Municipality of Anchorage v. Ray (6/18/93) ap-1297
NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-4067
Petitioner, ) Trial Court No. 3AN-91-970 Cr
)
v. )
) O P
I N I O N
JEFFREY L. RAY, )
)
Respondent. ) [No. 1297 - June 18, 1993]
________________________________)
Petition for Review from the District Court,
Third Judicial District, Anchorage, William
H. Fuld, Judge.
Appearances: Richard R. Felton, Assistant
Municipal Prosecutor, and Richard L. McVeigh,
Municipal Attorney, Anchorage, for Petition
er. Frederick T. Slone, Kasmar & Slone,
Anchorage, for Respondent.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
On February 9, 1991, Jeffrey L. Ray was involved in a
motor vehicle accident in which a pedestrian was injured. When
the police arrived, they asked Ray if he would be willing to have
his blood drawn and tested for alcohol content; Ray refused. The
police then took Ray into custody, transported him to a hospital,
and had medical personnel draw a sample of his blood without his
consent. When Ray's blood was tested, it was found to contain
.133 percent alcohol, over the legal limit.
Ray was charged with driving while intoxicated under
the Anchorage Municipal Code, 9.28.020. In a pre-trial motion,
Ray asked the district court to suppress the results of the blood
test. Ray argued that the police were obligated to ask him to
submit to a breath test first, and were empowered to draw his
blood only if he refused the breath test. The district court
agreed with Ray and suppressed the blood test results. We
granted the Municipality's petition to review the district
court's ruling. We now reverse the decision of the district
court.
In deciding Ray's case, we will be interpreting a trio
of state statutes: AS 28.35.031(a), AS 28.35.032(a), and AS 28.
35.035. At first blush, this may seem incongruous, since Ray was
prosecuted under the Anchorage Municipal Code, not Title 28 of
the Alaska statutes. The parties apparently litigated this case
in district court on the basis of the state statutes; in fact,
the appellate brief filed by the Municipality of Anchorage does
not even mention the Anchorage Municipal Code. Ray's brief
recognizes the distinction between state law and municipal law;
nevertheless, he urges this court to treat the municipal
ordinances as equivalent to the corresponding state statutes. We
do so for two reasons. First, as Ray notes, the ordinances - AMC
9.28.021, AMC 9.28.022(A), and AMC 9.28.025 - are quite similar
to the three state statutes, although there are some differences
in wording. Second, state law prohibits municipalities from
promulgating traffic laws that diverge from state law. AS
28.01.010(a). Thus, we presume that the drafters of the
municipal ordinances intended that the ordinances be interpreted
in the same manner as the corresponding statutes.
Construction of AS 28.35.035(a)
Alaska has enacted an "implied consent" law, AS 28.35.
031(a), which declares that anyone who drives a motor vehicle in
the state has impliedly consented to have the police administer a
breath test to determine the motorist's blood alcohol content if
the motorist has been lawfully arrested for an offense committed
while the motorist was driving while intoxicated. However, the
authority granted to the police by this statute is conditioned by
a sibling statute, AS 28.35.032(a). In 1979, that statute read:
If a person under arrest refuses the
request of a law enforcement officer to
submit to a chemical test of his breath as
provided in [AS 28.35.031(a)], ... a chemical
test shall not be given.
(Quoted in Anchorage v. Geber, 592 P.2d 1187, 1190 (Alaska 1979))
In Geber, the Alaska Supreme Court held that if the arrested
motorist refused to submit to a breath test, the police could not
make the motorist submit to a blood test or any other chemical
test. After exhaustively reviewing the legislative history of
the 1979 versions of AS 28.35.031 and .032, the court concluded
that the language "a chemical test shall not be given" was
intended by the legislature to mean that no chemical test of any
kind was to be given. Id. at 1191. Under Geber, if an arrested
motorist declined to submit to the breath test mandated in
section 031(a), that was the end of the matter.
