Alaska DUI Statutes and Penalties

Statute 28.35.028: Court-ordered treatment for DUI or refusal to submit to chemical test.

(a) Notwithstanding another provision of law, with the consent of the state and the defendant, the court may elect to proceed in a criminal case under AS 28.35.030 or 28.35.032, including the case of a defendant charged with violating the terms of probation, under the procedure provided in this section and order the defendant to complete a court-ordered treatment program. The state may not consent to a referral under this subsection unless the state has consulted with the victim and explained the process and consequences of the referral to the victim. A court may not elect to proceed under this section if the defendant has previously participated in a court-ordered treatment program under this section two or more times.

(b) Once the court elects to proceed under this section, the defendant shall enter a no contest or guilty plea to the offense or shall admit to a probation violation, as appropriate. The state and the defendant may enter into a plea agreement to determine the offense or offenses to which the defendant is required to plead. If the court accepts the agreement, the court shall enforce the terms of the agreement. The court shall enter a judgment of conviction for the offense or offenses for which the defendant has pleaded or an order finding that the defendant has violated probation, as appropriate. A judgment of conviction or an order finding a probation violation must set a schedule for payment of restitution owed by the defendant. In a judgment of conviction and on probation conditions that the court considers appropriate, the court may withhold pronouncement of a period of imprisonment or a fine to provide an incentive for the defendant to complete recommended treatment successfully. Imprisonment or a fine imposed by a court shall comply with AS 12.55 or any mandatory minimum or other sentencing provision applicable to the offense. However, notwithstanding Rule 35, Alaska Rules of Criminal Procedure, and any other provision of law, the court, at any time after the period when a reduction of sentence is normally available, may consider and reduce the defendant’s sentence based on the defendant’s compliance with the treatment plan; when reducing a sentence, the court (1) may not reduce the sentence below the mandatory minimum sentence for the offense unless the court finds that the defendant has successfully complied with and completed the treatment plan and that the treatment plan approximated the severity of the minimum period of imprisonment, and (2) may consider the defendant’s compliance with the treatment plan as a mitigating factor allowing a reduction of a sentence under AS 12.55.155(a). A court entering an order finding the defendant has violated probation may withhold pronouncement of disposition to provide an incentive for the defendant to complete the recommended treatment successfully.

(c) If the defendant does not successfully complete the treatment plan imposed by the court under this section, the defendant’s no contest or guilty plea or admission to a probation violation to the court shall stand, and the sentence previously imposed shall be executed or, if sentence has not yet been imposed, sentence shall be imposed by the court.

(d) Notwithstanding any other provision of law to the contrary, the judge, the state, the defendant, and the agencies involved in the defendant’s treatment plan are entitled to information and reports bearing on the defendant’s assessment, treatment, and progress. The victim is entitled to periodic reports on the defendant’s progress and participation.

(e) In addition to other conditions authorized under AS 12.30 or AS 12.55, a court may impose the following conditions of bail or probation:

(1) require the defendant to submit to electronic monitoring;
(2) require the defendant to submit to house arrest.

(f) A court shall refer a defendant who is ordered to participate in a treatment program under this section to an alcohol safety action program developed and implemented or designated under AS 47.37.040(21) for screening, referral, and monitoring.

(g) In addition to other conditions authorized under AS 12.30, a court may require the defendant to take a drug or combination of drugs intended to prevent substance abuse.

(h) In this section,
(1) “court-ordered treatment program” or “treatment plan” means a treatment program for a person who consumes alcohol or drugs and that
(A) requires participation for at least 18 consecutive months;
(B) includes planning and treatment for alcohol or drug addiction;
(C) includes emphasis on personal responsibility;
(D) provides in-court recognition of progress and sanctions for relapses;
(E) requires payment of restitution to victims and completion of community work service;
(F) includes physician-approved treatment of physical addiction and treatment of the psychological causes of addiction;
(G) includes a monitoring program and physical placement or housing; and
(H) requires adherence to conditions of probation;
(2) “sentence” or “sentencing” includes a suspended imposition of sentence as authorized under AS 12.55.085 .

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Statute 28.35.029: Alaska Open Container Law

(a) A person may not drive a motor vehicle on a highway or vehicular way or area, when there is an open bottle, can, or other receptacle containing an alcoholic beverage in the passenger compartment of the vehicle, except as provided in (b) of this section.

