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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DAVID HENRY TRUMBLY JR.,
                                                       Court of Appeals No. A-11822
                             Appellant,               Trial Court No. 3KN-12-904 CR

                      v.
                                                              O P I N I O N
STATE OF ALASKA,

                             Appellee.                 No. 2514 — September 2, 2016


               Appeal from the District Court, Third Judicial District, Kenai,
               Matthew Christian, Magistrate Judge.

               Appearances: Lars Johnson, Assistant Public Defender, and
               Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
               Samuel D. Scott, Assistant District Attorney, Kenai (briefing),
               John Skidmore, Division Director, Criminal Division Central
               Office, Anchorage (oral argument), and Craig W. Richards,
               Attorney General, Juneau, for the Appellee.

               Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
               Superior Court Judge. *
.

               Judge ALLARD.




    *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
             A jury convicted David Henry Trumbly Jr. of driving under the influence
and refusal to submit to a chemical test. At sentencing, the court initially imposed the
mandatory minimum fine of $1,500 for each offense concurrent to one another. A few
days later, the court amended the judgment to impose the fines consecutively (for a total
fine of $3,000) after the State argued that the court had no authority to impose the fines
concurrently.
             Trumbly now appeals, arguing that the original judgment was a valid final
judgment and the court’s actions therefore violated the prohibition against double
jeopardy. For the reasons explained here, we agree with Trumbly and conclude that
sentencing courts have the discretion to impose these fines consecutively or concurrently.
We accordingly remand this case to the district court and direct the court to correct the
judgment to reflect the court’s initial imposition of concurrent fines.
             Trumbly also argues that the police did not have probable cause to arrest
him for driving under the influence. Having reviewed the record, we find no merit to this
claim. We therefore affirm Trumbly’s convictions.


       Why we conclude that the original judgment was lawful
             Under Alaska law, a person convicted of refusal to submit to a chemical test
is subject to the same mandatory minimum criminal penalties as a person convicted of
the underlying driving under the influence.1 A first conviction for either driving under
the influence (DUI) or refusal to submit to a chemical test (refusal) requires a mandatory
minimum term of imprisonment of 72 hours, a mandatory minimum license revocation
of 90 days, and a mandatory minimum fine of $1,500.2 A second conviction for either



   1
       See AS 28.35.030(b); AS 28.35.032(g). 

   2
       AS 28.35.030(b)(1); AS 28.35.032(g)(1); AS 28.15.181(c)(1).


                                          –2–                                       2514

offense requires a mandatory minimum term of imprisonment of 20 days, a mandatory
minimum license revocation of 12 months, and a mandatory minimum fine of $3,000.3
A third conviction for either offense generally qualifies as a felony.4
             A subsection of the refusal statute, AS 28.35.032(g)(5), additionally
requires that the mandatory minimum sentence imposed for the refusal conviction “shall
run consecutively with any other sentence of imprisonment imposed on the person.”5
Thus, in cases where the defendant is convicted of both refusal and DUI arising out of
the same incident, the mandatory term of imprisonments must be imposed consecutively.
             Because these were Trumbly’s first offenses for driving under the influence
and refusal to submit to a chemical test, he faced the mandatory minimum penalties for
a first time offender. At sentencing, the judge imposed the 72-hour mandatory minimum
term of imprisonment for each offense consecutively, as required by AS 28.35.032(g)(5),
but imposed the mandatory minimum license revocations and fines concurrently.
             In response, the prosecutor filed a motion asserting that Alaska law required
consecutive mandatory minimum fines for driving under the influence and refusal to
submit to a chemical test. The district court ultimately agreed with the State and
modified Trumbly’s judgment to impose the fines consecutively, resulting in a composite
fine of $3,000 ($1,500 for each offense).
             Trumbly argues that the court erred in concluding that consecutive fines
were required by law. Because this question hinges on our construction of the Alaska
statutes, we review the question de novo.6

   3
       See AS 28.35.030(b)(1); AS 28.35.032(g)(1); AS 28.15.181(c)(2).
   4
       See AS 28.35.030(n); AS 28.35.032(p).
   5
       AS 28.35.032(g)(5) (emphasis added).
   6
       See Wilson v. State Dept. of Corrections, 127 P.3d 826, 829 (Alaska 2006) (We
                                                                         (continued...)

