author: EASTAUGH, Justice. MATTHEWS, Justice,

text:
    STATE of Alaska, Petitioner, v. Laura A. BLANK, Respondent.
    No. S-9721.
    Supreme Court of Alaska.
    April 30, 2004.

      Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Petitioner.
    Christine S. Schleuss, Anchorage, for Respondent.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

A state trooper conducted a warrantless search of a driver’s breath following a fatal accident. Was this potentially a valid exigent circumstances search even though the driver was not arrested substantially contemporaneously with the search? We first hold that an arrest is not a prerequisite to a valid exigent circumstances warrantless breath test. Next, we construe AS 28.35.031(g) as satisfying minimal constitutional requirements for warrantless searches when exigent circumstances exist. We also hold that the trooper had probable cause to arrest the driver for negligent homicide or manslaughter and probable cause to believe that a breath test would produce relevant evidence of those crimes. But because neither the superior court nor the court of appeals reached the issue whether exigent circumstances justified this search, we remand so the superior court can make this determination.

II. FACTS AND PROCEEDINGS

A vehicle driven by Laura Blank fatally struck Pennye McDowell as she walked with a companion on a residential street near Palmer on September 26, 1994. Blank and her two daughters were driving home from her friend’s house. Blank did not stop.

Blank’s husband, Greg Blank, arrived at the accident scene while Alaska state troopers were investigating. Greg Blank told Trooper Bill Tyler that his wife might have been involved in the accident. Trooper Tyler and two other officers followed Greg back to the Blank residence. There, Trooper Tyler interviewed Laura Blank in his patrol car. Trooper Tyler did not place Blank under arrest.

Blank told Trooper Tyler during the interview that she had consumed two beers at her friend’s house before driving home. Without attempting to obtain a search warrant, Trooper Tyler asked Blank to take a preliminary breath test. Blank submitted to the test. The test registered a blood-alcohol content of .082%. Blank also agreed to accompany Trooper Tyler to a hospital for a blood test, but she refused consent at the hospital. No blood sample was drawn.

The grand jury indicted Blank in December 1994 for manslaughter and leaving the scene of an accident. The superior court denied Blank’s motion to suppress evidence of the preliminary breath test. The superior court held that the test was authorized by AS 28.35.031(g), which provides that “a law enforcement officer who has reasonable grounds to believe that [a] person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person” may administer blood or breath alcohol tests of the person based on the individual’s implied consent. Following a mistrial, a jury convicted Blank on both counts of the indictment.

Blank appealed, and the court of appeals reversed. It concluded that AS 28.35.031(g) violates the search and seizure provisions of the federal and state constitutions because “the statute allows the officer to administer the test(s) without any individualized suspicion that the driver was impaired, whether by alcohol or drugs, or even any evidence that the driver or operator caused the accident.” The court of appeals also ruled that the preliminary breath test did not fall within the exigent circumstances exception to the warrant requirement, because Blank was not placed under arrest, as required by Layland v. State, before or substantially contemporaneously with the search.

The State of Alaska filed a petition for hearing with this court, and Blank filed a cross-petition. We denied Blank’s cross-petition, but granted the state’s petition as to three issues: (1) does AS 28.35.031(g) authorize a reasonable search? (2) can AS 28.35.031(g) be given a saving construction? and (3) was the preliminary breath test administered to Blank justified under the exigent circumstances exception to the warrant requirement?

III. DISCUSSION

We hold that Trooper Tyler’s war-rantless search of Blank’s breath was constitutional if.it was a valid exigent circumstances search.

First, we agree in Part III A with the state that Layland should be overruled insofar as it required a substantially contemporaneous arrest to justify an exigent circumstances search of a driver’s blood alcohol content.

Having overruled Layland, we consider in Part III.R whether AS 28.35.031(g), as applied to Blank’s warrantless search, should be read to incorporate the constitutional requirements for a yalid exigent circumstances search. We have frequently held that this statute provides the exclusive authority for administering a police-initiated chemical sobriety test to obtain evidence of acts allegedly committed by a driver while operating a motor vehicle. In other words, a search must satisfy the statute to be valid. We have consequently held that evidence obtained from an unauthorized chemical test should be suppressed, even if the test was otherwise constitutional. But that does not mean that a search that satisfies the statute also automatically satisfies the constitution. Accordingly, we must consider whether AS 28.35.031(g) may be given a narrowing construction that avoids constitutional problems when a breath test is administered without a search warrant.

Finally, in Part III.C, we remand so the superior court can determine whether exigent circumstances justified the warrantless search of Blank’s breath.

A. Schmerber v. California Does Not Require a Contemporaneous Arrest.

In Layland, a state trooper obtained a blood sample without obtaining a search warrant or the driver’s consent following an accident in which another person was killed. Although the trooper had probable cause to arrest the driver for negligent homicide at the time of the search, he did not. We considered and rejected four exceptions to the warrant requirement that might have justified the warrantless search. Regarding the exigent circumstances exception, we interpreted the United States Supreme Court’s, decision in Schmerber v. California to permit warrantless blood. draws only in connection with a substantially contemporaneous arrest.

The Court held in Schmerber that the war-rantless taking of blood from a driver arrested for driving while intoxicated was reasonable because (1) the officer had probable cause to arrest and to believe that a blood alcohol test would produce evidence of the crime; (2) the officer might reasonably have believed he was confronted with an emergency in which the delay necessary to obtain a warrant might result in the destruction of evidence; and (3) the blood draw was performed in a reasonable manner. The Schmerber ■ Court concluded that “the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.” In Layland, we interpreted Schmerber to require a substantially contemporaneous arrest in addition to the three requirements Schmerber explicitly discussed.

The court of appeals held that Trooper Tyler’s search of Blank’s breath could not be justified under the exigent circumstances exception because Blank was not placed under arrest before or substantially contemporaneously with the search. Although the court of appeals followed Layland, as it was obliged to do, it cited and discussed cases and treatises rejecting the view that Schmer-ber requires a contemporaneous arrest to justify an exigent circumstances search of a driver’s blood-alcohol content.

It is not necessary for us to recapitulate the court of appeals’s helpful presentation of these authorities. Layland attempted to predict the direction of federal law following Schmerber, but we are convinced that subsequent cases have proved our prediction to have been inaccurate. It is sufficient to quote United States v. Chapel, in which the United States Court of Appeals for the Ninth Circuit sitting en bane reversed its own earlier precedent interpreting Schmerber to impose an arrest requirement:

We now know from the Supreme Court’s reasoning in a case decided after Harvey that the seizure of blood in Schmerber “fell within the exigent circumstances exception to the warrant requirement.” Winston v. Lee, 470 U.S. 753, 759, [105 S.Ct. 1611, 84 L.Ed.2d 662] (1985). Seizures of evidence based on exigent circumstances do not, of course have to be accompanied by an arrest-Accordingly, an arrest is not essential to support the intrusion in the absence of a warrant, so long as the three explicit Schmerber requirements are met. Thus, the interpretation of Schmerber that formed the basis of our decision in Harvey, though plausible at the time, is no longer sustainable in light of Winston. Harvey’s arrest requirement therefore cannot stand.

We agree with Chapel’s reasoning, and overrule Layland to the extent it required an arrest to justify an exigent circumstances search of a driver’s blood alcohol content. Trooper Tyler’s search of Blank’s breath is therefore constitutional if the three explicit Schmerber requirements are satisfied: probable cause, exigent circumstances, and reasonable procedures.

B. We Read AS 28.35.031(g), as It Applies to Laura Blank, To Incorporate the Exigent Circumstances Standard for Warrantless Searches.

The superior court upheld the search of Laura Blank’s breath under AS 28.35.031(g). This statute authorizes “a law enforcement officer who has reasonable grounds to believe that [a] person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person” to administer blood or breath alcohol tests to the person based on the individual’s implied consent. The court of appeals held that AS 28.35.031(g) violates the search and seizure provisions of the federal and Alaska constitutions because it “allows the officer to administer the test(s) without any individualized suspicion that the driver was impaired.” Noting that it could construe a statute to avoid constitutional concerns, the court of appeals declined to read subsection .031(g) to require that police have probable cause to believe the tested driver has committed a crime because the court appropriately recognized that such a requirement would not satisfy Layland.

The state argues that we should read Schmerber’s probable cause requirements into the statute to avoid any constitutional infirmity. Because we have overruled Lay-land, it no longer constrains a court considering whether subsection .031(g) can be given a narrowing construction that avoids constitutional problems.

Whether to apply a narrowing construction to avoid holding a statute unconstitutional is a question of law to which we bring our independent judgment. For several reasons, we choose to decide this issue, rather than remand it to the court of appeals, notwithstanding the expertise that court brings to the field of criminal procedure and law: the issue raises a pure question of law; if we were to remand the issue, no matter what the result below, one of the parties might feel compelled to ask us to review the decision; it is more expeditious for us to reach this issue now; further, a ruling on this issue now will guide the parties and the superior court in considering the exigency issue on remand and may advance the ultimate termination of the case.

This court will narrowly construe statutes in order to avoid constitutional infirmity where that can be done without doing-violence to the legislature’s intent.