(b) Except as provided in AS 28.33.130 , a person may transport an open bottle, can, or other receptacle containing an alcoholic beverage

(1) in the trunk of a motor vehicle;
(2) on a motor driven cycle, or behind the last upright seat in a motor home, station wagon, hatchback, or similar trunkless vehicle, if the open bottle, can, or other receptacle is enclosed within another container;
(3) behind a solid partition that separates the vehicle driver from the area normally occupied by passengers; or
(4) if the open bottle, can, or other receptacle is in the possession of a passenger in a motor vehicle for which the owner receives direct monetary compensation and that has a capacity of 12 or more persons.

(1) “alcoholic beverage” has the meaning given in AS 04.21.080 (b);
(2) [Repealed, Sec. 29 ch 3 SLA 1992].
(3) “motor vehicle” means a vehicle for which a driver’s license is required;
(4) “open” includes having a broken seal;
(5) “passenger compartment” means the area normally occupied by the driver and passengers and includes a utility or glove compartment accessible to the driver or a passenger while the motor vehicle is being operated.

(d) A person who violates (a) of this section is guilty of an infraction.

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Statute 28.35.030: Driving Under the Influence of Alcohol or Drugs

(a) A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft
(1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination; or
(2) and if, as determined by a chemical test taken within four hours after the alleged operating or driving, there is 0.08 percent or more by weight of alcohol in the person’s blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if there is 0.08 grams or more of alcohol per 210 liters of the person’s breath.

(b) Except as provided under (n) of this section, driving while under the influence of an alcoholic beverage, inhalant, or controlled substance is a class A misdemeanor. Upon conviction,
(1) the court shall impose a minimum sentence of imprisonment of

(A) not less than 72 consecutive hours and a fine of not less than $1,500 if the person has not been previously convicted;
(B) not less than 20 days and a fine of not less than $3,000 if the person has been previously convicted once;
(C) not less than 60 days and a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (n) of this section;
(D) not less than 120 days and a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (n) of this section;
(E) not less than 240 days and a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (n) of this section;
(F) not less than 360 days and a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (n) of this section;
(2) the court may not
(A) suspend execution of sentence or grant probation except on condition that the person
(i) serve the minimum imprisonment under (1) of this subsection; and
(ii) pay the minimum fine required under (1) of this subsection;
(B) suspend imposition of sentence;
(3) the court shall revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.181 , and may order that the motor vehicle, aircraft, or watercraft that was used in commission of the offense be forfeited under AS 28.35.036 ; and
(4) the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law.

(d) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under this section shall supply the judge, prosecutor, defendant, and an agency involved in the defendant’s treatment with information and reports concerning the defendant’s past and present assessment, treatment, and progress. Information compiled under this subsection is confidential and may only be used in connection with court proceedings involving the defendant’s treatment, including use by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a presentence report for the use of the court in sentencing a person convicted under this section.

(e) A person who is sentenced to imprisonment for 72 consecutive hours upon a first conviction under this section and who is not released from imprisonment after 72 hours may not bring an action against the state or a municipality or its agents, officers, or employees for damages resulting from the additional period of confinement if

(1) the employee or employees who released the person exercised due care and, in releasing the person, followed the standard release procedures of the prison facility; and
(2) the additional period of confinement did not exceed 12 hours.

(f) [Repealed, Sec. 34 ch 119 SLA 1990].

(g) Notwithstanding (b) of this section, if the court imposes probation under AS 12.55.102 the court may reduce the fine required to be imposed under (b) of this section by the cost of the ignition interlock device.

(h) The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services, under AS 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (n) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.

(i) A program of inpatient treatment may be required by the authorized agency under (h) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days of the agency’s referral, and shall specifically set out the grounds upon which the request for review is based. The court may order a hearing on the request for review.

(j) If a person fails to satisfy the requirements of an authorized agency under (i) of this section, the court

(1) may impose any portion of a suspended sentence; however, if the person was convicted under (n) of this section, the court shall impose a part or all of the remaining portion of any suspended sentence;<
(2) may punish the failure as contempt of the authority of the court under AS 09.50.010 or as a violation of a condition of probation; and
(3) shall order the revocation or suspension of the person’s driver’s license, privilege to drive, and privilege to obtain a driver’s license until the requirements are satisfied.