                                            –3–                                     2514

                On appeal, the State acknowledges that AS 28.35.032(g)(5) does not
require the sentencing court to impose consecutive fines. This subsection only requires
the court to impose consecutive “sentences of imprisonment.” And, as our caselaw
demonstrates, “sentences of imprisonment” refer to terms of imprisonment and do not
refer to the other penalties for driving under the influence and refusal, such as license
revocations and monetary fines.7
                The State argues instead that the court was required to impose consecutive
fines under AS 28.35.032(g)(2)(A), a different statutory subsection within the refusal
statute. This subsection provides that, upon conviction under the refusal statute, “the
court may not ... suspend execution of the sentence ... or grant probation except on
condition that the person ... serve the minimum imprisonment ... [and] pay the minimum
fine.”
                The DUI statute contains a nearly identical provision.8 Alaska Statute
28.35.030(b)(2)(A) states that, upon conviction for DUI, “the court may not ... suspend
execution of sentence or grant probation except on condition that the person ... serve the
minimum imprisonment ... [and] pay the minimum fine.”9




   6
       (...continued)
construe a statute “according to reason, practicality, and common sense, considering the
meaning of its language, its legislative history, and its purpose.”); State v. McCallion, 875
P.2d 93, 98 (Alaska App. 1994).
   7
      Snyder v. State, 879 P.2d 1025, 1030 (Alaska App. 1994), rev’d on other grounds, 930
P.2d 1274 (Alaska 1996); see also Baker v. State, 182 P.3d 655, 660 (Alaska App. 2008).
   8
         See AS 28.35.030(b)(2)(A)(i) - (ii).
   9
         Id.

                                                –4–                                    2514

                These provisions were amended to their current form in 2005 to change the
result that this Court reached in Curtis v. State.10 In Curtis, we addressed the question
of whether a sentencing court had the authority to suspend the mandatory minimum fine
for DUI.11 At the time, the DUI statute and the refusal statute both prohibited courts
from suspending the mandatory minimum term of imprisonment for persons convicted
of either offense,12 but the statutes said nothing about a court’s authority to suspend the
mandatory minimum fine.13 We held that, in the absence of a statute specifically
prohibiting sentencing courts from suspending the mandatory minimum fine, sentencing
courts retained that power — because, under AS 12.55.080 and AS 12.55.015(a)(7),
courts are granted the general authority to suspend any “sentence.”14
                In 2005, in a long-delayed response to Curtis, the Alaska legislature
amended the DUI and refusal statutes to also prohibit courts from suspending the
mandatory minimum fines for these offenses.15           The sponsor of the legislation,
Representative Norman Rokeberg, told legislators during committee debate on the bill
that the criminal courts, particularly the courts in Juneau, had been routinely suspending
mandatory minimum fines in DUI cases, and that his bill was aimed at putting an end to


   10
          831 P.2d 359 (Alaska App. 1992).
   11
          Id.
   12
          See AS 28.35.030(b)(2)(A)(i) & (n)(2)(A)(i); AS 28.35.032(g)(2)(A)(i) & (p)(2)­
(A)(i).
   13
        See former AS 28.35.030(b)(2) & (n)(2) (pre-July 14, 2005 version). The refusal
statute was identical in relevant respects. See former AS 28.35.032(g)(2) & (p)(2) (pre-July
14, 2005 version).
   14
          Curtis, 831 P.2d at 360-61.
   15
        Ch. 68, § 1 (adding AS 28.35.030(b)(2)(A)(ii)), § 4 (adding AS 28.35.032(g)(2)(A)­
(ii)), SLA 2005; see also House Bill 136, 24th Leg., 1st Sess. (2005) (as introduced).

