The Alaska DUI Guide
Refusing a Breath Test
DWLR / DWLS
Department of Public Safety
Note: Call 907.269.3770 to determine which limited license application (below) is appropriate for you.
I just got arrested for a State of Alaska DUI / Refusal charge. What happens next?
ISSUE ONE: The Alaska Implied Consent Proceeding: The most pressing matter may be requesting an appeal / hearing of your implied consent administrative revocation. Your Alaska license (or your right to drive in Alaska if you're not a Alaska license driver) was most likely revoked for anywhere from 90 days to five years for failing a breath test or refusing a breath, blood, or urine test. The length of the proposed revocation depends on how many prior convictions you have for DUI or refusal to take a chemical test--the greater the number of prior convictions, the longer the revocation period.
You have only a short time (generally seven days) to request an Administrative Review - Hearing to challenge the implied consent administrative revocation. [The administrative review hearing is sometimes referred to as a DMV hearing.] Read your implied consent ("Notice and Order of Revocation") paperwork carefully. If you represent yourself in this proceeding, make sure your request is sent / delivered in a timely and correct manner.
AS 28.35.031 sets forth Alaska's implied consent law. This section provides that:
(a) A person who operates or drives a motor vehicle in this state or who operates an aircraft as defined in AS 28.35.030 (u) or who operates a watercraft as defined in AS 28.35.030 (u) shall be considered to have given consent to a chemical test or tests of the person's breath for the purpose of determining the alcoholic content of the person's blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance or if lawfully arrested under AS 28.35.280 for the offense of minor operating a vehicle after consuming alcohol. The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle or operating an aircraft or a watercraft in this state while under the influence of an alcoholic beverage, inhalant, or controlled substance or that the person was a minor operating a vehicle after consuming alcohol.
(b) A person who operates or drives a motor vehicle in this state or who operates an aircraft or watercraft shall be considered to have given consent to a preliminary breath test 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 at the scene of the incident if the officer has probable cause to believe that a person's ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person
(1) was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident;
(2) committed a moving traffic violation or unlawfully operated an aircraft or watercraft; in this paragraph, "unlawfully" means in violation of any federal, state, or municipal statute, regulation, or ordinance, except for violations that do not provide reason to believe that the operator's ability to operate the aircraft or watercraft was impaired by the ingestion of alcoholic beverages; or
(3) was operating or driving a motor vehicle in violation of AS 28.35.029(a).
* * * * *
(g) A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person's breath and blood and shall be 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 or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.
(h) Nothing in this section shall be construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to a test permitted under this section.
ISSUE TWO: The Criminal Case: Separate from the administrative revocation is the criminal charge for one or more of the following offenses:
Under Alaska law, it is unlawful for any person to operate or drive a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance or a combination of the above; or (2) if, as determined by a chemical test taken within four hours after the alleged operating or driving, the person registers 0.08 percent or more of alcohol in their breath or blood. See AS 28.35.030.
It is also a criminal offense under Alaska law to refuse to submit to a chemical (breath / blood / urine) test. See AS 28.35.032. This offense is commonly referred to as a refusal to submit.
Important: The administrative revocation proceeding and the criminal case are completely separate from one another. A "win" or "loss" in one proceeding has no effect on the other proceeding.
Will my Alaska driver license be revoked / suspended?
RELATED TO ISSUE ONE ABOVE: Your Alaska driver license (or your right to drive in Alaska if you do not have a valid Alaska license) may be revoked for failing a breath test or for refusing a breath, urine, or blood test. If you act within seven days of your arrest you can request an appeal of the proposed suspension by the DMV for failing or refusing the test. If you do not request a timely Administrative Review - Hearing, your revocation will start on the eighth day following your arrest.
If you or your attorney makes a timely request for an administrative hearing, the proposed revocation will generally not start until a hearing is held. If your review / hearing is successful, of course, you will face no administrative revocation (though you still face the criminal charge(s).
RELATED TO ISSUE TWO ABOVE: If you are convicted of the DUI charge or the charge of refusal to submit to the chemical test, you will also lose your license for a time (or your right to drive in Alaska if you don't have a valid Alaska license). This revocation is separate and distinct from the administrative revocation for failing / refusing a breath test. It is important to note that these separate revocations may run concurrently or consecutively.
Also keep in mind that your license can be revoked / suspended for a variety of other reasons e.g. reckless driving, excessive demerit points, hit and run.
What is the difference between a suspension and a revocation?