(k) Imprisonment required under (b)(1)(A) of this section shall be served at a community residential center or, if a community residential center is not available, at another appropriate place determined by the commissioner of corrections. Imprisonment required under (b)(1)(B) – (F) of this section may be served at a community residential center or at a private residence if approved by the commissioner of corrections. Imprisonment served at a private residence must include electronic monitoring. The cost of imprisonment resulting from the sentence imposed under (b)(1) of this section shall be paid to the state by the person being sentenced provided, however, that the cost of imprisonment required to be paid under this subsection may not exceed $2,000. Upon the person’s conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the state shall seek reimbursement from the person’s permanent fund dividend as provided under AS 43.23.065 . While at the community residential center or other appropriate place, a person sentenced under (b)(1)(A) of this section shall perform at least 24 hours of community service work. A person sentenced under (b)(1)(B) of this section shall perform at least 160 hours of community service work, as required by the director of the community residential center or other appropriate place, or as required by the commissioner of corrections if the sentence is being served at a private residence. In this subsection, “appropriate place” means a facility with 24-hour on-site staff supervision that is specifically adapted to provide a residence, and includes a correctional center, residential treatment facility, hospital, halfway house, group home, work farm, work camp, or other place that provides varying levels of restriction.

(l) The commissioner of corrections shall determine and prescribe by regulation a uniform average cost of imprisonment for the purpose of determining the cost of imprisonment required to be paid under (k) of this section by a convicted person.

(m) If the act for which a person is convicted under this section contributes to a motor vehicle accident, the court shall order the person to pay the reasonable cost of any emergency services that responded to the accident, if the convicted person or the convicted person’s insurer has not already paid the cost of the emergency services. If payment is required under this subsection, the payment shall be made directly to the emergency service and shall be equal to the actual cost of responding to the accident or the previous year’s annual average cost of responding to a motor vehicle accident, whichever is higher. In this subsection, “emergency service” includes a peace officer, fire department, ambulance service, emergency medical technician or emergency trauma technician.

(n) A person is guilty of a class C felony if the person is convicted under (a) of this section and either has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense, or punishment under this subsection or under AS 28.35.032 (p) was previously imposed within the last 10 years. For purposes of determining minimum sentences based on previous convictions, the provisions of (t)(4) of this section apply. Upon conviction, the court

(1) shall impose a fine of not less than $10,000 and a minimum sentence of imprisonment of not less than
(A) 120 days if the person has been previously convicted twice;
(B) 240 days if the person has been previously convicted three times;
(C) 360 days if the person has been previously convicted four or more times;
(2) may not
(A) suspend execution of sentence or grant probation except on condition that the person
(i) serve the minimum imprisonment under (1) of this subsection; and
(ii) pay the minimum fine required under (1) of this subsection; or
(B) suspend imposition of sentence;
(3) shall permanently revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license subject to restoration of the license under (o) of this section;
(4) may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs, intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law;
(5) shall order forfeiture under AS 28.35.036 of the vehicle, watercraft, or aircraft used in the commission of the offense, subject to remission under AS 28.35.037 ; and
(6) shall order the department to revoke the registration for any vehicle registered by the department in the name of the person convicted under this subsection; if a person convicted under this subsection is a registered co-owner of a vehicle or is registered as a co-owner under a business name, the department shall reissue the vehicle registration and omit the name of the person convicted under this subsection.
(o) Upon request, the department shall review a driver’s license revocation imposed under (n)(3) of this section and may restore the driver’s license if

(1) the license has been revoked for a period of at least 10 years;
(2) the person has not been convicted of a criminal offense since the license was revoked; and
(3) the person provides proof of financial responsibility.

(p) [Repealed, Sec. 7 Ch 56 SLA 2006].

(q) For purposes of this section, the director of the division within the department responsible for administration of this section or a person designated by the director may request and receive criminal justice information available under AS 12.62. In this subsection, “criminal justice information” has the meaning given in AS 12.62.900 .

(r) If a person is convicted under (a) of this section and it is determined by the trier of fact that, as determined by a chemical test taken within four hours after the offense was committed,
(1) there was at least 0.16 percent by weight of alcohol in the person’s blood but less than 0.24 percent by weight of alcohol in the person’s blood or at least 160 milligrams of alcohol per 100 milliliters of blood, but less than 240 milligrams of alcohol per 100 milliliters of blood, or when there was at least 0.16 grams of alcohol per 210 liters of the person’s breath, but less than 0.24 grams of alcohol per 210 liters of the person’s breath, the court shall require the person to use an ignition interlock device as provided in AS 12.55.102 for a minimum of six months after the person regains the privilege, including any limited privilege, to operate a motor vehicle;
(2) there was 0.24 percent or more by weight of alcohol in the person’s blood or 240 milligrams or more of alcohol per 100 milliliters of blood, or when there was 0.24 grams or more of alcohol per 210 liters of the person’s breath, the court shall require the person to use an ignition interlock device as provided in AS 12.55.102 for a minimum of one year after the person regains the privilege, including any limited privilege, to operate a motor vehicle.

