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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


LINDEN KARL FYFE,                           )
                                            )        Court of Appeals No. A-11058
                          Appellant,        )        Trial Court No. 3PA-10-3464 CR
                                            )
           v.                               )                 OPINION
                                            )
STATE OF ALASKA,                            )
                                            )
                          Appellee.         )          No. 2425 — August 29, 2014
                                            )

                Appeal from the Superior Court, Third Judicial District, Palmer,
                David L. Zwink, Judge.

                Appearances: Kelly Taylor, Assistant Public Defender, and
                Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
                Mary A. Gilson, Assistant Attorney General, Office of Special
                Prosecutions and Appeals, Anchorage, and Michael C.
                Geraghty, Attorney General, Juneau, for the Appellee.

                Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
                District Court Judge.*

                Judge ALLARD.




   *
       Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).
              Linden Karl Fyfe was charged with felony driving under the influence
based, in part, on a Datamaster test showing that his blood alcohol level was .117
percent. At trial Fyfe raised the defense of necessity, arguing that his driving was
justified because his girlfriend’s daughter had been rushed to the hospital after an
apparent seizure. The jury rejected that defense and convicted Fyfe.
              The superior court sentenced Fyfe to 20 months with 16 months suspended.
The court also imposed a $20,000 fine — double the mandatory minimum fine for felony
driving under the influence — based on the State’s allegation that the offense took place
in a traffic safety corridor.
              Fyfe contends that the $20,000 fine is illegal. He argues that the legislature
did not intend to require courts to impose a double fine for felony driving under the
influence in a traffic safety corridor. Based on the legislative history of the statute, we
agree and therefore vacate Fyfe’s $20,000 fine. Because the sentencing judge’s remarks
make clear that he would have imposed the $10,000 mandatory minimum fine for Fyfe’s
offense if he believed he had the discretion to do so, we direct the superior court to
modify the judgment to reflect this mandatory minimum fine.
              Fyfe also argues that his Sixth Amendment right to confront the witnesses
against him was violated because the court allowed the State to introduce reports
verifying the calibration of the Datamaster machine used for his breath test even though
Fyfe had no opportunity to cross-examine the author of the reports. Fyfe concedes that
the admission of these hearsay reports was authorized under our decision in Abyo v.
State,1 but he argues that Abyo and the cases that follow it should be overruled. We
decline to overrule Abyo and find no violation of Fyfe’s confrontation rights.



   1
       166 P.3d 55 (Alaska App. 2007).

                                             2                                         2425
       Why we conclude that the legislature did not intend AS 28.90.030(a) to
       double the range of fines for felony driving under the influence
              Under AS 28.90.030(a), a person is subject to a double fine if the person
“violates a provision of [Title 28] or a regulation adopted under the authority of [Title
28] within a ... traffic safety corridor.”2 This provision, on its face, would seem to
mandate a double fine for any driving under the influence offense committed in a traffic
safety corridor because the offense of driving under the influence is a provision of Title
28. However, the plain meaning of a statute does not necessarily control in Alaska:
              In interpreting a statute, we look to the plain meaning of the
              statute, the legislative purpose, and the intent of the statute.
              We have declined to mechanically apply the plain meaning
              rule when interpreting statutes, adopting instead a sliding
              scale approach: The plainer the statutory language is, the
              more convincing the evidence of contrary legislative purpose
              or intent must be. We apply this sliding scale approach even
              if a statute is facially unambiguous.3
              In Johnnie v. State,4 an unpublished case, we assumed that the double-fine
requirement in AS 28.90.030(a) applied to a person convicted of driving under the
influence. But the issue was not actually litigated in that case: Johnnie did not contest
that he would be subject to a double fine if his offense occurred in a traffic safety
corridor; instead, he contested the trial court’s finding that he admitted, as part of his plea


   2
       “[A] ‘traffic safety corridor’ means a portion of a highway on which signs have been
erected designating that portion as a traffic safety corridor under AS 19.10.075.”
AS 28.90.990(a)(27).
   3
        State, Dep’t of Commerce, Community & Economic Development, Div. of Ins. v.
Alyeska Pipeline Service Co., 262 P.3d 593, 597 (Alaska 2011) (internal quotation marks and
citations omitted).
   4
       2013 WL 6410182 (Alaska App. Dec. 6, 2013) (unpublished).

