          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                 )       No. 76801-8-1                         rft3
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                     Respondent,         )                                            61      )1-12

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MICHAEL FRANK ROTT,                      )       UNPUBLISHED OPINION                   DC      =r1:

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                     Appellant.          )       FILED: July 23, 2018                  0       a-;
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       MANN, A.C.J. — Michael Roll was convicted of felony driving while under the

Influence of alcohol (DUI). He argues that the trial court acted outside of its sentencing

authority in including his prior Alaskan DUI convictions when calculating his offender

score. We affirm.

                                          FACTS

       On July 31,2016, Roll was pulled over by police officers for driving slowly and

failing to use his turn signal. Roll appeared to be under the influence of alcohol and he

performed poorly on field sobriety tests. Roll was arrested for the investigation of DUI.

After Roll refused to submit to a breath test, police obtained a search warrant for blood.

The blood test showed a blood alcohol concentration of 0.22.
No. 76801-8-1/2

       Rott was arrested for DUI. The prosecutor determined that Rott had a previous

conviction for felony DUI. Based on this predicate offense, the State charged Rott with

felony DUI. At sentencing, the State included Roll's prior convictions for DUI in Alaska

in calculating his offender score. Rott entered a plea of guilty, but reserved the right to

challenge the State's offender score calculation.

       At sentencing, Rott asserted that his prior convictions in Alaska for DUI are not

comparable to his Washington conviction such that they can be scored as points to

calculate his offender score. Specifically, Rott argued that the statute criminalizing DUI

in Alaska is broader than the Washington statute because the Alaska statute

encompasses motor vehicles, vessels, and airplanes, whereas Washington criminalizes

DUI for each of these under its own separate statute. The sentencing court rejected this

argument and concluded that Roll's two Alaskan DUI convictions, committed in 1997

and 2003, were comparable to the Washington offense. The sentencing court

determined that Rott's offender score was 7, and it sentenced him to a mid-range

sentence of 55 months. Rott appealed.

                                       DISCUSSION

       Rott contends that the sentencing court erred in including his prior Alaskan

convictions for DUI in calculating his offender score because they are not comparable to

Washington offenses."We review a sentencing court's calculation of an offender score

de novo." State v. Moeurn, 170 Wn.2d 169, 172, 240 P.3d 1158(2010)(citing State v.

Bergstrom, 162 Wn.2d 87, 92, 169 P.3d 816(2007).

       Under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW,the

sentencing court totals the defendant's prior convictions to determine an offender score,


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which establishes the presumptive standard sentencing range. State v. Arndt 179 Wn.

App. 373, 377, 320 P.3d 104(2014)."Furthermore,for out-of-state convictions, the SRA

requires courts to translate the convictions 'according to the comparable offense

definitions and sentences provided by Washington law." State v. Wiley, 124 Wn.2d 679,

682, 880 P.2d 983(1994)(quoting RCW 9.94A.360(3)).

       Washington applies a two-part test to analyze the comparability of out-of-state

convictions.

      Under the legal prong, courts compare the elements of the out-of-state
      conviction to the relevant Washington crime. If the foreign conviction is
      identical to or narrower than the Washington statute and thus contains all
      the most serious elements of the Washington statute, then the foreign
      conviction counts towards the offender score as if it were the Washington
      offense. If, however, the foreign statute is broader than the Washington
      statute, the court moves on to the factual prong—determining whether the
      defendant's conduct would have violated the comparable Washington
      statute.

State v. Olsen, 180 Wn.2d 468,472-73, 325 P.3d 187(2014)(citations omitted). The

SRA requires "rough comparability—not precision—among offenses." State v. Jordan,

180 Wn.2d 456,465, 325 P.3d 181 (2014)."[T]he State bears the burden to prove by a

preponderance of the evidence the existence and comparability of a defendant's prior

out-of-state conviction." State v. Ross, 152 Wn.2d 220,230,95 P.3d 1225(2004).

       We begin our analysis with the legal prong of the two-part test: whether the

Alaska conviction is identical to or narrower than the Washington crime. In 1997, when

Roll committed his first Alaskan DUI, Alaska defined the crime of "driving while

intoxicated" as follows:

       A person commits the crime of driving while intoxicated if the person
       operates or drives a motor vehicle or operates an aircraft or a watercraft



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      (1) while under the influence of intoxicating liquor, or any controlled
          substance;

      (2) when, as determined by a chemical test taken within four hours after
         the alleged offense was committed, there is 0.10 percent or more by
          weight of alcohol in the person's blood or 100 milligrams or more of
          alcohol per 100 milliliters of blood, or when there is 0.10 grams or more
          of alcohol per 210 liters of the person's breath; or

      (3) while the person is under the combined influence of intoxicating liquor
         and a controlled substance.