(s) In a prosecution under (a) of this section, a person may introduce evidence on the amount of alcohol consumed before or after operating or driving the motor vehicle, aircraft, or watercraft to rebut or explain the results of a chemical test, but the consumption of alcohol before operating or driving may not be used as a defense that the chemical test did not measure the blood alcohol at the time of the operating or driving. Consumption of alcohol after operating or driving the motor vehicle, aircraft, or watercraft may be used to raise such a defense.

(t) In this section, (1) “inhalant” has the meaning given to the phrase “hazardous volatile material or substance” in AS 47.37.270 ;
(2) “operate an aircraft” means to navigate, pilot, or taxi an aircraft in the airspace over this state, or upon the land or water inside this state;
(3) “operate a watercraft” means to navigate a vessel used or capable of being used as a means of transportation on water for recreational or commercial purposes on all waters, fresh or salt, inland or coastal, inside the territorial limits or under the jurisdiction of the state;
(4) “previously convicted” means having been convicted in this or another jurisdiction within the 15 years preceding the date of the present offense of any of the following offenses; however, convictions for any of these offenses, if arising out of a single transaction and a single arrest, are considered one previous conviction:
(A) operating a motor vehicle, aircraft, or watercraft in violation of this section or in violation of another law or ordinance with similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person’s blood or breath than imposed under (a)(2) of this section;
(B) refusal to submit to a chemical test in violation of AS 28.35.032 or in violation of another law or ordinance with similar elements; or
(C) operating a commercial motor vehicle in violation of AS 28.33.030 or in violation of another law or ordinance with similar elements, except that the other law or ordinance may provide for a lower level of alcohol in the person’s blood or breath than imposed under AS 28.33.030 (a)(2).

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Statute 28.35.031: Alaska Implied Consent Law

(a) A person who operates or drives a motor vehicle in this state or who operates an aircraft as defined in AS 28.35.030 (t) or who operates a watercraft as defined in AS 28.35.030 (t) shall be considered to have given consent to a chemical test or tests of the person’s breath for the purpose of determining the alcoholic content of the person’s blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance or if lawfully arrested under AS 28.35.280 for the offense of minor operating a vehicle after consuming alcohol. The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle or operating an aircraft or a watercraft in this state while under the influence of an alcoholic beverage, inhalant, or controlled substance or that the person was a minor operating a vehicle after consuming alcohol.

(b) A person who operates or drives a motor vehicle in this state or who operates an aircraft or watercraft shall be considered to have given consent to a preliminary breath test for the purpose of determining the alcoholic content of the person’s blood or breath. A law enforcement officer may administer a preliminary breath test at the scene of the incident if the officer has probable cause to believe that a person’s ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person
(1) was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident;
(2) committed a moving traffic violation or unlawfully operated an aircraft or watercraft; in this paragraph, “unlawfully” means in violation of any federal, state, or municipal statute, regulation, or ordinance, except for violations that do not provide reason to believe that the operator’s ability to operate the aircraft or watercraft was impaired by the ingestion of alcoholic beverages; or
(3) was operating or driving a motor vehicle in violation of AS 28.35.029(a).

(c) Before administering a preliminary breath test under (b) of this section, the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is an infraction. If the person refuses to submit to the test, the test shall not be administered.

(d) The result of the test under (b) of this section may be used by the law enforcement officer to determine whether the driver or operator should be arrested.

(e) Refusal to submit to a preliminary breath test at the request of a law enforcement officer is an infraction.

(f) If a driver or operator is arrested, the provisions of (a) of this section apply. The preliminary breath test authorized in this section is in addition to any tests authorized under (a) of this section.

(g) A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person’s breath and blood for the purpose of determining the alcoholic content of the person’s breath and blood and shall be considered to have given consent to a chemical test or tests of the person’s blood and urine for the purpose of determining the presence of controlled substances in the person’s blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.

