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Sec. 28.35.032. Refusal to submit to chemical test.

(a) If a person under arrest for operating a motor vehicle or aircraft while intoxicated refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.33.031 (a)(1) or AS 28.35.031(a), or if a person involved in a motor vehicle accident that causes death or serious physical injury to another person refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.33.031 (a)(2) or AS 28.35.031 (g), after being advised by the officer that the refusal will result in the denial or revocation of the driver's license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a motor vehicle or aircraft while intoxicated, and that the refusal is a crime, a chemical test may not be given, except as provided by AS 28.35.035 . If a person under arrest for operating a watercraft while intoxicated refuses the request of a law enforcement officer to submit to a chemical test authorized under AS 28.35.031 (a), after being advised by the officer that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating a watercraft while intoxicated, and that the refusal is a crime, a chemical test may not be given, except as provided by AS 28.35.035 .

(b) [Repealed, Sec. 25 ch 77 SLA 1983].

(c) [Repealed, Sec. 25 ch 77 SLA 1983].

(d) [Repealed, Sec. 25 ch 77 SLA 1983].

(e) The refusal of a person to submit to a chemical test authorized under AS 28.33.031 (a) or AS 28.35.031 (a) or (g) is admissible evidence in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating or driving a motor vehicle or operating an aircraft or watercraft while intoxicated.

(f) Except as provided under (p) of this section, refusal to submit to a chemical test authorized by AS 28.33.031 (a) or AS 28.35.031 (a) or (g) is a class A misdemeanor.

(g) Upon conviction under this section

(1) the court shall impose a minimum sentence of imprisonment of

(A) not less than 72 consecutive hours and a fine of not less than $250 if the person has not been previously convicted;

(B) not less than 20 days and a fine of not less than $500 if the person has been previously convicted once;

(C) not less than 60 days and a fine of not less than $1,000 if the person has been previously convicted twice and is not subject to punishment under (p) of this section;

(D) not less than 120 days and a fine of not less than $2,000 if the person has been previously convicted three times and is not subject to punishment under (p) of this section;

(E) not less than 240 days and a fine of not less than $3,000 if the person has been previously convicted four times and is not subject to punishment under (p) of this section;

(F) not less than 360 days and a fine of not less than $4,000 if the person has been previously convicted more than four times and is not subject to punishment under (p) of this section;

(2) the court may not

(A) suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person serve the minimum imprisonment under (1) of this subsection; or

(B) suspend imposition of sentence;

(3) the court shall revoke the person's driver's license, privilege to drive, or privilege to obtain a license under AS 28.15.181 , and may order the motor vehicle or aircraft that was used in commission of the offense be forfeited under AS 28.35.036 ; and

(4) the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person.

(h) Except as prohibited by federal law or regulation, every provider of treatment programs to which persons are ordered under ( l ) of this section shall supply the Alaska court system with the information regarding the condition and treatment of those persons as the supreme court may require by rule. Information compiled under this subsection is confidential and may only be used by a court in sentencing a person convicted under this section, or by an officer of the court in preparing a pre-sentence report for the use of the court in sentencing a person convicted under this section.

(i) A person who is sentenced to imprisonment for 72 consecutive hours under (g) of this section and who is not released from imprisonment after 72 hours may not bring an action against the state or a municipality or its agents, officers, or employees for damages resulting from the additional period of confinement if

(1) the employee or employees who released the person exercised due care and, in releasing the person, followed the standard release procedures of the prison facility; and

(2) the additional period of confinement did not exceed 12 hours.

(j) For purposes of this section, convictions for operating or driving while intoxicated under AS 28.33.030 or AS 28.35.030 and for refusal to submit to a chemical test under this section, if arising out of a single transaction and a single arrest, are considered one previous conviction.

(k) Notwithstanding (g) of this section, if the court imposes probation under AS 12.55.102 the court may reduce the fine required to be imposed under (g) of this section by the cost of the ignition interlock device.

(l) The court shall order a person convicted under this section to satisfy the screening, evaluation, referral, and program requirements of an alcohol safety action program if such a program is available in the community where the person resides, or a private or public treatment facility approved by the division of alcoholism and drug abuse, of the Department of Health and Social Services, under AS 47.37 to make referrals for rehabilitative treatment or to provide rehabilitative treatment. If a person is convicted under (p) of this section, the court shall order the person to be evaluated as required by this subsection before the court imposes sentence for the offense.

