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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHNNY K. AHTUANGARUAK, )
) Court of Appeals No. A-3704
Appellant, ) Trial Court No. 3AN-S90-1019
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
) [No. 1174 - November 8, 1991]
Appellee. )
________________________________)
Appeal from the District Court, Third Judi
cial District, Anchorage, Martha Beckwith and
David C. Stewart, Judges.
Appearances: Margi Mock, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Leroy K.
Latta, Jr., Assistant District Attorney, Mary
Anne Henry, Acting District Attorney,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Johnny K. Ahtuangaruak was charged with driving while
intoxicated, AS 28.35.030(a)(1) and (2). He asked the district
court to suppress the results of the breath test that had been
administered to him following his arrest. District Court Judge
Martha Beckwith denied Ahtuangaruak's motion. Following this
ruling, Ahtuangaruak consented to a bench trial on stipulated
facts; he was convicted. Ahtuangaruak now appeals, renewing his
argument that the district court should have suppressed the
breath test results. We reverse Ahtuangaruak's conviction.
Under AS 28.35.031(a), Ahtuangaruak's arrest for
driving while intoxicated obliged him to submit to a chemical
test or tests of his breath. Under Gundersen v. Anchorage, 792
P.2d 673 (Alaska 1990), and Anchorage v. Serrano, 649 P.2d 256
(Alaska App. 1982), Ahtuangaruak's decision to submit to chemical
testing of his breath gave him a due process right to independent
testing of the breath test result. Gundersen and Serrano allow
the government at least two different methods of honoring this
right: (1) preserving a breath sample for later testing, or (2)
offering the arrestee assistance in obtaining an independent
breath or blood test. Gundersen, 792 P.2d at 676-77; Serrano,
649 P.2d at 258 n.5.1
Since the time of the decisions in Gunderson and
Serrano, law enforcement agencies in this state have generally
chosen not to preserve a second breath sample for later testing;
instead, police agencies have adopted the practice of offering
arrestees assistance in obtaining a blood test. When the
arrestee has chosen either to take advantage of this offer or to
waive the right to the independent test, the arresting officer
has the arrestee sign a document confirming this choice.
The officer who arrested Ahtuangaruak attempted to
apprise him of his right to an independent blood test, but he
encountered a problem: Ahtuangaruak had only minimal ability to
speak and understand English. Despite the officer's lengthy
attempt to explain the blood test option to Ahtuangaruak, Ahtuan
garuak did not understand what the officer was saying to him and
he therefore refused to sign the document.
In his pre-trial suppression motion, Ahtuangaruak
argued that his inability to understand the officer meant that he
had been deprived of a meaningful opportunity to exercise the
right granted by Gundersen and Serrano to obtain independent
testing of the Intoximeter result. The State countered that
Ahtuangaruak understood English better than he was willing to
admit.
After taking evidence on this issue, Judge Beckwith
found that Ahtuangaruak's ability to understand and communicate
in English was extremely limited and that, consequently,
Ahtuangaruak had not understood the officer's explanation of
Ahtuangaruak's right to an independent test. Nevertheless, Judge
Beckwith ruled that the government's obligation under Gundersen
and Serrano was only to make reasonable efforts to offer an
independent chemical test to an arrestee. She concluded that
this obligation had been satisfied in Ahtuangaruak's case for two
reasons: (1) the arresting officer had made a good faith,
reasonable attempt to explain the right to an independent blood
test to Ahtuangaruak, and (2) the officer had allowed
Ahtuangaruak to telephone both a relative and the Public Defender
Agency in an attempt to find someone who could explain the test
to Ahtuangaruak.
The district court's ruling appears to be foreclosed by
the Alaska Supreme Court's decision in Gundersen. An arrestee's
waiver of the right to an independent test "is valid only if it
is knowingly and intelligently made". Gundersen, 792 P.2d at
677.
In Gundersen, the Alaska Supreme Court expressly recog
nized that a person was entitled to seek suppression of the
breath test results on the ground that he (or she) was too
intoxicated to know what he was doing when he gave up the right
to an independent chemical test. 792 P.2d at 677.
Ahtuangaruak's case presents an analogous problem. Some persons
arrested for driving while intoxicated will have such a poor
grasp of English that they will be unable to make a knowing and
intelligent decision regarding their right to an independent
chemical test if that right is explained solely in English. The
district court found that Ahtuangaruak fell into this category.
Thus, Ahtuangaruak was never given a meaningful opportunity to
exercise his right to an independent chemical test.
By choosing to comply with Gundersen and Serrano by
offering an independent blood test instead of preserving a breath
sample, the government runs the risk that it will be barred from
introducing evidence of the Intoximeter result if the arrestee,
because of intoxication, a language barrier, or any other reason,
fails to acquire a basic understanding of the right to an indepen
dent test. When this happens, the due process clause of Article
I, Section 7 of the Alaska Constitution, as construed in
Gundersen, requires suppression of the breath test result.
The judgement of the district court is REVERSED.
_______________________________
1 We note that the blood test which law enforcement
agencies may offer to arrestees to satisfy the demands of due
process is conceptually distinct from the blood test that may be
procured under the arrestee's statutory right to an independent
chemical test granted by AS 28.35.033(e). This statutory right
to an independent test would exist even if law enforcement
agencies decided to meet due process concerns by preserving a
second breath sample. However, the police have no duty to advise
an arrestee of the statutory right to an independent test, Palmer
v. State, 604 P.2d 1106, 1110 (Alaska 1979), and the statutory
right is forfeited if the arrestee does not assert it. Gundersen
v. Anchorage, 762 P.2d 104, 110-11 (Alaska 1988).
Our decision in this case is addressed only to blood tests
offered by police agencies to satisfy the requirement of due
process.