Moreover, the Geber court interpreted AS 28.35.032(a)
to bar the police from administering any chemical test other than
a breath test, regardless of whether the motorist had
affirmatively refused to take the breath test. The issue arose
because one of the co-appellants in Geber had not refused to take
a breath test until after the police had already drawn a blood
sample from her. The court said:
Further comment is perhaps necessary concern
ing the taking of blood from [the appellant]
Willis, since her refusal to take a [breath
test] came after the blood sample was extract
ed from her body. In our view, the fact that
she had not yet refused a breath test is of
no significance. As we interpret the Implied
Consent Statute [AS 28.35.031-032], it was
intended to provide an exclusive method for
obtaining direct evidence of a suspect's
blood alcohol content, absent his or her
express consent to the use of some other form
of testing.
Geber, 592 P.2d at 1192 (emphasis in the original).
Responding to the Geber decision, the legislature
amended AS 28.35.032(a) and enacted AS 28.35.035. Section 032(a)
now reads:
If a person under arrest refuses the
request of a law enforcement officer to
submit to a chemical test under ... AS
28.35.031(a), ... a chemical test may not be
given, except as provided by AS 28.35.035.
AS 28.35.035(a) provides an exception for intoxicated drivers who
have injured or killed someone else:
If a person is under arrest for an
offense arising out of acts alleged to have
been committed while the person was operating
a motor vehicle ... while intoxicated, and
that arrest results from an accident that
causes death or physical injury to another
person, a chemical test may be administered
without the consent of the person arrested to
determine the amount of alcohol in that per
son's breath or blood.
This brings us to the issue presented by Ray's case.
The Municipality asserts that AS 28.35.035(a) authorizes the
police to test an arrested motorist's blood whenever a motor
vehicle accident has occurred and someone other than the motorist
has been injured in the accident. According to the Municipality,
the blood test can be conducted despite the motorist's protest
and without regard to whether the motorist has refused a breath
test. Ray, on the other hand, asserts that section 035(a)
requires the police to first seek the motorist's consent to a
breath test, and only if the motorist refuses to submit to a
breath test can the police conduct the more intrusive blood test.
Section 035(a) does not specify any requirement that an
arrested motorist be offered a breath test first. Moreover, the
concluding language of section 035(a) appears to support the
Municipality's position: when an arrested motorist's drunk
driving has caused injury or death, "a chemical test may be
administered without the consent of the person arrested to
determine the amount of alcohol in that person's breath or
blood." However, Ray argues that these words should not be taken
at face value.
Ray points out that in Bass v. Anchorage, 692 P.2d 961,
964-65 (Alaska App. 1984), this court recognized that one of the
main policies behind Alaska's chemical testing statutes is to
prevent physical confrontations between arrestees and police
officers. Relying on this policy, this court gave a narrow
construction to AS 28.35.035(b), a sibling provision of the
statute being litigated in this appeal.1
In Bass, the defendant motorist had been injured in the
accident; he was conscious, but the police feared that his chest
injuries would prevent him from performing a breath test. The
police asked the defendant to consent to a blood test instead,
but he refused. On appeal, the government argued that section
035(b) allowed a non-consensual blood test whenever there was
reason to believe that the motorist, because of injury, was
physically incapable of accomplishing a breath test. This court
rejected the government's construction of the statute, holding
instead that the statutory language "incapable of refusal" meant
"incapable of manifesting refusal":
[T]he fact that it was not practical to offer
Bass a breathalyzer test does not bring this
case within AS 28.35.035(b). [That statute
addresses] a narrow class of cases where the
defendant is unconscious or otherwise incapa
ble of manifesting his intent to refuse. In
these cases[,] the police would be able to
take a blood test without the person's contem
poraneous consent, but without having to use
any violent means to obtain the blood-alcohol
test.
