Priority: The DMV Administrative Hearing Request


I prefer to do this for my clients. If a request is not made within 7 days, you not only automatically lose your license with DMV, you forfeit the right to subpoena the police officer and cross examine him. I consider the DMV hearing to be a crucial part of the process.

When you either submitted a breath sample or refused to take the breath test, the police officer seized your drivers license. (Occasionally, for different reasons, they don’t.) He or she gave you a form entitled ‘Notice and Order of Revocation.’ This is your temporary license, and it spells out the necessity of requesting an administrative hearing.

The DMV hearing is completely separate and independent from the criminal court proceedings.

Disadvantages of Using a Public Defender for Your DUI Case

I have a high regard for Alaska Public Defenders. They have a high caseload and work hard for low pay. However, there is one distinct disadvantage to having a public defender in DUI cases: The Department of Motor Vehicles Administrative hearing. The DMV hearing is a civil matter, and the Public Defender Agency handles only the criminal side of things. It means you either forego the DMV hearing or do it on your own.

I consider the DMV administrative to be a huge part of the case. Here is why: First, I review the police reports and the audio/video recordings. The police reports are usually insignificant, because DUI cases rise and fall on technical errors. If the police officer made an error, he or she won’t lie about it, but they won’t know they made a mistake … and thus it won’t be contained in the report. Mistake will show up in the recordings, not the reports. And, the significance of that mistake is fleshed out at the DMV hearing. In every instance, I subpoena the police officer for the DMV administrative hearing, and I’m given the opportunity to cross-examine him or her. There have been a significant number of times when something on the audio/video recording was iffy (maybe a mistake, maybe not,) and testimony given at the DMV hearing made all the difference.

Not having the DMV administrative hearing — with a capable attorney handling it — cripples your case. I wouldn’t ever consider having a case without the DMV hearing. There have been too many times when it made all the difference.

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DUI Information

A DUI offense can be charged three ways in Alaska:

(1) Driving under the influence, which does not involve a breath test. In this type of case, the evidence consists of the police officer’s observations of you. Typically, the evidence will consist of bloodshot, watery eyes, swayed balance, slurred speech and other signs of physical impairment. The evidence will also consist of bad driving and failure of the NHTSA standardized field sobriety tests: horizontal gaze nystagmus (HGN,) walk and turn, one legged stand, and the optional alphabet and counting tests.

(2) A per se violation, which means a Datamaster (mistakenly referred to as a breathalyzer) result of .08 breath alcohol concentration or greater. Note: Blowing a .08 or above results in a presumption that you are under the influence. A BAC of .04 to .079 is neutral ground, which means that you can be charged with a DUI having that result. If you blow below a .04, you are presumed not to be under the influence.

(3) Refusal to submit. Alaska is nearly unique in making it a crime either to (a) intentionally refuse to blow or (b) fail to blow in such a manner that the police officer believes you are deliberately trying not to give a sample. I call this a ‘constructive refusal.’

Circumstantial Evidence

I am frequently told by clients arrested for DUI, ‘The police didn’t see me drive! I was inside my house when they came in and arrested me! They can’t convict me.’

If the police or a witness actually see a person driving under the influence, that is known as direct evidence.

However, a person can be convicted with circumstantial evidence. For example: If a police officer is in pursuit of a vehicle and loses sight of it for 10 seconds, then pulls up and sees a man standing beside the driver’s door, keys in hand … there is a logical inference that the man standing beside the vehicle was the driver.

Each case turns on its own facts, and there is no firm rule about whether circumstantial evidence will stand up or not. A good lawyer will examine circumstantial cases with a critical eye.

Sitting Behind the Wheel DUI

Alaska, like virtually all other states, criminalizes three ways you may be convicted for driving under the influence:

1. If you are actually driving;
2. If you are ‘operating’ a motor vehicle; or
3. If you are in ‘actual physical control’ of a motor vehicle.

