Hamilton v. Municipality of Anchorage (8/5/94) ap-1361
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
GREGG HAMILTON, )
) Court of Appeals No. A-4913
Appellant, ) Trial Court No. 3AN-92-1289
Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1361 - August 5, 1994]
________________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Michael B. Logue, Gorton &
Associates, Anchorage, for Appellant. Tracy
Gellert, Assistant Municipal Prosecutor, and
Richard L. McVeigh, Municipal Attorney,
Anchorage, for Appellee.
Before: Bryner, Chief Judge,
Mannheimer, Judge, and Andrews, Superior
Court Judge.* [Coats, Judge, not participat
ing.]
MANNHEIMER, Judge.
Gregg Hamilton appeals his conviction under Anchorage
Municipal Code 9.28.022 for refusing to submit to a breath test
after he was arrested for driving while intoxicated. Hamilton
argues that his refusal to take a breath test should be excused
because he volunteered to take a blood test.
The parties agree concerning the facts of the case.
Anchorage Police Officer Patrick Rider arrested Hamilton for
driving while intoxicated and transported him to the police
station. At the station, Rider asked Hamilton to submit to a
chemical test of his breath on the Intoximeter 3000 machine.
While Rider repeatedly instructed Hamilton on how to blow a
sample of breath into the machine, Hamilton made three or four
purported attempts to take the breath test. Each time, Hamilton
failed to blow a sufficient volume of air into the Intoximeter to
conduct the test.
When Rider accused Hamilton of attempting to avoid the
test, Hamilton protested that he was making good-faith efforts to
take the breath test - that his inability to blow into the
machine was attributable to the fact that he had had half of a
lung surgically removed. Despite Hamilton's explanation, Rider
suspected that he was being "hoodwinked" and that Hamilton's
ostensible attempts to take the breath test were not sincere.
When Rider observed Hamilton's attempts closely, he saw that
Hamilton was blowing around the tube instead of directly into it;
on one occasion, it appeared to Rider that Hamilton was not
blowing at all. After Hamilton had blown into the machine a
total of nine times over a period of forty-five minutes without
success, Rider announced that he was charging Hamilton with the
crime of refusal.
Hamilton was charged both with driving while
intoxicated and refusing to take the breath test. Before trial,
Hamilton asked the district court to dismiss both charges; he
argued that he had been denied due process of law (specifically,
the right to gather or preserve exculpatory evidence) when Rider
refused to transport him to the hospital for a blood test.
District Court Judge Michael L. Wolverton granted Hamilton's
motion with respect to the driving while intoxicated charge.1
However, Judge Wolverton declined to dismiss the breath test
refusal charge.
Hamilton went to trial on the refusal charge. The jury
convicted him, finding beyond a reasonable doubt that Hamilton
had had the physical ability to take the breath test and that his
purported attempts to take the test had been in bad faith.
On appeal, Hamilton renews his argument that the
district court should have dismissed the refusal charge.
Hamilton points out that the legislature's main motive in
enacting the breath test refusal statute was to convince arrested
motorists to supply the government with physical evidence of the
amount of alcohol in their blood stream. Hamilton contends that,
even though he willfully refused to take the breath test, the
government could have obtained the physical evidence it sought by
accepting Hamilton's offer to submit to a blood test. Thus,
Hamilton concludes, his offer to take a blood test cured his
refusal to take the breath test, and the district court should
have dismissed the charge.
Anchorage Municipal Code 9.28.021-A and its state
counterpart, AS 28.35.031(a), commonly known as "implied consent"
statutes, both declare that a motorist arrested for driving while
intoxicated "shall be considered to have given consent to a
chemical test or tests of his or her breath for the purpose of
determining the alcoholic content of his or her blood or breath".
(The state statute uses "person's" for "his or her".) Under
Anchorage Municipal Code 9.28.022-C and its state counterpart,
AS 28.35.032(f), a motorist who refuses to submit to this
prescribed breath test commits a crime. Both laws declare that
an arrested motorist is guilty of a misdemeanor if he or she
refuses "to submit to the chemical test of breath" authorized by
the corresponding implied consent statute.
Thus, the municipal ordinances defining Hamilton's
offense clearly specify that Hamilton was obliged to take a
breath test (as opposed to some other form of chemical test). It
was Hamilton's refusal to submit to the statutorily specified
breath test that formed the basis of his conviction.