The text of AS 28.35.031(g) is neither explicitly nor implicitly inconsistent with the narrowing construction we give it here. The statute implicitly contemplates warrant-less searches under circumstances that may be inherently exigent and that may consequently render warrantless searches constitutional. We therefore construe subsection .031(g) to be constitutional in context of war-rantless searches for breath or blood in accident cases involving death or serious physical injury when probable cause to search exists and the search falls within a recognized exception to the warrant requirement. So construed, subsection .031(g) has the effect of specifying that such tests are authorized under Alaska’s implied consent statute and therefore comply with the rule set out in Geber; which might otherwise exclude the test results as unauthorized, even if they were constitutionally obtained.

In context of the facts presented in this case, we choose to construe subsection .031(g) to incorporate, in addition to the statutory requirements, the exigent circumstances requirements discussed in Schmer-ber. Thus, if exigent circumstances were present in this case, the warrantless search was valid.

C. We Remand to the Superior Court To Determine Whether Exigent Circumstances Justified the Search.

Two of the three requirements for an exigent circumstances search — probable cause and reasonable procedures — are clearly met here. Before interviewing Blank, Trooper Tyler investigated the accident scene and learned that McDowell was dead, that Blank may have caused the accident, and that Blank had left the scene. Accordingly, Trooper Tyler had probable cause to believe that Blank had committed two crimes: felony hit and run and either negligent homicide or manslaughter.

Trooper Tyler also had probable cause to believe that a search of Blank’s breath would produce relevant evidence of these crimes. Blank told him that she consumed two beers at a friend’s house shortly before the accident, and Trooper Tyler testified that “the smell of alcohol became quite apparent” once he and Blank were sitting in the patrol car. Trooper Tyler also had substantial indirect evidence of Blank’s possible impairment based on the -circumstances of the accident. He learned that the pedestrians were walking on the edge and shoulder of a straight section of road at the time of the accident, that Blank saw the pedestrians in time to avoid them but inexplicably failed to do so, and that Blank’s car and the driving conditions were not the cause of the accident. Furthermore, Blank told Trooper Tyler that she did not stop at the scene because she did not even realize that she had hit someone. She initially thought one of the pedestrians had thrown a rock at the car, and chose to keep driving rather than confront them because they were “just kids.”

Thus, Trooper Tyler had evidence that Blank was responsible for an accident resulting in a fatality, that the accident was likely caused by Blank’s inattention, poor judgment, misperception, poor coordination, or some combination of these, and that Blank smelled of alcohol and admitted to drinking shortly before the accident. We conclude that this evidence was more than sufficient under Schmerber to support probable cause to search Blank’s breath.

Another requirement of Schmer-ber — that a reasonable method of collecting the blood sample be used — is not at issue here. The procedure used in this case was minimally intrusive, involving a breath sample rather than a blood draw. Blank has not challenged Trooper Tyler’s qualifications to obtain her breath sample and has alleged no impropriety in the manner in which he conducted her test.

Regarding Schmerber’s exigent circumstances requirement, we decline to decide this issue for the first time on appeal. Schmerber held that the exigencies posed by serious accidents in combination with the rapid dissipation of alcohol in the bloodstream justified the officer’s failure to obtain a warrant in that case:

The officer in the present case ... might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence.” We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a ease such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.[]

Many courts have implicitly or explicitly held that the dissipation of alcohol always creates sufficient exigency to dispense with the warrant requirement, although at least one court has held that the state must prove exigency on a case-by-case basis.

But we decline to address this aspect of the exigent circumstances question presented in this case. Because the lower courts were obliged to follow Layland’s arrest requirement, and because there was no dispute that Blank was not arrested contemporaneously with the search of her breath, no lower court has yet reached the issue whether exigent circumstances actually justified Trooper Tyler’s search. Accordingly, we remand to the superior court the issue whether exigent circumstances justified Trooper Tyler’s search of Blank’s breath.

IV. CONCLUSION

For these reasons, we REVERSE the court of appeals’s decision requiring suppression of the breath test results and REMAND so that the superior court can determine whether exigent circumstances justified the warrantless search.

MATTHEWS, Justice, with whom CARPENETI, Justice, joins, dissenting in part.

MATTHEWS, Justice,

with whom CARPENETI, Justice, joins, dissenting in part.

I disagree with one aspect of today’s opinion. Instead of remanding so that the superior court may decide in the first instance whether exigent circumstances are inherently present where there is a breathalyzer test under AS 28.35.031(g) based on probable cause that the person tested has committed a crime and that the test will produce relevant evidence (and if not whether exigent circumstances existed under the particular facts of this case), I think this court should decide the question now. The homicide in this ease occurred more than nine years ago, and further delay should be avoided, if reasonably possible. The question is briefed, and the state of the law is accurately represented in notes 44 and 45 and the related text of the court’s opinion. All that remains is for the court to make a decision.

The decision is not a difficult one. Because the body dissipates alcohol over the course of a few hours, most jurisdictions have held that an exigency exists that dispenses with the need for a warrant whenever alcohol is relevant .evidence. Of course probable cause to believe that the person to be tested has committed a crime and that a test for alcohol will produce relevant evidence is still required. For the reasons that follow, I agree with the majority rule when, as here, the search in question is no more intrusive than a breath test.

First, the physiological basis for the rule— the relatively rapid elimination of alcohol from the body — is beyond dispute. The rule is easy for the police officer in the field to understand and follow. It eliminates difficult and often undeterminable questions — and litigation of those questions — as to whether a warrant application might have been prepared and presented to a judge in time for a warrant to have issued and a test conducted before alcohol levels were diminished beyond the limits of reliable testing.

Second, we adopted a categorical approach to body alcohol evidence under an exigent circumstances exception in Anchorage v. Geber. There we rejected an argument that the defendant had a right to have counsel present during field sobriety tests that were conducted at the police station after the defendant had already been arrested. She argued that the right to counsel at such tests was analogous to the right to have counsel present at a pre-indictment line-up. We had recognized in Blue v. State that the latter right was subject to an exigent circumstances exception — “unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation.” In Geber we rejected the defendant’s right to counsel argument categorically, without examining whether under the particular facts of the case the presence of counsel at the police station could have quickly been secured. We stated:

Field sobriety tests are used to determine whether a suspect has used alcohol and, if so, the degree to which his mental and physical skills have been impaired. It is common knowledge that one’s ability to perform such tests is influenced by the percentage of alcohol in his or her blood, and that that percentage diminishes with the passage of time. Such being the case, if the tests are to provide any real indicator of the degree of impairment, if any, existing at the time of the alleged offense, they must be performed as soon thereafter as possible. This fact alone distinguishes such cases from the usual lineup situation ..where the passage of a few hours would have little or no effect.[]

Geber’s categorical, rather than case-by-case, treatment of diminishing alcohol-related evidence in the context of the exigent circumstances exception to the right to counsel indicates that a similar approach should be taken in the context of the same exception to the warrant requirement.

Finally, an especially persuasive reason to conclude that no case-by-case examination of exigent circumstances is required for breath searches under subsection .031(g) lies in the fact that the underlying rationale for such searches is the same as the rationale for garden variety drunk driving breath searches under subsection .031(a). As to the latter it is clear that no case-by-case examination of exigent circumstances is required. Because this categorical treatment of the exigency requirement is valid with respect to subsection .031(a), such treatment should likewise be valid when applied to subsection .031(g).

Subsections .031(a) and .031(g) both give statutory authorization for breath tests. The first applies to typical drunk driving situations whereas the second applies to cases where there is a ear accident involving death or serious injury to another person. Under both subsections, the reason for administering the breath test is to obtain relevant evidence of the person’s blood alcohol content. The rationale underlying the treatment of exigency under both subsections is the same: to avoid the destruction of evidence through the body’s dissipation of alcohol. And the elements required for a constitutionally permissible search under Schmerber v. State of California are the same for both subsections: (1) probable cause to believe that the person to be tested has committed a crime; (2) probable cause to believe that a breath test will produce evidence relevant to the crime; and (3) exigent circumstances. Because the rationale and the constitutional requirements for subsections .031(a) and .031(g) are the same, there is no reason to recognize the inherent exigency created by the presence of alcohol in the body when subsection .031(a) is in play but fail to do so when the subsection in question is .031(g).

Today’s opinion makes clear that it is probable cause, not the fact of the arrest, that justifies a search for body alcohol content. As construed today, the requirements of subsections .031(a) and .031(g) are parallel. When the police officer on the scene can make the probable cause determinations required by Schmerber under subsection (á) as to crimes (a) applies to, he can administer a breath test. There is no reason to require more when the officer makes the same determinations in a case arising under subsection (g) as to crimes to which that subsection applies.

Today’s opinion holds that the police officer who tested Blank had probable cause to believe that she had just been involved in a motor vehicle accident causing death, that she had committed a crime, and that a breath test for alcohol would produce relevant evidence. I agree with these conclusions and believe that since they parallel the constitutionally required elements for a search under subsection .031(a) we should conclude, as in cases arising under .031(a), that exigent circumstances sufficient to justify the breath test that was given were present. As the Fourth Circuit stated in United States v. Reid:

Society-has a recognized interest in protecting its citizens from drunk drivers. Breathalyzer tests cause a lesser intrusion than blood tests. Time is of the essence when testing for alcohol in the bloodstream. The combination of these factors sets out exigent circumstances which are sufficient to require that the police be allowed to test drunk drivers without first having to obtain a warrant.[]

For these reasons, I conclude that the exigent circumstances exception to the warrant requirement has been satisfied and would therefore remand this case with instructions to reinstate Blank’s conviction.