The general public doesn’t realize that you may be convicted of DUI for sitting behind the wheel of a motor vehicle with the engine running. In fact, in one case, Conley, a woman was convicted for opening the door to her car, keys in hand, without starting the car. The court determined that her conduct was so dangerous as to constitute a DUI. [Just for comparison: If a person intended to rob a bank, stood on the steps to the bank, gun in hand but was apprehended before going inside, he might be convicted of attempted bank robbery but not an actual robbery. DUI is the exception to the rule, where there is no attempt charge.]

Each case turns on its own facts. I have had several ‘sleeping in the car’ cases that were dismissed or reduced, others that were not.

Out of State Prior Convictions

Out of state convictions can be used to enhance a present Alaska convictions.

It is essential that your attorney investigate any out of state prior convictions. I have seen instances in which an attorney did not do so, and it had a huge negative impact on the case.

First, it is up to the State to provide proof of the out of state prior conviction. The State cannot simply rely on the NCIC rap sheet printout. By law, you have the right to make the State obtain authenticated copies of court records to prove the prior conviction. If the State does not, the conviction cannot be used.

Second, the out of state conviction must have been under a similar law to Alaska. Over the years, I have mounted many successful challenges to out of state prior convictions because of differences between Alaska law and the other states.

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DUI Consequences

Alaska has some of the harshest criminal penalties in the nation for committing a DUI offense. The following are minimum sentences for some of the offenses, and the minimums apply onlyif you have a low BAC and no other aggravating factors, such as an accident or harm to people or property:

[Note: If you are convicted of DUI or Refusal at any level, you will be denied entry into Canada for a period of five years.]
These are the current misdemeanor penalties for offenses within a 15 year period:

Upon conviction for misdemeanors within a 15 year period, ‘the court shall impose a minimum sentence of imprisonment of

(A) not less than 72 consecutive hours, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of six months, and impose a fine of not less than $1,500 if the person has not been previously convicted;

(B) not less than 20 days, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of 12 months, and impose a fine of not less than $3,000 if the person has been previously convicted once;

(C) not less than 60 days, require the person to use an ignition interlock device after the person regains the privilege, including any limited privilege, to operate a motor vehicle for a minimum of 18 months, and impose a fine of not less than $4,000 if the person has been previously convicted twice and is not subject to punishment’ for a felony DUI offense.’

In addition, the court must impose an alcohol screening and evaluation, along with following any recommended treatment.
There are also statutory surcharges, the costs of imprisonment, and unsupervised court probation. Electronic monitoring or house arrest are now available in place of jail for a first offense and in many instances for a second and possibly third misdemeanor offense.

The felony penalties for three offenses within 10 years are:

‘Upon conviction, the court shall impose a fine of not less than $10,000, require the person to use an ignition interlock device after the person regains the privilege to operate a motor vehicle for a minimum of 60 months, and impose a minimum sentence of imprisonment of not less than

(A) 120 days if the person has been previously convicted twice;

(B) 240 days if the person has been previously convicted three times;

(C) 360 days if the person has been previously convicted four or more times.’

In addition, the court must revoke the person’s license for life, subject to restoration after 10 years.

Therapeutic court is available in several Alaska jurisdictions and can result in a substantial reduction of prison time, license loss and fine.

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DUI Myths

There is considerable misinformation about DUI cases, even among attorneys not particularly experienced in the field.

Fighting your DUI. In the past few hundred cases, not one of mine has had to go to trial. Trials are very expensive, and to challenge a breath test result invariably requires an expert witness at great cost. Moreover, the breath test is almost bullet proof, regardless of what you read on the internet from attorneys who love going to trial with your money. The effective way to challenge a DUI is on procedural technicalities, and I include those challenges in my base fee, not my trial fee.


Alaska does not have expungement. At all. There is a provision for a ‘suspended imposition of sentence (SIS,)’ but it does not apply to DUI cases.

Breath test challenges

If the breath test is verified to be calibrated, and if it does not abort due to mouth alcohol … the result is going to stand. I have had people ask about ketoacidosis, chewing tobacco, having only one lung … and a variety of things they believe might affect the breath test. As an almost universal rule, if the Datamaster gives a result, then the result will stand. Is it possible to challenge it? You can hire an expert at great expense, have a trial at great expense … and there is perhaps a case out there in which an effective challenge might be mounted.