In his brief to this court, Hamilton argues that it is
fundamentally unfair to ask a motorist with impaired lung
function to take a breath test, then prosecute him for failing to
provide a breath sample that was beyond his physical capacity,
when all the while the motorist was freely volunteering to take a
blood test. This argument has considerable force, but it does
not speak to the facts of Hamilton's case. The jury found
Hamilton guilty of refusing to take the breath test. That is,
the jury found (beyond a reasonable doubt) that Hamilton's
claimed inability to take the breath test was subterfuge: that
Hamilton did in fact have the physical capacity to take the test,
and that his purported attempts to blow air into the machine
failed because he was not making a good faith effort.2
In light of the jury's verdict (which Hamilton does not
challenge), Hamilton's argument reduces to the claim that the due
process clause forbids the legislature from requiring motorists
to submit to any particular form of chemical testing. That is,
Hamilton concedes that the legislature can make arrested
motorists submit to a chemical test, but he contends that the
motorists retain the ultimate power to decide what test that will
be.
We rejected an analogous argument in Anchorage v. Ray,
854 P.2d 740 (Alaska App. 1993). In Ray, the defendant was
arrested after he injured a pedestrian while driving in a state
of intoxication. Over Ray's protests, the police took him to a
hospital for a blood test. Ray argued that the police were
required to seek his consent to a breath test first, and that the
police could not proceed with a blood test unless and until he
refused a breath test. We concluded that the governing statute
permitted the police to conduct a blood test regardless of a
motorist's wish to take another test:
The legislature may, as a matter of policy,
order one test given in preference to the
other. AS 28.35.032(a) establishes a pre
ference 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, 854 P.2d at 750.
Hamilton's case presents the converse situation: an
arrested motorist's ostensible offer to take a test that would be
more physically intrusive than the breath test mandated by law.
The controlling legal principle is, however, the same: the
legislature (or, here, the municipal assembly) is empowered to
specify the chemical test motorists must take; the due process
clause does not confer on motorists the right to control or
dictate the form of chemical testing. This is the apparently
unanimous view of the courts that have considered similar
challenges.
In McGuire v. Jackson County Prosecuting Attorney, 548
S.W.2d 272 (Mo. App. 1977), the arrested motorist refused the
statutorily required breath test but offered to take a blood
test. When his license was revoked because he had refused the
breath test, he argued that he had been denied due process,
since he had been willing to take another form of test. The
court disagreed:
[C]hemical tests other than the breathalizer
may be taken by [the motorist] to use as a
cross-check against the breath test. But a
person has no right to insist on an officer
procuring any test other than the breath
test. Once a person has refused to take the
breath test, the offer to take any other test
can have no bearing on the revocation of [the
person's] license.
McGuire, 548 S.W.2d at 276. Accord, Smith v. State Registrar of
Motor Vehicles, 318 N.E.2d 431 (Ohio App. 1974).
Other courts agree that, under implied consent laws
similar to Alaska's, an arrested motorist does not have the right
to insist on other forms of chemical testing until he or she has
first complied with the statutory duty to submit to a breath
test. See Greenwood v. Department of Motor Vehicles, 536 P.2d
644 (Wash. App. 1975); Hill v. Otte, 281 N.E.2d 811 (Ind. 1972).
See also Litts v. Melton, 395 N.Y.S.2d 264 (N.Y. App. 1977) (an
arrested driver "cannot impose or dictate the conditions or the
manner in which [the chemical] test shall be administered").
And, in general, see Debra T. Landis, Annotation, "Request for
Prior Administration of Additional Test as Constituting Refusal
to Submit to Chemical Sobriety Test under Implied Consent Law",
98 A.L.R.3d 572 (1980 & 1993 Supp.).
Hamilton urges that the government has no real interest
in the form of chemical test, since the result of a blood test
would assumedly be just as valid as the result of a breath test.
However, the government does have an interest in the orderly and
expeditious processing of DWI arrestees, in discouraging undue
delay in testing an arrested motorist's body for alcohol content,
and in having arresting police officers return as quickly as
possible to their patrol duties. These interests are advanced by
having motorists submit to breath tests at the police station
rather than demanding transport to a medical facility for a blood
test. While such governmental interests may not be "compelling",
they need not be. No fundamental interest of the motorist is at
stake; the motorist has no fundamental right to choose the form
of the chemical test. Anchorage v. Ray, 854 P.2d at 749.
The judgement of the district court is AFFIRMED.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 The correctness of this ruling is not before us.
2 The jury was instructed that, to find Hamilton guilty of
refusing to submit to a breath test, they had to be convinced
that Hamilton "did knowingly refuse to submit to a chemical
test". Hamilton does not claim that the instructions allowed the
jury to convict him of an involuntary "refusal" to take the
breath test (to find him guilty even though they believed he made
good-faith efforts to take the breath test).