      . Blank v. State, 3 P.3d 359, 362 (Alaska App. 2000). We take many of the facts from the opinion of the court of appeals.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

        . Id.

      . Id.

      . Blank never verbally acknowledged this request, and it is not clear that she actually heard it, but she submitted to the test without hesitation or complaint. The superior court held that Blank's acquiescence to Trooper Tyler's request did not satisfy the consent exception to the warrant requirement because she did not make "a knowing, voluntary, and intelligent choice to submit to the test." The court of appeals did not address this issue, and the state did not seek review of the superior court’s ruling before this court. Therefore, we assume that the consent exception is inapplicable in this case.

      . Blank, 3 P.3d at 362.

      . Id.

      . AS 11.41.120(a).

      . AS 28.35.060(a).

      . Blank, 3 P.3d at 362.

      . Id. at 371.,

      . Id. at 366, 368. The court of appeals noted that the United States Supreme Court has authorized some types of searches even without individualized suspicion where the search served "special needs” beyond ordinary law enforcement. Id. (citing Skinner v. Ry. Labor Executives' Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). The court of appeals held this doctrine inapplicable because subsection .031(g) does not address "special societal needs Other than normal law enforcement.” Id. at 367-68. The state initially contested this conclusion in its opening brief to this court, but abandoned this tack in its reply brief, admitting that the primary purpose of the searches authorized by AS 28.35.031(g) is-to generate evidence for criminal prosecution. See Ferguson v. City of Charleston, 532 U.S. 67, 83, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (holding that special needs doctrine is inapplicable to warrantless drug testing-of pregnant women because "immediate objective of the searches was to generate evidence for law enforcement purposes”).

      . 535 P.2d 1043, 1047-49 (Alaska 1975).

      . Blank, 3 P.3d at 370-71.

      . A breath test is a search. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (breath tests are searches under Fourth Amendment); Burnett

        v. City of Anchorage, 806 F.2d 1447, 1449 (9th Cir.1986) (same); Leslie v. State, 711 P.2d 575, 576 (Alaska App.1986) (same). Warrantless searches are per se unreasonable unless they fall within one of the ''well-delineated exceptions” to the warrant requirement. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Lupro v. State, 603 P.2d 468, 476 (Alaska 1979).
      Whether a particular search falls within an exception to the warrant requirement is a question of law, which we review de novo. State v. Page, 911 P.2d 513, 515-16 (Alaska App.1996).

        . Sosa v. State, 4 P.3d 951, 953-54 (Alaska 2000); Pena v. State, 684 P.2d 864, 867 (Alaska 1984); Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). We have thus held that evidence obtained from an unauthorized chemical test should be suppressed, even if the test was otherwise constitutional. Geber, 592 P.2d at 1192 & n. 8.

      . Geber, 592 P.2d at 1192.

      . 535 P.2d at 1044.

      . Id. at 1044, 1047 & n. 22.

      . Id. at 1046-50.

      . Id. at 1045, 1048-49 (interpreting Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)).

      . 384 U.S. at 768-72, 86 S.Ct. 1826.

      .. Id. at 771, 86 S.Ct. 1826 (emphasis added).

      . Blank, 3 P.3d at 368-70.

      . Id. at 369-70.

      . 55 F.3d 1416, 1418-19 (9th Cir.1995) (overruling United States v. Harvey, 701 F.2d 800, 803-04 (9th Cir.1983)).

      . Blank, 3 P.3d at 366, 368.

      . Id. at 368-69.

      . State v. Alex, 646 P.2d 203, 207-08 (Alaska 1982) (citing Bonjour v. Bonjour, 592 P.2d 1233, 1237-38 (Alaska 1979)). In State v. Alex we noted that only a reasonable construction may be placed on a statute in this manner, because giving the statute an unintended meaning "would be stepping over the line of interpretation and engaging in legislation.” Id. (citing Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978)).

      . AS 28.35.031(g) provides:
      A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person’s breath and blood and shall be 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 or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.

      . 592 P.2d at 1192 & n. 8.

      . We consider only the exigent circumstances exception here because Blank was not arrested and there is no reason to consider in this case whether some other exception might theoretically apply.

      . Blank, 3 P.3d at 362.

      . Probable cause to arrest exists if the facts and circumstances known to the officer would warrant a prudent person in believing that the defendant had committed an offense. Schmid v. State, 615 P.2d 565, 574 (Alaska 1980).

      . AS 28.35.060(a).

      . AS 11.41.120 (defining manslaughter to include "recklessly causfing] the death of another person”); AS 11.41.130 ("A person commits the crime of criminally negligent homicide if, with criminal negligence, the person causes the death of another person.”).

      . Numerous cases from other jurisdictions support this conclusion. See DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732, 735 (1972) (holding that involvement in serious auto accident and odor of liquor on breath sufficient to establish probable cause to extract blood sample under Schmerber); State v. Oevering, 268 N.W.2d 68, 74 (Minn.1978) (holding that officer had probable cause to extract blood where officer knew traffic fatality had occurred, witness identified driver, and officer smelled alcohol on driver’s breath); Turner v. State, 726 So.2d 117, 126-27 (Miss. 1998) (concluding that officer had probable cause to order blood test based on his knowledge that driver had collided with rear end of another vehicle stopped at traffic signal, occupant of other vehicle was killed in accident, and officer believed driver was intoxicated); Commonwealth v. Simon, 440 Pa.Super. 428, 655 A.2d 1024, 1027 (1995) (noting that superior court "has repeatedly upheld probable cause to conduct a blood alcohol test ... where the defendant has looked and smelled like he has consumed alcohol and a serious one car or head-on accident has occurred") (citations omitted).

      .Blank unsuccessfully challenged, the use of the .preliminary breath test results in the superior court. The court of appeals did not reach that issue. Because the issues to be briefed in the petition now before us did not include that topic, we express no opinion on it. Blank may reassert . her arguments on that issue in the lower courts.

      . Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826 (citations omitted).

      . E.g., United States v. Reid, 929 F.2d 990, 993 (4th Cir.1991) (categorically rejecting defendant's argument that state could have obtained warrant prior to extracting blood because "compliance with [federal telephonic warrant] rules takes time. Time is what is lacking in these circumstances.”); Ry. Labor Executives' Ass'n v. Burnley, 839 F.2d 575, 583 (9th Cir.1988) ("We can agree that the exigencies of testing for the presence of alcohol and drugs in blood, urine or breath require prompt action which precludes obtaining a warrant.”) (citations omitted), rev’d on other grounds, Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 613, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); People v. Shepherd, 906 P.2d 607, 610 (Colo.1995) (presuming exigency and allowing warrantless search "[b]ecause alcohol dissipates quickly in the blood”); State v. Ravotto, 169 N.J. 227, 777 A.2d 301, 315 (2001) (finding that "consistent with Schmerber and our analogous case law, the dissipating nature of the alcohol content in defendant's blood presented an exigency that required prompt action by the police. Under those conditions, a warrantless search was justified.”); State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399, 400 (1993) ("[T|he dissipation of alcohol from a person's blood stream constitutes a sufficient exigency to justify a warrantless blood draw.”).

        . State v. Moylett, 313 Or. 540, 836 P.2d 1329, 1335 (1992) (suppressing blood test where police "could have obtained a search warrant without sacrificing evidence”). Moylett further noted, however, that “[i]n the context of an alcohol-related crime, there commonly will be an exigency because, as we already have noted, a suspect is 'a vessel containing evidence of a crime he had committed — evidence that [i]s dissipating with every breath he t[akes].' " Id. (citation omitted).