With a suspension, the
privilege of operating a motor vehicle is temporarily taken away. At the end of
With a revocation,
privilege of operating a motor vehicle is taken away and the license is revoked.
DMV will revoke driving privileges, administratively, for the following
DMV may take action against your
What happens if I get caught driving while my license is suspended / revoked?
Driving without privileges (suspended-DWLS / revoked-DWLR) should be avoided as it is a new misdemeanor crime. Penalties include jail time, a fine, and an additional license suspension. These penalties increase if you have prior convictions for driving without privileges during the past 10 years. The court will generally lengthen your suspension / revocation by an additional 90 days. Ten demerit points are added to your driving record following a conviction.
If you drive while revoked for a criminal conviction for DUI or refusal, you generally face a minimum 10 day jail sentence. If you're still on probation for the criminal charges, DWLR / DWLS constitutes a probation violation (PV) as well as a new criminal offense. Refer to the statute below for more information.
AS 28.15.291. Driving while license canceled, suspended, revoked, or in violation of a limitation.
(a) A person is guilty of a class A misdemeanor if the person
(1) drives a motor vehicle on a highway or vehicular way or area at a time when that person's driver's license, privilege to drive, or privilege to obtain a license has been canceled, suspended, or revoked in this or another jurisdiction; or
(2) drives in violation of a limitation placed upon that person's license or privilege to drive in this or another jurisdiction.
(b) Upon conviction under (a) of this section, the court
(1) shall impose a minimum sentence of imprisonment
(A) if the person has not been previously convicted, of not less than 10 days with 10 days suspended, including a mandatory condition of probation that the defendant complete not less than 80 hours of community work service;
(B) if the person has been previously convicted, of not less than 10 days;
(C) if the person's driver's license, privilege to drive, or privilege to obtain a license was revoked under circumstances described in AS 28.15.181(c)(1), or if the person was driving in violation of a limited license issued under AS 28.15.201 (d) following that revocation, of not less than 20 days with 10 days suspended, and a fine of not less than $500, including a mandatory condition of probation that the defendant complete not less than 80 hours of community work service;
(D) if the person's driver's license, privilege to drive, or privilege to obtain a license was revoked under circumstances described in AS 28.15.181(c)(2), (3), or (4) or if the person was driving in violation of a limited license issued under AS 28.15.201(d) following that revocation, of not less than 30 days and a fine of not less than $1,000;
(2) may impose additional conditions of probation;
(3) may not
(A) suspend execution of sentence or grant probation except on condition that the person serve a minimum term of imprisonment and perform required community work service as provided in (1) of this subsection;
(B) suspend imposition of sentence;
(4) shall revoke the person's license, privilege to drive, or privilege to obtain a license, and the person may not be issued a new license or a limited license nor may the privilege to drive or obtain a license be restored for an additional period of not less than 90 days after the date that the person would have been entitled to restoration of driving privileges; and
(5) may order that the motor vehicle that was used in commission of the offense be forfeited under AS 28.35.036.
(c) It is an affirmative defense to a prosecution under (a) of this section that the person's license was suspended under AS 28.22.041 and the person provides proof of liability insurance meeting the requirements of AS 28.22 and proof that the insurance was in effect at the time of the accident that led to the suspension.
(d) In this section, "previously convicted" means having been convicted in this or another jurisdiction, within 10 years preceding the date of the present offense, of a violation of this section, of AS 28.33.150, or another law or ordinance with substantially similar elements.
I really need to drive. Will I be able to get a limited / restricted / occupational / conditional / probationary permit?
A temporary limited license may be available to you if your license is revoked and you had a valid Alaska Driver License at the time of your revocation. The temporary restricted license typically allows you to drive to and from work and on the job. Limited license are not available for administrative revocations or convictions related to refusals. Also, you may not be able to obtain a limited license if you have a prior DUI or refusal conviction.
Speak to your Alaska DUI lawyer about whether you qualify and how to apply for this limited license. The State of Alaska does not issue restricted CDL permits. There is usually at least some waiting period required before you can become eligible for a temporary limited license.
What is the difference between a DUI, DWI, OWI, DWAI, etc.?
These terms are all acronyms that refer to the offense commonly known as "drunk driving." Different states have different names for the crime. For example, in Texas the charge is known as DWI; in Oregon DUII. Alaska law / courts generally use the term "driving under the influence" or DUI. The term "refusal" of course refers to the criminal charge of refusing to take a chemical test under Alaska's implied consent law.
Is a DUI offense or a refusal offense in Alaska a misdemeanor or felony crime?
