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THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTOPHER J. BIRCH, )
)
Appellant, ) Court of Appeals No. A-3904
) Trial Court No. 4FA-S90-3158CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1198 - January 31, 1992]
______________________________)
Appeal from the District Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: Dick L. Madson, Fairbanks, for
Appellant. Gayle L. Garrigues, Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Christopher J. Birch appeals from his conviction for
driving while intoxicated (DWI), in violation of AS 28.35.030.
Birch argues on appeal that the trial court erred in denying his
motion to suppress the results of a blood alcohol test performed
by the Alaska Crime Lab on a sample of his blood that was drawn
after his arrest.
Following Birch's arrest for DWI, he was taken to the
Fairbanks Police Station where he submitted to an Intoximeter
test which showed his blood alcohol level to be .122. He was
then informed of his right to have an independent test of his
blood done. At his request, he was allowed to call and consult
with his attorney. On the advice of his attorney, Birch decided
to have an independent blood test done at his own expense.
Alaska State Trooper Mark Ridling took Birch to Fairbanks
Memorial Hospital to have his blood drawn for the independent
test. However, when they got to the hospital, Birch was unable
to have a blood test done because he did not have the $82 in cash
which the hospital required as payment for the test. Ridling
told Birch that he could have a blood sample drawn at state
expense and Birch agreed to this. Trooper Ridling then took
Birch to the Fairbanks Correctional Center, where two vials of
Birch's blood were drawn and placed in the state evidence locker.
The state subsequently obtained a search warrant for one of the
two vials of blood. The sample was tested at the State Crime Lab
and was found to have an alcohol content of .121.
Birch moved to suppress the results of the blood test
done at the State Crime Lab, on the grounds that the seizure by
the state of the vial of blood violated his attorney-client
privilege. He based his argument on our recent opinion in Oines
v. State, 803 P.2d 884 (Alaska App. 1990). In Oines, we held
that the results of a blood test performed by an expert hired by
Oines' defense attorney were privileged. We reversed the trial
court's ruling which allowed the state to call the defense-
consulted expert to testify as to the results of the independent
test. The state had argued in Oines that because no attorney was
involved at the time Oines decided to sign the consent form to
have blood drawn, the attorney-client privilege did not attach to
the result of any test done on the blood. We rejected this
argument, holding:
Although an attorney was not involved at the
time Oines made the decision to sign the
consent form, an attorney was directly
responsible for the decision to secure Dr.
Rogers as a defense expert witness regarding
blood test results. In our view, the
attorney-client privilege was triggered when
Oines' counsel, acting in his professional
capacity as Oines' representative, initiated
this contact with Dr. Rogers as a defense
expert.
803 P.2d at 886 (footnote omitted).
District Court Judge Charles R. Pengilly denied Birch's
motion to suppress. Judge Pengilly determined that the Oines
decision did not address the situation found in this case, in
which the state had the defendant's blood tested by its own
expert and thus obtained blood test results without relying on
the work of anyone hired or consulted by the defense. Judge
Pengilly held that the blood sample itself, although drawn on the
advice of Birch's attorney, was not covered by the attorney-
client privilege. The court held that as physical evidence, the
blood sample was seizable by the state with a valid warrant.
Judge Pengilly was correct in concluding that Oines
applies only where an expert has been consulted either by the
defendant's attorney or by the defendant on the advice of an
attorney.1 The Oines decision is based on Alaska's lawyer-client
evidentiary privilege, which is set forth in Alaska Evidence Rule
503. That rule provides in relevant part:
A client has a privilege to refuse to
disclose and to prevent any other person from
disclosing confidential communications made
for the purpose of facilitating the rendition
of professional legal services to the client,
(1) between himself or his representative and
his lawyer or his lawyer's representative, or
(2) between his lawyer and the lawyer's
representative, or (3) by him or his lawyer
to a lawyer representing another in a matter
of common interest, or (4) between
representatives of the client or between the
client and a representative of the client, or
(5) between lawyers representing the client.
A.R.E. 503(b). The situation in Oines involved confidential
communications between Oines' lawyer and the lawyer's
representative, the doctor he retained to analyze Oines' blood
sample. Here, there was no such confidential communication.
Neither Birch's attorney nor any representative of his attorney
was called upon to produce blood test results or to testify
regarding such results. Evidence Rule 503 was not violated by
the state in this case.
In addition, the general rationale behind the Oines
decision is not implicated here. This reasoning is set forth in
the following excerpt from the Alaska Supreme Court's opinion in
Houston v. State, which we quoted in Oines:
Disclosures made to the attorney
[by a defense-consulted expert]
cannot be used to furnish proof of
the government's case. Disclosures
made to the attorney's expert
should be equally unavailable, at
least until he is placed on the
witness stand. The attorney must
be free to make an informed
judgment with respect to the best
course for the defense without the
inhibition of creating a potential
government witness.
. . . .
If the state were allowed to subpoena
[defense-consulted expert witnesses], the
defense counsel's initial effort to become
fully informed as to the possibility or
likelihood of . . . valid . . . defense[s]
may be inhibited because of the potential
that an adverse opinion will be used by the
state.
Houston v. State, 602 P.2d 784, 791-92 (Alaska 1979) (quoting
United States v. Alvarez, 519 F.2d 1036 (3rd Cir. 1975)).
Birch's attorney was in no way hindered from consulting experts
or having an additional blood test done on behalf of the defense.2
No communications between defense counsel and any of his
representatives or between Birch and his counsel were
compromised. The danger to the attorney-client privilege against
which Oines is a safeguard is not present in this case.
The judgment of the district court is AFFIRMED.
_______________________________
1. Cf. Russell v. Anchorage, 706 P.2d 687, 692 (Alaska
App. 1985) (attorney-client privilege does not preclude testimony
by experts consulted by a client without the involvement of an
attorney).
2. The state apparently seized only one of the two vials
of blood drawn after Birch's arrest, leaving the other vial
available for additional testing by the defense.