                                              3                                           2425

agreement, that his offense occurred within a traffic safety corridor.5 Consequently, the
scope of the double-fine requirement in AS 28.90.030(a) is a question of first impression
for this Court.


              The 1998 legislature intended the double-fine requirement to
              apply to traffic offenses
              Alaska Statute 28.90.030(a) has its origins in a statute enacted in 1999,
former AS 28.40.070, which required double fines for “offenses committed within
highway work zones.”6 The legislation that created that statute appears to have been first
introduced in 1997 as House Bill 87. That bill provided in pertinent part:
              Fines for speeding offenses committed within highway
              work zones doubled. Whenever a person violates a
              provision of [Title 28] relating to speeding, or a regulation
              adopted under the authority of [Title 28] relating to speeding,
              or is convicted of reckless driving under AS 28.35.040 or
              negligent driving under AS 28.35.045 within a highway work
              zone, notwithstanding the amount of the fine or the maximum
              fine set under this title, the fine, or maximum fine, is double
              the amount provided in this title.7


   5
       Id. at *1.
   6
      Ch. 64, § 2, SLA 1998. The statute enacted by this legislation, former AS 28.40.070,
provided:
             Fines for offenses committed within highway work zones
             doubled. Whenever a person violates a provision of this title or
             a regulation adopted under the authority of this title within a
             highway work zone, notwithstanding the amount of the fine or
             the maximum fine set under this title, the fine, or maximum fine,
             is double the amount provided in this title.
   7
       H.B. 87, 20th Leg., 1st Sess. (as introduced).

                                             4                                       2425

Thus, as originally conceived, the legislation would have doubled fines only for three
specified offenses committed in highway work zones: speeding, negligent driving, and
reckless driving. Although House Bill 87 was discussed in committee, it was never
enacted into law.8
               In 1998, some of the language from House Bill 87 was incorporated into
Senate Bill 304.9 That legislation, as introduced, contained the same language as the
current version of AS 28.90.030(a) (minus the 2006 amendment extending the statute to
traffic safety corridors).10 Thus, instead of enacting the House bill, which was targeted
at three specific traffic and motor vehicle offenses, the legislature opted for the
seemingly broader language doubling fines “[w]henever a person violates a provision of
[Title 28] or a regulation under the authority of [Title 28] within a highway work zone.”11
               Although this language on its face suggests that the legislature intended the
double-fine requirement to apply to all traffic infractions, equipment violations, and
motor vehicle criminal offenses enumerated in Title 28 of the Alaska Statutes, Title 13
of the Alaska Administrative Code, and some Title 2 regulations, the legislative history
does not support such a broad construction of the statute. Sen. Dave Donley, the sponsor
of Senate Bill 304, told the Senate Transportation Committee that the bill was intended
to “double fines for moving traffic violations in construction zones.” 12           Donley



   8
        See 1997 House Journal 137.

   9
        S.B. 304, 20th Leg., 2nd Sess. (as introduced).

   10
        Id.; see also supra note 6.

   11
        Ch. 64, § 2, SLA 1998.

   12
       Minutes of Senate Transportation Committee, S.B. 304, Tape 98-4, Side A (Feb. 24,

1998) (emphasis added).

                                              5                                        2425

emphasized that the legislation “does not deal with criminal law, only traffic
violations.”13 In this context, a state trooper informed the committee that the maximum
fine for a traffic infraction (unless otherwise provided by statute) was $300.14 From this
discussion, it appears that the legislature anticipated that the doubled fines that would
result from enacting Senate Bill 304 would generally not exceed $600.
              At the same time, and in the same bill, the legislature amended
AS 28.05.151, the statute that directs the supreme court to set bail, and municipalities to
establish fines, for motor vehicle and traffic offenses that are amenable to disposition
without court appearance.15 The legislature added the following subsection to that
statute:
              (d) The supreme court, in establishing scheduled amounts of
              bail under this section, and each municipality that establishes
              or has established a fine schedule under this section shall
              provide that the scheduled amount of bail or fine, as
              applicable, for a motor vehicle or traffic offense that is
              committed in a highway work zone shall be double the
              amount of the bail or fine for the offense if it had not been
              committed in a highway work zone.16
(In 2006, the legislature amended this subsection to add traffic safety corridors.17)




