Home Blood Alcohol Content Harmful Effects Machine Testing Helpful Links Advertise
 
  

Alaska

Chapter 28.33. COMMERCIAL MOTOR VEHICLES

Article 01. OPERATING COMMERCIAL MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF AN ALCOHOLIC BEVERAGE, INHALANT, OR CONTROLLED SUBSTANCE

Sec. 28.33.010. Financial responsibility. [Repealed, Sec. 16 E.O. 98 (1997). For current law, see AS 19.10.300 ].

Repealed or Renumbered

Sec. 28.33.030. Operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance.

(a) A person commits the crime of operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates a commercial motor vehicle

(1) while under the influence of an alcoholic beverage, inhalant, or any controlled substance;

(2) when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.04 percent or more by weight of alcohol in the person's blood or 40 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.04 grams or more of alcohol per 210 liters of the person's breath; or

(3) while under the combined influence of an alcoholic beverage, inhalant, and a controlled substance.

(b) Operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance is a class A misdemeanor.

(c) The sentencing of a person convicted under this section shall be in accordance with the minimum periods of imprisonment, fines, rehabilitative treatment, and other provisions of AS 28.35.030 , as if the person had been convicted of a violation of AS 28.35.030 . For purposes of sentencing, convictions for operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance under this section, and for refusal to submit to a chemical test under AS 28.33.032 , if arising out of a single transaction, are considered one previous conviction.

Sec. 28.33.031. Implied consent for operators of commercial motor vehicles.

(a) A person who operates a commercial motor vehicle in this state is considered to have given consent to a chemical test or tests

(1) of the person's breath if lawfully arrested for an offense arising out of acts alleged to have been committed when the person was operating the commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance; the test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.33.030 or AS 28.35.030 ;

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

(b) Refusal to submit to a chemical test authorized under this section is punishable under AS 28.35.032 . A chemical test may be administered without consent under AS 28.35.035 . A person who is disqualified as the result of department action under AS 28.15.165 , following a test administered under this section, can obtain review of that action under AS 28.15.166 .

(c) A person who operates a commercial motor vehicle is considered to have given consent to a preliminary breath test, at the direction of a law enforcement officer, for the purpose of determining the alcoholic content of the person's blood or breath. A law enforcement officer may administer a preliminary breath test if the officer has probable cause to believe that the person's ability to operate a commercial motor vehicle is impaired by the ingestion of alcoholic beverages and that

(1) the commercial motor vehicle caused injury to person or property;

(2) the person violated the provisions of AS 28.33.130 (a) or violated the terms of an out-of-service order issued under AS 28.33.130 ; or

(3) the person unlawfully operated a commercial motor vehicle; in this paragraph, "unlawfully" means in violation of any federal, state, or municipal statute, regulation, or ordinance.

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

(e) The result of the preliminary test under (c) of this section may be used by the law enforcement officer to determine whether the operator should be arrested. If an operator is arrested, the provisions of (a) of this section apply. The preliminary breath test authorized under (c) of this section is in addition to any chemical tests authorized under (a) of this section.

(f) Refusal to submit to a preliminary breath test at the request of a law enforcement officer is a class B misdemeanor.

Sec. 28.33.033. Presumptions and chemical analysis of breath or blood.

(a) Upon the trial of a civil or criminal action or proceedings arising out of acts alleged to have been committed by a person operating a commercial motor vehicle while under the influence of an alcoholic beverage in violation of AS 28.33.030 , the following rules apply with regard to the amount of alcohol in the person's blood or breath at the time alleged:

(1) if there was less than 0.04 percent by weight of alcohol in the person's blood, or less than 40 milligrams of alcohol per 100 milliliters of the person's blood, or less than 0.04 grams of alcohol per 210 liters of the person's breath, that fact does not give rise to a presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage;

(2) if there was 0.04 percent or more by weight of alcohol in the person's blood, or 40 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.04 grams or more of alcohol per 210 liters of the person's breath, it is presumed that the person was under the influence of an alcoholic beverage.

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

(c) The provisions of (a) of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of an alcoholic beverage.

(d) 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 to do so, is likewise admissible in evidence.

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

  

More Information:

 

Request a Lawyer
  Alaska DMV


 

DWI Notes for Alaska (AK)

Driving while intoxicated known as DWI, DUI (driving under the influence) or OUI (operating under the influence) is a serious offense in Alaska. Losing your license to operate a vehicle in AK is just one of the penalties. It is in your best interest to hire an experienced criminal defense attorney to handle your case. A lawyer who specializes in drunken driving cases will be able to defend your constitutional rights. The field sobriety tests, the breathalyzer or Alcotest blood alcohol content (BAC) readings may be flawed and could result in a not guilty verdict in court. Only an experienced DWI lawyer will know how these tests should be administered and whether they were performed according to the guidelines provided by the National Highway Traffic Safety Administration (NHTSA).