      . Authorities in addition to those set out in footnote 44 of the opinion of the court indicating that alcohol creates a per se exigency include: State v. Cocio, 147 Ariz. 277, 709 P.2d 1336, 1345 (1985) (evanescent nature of alcohol in defendant's ■ blood stream is exigent circumstance since alcohol in a suspect's blood is certain to disappear); People v. Ritchie, 130 Cal.App.3d 455, 458, 181 Cal.Rptr. 773 (Cal.App.1982) (“In intoxication by alcohol, the special factor that the percentage of alcohol in the blood begins to diminish shortly after its consumption triggers the warrantless intrusion into the body.”); State v. Taylor, 12 Conn.App. 427, 531 A.2d 157, 160-61 (1987) (exigent circumstance consisting of dissipation of blood alcohol content justified breathalyzer tests); State v. Entrekin, 98 Hawai'i 221, 47 P.3d 336, 348 (2002) (exigent circumstances clearly present because alcohol dissipates from bloodstream); State v. Woolery, 116 Idaho 368, 775 P.2d 1210, 1212 (1989) ("[T]he destruction of the evidence by metabolism in the blood provides an inherent exigency which justifies the warrantless search.”); DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732, 735 (1972) (exigent circumstances present since the evidence of blood alcohol content "might soon disappear during the time necessary to obtain the warrant”); State v. Baker, 502 A.2d 489, 493 (Me.1985) ("The bodily process that eliminates alcohol also provides exigent circumstances obviating the need for a warrant prior to administering a blood test.”); State v. Lerette, 858 S.W.2d 816, 819 (Mo.App.1993) (exigent circumstances exist because "the percentage of alcohol in the bloodstream diminishes with time” and "the delay caused by having to obtain a warrant might result in the destruction of evidence”); Commonwealth v. Anderl, 329 Pa.Super. 69, 477 A.2d 1356, 1364 (1984) ("[T]he warrantless seizure of the appellant’s alcohol-laden breath is valid either as a search incident to arrest or a search necessitated by exigent circumstances; i.e., the evanescent nature of the alcohol in appellee's [sic] bloodstream.”); State v. Humphreys, 70 S.W.3d 752, 760-61 (Tenn.Crim.App.2001) ("Based upon the fact that evidence of blood alcohol content begins to diminish shortly after drinking stops, a compulsory breath or blood test, taken with or without the consent of the donor, falls within the exigent circumstances exception to the warrant requirement.”); Aliff v. State, 627 S.W.2d 166, 170 (Tex.Crim.App.1982) (because "alcohol in blood is quickly consumed and the evidence would be lost forever,” the warrantless taking of blood does not violate the Fourth Amendment); Tipton v. Commonwealth, 18 Va.App. 370, 444 S.E.2d 1, 3 (1994) (”[E]xigent circumstances existed due to the dissipating nature of alcohol in the blood.”); Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465, 469 (1987) overruled on other grounds by State v. Chase Securities, Inc., 188 W.Va. 356, 424 S.E.2d 591 (1992) (Warrantless administration of blood-alcohol test did not violate plaintiff's constitutional rights based on "destruction of evidence” exception to the warrant requirement).

      . 592 P.2d 1187 (Alaska 1979).

      . Id. at 1192.

      . 558 P.2d 636 (Alaska 1977).

      . Geber, 592 P.2d at 1191 (quoting Blue, 558 P.2d at 642).

        . Id.

      . In some other circumstances the presence of exigent circumstances is also analyzed categorically, rather than on a case-by-case basis. When an arrest is made and a search for evidence is conducted, the justification for the search is exigent circumstances, because otherwise the person arrested might destroy or dispose of the evidence. McCoy v. State, 491 P.2d 127, 135-37 (Alaska 1971); Hinkel v. Municipality of Anchorage, 618 P.2d 1069, 1070 (Alaska 1980) (recognizing "the two reasons justifying searches incident to arrests, protecting the arresting officer and preventing the destruction of evidence”). When, in the course of such a search, a closed container is found on the person arrested, the container .may be opened without a warrant. Id. at 1070; Middleton v. State, 577 P.2d 1050, 1055 (Alaska 1978); McCoy, 491 P.2d at 139. This is so even though it would be possible for the police to simply take the container from the person— thus removing the exigency of possible destruction of evidence — and seek a warrant to search the container. Hinkel, 618 P.2d at 1070 (recognizing that "it is not strictly necessary to open a closed container found on the person of one who is arrested in order to protect the arresting officer from the use of a hidden weapon or to prevent the destruction of evidence. These goals can ordinarily be áccomplished simply by seizing the container and removing it from the reach of the arrestee.").

      . AS 28.35.031(a) is similar to "implied consent" statutes that' exist in most other states. It has been in existence for more than 34 years, see ch. 83, § 1, SLA 1969, and has received judicial approval. See Burnett v. Anchorage, 678 P.2d 1364, 1372 (Alaska App.1984) (Bryner, C.J., concurring); Burnett v. Municipality of Anchorage, 806 F.2d 1447, 1451 (9th Cir.1986). Similar "implied consent" statutes have "almost uniformly withstood various constitutional attacks.” State v. Moore, 79 Wash.2d 51, 483 P.2d 630, 632 (1971) (en banc); see e.g., Kellum v. Thorneycroft ex rel. Arizona Highway Dep't Motor Vehicle Div., 133 Ariz. 115, 649 P.2d 994, 995-96 (Ariz.App.1982); Spurlock v. Dep’t Motor Vehicles, 1 Cal. App.3d 821, 830, 82 Cal.Rptr. 42 (1969); People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971) (en banc); Morrow v. State, 303 A.2d 633, 635 (Del. 1973); People v. Farr, 63 Ill.2d 209, 347 N.E.2d 146, 149 (1976); Newman v. Stinson, 489 S.W.2d 826, 830 (Ky.1972); State v. Manley, 189 Neb. 415, 202 N.W.2d 831, 833 (1972); Anderson v. MacDuff, 208 Misc. 271, 143 N.Y.S.2d 257, 259 (N.Y.Sup.1955); State v. Starnes, 21 Ohio St.2d 38, 254 N.E.2d 675, 678-80 (1970); Winter v. Mayberry, 533 P.2d 968, 969 (Okla.1975); Haag v. Commonwealth, 66 Pa.Cmwlth. 249, 443 A.2d 888, 889 (1982); State v. Brean, 136 Vt. 147, 385 A.2d 1085, 1088 (1978).

      .AS 28.35.031(a) provides in relevant part:
      A person who operates or drives a motor vehicle in this state ... shall be considered to have given consent to a chemical test or tests of the person's breath for the purpose of determining the alcohol content of the person’s blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle ... while under the influence of an alcoholic beverage.... The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle ... in this state while under the influence of an alcoholic beverage ....
      AS 28.35.031(g) provides:
      A person who operates or- drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood and shall be 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 or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.

      . 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

      . See Op. at 162-163.

      . 929 F.2d 990, 994 (4th Cir.1991).


source: Caselaw Access Project

author: EASTAUGH, Justice.

license: Public Domain

text:
    Julia Marie HARRIS, Appellant, v. Steven J. WESTFALL, Appellee.
    No. S-10819.
    Supreme Court of Alaska.
    April 30, 2004.

      Robin A. Taylor, Law Office of Robin A. Taylor, Anchorage, for Appellant.
    No appearance by or for Appellee.
    Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Was it an abuse of discretion to deny Julia Harris’s Alaska Civil Rule 60(b) motion to set aside a child support order that awarded child support against her? Unrebutted facts described in Harris’s supporting affidavit and her attorney’s memorandum established that (1) the child support order proposed by the other parent and adopted by the court contained material misrepresentations, and (2) Harris inadvertently failed to realize that her meritorious objections to the proposed child support order had not been filed. We therefore vacate the child support order and remand.

II. FACTS AND PROCEEDINGS

Julia Marie Harris and Steven J. Westfall are the parents of Cayla Marie Westfall, born in October 1993. Harris and Westfall never married. Their relationship deteriorated and in 2000 Westfall filed a complaint seeking custody of Cayla. Harris counterclaimed for custody. Each party was represented by counsel.

The parties and their attorneys attended a settlement conference on May 22, 2001, and reached agreement on custody and visitation issues. Superior Court Judge Peter A. Mi-chalski conducted the conference; in the presence of the parties and their attorneys he placed the terms of the settlement on the record. Westfall’s attorney prepared a written order corresponding to the terms orally agreed upon at the conference. The court entered the written order approving the settlement agreement on June 7, 2001. The June 7 order contained a specific custody and visitation schedule. It stated, among other things, that “Steven Westfall will have primary physical custody of Cayla from the Sunday of the last full week before school starts until the day after school is let out for the school year.” Harris was to have custody over the summer. The order specified a liberal visitation schedule.

The order also stated that “[a]ny child support issues will be handled under Alaska R. Civ. P. 90.3. The Court will make findings concerning the waiver of child support.” This term of the order corresponded to the discussion at the conference, where the court stated, “The court will make findings prepared by parties relating to the waiver as to child support. That was what I understood to be part of the agreement in this case.”

On December 12, 2001, about six months after entry of the June 7 order approving the settlement agreement, Westfall’s attorney filed a proposed child support order that stated that Cayla “shall reside primarily” with Westfall, that Harris “shall have physical custody less than 30% of the year,” and that Harris “shall pay child support” of $189.75 per month. This proposed order was not supported with any showing of changed circumstances since entry of the June 7 order.

Through her attorney, Harris attempted to object to the proposed child support order. Her written objections dated December 17, 2001 stated that the parties had “stipulated in court to entry of an order for no child support, based upon the disability of [Harris] and the shared custody arrangement.” Her objections also noted that “[e]ven if there were to be child support, the plaintiff and defendant have shared custody....” Her objections further stated that Westfall had never filed a child support guidelines affidavit or provided his payroll stubs, and that consequently a joint calculation could not be performed. Her objections further noted that based on the available financial information and because the parties shared custody, Westfall, and not Harris, would have to pay child support, and that his obligation would be about $275 per month.

On December 27, about ten days after Harris’s attorney prepared these objections, the court entered, without changes, the child support order proposed by Westfall on December 12, 2001. The order thus stated that Westfall had primary physical custody of the child for support purposes and that Harris had physical custody less than thirty percent of the year; it required her to pay monthly child support of $189.75. The court apparently assumed the proposed order was unopposed. The court’s file, as of December 27, did not contain Harris’s December 17 objections.