Bass, 692 P.2d at 965. However, the court's next two sentences
are not as favorable to Ray's position:
We note that the legislature did not say in
AS 28.35.035(b) that the police could take a
blood alcohol test without consent as it did
in AS 28.35.035(a). Rather, the legislature
said that "a person who is unconscious or
otherwise in a condition incapable of refusal
is considered not to have withdrawn the con
sent provided under AS 28.35.031(a).
Id. (original emphasis in italics; added emphasis underlined).
This distinction between the language of sections 035(a) and
035(b) supports the Municipality's argument that the police are
authorized to take a blood sample without regard to the
motorist's consent, either to the blood test or to a breath test.
Responding to the Municipality's argument that the
language of AS 28.35.035(a) does not specify that police are
obliged to offer a breath test first, Ray correctly points out
that Alaska has rejected a strict "plain meaning" approach to
statutory construction; the fact that a statute's wording is
apparently clear and unambiguous does not end the search for the
legislature's intent. Stephan v. State, 810 P.2d 564, 566
(Alaska App. 1991). However, the more clear and unambiguous the
wording of the disputed statute, the correspondingly greater
burden of persuasion borne by a litigant who contends that the
statute does not mean what it appears to say. University of
Alaska v. Geistauts, 666 P.2d 424, 428 n.5 (Alaska 1983).
Ray relies on comments made by Representative Russ
Meekins in January 1982 to the House Judiciary Committee, as that
committee began its consideration of House Bill 438 (1981), the
progenitor of AS 28.35.035. Representative Meekins, the bill's
original sponsor, told the committee that "the purpose of [the]
bill is to allow the taking of blood samples ... in cases where
the DWI has resulted in a motor vehicle accident causing physical
injury or death and the offender has refused to take the breath
alyzer test." See Tape 4(1) of the proceedings of the House
Judiciary Committee for January 21-22, 1982.
However, notwithstanding Rep. Meekins's comments, the
language of HB 438 as proposed by him does not specify that a
motorist's prior refusal of a breath test is a pre-condition of
the police's authority to take a blood sample. Section 2 of Rep.
Meekins's proposed bill (SS HB 438, introduced 4/4/81, the
version referred to the House Judiciary Committee), would have
amended AS 28.35.032(a) to read:
(a) If a person under arrest refuses the
request of a law enforcement officer to
submit to a chemical test of his breath as
provided in AS 28.35.031 ..., a chemical test
may shall not be given except under (f) of
this section.
At the same time, section 5 of the original bill would have
created AS 28.35.032(f), which would have read:
(f) If a person is arrested for a crime
alleged to have been committed by him while
operating or driving a vehicle under the
influence of intoxicating liquor and the
crime is a homicide under AS 11.41.120(a)(1)
or 11.41.130 or an assault under AS 11.41.210
(a)(3) or 11.41.230(a)(1) or (2), a chemical
test of his blood may be administered without
his consent if the taking of the blood sample
occurs after or substantially contemporaneous
ly with his arrest and in a manner which does
not violate the constitutional rights of the
accused.
(The "substantially contemporaneous" language apparently comes
from Layland v. State, 535 P.2d 1043, 1046-48 (Alaska 1975),
overruled on other grounds, Geber, 592 P.2d at 1191-92 & n.8.)2
The House Judiciary Committee's subsequent version of
the bill (CS SSHB 438, offered March 8, 1982 and referred to the
Finance Committee) contained language that, at least arguably,
more nearly reflects a legislative intention to restrict blood
tests to situations in which the motorist had first refused to
submit to a breath test. Under the Judiciary Committee's
version, AS 28.35.032(a) would have read:
(a) If a person under arrest refuses the
request of a law enforcement officer to
submit to a chemical test of his breath as
provided in AS 28.35.031 ..., a chemical test
may shall not be given in accordance with (i)
of this section.
(CS SSHB 438, section 10), while a new AS 28.35.032(i) would have
been enacted:
(i) If a person is arrested for a crime
alleged to have been committed by him while
operating or driving a motor vehicle while
intoxicated, a chemical test of his blood may
be administered without his consent.