In Alaska, DUI and refusal charges are usually misdemeanor offenses. If you have two or more prior convictions of DUI or refusal within the past 10 years, the new DUI or refusal charge is a felony offense. Note that a DUI and refusal arising out of the same event counts as one prior conviction for these purposes.
What type of penalties might I face if I am convicted of an Alaska DUI or refusal charge?
Upon conviction of an Alaska DUI or Alaska refusal charge, a defendant can receive a variety of penalties including drug / alcohol evaluation / treatment. A minimum range of penalties is set forth below:
Will my lawyer be able to plea bargain / negotiate my Alaska DUI / refusal charge down to a lesser offense?
Possibly. Plea bargaining and charge reduction are two areas that any experienced Alaska DUI lawyer would discuss with the prosecutor on the client's behalf. Often times your only option is to plead guilty to the charge or take your case to trial.
Will an Alaska DUI go on "my driving record?"
Yes. A DUI conviction will go on your Alaska driving record and will stay on your record forever.
Just how much jail / prison time will I have to do if I am convicted of an Alaska refusal or DUI charge?
The amount of incarceration (jail or prison) received will depend on a number of factors, including (but not limited to) the following:
• your prior driving record especially your DUI and refusal history (including any DUI's outside of Alaska);
• your level of intoxication / BAC;
• whether there was an collision involved;
• whether there was an injury to another person in the collision;
• which Alaska district or municipal court your case is in;
• what judge you are sentenced by;
• whether there were passenger(s) / child(ren) in your car;
• whether the sentencing judge feels you have accepted responsibility for your actions.
Refer to the table above for minimum jail sentences that the court must impose.
I am licensed to drive in a state other than Alaska and I was cited for a DUI in Alaska. Will my driver license be revoked / suspended?
Alaska only has the authority to revoke your right to drive in the State of Alaska. However, Alaska and 44 other states and the District of Columbia have adopted an agreement known as the "Driver License Compact." Alaska will report an Alaska DUI conviction to the home state of the driver (assuming the home state has also adopted the Compact). Your home state will then generally take action to revoke / suspend your license.
This also works in reverse. If you are a Alaska licensed driver and you are convicted of a DUI / DWI / OUI charge in another state, Alaska will likely revoke your license if it learns of the conviction.
Will I have to install a Breath Alcohol Ignition Interlock Device on my car?
A breath alcohol ignition interlock device is a breath alcohol measurement device that is connected to a motor vehicle ignition. In order to start the motor vehicle, a driver must blow a breath sample into the device which then measures alcohol concentration. If the alcohol concentration exceeds the startup set point on the interlock device, the motor vehicle will not start.
You will likely have to install an ignition interlock device for a year for a first Alaska DUI / refusal offense; two years for a second Alaska DUI offense; and three years for a third Alaska DUI conviction. Talk to your lawyer about whether this requirement applies to your situation.
What happens if I tamper with or try to avoid the Ignition Interlock Device.
Tampering with an ignition interlock device is a criminal offense. If you're on probation for your DUI or refusal charge, it would also likely violate your probation. Refer to the statute below:
AS 11.76.140. Avoidance of ignition interlock device.
(a) A person commits the crime of avoidance of ignition interlock device if the person knowingly
(1) circumvents or tampers with an ignition interlock device in a manner intended to allow a person on probation under AS 12.55.102 , with a condition of sentence under AS 12.55.102 , or who has an ignition interlock limited license to avoid using the device [class A misdemeanor];
(2) rents a motor vehicle to a person and with criminal negligence disregards the fact that the person is on probation under AS 12.55.102 , has a condition of sentence under AS 12.55.102 , or has an ignition interlock limited license, unless the vehicle is equipped with an ignition interlock device described in AS 12.55.102 [class B misdemeanor]; or
(3) loans a motor vehicle to a person and knowingly disregards the fact that the person is on probation under AS 12.55.102 , has a condition of sentence under AS 12.55.102 , or has an ignition interlock limited license, unless the vehicle is equipped with an ignition interlock device described in AS 12.55.102 [class B misdemeanor].
What will an Alaska DUI / refusal charge do to my insurability?
If your insurance company finds out about a Alaska DUI / refusal one of two things are likely to happen. Either your Alaska insurer will raise your rates or you may be cancelled or non-renewed. Your insurance company will learn of your DUI if you have to file an SR-22.
What is an SR-22 / Proof of Financial Responsibility?