On May 31, 2002, Harris, through counsel, filed an Alaska Civil Rule 60(b) motion to set aside the December 27, 2001 child support order. The motion papers, supported by Harris’s affidavit and the factual representations made in her attorney’s memorandum, stated that in December 2001 and January 2002 Harris’s attorney “had a secretary who was sabotaging the office and numerous cases.” The supporting memorandum asserted that a copy of Harris’s December 17, 2001 objections to Westfall’s proposed child support order was attached. Because it appeared that her December 17 objections had never been filed, Harris asked the court to consider those objections and to set aside the child support order. Her Rule 60(b) motion papers argued that Westfall “[ajstoundingly” had submitted the proposed child support order that (1) required Harris to pay child support and (2) stated “that [Westfall] has sole custody of the child.” The motion papers further noted that Westfall had resisted a shared custody arrangement because, as a result of Harris’s physical disability, Westfall would have been required to pay child support. The Rule 60(b) motion papers stated that the parties had consequently agreed to waive child support.

Harris’s motion papers also asserted that counsel’s secretary had hidden the signed child support order from Harris’s attorney; that the Child Support Enforcement Division eventually began enforcing the child support order against Harris; that Harris then contacted her attorney, who contacted Westfall’s counsel; and that the parties’ attorneys then exchanged letters. Harris attached the letters to her motion. We set them out in footnote.

Westfall opposed Harris’s Rule 60(b) motion on several grounds. His opposition memorandum argued that the delay in requesting relief after Harris discovered “the problem” in early February made her motion untimely, although his opposition did not dispute the assertions of Harris’s attorney that she had attempted to file timely objections to the proposed order, and that her secretary had failed to do so and then concealed the order as entered. In response to Harris’s contention that the child support order was “completely contrary to the order issued by the court,” Westfall’s opposition contended that his lawyer was “unaware of any other order pertaining to child support issued by the court.” The opposition also asserted that Westfall’s attorney had prepared the order “at the request of Judge Michalski’s chambers after Ms. Taylor’s office failed to file it for some 5 plus months.” It also contended that it was Westfall who had agreed “to waive back child support” owed to -him by Harris, and that the parties could not waive all future child support, as Harris’s motion contended they had, at the settlement conference. The opposition also disputed Harris’s contention that Westfall had incorrectly taken the position that he “has sole physical custody of the child.” In this regard, it argued:

Mr. Westfall directs this court’s attention to Exhibit C, p. 1 attached to Defendant’s motion. Paragraph 2 states “Steven West-fall shall have primary physical custody of Cayla ... ”. Again, this paragraph was reviewed in great detail at the hearing on settlement and Ms. Harris did not object to it. It makes no sense to argue that Mr. Westfall only has primary physical custody during the school year. He has physical custody of Cayla during the school year and 2 weeks in the summer. He has primary custody of her all year.

It also contended that “[ujnder the rule,” overnight visitation that began on Friday and ended at 2:30 p.m. on Sunday “would still be counted as only one overnight visit.”

Finally, the opposition took issue with Harris’s assertion that the support order had been issued “due to misrepresentation by an adverse party.” The opposition stated that “undersigned counsel takes serious offense to that statement and asks the court to address it. This allegation is both unprofessional and unsupported in any way and should be stricken by the court....” The opposition requested an award of attorney’s fees under-Alaska Rule of Civil Procedure 11, asserted that his attorney had spent 3.2 -hours addressing the motion, and sought $560, based on an hourly-rate of $175. The affidavit of Westfall’s attorney supported the request for attorney’s fees. That affidavit- addressed only the attorney’s fees incurred, and did not attempt to rebut any facts described in Harris’s affidavit or her attorney’s memorandum. It provided no factual support for the arguments West-fall advanced in opposing Harris’s Rule 60(b) motion to set aside the child support order. No other affidavit was offered by Westfall.

The superior court denied Harris’s Rule 60(b) motion without explanation and awarded Westfall attorney’s fees of $250. It then denied Harris’s clarification motion.

We note that Harris’s excerpts of record contain the objections dated December 17, 2001, but that the actual record does not contain a copy of the objections. They are not presently attached to the papers supporting the'May 31, 2002 Rule 60(b) motion. As found in Harris’s excerpt, the objections appear to bear a “12-17-01” certificate of service on Westfall’s lawyer. Harris’s lawyer seems to have signed this certificate. In opposing the motion for relief, Westfall’s attorney never asserted that the objections had not been served on him in December, never contended that Harris had not attempted to object to the proposed support order, and never contended that the court could not consider Harris’s intended objections on a theory they were not attached to the Rule 60(b) motion papers. Harris’s opening and reply memoranda supporting her'" Rule 60(b) motion discussed the substance of the December 17 objections, and the order denying Rule 60(b) relief did not find that Harris failed to submit the objections with her Rule 60(b) motion. We therefore assume that the superior court, when considering the Rule 60(b) motion', was aware of the substance of Harris’s intended objections to the proposed support order.

Harris appeals (1) the entry of the December 27, 2001 child support order, (2) the failure to require Westfall to file a child support guidelines affidavit, and (3) the award of attorney’s fees against Harris. No attorney has appeared for Westfall on appeal, and Westfall has filed no brief with us.

III. DISCUSSION

A. Standard of Review

We review fact findings for clear error. We review an award of child support for an abuse of discretion, but exercise our independent judgment as to claims that the court applied an incorrect legal standard. We rqview for abuse of discretion orders denying.Rule 60(b) motions for relief from judgment.

B. Application of Alaska Civil Rule 60(b)

1. Timeliness

Harris filed her motion for relief under Rule 60(b)(1), (3), and (6) on May 31, 2002, slightly more than five months after the superior court entered the December 27, 2001 child support order. The order was distributed on December 28. Rule' 60(b) provides that a motion to set aside a judgment or order “shall be made within a reasonable time, and for reasons (1), (2), and (3), not more than one year after the date of notice of the ... orders.”

The affidavit of Harris and the memorandum representations of her attorney addressed and established the reasonableness of the delay. Harris’s attorney discovered her secretary’s deceit in February 2002. Certainly the delay until discovery was understandable and reasonable, as Westfall’s superior court opposition seemed to tacitly concede. In the superior court, Westfall’s attorney argued primarily that it was unreasonable for Harris- not to move for relief more promptly after she learned of the secretary’s deceit.

But the unrebutted circumstances described by Harris and her attorney convince us that there was no legitimate basis for concluding that Harris delayed unduly in moving for relief. The memorandum Harris’s attorney signed recites the efforts she made to convince Westfall’s attorney to correct the order substantively and to permit the court to revisit the issue. Harris’s affidavit recounted a conversation she had with Westfall in which Westfall acknowledged, apparently in April 2002, that the entry of an order requiring Harris to pay child support “was a mistake.”

He knew this was wrong and said he would have his lawyer fix it. He and I counted the days of custody in the order and he agreed he doesn’t have primary custody, it is close to 50/50 because I have Cayla in the summer, 3 weekends per month, Spring Break and every in-service day.

Harris also stated in her affidavit that “[Westfall] called me back and said his lawyer wouldn’t do it and advised him not to cooperate with me in fixing it.” She also stated that in May she talked to Westfall and that “he again agreed this order is wrong but said his lawyer told him not to fix it.”

Among other things, Harris’s attorney attempted to take Westfall’s deposition and served him with a subpoena in late March for a May 1 deposition. Westfall refused to attend the deposition.

These unrebutted circumstances establish that the Rule 60(b) motion was timely. What constitutes reasonable time necessarily depends on the facts in each case. Courts consider whether the party opposing the motion has been prejudiced by the delay in seeking relief and whether the moving party had some good reason for failing to act sooner. Westfall did not demonstrate that he was prejudiced by the passage of time, and Harris demonstrated good reasons for not moving for relief sooner.

Reasonable persons could not conclude on the undisputed record before us that Harris did not move for relief “within a reasonable time.”

2. Misrepresentation

Rule 60(b)(3) permits relief from judgment entered as a result of misrepresentations. We have held that negligent misrepresentations suffice. But to obtain relief under Rule 60(b)(3) for negligent misrepresentation, a party must establish that the misrepresentation was material, i.e., that the misrepresentation prevented the party from fully and fairly presenting her case or defense. The standard is clear and convincing evidence. On the other hand, if a party establishes that the other party made misrepresentations with an intent to deceive, the burden may shift to the other party to establish that the misconduct did not interfere with the full and fair presentation of the ease.

The circumstances described by Harris and her attorney, and unrebutted by any responsive affidavit or evidence, establish that the proposed order submitted by West-fall misrepresented important facts, which may have convinced the superior court to enter the December 27, 2001 child support order.

For example, the proposed child support order, which was apparently intended to describe the custody awarded in the June 7 order, stated that Westfall would have “primary physical custody” of Cayla and that Harris would have physical custody of the child “less than 30% of the year.” But in fact, as Harris contended below, the June 7 custody order gave the parties shared physical custody of Cayla. We calculated the actual days awarded for a sample year, 2002. Our calculation is necessarily somewhat inexact, but seems to confirm that the June 7 Order awarded Harris about 130 overnights a year. This was substantially more than the 110 days required to establish that the June 7 order awarded the parties shared physical custody and that it did not award Westfall “primary physical custody.”

