In Conrad v. State, 54 P.3d 313 (Alaska App. 2002) the Court was called upon to construe the elements of AS 28.35.030(a)(2), the "blood alcohol level" theory of driving while intoxicated. The Court concluded that, despite our discussion in Mangiapane v. Anchorage, "a defendant's guilt under AS 28.35.030(a)(2) hinges on the defendant's blood alcohol content at the time the defendant operated or controlled a motor vehicle." (Conrad, 54 P.3d at 315.) The Court construed the pre-2004 version of subsection (a)(2) to require proof that the defendant's blood alcohol level was .08 percent or higher at the time of driving, as opposed to at the time of the defendant's post-arrest chemical test(s). The Court therefore held that, even when a defendant's post-arrest blood alcohol level undisputedly equaled or exceeded .08 percent, the defendant was nevertheless entitled to introduce evidence tending to show that their blood alcohol level was lower than .08 percent at the time of driving. Id., 54 P.3d at 315-16, on rehearing 60 P.3d at 702. In Conrad v. State, the Court addressed the question of whether the pre-2004 version of AS 28.35.030(a)(2) required the State to prove that the defendant's blood alcohol level met or exceeded the legal limit at the time of driving, or whether it was enough for the State to show that a chemical test properly administered within four hours of driving showed a blood alcohol level that met or exceeded the legal limit. Conrad submitted to a breath test about one hour and fifteen minutes after he was stopped by the police. That breath test showed a blood alcohol level of .154 percent. Thirty minutes later, an independent blood test showed that Conrad's blood alcohol level was .131 percent. At trial, Conrad presented what he called a "big gulp" defense: he claimed he had quickly consumed two beers right before he drove and that the alcohol from these beers had not been fully absorbed into his bloodstream at the time he was stopped. Therefore, he argued, he was below the legal limit at the time he was driving even though a breath test more than one hour later showed a blood alcohol level above the legal limit. Although Conrad was able to argue his defense to the jury, the trial judge in effect instructed the jury that his defense was no defense -- the judge told the jury that, under the version of AS 28.35.030(a)(2) in effect at that time, Conrad's guilt hinged on the result of his breath test, not on his alcohol level at the time he was driving. The jury convicted Conrad. On appeal, Conrad argued that the court's instruction was error. We agreed, ruling that "a defendant's guilt under former AS 28.35.030(a)(2) hinges on the defendant's blood alcohol content at the time the defendant operated or controlled a motor vehicle." The Court observed that a number of states had defined the offense in terms of the defendant's test result -- and we suggested that the Alaska legislature might have the authority to do so as well. But the Court concluded that the wording and legislative history of former AS 28.35.030(a)(2) "yield no such expression of legislative intent." The Court elaborated on this ruling when The Court denied the State's petition for rehearing. The statute at issue in Conrad provided that a person committed the offense of driving while intoxicated if the person operated or controlled a motor vehicle "when, as determined by a chemical test taken within four hours after the alleged offense was committed, there was 0.08 percent or more by weight of alcohol in the person's blood." The Court found the statute's use of "when" ambiguous, and we resolved that ambiguity against the State: The problem here is the ambiguous reference of the adverb "when". Does the statute mean that a person is guilty if they operate or control a motor vehicle "when ... their blood contains 0.08 percent or more ... alcohol by weight"? Or does the statute mean that a person is guilty if they operate or control a motor vehicle "and later, as determined by a chemical test taken within four hours of the alleged offense ..., their blood contains 0.08 percent or more ... alcohol by weight"? Several years later, in 2004, the legislature responded to the Conrad decision by amending AS 28.35.030. First, the legislature eliminated the adverb "when" from AS 28.35.030(a) to resolve the ambiguity identified in Conrad: (a) A person commits the crime of driving while under the influence of an alcoholic beverage, inhalant, or controlled substance if the person operates or drives a motor vehicle or operates an aircraft or a watercraft (1) while under the influence of an alcoholic beverage, intoxicating liquor, inhalant, or any controlled substance, singly or in combination; or (2) and if WHEN, as determined by a chemical test taken within four hours after the alleged operating or driving OFFENSE WAS COMMITTED, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if WHEN there is 0.08 grams or more of alcohol per 210 liters of the person's breath. (Ch. 124, 25, SLA 2004. The legislature added the underlined text and eliminated the text in brackets.) Under the amended statute, a person commits the offense of driving while under the influence if (1) the person operates or drives a motor vehicle while under the influence or if (2) the person operates or drives a motor vehicle and "if, as determined by a chemical test taken within four hours after the alleged operating or driving, there is 0.08 percent or more by weight of alcohol in the person's blood or 80 milligrams or more of alcohol per 100 milliliters of blood, or if there is 0.08 grams or more of alcohol per 210 liters of the person's breath."