   13
        Id.
   14
     Minutes of Senate Transportation Committee, S.B. 304, testimony of Capt. Ted
Bachman, Alaska State Troopers, Tape 98-4, Side B (Feb. 24, 1998).
   15
       See Putnam v. State, 930 P.2d 1290, 1293 (Alaska App. 1996) (statutes enacted
together are read in pari materia).
   16
        Ch. 64, § 1, SLA 1998.
   17
        Ch. 45, § 2, SLA 2006.

                                            6                                           2425

              Thus, at a minimum, the 1998 legislature intended the double-fine
requirement to apply to offenses listed in the bail and fine schedules established under
AS 28.05.151(a) — that is, to non-criminal offenses amenable to disposition without
court appearance.18 Because the sponsor of Senate Bill 304 clearly expressed an intent
to limit double fines in highway work zones to non-criminal traffic offenses, it seems
likely that the legislature understood the double-fine requirement to apply only to the
offenses included in these schedules — that is, only to offenses amenable to disposition
without court appearance — and not to fines imposed as part of a sentence for a criminal
offense. But we do not need to resolve that broader issue in this case, because the only
question before us is whether the legislature intended the statute to double fines for
felony driving under the influence. Based on our review of the legislative history, we
conclude that the 1998 legislature did not intend to double fines for felony driving under
the influence in highway work zones.




   18
       The bail amounts and fines established under AS 28.05.151(a) are the maximum fines
for those offenses, notwithstanding the higher maximum fines that might be authorized
elsewhere in the Alaska Statutes. Under AS 12.25.230(c), “[i]f 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.” The bail amounts established by the Alaska Supreme Court in
Administrative Rule 43.1, and the fines established by the Municipality of Anchorage in
AMC 9.48.130, do not exceed $300 (the statutory maximum for an infraction under AS
28.90.010(d)).

                                             7                                          2425

               The 2006 legislature did not express an intent to change the
               1999 law to double fines for felony driving under the
               influence
               In 2006, the legislature amended the 1999 statute to extend the double-fine
requirement to traffic safety corridors.19 Otherwise the statute remained unchanged.
This suggests that the 2006 legislature did not intend to alter the meaning or reach of the
1999 statute — other than to extend it to traffic safety corridors. “It is a general rule in
the interpretation of statutes that provisions of an original act which are repeated in an
amendment are considered as a continuation of the original act.”20
               This conclusion is supported by the governor’s transmittal letter
accompanying the 2006 legislation. Referring to the 1999 statute, AS 28.40.070, the
governor stated that:
               the provisions of ... AS 28.40.070 currently provide for
               double fines or bail for motor vehicle or traffic offenses in
               areas designated as highway work zones. These provisions
               would be amended by adding references to traffic safety
               corridors.21


   19
        See Ch. 45, § 4, SLA 2006. The underlined text was added:
              Fines for offenses committed within highway work zones
              and traffic safety corridors doubled. Whenever a person
              violates a provision of this title or a regulation adopted under the
              authority of this title within a highway work zone or traffic
              safety corridor, notwithstanding the amount of the fine or the
              maximum fine set under this title, the fine, or maximum fine, is
              double the amount provided in this title.
   20
      Green v. State, 462 P.2d 994, 1000 (Alaska 1969); see also Warren v. Thomas, 568
P.2d 400, 403 (Alaska 1977).
   21
        January 31, 2006, governor’s transmittal letter for S.B. 261, 2006 Senate Journal
                                                                            (continued...)