(section 14). The Judiciary Committee's alteration of the
concluding language of AS 28.35.032(a) - "a chemical test may be
given in accordance with [new subsection] (i)" - may indicate
that the Committee viewed the breath test refusal described in
subsection (a) to be a precondition of the blood test authorized
in subsection (i).3
However, when the Judiciary Committee's CS SSHB 438 was
referred to the House Finance Committee, the Finance Committee
tabled the proposed legislation. Instead, the Finance Committee
used the language of CS SSHB 438 as a foundation to rewrite
another pending bill (Senate Bill 611), making it the vehicle for
changes in the DWI statutes. The result was HCS SB 611
(Finance), offered April 21, 1982.
In the Finance Committee's version, all non-consensual
chemical tests were removed from AS 28.35.032 and placed in a new
AS 28.35.035. Section 17 of the Finance Committee's bill changed
the language of AS 28.35.032(a) to:
(a) If a person under arrest refuses the
request of a law enforcement officer to
submit to a chemical test of his breath as
provided in AS 28.35.031 ..., a chemical test
shall not be given, except as provided by AS
28.35.035.
Section 21 of the Committee's bill proposed a new, comprehensive
AS 28.35.035:
Administration of chemical tests without
consent. (a) If a person is under arrest for
the crime of driving while intoxicated and
that arrest results from an accident that
causes death or physical injury to another
person, a chemical test may be administered
without the consent of the person arrested to
determine the amount of alcohol in that
person's breath or blood.
(b) A person who is unconscious or other
wise in a condition rendering him incapable
of refusal is considered not to have
withdrawn the consent provided under AS
28.35.031 and a chemical test may be
administered to determine the amount of
alcohol in that person's breath or blood.
(c) If a chemical test is administered
to a person under (a) or (b) of this section,
that person is not subject to the penalties
for refusal to submit to a chemical test
provided by AS 28.35.032 and 28.35.034.
The Finance Committee's bill was ultimately enacted (with no
pertinent changes) as ch 117 SLA 1982.
Given this legislative history - and, in particular,
the fact that the House Finance Committee tabled HB 438 and
substituted its own rewritten version of SB 611 - it is unclear
how much weight should be given to Rep. Meekins's comments during
the earlier hearings before the House Judiciary Committee.4
Moreover, despite Rep. Meekins's comments to the Judiciary
Committee, neither his version of the bill, nor the Judiciary
Committee's revised version, nor the superseding version written
by the Finance Committee and ultimately passed by the legislature
contains an explicit statement that police authority to seek a
blood test is conditioned on the motorist's prior refusal to
submit to a breath test. As we noted above, the Judiciary
Committee's version could conceivably be interpreted to impose
such a condition, but that version was superseded by the Finance
Committee's version.
In sum, Ray's arguments concerning the legislative
history of AS 28.35.032(a) and AS 28.35.035(a) do not convince us
that we should alter or augment the apparent meaning of those
statutes. We can infer no legislative intent to limit the blood
testing authorized in AS 28.35.035(a) to situations in which the
motorist has first refused to submit to a breath test. See State
v. Judge, 675 P.2d 219, 221-22 (Wash. 1984), reaching the same
interpretation of similar provisions found in RCW 46.20.308(1)-
(5).
Ray argues that this interpretation of AS 28.35.035(a)
is inconsistent with the policy of discouraging physical
confrontations between motorists and police. Ray asserts that
the legislature could not have wished to grant such broad
authority to the police when, in many cases, the evidence sought
by the police could just as easily be obtained by asking the
motorist to submit to a breath test.
However, when an intoxicated driver injures or kills
someone else, the driver's conduct will generally constitute a
felony; society's interest in obtaining an accurate reading of
the driver's blood alcohol level is commensurately greater than
in a simple DWI situation. The legislature could reasonably
conclude that, in cases involving injury or death, society's
greater interest in obtaining timely and accurate evidence of the
driver's level of intoxication outweighs the normal DWI policy of
discouraging physical confrontation between police and motorists.
