from the District Court, Third Judicial District, Anchorage,
Trial Court No. 3AN-16-08889 CR Douglas Kossler, Judge.
Deborah Burlinski, Burlinski Law Office, LLC, Anchorage, for
E. Stanley, Assistant Municipal Prosecutor, and Rebecca A.
Windt Pearson, Municipal Attorney, Anchorage, for the
Before: Allard, Chief Judge, and Wollenberg and Harbison,
AS 28.01.010(a), a municipality may not enact an ordinance
that is inconsistent with the provisions of Title 28, the
portion of the state code that sets out Alaska's motor
vehicle laws. In 1983, the legislature enacted a carve-out to
this provision, allowing municipalities to adopt an ordinance
providing for the impoundment or forfeiture of a motor
vehicle when a defendant commits certain offenses, even if
this impoundment or forfeiture is harsher than the penalty
for a corresponding state offense.
in 2016, the legislature enacted a third provision of law
relevant to this appeal - a provision under Title 29, which
is the portion of the state code that governs
municipalities. Unlike AS 28.01.010(a), this new provision
- AS 29-.25.070(g) - is not limited to motor vehicle laws.
The new provision precludes a municipality from imposing a
greater punishment for a violation of municipal law than the
punishment imposed for a comparable state crime with similar
question we confront in this appeal is whether this new
provision in Title 29 impliedly repealed the statutory
carve-out in Title 28 that has historically permitted
municipalities to impose harsher impoundments or forfeitures
for certain delineated offenses. Because we conclude that the
answer is no, we affirm the 30-day impoundment imposed in
this case under the Anchorage Municipal Code.
facts and arguments on appeal
Good pleaded no contest to operating a motor vehicle under
the influence under Anchorage Municipal Code (AMC)
09.28.020(A). The penalty provisions for this conviction are
set out in AMC 09.28.020(C). Under subsection (C)(5), if the
defendant has an interest in the vehicle used in the
commission of the offense, but has no prior convictions for
operating under the influence or refusal to submit to a
breath test, the sentencing court is required to impound the
vehicle for 30 days. Because Good had an interest in the
vehicle, but no prior qualifying convictions, the court
ordered her vehicle impounded for 30 days.
plea agreement allowed her to challenge the validity of the
impoundment requirement. She filed a motion to vacate the
impoundment, arguing that the mandatory impoundment
requirement was invalidated by AS 29.25.070(g), the new Title
29 provision, which prohibits municipalities from imposing a
"greater punishment" for a municipal crime than
that imposed for a comparable state crime.
district court denied Good's motion. Good now appeals the
district court's decision.
appeal, the parties agree that the municipal crime of
operating under the influence is comparable to the state
crime of operating under the influence, AS 28.35.030. But the
state statute does not contain an impoundment provision -
that is, AS 28.35.030 does not require a judge to impound the
defendant's vehicle for a first-time offense. Although
the state statute authorizes a judge to forfeit the vehicle
used in the commission of the offense, forfeiture is not
argues that because state law does not require vehicle
impoundment for a first-time operating under the influence
conviction, the mandatory vehicle impoundment provision of
AMC 09.28.020(C)(5) is a "greater punishment" and
is therefore invalidated by AS 29.25.070(g).
response, the Municipality argues that the carve-out in Title
28 for municipal impoundments and forfeitures, AS 28.01.015,
survived the enactment of AS 29.25.070(g). The Municipality
contends that because AS 28.01.015 specifically authorizes
municipalities to adopt impoundment or forfeiture ordinances
that are more stringent than applicable provisions under
state law, the impoundment in this case was proper.
statutory framework relevant to this appeal
Statute 28.01.010(a) prohibits municipalities from enacting
ordinances that are inconsistent with the provisions of Title
28. But AS 28.01.015 exempts impoundment and forfeitures from
this uniformity requirement. It provides:
(a) Notwithstanding other provisions in this title, a
municipality may adopt an ordinance providing for the
impoundment or forfeiture of a
(1) motor vehicle, watercraft, or aircraft involved in the
commission of an offense under AS 28.35.030, 28.35.032, or an
ordinance with elements substantially similar to AS 28.35.030
(b) An ordinance adopted under (a) of this section may
(2)be more stringent than or the same as but may not be less
stringent than applicable provisions under this title or
regulations adopted under this title.
does not dispute that, prior to the enactment of AS
29.25.070(g) in 2016, the mandatory impoundment and
forfeiture provision set out in AMC 09.28.020(C)(5) was
clearly authorized by the carve-out provision of AS 28.01.015
that we have just quoted. But she argues that the enactment of AS
29.25.070(g) invalidated the carve-out.
At the time of Good's sentencing, AS 29.25.070(g)
If a municipality prescribes a penalty for a violation of a
municipal ordinance, including a violation under (a) of this
section, and there is a comparable state offense under AS 11
or AS 28 with elements that are similar to the municipal
ordinance, the municipality may not impose a greater
punishment than that imposed for a violation of the state
law. This subsection applies to home rule and general law
allowing municipalities to adopt ordinances imposing
impoundments or forfeitures that are "more stringent
than" state impoundments and forfeitures, AS 28.01.015
is arguably at odds with AS 29.25.070(g). Accordingly, we
must determine whether the enactment of AS 29.25.070(g)
constituted an implied repeal of AS 28.01.015.
this appeal presents solely a legal question regarding the
interpretation of controlling statutes, we review the trial
court's decision de novo.
we conclude that the mandatory impoundment requirement of the
Anchorage Municipal Code is not rendered invalid by AS
Law of ...