In opposing the Rule 60(b) motion, West-fall’s attorney argued below, without citing any supporting authority, that weekend visitation beginning Friday after school and ending Sunday afternoon “would be” counted as only one night “under the rule.” This theoretical justification for the representations made in the proposed child support order misreads Commentary V.A to Civil Rule 90.3. That commentary states that

[i]n order for a day of visitation to count towards the required thirty percent, the children normally must remain overnight with that parent. (Thirty percent of the overnights in a year total 110 overnights.) Thus, a day or an evening of visitation by itself will not count towards the total of time necessary for shared custody.. Visitation from Saturday morning until Sunday evening would count as one overnight.

The commentary indicates that overnights, not daytime, visitation, are what should be counted. There is no reasonable legal or factual basis for Westfall’s superior court assertion that visitation encompassing Friday and Saturday overnights should be counted as only one overnight, rather than two.

The proposed order also represented that Westfall was entitled to receive child support of $189.75. This figure was apparently derived by applying Rule 90.3(a) to Harris’s income. But because custody was to be shared per the June 7 order, Rule 90.3(b), not Rule 90.3(a), should have governed child support. And, per the correct rule, it seems likely that child support should have flowed in the other direction, from Westfall to Harris.

The proposed order presented to the court in December 2001 therefore contained statements that misrepresented the true state of the parties’ custody and visitation rights the court previously awarded. The statements that potentially misled the superior court are unquestionably misrepresentations for purposes of Rule 60(b)(3). We assume that they were unintentional, but they nonetheless justify relief under Rule 60(b)(3).

C. Inadvertence

Rule 60(b)(1) permits relief from judgment entered as a result of inadvertence. A party seeking relief under Rule 60(b) must establish that she had good reason for failing to act sooner, that she has a good claim or defense, and that she has moved to vacate judgment within a reasonable time. The court will also consider whether reopening the judgment will cause hardship to the opposing party. The authority to give relief granted by Rule 60(b)(1) has been exercised in a wide variety of cases, including cases in which an employee neglectfully or intentionally caused a party’s attorney not to timely receive or. file important litigation documents.

The unrebutted contentions of Harris and her attorney establish that Harris’s objections dated December 17, 2001 had not been filed. They also establish that it was through inadvertence that Harris and her attorney did not realize that the objections had not been filed or that the child support order was entered on December 27, 2001. This inadvertence required that the child support order of December 27, 2001 be set aside. It also required the superior court, before deciding on the merits whether to reenter that proposed order, to consider the objections Harris had previously attempted to submit in objecting to the proposed order.

Several of the grounds in Harris’s objections were compelling and unrebutted. They establish that Harris’s objections were meritorious. On its face, the June 7 order awarded Westfall and Harris shared physical custody of the child. Westfall therefore did not in fact have primary physical custody of the child. Therefore, just as Harris’s objections contended, a “joint” child support calculation was required. As the objections contended, the court had to take into account each parent’s earning capabilities to make that calculation. And as the objections also argued, before making that calculation, the court had to know Westfall’s earning capacity and should have required him to submit a child support guidelines affidavit. Harris’s objections explicitly raised these grounds. They should have carried the day had they been filed and considered in December 2001.

It may be that the superior court, in considering Harris’s Rule 60(b) motion, rejected as inaccurate the factual assertions made in Harris’s affidavit and her attorney’s memorandum. But the court made no findings to that effect. Because the court did not find that these assertions were inaccurate, it was error to deny the Rule 60(b) motion.

D. Calculating Child Support on Remand

Having concluded that it was an abuse of discretion not to grant relief from the child support order under Rule 60(b)(1) and (3), we remand. Assuming that the June 7 order awarded shared custody, it will be necessary to calculate child support under Rule 90.3(b). As Harris argued below, this will require Westfall and Harris to file current child support guidelines affidavits.

We also observe that the parties’ settlement agreement remains in effect. That agreement stated that the court will make findings concerning the waiver of child support. In the superior court Westfall correctly argued that the parties could not waive child support absent findings from the court. Westfall then explained that the waiver was intended only to cover arrearages for child support Harris owed before the first custody order was entered. He claimed that Harris had accumulated arrearages because Gayla had been in his primary custody before -the parties reached agreement in 2001. ■ Since the parties did not violate public policy by agreeing to waive the arrearages Harris allegedly accumulated before any custody or support order was entered, we deem this part of their agreement to be enforceable. Consequently, the superior court on remand should give effect to this limited waiver and to this part of their agreement. Doing so will preclude Westfall from claiming on remand that Harris owes child support for any period predating entry of the child custody order following the May 22, 2001 settlement conference.

But from the time of the settlement conference forward, the schedule agreed upon by the parties established the shared custody arrangement which thereafter should have governed the calculation of child support (absent any demonstration of changed circumstances). Because the superior court never made findings that would have justified a waiver of child support thereafter, the court on remand must calculate child support under Rule 90.3(b) from May 22, 2001 forward, after considering the parties’ respective incomes.

We also observe that Harris was apparently willing in May 2001 to waive child support so she could obtain increased visitation. According to Harris’s affidavit, Westfall was willing to agree to shared physical custody only if the parties waived child support. Because it appears that shared physical custody would have required Westfall to pay child support, in effect Harris tried to give up the opportunity to receive child support in order to obtain a more favorable visitation schedule. If this indeed was the basis for the parties’ agreement, it is contrary to public policy, and could not justify excusing either parent from paying child support thereafter.

E. Attorney’s Fees Award

Because we remand for entry of the relief Harris sought in the superior court, we vacate the award of attorney’s fees.

They are suspect in any event. Westfall sought fees under Alaska Civil Rule 11, on the asserted ground that Harris’s attorney had impermissibly alleged that the support order was issued due to a misrepresentation by an adverse party. We think there is ample support for that contention by Harris’s attorney. The text of Harris’s own affidavit permits an inference that Westfall and his attorney recognized that it was error to award child support against Harris. We also note the misrepresentations in the proposed order regarding the physical custody of the child. Therefore, the underlying premise for Westfall’s attorney’s fees request was wrong.

It is not clear why the court awarded attorney’s fees. The order awarding fees does not refer to either Rule 11 or Rule 82. On remand, assuming the corrected child support order does not require Harris to pay child support, Harris may apply for an award of fees incurred during: (1) her attempts to obtain Westfall’s agreement to set aside the patently incorrect child support order, and (2) her Rule 60(b) attempt to persuade the superior court to do so and to consider her substantive objections to the proposed support order.

IY. CONCLUSION

We therefore REVERSE the order denying relief from the child support order, VACATE the child support order, VACATE the attorney’s fees award, and REMAND with instructions to recalculate child support under Rule 90.3(b) from May 22, 2001 forward.

      . Actually, the order Westfall proposed in December 2001 did not state that Westfall had "sole custody” of Cayla. It stated instead that he had primary physical custody of the child and that Harris had custody of the child less than thirty percent of the year.

      . Harris's attorney’s letter of March 28, 2002 to Westfall's attorney stated:
      Robert Erwin
      Re: child support error
      Dear Mr. Erwin,
      I am writing regarding an error in the child support order in this matter. As you may recall, your client was concerned that he would have a child support obligation because he was agreeing to my client having so much time with the child, and his income was so much higher than hers. My client agreed to waive all child support in order to get the visitation. We discussed this at length with Judge Michalski and he agreed that, given my client's low income (due to disability) and the fact that both parties could meet the child's needs, it would be fair to waive the rule, and thus, there would be no child support. We put that agreement on the record. I have reviewed the tape of the proceedings in which. Judge Michalski specifically states child support will be waived based on specific findings to be drafted. You offered to draft the paperwork, and did so. You drafted the Findings in June, 2001, and the Child Support Order in December, 2001.
      Subsequently, your office filed a child support order requiring my client to pay child support, disregarding the waiver, disregarding joint custody, and disregarding the fact that her income is below the poverty line. We filed objections pointing all that out.
      Unfortunately, during that period, I had a secretary who was sabotaging my practice and my clients. I have only just discovered the extent of her actions, and her employment was terminated.... This is one of those cases. I reviewed this file at court Wednesday and discovered that she never filed my objections, and the judge signed your proposed order, believing it to be non-opposed. When the order came to my office, the secretary apparently destroyed it so I would not know what she had done....
      I give you this detailed explanation so that you will know that I am not trying to foist blame for this on you. I accept responsibility that the objections were not filed.
      I choose to assume that your office's error in drafting the order was perhaps due to the passage of time, or delegation of this matter to an employee who had no personal knowledge of the waiver agreement. I am concerned because my client has spoken to yours and she states that they agreed he would talk to you about correcting this. However, he then told her he had spoken with you and would not be correcting it on your instruction. I choose to assume that this is some miscommunication/misunderstanding between our clients....
      The fact remains, however, that the order your office filed is in error and does not accurately reflect the parties' agreement or the court’s order. I have drafted a stipulation to correct this, and hope we can resolve this without resort to litigation. Please let me know if you have any objections.
      Thank you for your prompt attention to this matter.
      Very truly yours,
      Robin A. Taylor
      Westfall's attorney’s letter of March 29, 2002 to Harris's attorney stated:
      Robin Taylor
      Dear Ms. Taylor:
      I have been asked by Bob to respond to your message left with our secretary yesterday afternoon. I have enclosed both the Order on Settlement Agreement and the log notes from the Settlement Conference, held on May 22, 2001. Please direct your attention to paragraph 10 of the Order on Settlement Agreement. It states that child support will be determined by Civil Rule 90.3 and that Judge Michalski would make a finding as to the waiver of child support. The log notes show that the paragraph was read and that you had no objection either to form or content.
      The delay in preparing the child support order was due to your offices' failure to respond ,to requests from Judge Michalski's chambers. Judge Michalski’s chambers then asked our office to prepare the order, which we did finally in December using Ms. Harris’ own DR-305. A copy of the proposed order was mailed to your office as well as the final signed order.
      Under Alaska law, parents may not make child support agreements, which are not subject to 90.3. The only agreement that the parties can make is for the custodial parent to waive past child support owed by a non-custodial parent. The waiver issue in paragraph 10 pertained to Steven Westfall waiving his interest in any back child support owed to him by Ms. Harris. If you remember, Ms. Harris had never paid child support for Cayla.
      Therefore, based upon the above and Alaska law we will not sign a stipulation amending the settlement agreement.
      Very truly yours,
      ERWIN & ERWIN, IAC
      Roberta C. Erwin

      . Silvers v. Silvers, 999 P.2d 786, 792 (Alaska 2000).