(h) Nothing in this section shall be construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to a test permitted under this section.

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Statute 28.35.032: Refusal to Submit to a Chemical Test

(a) If a person under arrest for operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.33.031 (a)(1) or AS 28.35.031(a), or if a person involved in a motor vehicle accident that causes death or serious physical injury to another person refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.33.031 (a)(2) or AS 28.35.031 (g), after being advised by the officer that the refusal will result in the denial or revocation of the driver’s license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that the refusal is a crime, a chemical test may not be given, except as provided by AS 28.35.035 . If a person under arrest for operating a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.35.031 (a), after being advised by the officer that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that the refusal is a crime, a chemical test may not be given, except as provided by AS 28.35.035 .

(b) [Repealed, Sec. 25 ch 77 SLA 1983].

(d) [Repealed, Sec. 25 ch 77 SLA 1983].

(e) The refusal of a person to submit to a chemical test authorized under AS 28.33.031 (a) or AS 28.35.031 (a) or (g) is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating or driving a motor vehicle or operating an aircraft or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance.

(f) Except as provided under (p) of this section, refusal to submit to a chemical test authorized by AS 28.33.031 (a) or AS 28.35.031 (a) or (g) is a class A misdemeanor.

(g) Upon conviction under this section,
(1) the court shall impose a minimum sentence of imprisonment of
(A) not less than 72 consecutive hours and a fine of not less than $1,500 if the person has not been previously convicted;
(B) not less than 20 days and a fine of not less than $3,000 if the person has been previously convicted once;
(C) not less than 60 days and a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment under (p) of this section;
(D) not less than 120 days and a fine of not less than $5,000 if the person has been previously convicted three times and is not subject to punishment under (p) of this section;
(E) not less than 240 days and a fine of not less than $6,000 if the person has been previously convicted four times and is not subject to punishment under (p) of this section;
(F) not less than 360 days and a fine of not less than $7,000 if the person has been previously convicted more than four times and is not subject to punishment under (p) of this section;
(2) the court may not
(A) suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person
(i) serve the minimum imprisonment under (1) of this subsection; and
(ii) pay the minimum fine required under (1) of this subsection; or
(B) suspend imposition of sentence;
(3) the court shall revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license under AS 28.15.181 , and may order that the motor vehicle, aircraft, or watercraft that was used in commission of the offense be forfeited under AS 28.35.036 ;
(4) the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug or combination of drugs intended to prevent the consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law; and
(5) the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person.

(h) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under this section shall supply the judge, prosecutor, defendant, and an agency involved in the defendant’s treatment with information and reports concerning the defendant’s past and present assessment, treatment, and progress. Information compiled under this subsection is confidential and may only be used in connection with court proceedings involving the defendant’s treatment, including use by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a pre-sentence report for the use of the court in sentencing a person convicted under this section.

(i) A person who is sentenced to imprisonment for 72 consecutive hours under (g) of this section and who is not released from imprisonment after 72 hours may not bring an action against the state or a municipality or its agents, officers, or employees for damages resulting from the additional period of confinement if
(1) the employee or employees who released the person exercised due care and, in releasing the person, followed the standard release procedures of the prison facility; and
(2) the additional period of confinement did not exceed 12 hours.

(j) For purposes of this section, convictions under AS 28.33.030 or AS 28.35.030 and for refusal to submit to a chemical test under this section, if arising out of a single transaction and a single arrest, are considered one previous conviction.

(k) Notwithstanding (g) of this section, if the court imposes probation under AS 12.55.102 the court may reduce the fine required to be imposed under (g) of this section by the cost of the ignition interlock device.

(l) The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the Department of Health and Social Services under AS 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (p) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.

(m) A program of inpatient treatment may be required by the authorized agency under (l) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days of the agency’s referral, and shall specifically set out the grounds upon which the request for review is based. The court may order a hearing on the request for review.

(n) If a person fails to satisfy the requirements of an authorized agency under (m) of this section, the court
(1) may impose any portion of a suspended sentence; however, if the person was convicted under (p) of this section, the court shall impose a part or all of the remaining portion of any suspended sentence;
(2) may punish the failure as contempt of the authority of the court under AS 09.50.010 or as a violation of a condition of probation; and
(3) shall order the revocation or suspension of the person’s driver’s license, privilege to drive, and privilege to obtain a driver’s license until the requirements are satisfied.