However, the cost to do so simply is too great for a first or even a second offense. If you have been charged with a felony, or perhaps under other circumstances where the cost doesn’t matter, then perhaps there could — in very unusual circumstances — be a challenge to the breath test. But in general, it’s a myth. An expensive one.

Refusal to Submit a Breath Sample

Alaska is one of only perhaps two states nationwide that criminalize refusal to submit a breath sample. In all other states, while you can lose your license administratively with DMV for refusing to provide a breath sample, it isn’t a crime.

In Alaska, the criminal penalties are the same as for DUI. In addition, you may not obtain a limited/unlimited license.

Refusal takes two forms: The intentional ‘I’m not going to give you a breath sample,’ and what I have termed ‘constructive refusal,’ when a person attempts to provide a sample but the police officer believes the person is faking it.

Fight Your DUI

I recommend without hesitation that you always hire a private attorney to defend your DUI case. I can also state forthrightly that, in more instances than not, the result will be the same. In the majority of cases, the police follow the rules enough that the DUI is a solid one.

I have defended many, many DUIs over the 36 years I’ve been practicing. I’ve seen what appear to be hopeless cases with high BAC results turn into dismissals. I’ve seen the opposite end, in which someone who blew right on the line was convicted, because the police did everything right. As I describe it, it’s luck of the draw.

DUI cases almost never go to trial. Despite what you read on the internet, breath test results are almost always bullet proof. If there is a challenge to the Datamaster result or procedures, that challenge comes by way of pretrial motion, not trial. Trials are very expensive, and I do everything I can to keep your costs reasonable.

The effective way to contest and challenge a DUI case is through what people call ‘technicalities.’ This is a brief list of possible issues:

1. Reasonable suspicion to conduct an investigatory detention. The police must have a legitimate reason to stop you. You have such rights under the 4th amendment. If the stop is illegal, the whole case
2. Probable cause to arrest. The police officer must have probable cause to arrest you. This is based on his observations of your driving, your demeanor, standardized field sobriety tests (almost always, unless you refuse them,) and sometimes a portable breath test.
3. Breath test procedures. In order for the breath sample to be valid, the police must comply with a variety of matters. Thorough mouth check to ensure no contamination. 15-minute observation period for the same reason. Telephone call issues (you have the statutory right to call a family member, friend or attorney.) Notice of right to independent test (constitutional right.) Miranda/Graham issues. Breath test verification of calibration.

The best way I describe it is this: In most cases, the police followed the procedures correctly. But if the cop made a mistake, I’ll find it. Sometimes it’s a big enough mistake to result in a dismissal or significant reduction. Other times, it’s a mistake that makes no difference. Other times, there are no mistakes.

In my view, the consequences of being convicted of DUI are so significant, you want the best professional help you can.

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Drivers Licenses

Upon a first conviction, you will lose your license for 90 days (one year for a CDL.) If you are convicted of DUI or lose your license administratively, you may not drive at all for 30 days. You may obtain a ‘limited/unlimited’ license after the first 30 days, provided you comply with all DMV requirements: complete an approved alcohol class, pass the written and vision, pay a reinstatement fee, obtain SR22 insurance, and have an ignition interlock device installed for the remaining 60 days of the 90-day revocation. You do not have to obtain a limited/unlimited. You may simply decide not to drive for the 60 optional days. But because you get credit for the costs of the ignition interlock device against any court fine, there’s no reason not to obtain the limited/unlimited.

You may then reinstate your license fully after 90 days from the start of revocation. You must (mandatory) comply with all of the requirements above, including the ignition interlock for another 6 months. You may not ‘wait out’ the ignition interlock period by not driving.

For a second offense, the revocation period is for one year (lifetime CDL loss.) You may obtain a limited/unlimited after 90 days and drive for the remaining 9 months of the revocation period, as long as you comply with the requirements set above, and have the interlock for the remaining 9 months. At the end of the one year revocation period, you must have the interlock for an additional year.

If yours is a third or greater offense, I will be glad to discuss the license penalties in detail.