Former ALASKA STAT.§ 28.35.030(a)(1992)

      By 2003, when Roll committed his second Alaskan DUI, the Alaskan legislature

had renamed the crime "driving under the influence" and lowered the allowable alcohol

limit from 0.10 to 0.08. 2002 Alaska Sess. Laws 16.

      The Washington statute in effect at the time of Roll's first Alaskan DUI in 1997

provided:

      A person is guilty of driving while under the influence of intoxicating liquor
      or any drug if the person drives a vehicle within this state:

      (a) And the person has, within two hours after driving, an alcohol
          concentration of 0.10 or higher as shown by analysis of the person's
          breath or blood made under RCW 46.61.506; or

      (b) While the person is under the influence of or affected by intoxicating
         liquor or any drug; or

      (c) While the person is under the combined influence of or affected by
          intoxicating liquor and any drug.

ROW 46.61.502(1)(1994).

       By 2003, when Roll committed his second Alaskan DUI, the Washington

Legislature had also lowered the allowable alcohol limit from 0.10 to 0.08. LAWS OF

1998, ch. 213,§ 3.



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        Roll contends that the Alaska statutes are not comparable to the

Washington statutes, because the Alaska statutes allowed a four-hour time frame

during which testing at or above the legal limit constituted evidence of guilt,

whereas the Washington statutes allowed a time frame of only two hours.1 The

State argues that the different testing time frames are irrelevant because at the

time Roll committed his Alaskan DUls, the dispositive fact in both Alaska and

Washington was the defendant's blood alcohol level at the time of driving.2

        We agree with the State. In Conrad v. State, 54 P.3d 313(Alaska Ct. App.

2002), the defendant was charged with driving while intoxicated under both the

"impairment" theory codified in AS 28.35.030(a)(1) and the 'blood alcohol level"

theory codified in AS 28.35.030(a)(2). Conrad, 54 P.3d at 313. Conrad argued

that even though tests showed his blood alcohol level exceeded the legal limit an

hour or so after he was stopped, his blood alcohol level was within legal limits at

the time of driving. Conrad,54 P.3d at 314. The trial court instructed the jury that,

for the purpose of assessing guilt under the "blood alcohol level" theory, Conrad's

guilt hinged on whether the government had proved that the test had yielded a

result above the legal limit. Conrad,54 P.3d at 314. The jury convicted Conrad.

        The appellate court reversed and remanded for a new trial, holding that "a

defendant's guilt under[former] AS 28.35.030(a)(2) hinges on the defendant's


         'Defense counsel did not raise this argument below. However,'established case law holds that
illegal or erroneous sentences may be challenged for the first time on appeal." State v Bahl 164 Wn.2d
739, 744, 193 P.3d 678(2008)(quoting State v. Ford 137 Wn 2d 472,477,973 P.2d 452(1999)).
Accordingly, we need not analyze Rott's claim that he received ineffective assistance of counsel on this
basis.
         2 In 2004 Conrad was superseded by statute when the Alaskan legislature amended AS
28.35.030 to provide that a person commits a DUI offense if the person takes a chemical test within four
hours of driving that detects a blood alcohol level of at least 0.08 percent. Valentine v. State 215 P.3d
319(Alaska Ct. App. 2009).
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blood alcohol content at the time the defendant operated or controlled a motor

vehicle, not on the defendant's test result." Conrad,54 P.3d at 315. The court

interpreted AS 28.35.030 to "create a presumption that the defendant's blood

alcohol level was at least as high at the time the defendant operated or controlled

the vehicle." Conrad, 54 P.3d at 315. If the presumption is unrebutted, then the

test result is sufficient to support a conviction. Conrad,54 P.3d at 315.

       Therefore, to be guilty under the Alaska statute at the time of Rott's DUI

convictions, an individual had to be either(1) under the influence of a substance

or(2) have a blood alcohol level of 0.10 (in 1997) or 0.08 (in 2003) at the time of

driving. To be guilty under the Washington statute, the same factors apply. In

other words, the dispositive factor is the defendant's blood alcohol level at the

time of driving, not at the time the test was administered. Accordingly, we

conclude that the Alaska statute is not broader than the Washington statute.

Because the statutes are legally comparable, we need not reach the factual

prong of the analysis.

       Affirmed.




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WE CONCUR:




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