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THE COURT OF APPEALS OF THE STATE OF ALASKA
DENNIS C. SNYDER, )
) Court of Appeals No. A-4991
Appellant, ) Trial Court No. 4FA-S93-745CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1366 - August 26, 1994]
Appellee. )
________________________________)
Appeal from the District Court, Fourth
Judicial District, Fairbanks, William R.
Smith and Mark I. Wood, Judges.
Appearances: Robert John, 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.
A jury convicted Dennis C. Snyder of driving while
intoxicated (DWI) and refusal to submit to a breath test
(refusal). Acting District Court Judge William R. Smith imposed
consecutive sentences of 120 days with 60 days suspended on each
count. Judge Smith also revoked Snyder's driver's license for
consecutive five-year periods. Snyder appeals his convictions
and sentences. We
affirm Snyder's convictions. We also affirm his sentences,
except with respect to the imposition of consecutive license
revocations and fines.
FACTS
On the night of March 20, 1993, Alaska State Trooper
Sgt. Charles Lovejoy was driving home when he encountered Snyder
in his car, which had apparently slid into the snow berm at an
intersection. Snyder did not appear to have been injured in the
collision and did not complain of pain. He did appear to be
intoxicated. Lovejoy administered some field sobriety tests, all
of which Snyder failed. Lovejoy then placed Snyder under arrest
for DWI.
Alaska State Trooper Dixie Spencer drove Snyder from
the scene of the arrest to the police station. While driving to
the station, Snyder requested a blood test to determine his
alcohol level. At the station, Spencer asked Snyder to take a
breath test by blowing into the Intoximeter machine. Snyder made
four purported attempts to blow into the machine, but, despite
two readings of the implied consent warnings and despite
Spencer's repeated instructions about how to blow into the
machine's tube and how long to sustain his breath, Snyder did not
comply: indeed, on one occasion, it did not appear that Snyder
blew into the tube at all.
After Snyder had made three unsuccessful attempts at
blowing into the tube, Spencer advised him that he could try "one
more time." When the fourth attempt proved unsuccessful, Spencer
told Snyder, "All right, Dennis, we'll just charge you with
refusal." Snyder insisted, "I blowed in the tube. It's your
fault." He claimed, "The machine don't work. . . . I blowed in,
I did everything you asked." He then offered, "I'll blow again,
. . . It's not over, one more time." By then, however, Spencer
had already pressed the print button on the Intoximeter, and a
further test would have required a five-minute delay. Spencer
terminated the session and charged Snyder with DWI and refusal.
After the Intoximeter test was terminated, Snyder again requested
a blood test.
MERITS
1. Denial of Motion to suppress and dismiss
Prior to trial, Snyder moved to suppress and dismiss,
claiming that the state had improperly failed to provide him a
blood test instead of a breath test. On appeal, Snyder
challenges the district court's denial of his motion. Snyder
argues, first, that he had a right to the test of his choice.
This argument is meritless.
Alaska's implied consent statutes plainly indicate the
legislature's selection of breath tests as the preferred method
of determining blood alcohol levels in DWI cases. AS 28.35.031;
AS 28.35.032. Although DWI arrestees may consent to other
testing methods and arresting officers are not barred from
honoring reasonable requests for alternative tests, Anchorage v.
Ray, 854 P.2d 740, 748-49 (Alaska App. 1993), we have recognized
that the legislature "may constitutionally leave the choice of
chemical test to the arresting officer." In short, the Alaska
implied consent statutes do not give DWI arrestees the right to a
test of their choice. Hamilton v. Anchorage, ____ P.2d ____, Op.
No. 1361 (Alaska App., August 5, 1994).
Snyder further argues, however, that, by failing to
honor his requests for a blood test, the police violated their
constitutionally compelled duty to "collect and preserve"
evidence. The general rule, however, is that the state has no
duty to collect evidence; its duty of preservation applies only
to evidence that has actually been gathered. March v. State, 859
P.2d 714, 716 (Alaska App. 1993).