(o) Imprisonment required under (g)(1)(A) of this section shall be served at a community residential center, or if a community residential center is not available, at another appropriate place determined by the commissioner of corrections. Imprisonment required under (g)(1)(B) – (F) of this section may be served at a community residential center or at a private residence if approved by the commissioner of corrections. Imprisonment served at a private residence must include electronic monitoring. The cost of imprisonment resulting from the sentence imposed under (g)(1) of this section shall be paid to the state by the person being sentenced provided, however, that the cost of imprisonment required to be paid under this subsection may not exceed $2,000. Upon the person’s conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the state shall seek reimbursement from the person’s permanent fund dividend as provided under AS 43.23.065 . While at the community residential center or other appropriate place, a person sentenced under (g)(1)(A) of this section shall perform at least 24 hours of community service work. A person sentenced under (g)(1)(B) of this section shall perform at least 160 hours of community service work, as required by the director of the community residential center or other appropriate place, or as required by the commissioner of corrections if the sentence is being served at a private residence. In this subsection, “appropriate place” means a facility with 24-hour on-site staff supervision that is specifically adapted to provide a residence, and includes a correctional center, residential treatment facility, hospital, halfway house, group home, work farm, work camp, or other place that provides varying levels of restriction.

(p) A person is guilty of a class C felony if the person is convicted under this section and either has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense, or punishment under this subsection or under AS 28.35.030(n) was previously imposed within the last 10 years. For purposes of determining minimum sentences based on previous convictions, the provisions of AS 28.35.030 (t)(4) apply. Upon conviction,
(1) the court shall impose a fine of not less than $10,000 and a minimum sentence of imprisonment of not less than
(A) 120 days if the person has been previously convicted twice;
(B) 240 days if the person has been previously convicted three times;
(C) 360 days if the person has been previously convicted four or more times;
(2) the court may not
(A) suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person
(i) serve the minimum imprisonment under (1) of this subsection; and
(ii) pay the minimum fine required under (1) of this subsection; or
(B) suspend imposition of sentence;
(3) the court shall permanently revoke the person’s driver’s license, privilege to drive, or privilege to obtain a license subject to restoration under (q) of this section;
(4) the court may order that the person, while incarcerated or as a condition of probation or parole, take a drug, or combination of drugs, intended to prevent consumption of an alcoholic beverage; a condition of probation or parole imposed under this paragraph is in addition to any other condition authorized under another provision of law;
(5) the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person;
(6) the court shall order forfeiture under AS 28.35.036 , of the motor vehicle, aircraft, or watercraft used in the commission of the offense, subject to remission under AS 28.35.037 ; and
(7) the court shall order the department to revoke the registration for any vehicle registered by the department in the name of the person convicted under this subsection; if a person convicted under this subsection is a registered co-owner of a vehicle, the department shall reissue the vehicle registration and omit the name of the person convicted under this subsection.

(q) Upon request, the department shall review a driver’s license revocation imposed under (p)(3) of this section and may restore the driver’s license if
(1) the license has been revoked for a period of at least 10 years;
(2) the person has not been convicted of a criminal offense since the license was revoked; and
(3) the person provides proof of financial responsibility.

(r) [Repealed, Sec. 7 Ch 56 SLA 2006].

(s) For purposes of this section, the director of the division within the department responsible for administration of this section or a person designated by the director may request and receive criminal justice information available under AS 12.62.

(t) In this section,
(1) “cost of imprisonment” means the cost of imprisonment as determined under AS 28.35.030 (l);
(2) “previously convicted” has the meaning given in AS 28.35.030 .

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Statute 28.35.033: Presumptions and Chemical Analysis of Breath or Blood

(a) Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, the amount of alcohol in the person’s blood or breath at the time alleged shall give rise to the following presumptions:
(1) If there was 0.04 percent or less by weight of alcohol in the person’s blood, or 40 milligrams or less of alcohol per 100 milliliters of the person’s blood, or 0.04 grams or less of alcohol per 210 liters of the person’s breath, it shall be presumed that the person was not under the influence of an alcoholic beverage.
(2) If there was in excess of 0.04 percent but less than 0.08 percent by weight of alcohol in the person’s blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of the person’s blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of the person’s breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage.
(3) If there was 0.08 percent or more by weight of alcohol in the person’s blood, or 80 milligrams or more of alcohol per 100 milliliters of the person’s blood, or 0.08 grams or more of alcohol per 210 liters of the person’s breath, it shall be presumed that the person was under the influence of an alcoholic beverage.