Standardized Field Sobriety Testing

The National Highway Traffic Safety Administration has created a set of Standardized Field Sobriety Test (SFST). These three tests have to be administered and evaluated in a standardized manner to obtain accurate indicators of impairment. Most police officers fail to administer these tests correctly. Your DWI attorney may be able to challenge the validity of the stop and arrest by reading the report submitted by the police officer or trooper or by the testimony provided in court.

The Standardized Field Sobriety Tests were developed from research sponsored by the National Highway Traffic Safety Administration (NHTSA). NHTSA then developed a training regimen for law enforcement officers to provide a consistent way of evaluating the results from DWI suspects. Although police officers use a variety of tests when they pull someone over for suspected driving under the influence of alcohol, the three that are NHTSA accepted are:

  • Horizontal Gaze Nystagmus
  • Walk and Turn
  • One Leg Stand

Other tests, like counting backwards or saying the alphabet from one letter to another have not been proven to be reliable indicators of being intoxicated or under the influence. Keep in mind that even the reliable tests must be administered correctly for them to be valid indicators of DWI.
Horizontal Gaze Nystagmus (HGN) Testing

The horizontal gaze nystagmus test checks if you have involuntary twitching of the eyeball. This occurs naturally as the eyes gaze at a right angle towards the side. When someone is under the influence of alcohol, nystagmus (twitching of the eyeballs) occurs at lesser angles. During this test, the officer will have the subject follow a pen or light with his eyes. The officer must observe the subject eyes. The three indicators that the officer looks for in each eye are:

  • If the subject is smoothly following of the moving object with his/her eyes
  • If the eye begins to jerk distinctly at the maximum range (right angle)
  • If the angle of jerking begins within 45 degrees of center

According to the National Highway Traffic Safety Administration has determined that if between both eyes, four or more indicators are present the subject is probably under the influence. This test is therefore allowed for the purpose of making a DWI/DUI arrest and requiring a breath test at the police station.


Walk & Turn and One Leg Stand Tests

The other two tests that the National Highway Traffic Safety Administration believes are accurate predictors of DWI are the so called, “divided attention” tests. These tests can supposedly be done by most sober people. Although many police officers will tell you that they hear people say, “I can’t do that when I’m sober.” (By the way, this is not the wisest thing to say if you are a DWI suspect.) According to NHTSA, suspects cannot usually follow instructions and perform physical tests when they are impaired.

Walk & Turn

In the Walk & Turn test, the police officer will ask the DWI suspect to take nine steps placing the heel to the toe in a straight line. Someone suspected of DWI should follow instructions carefully for this test. The seven indicators of failure in the walk and turn are:

  • Failure to maintain balance while listening to instructions
  • Starting before the instructions are completely stated
  • Stopping while walking to regain balance
  • Lack of heel to toe touching
  • Using arms to regain or maintain balance
  • Loss of balance while turning
  • Taking an incorrect number of steps

NHTSA research indicates that the majority of DUI suspects who fail two or more of the above items are operating under the influence. You will be arrested and charged with DUI/DWI and required to provide a breath sample.

One Leg Stand

The one leg stand test requires the DWI suspect to stand with one foot approximately six inches off the ground and count aloud starting with one thousand and increasing by one (one thousand-one, one thousand-two, one thousand three, etc…) until told to lower the foot by the police officer. The officer is required to time the subject for 30 seconds. The four indicators of DWI impairment are:

  • Swaying while balancing
  • Using arms to balance
  • Hopping to maintain balance
  • Placing the foot down

NHTSA research indicates that the majority of DWI suspects who exhibit two or more of these indicators are under the influence.

Probable Cause

The field tests that are administered on the side of the road are used by police officers to establish probable cause for the arrest. Your DWI attorney may be able to challenge these tests as well as the reason you were stopped in the first place. In order for these tests to yield valid results they have to be administered in the proscribed manner and must be evaluated based on a total number of indicators. The more indicators are present, the more likely that the person is operating under the influence.

Because most people charged with DWI do not understand what these tests are looking for or how they should be administered, it is extremely important that a lawyer that specializes in DWI defense be used to examine all the evidence and provide a recommendation on how to proceed.

Designed and Hosted by Alonso Consulting, Inc.

   

 
 
DUI Books at Amazon

Copyright © 2007-2008 Alonso Consulting, Inc. – All Rights Reserved.
Duplication of the content, design or navigation of this site is forbidden and is the exclusive property of the copyright holder.

Listings in this site are either free or paid attorney advertisements. They have not been tested or endorsed by any organization including the publisher of this site. Do not send any incriminating or confidential information to this site, since there is no attorney-client privilege.