                                                8                                      2425

               As recounted above, the only explicit change the 2006 legislature made to
the statutory subsection at issue — AS 28.40.070 at the time of enactment, now
renumbered AS 28.90.030(a) — was to extend its application to traffic safety corridors.
               At the same time, the legislature enacted AS 19.10.075(a), which gave the
Department of Transportation and Public Facilities the authority to create traffic safety
corridors.22 That subsection provides in pertinent part:
               Designation of traffic safety corridors; fines. (a) To
               promote traffic safety, the department may designate a
               portion of a highway to be a traffic safety corridor. The
               commissioner shall establish criteria for the designation and
               continuation of traffic safety corridors. ... A motor vehicle or
               traffic offense23 committed in a traffic safety corridor is
               subject to a double fine as provided in AS [28.90.030 24]. The
               department shall erect signs designating traffic safety
               corridors and alerting the public that motor vehicle and traffic
               offenses committed within a corridor are subject to double
               fines.25
               The State argues that this language in AS 19.10.075(a) (in particular, the
language characterizing the double-fine requirement in AS 28.90.030 as applying to any
“motor vehicle or traffic offense”) expresses the legislature’s intent to require double



   21
        (...continued)
2037.
   22
        Ch. 45, § 1, SLA 2006.
   23
        Emphasis added. The sentence containing this italicized language was included in the
bill as originally introduced. S.B. 261, 24th Leg., 2nd Sess. (as introduced, Feb. 1, 2006).
   24
     In 2007, “AS 28.90.030” was substituted for “AS 28.40.070” to reflect the 2006
renumbering of AS 28.40.070. See Revisor’s notes following AS 19.10.075.
   25
        AS 19.10.075(a) (emphasis added).

                                              9                                        2425

fines in traffic safety corridors for all motor vehicle and traffic offenses, including
driving under the influence, regardless of the 1998 legislature’s intent.
              We are not persuaded by this argument. As we explained earlier, when the
legislature added subsection (d) to AS 28.05.151 in 1998, it used the phrase “motor
vehicle or traffic offense” to refer to offenses the supreme court and municipalities
determined were amenable to disposition without court appearance. This same language
was carried over into the 2006 version of AS 28.05.151(d). Thus, both legislatures used
the phrase “motor vehicle or traffic offense” in reference to these schedules of non­
criminal traffic and motor vehicle offenses. Moreover, we think if the 2006 legislature
had intended to significantly expand AS 28.90.030(a) to include motor vehicle criminal
offenses such as felony driving under the influence, as the State argues, it would have
done so explicitly in AS 28.90.030(a), rather than indirectly in AS 19.10.075(a).
              It might be that legislators in 2006 assumed — incorrectly, but reasonably
given the broad language of the statute — that the 1999 statute already doubled fines for
criminal motor vehicle offenses committed in highway work zones. If the 2006
legislature misconstrued the 1999 law in this manner and believed that this was the law
it was extending to traffic safety corridors, that intent would seem to control.26
              But the legislative history of the 2006 legislation does not support this view.
That history contains multiple direct references to doubling fines for moving traffic
violations, particularly speeding, but there is no direct reference to the bill, in the form




   26
        Cf. McKinley v. State, 275 P.3d 567, 573 (Alaska App. 2012).

                                             10                                         2425
that was enacted,27 doubling fines for driving under the influence or other criminal motor
vehicle offenses.28
              As the State points out, committee debate did touch on the enforcement of
drunk driving laws. But because a portion of the fines collected from the traffic safety
corridor program was earmarked for increased enforcement efforts,29 we do not read


