Appeal from the Superior Court, Third Judicial District, Anchorage, David Stewart, Judge. Trial Court No. 3AN-10-5982 CR.
Catherine Boruff, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, 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.[*]
A jury convicted Michael Wayne Phillips of felony driving under the influence, a class C felony. Phillips's offense was a felony because he had two prior out-of-state convictions for driving under the influence -- a 2004 conviction in Texas and a 2007 conviction in California.
Phillips argues that his Texas conviction should not count as a prior conviction under Alaska law because the Texas statute under which he was convicted is not sufficiently similar to the Alaska statute. Phillips contends that the Texas statute criminalizes a much broader range of conduct than the Alaska statute because Alaska law prohibits driving while under the influence of " an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination," 
whereas Texas law prohibits driving while intoxicated by " any... substance." 
For the reasons explained below, we conclude that the elements of the Texas statute are sufficiently similar to the Alaska statute for a person convicted under the Texas statute to be " previously convicted" under AS 28.35.030(u)(4)(A).
Factual background and prior proceedings
On June 2, 2010, the police received reports that a motorcyclist (later identified as Phillips) was driving recklessly on the Glenn Highway between Palmer and Anchorage. After stopping Phillips, the police discovered that he smelled of alcohol and had bloodshot and watery eyes. Phillips performed field sobriety tests, which he failed, and he submitted to a breath test, which showed a blood-alcohol content of .129 percent, well over the legal limit of .08 percent.
Because Phillips had two prior out-of-state DUI convictions -- a 2004 Texas conviction and a 2007 California conviction -- he was indicted for felony driving under the influence. Phillips moved to dismiss the indictment, arguing that Texas law recognizes a much broader range of potential intoxicating substances than Alaska law, and that the Texas statute was therefore not " similar" to the Alaska statute for purposes of establishing that he was " previously convicted" of driving under the influence under AS 28.35.030(u)(4)(A).
Superior Court Judge pro tempore David Stewart denied the motion to dismiss, concluding that " any arguable difference between Texas law and Alaska law would apply only to a narrow spectrum of unusual cases." The judge concluded that the Texas statute was sufficiently similar to Alaska's statute and that Phillips's 2004 ...