Under the due process clause of the Alaska
Constitution, a limited exception to the general rule applies to
the extent that the state is required to gather and preserve
evidence affording DWI arrestees a reasonable opportunity to
challenge the result of a breath test obtained pursuant to the
implied consent statutes. See Gundersen v. Anchorage, 792 P.2d
673, 676 (Alaska 1990)("Since a defendant must provide the state
with potentially incriminating evidence at the risk of criminal
penalties, we hold that due process requires that the defendant
be given an opportunity to challenge the reliability of that
evidence in the simplest and most effective way possible, that
is, an independent test."). By definition, however, this
exception to the general rule attaches only after an arrestee
submits to a breath test. See Ahtuangaruak v. State, 820 P.2d
310, 310 (Alaska App. 1991) ("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.").
To the extent that any duty to collect evidence of
intoxication might have arisen in this case, that duty was met by
Trooper Spencer's repeated efforts to obtain a breath test from
Snyder. Having deliberately thwarted the state's efforts to
determine his blood alcohol level by means of a breath test,
Snyder cannot now complain that his right to due process was
denied by the state's failure to collect the same evidence by
alternative means. We find no violation of due process here.
Snyder further maintains that the state's failure to
honor his requests for a blood test violated his right to an
independent test of his own choosing, as provided for under AS
28.35.033. Alaska Statute 28.35.033(e) provides:
The person tested may have a
physician, or a qualified technician,
chemist, registered nurse, or other qualified
person of the person's own choosing
administer a chemical test in addition to the
test administered at the direction of a law
enforcement officer. The failure or
inability to obtain an additional test by a
person does not preclude the admission of
evidence relating to the test taken at the
direction of a law enforcement officer; the
fact that the person under arrest sought to
obtain such an additional test, and failed or
was unable to do so, is likewise admissible
in evidence.
(Emphasis added.) The wording of this provision makes it clear
that the statutory right to an independent test of choice arises
after a person has submitted to a breath test. See, e.g., State
v. Zoss, 360 N.W.2d 523 (S.D. 1985); State v. Choate, 667 S.W.2d
111 (Tenn. Cr. App. 1983); see also Ward v. State, 758 P.2d 87
(Alaska 1988).
As Snyder points out, however, there is abundant
authority for the proposition that, regardless of any statutory
entitlement, DWI arrestees have a fundamental right to gather and
present exculpatory evidence; as part of this right, they are
entitled to secure an independent test of their own choosing.
See, e.g., Montano v. Superior Court, 719 P.2d 271, 276 (Ariz.
1986) ("[A] defendant must be allowed to counter the state's
scientific evidence of intoxication, or evidence of refusal, with
the defendant's own scientific evidence.") (citations omitted);
Smith v. Cada, 562 P.2d 390, 392-94 (Ariz. App. 1977); State v.
Swanson, 722 P.2d 1155, 1157 (Mont. 1986) ("[o]ne accused of a
crime involving intoxication has a right to obtain an independent
blood test to establish his sobriety regardless of whether he
submits to a police designated test"). See generally John P.
Ludington, Annotation, Drunk Driving: Motorist's Right to Private
Sobriety Test, 45 A.L.R.4th 11 4, 15 (1986 & Supp. 1993).
These cases, however, impose no obligation on the state
to provide arrestees with independent tests or to assist them in
obtaining such tests. They hold only that the state may not
affirmatively interfere with or thwart an arrestee's efforts to
secure and use independent testing. See State v. Peterson, 739
P.2d 958, 961 (Mont. 1987) ("If a blood test of the defendant is
unavailable through no unreasonable acts of an officer or
officers, the Swanson rule does not apply."); cf. Ward, 758 P.2d
at 90 ("[t]he police in the instant case acted deliberately in
denying a defendant the right to a blood test.").
