 513 (Alaska Ct. App. 1991); Chinuhuk v. State, 472 P.3d 511 (Alaska 2020).

Stated in

Wylie v. State, 797 P.2d 651 (Alaska Ct. App. 1990); State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

Cited in

Wacek v. State, 530 P.2d 751 (Alaska 1975); Taylor v. State, 564 P.2d 1219 (Alaska 1977); Szeratics v. State, 572 P.2d 63 (Alaska 1977); Rice v. State, 589 P.2d 419 (Alaska 1979); Gilbert v. State, 598 P.2d 87 (Alaska 1979); Lock v. State, 609 P.2d 539 (Alaska 1980); Nielsen v. State, 627 P.2d 1077 (Alaska 1981); Morris v. State, 630 P.2d 13 (Alaska 1981); Miller v. State, 629 P.2d 546 (Alaska Ct. App. 1981); Lacquement v. State, 644 P.2d 856 (Alaska Ct. App. 1982); Burt v. State, 823 P.2d 14 (Alaska Ct. App. 1991).

II.Amendment of Sentence

Severity of original punishment may not be increased. —

A court does not have the power to amend a sentence in a manner which would increase the severity of the punishment originally imposed. Chase v. State, 479 P.2d 337 (Alaska 1971).

There is no authority under Alaska law which permits a court, when probation is revoked, to impose a fixed sentence, require the defendant to serve that sentence, and then place the defendant on an additional period of probation following service of the sentence. Franzen v. State, 573 P.2d 55 (Alaska 1978).

Increase in minimum period of incarceration. —

An increase in the minimum period of incarceration required before becoming eligible for parole is an increase in the sentence. Nelson v. State, 617 P.2d 502 (Alaska 1981).

A probation revocation order which increased the minimum period that a defendant must spend in jail violated his double jeopardy rights as well as the command of AS 33.05.070(b) which states that a court, upon revocation of probation, may order the defendant to serve the sentence originally imposed, or a lesser sentence, but not a greater one. Nelson v. State, 617 P.2d 502 (Alaska 1981).

Amended sentence replacing initial term of imprisonment with employment as fire fighter, so that each day spent working would be considered the equivalent of a day spent in jail, would have been well within the power accorded to a sentencing magistrate under Alaska law. Chase v. State, 479 P.2d 337 (Alaska 1971).

Amended sentence which merely defers imprisonment while the defendant is in the custody of a person named in the amended sentence, would be unlawful and void under the rule that a court does not have the power to amend a sentence in a manner which would increase the severity of the punishment originally imposed. Chase v. State, 479 P.2d 337 (Alaska 1971).

Judge’s modification of sentence not violative of double jeopardy provision. —

Judge’s oversight in not imposing suspended time in conjunction with the two-year probation was an obvious error and modification of the sentence, moments after imposition, to include suspended time, did not violate constitutional prohibition of double jeopardy. Dentler v. State, 661 P.2d 1098 (Alaska Ct. App. 1983).

Correction of oral sentence permissible. —

Where an oral sentence, as originally pronounced, suspended two years of imprisonment without providing for any period of probation whatsoever, the oral sentence was obviously incomplete when first pronounced and, therefore, not meaningfully imposed; correction of the original sentence was permissible under the circumstances. Figueroa v. State, 689 P.2d 512 (Alaska Ct. App. 1984).

III.Conditions of Probation

This section provides for imposition of conditions of probation. Snyder v. State, 496 P.2d 62 (Alaska 1972).

Judicial supervision of probation held proper. —

Nothing in this section prohibits a trial judge from imposing on a juvenile defendant who has violated AS 04.16.050 a requirement for defendant to report back to the judge every other week, to provide updates on the status of the probation. Jackson v. State, 127 P.3d 835 (Alaska Ct. App. 2006).

Fines. —

Sentencing court may impose a fine as a condition of probation upon a defendant’s conviction of a crime which is not directly punishable by a fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

Given the specific authorization emanating from AS 12.55.100(a)(1) which permits the trial court to impose a fine as a condition of probation, together with the need for flexibility on the part of the sentencing court in fashioning appropriate conditions of probation, where probation is warranted, a rational harmonization and construction of AS 12.55.090(a) and AS 12.55.100(a)(1) leads to the conclusion that a sentencing court is empowered to make payment of a fine a condition of probation, even in the circumstance where the crime is only punishable by imprisonment, or by imprisonment or fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

Authority to impose term of imprisonment as condition of probation prior to enactment of AS 12.55.086 . —

See Boyne v. State, 586 P.2d 1250 (Alaska 1978).

Imposition of jail time as condition of probation. —

When it was not imposed in accordance with AS 12.55.086(a) , the requirement of jail time as a special condition of probation was illegal, and the sentence must, therefore, be vacated and the case remanded for resentencing. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

Condition of probation vacated. —

A probation condition that prohibited a defendant from part of the Anchorage downtown area, the city’s “high crime district,” effectively prohibited the defendant from maintaining his residence and employment and was vacated because there was no clear nexus between the area and the defendant’s misconduct; the condition was unnecessarily severe and restrictive, encompassing an area of 45 blocks; and the condition was not reasonably related to the defendant’s rehabilitation. Jones v. State, 727 P.2d 6 (Alaska Ct. App. 1986).

Record was insufficient to support imposition of a special probation condition that required defendant to attend and complete sex offender treatment where there was no evidence at sentencing that defendant had sexually assaulted his girlfriend. The only mention of sexual assault had been made by the victim at the time of the offense and she later recanted her statements on that point. Frankson v. State, — P.3d — (Alaska Ct. App. Aug. 22, 2012) (memorandum decision).

Review of conditions of probation. —

Conditions of probation in a case involving third degree assault were appropriate to the extent that they dealt with searches relating to drugs and alcohol because a trial judge found that defendant had a substance abuse problem; however, a broad condition of probation allowing for searches for other contraband was not warranted by the findings. Lambert v. State, 172 P.3d 838 (Alaska Ct. App. 2007).

IV.Revocation of Probation

Period during which suspended sentence may be revoked. —

When the Alaska legislators provided that a court “may suspend the imposition or execution . . . of the sentence . . . and place the defendant on probation . . .” the period during which a suspended sentence may be revoked is subject to the same restriction as the period of probation under AS 12.55.090 . Jackson v. State, 541 P.2d 23 (Alaska 1975).

Summary hearings upon revocation of suspended sentence have been upheld. State v. Devoe, 560 P.2d 12 (Alaska 1977).

What is required in such hearings is the exercise of conscientious judgment, and not arbitrary action; that the discretion of the court has not been abused; and that the facts revealed at the hearing satisfy the court that the modification or revocation of the sentence, or a part thereof, will serve the ends of justice. State v. Devoe, 560 P.2d 12 (Alaska 1977).