(m) A program of inpatient treatment may be required by the authorized agency under ( l ) of this section only if authorized in the judgment, and may not exceed the maximum term of inpatient treatment specified in the judgment. A person who has been referred for inpatient treatment under this subsection may make a written request to the sentencing court asking the court to review the referral. The request for review shall be made within seven days of the agency's referral, and shall specifically set out the grounds upon which the request for review is based. The court may order a hearing on the request for review.

(n) If a person fails to satisfy the requirements of an authorized agency under (m) of this section, the court

(1) may impose any portion of a suspended sentence; however, if the person was convicted under (p) of this section, the court shall impose a part or all of the remaining portion of any suspended sentence;

(2) may punish the failure as contempt of the authority of the court under AS 09.50.010 or as a violation of a condition of probation; and

(3) shall order the revocation or suspension of the person's driver's license, privilege to drive, and privilege to obtain a driver's license until the requirements are satisfied.

(o) Imprisonment required under (g)(1)(A) or (B) of this section shall be served at a community residential center, or if a community residential center is not available, at another appropriate place determined by the commissioner of corrections. The cost of imprisonment resulting from the sentence imposed under (g)(1) of this section shall be paid to the state by the person being sentenced provided, however, that the cost of imprisonment required to be paid under this subsection may not exceed $1,000. Upon the person's conviction, the court shall include the costs of imprisonment as a part of the judgment of conviction. Except for reimbursement from a permanent fund dividend as provided in this subsection, payment of the cost of imprisonment is not required if the court determines the person is indigent. For costs of imprisonment that are not paid by the person as required by this subsection, the state shall seek reimbursement from the person's permanent fund dividend as provided under AS 43.23.065 . While at the community residential center or other appropriate place, a person sentenced under (g)(1)(A) of this section shall perform at least 24 hours of community service work and a person sentenced under (g)(1)(B) of this section shall perform at least 160 hours of community service work, as required by the director of the community residential center or other appropriate place. In this subsection, "appropriate place" means a facility with 24-hour on-site staff supervision that is specifically adapted to provide a residence, and includes a correctional center, residential treatment facility, hospital, halfway house, group home, work farm, work camp, or other place that provides varying levels of restriction.

(p) A person is guilty of a class C felony if the person is convicted under this section and has been previously convicted two or more times since January 1, 1996, and within the 10 years preceding the date of the present offense. For purposes of determining minimum sentences based on previous convictions, the provisions of AS 28.35.030 (o)(4) apply. Upon conviction,

(1) the court shall impose a fine of not less than $5,000 and 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;

(2) the court may not

(A) suspend execution of the sentence required by (1) of this subsection or grant probation, except on condition that the person serve the minimum imprisonment under (1) of this subsection; or

(B) suspend imposition of sentence;

(3) the court shall revoke the person's driver's license, privilege to drive, or privilege to obtain a license under AS 28.15.181 (c);

(4) the court may order as a condition of probation or parole that the person take a drug, or combination of drugs, intended to prevent consumption of an alcoholic beverage; a condition of probation imposed under this paragraph is in addition to any other condition authorized under another provision of law;

(5) the sentence imposed by the court under this subsection shall run consecutively with any other sentence of imprisonment imposed on the person; and

(6) the court may also order forfeiture under AS 28.35.036 , of the vehicle or aircraft used in the commission of the offense, subject to remission under AS 28.35.037 .

(q) In this section,

(1) "cost of imprisonment" means the cost of imprisonment as determined under AS 28.35.030 ( l );

(2) "previously convicted" has the meaning given in AS 28.35.030 .

Sec. 33.05.020. Duties of commissioner.

(a) The commissioner shall appoint and make available to the superior court, where necessary, qualified probation officers and assistants.

(b) The commissioner shall fix probation officers' and assistants' salaries, assign them to the various judicial districts, and shall provide for their necessary expenses including clerical services and travel. The commissioner may assign to all probation officers and personnel any duties concerning the administration of the parole system as provided in AS 33.16.

(c) The commissioner shall by regulation

(1) establish standards for calibration, certification, maintenance, and monitoring of ignition interlock devices required as a condition of probation under AS 12.55.102 ; and

(2) establish a fee to be paid by the manufacturer for the cost of certifying an ignition interlock device.

(d) The regulations in (c) of this section must require that the ignition interlock device operate reliably over the range of automobile environments, otherwise known as automobile manufacturing standards, for the geographic area for which the device is certified.

(e) The commissioner shall notify the manufacturer of the ignition interlock device when the device is certified. The commissioner may not certify an ignition interlock device unless the device prominently displays a label warning that a person circumventing or tampering with the device in violation of AS 11.76.140 may be imprisoned up to 30 days and fined up to $500.

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