      . Koller v. Reft, 71 P.3d 800, 804 (Alaska 2003).

        . Lowe v. Lowe, 817 P.2d 453, 456 (Alaska 1991).

      . 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2866, at 382 (2d ed.1995).

      . Id. at 382-83.

      . See Song v. Song, 972 P.2d 589, 591-92 (Alaska 1999) (holding motion for relief, filed nine months after court entered decree of dissolution, timely because record supported finding movant did not learn details of disputed agreement until after court entered decree).

      . Alaska Rule of Civil Procedure 60(b) provides that a court "may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for ... fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party...."

      . Dickerson v. Williams, 956 P.2d 458, 468 (Alaska 1998).

      . Babinec v. Yabuki, 799 P.2d 1325, 1333 (Alaska 1990) (citing McCall v. Coats, 777 P.2d 655, 658 (Alaska 1989)).

      . Id. (citing McCall, 777 P.2d at 658).

      . Id. (citing Anderson v. Cryovac Inc., 862 F.2d 910, 923 (1st Cir.1988)).

      . We have attempted to calculate the number of overnights allocatecl to each party for one year, 2002. We based the calculation on the June 7 order, record information, and publicly available Anchorage School District Calendars for the 2001-2002 and 2002-2003 school years. Because 2002 was an "even” year, the order gave Westfall custody on Memorial Day Weekend, Halloween, Cayla's birthday (October 5), and Father’s Day. It gave Harris Thanksgiving and Mother’s Day. It split Cayla's Christmas vacation — January 1-6, December 21-31 — evenly between Westfall and Harris. It gave Westfall all school-year overnights (from January 7 through June 7 and from August 25 through December 20), except that it gave Harris the first, second, and fourth weekends from Friday after school until Sunday mid-afternoon for those months. It also gave Harris Cayla's March 22-30 spring break. The order gave Harris all of the overnights from June 8 through August 24 except for July 14-27, which it gave Westfall. We have followed the order's provision that holidays and vacations take precedence over weekend visitation, and have not added in "make-up” days to account for some overlaps. We are without information as to Harris and Westfall's birthdays, but even assuming that both days were given to Westfall, Harris apparently had at least 130 overnights with Cayla.
      An alternative calculation confirms that the order gave Harris more than 110 overnights each year. Westfall contended in the superior court that the order granted Harris only 104 overnights, but his estimate was based on a bizarre assertion that an award of Friday night and Saturday night visitation counted as only one overnight. To compensate for his error, we add twenty-four overnights (three days for each of the eight school months) to his total of 104 overnights. The resulting total, 128, substantially exceeds 110.

      . See 11 Wright, Miller & Kane § 2857, at 260.

      . See id. at 260-62.

      . See generally id. § 2858, at 265, 271. See also In re Cendant Corp. PRIDES Litig., 235 F.3d 176 (3d Cir.2000) (holding that mailroom sabotage that caused late filing was excusable neglect); Camllo v. Global Cape Ann Corp., 627 F.Supp. 1507, 1508-09 (D.Mass.1986) (vacating for failure to state claim where plaintiffs did not receive defendant’s motion until after court, believing motion to be unopposed, granted it), overruled by Horsley v. Mobil Oil Corp., 825 F.Supp. 424 (D.Mass.1993) (recognizing that Camilo had been impliedly, if not expressly, overruled on other grounds by Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990)); Ellington v. Milne, 14 F.R.D. 241 (E.D.N.C.1953) (granting relief where ' neglectful employee caused summons and complaint to be put in storage so neither company nor attorney knew of summons until year after default was entered and where company had meritorious defense).

      . Cf. State, Dep’t of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249, 1256 (Alaska 1999) (stating that private agreement between parents did not defeat state’s right-to recover AFDC payments); see also State Dep’t of Revenue v. Ortega, 682 So.2d 589, 590 (Fla.Dist.App.1996) (stating that public policy precluded enforcement of agreement by mother to waive child support in exchange for father's waiver of visitation); Cox v. Cox, 776 P.2d 1045, 1048 (Alaska 1989) (stating that deviations from Civil Rule 90.3 child support guidelines must be based on good cause and child support awards should reflect child’s needs and parents’ abilities to pay).


author: MANNHEIMER, Judge.

text:
    Horace TIMOTHY Jr., Appellant, v. STATE of Alaska, Appellee.
    No. A-8723.
    Court of Appeals of Alaska.
    April 30, 2004.
    Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.

      Sharon A.S. Illsley, Assistant District Attorney, Leonard M. Linton, Jr., District Attorney, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
    Before: COATS, Chief Judge, and MANNHE.IMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

This ease requires us to clarify the law of burglary by interpreting an ambiguity in our criminal code’s definition of “building”. In Alaska, burglary is defined as entering or remaining unlawfully in a building with the intention of committing a crime in the building. AS 11.81.900(b)(4) declares that the term “building” includes not only “its usual meaning” but also “any propelled vehicle or structure adapted for overnight accommodation of persons or for carrying on business”. The question is whether the adjectival clause, “adapted for overnight accommodation of persons or for carrying on business”, applies to both propelled vehicles and structures or, instead, applies only to structures.

We have examined the Alaska drafters’ commentary to this definition. We have also researched the law of Oregon, because Oregon Revised Statutes § 164.205(1) is the source of our definition of “building”. Based on our research, we conclude that the phrase “adapted for overnight accommodation of persons or for carrying on business” applies to both propelled vehicles and structures. Thus, unlawful entry of a propelled vehicle with intent to commit a crime in that vehicle constitutes the crime of burglary only if the propelled vehicle is adapted for overnight accommodation of persons or for carrying on business.

How this issue arose

Horace Timothy Jr. was convicted of second-degree and third-degree assault. Because second-degree assault is a class B felony and third-degree assault is a class C felony, Timothy would be subject to presumptive sentencing if he had prior felony convictions. The State asserted — and the superior court agreed — that Timothy was subject to • presumptive sentencing because he had three qualifying prior convictions for burglary and attempted burglary in the State of Illinois.

Timothy does not contest that he was convicted of both burglary and attempted burglary in Illinois in 1987, and convicted again of burglary in Illinois in 1992. But Timothy argues that his Illinois convictions should not count as “prior convictions” for purposes of presumptive sentencing because the Illinois definition of burglary differs significantly from Alaska’s definition of burglary.

AS 12.55.145(a)(1)(B) states that a criminal conviction from another jurisdiction will constitute a “prior felony conviction” for purposes of Alaska’s presumptive sentencing laws if the other jurisdiction’s definition of the offense has “elements similar to [the elements] of a felony defined as such under Alaska law at the time the offense was committed”. Under Illinois law, a burglary is committed ,

when[,] without authority[, a person] knowingly enters or without authority remains within a building, house-trailer, watercraft, aircraft, motor vehicle ..., railroad car, or any part thereof, with intent to commit therein a felony or theft.

Illinois Statutes, chapter 720, § 5/19-1. In other words, under Illinois law, any unlawful entry into a car or truck for the purpose of committing a felony or a theft (in any degree) within that motor vehicle will constitute a burglary.

Timothy argues that the Alaska law of burglary differs significantly from Illinois law because, under AS 11.81.900(b)(4), a propelled vehicle (a term that includes “automobiles, vessels, airplanes, motorcycles, snow machines, all-terrain vehicles, sailboats, and construction equipment”) will qualify as a “building” for purposes of the law of burglary only if the vehicle is adapted for overnight accommodation or for carrying on business. The State responds that Timothy has misinterpreted the statutory definition of “building”.

As explained above, AS 11.81.900(b)(4) defines “building” as including “any propelled vehicle or structure adapted for overnight accommodation of persons or for carrying on business”. The State argues that thé phrase “adapted for overnight accommodation of persons or for carrying on business” modifies “structure” but does not modify “propelled vehicle”. In other words, the State asserts that the Alaska law of burglary is essentially the same as Illinois law on this point: an unlawful entry into any propelled vehicle with the intent to commit a crime in the vehicle constitutes burglary.