Trial judge who imposes the sentence has broad discretionary powers to revoke probation. Snyder v. State, 496 P.2d 62 (Alaska 1972).

The trial judge who imposed the sentence has certain broad discretionary powers to revoke probation. The probationer may not complain if he has been given ample opportunity to appear before the court imposing the sentence, he has been permitted to combat the accusation or charges against him, and there has been no abuse of discretion on the part of the court. State v. Devoe, 560 P.2d 12 (Alaska 1977).

Authority of judge.—

Regardless of defendant's probationary status during his delayed-remand period, the sentencing judge had the authority to revoke his probation and impose some or all of his suspended time based on his new convictions. Debeaulieau v. State, — P.3d — (Alaska Ct. App. Aug. 24, 2016).

Independent determination of good cause required. —

The requirement of an independent determination of good cause beyond mere proof of a probation violation for revocation of probation applies to cases involving suspended impositions of sentence under this section and AS 12.55.085(a) as well as to cases involving suspended executions of sentence under this section. Rich v. State, 640 P.2d 159 (Alaska Ct. App. 1982).

Conviction of crime is not prerequisite to finding a violation of probation and revoking that probation. Snyder v. State, 496 P.2d 62 (Alaska 1972).

It is not an abuse of the court’s discretion to revoke probation solely for the commission of a crime in the absence of formal charges and conviction. Snyder v. State, 496 P.2d 62 (Alaska 1972).

The probationer may not complain if he has been given ample opportunity to appear before the court imposing the sentence, he has been permitted to combat the accusation or charges against him, and there has been no abuse of discretion on the part of the court. Snyder v. State, 496 P.2d 62 (Alaska 1972).

Where the grounds for the revocation of the sentence is based upon the violation of conditions of the probation which amount, in themselves, to a crime, it is not necessary before a hearing on the revocation of the suspended sentence may be held that the probationer must be tried and convicted of the crime alleged. State v. Devoe, 560 P.2d 12 (Alaska 1977).

Probation can be revoked on basis of conviction which is on appeal and, therefore, not yet final. Alexander v. State, 578 P.2d 591 (Alaska 1978).

A conviction, with the attendant constitutional safeguards, constitutes sufficient “good cause” to find that conditions of probation have been violated and that probation should be revoked. Alexander v. State, 578 P.2d 591 (Alaska 1978).

Collateral references. —

Appealability of order suspending imposition or execution of sentence. 51 ALR4th 939.

Sec. 12.55.085. Suspending imposition of sentence.

  1. Except as provided in (f) of this section, if it appears that there are circumstances in mitigation of the punishment, or that the ends of justice will be served, the court may, in its discretion, suspend the imposition of sentence and may direct that the suspension continue for a period of time, not exceeding the maximum term of sentence that may be imposed or a period of one year, whichever is greater, and upon the terms and conditions that the court determines, and shall place the person on probation, under the charge and supervision of the probation officer of the court during the suspension.
  2. At any time during the probationary term of the person released on probation, a probation officer may, without warrant or other process, rearrest the person so placed in the officer’s care and bring the person before the court, or the court may, in its discretion, issue a warrant for the rearrest of the person.  The court may revoke and terminate the probation if the interests of justice require, and if the court, in its judgment, has reason to believe that the person placed upon probation is
    1. violating the conditions of probation;
    2. engaging in criminal practices; or
    3. violating an order of the court to participate in or comply with the treatment plan of a rehabilitation program under  AS 12.55.015(a)(10) .
  3. Upon the revocation and termination of the probation, the court may pronounce sentence at any time within the maximum probation period authorized by this section, subject to the limitation specified in  AS 12.55.086(c) .
  4. The court may at any time during the period of probation revoke or modify its order of suspension of imposition of sentence.  It may at any time, when the ends of justice will be served, and when the good conduct and reform of the person held on probation warrant it, terminate the period of probation and discharge the person held.  If the court has not revoked the order of probation and pronounced sentence, the defendant shall, at the end of the term of probation, be discharged by the court.
  5. Upon the discharge by the court without imposition of sentence, the court may set aside the conviction and issue to the person a certificate to that effect.
  6. The court may not suspend the imposition of sentence of a person who
    1. is convicted of 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 — 11.41.530 ,  AS 11.46.400 ,  AS 11.61.125 — 11.61.128 , or  AS 11.66.110 — 11.66.135 ;
    2. uses a firearm in the commission of the offense for which the person is convicted; or
    3. is convicted of a violation of  AS 11.41.230 — 11.41.250 or a felony and the person has one or more prior convictions for a misdemeanor violation of  AS 11.41 or for a felony or for a violation of a law in this or another jurisdiction having similar elements to an offense defined as a misdemeanor in  AS 11.41 or as a felony in this state; for the purposes of this paragraph, a person shall be considered to have a prior conviction even if that conviction has been set aside under (e) of this section or under the equivalent provision of the laws of another jurisdiction.

History. (§ 1 ch 50 SLA 1965; am § 2 ch 32 SLA 1979; am §§ 1, 2 ch 36 SLA 1988; am § 2 ch 188 SLA 1990; am § 1 ch 196 SLA 1990; am § 7 ch 40 SLA 1993; am §§ 1, 2 ch 96 SLA 1994; am § 1 ch 55 SLA 1996; am § 13 ch 18 SLA 2010; am § 20 ch 43 SLA 2013)

Cross references. —

Original Code Provisions — Same.

Cross references. —

For restrictions on suspending imposition of sentence, see AS 04.16.200(d) , AS 12.55.125(f) , (g), and ( l ), 12.55.135(e) and (i), AS 16.30.010(c) , AS 28.33.150(b) , 28.35.030(b) and (n), and 28.35.032 (g) and (p).

Effect of amendments. —

The 2010 amendment, effective July 1, 2010, in (f), in the introductory language, added “11.41.360 — 11.41.370 ” and “or AS 11.61.125 — 11.61.128 ”, and in (f)(3) deleted “substantially” preceding “similar elements to an offense”.

The 2013 amendment, effective July 1, 2013, at the end of (f)(1), added “, or AS 11.66.110 — 11.66.135 ” and made a related change.

Editor’s notes. —

Section 2, ch. 55, SLA 1996 provides that the amendments to subsection (f) made by § 1, ch. 55, SLA 1996 apply “to offenses committed on or after September 4, 1996,” except that references “to prior convictions refer to convictions occurring before, on, or after September 4, 1996”.

Section 21(a), ch. 18, SLA 2010, provides that the 2010 amendment of (f) of this section applies to offenses committed on or after July 1, 2010.

Under sec. 46(a), ch. 43, SLA 2013, the 2013 changes to (f) of this section apply to offenses committed on or after July 1, 2013.