An SR-22 is a form from an Alaska licensed insurance company certifying that you have purchased liability insurance that meets the minimum required coverage limits. The SR-22 provides proof to the Alaska DMV that you are insured. If you cancel your insurance or the insurance company cancels your policy before your suspension period is over, the company must notify DMV that the certificate is canceled.
An SR-22 must be maintained for at least five years from the date you're eligible for reinstatement following an Alaska DUI or refusal conviction.
What will a DUI / refusal conviction do to my ability to enter Canada?
Having a DUI or a refusal conviction generally makes you criminally inadmissible to Canada for at least 10 years. On rare occasions, a person may be deemed rehabilitated when less than 10 years has elapsed since the conviction. Consult Canada's Citizen and Immigration website to learn more.
What happens if I was on probation for an offense when I got arrested for my Alaska DUI / refusal charge?
Committing a new crime while you're on probation for a previous offense creates two problems. First, you face the new DUI charge. Second, you face a probation violation hearing for failing to obey all laws (a standard condition of probation). The most serious scenario is if you receive an Alaska DUI / refusal when you're already on probation for a DUI conviction. Speak to a lawyer as soon as possible.
Are there special concerns for licensed pilots who get an Alaska DUI?
Yes. The FAA has special reporting requirements for aviators facing certain Motor Vehicle Actions including Alaska DUI / refusal convictions and certain implied consent driver license revocations. Learn more here.
I'm not a United States citizen. Will an Alaska DUI / refusal conviction result in my removal from this country?
Probably not. Typical, run of the mill Alaska DUI and refusal convictions are not considered crimes of moral turpitude or aggravated felonies resulting in removal. It is important to consult an experienced immigration lawyer about your situation just as you should consult with an experienced criminal defense lawyer about your pending DUI charge.
Keep these two points in mind. First, it is vitally important to answer honestly all questions about prior arrests / convictions on immigration and Visa applications and forms. Lying on these forms is often considered more serious than any DUI conviction. Second, non-citizens must take extra care not to drive on a suspended or revoked license.
What will an Alaska DUI conviction do to my ability to travel to Canada?
Having a DUI conviction generally makes you criminally inadmissible to Canada for at least five (sometimes 10) years from the date your sentence ended. Consult Canada's Citizen and Immigration website for more information.
I missed my Alaska court appearance. What do I do now?
Failing to appear (FTA) for court is to be avoided. When you miss a court appearance, bad things follow. At a minimum, the Alaska court typically issues a warrant for your arrest (known as a bench warrant). Talk to an attorney as soon as possible. Often, your only option is to turn yourself in on the outstanding warrant. A new court date will then be scheduled.
If you live outside of Alaska and you're facing a misdemeanor DUI charge, you may be able to have a lawyer appear in your place for most court appearances assuming that you hire an attorney ahead of time. This can be especially helpful if you're an out of state resident that received a DUI in Alaska.
I was also charged with reckless driving / negligent driving? What does this mean?
Under Alaska law, a person who drives a motor vehicle in a manner that creates a substantial and unjustifiable risk of harm to a person or to property is guilty of reckless driving. Reckless driving is a misdemeanor offense and results in 10 demerit points on your driving record.
A person who drives a motor vehicle in a manner that creates an unjustifiable risk of harm to a person or to property and who, as a result of the creation of the risk, actually endangers a person or property is guilty of negligent driving. Negligent driving is an infraction and results in six demerit points on your driving record. It is also a lesser included offense of the more serious charge of reckless driving.
I was involved in an accident as part of my DUI. What do I need to know?
A driver's responsibility following an Alaska accident is set forth in the following Alaska statutes. Failure to comply with the obligations below is commonly referred to as the crime of "leaving the scene of an accident" or in some states "hit and run." A conviction for leaving the scene of an accident results in nine demerit points on your driving record.
Section 28.35.050. Action of operator immediately after an accident.
(a) An operator of a vehicle involved in an accident resulting in injury to or death of a person shall immediately stop the vehicle at the scene of the accident or as close to it as possible and return to, and remain at, the scene until the operator has fulfilled the requirements of AS 28.35.060 (see below).
(b) The operator of a vehicle involved in an accident resulting only in damage to a vehicle driven or attended by a person shall immediately stop the vehicle at the scene of the accident or as close to it as possible and return to, and remain at, the scene of the accident until the operator has fulfilled the requirements of AS 28.35.060 (see below).