(b) For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood.

(c) Except as provided in AS 28.35.030 (s), the provisions of (a) of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of intoxicating liquor.

(d) To be considered valid under the provisions of this section the chemical analysis of the person’s breath or blood shall have been performed according to methods approved by the Department of Public Safety. The Department of Public Safety is authorized to approve satisfactory techniques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.

(e) The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person’s own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable so to do, is likewise admissible in evidence. The person who administers the chemical test shall clearly and expressly inform the person tested of that person’s right to an independent test described under this subsection, and, if the person being tested requests an independent test, the department shall make reasonable and good-faith efforts to assist the person being tested in contacting a person qualified to perform an independent chemical test of the person’s breath or blood.

(f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or the person’s attorney.

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Statute 28.35.034: Surrender of License or Permit

A person whose license or permit to operate or drive a motor vehicle has been revoked under AS 28.15.165 or 28.15.181 shall surrender the license or permit to the department on receipt of notice of the revocation. After the period of revocation has expired, the person may make application for a new license as provided by law.

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Statute 28.35.035: Administration of Chemical Test Without Consent

(a) If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person’s breath or blood or to determine the presence of controlled substances in that person’s blood and urine.

(b) A person who is unconscious or otherwise in a condition rendering that person incapable of refusal is considered not to have withdrawn the consent provided under AS 28.33.031 (a) or AS 28.35.031 (a) or (g) and a chemical test may be administered to determine the amount of alcohol in that person’s breath or blood or to determine the presence of controlled substances in that person’s blood and urine. A person who is unconscious or otherwise incapable of refusal need not be placed under arrest before a chemical test may be administered.

(c) If a chemical test is administered to a person under (a) or (b) of this section, that person is not subject to the penalties for refusal to submit to a chemical test provided by AS 28.35.032 .

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Statute 28.35.036: Forfeiture of Vehicle

(a) After conviction of an offense under AS 28.15.291 (b), AS 28.35.030, or 28.35.032, a motor vehicle, aircraft, or watercraft involved in the commission of the offense is subject to forfeiture as provided under AS 28.15.291 (b), AS 28.35.030 , and 28.35.032.

(b) Before forfeiture of a motor vehicle, aircraft, or watercraft, the court shall schedule a hearing on the matter and shall notify the state and the convicted person of the time and place set for the hearing. Except for a motor vehicle, aircraft, or watercraft that is required to be forfeited under AS 28.35.030 or 28.35.032, the court may order the forfeiture of the motor vehicle if the court, sitting without a jury, determines, by a preponderance of the evidence, that the forfeiture of the motor vehicle, aircraft, or watercraft will serve one or more of the following purposes:
(1) deterrence of the convicted person from the commission of future offenses under AS 28.15.291 (b), AS 28.35.030 , or 28.35.032;
(2) protection of the safety and welfare of the public;
(3) deterrence of other persons who are potential offenders under AS 28.15.291(b), AS 28.35.030 , or 28.35.032; or
(4) expression of public condemnation of the serious or aggravated nature of the convicted person’s conduct.

(c) Upon forfeiture of a motor vehicle, aircraft, or watercraft, the court shall require the
(1) surrender of the registration and certificate of title of that motor vehicle; the registration and certificate of title shall be delivered to the department;
(2) convicted person to pay all administrative costs incurred by the state in forfeiting the motor vehicle, aircraft, or watercraft, including costs incurred by the department, law enforcement personnel, or the court system.

(d) If not released under AS 28.35.037 , a motor vehicle, aircraft, or watercraft forfeited under this section may be disposed of at the discretion of the Department of Public Safety.

(e) Disposal under this subsection includes, by way of example and not of limitation,
(1) sale, as a unit or in parts, including sale at an auction, and the proceeds deposited into the general fund;
(2) transfer to a state or municipal law enforcement agency;
(3) being declared surplus and transferred to the Department of Administration;
(4) being destroyed; or
(5) transfer to a charitable organization; in this paragraph, “charitable organization” means a charity that is exempt from taxation under 26 U.S.C. 501(c)(3) (Internal Revenue Code).