   27
       As noted below, there was discussion about extending the bill to criminal motor
vehicle offenses in Title 11, but this idea was rejected and no amendment was offered.
   28
        See Fiscal Note No. 4, H.C.S. C.S.S.B. 261, 24th Leg., 2nd Sess. (published Apr. 26,
2006) (noting that the legislation “provides for enhanced fines related to motor vehicle traffic
offenses committed within a designated safety corridor”); Minutes of Senate Transportation
Committee, S.B. 261, testimony of Lt. James Helgoe, Alaska State Troopers, 2:08:24 p.m.
(Feb. 9, 2006) (stating that the legislation “would act as a deterrent for speeders”); Minutes
of House Transportation Committee, S.B. 261, testimony of John MacKinnon, Deputy
Commissioner of Highways and Public Facilities, 2:14:32 p.m. (Mar. 21, 2006) and Minutes
of Senate Finance Committee, S.B. 261, testimony of MacKinnon, 9:07:11 a.m. (Mar. 21,
2006) (stating that the legislation would allow double “traffic fines” in traffic safety
corridors); Minutes of House Judiciary Committee, S.B. 261, testimony of MacKinnon,
2:30:01 p.m. (Apr. 12, 2006) (noting that speeding fines generally ranged from $75 to $100,
and that “doubling those fines [would] result in a lot of money”); Minutes of Senate Finance
Committee, S.B. 261, questioning by Co-Chair Lyda Green, 9:33:15 a.m. (Mar. 21, 2006)
(asking whether doubling fines in highway construction zones had made a “notable
difference” in speeding); Minutes of House Finance Committee, S.B. 261, statement of Co-
Chair Mike Chenault, 3:51:38 p.m. (Apr. 25, 2006) (suggesting that the intent of the
legislation was to “fine careless drivers”); Minutes of Senate Transportation Committee, S.B.
261, testimony of Director Jeff Ottesen, Division of Program Development, Department of
Transportation and Public Facilities, 1:36:40 p.m. (Feb. 9, 2006) (stating that the intent of
the legislation was to “keep [the] numbers of accidents down”); Minutes of Senate
Transportation Committee, S.B. 261, testimony of Senator Gene Therriault, 1:38:53 p.m.
(Feb. 9, 2006) (noting that Virginia had set a maximum fine of $500 in traffic safety
corridors, on the theory that a definite fine would be a more effective deterrent).
   29
      AS 19.10.075(b); Minutes of Senate Finance Committee, S.B. 261, testimony of
Deputy Commissioner of Highways and Public Facilities John MacKinnon, 9:07:11 a.m.
(Mar. 21, 2006) (stating that the legislation would “couple increased enforcement with
                                                                          (continued...)

                                              11                                           2425

these discussions as demonstrating a legislative intent to double fines for driving under
the influence in traffic safety corridors. Although legislators were told that an estimated
twenty to thirty percent of motor vehicle accidents were known to involve alcohol or
controlled substances,30 the legislative history is silent on the substantial fines that might
be collected for driving under the influence offenses committed in traffic safety
corridors. (In 2006, as now, a first misdemeanor DUI offense carried a fine of not less
than $1500 and a felony offense carried a fine of not less than $10,000.31)
              We acknowledge that, in the House Judiciary Committee, Rep. Max
Gruenberg questioned whether the requirement of double fines in traffic safety corridors
should be extended beyond Title 28 to vehicular crimes penalized in Title 11, such as
vehicular homicide (criminally negligent homicide committed by means of a vehicle) or
assault with a dangerous instrument (third-degree assault).32 This discussion suggests
that Rep. Gruenberg, at least, viewed the bill as applying to all motor vehicle offenses
listed in Title 28. But the Department of Law’s response to this inquiry conveyed that,
contrary to this assumption, it did not understand the legislation to double fines for

   29
        (...continued)
double traffic fines” and the resulting increased revenue would “be funneled to the
Department of Public Safety to provide for the expense of the increased enforcement” in
traffic safety corridors); Minutes of House Transportation Committee, S.B. 261, testimony
of MacKinnon, 2:14:32 p.m. (Mar. 21, 2006) (stating that the legislation was “aimed at
getting a handle on driver behavior by allowing the increase of enforcement and collecting
double traffic fines”); January 31, 2006, governor’s transmittal letter for S.B. 261, 2006
Senate Journal 2037 (noting that 50 percent of the fines would be allocated to highway safety
programs).
   30
      Minutes of Senate Transportation Committee, S.B. 261, testimony of Lt. James
Helgoe, Alaska State Troopers, 2:15:46 p.m. (Feb. 9, 2006).
   31
        Former AS 28.35.030(b)(1)(A), (n)(1) (2006).
   32
        Minutes of House Judiciary Committee, S.B. 261, 2:43:00 p.m. (Apr. 12, 2006).