Legislative history reports. —

For governor’s transmittal letter for ch. 18, SLA 2010 (Senate Bill 222), relating to the amendment of (f) of this section, see 2010 Senate Journal 1237 — 1239.

Notes to Decisions

Analysis

I.General Consideration

AS 12.55.080 and subsection (a) now apply to Title 17. Stonefield v. State, 635 P.2d 494 (Alaska Ct. App. 1981).

Application of paragraph (f)(1). —

Because the rule of lenity must prevail where legislative intent is ambiguous, and because it could not be said with certainty that the legislature intended to bar courts from imposing a suspended sentence for convictions of conspiracy, the appellate court ruled that this section did not preclude a court from granting a suspended sentence to persons convicted of conspiracy to commit one of the listed crimes. George v. State, 988 P.2d 1116 (Alaska Ct. App. 1999).

Application of paragraph (f)(2). —

Defendant’s claim that paragraph (f)(2) should be interpreted as applying only to crimes against people, not all crimes, was held not persuasive. Orr-Hickey v. State, 973 P.2d 612 (Alaska Ct. App. 1999).

Disposition should be limited. —

A suspended imposition of sentence is primarily meant to be a one-time opportunity for particularly deserving first-offenders. It is a disposition ill-suited for repeated use with a persistent offender. State v. Huletz, 838 P.2d 1257 (Alaska Ct. App. 1992).

State law prohibits city from enacting ordinance providing for mandatory minimum sentence. City of Kodiak v. Jackson, 584 P.2d 1130 (Alaska 1978).

Mandatory minimum sentences created by city ordinances are invalid when in irreconcilable conflict with state law. Wright v. Municipality of Anchorage, 590 P.2d 425 (Alaska 1979).

Municipal enactments consistent with state laws. —

Because municipalities are generally authorized to enact traffic laws consistent with state motor vehicle statutes, a municipality does not violate the sentencing provisions of AS 12.55.080 and this section if it follows the lead of the state legislature and enacts mandatory jail sentences and mandatory fines for the offenses of driving while under the influence and breath-test refusal. McCormick v. Municipality of Anchorage, 999 P.2d 155 (Alaska Ct. App. 2000).

Different limitations of probation period. —

Under AS 12.55.080 , a court may suspend the execution of all or a portion of a sentence and place the defendant on probation “for a period and upon the terms and conditions as the court considers best.” That period of probation, however, is specifically limited by AS 12.55.090(c) . This differs from probation granted after the court suspends the imposition of any sentence under subsection (a) of this section. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where probation is granted after the court suspends the imposition of any sentence, the legislature has specifically limited the period of probation to a term not to exceed the maximum sentence which could be imposed for the particular offense. Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Where the court actually imposed sentence and suspended the execution of a portion thereof, the only statutory limitation on the term of probation is that contained in AS 12.55.090(c) . Tiedeman v. State, 576 P.2d 114 (Alaska 1978).

Granting credit toward sentence. —

This section merely defines the period in which sentencing may be imposed after it has been deferred; it in no sense precludes the granting of credit towards that sentence. Lock v. State, 609 P.2d 539 (Alaska 1980).

Upon revocation of probation, one is entitled to credit against his sentence on the original offense for time spent, as a condition of probation, in a rehabilitation program which imposes substantial restrictions on one’s freedom of movement and behavior. Lock v. State, 609 P.2d 539 (Alaska 1980).

The limitation contained in AS 12.55.090(c) applies only to the period of probation to be served after the imposition of a sentence and suspension of all or a portion thereof pursuant to AS 12.55.080 . Therefore, in calculating the period of probation allowable under AS 12.55.090(c) , the court was not bound to consider the period of probation already served by defendant under its original order suspending the imposition of sentence pursuant to subsection (a). Elstad v. State, 599 P.2d 137 (Alaska 1979); Rice v. State, 603 P.2d 913 (Alaska 1979).

Period of suspension must begin when order entered. —

The trial court was not clearly mistaken in imposing a sentence of six years’ imprisonment for a forgery count, with three years suspended, and in suspending imposition of sentence for a count of uttering a check with insufficient funds for a stated period of five years the period of suspension to run consecutively to the sentence for forgery, except to the extent that the trial court appeared to have suspended the imposition of sentence for the uttering count for a period of time one year in excess of that permitted by this section. Cochran v. State, 586 P.2d 175 (Alaska 1978).

Since there was no logical way that the trial court could cause the period of suspension to begin several years in the future, i.e., at the end of the six-year term for forgery, and the period of suspension and probationary term had to begin when the trial court’s order was entered, the supreme court held that what the judgment meant was that the imposition of sentence on the charge of uttering a check with insufficient funds was suspended, and defendant placed on probation, from the date of its entry until five years after the defendant’s six-year term of imprisonment expired. Cochran v. State, 586 P.2d 175 (Alaska 1978).

Discretion of sentencing court. —

Whether or not a sentencing court should impose a suspended imposition of sentence in a given case is, by subsection (a), left to the discretion of the sentencing court. Nattrass v. State, 554 P.2d 399 (Alaska 1976).

Subsection (a) of this section reposes discretion in the trial court to suspend imposition of the sentence and place the defendant on probation. Mullins v. State, 573 P.2d 860 (Alaska 1978).

The state legislature has conferred broad discretionary powers on the sentencing court to establish conditions of probation when imposition of sentence is to be deferred. Sprague v. State, 590 P.2d 410 (Alaska 1979).

When sentencing alternative should be considered. —

Generally, in the circumstances of youthful first offenders, who have committed nonviolent crimes, serious consideration should be given by Alaska’s trial courts to the sentencing alternative offered by subsection (a) of this section. Nattrass v. State, 554 P.2d 399 (Alaska 1976); Wharton v. State, 590 P.2d 427 (Alaska 1979); Troyer v. State, 614 P.2d 313 (Alaska 1980); Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

When suspended sentence prohibited. —

The prohibition against the granting of a suspended imposition of sentence applies to persons convicted of an attempt to commit one of the sexual offenses defined in the criminal code. Mack v. State, 900 P.2d 1202 (Alaska Ct. App. 1995).

Suspended sentence requirements for minors. —

Because the sentencing judge declared that he would not have suspended the imposition of defendant’s sentence even if he had the authority to do so, and because the record supported the judge’s decision, defendant’s contention that the statutory limitation on suspended impositions of sentence was unconstitutional when applied to minors was moot. Jelks v. State, — P.3d — (Alaska Ct. App. May 2, 2012) (memorandum decision).

Superior court did not abuse discretion in failing to impose suspended imposition of sentence. —

See Nattrass v. State, 554 P.2d 399 (Alaska 1976).