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Statute 28.35.037: Remission of Forfeitures

(a) Upon receiving notice from the court of the time and place set for a hearing under AS 28.35.036 , the state shall provide to every person who has an ascertainable ownership or security interest in the motor vehicle, aircraft, or watercraft written notice that includes
(1) a description of the motor vehicle, aircraft, or watercraft;
(2) the time and place of the forfeiture hearing;
(3) the legal authority under which the motor vehicle, aircraft, or watercraft, may be forfeited;
(4) notice of the right to intervene to protect the interest in the motor vehicle, aircraft, or watercraft.

(b) At the hearing, a person who claims an ownership or security interest in the motor vehicle, aircraft, or watercraft, must establish by a preponderance of the evidence that
(1) the petitioner has an interest in the motor vehicle, aircraft, or watercraft, acquired in good faith;
(2) a person other than the petitioner was convicted of the offense that resulted in the forfeiture; and
(3) before parting with the motor vehicle, aircraft, or watercraft, the petitioner did not know or have reasonable cause to believe that it would be used in the commission of an offense.

(c) If a person satisfies the requirements of (b) of this section, the court shall order that an amount equal to the value of the petitioner’s interest in the motor vehicle, aircraft, or watercraft be paid to the petitioner, or the court shall order that the motor vehicle, aircraft, or watercraft be released to the petitioner together with title to the motor vehicle, aircraft or watercraft.

(d) Forfeiture of a motor vehicle, aircraft, or watercraft under AS 28.35.036 is without prejudice to the rights and does not extinguish the claims of a creditor with an interest in the motor vehicle, aircraft, or watercraft.

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Statute 11.76.140: Avoidance of Ignition Interlock Device

(a) A person may not knowingly
(1) circumvent or tamper with an ignition interlock device in a manner intended to allow a person on probation under AS 12.55.102 to avoid using the device; or
(2) rent, loan, or lease a motor vehicle to a person on probation under AS 12.55.102 , unless the vehicle is equipped with an ignition interlock device described in AS 12.55.102 .

(b) Notwithstanding AS 11.81.250 , a person convicted of violating this section is guilty of a misdemeanor. The maximum term of imprisonment that may be imposed is 30 days and the maximum fine that may be imposed is $500.

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Statute 12.55.102: Alcohol Related Offenses

(a) The court may order as a condition of probation or generally as part of a sentence that a defendant convicted of an offense involving the use, consumption, or possession of an alcoholic beverage may not operate a motor vehicle during the period of probation unless the vehicle is equipped with a properly functioning, monitored, and maintained ignition interlock device. A condition of probation or sentence imposed under this subsection takes effect after any period of license revocation imposed under AS 28.15.165 (d) or 28.15.181(c).

(b) The court, in imposing probation or a condition of a sentence under (a) of this section, may allow the defendant limited privileges to drive a motor vehicle without an ignition interlock device if the court determines that the defendant is required as a condition of employment to drive a motor vehicle owned or leased by the defendant’s employer and that the defendant’s driving will not create substantial danger. If the court imposes probation described by this subsection, the court shall require the defendant to notify the defendant’s employer of the probation, and shall require that the defendant, while driving the employer’s vehicle, carry a letter from the employer authorizing the defendant to drive that vehicle.

(c) A court imposing a condition of probation under this section shall require the surrender of the driver’s license and shall issue to the defendant a certificate valid for the duration of the probation or a copy of the defendant’s judgment of conviction. The defendant shall pay all costs associated with fulfilling the condition of probation, including installation, repair, and monitoring of an ignition interlock device.

(d) The court may include the cost of the ignition interlock device as a part of the fine required to be imposed against the defendant under AS 28.35.030 (b) or (n) or 28.35.032(g) or (p).

(e) In this section,
(1) “ignition interlock device” means equipment designed to prevent a motor vehicle from being operated by a person who has consumed an alcoholic beverage, and that has been certified by the commissioner of corrections under AS 33.05.020 (c);
(2) “motor vehicle” has the meaning given in AS 28.90.990 , but does not include snow machines and all-terrain vehicles not designed for and not operated on highways or roads.

Additional Alaska DUI Resources

Alaska DUI Classes – We offer a complete listing of state approved DUI & alcohol abuse classes.
Alaska DUI First Offense – First offense information including penalties, fines, potential jail time, license suspension, DUI classes, and more.
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Alaska DUI Third Offense – Third offense information including penalties, fines, potential jail time, license suspension, DUI classes, and more.
Alaska DUI Laws – Here you will find a comprehensive and detailed explanation of Alaska’s DUI laws including all offense levels and penalties.
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