dissenting.
Driving under the influence is a misdemeanor offense. But if the defendant has been previously convicted two or more times within the ten years preceding the date of the present offense, the offense is a class C felony.1
The defendant in this case, Robert Eber-hardt, was convicted of driving under the influence in Juneau on January 2, 2009. Because the trial jury determined that Eber-hardt had two prior DUI convictions within the preceding ten years (one in Oregon and one in Washington state), Eberhardt was convicted of a felony. The question is whether the jury properly considered Eberhardt's Washington conviection-because that convietion was for an offense that occurred in 1994, fifteen years before Eberhardt's most recent offense.
When Eberhardt committed his Washington offense, he was placed in a deferred prosecution program, a treatment program for misdemeanor offenders that is somewhat analogous to a suspended imposition of sentence in Alaska. That deferred prosecution was revoked in 2004, and Eberhardt was then sentenced to a term of imprisonment. Because of this cireumstance, the State argues that we should treat Eberhardt's 1994 offense as a 2004 conviction, thereby elevating his 2009 Juneau offense to a felony. The opinion of the court accepts the State's argument. I disagree.
When the legislature enacted the statute making a third driving under the influence offense within ten years a felony, it intended to enhance punishment for DUI offenders who commit three or more offenses within a specified time period. Enhancing Eber-hardt's offense to a felony for conduct that subjected him to punishment in 1994 is contrary to this legislative intent. It also violates the principle of statutory construction that ambiguities in penal statutes be strictly construed against the government.2 For these reasons, I am unwilling to extend the ten-year period specified by the legislature to include an offense Eberhardt committed, and was punished for, in 1994.
The opinion of the court appears to rest on a fairly technical definition of when a defendant has been "previously convicted." In general, under Alaska law, to qualify for enhanced punishment based on a prior conviction, a defendant must have been conviet-ed of a crime and must have faced the consequences of that crime, usually by being sentenced.3 So, for instance, if a defendant committed three burglaries before he was sentenced on the first burglary, he would be treated as a first felony offender under Alaska law, because at the time he committed the additional offenses he had not been sentenced for the first burglary and therefore had received no court-imposed opportunity to reform his behavior.4
In 1994, Eberhardt was confronted with his Washington crime and given an opportunity to reform. To be eligible for deferred prosecution in Washington, the defendant must file a petition alleging under oath "that the wrongful conduct charged is the result of or caused by alcoholism, drug addiction, or mental problems for which the person is in need of treatment and unless treated the *566probability of future recurrence is great.5 5 The petitioner is required to submit a case history and a written assessment prepared by an approved treatment facility.6 The petitioner must agree to comply with the terms and conditions of a treatment plan,7 which must be for a two-year period.8
Furthermore, as the Washington Supreme Court explained in Abad v. Cozza,9 a defendant who receives a deferred prosecution must waive substantial rights. The defendant must acknowledge that his offense arose out of a condition such as alcoholism that is subject to treatment, he must stipulate to the facts of his offense, and he must give up most of his rights, including the right to a jury trial:
Deferred prosecution is a special precon-viction sentencing alternative that is available to petitioners who acknowledge their culpability and need for treatment. As a condition for the granting of a deferred prosecution, the petitioner must state under oath the wrongful conduct charged took place and resulted from a condition amenable to treatment. The petitioner acknowledges advisement of rights as an accused. The petitioner knowingly and voluntarily stipulates to the admissibility of the facts in the police report, and acknowledges the report and sworn statement will be admitted in any postrevocation trial or hearing and used to support a finding of guilty. Plainly, this means that the petitioner agrees to waive the right to raise other defenses, to introduce other evidence, to question or call witnesses, and to a jury.10
The Washington court observed that the legislature intended to set up a streamlined procedure for revoking a deferred prosecution to avoid the problem of litigating a defendant's guilt after witnesses memories had faded or evidence had become less probative because of the passage of time.11 The dissenting opinion in this case pointed out that, under the majority's decision, in a deferred prosecution "the defendant's guilt is presumed, and conviction necessarily follows.12
Moreover, under Washington law, when a court imposes mandatory penalties for subsequent offenses, a deferred prosecution is considered a prior offense if the deferred prosecution occurred within the appropriate look-back period.13 In other words, had Eber-hardt committed his DUI offense in Washington, his deferred prosecution would have been treated as a 1994 conviction.
In Alaska, the analogous provision to Washington's deferred prosecution is a suspended imposition of sentence. In Shaw v. State,14 we held that, even though under the suspended imposition of sentence procedure the defendant never had a sentence imposed, his suspended imposition of sentence qualified as a prior felony conviction for purposes of sentence enhancement.15 Therefore, had Eberhardt committed his driving under the influence offense in Alaska and received a suspended imposition of sentence, the date of his conviction would have been 1994.
Accordingly, I conclude that, for purposes of sentence enhancement, Eberhardt was convicted of his Washington offense in 1994, when he was, in effect, required to enter a guilty plea, and ordered to undergo at least a two-year period of treatment. This result is consistent with the Alaska Legislature's intent when it enacted the current felony driving under the influence statute. The legislature determined that a person who commits three offenses within a ten-year period is a particularly dangerous offender who deserves enhanced punishment. Eberhardt *567does not fit this pattern: he committed the Washington offense well outside the ten-year period. His offense would have been considered a 1994 offense for sentencing purposes if he had re-offended in Washington. It would also have been considered a 1994 offense if he had received a suspended imposition of sentence in Alaska. I therefore conclude that the majority's result is in conflict with both legislative intent and principles of statutory construction.
. AS 28.35.030(n).
. See Wooley v. State, 221 P.3d 12, 19 (Alaska App.2009).
. Bradley v. State, 197 P.3d 209, 218 (Alaska App.2008).
. See State v. Rastopsoff, 659 P.2d 630, 635 (Alaska App.1983).
. Former Wash. Rev.Code § 10.05.020(1) (1994); Wash. Rev.Code § 10.05.020(1).
. Former Wash. Rev.Code § 10.05.020(1) (1994).
. Id. § 10.05.060.
. Id. § 10.05.150.
. 128 Wash.2d 575, 911 P.2d 376 (1996).
. Id. at 382.
. Id.
. Id. at 385 (Alexander, J., dissenting).
. See Wash. Rev.Code § 46.61.5055(14)(a)(vii); former Wash. Rev.Code § 10.05.120 (1994).
. 673 P.2d 781 (Alaska App.1983).
. Id. at 785-86.