Where at the time of sentencing for the crime of embezzlement by an employee of property worth more than $100, defendant was 22 years old, had been working several years and had spent two semesters in college, and, other than minor traffic violations, he had no previous criminal record, the trial court was not clearly mistaken in failing to order a suspended imposition of sentence, instead of actually imposing a sentence of three years and four months, with the entire period suspended upon the condition that he enter a twelve-month period of public service. Mullins v. State, 573 P.2d 860 (Alaska 1978).

It was not an abuse of discretion to deny defendant's request for a suspended imposition of sentence upon defendant's conviction for fourth-degree assault for striking and injuring defendant's wife because defendant (1) was a mature offender, (2) had previously engaged in similar conduct, (3) disabled family vehicles to prevent his wife's escape, (4) was a threat despite a restraining order with which he found it difficult to comply, and (5) refused to take responsibility. Parson v. State, 404 P.3d 227 (Alaska Ct. App. 2017) (memorandum decision).

In a third-degree criminal mischief case in which defendant broke into a church and caused significant damage to church property and to various items of religious significance, the superior court's decision to impose a conviction of record and to deny defendant's request for a suspended imposition of sentence was not clearly mistaken based on the seriousness of the crime and the extraordinary damage it caused. Garcia v. State, — P.3d — (Alaska Ct. App. Jan. 9, 2019) (memorandum decision).

Appellate jurisdiction. —

Alaska Court of Appeals had jurisdiction to hear defendant's appeal of the denial of a suspended imposition of sentence (SIS) because the Court's jurisdiction to review non-term-of-imprisonment sentence appeals regardless of the length of a term of imprisonment included SIS denials, as the opportunity to set a conviction aside upon successfully completing probation made an SIS a unique disposition in which the Court was more likely to recognize error. Parson v. State, 404 P.3d 227 (Alaska Ct. App. 2017).

Alaska’s trial judges totally barred from engaging in either charge or sentencing bargaining. —

See State v. Buckalew, 561 P.2d 289 (Alaska 1977).

Sentence modification. —

Where the defendant detrimentally relied on the statement of an assistant district attorney that a plea agreement would not affect the renewal of his hunting license, he was to be provided with the opportunity to request that the sentencing court modify his sentencing conditions, notwithstanding any statute of limitations otherwise imposed on such modification. Boyd v. Department of Commerce & Econ. Dev., Div. of Occupational Licensing, 977 P.2d 113 (Alaska 1999).

Applied in

Speas v. State, 511 P.2d 130 (Alaska 1973); Call v. State, 511 P.2d 135 (Alaska 1973); White v. State, 523 P.2d 428 (Alaska 1974); Andrews v. State, 552 P.2d 150 (Alaska 1976); Franzen v. State, 573 P.2d 55 (Alaska 1978); Wharton v. State, 590 P.2d 427 (Alaska 1979); Anderson v. State, 621 P.2d 1345 (Alaska 1981); Lowry v. State, 655 P.2d 780 (Alaska Ct. App. 1982); Davis v. State, 706 P.2d 1198 (Alaska Ct. App. 1985); Owings v. State, 771 P.2d 455 (Alaska Ct. App. 1989); Christensen v. State, 844 P.2d 557 (Alaska Ct. App. 1993); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994); Eberhardt v. State, 275 P.3d 560 (Alaska Ct. App. 2012).

Quoted in

Fresneda v. State, 458 P.2d 134 (Alaska 1969); Edinger v. State, 598 P.2d 943 (Alaska 1979); Mangold v. State, 613 P.2d 272 (Alaska 1980); Benboe v. State, 738 P.2d 356 (Alaska Ct. App. 1987); Gwalthney v. State, 964 P.2d 1285 (Alaska Ct. App. 1998).

Cited in

Barrett v. State, 546 P.2d 161 (Alaska 1976); Thomas v. State, 566 P.2d 630 (Alaska 1977); Gilbert v. State, 598 P.2d 87 (Alaska 1979); Schmid v. State, 615 P.2d 565 (Alaska 1980); M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982); Baker v. State, 655 P.2d 1324 (Alaska Ct. App. 1983); Dodd v. State, 686 P.2d 737 (Alaska Ct. App. 1984); Luepke v. State, 765 P.2d 988 (Alaska Ct. App. 1988); State v. Staael, 807 P.2d 513 (Alaska Ct. App. 1991); Maves v. State, 479 P.3d 399 (Alaska 2021).

Stated in

State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020); State v. Meyers, 479 P.3d 840 (Alaska Ct. App. 2020).

II.Conditions of Probation

Authority to impose period of incarceration as condition of probation prior to enactment of AS 12.55.086 . —

See Boyne v. State, 586 P.2d 1250 (Alaska 1978); Sprague v. State, 590 P.2d 410 (Alaska 1979).

Imposition of jail time as condition of probation. —

Imposition of jail time as a special condition of probation is not authorized under the Alaska statutes governing probation generally. Alaska law does, however, permit the imposition of jail time as a special condition of probation when the imposition of sentence is suspended under this section, as provided by AS 12.55.086(a) . Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

When it was not imposed in accordance with AS 12.55.086(a) , the requirement of jail time as a special condition of probation was illegal, and the sentence must, therefore, be vacated and the case remanded for resentencing. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

III.Revocation of Probation

Subsection (b) provides for the revocation of probation for the violation of conditions imposed or engaging in criminal practices. Snyder v. State, 496 P.2d 62 (Alaska 1972).

In order to revoke probation, the state must prove a violation of a specific condition of probation. Holton v. State, 602 P.2d 1228 (Alaska 1979).

Anticipatory revocation. —

It was no error to revoke defendant's probation based on the commission of a new offense because, whether or not probation had commenced, or whether defendant had notice of commencement, or if the probationary term were stayed, a trial court had the authority to anticipatorily revoke probation when defendant committed new criminal offenses. Linden v. Municipality of Anchorage, — P.3d — (Alaska Ct. App. Sept. 25, 2019) (memorandum decision).

This section provides an independent basis for the court’s terminating probation at any point during the period of the suspended imposition of sentence if the probationer engages in criminal practices. Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

Revocation of probation before the probationary term begins does not impermissibly extend the term in violation of AS 12.55.090(c) . Enriquez v. State, 781 P.2d 578 (Alaska Ct. App. 1989).

When the accused has engaged in “criminal practices,” the sentencing court has the authority to revoke probation, even when the probationary term has not yet commenced. Enriquez v. State, 781 P.2d 578 (Alaska Ct. App. 1989).

Probation can be revoked on the basis of a conviction which is on appeal and, therefore, not yet final. Alexander v. State, 578 P.2d 591 (Alaska 1978).

