§ 9.28.022. Driving under the influence—Refusal to submit to chemical tests.

A.

If a person under arrest refused the request of a law enforcement officer to submit to a chemical test under section 9.28.021 A., after being advised by the officer that the refusal will, if that person was arrested while operating or driving a motor vehicle for which a driver's license is required, result in the denial or revocation of the license or nonresident privilege to drive, 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 or driving a motor vehicle or operating an aircraft or a watercraft under the influence, and that the refusal is a misdemeanor, a chemical test shall not be given, except as provided by section 9.28.025.

B.

The refusal of a person to submit to a chemical test of the person's breath under subsection A. of this section 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, driving or in actual physical control of a motor vehicle or operating an aircraft or watercraft under the influence.

C.

Refusal to submit to the chemical test of breath authorized by section 9.28.021 A. is a misdemeanor.

D.

Upon conviction for refusal to submit to chemical tests under subsection C of 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 $1,500.00 if the person has not been previously convicted.

b.

Not less than 20 days and a fine of not less than $3,000.00 if the person has been previously convicted once.

c.

Not less than 60 days and a fine of not less than $4,000.00 if the person has been previously convicted twice.

d.

Not less than 120 days and a fine of not less than $5,000.00 if the person has been previously convicted three times.

e.

Not less than 240 days and a fine of not less than $6,000.00 if the person has been previously convicted four times.

f.

Not less than 360 days and a fine of not less than $7,000.00 if the person has been previously convicted more than four times.

2.

Except in mitigated circumstances, the court shall impose more than the mandatory minimum sentence. Mitigated circumstances do not exist if any of the following circumstances are present:

a.

The defendant's driving conduct caused personal injury or property damage to another.

b.

The defendant failed to stop for a red light or stop sign.

c.

A container of alcoholic beverage was open in the passenger compartment of the defendant's vehicle.

d.

The defendant was on release under AS 12.30.020 or AS 12.30.040 or on probation for another DUI or refusal charge or conviction.

e.

The defendant has been previously convicted of reckless driving or leaving the scene of a crash.

3.

The court:

a.

May not suspend execution of sentence or grant probation except on condition that the person:

1.

Serve the minimum imprisonment under subsection D.1.; and

2.

Pay the minimum fine required under subsection D.1.

b.

May not suspend imposition of sentence; and

c.

The sentence imposed by the court shall run consecutively with any other sentence of imprisonment imposed on the person.

4.

If the offense involved driving a motor vehicle for which a driver's license is required:

a.

The person's driver's license shall be revoked in accordance with AS 28.15.181; and

b.

In addition, the court shall order, and a person convicted under this section shall undertake, for a term specified by the court, that program of alcohol education or rehabilitation that the court, after consideration of any information compiled under subsection H of this section, finds appropriate; and

c.

The court shall impose ignition interlock requirements upon a person convicted under this section as required under Title 28 of the Alaska Statutes.

5.

If the person has any interest in the vehicle used in the commission of the offense, the court shall order that:

a.

The vehicle be impounded for 30 days if the person has not been previously convicted; and

b.

The person's interest in the vehicle be forfeited to the municipality if the person has been previously convicted.

At sentencing, the court shall order that any vehicle return bond which has been posted to secure the release of the vehicle be forfeited to the municipality if the vehicle subject to the vehicle return bond is not returned to the custody of the municipality within five days after the sentencing. At sentencing, the court shall order that any vehicle return bond posted to secure the release of the vehicle be exonerated when the vehicle has been returned to the custody of the municipality. At sentencing, the court may also order that any proceeds of any sale, transfer, or encumbrance of the vehicle be forfeited to the municipality if the vehicle has been sold, transferred, or encumbered while the vehicle has been subject to a vehicle return bond. A vehicle ordered impounded pursuant to this subsection shall not be released until after the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the impound fees and the storage fees. The insurance requirement may be waived by the municipality if the vehicle is inoperable. Impound fees shall include the actual costs of impound plus an administrative fee of $410.00 to offset the municipality's processing costs. Any order of impoundment or forfeiture entered under this subsection is subject to the rights of lienholders, owners, lessors, lessees and co-owners who are not the person convicted of refusal to submit to chemical tests as those rights are adjudicated in civil proceedings under section 9.28.026. If the municipality has brought a civil action under section 9.28.026 seeking impoundment or forfeiture as against all those with an interest in the vehicle except the person charged with a violation of this section, that civil action shall provide the sole forum in which lienholders, owners, lessors, lessees and co-owners who claim an interest in the vehicle but are not the person charged with a violation of this section can seek relief.

6.

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 subsection is in addition to any other condition authorized under another provision of law.

7.

If the court determines that the person has successfully completed a court-ordered treatment program, the court may suspend up to 75 percent of the mandatory minimum sentence required under this section and up to 50 percent of the minimum fines required under this section. This subsection does not apply to a person who has already participated in a court-ordered treatment program two or more times. In this subsection court-ordered treatment 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.