Field Sobriety Tests

Rule #1: You do not have to take the field sobriety tests. You must take the portable breath test in the field, or be charged with an infraction. You MUST take the breath test (Datamaster) at the police station or be charged with an A misdemeanor, Refusal to Submit, which carries the same penalties as a DUI.

You do NOT have to submit to field sobriety tests, and I always recommend that you tell the police officer: Thank you, but I am not willing to take the field sobriety tests. I want to talk with my lawyer immediately.

Stand firm on both those things: No field tests, and a request to speak with counsel

If you take field sobriety tests, this is a quick analysis:
All the time I hear my clients say, ‘And I passed all those tests.’ Then, when I listen to the recordings, it becomes apparent that my client must have been thinking about another day far far in the past. In other words, no matter how hosed someone is, most everyone thinks they passed the tests.

In either instance, it isn’t important, and any lawyer who tells you otherwise is flat wrong. In the many many cases I’ve defended, there have been only a tiny number of instances in which a court or DMV administrative hearing officer hasn’t sided with the cop when he says a DUI arrestee failed such and such field sobriety test. Yes, I can pick and poke and get the cop to admit that my client might have passed this one, and maybe he only had four clues instead of six on that one … but probable cause to arrest is a low standard, and a court or admin officer isn’t going to second guess the cop.

The sole exceptions are either when someone blows well below the limit, or when it’s a Refusal case when someone doesn’t blow. But again, those exceptions are extremely rare.

It is my firm practice, of course, to review all the evidence, including performance on field sobriety tests … but DUIs rise and fall primarily on other technical issues, not the field sobriety tests.

The only time field sobriety tests can make a significant difference is when a person refuses to perform any of the field sobriety tests.

How Do I Find The Best DUI Attorney?

Call around. Talk to people in the community. Call and speak with the lawyer. The good ones won’t charge for a consultation.

Here’s my take: Lawyers are like everybody else … There are a few really good ones, a few really bad ones, and a whole bunch in between.

There are two things you’re looking for: A lawyer who does a lot of DUIs, and a lawyer who cares about you. A lawyer who possesses only one of those qualities might be capable but could give a hoot, or he/she might be a fine person but not have a clue about DUIs.

Shop around. I value my reputation and always want my clients to feel comfortable with what I’m doing. I never promise results, but I work hard and care about what I’m doing.

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Free Consultation – Advice From an Experienced Attorney

I do not charge for an initial consultation to discuss the basic facts of your case, the general laws of DUI, as well as the possible consequences.
It is important to me that you feel comfortable and confident with me as your attorney, and I’m willing to take some time at no cost to you in order that you may evaluate me as a lawyer.

One note: I am frequently asked to give a quick opinion as to whether a case is defensible, or I’m asked to quickly read the police reports and give an opinion. Any lawyer who gives an opinion about the merits of a DUI case based on what you recall of it or based on a cursory reading of the police reports isn’t a lawyer of merit. Police reports give very little information that might help you. All the substance of a DUI case is contained in the recordings and as a result of the DMV administrative hearing. DUIs are defended almost exclusively on the police making a technical mistake, and if the officer made one, it won’t be written up in the report (because he or she won’t realize it’s a mistake.)

Answers about DUI Defense In The State of Alaska

Defending DUI in the State of Alaska is an art form that requires great technical skill and expertise. In 33 years of practice, I have defended well more than 1,000 DUI cases from first time offenses, to felony DUI’s and related DUI offenses.
Some of the common issues and questions I encounter when defending DUI cases in Alaska are these…

• Did the police officer have reasonable suspicion to conduct an investigatory stop or make contact?
• Did the police officer have probable cause to make an arrest based on field sobriety tests and other common indicia of being under the influence?
• Were there phone call requests and issues?
• Did the officer properly conduct the 15 minute observation period?
• Did the officer conduct a thorough mouth check?
• Was there a proper advisement of the implied consent warning?
• Was there any breath test interference?
• Was the Datamaster calibrated correctly and within the lawful time frame?
• If applicable, was the Refusal after proper warning, and does the defense of subsequent consent arise?
• Did the officer correctly read or explain the Notice of Right to Independent Test?