Prior notice of charges required. —

Constitutional due process does require that a probationer accused of violating a condition of his probation receive prior notice of the charges against him and that he be given an opportunity to meet and refute the charges. Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

As well as independent determination of good cause. —

The requirement of an independent determination of good cause beyond mere proof of a probation violation for revocation of probation applies to cases involving suspended impositions of sentence under AS 12.55.080 and subsection (a) of this section, as well as to cases involving suspended executions of sentence under AS 12.55.080 . Rich v. State, 640 P.2d 159 (Alaska Ct. App. 1982).

State’s burden in seeking probation revocation is to establish a probation violation by a preponderance of the evidence. Burrell v. State, 626 P.2d 1087 (Alaska Ct. App. 1981).

Disposition on probation revocation. —

The disposition when probation is revoked should be based on consideration of all relevant matters, including the probationer’s original crime, his intervening conduct; and the violations of probation. Nix v. State, 624 P.2d 825 (Alaska Ct. App. 1981).

IV.Setting Conviction Aside

When set-aside orders may be entered. —

Set-aside orders may be entered only in cases where a sentence has never formally been imposed against the defendant. Richey v. State, 717 P.2d 407 (Alaska Ct. App. 1986); Champion v. State, 908 P.2d 454 (Alaska Ct. App. 1995).

Where the judge had already rescinded defendant’s suspended imposition of sentence and had formally imposed sentence and defendant was never discharged from probation under subsection (d), the judge had no authority to set aside his conviction under subsection (e). Richey v. State, 717 P.2d 407 (Alaska Ct. App. 1986).

Granting set-aside as matter of right. —

No affirmative showing or finding of rehabilitation need be made before a set-aside is granted; rather, a set-aside should be granted as a matter of right unless some specific reason for denial is established. Wickham v. State, 770 P.2d 757 (Alaska Ct. App. 1989).

Notice of refusal to set aside conviction. —

Before a sentencing court may refuse to set aside a conviction under subsection (e), the defendant must be given notice that there is reason to believe a set-aside should not be granted, with a precise statement of the reason or reasons, and must be afforded an opportunity for a hearing on the set-aside issue. Mekiana v. State, 707 P.2d 918 (Alaska Ct. App. 1985), rev'd, 726 P.2d 189 (Alaska 1986).

Explanation by court. —

By enacting the set-aside language of subsection (e), the legislature clearly intended to provide probationers who received a suspended imposition of sentence with the prospect of a clean slate and the promise of a new beginning upon successful completion of probation; a sentencing court cannot thwart this legislative goal — or, for that matter, hinder appellate review — by denying such relief without explanation. Mekiana v. State, 707 P.2d 918 (Alaska Ct. App. 1985), rev'd, 726 P.2d 189 (Alaska 1986).

Correct remedy where defendant discharged from probation and denied set aside without prior notice and hearing was not an automatic set-aside but a delayed hearing on the set aside issue. State v. Mekiana, 726 P.2d 189 (Alaska 1986).

Effect of setting aside conviction on registration requirement. —

Applying the Alaska Sex Offender Registration Act, AS 12.63.010 et seq., to a person whose conviction was set aside under this section, before the Act became specifically applicable to convictions that were set aside unconstitutionally interfered with the individual’s liberty interests and was not justified by a compelling governmental interest. Doe v. Dep't of Public Safety, 92 P.3d 398 (Alaska 2004).

Effect on professional certification of setting aside conviction. —

Nursing board, in denying an application for certification as a nurse aide, did not err in considering the applicant’s previous felony forgery conviction, notwithstanding that the conviction had been set aside; setting aside an individual’s conviction does not expunge the conviction from the individual’s criminal record, and the applicant remained a person who was “convicted” of a criminal offense within the meaning of AS 08.68.334 (2). State v. Platt, 169 P.3d 595 (Alaska 2007).

Belated set-aside hearing comporting with due process. —

A belated set-aside hearing will not offend due process as long as the trial court (1) considers only those facts existing at the time the probationer was discharged and (2) explains on the record its reasons for denying a set aside. In other words, the court must decide the set-aside question based upon an evaluation of the defendant’s conduct and situation as of the date of discharge from probation. State v. Mekiana, 726 P.2d 189 (Alaska 1986).

Belated set-aside hearing related back to date defendant was discharged from probation, where the defendant completed probation on a suspended imposition of sentence and had the conviction set aside in a belated set-aside hearing. Hansen v. State, 824 P.2d 1384 (Alaska Ct. App. 1992).

When expungement authorized. —

The inherent authority of courts to expunge criminal records did not extend to a defendant who received a suspended sentence and had his conviction set aside after he completed probation, but who never established his factual innocence nor challenged the conviction or the underlying arrest; nor is there authority to expunge a charge which was dismissed because the state obtained evidence in violation of a warrant, since neither the validity of the substantive information nor fundamental fairness was implicated. Journey v. State, 850 P.2d 663 (Alaska Ct. App. 1993), aff'd, 895 P.2d 955 (Alaska 1995).

Expunction not part of set aside. —

Expunction of a defendant’s criminal record is not authorized under the set-aside provisions of subsection (e). The district court lacked statutory authority to order the criminal record expunged upon “discharge by the court without imposition of sentence” and the subsequent setting aside of his conviction. Journey v. State, 895 P.2d 955 (Alaska 1995).

Set-aside conviction not to be used for impeachment. —

The set-aside provisions of this section “require a substantial showing of rehabilitation,” within the meaning of Alaska Rule of Evidence 609 (d)(2). Accordingly, a prior conviction may not be relied on for impeachment purposes after it has been set aside pursuant to this section. Wickham v. State, 844 P.2d 1140 (Alaska Ct. App. 1993).

Set-aside order properly denied. —

Trial court properly denied defendant’s motion to set aside his prior convictions because, although defendant’s three-year probationary term had passed, defendant had made no effort to contact the Department of Corrections or to fulfill his obligations; therefore, defendant did not successfully complete his probation. Hanson v. State, 210 P.3d 1240 (Alaska Ct. App. 2009).

Erroneous set-aside order. —

When defendant appealed a conviction, staying defendant's probation, but a trial court erroneously believed defendant continued on probation during the appeal, and, as a result, issued an erroneous order discharging defendant from probation and setting aside defendant's conviction, double jeopardy did not bar the court from correcting the court's mistake because jeopardy did not attach to the court's plainly erroneous discharge and set-aside order. Starkey v. State, 382 P.3d 1209 (Alaska Ct. App. 2016).

Collateral references. —

Propriety of considering acts because of which probation was revoked in imposing sentence for original offense after revocation of probation. 65 A.L.R.3d 1100.

Judicial expunction of criminal record of convicted adult in absence of authorizing statute, 68 ALR6th 1.

Judicial expunction of criminal record of convicted adult under statute — general principles, and expunction of criminal records under statutes providing for such relief where criminal proceeding is terminated in favor of defendant, upon completion of probation, upon suspended sentence, and where expungement relief predicated upon type, and number, of offenses, 69 ALR6th 1.