                                             –5–                                      2514

that practice.16 Representative Rokeberg explained that the bill would “basically repeal”
Curtis.17
              The State argues that the 2005 legislation was also aimed at eliminating
judicial authority to impose the mandatory minimum fine concurrently with a
defendant’s fines for any other offenses, particularly the mandatory minimum fines for
refusal. But neither the plain language of the amendments nor the legislative history
supports this claim.
              The 2005 legislation made it clear that courts could no longer suspend these
mandatory minimum fines, but it said nothing about whether the court was required to
impose these fines concurrently or consecutively to other fines. Significantly, after we
decided Curtis in 1992, but before the 2005 legislation, we decided Snyder v. State, in
which we upheld the authority of the courts to impose mandatory minimum fines and
license revocation penalties concurrently in cases where defendants were convicted of
both DUI and refusal.18 But there was no discussion of overruling Snyder during the
committee debate of the 2005 bill. Nor was there any attempt to modify AS 28.35.­
032(g), the statutory provision in the refusal statute that directly addresses consecutive
and concurrent sentencing in these types of cases.
              For these reasons, we conclude that Alaska law does not prohibit the
concurrent imposition of mandatory minimum fines when a defendant is sentenced for
both driving under the influence and refusal. Thus, the district court’s original judgment


   16
      See Minutes of Senate Finance Committee, House Bill 136, statement of
Representative Norman Rokeberg (May 1, 2005, at 2:46:58 p.m.).
   17
        Id.
   18
       Snyder v. State, 879 P.2d 1025,1030 (Alaska App.1994), rev’d on other grounds, 930
P.2d 1274 (Alaska 1996); see also Baker v. State, 182 P.3d 655, 660 (Alaska App. 2008)
(affirming in dicta court’s authority to impose fines and license revocations concurrently).

                                           –6–                                        2514

in this case was lawful, and the court violated the prohibition against double jeopardy
when the court modified the judgment to Trumbly’s detriment by imposing the fines
consecutively.19


        Why we conclude that the police had probable cause to arrest Trumbly
              Trumbly also argues that the police lacked probable cause to arrest him for
driving under the influence, and that the district court therefore erred in denying his
motion to suppress. We find no merit to this claim.
              The district court held an evidentiary hearing on Trumbly’s suppression
motion and, based on the evidence presented at that hearing, made detailed factual
findings. Trumbly does not challenge any of the court’s factual findings; instead, he
argues that those findings were insufficient to support the court’s legal conclusion that
there was probable cause for his arrest. In particular, Trumbly contends that the police
had no evidence that he drove erratically or performed poorly on field sobriety tests.
(Trumbly declined to perform field sobriety tests.)
              Evidence of field sobriety tests or poor driving is not invariably required
to support an arrest for driving under the influence. Rather, probable cause for an arrest
exists if the police are aware of facts and circumstances that, taken together, warrant a
reasonable belief that an offense has been or is being committed.20 We review de novo
the legal question of whether a trial court’s findings of fact establish probable cause.21




   19
       Love v. State, 799 P.2d 1343, 1345 (Alaska App. 1990) (“The double jeopardy clause
of the Alaska Constitution prevents an increase in any sentence that has been ‘meaningfully
imposed.’”).
   20
        Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
   21
        Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992).

                                          –7–                                        2514

             Here, the district court found that a gas station clerk called the Kenai Police
Department to report that a man who appeared to be intoxicated had just driven away
from the station. The clerk provided a description of the vehicle and the driver, as well
as the vehicle license plate number. Police dispatch relayed this information to police
officers in the field, and informed them that the vehicle was registered to David Trumbly,
who lived nearby. About five minutes later, the officers arrived at Trumbly’s apartment
complex and saw a vehicle matching the clerk’s description. The vehicle’s hood was still
warm.
             When the officers knocked on Trumbly’s door, Trumbly answered, and he
matched the physical description given by the service station clerk. The officers
observed that Trumbly smelled strongly of alcohol, that his eyes were bloodshot and
glossy, and that his speech was thick. When the officers asked Trumbly how he was
doing, he replied, “Drunk off my ass.” Trumbly had an open beer bottle in his hand, but
the bottle was almost full and Trumbly was already visibly intoxicated.
             We agree with the district court that these facts gave the police probable
cause to arrest Trumbly for driving under the influence.


        Conclusion
             We AFFIRM Trumbly’s convictions. We VACATE the provision of
Trumbly’s judgment that imposes consecutive fines, and we direct the district court to
impose the fines concurrently, in accordance with the district court’s initial sentencing
decision. We do not retain jurisdiction of this case.




                                          –8–                                         2514