                                             12                                          2425

felony motor vehicle offenses, which the Department pointed out already carried
substantial fines.33
              Because the legislative history of the 2006 bill demonstrates no intent to
change existing law (beyond extending it to traffic safety corridors), we conclude that
the intent of the 1998 legislature controls. We therefore hold that AS 28.90.030(a) does
not double the range of fines for felony driving under the influence in a traffic safety
corridor.
              We accordingly vacate Fyfe’s $20,000 fine. Because the judge’s comments
at sentencing make clear that the judge would have imposed the $10,000 mandatory
minimum fine for Fyfe’s offense if he believed he had the discretion to do so, we direct
the superior court to modify the judgment to reflect this mandatory minimum fine.


        Why we conclude that Fyfe’s confrontation rights were not violated
              At trial, the State offered evidence that the calibration of the Datamaster
machine had been verified before and after Fyfe’s breath test as required to ensure that
the machine was functioning properly. Fyfe argues that the admission of these
verification reports violated his Sixth Amendment right to confront the witnesses against
him because the State did not present the testimony of the individual who performed the
verifications and prepared the reports.




   33
       Minutes of House Judiciary Committee, S.B. 261, testimony of Senior Assistant
Attorney General Peter Putzier, Department of Law, 2:44:22 p.m. (Apr. 12, 2006). The
maximum fine for felony driving under the influence, a class C felony, is $50,000. AS
28.35.030(b); AS 12.55.035(b)(4). The highest possible fine under Title 28 appears to be for
using an electronic device while driving and causing the death of a person, a class A felony
that carries a maximum fine of $250,000. AS 28.35.161(f)(4); AS 12.55.035(b)(2).

                                            13                                         2425

                In Crawford v. Washington,34 the United States Supreme Court held that the
admission of out-of-court “testimonial” statements violates the defendant’s Sixth
Amendment right to confrontation unless the defendant (1) is able to cross-examine the
person who made the testimonial statements, or (2) the person is unavailable and the
defendant had a prior opportunity to cross-examine the person regarding the subject of
the statements.35
                In Crawford, the Supreme Court declared that statements in business
records are by their nature normally not testimonial.36 Subsequently, in Abyo v. State,
we held — in line with the weight of authority in other jurisdictions37 — that verification
of calibration reports are non-testimonial business records under Crawford, and that such
reports may be admitted against the defendant even if the author of the report is not
subject to cross-examination.38
                After we decided Abyo, a plurality of the Supreme Court held in Melendez
-Diaz v. Massachusetts39 that the defendant’s right to confrontation was violated by the
admission of an affidavit by a laboratory analyst asserting that the substance seized from
the defendant was cocaine; the Court reached this conclusion because it found that the
affidavit was “testimonial” and that the defendant had no opportunity to cross-examine



   34
        541 U.S. 36 (2004).

   35
        Id. at 53-54.

   36
        Id. at 56.

   37
      Abyo, 166 P.3d 55, 60 & n.19 (Alaska App. 2007); see also McCarthy v. State, 285

P.3d 285, 294 (Alaska App. 2012) (Mannheimer, J., concurring).
   38
        Abyo, 166 P.3d at 60.
   39
        557 U.S. 305 (2009).

                                             14                                       2425

the author.40 In McCarthy v. State, we addressed whether our decision in Abyo was still
good law in light of Melendez-Diaz, and we concluded that it was.41 We noted that other
courts that had considered the issue after Melendez-Diaz had almost uniformly agreed
that breath-test machine calibration records are non-testimonial records that may be
admitted without the testimony of the person who prepared them.42
               Fyfe argues that Abyo and McCarthy were wrongly decided and should be
overruled. We adhere to those decisions and uphold the superior court’s decision to
admit the verification of calibration reports in this case.


        Conclusion
               We VACATE Fyfe’s $20,000 fine and direct the superior court to modify
the judgment to impose a fine of $10,000, the mandatory minimum fine for felony
driving under the influence. In all other respects, we AFFIRM the judgment of the
superior court.




   40
        Id. at 307-11.
   41
        McCarthy, 285 P.3d at 289.
   42
        Id. at 289 & n.9.

                                            15                                    2425