E.

Except as provided by federal law or regulation, every provider of treatment programs to which persons are ordered under subsection D of this section shall supply the state court system with the information regarding the condition and treatment of those persons as the supreme court may require by rule. Information compiled under this subsection is confidential and may only be used by a court in sentencing a person convicted under subsection D of 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 subsection D of this section.

F.

For purposes of this section, convictions for both driving under the influence and for refusal to submit to a chemical test of breath under section 9.28.021 A., if arising out of a single transaction and a single arrest, are considered one previous conviction.

G.

The court shall order a person convicted under this section to satisfy the screening, evaluation, referral and program requirements of an agency authorized by the court to make referrals for rehabilitative treatment or to provide rehabilitative treatment.

H.

A program of inpatient treatment may be required by the authorized agency under subsection G 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.

I.

If a person fails to satisfy the requirements of an authorized agency under subsection H of this section, the court:

1.

May impose any portion of a suspended sentence.

2.

May punish the failure as contempt of court under AS 9.50.010 or as a violation of a condition of probation.

3.

Shall order the revocation or suspension of the person's driver's license, privilege to drive, and privilege to obtain a license until the requirements are satisfied.

J.

The magistrate or judge who sets the conditions of release for a person arrested for refusal to submit to chemical tests shall at the same time set a vehicle return bond for the vehicle alleged in an oral statement of a police officer to have been used in the commission of the offense if the records of the Alaska department of public safety, division of motor vehicles or the records of an agency with similar responsibilities in another state show that the person arrested for the offense has any interest in the vehicle. The purpose of setting a vehicle return bond is to secure the presence of the vehicle pending trial and to provide security to be forfeited along with the proceeds of a sale, transfer, or encumbrance if the defendant's interest in the vehicle is sold, transferred, or encumbered after the vehicle has been released pending trial. A person who secures the release of a vehicle pursuant to a vehicle return bond must return the vehicle to the custody of the municipality if required by the terms of the vehicle return bond, or upon order of the court. If the vehicle's release has been obtained through the posting of a vehicle return bond and the vehicle is not returned according to the terms of the vehicle return bond or pursuant to the court's order after a judgment of conviction, the municipality may, in addition to retaining the forfeited bond funds, seize the vehicle to implement the impoundment or forfeiture ordered by the court. If the person has not been previously convicted, the magistrate or judge setting the vehicle return bond shall order that the requirement of the vehicle return bond shall automatically expire 30 days after the vehicle has been seized if the vehicle has not released pursuant to a vehicle return bond. The vehicle return bond set under the authority of this section may only be posted by a person alleged to have used the vehicle in the commission of the offense of refusal to submit to chemical tests or to a person who agrees to return the vehicle upon order of the court upon penalty of forfeiture of the bond. The vehicle return bond set under the authority of this section may be posted at the municipality. A vehicle return bond may be posted in cash only. A vehicle return bond shall be set at a minimum of:

1.

Two hundred fifty dollars, if the person has not been previously convicted;

2.

Five hundred dollars, if the person has been previously convicted and the vehicle is 20 years old or older;

3.

One thousand dollars, if the person has been previously convicted and the vehicle is 15 years old or older but less than 20 years old;

4.

One thousand five hundred dollars, if the person has been previously convicted and the vehicle is ten years old or older but less than 15 years old;

5.

Two thousand dollars, if the person has been previously convicted and the vehicle is five years old or older but less than ten years old; and

6.

Two thousand five hundred dollars, if the person has been previously convicted and the vehicle is less than five years old.

A vehicle return bond may be set above the minimum if the vehicle appears to have unusually high value for its age. A vehicle that is or has been the subject of an order under this subsection shall not be released pending trial until the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the vehicle return bond and towing and storage fees, including the administrative fee of $410.00 to offset the municipality's processing costs. If a vehicle has not been impounded for a longer period than the vehicle would be impounded if the person were convicted, the court shall not delete the requirement of the vehicle return bond or exonerate a posted vehicle return bond until the vehicle for which bond has been posted is returned pursuant to court order. Unless the following sentence applies, a vehicle that is or has been the subject of a vehicle return bond may only be released if the person seeking the release of the vehicle provides proof of insurance or an affidavit of insurance, and pays or provides proof of payment of the towing and storage costs, including the administrative fee of $410.00 to offset the municipality's processing costs. The insurance requirement may be waived by the municipality if the vehicle is inoperable. A vehicle may be recovered without payment of the towing and storage costs, including the administrative fee, only if a court makes a specific finding that the seizure of the vehicle was legally unjustified and such specific finding follows a contested hearing or is pursuant to a stipulation between the parties. A seizure is "legally unjustified" only if there was: (1) no reasonable suspicion for the stop of the vehicle leading to an arrest for driving under the influence based on the individual allegedly operating, driving, or being in actual physical control of the vehicle; or (2) no probable cause for the arrest of an individual for driving under the influence based on the individual allegedly operating, driving, or being in actual physical control of the vehicle.

