concurring.
I write separately to clarify our analysis of the statute at issue in this case, the pre-2007 version of AS 28.33.140.
Under subsection (a) of that statute, if the holder of a commercial driver's license was convicted of one of eight types of traffic offenses, the sentencing court was obliged to impose an "immediate disqualification from driving a commercial motor vehicle".
Of the eight types of traffic offenses listed in subsection (a), the first, fifth, seventh, and eighth types-i.e., those listed in subsections (a2)(1), (a)(5), (a)(7), and (a)(8) of statute-expressly referred to offenses involving the operation of commercial vehicles. The remaining four types-those listed in subsections (a)(2) through (a)(6), with the exception of (a)(5)-did not expressly refer to the operation of commercial vehicles.
Haywood's case involves the relationship between the offenses described in subsections (a)(1) and (a)(8) of the statute:
(1) operating a commercial motor vehicle while under the influence of an aleoholic beverage ... in violation of AS 28.33.0880 [i.e., the special DUI provision that covers commercial drivers; this special statute contains a lower threshold blood alcohol level-.04 percent]; [or]
(3) operating a motor vehicle while under the influence of an alcoholic beverage . in violation of AS 28.35.0830 [i.e., the normal DUI provision that covers all drivers]
Haywood argues that even though subsection (a)(8) did not expressly refer to operating "a commercial vehicle" while under the influence, that requirement or limitation is implicit. In other words, Haywood argues that former AS 28.38.140 did not authorize a sentencing court to disqualify a defendant from operating commercial vehicles unless the defendant's violation of subsection (a)(8) involved an act of driving a commercial vehicle while under the influence.
At first glance, Haywood's restrictive interpretation of subsection (a)(8) appears implausible, because the statute contains a separate provision-subsection (a)(1)-that explicitly deals with DUI offenses that involve commercial vehicles. There would seem to be no reason for the legislature to include subsection (a)(8) in the statute unless the legislature intended subsection (a)(8) to apply to situations not already covered by subsection (a)(1)-in other words, situations where the defendant's DUI offense did not involve a commercial vehicle.
But the meaning of former AS 28.38.140(a) is clouded by the wording of the very next portion of the statute, subsection (b):
A finding by a court that there is proof by a preponderance of the evidence that a person was operating a commercial motor vehicle at the time that the [person] was involved in an offense listed in [subsee-tions] (a)@2)-(a)(6) ... is sufficient to disqualify the person [from operating commercial vehicles] under this [statute].
Subsection (b) supports Haywood's interpretation of the statute-because subsection (b) appears to be premised on the concept that a violation of one of the types of traffic offenses listed in subsections (a)(2) through (a)(6) is not enough, by itself, to trigger the driver's disqualification from future operation of commercial vehicles. Rather, subsection (b) appears to say that the driver's disqualification hinges on proof of an additional element: that the defendant was operating a commercial vehicle at the time of the offense.
On appeal, the State suggests an alternative explanation for the legislature's enactment of subsection (b). The State argues that subsection (b) was intended to codify an alternative, lower standard of proof for cases where the defendant's DUI offense involved the operation of a commercial vehicle. According to the State's brief,
*1208[the preponderance of the evidence standard [specified in subsection (b)] is to be used [by the sentencing court] when a commercial vehicle is involved in an offense listed in [subsections] (a)@2)-(a)(6); [in contrast,] the beyond a reasonable doubt standard is used when a non-commercial vehicle is involved in an offense listed in [subsections] (a)(@2)-(a)(6).
(Emphasis added)
The problem with the State's proposed interpretation of subsection (b) is that it would render the statute unconstitutional.
The suspension or lifetime revocation of a commercial driver's license pursuant to AS 28.88.140(c) and (d) is a criminal punishment. Both subsection (c) and subsection (d) begin with the phrase, "A court convicting a person of an offense ... shall". In other words, the license suspension or revocation is imposed by the sentencing court as a consequence of the criminal conviction.1
Under Alaska law, when a defendant faces the loss of a valuable license-such as a commercial driver's license-as punishment for committing an offense, this potential punishment triggers the defendant's right to the basic procedural protections guaranteed to criminal defendants under the Alaska Constitution.2 One of those basic procedural protections is the requirement that the State prove its case beyond a reasonable doubt; another is the right to trial by jury.