These are just some of the most common issues that arise. Another common issue is whether, if there are prior out of state offenses, those offenses meet constitutional muster in Alaska. I have had many cases in which the prior out of state offenses did not count, and it made a considerable difference in the outcome.

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The Lawyer’s Biography

I attended University of the Pacific, McGeorge School of Law, in Sacramento, California, graduating in 1978. I have practiced in Alaska and only in Alaska for 35 years.
While there, I received two American Jurisprudence awards for scholarship.

Upon graduation, I moved to Wrangell, Alaska, where I opened my own general practice of civil law and criminal defense.

In 1986, I moved to Juneau and opened my practice there. After a couple of years of general practice, I limited things to criminal defense only, handling many different types of criminal cases, from drug offenses to violent crimes, to DUIs/drunk drivings.

In 1996, after two years of working on it, I completed ‘Drunk Driving in Alaska,’ a cases and principles book on the subject.

From the beginning, I have defended what I estimate to be about 14-1500 drunk driving / DUI cases, along with many drug cases involving methamphetamine, marijuana, mushrooms, cocaine, heroin and other drugs.

After publication of ‘Defense of Drunk Driving in Alaska,’ my reputation for defending drunk driving / DUI cases began expanding further than SE Alaska. I began to take cases in the Kenai area, as well as Unalaska / Dutch Harbor. Since then, I have represented clients in nearly every Alaska jurisdiction.

Towns and Cities in which I practice

My criminal defense practice covers all of Alaska, from Unalaska in the Aleutians down to Prince of Wales Island, including:
• Anchorage
• Juneau
• Fairbanks
• Ketchikan
• Sitka
• Kenai
• Homer
• Soldotna
• Craig
• Haines
• Hoonah
• Skagway
• Cordova
• Petersburg
• Wrangell
• Dillingham
• North Pole
• Barrow
• Seward
• Palmer
• Unalaska


In nearly every type of case, I charge a flat rate, start to finish, rather than a retainer and then hourly charge. My clients prefer this, because you know start to finish what the entire fee will be. If a case takes longer than average, I do not ask for more money. Ever.

There are two rates:
1. Resolution without trial. This includes all pretrial motions, negotiations and plea.
2. Court or jury trial.

Please call to discuss fees for a particular case.

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What to do if the police want to question you?

The answer is simple: Tell them ‘I want to speak with an attorney.’

Under Alaska Statute 12.45.150(b,) you have the IMMEDIATE right, after arrest, to speak with an attorney, a family member or a friend. The police cannot delay your making a phone call.

Moreover, if you are under arrest you have the absolute privilege under the Fourth Amendment to the US and Alaska constitutions not to incriminate yourself.
There are times the police will state that you are not under arrest, that you are free to leave, that all they want is for you to provide information that will clear you. Although most police officers are honest, they are hired to perform a job, which is to gather evidence. If they have you at the police station, their purpose is not to exonerate you. It is to gather evidence.

I have had many cases over the years in which other evidence, physical evidence, was lacking … but my client put himself or herself into hot water because of statements made to the police.

My strongest advice: Remain silent except for that one phrase: ‘I want to speak with my lawyer. Now.’

How much can I drink before driving in the State of Alaska?

Under 21 .00% (Alaska is a zero tolerance state)
21 or older .08%
Commercial .04%

What do police search for when looking for intoxicated drivers?

• Negotiating a wide turn
• Straddling along the central marker between the lanes
• Appearing to be Drunk
• Near misses or hitting either another vehicle or an object
• Weaving between lanes
• Driving off of designated highway
• Swerving within the lane lines
• Speeding over 10 mph above the designated speed limit
• Questionable stops in traffic lanes
• Tailgating
• Drifting
• Driving over center marker between lanes
• Excessive braking
• Driving against traffic
• Questionable signaling
• Delayed reaction to traffic signals
• Inappropriate stopping or slowing
• Illegal or unwarranted turns
• Accelerating or decelerating quickly
• Driving without headlights on

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