(c) The operator of a vehicle involved in an accident resulting only in damage to a vehicle that is unattended shall immediately stop at the scene of the accident and undertake reasonable means and efforts to locate and notify the operator or owner of the damaged unattended vehicle of the name and address of the operator and owner of the vehicle striking the unattended vehicle. If the operator or owner of the unattended vehicle cannot be located then the operator shall leave in a conspicuous place in or upon the unattended vehicle, a writing stating the name and address of the operator and of the owner of the vehicle that struck the unattended vehicle and setting forth a statement of the circumstances of the accident.
Section 28.35.060. Duty of operator to give information and render assistance.
(a) The operator of a vehicle involved in an accident resulting in injury to or death of a person or damage to a vehicle that is driven or attended by a person shall give the operator's name, address, and vehicle license number to the person struck or injured, or the operator or occupant, or the person attending, and the vehicle collided with and shall render to any person injured reasonable assistance, including making of arrangements for attendance upon the person by a physician and transportation, in a manner that will not cause further injury, to a hospital for medical treatment if it is apparent that treatment is desirable. Under no circumstances is the giving of assistance or other compliance with the provisions of this paragraph evidence of the liability of an operator for the accident.
(b) Except as provided in (c) of this section, a person who fails to comply with any of the requirements of this section is, upon conviction, punishable by imprisonment for not more than one year, or by a fine of not more than $500, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement.
(c) A person who fails to comply with a requirement of this section regarding assisting an injured person is, upon conviction, punishable by imprisonment for not more than 10 years, or by a fine of not more than $10,000, or by both. This provision does not apply to a person incapacitated by the accident to the extent that the person is physically incapable of complying with the requirement.
Section 28.35.070. Examination or impounding before repair.
A person may not make or have made repairs to damage or injury to a motor vehicle that could have been caused by collision with a person or property without first notifying the Department of Public Safety, chief of police, or in the absence of these, the nearest police officer or other peace officer, who shall immediately examine the vehicle and make a full report subscribed by the person in whose custody the vehicle then is. * * * * *
Section 28.35.080. Immediate notice of accident.
(a) The driver of a vehicle involved in an accident resulting in bodily injury to or death of a person or total property damage to an apparent extent of $2,000 or more shall immediately by the quickest means of communication give notice of the accident to the local police department if the accident occurs within a municipality, otherwise to the Department of Public Safety.
(b) The driver of a vehicle involved in an accident resulting in bodily injury to or death of a person or total property damage to an apparent extent of $2,000 or more shall, within 10 days after the accident, forward a written report of the accident to the Department of Administration and to the local police department if the accident occurs within a municipality. A report is not required under this subsection if the accident is investigated by a peace officer.
* * * * *
Section 28.35.090. Rendering of report by others.
(a) Whenever the driver of a vehicle is physically incapable of giving an immediate notice of an accident as required in AS 28.35.080 and there was another occupant in the vehicle at the time of the accident capable of doing so, the occupant shall make or give the notice not given by the driver.
(b) Whenever the driver is physically incapable of making a written report of an accident as required in AS 28.35.080 and the driver is not the owner of the vehicle, then the owner of the vehicle involved in the accident shall within five days after learning of the accident make the report not made by the driver.
Section 28.35.110. Penalty for giving false information in report or failing to report.
(a) A person who gives information in reports as required in AS 28.35.080 knowing or having reason to believe that the information is false is punishable by a fine of not more than $1,000, or by imprisonment for not more than one year, or by both.
(b) The department shall suspend the license or permit to drive and the nonresident operating privileges of a person failing to report an accident as provided in AS 28.35.080 until the report is filed. The department may extend the suspension by not more than 30 days. A person failing to make a report as required in AS 28.35.080 is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $200, or by imprisonment for not more than 90 days, or by both.
Can I represent myself in court on my Alaska DUI, refusal, and / or other criminal charges?
Yes. You have a constitutional right to represent yourself on any Alaska criminal charge no matter how serious including a DUI charge. Keep in mind that Alaska DUI / refusal defense is a complex area of the law as shown by the information in this website. If you cannot afford to hire your own criminal defense lawyer, you absolutely should apply for court appointed counsel to represent you. You have no right to court appointed counsel at the administrative hearing related to the implied consent license proceeding.
Copyright 2009, 2010, 2011, 2012, 2013
Websites, including this one, provide general Alaska drunk driving - DUI information but do not provide legal advice or create an attorney / client relationship. General information cannot replace legal advice specific to your case, problem, or situation. Consult qualified Alaska DUI lawyers for advice about any specific problem or criminal charge that you have. Alaska attorneys are governed by the Alaska Rules of Professional Conduct. This website may be considered an advertisement for services under these Rules. Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way. No lawyer associated with this website is specialized or certified in any way. Not board certified.
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