Under the State's interpretation of subsection (b), a court would be allowed-indeed, would be required-to revoke a defendant's commercial driver's license if the court, acting without a jury, found by a preponderance of the evidence that the defendant had committed DUI while operating a commercial vehicle. So interpreted, the statute clearly violates the Alaska Constitution. It also violates the Sixth Amendment right to jury trial as interpreted in Blakely v. Washington,3 because the defendant's maximum penalty for the DUI would be increased based on a finding of fact (1) made by a judge (2) using a standard of proof less demanding than "beyond a reasonable doubt".
For this reason, I reject the State's proposed interpretation of subsection (b). Instead, I conclude that subsection (b) indeed means what it says: when a defendant is convicted of the offense specified in subsection (a)8)-ie., driving under the influence as defined in AS 28.35.080-this conviction will mandate the suspension of the defendant's commercial driver's license only if the State proves the additional element that the vehicle involved in the offense was a commercial vehicle.
It is true that this interpretation seems to be at odds with the fact that subsection (a) of AS 28.88.140 contains one provision (subsection (a)(1)) for commercial vehicle DUI as defined in AS 28.33.080, and another separate provision (subsection (a)(8)) for regular DUI as defined in AS 28.35.080. But the legislative history of this statute-a history detailed in Judge Stewart's lead opinion-suggests that this problem stems from a drafting error in subsection (a)(1).
As explained in the lead opinion, the Alaska legislature intended to enact a statute that would parallel the 1992 version of 49 C.E.R. § 388.51, the federal regulation dealing with this same matter. Under that federal regulation, a person lost their commercial driver's license if (1) they operated a commercial vehicle while their blood alcohol level was .04 percent or greater, or (2) they operated a commercial vehicle while under the influence of alcohol as defined by applicable state law (regardless of their blood alcohol level).
But when the Alaska Legislature drafted subsection (a)(1) of former AS 28.33.140, they departed from the wording of the corresponding federal regulation. Instead of *1209wording subsection (a)(1) as "driving a commercial motor vehicle while the person's blood alcohol concentration is .04 percent or greater", the legislature worded subsection (a)(1) as "operating a commercial motor vehicle while under the influence of an alcoholic beverage ... in violation of AS 28.38.0830".
To the Alaska drafters, these two wordings may have seemed equivalent at first glance-because AS 28.33.0830 contains a provision that forbids a person from operating a commercial vehicle when their blood aleohol level is .04 percent or greater.
But AS 28.33.0830 contains a second clause that forbids a person from operating a commercial vehicle while "under the influence" of alcohol or other intoxicants, regardless of the person's blood aleohol content. This second provision of AS 28.33.0830 overlaps with the "under the influence" clause of AS 28.35.0830 (the normal DUI statute). And this overlap engenders the statutory ambiguity that lies at the heart of this appellate litigation-because, on account of this overlap, former AS 28.33.140 might reasonably be construed to encompass DUI offenses that do not involve the operation of a commercial vehicle.
Given the legislative history, I suspect that the legislature did not intend to expand the seope of the statute in this fashion. But even if the legislature might have intended this result, the fact remains that the statute is irreconcilably ambiguous on this issue-because of the tension between subsection (a) and subsection (b) described above.
Because these two provisions of the statute can not be reconciled, it is impossible to say with any certainty whether the statute is limited to DUI offenses involving the operation of commercial vehicles or whether, on the other hand, it applies to all DUI offenses. This being so, the law requires us to resolve this ambiguity against the government.4
For these reasons, I agree with my colleagues that we must construe AS 28.33.140 as applying only to DUI offenses involving the operation of commercial vehicles. Accordingly, the district court should not have taken action against Haywood's commercial driver's license.
. See Wik v. Department of Public Safety, 786 P.2d 384 (Alaska 1990), and Carter v. State, 625 P.2d 313 (Alaska 1981), both of which construed the companion statute, AS 28.15.181, as a penal statute.
. See Alexander v. Anchorage, 490 P.2d 910, 912-13 (Alaska 1971) (right to counsel at public expense); Baker v. Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970) (right to trial by jury); State v. Auliye, 57 P.3d 711, 714 (Alaska App.2002) (same).
. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
. See Brookins v. State, 600 P.2d 12, 17 (Alaska 1979); Ned v. State, 119 P.3d 438, 446-47 (Alaska App.2005); Wells v. State, 102 P.3d 972, 976 (Alaska App.2004); Whitesides v. State, 88 P.3d 147, 151 (Alaska App.2004); State v. ABC Towing, 954 P.2d 575, 579 (Alaska App.1998); Magnuson v. State, 843 P.2d 1251, 1253 (Alaska App.1992).