Alaska Law

Chapter 28.33. COMMERCIAL MOTOR VEHICLES

Article 01. OPERATING COMMERCIAL MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF AN ALCOHOLIC BEVERAGE, INHALANT, OR CONTROLLED SUBSTANCE

Sec. 28.33.010. Financial responsibility. [Repealed, Sec. 16 E.O. 98 (1997). For current law, see AS 19.10.300 ].
 Repealed or Renumbered


Sec. 28.33.030. Operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance.

 (a) A person commits the crime of operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates a commercial motor vehicle

 (1) while under the influence of an alcoholic beverage, inhalant, or any controlled substance;

 (2) when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.04 percent or more by weight of alcohol in the person's blood or 40 milligrams or more of alcohol per 100 milliliters of blood, or when there is 0.04 grams or more of alcohol per 210 liters of the person's breath; or

 (3) while under the combined influence of an alcoholic beverage, inhalant, and a controlled substance.

 (b) Operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance is a class A misdemeanor.

 (c) The sentencing of a person convicted under this section shall be in accordance with the minimum periods of imprisonment, fines, rehabilitative treatment, and other provisions of AS 28.35.030 , as if the person had been convicted of a violation of AS 28.35.030 . For purposes of sentencing, convictions for operating a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance under this section, and for refusal to submit to a chemical test under AS 28.33.032 , if arising out of a single transaction, are considered one previous conviction.
 

Sec. 28.33.031. Implied consent for operators of commercial motor vehicles.
 
(a) A person who operates a commercial motor vehicle in this state is considered to have given consent to a chemical test or tests

 (1) of the person's breath if lawfully arrested for an offense arising out of acts alleged to have been committed when the person was operating the commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance; 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 a commercial motor vehicle while under the influence of an alcoholic beverage, inhalant, or controlled substance in violation of AS 28.33.030 or AS 28.35.030 ;

 (2) of the person's breath and blood for the purpose of determining the alcoholic content of the person's breath and blood and is 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 a commercial motor vehicle that was involved in an accident causing death or serious physical injury to another person.
 
(b) Refusal to submit to a chemical test authorized under this section is punishable under AS 28.35.032 . A chemical test may be administered without consent under AS 28.35.035 . A person who is disqualified as the result of department action under AS 28.15.165 , following a test administered under this section, can obtain review of that action under AS 28.15.166 .

 (c) A person who operates a commercial motor vehicle is considered to have given consent to a preliminary breath test, at the direction of a law enforcement officer, 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 if the officer has probable cause to believe that the person's ability to operate a commercial motor vehicle is impaired by the ingestion of alcoholic beverages and that

 (1) the commercial motor vehicle caused injury to person or property;

 (2) the person violated the provisions of AS 28.33.130 (a) or violated the terms of an out-of-service order issued under AS 28.33.130 ; or

 (3) the person unlawfully operated a commercial motor vehicle; in this paragraph, "unlawfully" means in violation of any federal, state, or municipal statute, regulation, or ordinance.

 (d) Before administering a preliminary breath test under (c) of this section, the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is a misdemeanor. If the person refuses to submit to the test, the test may not be administered.

 (e) The result of the preliminary test under (c) of this section may be used by the law enforcement officer to determine whether the operator should be arrested. If an operator is arrested, the provisions of (a) of this section apply. The preliminary breath test authorized under (c) of this section is in addition to any chemical tests authorized under (a) of this section.

 (f) Refusal to submit to a preliminary breath test at the request of a law enforcement officer is a class B misdemeanor.
 

Sec. 28.33.033. Presumptions and chemical analysis of breath or blood.

 (a) Upon the trial of a civil or criminal action or proceedings arising out of acts alleged to have been committed by a person operating a commercial motor vehicle while under the influence of an alcoholic beverage in violation of AS 28.33.030 , the following rules apply with regard to the amount of alcohol in the person's blood or breath at the time alleged:

 (1) if there was less than 0.04 percent by weight of alcohol in the person's blood, or less than 40 milligrams of alcohol per 100 milliliters of the person's blood, or less than 0.04 grams of alcohol per 210 liters of the person's breath, that fact does not give rise to a presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage;

 (2) if there was 0.04 percent or more by weight of alcohol in the person's blood, or 40 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.04 grams or more of alcohol per 210 liters of the person's breath, it is presumed that the person was under the influence of an alcoholic beverage.

 (b) For purposes of this chapter, percent by weight of alcohol in the blood is based upon milligrams of alcohol per 100 milliliters of blood.

 (c) The provisions of (a) of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of an alcoholic beverage.

 (d) The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence.

 (e) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or person's attorney.

 
 
     

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