Accordingly, we reject the district court's
construction of AS 28.35.035(a). We conclude that this statute
authorizes the police to require a motorist to submit to a blood
test even though there has been no prior attempt to obtain the
motorist's consent to a breath test.
Constitutionality of AS 28.35.035(a)
Ray next asserts that AS 28.35.035(a) is unconstitu
tional if construed in this manner. He contends that the statute
violates the due process clauses of the Fourteenth Amendment to
the United States Constitution and Article I, Section 7 of the
Alaska Constitution, the search and seizure provisions of the
Fourth Amendment to the United States Constitution and Article I,
Section 14 of the Alaska Constitution, and the privacy provision
of the Alaska Constitution, Article I, Section 22.
To a great extent, Ray's due process claim overlaps his
search and seizure claim. The due process guarantee protects
citizens from the arbitrary or fundamentally unfair use of
government power5, while the search and seizure clause requires
that the government engage only in reasonable searches and
seizures. Obviously, a government intrusion that violates the
due process guarantee (because it is arbitrary or inconsistent
with fundamental notions of justice) will also violate the search
and seizure clause (because it will be unreasonable). The
reverse, however, is not always true. Thus, in Ray's case the
search and seizure clause is likely to provide the broader
protection.
Ray's basic argument is that the government must employ
the least intrusive method capable of testing the motorist's
blood alcohol level. Ray contends that a blood test is
significantly more intrusive than a breath test, and therefore
the government cannot avail itself of blood testing unless and
until the motorist has affirmatively refused to submit to a
breath test.
However, the United States Supreme Court rejected
similar due process challenges to blood testing in Breithaupt v.
Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and
Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d
908 (1966). When the blood sample is drawn "by a physician in a
simple, medically acceptable manner in a hospital environment",
blood extraction from an arrestee is not so great an intrusion as
to violate due process. Schmerber, 384 U.S. at 759-760, 86 S.Ct.
at 1830. See also Winston v. Lee, 470 U.S. 753, 762; 105 S.Ct.
1611, 1617; 84 L.Ed.2d 662 (1985): "Schmerber recognized
society's judgment that blood tests do not constitute an unduly
extensive imposition on an individual's personal privacy and
bodily integrity." All doubt on this point was laid to rest in
South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d
748 (1983), where the Supreme Court reaffirmed that a state may
"force a person suspected of driving while intoxicated to submit
to a blood-alcohol test", and that any right of the motorist to
refuse a blood test was a matter of legislative grace. 459 U.S.
at 559-560, 103 S.Ct. at 920.
Ray points out that the Supreme Court apparently
conditioned its due process ruling in footnote 4 of Schmerber:
"It would be a different case if the police ... refused to
respect a reasonable request to undergo a different form of
testing[.]" 384 U.S. at 760, 86 S.Ct. at 1830. Ray reads this
footnote as an indication that the police are constitutionally
limited to the least intrusive reasonable test available.
However, we do not interpret this footnote so broadly.
First, the footnote itself suggests only that the
police should respect a motorist's affirmative request for a
reasonable alternative test, not that the police are obliged to
offer alternative tests in the absence of any request. Compare
Svedlund v. Anchorage, 671 P.2d 378, 382 (Alaska App. 1983), in
which this court held that, while police officers must honor an
arrested motorist's affirmative request to speak to counsel
before taking a breath test, the officers have no affirmative
duty to inform the motorist of the right to counsel.
Second, despite the language of footnote 4, when the
Supreme Court returned to the issue of a motorist's request for
an alternative test later in its opinion, the court concluded
that it did not have to reach the issue:
[Blood] tests are a commonplace in these days
of periodic physical examinations[,] and expe
rience with them teaches that the quantity of
blood extracted is minimal, and that for most
people the procedure involves virtually no
risk, trauma, or pain. Petitioner is not one
of the few who on grounds of fear, concern
for health, or religious scruple might prefer
some other means of testing, such as [a
breath test]. We need not decide whether
such wishes would have to be respected.