Judicial expunction of criminal record of convicted adult under statute — expunction under statutes addressing “first offenders” and “innocent persons,” where conviction was for minor drug or other offense, where indictment has not been presented against accused or accused has been released from custody, and where court considered impact of nolle prosequi, partial dismissal, pardon, rehabilitation, and lesser-included offenses, 70 ALR6th 1.

Sec. 12.55.086. Imprisonment as a condition of suspended imposition of sentence.

  1. When the imposition of sentence is suspended under AS 12.55.085 , the court may require, as a special condition of probation, that the defendant serve a definite term of continuous or periodic imprisonment, not to exceed the maximum term of imprisonment that could have been imposed. The court may recommend that the defendant serve all or part of the term in a correctional restitution center.
  2. A defendant imprisoned under this section is entitled to a deduction from the term of imprisonment for good conduct under AS 33.20.010 .  Unless otherwise specified in the order of suspension of imposition of sentence, a defendant imprisoned under this section is eligible for parole if the term of imprisonment exceeds one year and is eligible for any work furlough, rehabilitation furlough, or similar program available to other state prisoners.
  3. If probation is revoked and the defendant is sentenced to imprisonment, the defendant shall receive credit for time served under this section.  Deductions for good conduct under AS 33.20.010 do not constitute “time served.”

History. (§ 1 ch 32 SLA 1979; am § 4 ch 72 SLA 1985)

Administrative Code. —

For eligibility for discretionary parole, see 22 AAC 20, art. 1.

Notes to Decisions

For legislative history of this section, see Zurfluh v. State, 620 P.2d 690 (Alaska 1980).

Retroactive application. —

This section may be applied retrospectively to the 153-day period between the decision in State v. Boyne , 586 P.2d 1250 (Alaska 1978) and the effective date of this section. Zurfluh v. State, 620 P.2d 690 (Alaska 1980).

Logic used by court in Zurfluh v. State, 620 P.2d 690 (Alaska 1980), to make this section retroactive applies with equal force to cases in which sentencings occurred prior to the decision in Boyne v. State, 586 P.2d 1250 (Alaska 1978), and cases in which sentencing took place after Boyne was decided, but before this section took effect. Whittemore v. State, 650 P.2d 411 (Alaska Ct. App. 1982).

This section has no application to a children’s proceeding. M.O.W v. State, 645 P.2d 1229 (Alaska Ct. App. 1982).

When jail time may be imposed as condition of probation. —

Imposition of jail time as a special condition of probation is not authorized under the Alaska statutes governing probation generally. Alaska law does, however, permit the imposition of jail time as a special condition of probation when the imposition of sentence is suspended under AS 12.55.085 , as provided by subsection (a) of this section. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

When it was not imposed in accordance with subsection (a) of this section, the requirement of jail time as a special condition of probation was illegal, and the sentence must, therefore, be vacated and the case remanded for resentencing. Whittlesey v. State, 626 P.2d 1066 (Alaska 1980).

120-day incarceration requirement for possession of marijuana for sale. —

Where the superior court suspended the imposition of sentence for possession of marijuana for purpose of sale and placed defendant on probation for a period of two years but required, as one of the conditions of his probation, that defendant serve 120 days of incarceration, the supreme court held that the incarceration requirement did not amount to an excessive sentence although recently developed sentencing guidelines suggested a sentence of no more than 30 days for a marijuana sale involving the same quantity of the drug, for a first-time felony offender, since the sale of drugs on school premises, as occurred in this case, is particularly objectionable. Anderson v. State, 621 P.2d 1345 (Alaska 1981).

Sentence of six months’ incarceration as a condition of receiving a suspended imposition of sentence, upon conviction of one count of selling intoxicating beverages without a license in a local option area, was not clearly mistaken, where defendant had set up a commercial enterprise, although of short duration, and sold a pint of whiskey to a man who murdered a woman shortly after buying the whiskey. Wassillie v. State, 790 P.2d 1385 (Alaska Ct. App. 1990).

Credit against sentence. —

Upon revocation of probation, one is entitled to credit against his sentence on the original offense for time spent, as a condition of probation, in a rehabilitation program which imposes substantial restrictions on one’s freedom of movement and behavior. Lock v. State, 609 P.2d 539 (Alaska 1980).

Applied in

State v. Shetters, 246 P.3d 332 (Alaska Ct. App. 2010).

Quoted in

Mangold v. State, 613 P.2d 272 (Alaska 1980).

Stated in

State v. Brueggeman, 24 P.3d 583 (Alaska Ct. App. 2001); State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Cited in

Schmid v. State, 615 P.2d 565 (Alaska 1980); State v. First Nat'l Bank, 660 P.2d 406 (Alaska 1982); State v. Hernandez, 877 P.2d 1309 (Alaska Ct. App. 1994).

Collateral references. —

Right of defendant sentenced after revocation of probation to credit for jail time served as condition of probation. 99 ALR3d 781.

Sec. 12.55.088. Modification of sentence.

  1. The court may modify or reduce a sentence by entering a written order under a motion made within 180 days of the original sentencing.
  2. The sentencing court may not be required to entertain a second or successive motion for similar relief brought under (a) of this section on behalf of the same prisoner.
  3. A sentence may not be reduced or modified so as to result in a term of imprisonment that is less than the minimum sentence or lower than the presumptive range required by law for the original sentence.
  4. A victim has the right to comment in writing to the court on a motion to modify or reduce a sentence filed by the person who perpetrated the offense against the victim, and has the right to give sworn testimony or make an unsworn oral presentation at a hearing held in connection with the motion. If there are numerous victims, the court may limit the number of victims who may give sworn testimony or make an unsworn oral presentation during the hearing.
  5. If a motion is filed to modify or reduce a sentence by a defendant who perpetrated a crime against a person or arson in the first degree, the court shall, if feasible, send a copy of the motion to the Department of Corrections sufficiently in advance of any scheduled hearing or briefing deadline to enable the department to notify the victim of that crime. If that victim has earlier requested to be notified, the Department of Corrections shall send the victim a copy of the motion and inform the person of that person’s rights under this section, the deadline for receipt of written comments, the hearing date, and the court’s address.
  6. The court shall provide copies of the victim’s written comments to the prosecuting attorney, the person filing the motion to reduce or modify a sentence, and that person’s attorney.
  7. In deciding whether to modify or reduce a sentence, the court shall consider the victim’s comments, testimony, or unsworn oral presentation, when relevant, and any response by the prosecuting attorney and the person filing the motion.
  8. If a victim desires notice under this section, the victim shall maintain a current, valid mailing address on file with the commissioner of corrections.  The commissioner shall send the notice to the victim’s last known address.  The victim’s address may not be disclosed to the offender or to the offender’s attorney.