(Under the State’s interpretation, the Illinois definition of burglary would actually be narrower than Alaska’s, because Illinois law requires proof of the defendant’s intent to commit a felony or a theft, not just any crime. However, we have previously held that when another jurisdiction’s analogous statute is stricter than Alaska’s, the two are “similar” for purposes of AS 12.55.145(a)(1)(B).)

The history of AS 11.81.900(b) (⅝), and why we conclude that a propelled vehicle constitutes a “building” under this statute only if the vehicle is adapted for overnight accommodation of persons or for carrying on business

Alaska’s current definition of “building” is based on a draft definition proposed by the Criminal Code Revision Subcommission in 1977 as part of its revision of Alaska’s burglary laws. See generally, Alaska Criminal Code Revision, Tentative Draft, Part 3 (“Offenses Against Property”) (April 1977), pp. 48-58. The Subcommission proposed the following definition of building:

“building”, in addition to its usual meaning, includes any vehicle, watercraft, aircraft or structure adapted for overnight accommodation of persons or for carrying on business[.]

Id. at 51. (This same definition also appears in Part 1 of the Tentative Draft, p. 92.)

In the commentary accompanying this proposed definition, the Subcommission stated that its definition of “building” was “broad enough to include house trailers, mobile field offices, house boats, vessels and even tents used as dwellings”. Id. at 51-52.

This commentary tends to support Timothy’s interpretation of the statute. The Subcommission’s statement that its new definition of “building” would include “house trailers”-and “house boats”, as well as “vessels and ... tents used as dwellings” implies that the Subcommission intended the phrase “adapted for overnight accommodation of persons or for carrying on business” to modify all of the preceding nouns — i.e., “any vehicle, watercraft, aircraft” — and not just “structure”.

This conclusion is bolstered by Oregon law on this subject. As we noted in Austin v. State, 883 P.2d 992, 993 (Alaska App.1994), our- burglary statute and its related definitions are based on Oregon law. In particular, our definition of “building” is drawn from ORS § 164.205(1), which provides (in pertinent part):

“Building,” in addition to its ordinary meaning, includes any booth, vehicle, boat, aircraft or other structure adapted for overnight accommodation of persons or for carrying on business therein.

The Commentary to the Oregon Criminal Code explains that the purpose of this definition was “to include those structures and vehicles which typically contain human beings for extended periods of time, in accordance with the original and basic rationale of the crime [of burglary]: protection against invasion of premises likely to terrorize occupants.” Commentary, Proposed Oregon Criminal Code (1970), § 135 at p. 143 (quoted in State v. Scott, 38 Or.App. 465, 590 P.2d 743, 744 (1979)).

This Oregon commentary likewise supports Timothy’s argument. The Oregon drafters did not say that they intended to include all vehicles within the definition of “building”. Rather, they declared that their intention was “to include those ... vehicles which typically contain human beings for extended periods of time”. This implies that the drafters intended the phrase “adapted for overnight accommodation of persons or for carrying on business therein” to apply to all of the nouns listed earlier in that sentence: “any booth, vehicle, boat, aircraft or other structure”.

For these reasons, we conclude that under the definition of “building” codified in AS 11.81.900(b)(4), a propelled vehicle constitutes a “building” only if it is “adapted for overnight accommodation of persons or for carrying on business”.

We disavow any suggestion to the contrary in Butts v. State, 53 P.3d 609, 616 (Alaska App.2002).

We conclude that Timothy’s burglary convictions in Illinois are not “prior felony convictions” for purposes of Alaska’s presumptive sentencing law because the elements of burglary in Illinois are not sufficiently similar to the elements of burglary (or any other felony) in Alaska

We have now identified a substantive difference between the Illinois definition of burglary and the Alaska definition of burglary: in Illinois, it is burglary to break into any vehicle with the intent of committing a felony or a theft in the vehicle; but in Alaska, breaking into a vehicle with intent to commit a ciime is not burglary unless the. vehicle is adapted for overnight accommodation or for carrying on business.

Nevertheless, there is one more question to answer. Under AS 12.55.145(a)(1)(B), a criminal conviction from another jurisdiction will constitute a “prior felony conviction” for purposes of Alaska’s presumptive sentencing laws if the other jurisdiction’s definition of the offense has elements that are “similar to” the elements of a felony under Alaska law. This statute does not require that the two crimes have the same definition, but only that they have “similar” definitions. It is therefore still possible to argue that, despite the differences between Illinois’s and Alaska’s definitions of burglary, the Illinois offense is similar enough to Alaska’s definition of burglary (or to the definition of any other felony under Alaska law) that Timothy’s Illinois convictions for burglary and attempted burglary should still qualify as “prior felony convictions” for presumptive sentencing purposes. In fact, the superior court reached that conclusion in Timothy’s case.

The State argues that we already resolved this issue against Timothy in Butts v. State. One of the issues raised in Butts was whether the defendant’s burglary conviction in Oklahoma should be deemed a prior felony conviction under AS 12.55.145(a)(1)(B). Butts argued that, in Alaska, burglary could be committed only in a “building”, while the Oklahoma burglary statute encompassed unlawful entries into “any room, booth, tent, railroad car, automobile, truck, trailer, vessel, or other structure ... in which any property is kept, or [the forcible opening of] any coin-operated or vending machine or device”.

We rejected Butts’s contention that the Oklahoma burglary statute was significantly broader than Alaska’s because, even though the Alaska statute refers only to “buildings”, the definition of “building” codified in AS 11.81.900(b)(4) is quite broad:

[E]ven though the Alaska burglary statute only apparently covers the entry into buildings on its face, given the broad definition of building and the broad definition of vehicle, we conclude that the Alaska statute criminalizes entry into almost every building and conveyance listed in the Oklahoma statute.... We [thus] conclude that the Oklahoma statute criminalizing burglary in the second degree is sufficiently similar to the Alaska statute criminalizing burglary in the second degree for Butts’s Oklahoma burglary conviction to qualify as a prior felony conviction under AS 12.55.145.

53 P.3d at 616.

We are now convinced, that we were wrong when we said in Butts that “the Alaska [burglary] statute criminalizes [unlawful] entry into almost every building and conveyance listed in the Oklahoma statute”. The Oklahoma burglary statute, like the Illinois burglary statute at issue in Timothy’s case, covers unlawful entries into any motor vehicle — while the Alaska burglary statute covers unlawful entries into motor vehicles only if the vehicle is adapted for overnight accommodation of persons or for carrying on business.

Moreover, we are convinced that this is a significant difference. Under Illinois law and Oklahoma law, the act of unlawfully breaking into any vehicle with intent to commit a theft (or any felony) constitutes a burglary. By contrast, Alaska’s law of burglary covers only those comparatively few vehicles that are adapted for overnight accommodation or for carrying on business.

There are certain instances when theft of property from a propelled vehicle constitutes a felony under Alaska law regardless of the value of the property: under AS 11.46.130(a)(4)-(5), a person commits second-degree theft (a class C felony) if they steal safety or survival equipment from a vessel or an aircraft. But otherwise, breaking into a propelled vehicle and stealing property from that vehicle constitutes second-degree trespass and whatever degree of theft is supported by the particular type and value of the property stolen. See AS 11.46.330(a)(2) and AS 11.46.100.

For these reasons, we conclude that the Illinois definition of burglary is not sufficiently similar to Alaska’s definition of burglary (or to any other felony defined under Alaska law) to meet the test set forth in AS 12.55.145(a)(1)(B). Therefore, Timothy’s Illinois convictions for burglary and attempted burglary do not qualify as “prior felony convictions” for presumptive sentencing purposes. Those convictions can not be used to determine the applicable presumptive term of imprisonment, nor to establish aggravator AS 12.55.155(c)(15), which applies when a defendant has three or more prior felony convictions.

We should point out, however, that even though Timothy’s Illinois convictions can not be used as prior felony convictions to trigger a presumptive term or to establish aggravator (c)(15), the superior court is still entitled to take those convictions into account when sentencing Timothy. We note, in particular, that Timothy’s conduct underlying these Illinois convictions may establish aggravator AS 12.55.155(c)(21), which applies when “the defendant has a criminal history of repeated instances of [criminal] conduct ..., whether punishable as felonies or misdemeanors, similar in nature to the offense for which the defendant is being sentenced”.

Conclusion

We VACATE Timothy’s sentence and remand this case to the superior court for. re-sentencing.

      . AS 11.46.310(a).

      . See AS 11.41.210(b) and AS 11.41.220(d), respectively.

      . See AS 12.55.125(d) and (e), respectively.

      . See AS 11.81.900(b)(49).

      . See Martin v. State, 704 P.2d 1341, 1342 (Alaska App.1985).

      . State v. Simpson, 53 P.3d 165, 170 (Alaska App.2002); Borja v. State, 886 P.2d 1311, 1314 (Alaska App.1994).

      . Okla. Stats. Title 21, § 1435 (1983), quoted in Butts, 53 P.3d at 615.

      . See Scroggins v. State, 951 P.2d 442, 444 n. 2 (Alaska App.1998); Burnette v. Anchorage, 823 P.2d 10, 14 n. 4 (Alaska App.1991); Harlow v. State, 820 P.2d 307, 309 n. 2 (Alaska App.1991); Garroutte v. State, 683 P.2d 262, 269 (Alaska App.1984).