Schmerber, 384 U.S. at 771, 86 S.Ct. at 1836.
Ray cites People v. Fiscalini, 279 Cal.Rptr. 682 (Cal.
App. 1991), as a case that provides the answer to Schmerber's
unanswered question. In Fiscalini, the arresting officer
initially offered the motorist a choice of a breath, blood, or
urine test. The motorist decided to give a urine specimen.
However, after this was done, the officer decided that a blood
test would yield a more accurate measure of the motorist's blood
alcohol level, so he insisted that the motorist submit to a blood
test too. The motorist refused, and the police forcibly
extracted the blood sample. 279 Cal.Rptr. at 683.
Fiscalini does not support Ray's due process argument.
The California court acknowledged that, under Schmerber, even a
forcible extraction of an arrested motorist's blood would not
violate the due process clause. The court held that the seizure
of Fiscalini's blood had been illegal because the police had
failed to satisfy the exigency requirement imposed by Schmerber
and Winston. Fiscalini had already submitted a urine sample, so
the police had had no immediate need to obtain a blood sample.
Id. at 685.
Ray characterizes Fiscalini as standing for the proposi
tion that the police must always use the least intrusive method
of obtaining blood-alcohol evidence, but the Fiscalini court was
not called upon to decide this issue. The motorist in Fiscalini
had, at the request of the police, already given a urine sample
before the police mentioned the additional blood test. On those
facts, the court could reasonably conclude that the police had
failed to demonstrate the need to take the motorist's blood. Id.
at 685. Fiscalini does not address Ray's claim that the federal
constitution forbids the police from obtaining a sample of an
arrested motorist's blood unless they have unsuccessfully sought
to obtain the motorist's consent to a breath test.
We agree with the Supreme Court's decisions in Brei
thaupt, Schmerber, and Neville that a state legislature may
constitutionally leave the choice of chemical test to the
arresting officer - that due process does not require the police
to begin with the least intrusive available method (that is, a
breath test rather than a blood test). Accord, Kostyk v.
Commonwealth, 570 A.2d 644, 646-48 (Pa. Comwlth. 1990).
Turning to Ray's search and seizure argument, Ray's
claim that a blood test is an unreasonable seizure has been
addressed by both the United States Supreme Court and the
appellate courts of this state. In Schmerber, the United States
Supreme Court rejected the government's contention that a blood
sample from an arrested motorist could be viewed as simply
another type of search incident to arrest. 384 U.S. at 769-770,
86 S.Ct. at 1835. However, the court upheld the taking of blood
under the exigent circumstances exception to the warrant
requirement, since blood alcohol generally begins to dissipate
shortly after a person stops drinking. 384 U.S. at 770-71, 86
S.Ct. at 1835-36.
In Layland v. State, 535 P.2d at 1045-49, the Alaska
Supreme Court indicated its approval of the Schmerber result,
construing Alaska's search and seizure clause, Article I, Sec
tion 14, to allow blood tests over a motorist's protest, provided
that the motorist had been lawfully arrested.
Nevertheless, Ray argues, if police authority to draw
blood from an arrested motorist stems from a combination of the
"search incident to arrest" and "exigent circumstances"
doctrines, then the police, to prove exigency, must show a true
need to conduct a blood test as opposed to a breath test. Ray
relies on language from Reeves v. State, 599 P.2d 727, 735
(Alaska 1979), where the supreme court, speaking generally of the
recognized exceptions to the warrant requirement, stated that "a
search conducted pursuant to such an exception must be no broader
or more intrusive than necessary to fairly effect the government
purpose which serves as its justification."