History. (§ 12 ch 166 SLA 1978; am § 27 ch 143 SLA 1982; am § 5 ch 59 SLA 1989; am §§ 7 — 9 ch 57 SLA 1991; am § 6 ch 79 SLA 1995; am § 6 ch 2 SLA 2005)

Cross references. —

Definition of “victim” — AS 12.55.185

Designation of Representative — AS 12.55.180

Criminal Rule 35

Cross references. —

For court rule on modification, see Rule 35(b), Alaska Rule of Criminal Procedure. For procedures when more than one person desires notice under this section, see AS 12.55.180 .

Effect of amendments. —

The 2005 amendment, effective March 23, 2005, made stylistic changes in subsection (c).

Notes to Decisions

Applied in

State v. Felix, 50 P.3d 807 (Alaska Ct. App. 2002).

Quoted in

Stoneking v. State, 39 P.3d 522 (Alaska Ct. App. 2002).

Cited in

Fermoyle v. State, 638 P.2d 1320 (Alaska Ct. App. 1982); Nell v. State, 642 P.2d 1361 (Alaska Ct. App. 1982); State v. Price, 715 P.2d 1183 (Alaska Ct. App. 1986).

Collateral references. —

Power of state court, during same term, to increase severity of lawful sentence — modern cases. 26 ALR4th 906.

Sec. 12.55.090. Granting of probation.

  1. Probation may be granted whether the offense under AS 11 or AS 16 or the crime is punishable by fine or imprisonment or both. If an offense under AS 11 or AS 16 or a crime is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.
  2. Except as otherwise provided in (f) of this section, the court may revoke or modify any condition of probation, change the period of probation, or terminate probation and discharge the defendant from probation.
  3. The period of probation, together with any extension, may not exceed
    1. 25 years for a felony sex offense; or
    2. 10 years for any other offense.
  4. [Repealed, § 11 ch 68 SLA 1965.]
  5. [Repealed, § 11 ch 68 SLA 1965.]
  6. Unless the defendant and the prosecuting authority agree at the probation revocation proceeding or other proceeding related to a probation violation, the person qualifies for a reduction under AS 33.05.020(h) , or a probation officer recommends to the court that probation be terminated and the defendant be discharged from probation under (g) of this section or AS 33.05.040 , the court may not reduce the specific period of probation or the specific term of suspended incarceration except by the amount of incarceration imposed for a probation violation, if
    1. the sentence was imposed in accordance with a plea agreement under Rule 11, Alaska Rules of Criminal Procedure; and
    2. the agreement required a specific period of probation or a specific term of suspended incarceration.
  7. At the discretion of the probation officer, a probation officer may recommend to the court that probation be terminated and a defendant be discharged from probation if the defendant
    1. has completed at least
      1. two years on probation if the person was convicted of a class A or class B felony that is not a crime under (4) of this subsection; or
      2. 18 months on probation if the person was convicted of a crime that is not a crime
        1. under (A) of this paragraph; or
        2. under (4) of this subsection;
    2. has completed all treatment programs required as a condition of probation;
    3. is currently in compliance with all conditions of probation for all of the cases for which the person is on probation; and
    4. has not been convicted of an unclassified felony offense, a sexual felony as defined in AS 12.55.185 , or a crime involving domestic violence as defined in AS 18.66.990 .
  8. Before a court may terminate probation and discharge the defendant before the period of probation for the offense has been completed under (g) of this section, the court shall allow victims to comment in writing to the court or allow a victim to give sworn testimony or make an unsworn oral presentation at a hearing held to determine whether to reduce the period of probation or terminate probation and discharge the defendant.
  9. If a probation officer recommends to the court that probation be terminated and a defendant be discharged from probation under (g) of this section, and if the victim has earlier requested to be notified, the Department of Corrections shall send the victim notice of the recommendation under (g) of this section and inform the victim of the victim’s rights under this section, the deadline for receipt of written comments, the hearing date, and the court’s address.
  10. If the victim submits written comments directly to the court and the parties do not otherwise have the victim statements, the court shall distribute the statements to the parties.
  11. In deciding whether to terminate probation and discharge the defendant from probation under (g) of this section, the court shall consider the victim’s comments, testimony, or unsworn oral presentation, when relevant, and any response by the prosecuting attorney and defendant.
  12. If a victim desires notice under this section, the victim shall maintain a current, valid mailing address on file with the commissioner of corrections. The commissioner shall send the notice to the victim’s last known address. The victim’s address may not be disclosed to the defendant or the defendant’s attorney.
  13. The court shall discharge the defendant from probation upon completion of the period of probation. The period of probation is considered to be completed when the combination of time served and credits earned under AS 33.05.020 is equal to the probation period imposed, or after the probationer has been discharged from probation under this section.
  14. In this section, “sex offense” has the meaning given in AS 12.63.100 .

History. (§ 8.09 ch 34 SLA 1962; am § 25 ch 43 SLA 1964; am § 11 ch 68 SLA 1965; am § 1 ch 57 SLA 1994; am § 22 ch 24 SLA 2007; am § 22 ch 75 SLA 2008; am §§ 9, 10 ch 70 SLA 2012; am §§ 78 — 81 ch 36 SLA 2016; am § 14 ch 13 SLA 2017; am § 30 ch 1 4SSLA 2017; am §§ 68, 69 ch 4 FSSLA 2019)

Cross references. —

For provision relating to the applicability of the 2016 amendments to this section, see sec. 185(i) and (k), ch. 36, SLA 2016, in the 2016 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendments to subsection (c), see sec. 29, ch. 13, SLA 2017, in the 2017 Temporary and Special Acts.

For provision relating to applicability of the 2017 amendment to subsection (g), see sec. 75(c), ch. 1, 4SSLA 2017, in the 2017 Temporary and Special Acts.

Effect of amendments. —

The 2012 amendment, effective July 1, 2012, inserted “Except as otherwise provided in (f) of this section,” in (b), and added (f).

The 2016 amendment, effective July 12, 2016, in (c)(1), substituted “15 years” for “25 years”, in (c)(2) substituted “an unclassified felony under AS 11” for “any other offense”; added (c)(3)-(6); the 2016 amendment, effective January 1, 2017, in (b), deleted “or may” preceding “change the period”; added “, or terminate probation and discharge the defendant from probation” at the end; in (f), inserted “related to a probation violation, the person qualifies for a reduction under AS 33.05.020(h) , or a probation officer recommends to the court that probation be terminated and the defendant be discharged from probation under (g) of this section or AS 33.05.040 ” preceding “the court may not”; added subsections (g) — (n).

The first 2017 amendment, effective June 20, 2017, in (c)(2), inserted “not listed in (1) of this subsection” at the end.