K.

The conditions of release established for a person charged with refusal to submit to chemical tests shall include at a minimum an order that the person's interest, if any, in the vehicle alleged in an oral statement by a police officer, criminal complaint, information, or indictment to have been used in the commission of the offense be forfeited if the person does not appear as ordered. This subsection applies to any release before judgment of conviction on a charge of refusal to submit to chemical tests, including any release on the person's own recognizance.

L.

A vehicle that is or has been the subject of an order setting a vehicle return bond under subsection J of this section and has not been released pursuant to that order is subject to the provisions of AS 28.10.502 if no criminal complaint, information, or indictment is filed by the date and time of the scheduled arraignment alleging a violation of this section or if the count of the criminal complaint, information, or indictment alleging a violation of this section is amended upon motion of the prosecution, is dismissed by the prosecution, or is resolved by the acquittal of the person alleged to have violated this section. The provisions of chapter 9.50 do not apply to a vehicle that is or has been the subject of an order setting a vehicle return bond under subsection J of this section. Any vehicle return bond set expires on the date and time of the scheduled arraignment if no criminal complaint, information, or indictment alleging a violation of this section is filed by the date and time of the scheduled arraignment.

M.

Vehicles ordered impounded under section 9.28.022D.5 which are not claimed at the end of the court-ordered period of impoundment may be disposed of pursuant to the provisions of AS 28.10.502. If the contents of the vehicle have not been recovered before such disposal, the contents may be disposed of with the vehicle. Personal property in a vehicle that is subject to a vehicle return bond under section 9.28.022.J and has not been released pursuant to that vehicle return bond can be recovered only by the owner of the vehicle and only upon payment of a fee charged for monitoring the recovery of such personal property. Such fee shall be set by contract between the towing and storage contractor and the municipality if it is not established by ordinance. Such fee shall be recoverable by the owner of the vehicle if a court makes a specific finding that the seizure of the vehicle was legally unjustified following a contested hearing or pursuant to a stipulation between the parties.

N.

A motor vehicle that is the subject of a vehicle return bond under subsection J of this section and has not been released pursuant to that vehicle return bond shall be held in the custody of the police department or a private corporation authorized by the chief of police to retain custody of the motor vehicle, subject only to the orders and decrees of any court having jurisdiction over any forfeiture or impoundment proceedings. If a motor vehicle is seized under this section, the chief of police or authorized designee may:

1.

Remove the motor vehicle and any contents of the motor vehicle to a place designated by the court; or

2.

Take custody of the motor vehicle and any contents of the motor vehicle and remove it to an appropriate location for disposition in accordance with law.

O.

Before disposing of any vehicle forfeited under this section, the chief of police or designee shall make an inventory of the contents of any motor vehicle seized. Property seized under this section shall be disposed of by the chief of police or designee in accordance with this subsection. Property forfeited under this section includes both the vehicle that is the subject of the forfeiture action and the contents of the vehicle if those contents have not been recovered before the date of the disposal. The chief of police or designee may:

1.

Sell the property at an auction conducted by an auctioneer not employed by the impound contractor and use the proceeds for payment of all proper expenses of seizure, custody, the costs of the auction, court costs, and municipal attorney fees, provided if such sale is arranged for by the impound contractor the municipality shall receive at least 30 percent of the proceeds of any sale of forfeited vehicles following deduction for the costs charged by the auctioneer for the auction of those vehicles regardless of whether the costs of impound and storage exceed the value of the vehicles sold;

2.

Take custody of the property and use it in the enforcement of the municipal and state criminal codes; or

3.

Destroy the property.

(AO No. 82-126; AO No. 83-168, 10-17-83; AO No. 91-56(S); AO No. 91-190; AO No. 95-84(S-1), §§ 10—17, 4-27-95; AO No. 95-163(S), §§ 6—9, 8-8-95; AO No. 97-87, § 2, 6-3-97; AO No. 2001-51, § 1, 2-27-01; AO No. 2002-125, § 4, 8-20-02; AO No. 2003-73, §§ 10, 11, 4-22-03; AO No. 2003-106, §§ 5, 6, 7-1-03; AO No. 2008-122, § 2, 12-16-08; AO No. 2009-61, § 6, 7-7-09; AO No. 2010-76, § 3, 10-26-10 AO No. 2010-81(S-1), § 7, 12-7-10, eff. 1-1-11; AO No. 2011-113(S), § 61, 11-22-11, eff. 12-22-11; AO No. 2014-42, § 21, 6-21-14)

State law reference

Refusal to submit to chemical test, AS 28.35.032.