This language from Reeves, while it is addressed to
warrantless searches, applies equally to searches authorized by
warrant: no governmental intrusion on the privacy of citizens
should be broader or more intrusive than necessary to accomplish
the government purpose that justifies it. Ray's argument does
not turn on this legal principle, but rather on his assertion
that a blood test is, for constitutional purposes, a materially
different type of seizure from a breath test. This assertion is
at odds with our prior cases.
In Gundersen v. Anchorage, 762 P.2d 104, 112 (Alaska
App. 1988), aff'd, 792 P.2d 673, 678 (Alaska 1990), and in
Swanson v. Juneau, 784 P.2d 678, 679 (Alaska App. 1989), this
court held that it was reasonable for the police to offer a blood
test (as opposed to a second breath sample) to an arrested
motorist to fulfill the government's due process obligation to
provide the motorist a means of independently verifying breath
test results. "[W]e [cannot] say that the drawing of blood is so
intrusive a procedure as to be an unreasonable alternative per
se." Gundersen, 762 P.2d at 112. See also Srala v. Anchorage,
765 P.2d 103, 105 (Alaska App. 1988), where this court declared
that an arrestee has no Fourth Amendment right to refuse either a
breath or a blood test.
These cases indicate that, for due process and search
and seizure analysis, a blood test is not viewed as materially
more intrusive than a breath test. Moreover, even if we were to
view a blood test as materially more intrusive, the question
remains whether it is a reasonable intrusion under the
circumstances. As we discussed before, society's interest in
obtaining a timely and accurate measure of a motorist's blood
alcohol level is much greater in cases where the motorist has
injured or killed another person. We therefore conclude that the
search and seizure provisions of the federal and state constitu
tions are not offended by a statute that allows the police to
take a blood sample from an arrested motorist in such cases
without seeking a breath sample first. The legislature may, as a
matter of policy, order one test given in preference to the
other. AS 28.35.032(a) establishes a preference for the breath
test in non-injury drunk driving arrests, but AS 28.35.035(a)
does not mandate the same preference when an intoxicated driver
has caused injury or death.
Ray's final constitutional challenge to AS 28.35.035(a)
is that it violates his right to privacy under Article I, Sec
tion 22 of the Alaska Constitution. However, the right to
privacy granted by Article I, Section 22 does not create a
separate, independent right to seek exclusion of evidence:
[A] review of Alaska Supreme Court decisions
reflects no intent to create an independent
ground of exclusion. See, e.g., State v.
Glass, 583 P.2d 872 (Alaska 1978). A close
reading of the cases establishes that suppres
sion is always predicated on [the search and
seizure provisions of] art. 1, 14, and that
22 is merely used as a justification for
giving 14 a liberal interpretation.
Wortham v. State, 641 P.2d 223, 224-25 n.2 (Alaska App. 1982),
aff'd, 666 P.2d 1042 (Alaska 1983). See also Schultz v. State,
593 P.2d 640, 642 (Alaska 1979), and Bargas v. State, 489 P.2d
130, 132 (Alaska 1971). Thus, our ruling that AS 28.35.035(a)
does not violate the search and seizure clause of the Alaska
constitution disposes of Ray's privacy challenge as well.6
Conclusion
For the reasons explained above, we conclude that
AS 28.35.035(a) authorizes the police to test the blood of a
motorist who has been arrested for an offense arising from an act
of intoxicated driving that has caused death or injury to another
person, regardless of whether the motorist has been offered a
breath test first. We additionally conclude that this statute
does not violate the due process, search and seizure, or privacy
clauses of either the federal or state constitution. The
decision of the district court is REVERSED, and this case is
remanded to that court for further proceedings on the criminal
complaint.
_______________________________
1 Section 035(b) deals with situations in which the
arrested motorist is unconscious or otherwise incapable of
affirmatively refusing to take a breath test:
A person who is unconscious or otherwise
in a condition rendering that person
incapable of refusal is considered not to
have withdrawn the consent provided under ...
AS 28.35.031(a) and a chemical test may be
administered to determine the amount of
alcohol in that person's breath or blood. A
person who is unconscious or otherwise
incapable of refusal need not be placed under
arrest for a chemical test to be
administered.