The second 2017 amendment, effective November 27, 2017, in (g)(1)(B), substituted “18 months on probation” for “one year on probation”.

The 2019 amendment, effective July 9, 2019, rewrote (c), which read, “(c) The period of probation, together with any extension, may not exceed

“(1) 15 years for a felony sex offense;

“(2) 10 years for an unclassified felony under AS 11 not listed in (1) of this subsection;

“(3) five years for a felony offense not listed in (1) or (2) of this subsection;

“(4) three years for a misdemeanor offense

“(A) under AS 11.41;

“(B) that is a crime involving domestic violence; or

“(C) that is a sex offense, as that term is defined in AS 12.63.100 ;

“(5) two years for a misdemeanor offense under AS 28.35.030 or 28.35.032 , if the person has previously been convicted of an offense under AS 28.35.030 or 28.35.032 , or a similar law or ordinance of this or another jurisdiction; or

“(6) one year for an offense not listed in (1) — (5) of this subsection.”; in (g), substituted “At the discretion of the probation officer, a probation officer may recommend” for “A probation officer shall recommend” at the beginning of the introductory paragraph, substituted “(4) of this subsection” for “(5) of this subsection” in (g)(1)(A) and (g)(1)(B)(ii), deleted (g)(3), which read, “has not been found in violation of conditions of probation by the court for the period specified in (1) of this subsection;” and redesignated the following paragraphs accordingly.

Editor’s notes. —

Section 17, ch. 70, SLA 2012 provides that the 2012 amendment to subsection (b) and subsection (f) apply “to offenses occurring on or after July 1, 2012.”

Section 142(d), ch. 4, FSSLA 2019, provides that the 2019 amendments to (c) and (g) of this section apply “to probation ordered on or after July 9, 2019, for conduct occurring on or after July 9, 2019.”

Notes to Decisions

Analysis

I.General Consideration

Parallels former 18 U.S.C. § 3651. —

Alaska’s probation statutes, this section, AS 12.55.080 , and AS 12.55.100 closely parallel the former federal statute, former 18 U.S.C. § 3651, which empowered federal district courts to grant probation. Brown v. State, 559 P.2d 107 (Alaska 1977); Tiedeman v. State, 576 P.2d 114 (Alaska 1978); Gonzales v. State, 608 P.2d 23 (Alaska 1980).

This section and AS 12.55.080 construed in pari materia. —

Since both essentially identical sections were enacted together in § 1, ch. 195, SLA 1955, AS 12.55.080 and this section must be construed with reference to each other as in pari materia. Jackson v. State, 541 P.2d 23 (Alaska 1975).

Revocation of probation. —

When a probation officer alleged that a probationer was in possession of certain prohibited items after the probationer was found in a truck with those items, because the appropriate mens rea requirement for possession of items prohibited by a condition of probation was a negligence standard, not an actual knowledge standard, the State of Alaska had to prove that the probationer knew or should have known that he was in possession of items prohibited by a condition of probation. The superior court on remand was to make this determination. State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Procedure for revocation of probation. —

Court of Appeals of the State of Alaska did not apply the proper two-stage probation revocation hearing process because the court should have made a finding of fact regarding whether the probationer violated a condition of probation, and, if the probationer did violate a condition of probation, the court then should have determined the proper disposition given the violation. The probationer's mental state at the time of the violation as well as at the time of the revocation hearing and a good cause determination were part of the second stage. State v. Falealo Manuele Pulusila, 467 P.3d 211 (Alaska 2020).

Right to reject probation. —

Question of the proper interpretation of AS 12.55.090(f) had to be certified to the Alaska Supreme Court because no majority of the appellate court could agree on whether defendant had the statutory right to reject probation after committing a felony while on probation. Ray v. State, 452 P.3d 688 (Alaska Ct. App. 2019).

Second sentence of subsection (a) construed. —

An appropriate construction of the segment of this statute which provides “if a crime is punishable by both fine and imprisonment the court may impose a fine and place the defendant on probation as to imprisonment” is that it authorizes the trial court to impose a fine as a separate punishment in addition to probation where the penalty provision of the violated criminal statute provides for both fine and imprisonment. Any fine meted out as a sanction by the trial court in such circumstances would be subject to the fine limitation prescribed under the penalty section of the statute involved. Brown v. State, 559 P.2d 107 (Alaska 1977).

Sex offender registration. —

Sentencing judges may not impose sex offender registration as a condition of probation, since the legislature has not expressly authorized sentencing courts to exercise this power. Whitehead v. State, 985 P.2d 1019 (Alaska Ct. App. 1999).

Fine as condition of probation. —

Sentencing court may impose a fine as condition of probation upon a defendant’s conviction of a crime which is not directly punishable by a fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

Given the specific authorization emanating from AS 12.55.100(a)(1) which permits the trial court to impose a fine as a condition of probation, together with the need for flexibility on the part of the sentencing court in fashioning appropriate conditions of probation, where probation is warranted, a rational harmonization and construction of subsection (a) of this section and AS 12.55.100(a)(1) leads to the conclusion that a sentencing court is empowered to make payment of a fine a condition of probation even in the circumstance where the crime is only punishable by imprisonment, or by imprisonment or fine. Brown v. State, 559 P.2d 107 (Alaska 1977).

The distinction is inherent in Alaska’s statutes that the power to impose a fine as a condition of probation and the power to impose a fine as punishment in addition to probation are separate powers, controlled respectively by AS 12.55.100(a)(1) and subsection (a) of this section. Brown v. State, 559 P.2d 107 (Alaska 1977).

Probation as adjunct to suspension of portion of fine. —

Sentencing court had authority under AS 12.55.080 to suspend a portion of defendant’s fine and place him on probation, and nothing in the second sentence of subsection (a) limited the court’s authority to order unsuspended incarceration, a partially suspended fine, and a period of probation. Putnam v. State, 930 P.2d 1290 (Alaska Ct. App. 1996).

Revised version of statute inapplicable.

Revised version of the statute did not directly apply to defendant's case because he was sentenced prior to the effective date of the revised statute; thus, defendant was subject to sentencing under the prior version of the statute, which permitted imposition of a probationary term of up to ten years. Jonas v. State, — P.3d — (Alaska Ct. App. Aug. 8, 2018).

Imposition of probation conditions without prior notice. —

Alaska Department of Corrections did not propose six of the general conditions of probation that were imposed in the trial court’s written judgment after oral conditions had been announced; imposition of those conditions without prior notice to defendant, and without giving defendant an opportunity to be heard violated defendant’s due process rights. Marunich v. State, 151 P.3d 510 (Alaska Ct. App. 2006).

Authority to impose term of imprisonment as condition of probation prior to enactment of AS 12.5