2 Section 7 of Rep. Meekins's original bill would also have
enacted a new AS 28.35.035, allowing the police to take a blood
test without the motorist's affirmative consent when either (1)
the motorist was unconscious or otherwise incapable of refusing a
breath test, or (2) the motorist, even though conscious and
willing to submit to a breath test, was incapable of performing a
breath test.
Persons incapable of refusing or taking
tests. A person who is unconscious or other
wise in a condition rendering him incapable
of refusing a chemical test of breath is
considered not to have withdrawn the consent
furnished under AS 28.35.031 if lawfully
arrested for an offense arising out of acts
alleged to have been committed while the
person was operating a vehicle under the
influence of intoxicating liquor, and a
chemical test of the breath may be
administered. A person who is in a condition
rendering him incapable of being administered
a chemical test of his breath may be
administered a chemical test of his blood
without his consent if lawfully arrested for
an offense arising out of acts alleged to
have been committed while the person was
operating a vehicle under the influence of
intoxicating liquor.
3 At the same time, the Committee (in section 19) narrowed
Rep. Meekins's proposed AS 28.35.035, deleting the language which
would have authorized the police to draw a blood sample when the
motorist, though wishing to submit to a breath test, was
incapable of performing the breath test. The Committee narrowed
AS 28.35.035 to include only situations in which the motorist was
incapable of manifesting a refusal to submit to a breath test:
Persons incapable of refusing or taking
tests. A person who is unconscious or other
wise in a condition rendering him incapable
of refusing a chemical test of breath, if
arrested for an offense arising out of acts
alleged to have been committed while the
person was operating or driving a motor
vehicle while intoxicated, is nonetheless
subject to a chemical test of his blood.
As a result of these three changes, the Judiciary Committee's
version of the bill could be read as authorizing a non-consensual
blood test only if (1) the motorist affirmatively refused a
breath test, or if (2) the motorist was rendered incapable of
manifesting refusal.
4 Ray also relies on contemporaneous comments by personnel
of the Alaska Department of Law and the Municipality of
Anchorage, indicating that they viewed the proposed law as
allowing police to conduct a blood test after a breath test had
been refused. Without some showing that these comments were
presented to the legislature in a manner that could reasonably
have influenced the legislature's deliberative process, we must
disregard the comments. Ray additionally cites the testimony of
a State Trooper captain to the Judiciary Committee, in which the
captain refers to the problem faced by law enforcement agencies
when an arrested driver refuses the breath test. But while this
may have been one motivation for enacting AS 28.35.035(a), the
question presented in this appeal is whether it was the sole
discernible intent of the statute.
5
[The due process clauses of the Fifth and
Fourteenth Amendments] have their historical origins in
the notion that conditions of personal freedom can be
preserved only when there is some institutional check
on arbitrary government action. The Supreme Court has
analogized due process to the Magna Carta's "guaranties
against the oppressions and usurpations" of the royal
prerogative.
Laurence Tribe, American Constitutional Law (2nd ed. 1988), 10-
7, p. 664, quoting Hurtado v. California, 110 U.S. 516, 531; 4
S.Ct. 111, 119 (1884). Hurtado continues:
Law is something more than mere will exerted as an act
of power. ... Arbitrary power, enforcing its edicts to
the injury of the persons and property of its subjects,
is not law, whether manifested as the decree of a
personal monarch or of an impersonal multitude. ...
[T]he limitations imposed by our constitutional law
upon the action of the governments, both state and
national, are essential to the preservation of public
and private rights, notwithstanding the representative
character of our political institutions.
110 U.S. at 536, 4 S.Ct. at 121.
6 Ray also argues that, even if the warrantless seizure of
his blood is constitutional, the police conducted an unconstitu
tional warrantless search when they tested the blood. This issue
was not raised in the district court; we therefore do not
consider it.