In the present case, Snyder argues only that the state
violated his right to an independent test by failing to take the
affirmative step of providing him with the blood test he
requested. Snyder does not argue that the troopers in any way
interfered with his ability to secure an independent test of his
own choosing, and the record contains no evidence of
interference. Indeed, there is no evidence whatsoever that
Snyder was actually unable to obtain an independent test. Under
these circumstances, we find no deprivation of the right to an
independent test and conclude that the district court did not err
in denying Snyder's motion to dismiss.
2. Subsequent consent defense
Snyder separately challenges the trial court's refusal
to instruct the jury on the defense of subsequent consent.
Snyder submitted a subsequent consent instruction that followed
the requirements of the subsequent consent defense as set out by
the Alaska Supreme Court in Pruitt v. State, Dep't of Pub.
Safety, 825 P.2d 887, 894 (Alaska 1992). The district court
declined to give the instruction in part because it concluded
that the defense of subsequent consent could apply only in the
case of an "unequivocal," or explicit, refusal to submit to a
test. On appeal, Snyder disputes this ruling. However, we find
no need for a definitive resolution of the issue here.
Assuming that the subsequent consent defense applies in
cases involving both explicit and implicit refusals to take a
breath test, the defendant's right to an instruction on the
defense could be triggered, at a minimum, only by the presence of
some evidence supporting the defense. No right to an instruction
would arise if the evidence at trial, even when viewed in the
light most favorable to the defense, could not conceivably
support a rational verdict of acquittal based on the defense.
See Reeve v. State, 764 P.2d 324, 326 (Alaska App. 1988).
In the present case, Snyder consistently manifested a
willingness to take the required breath test. Before being
charged with refusal, he offered and purportedly attempted to
take the test four separate times; each time, he insisted he was
doing his best; each time, however, he evidently did little or
nothing. When Trooper Spencer terminated the test after the
fourth unsuccessful effort, Snyder repeated his offer to try
again. Yet this offer was neither qualitatively nor
quantitatively different than the offer that Snyder had made
immediately before his fourth unsuccessful effort. Snyder
volunteered to do nothing new or different. Insisting that he had
been doing his best all along, Snyder merely offered to try the
same thing again.
At trial, Snyder actively relied on this line of
defense. Snyder testified that he had never intended to refuse
the breath test and had always been willing to submit to any kind
of test of his breath, blood or urine. He claimed, however, that
he had injured his chest when his car had collided into the snow
berm. According to Snyder, the pain had prevented him from being
able to complete the breath test, although he had tried several
times and had been willing to try again.
Considering the totality of the evidence in the light
most favorable to Snyder, there is simply no rational basis to
support a finding that Snyder's initial offers to take the test
were made in bad faith but that his final offer to take the test
was made in good faith. A juror who harbored a reasonable doubt
as to whether Snyder's final offer to take the test was sincere
could not rationally have concluded beyond a reasonable doubt
that his initial offers were insincere. Conversely, no juror who
thought Snyder's first four offers were insincere could
rationally have found his next offer to have been genuine; such a
finding would have been unsupported by any evidence and would
have been flatly at odds with Snyder's own theory of defense.
While reasonable jurors could certainly have differed
on the issue of whether Snyder did or did not in fact refuse to
take the Intoximeter test, no evidence or combination of evidence
could conceivably have led jurors to conclude that he initially
refused but subsequently consented. Under the circumstances of
this case, a subsequent consent instruction could have been of no
material value to the jury or the defense.
3. Other merit issues
Having reviewed the record, we conclude that Snyder's
remaining claims of error relating to his conviction are
meritless and do not warrant discussion.1
SENTENCING ISSUES
Snyder raises an array of contentions against his
sentence. At sentencing, the court determined that Snyder had
three previous DWI convictions and, for his DWI, sentenced him to
120 days with 60 days suspended, a fine of $1000, and a five-year
driver's license revocation. The court declined to consider
issuing Snyder a limited license until after Snyder had completed
an alcohol treatment program. The court imposed an identical
sentence for refusal, noting that, under AS 28.35.032(g)(4), the
sentence was required to be consecutive.
1. Consecutive imposition of mandatory minimums
Snyder contends on appeal that AS 28.35.030(b)(2)(A)
(dealing with DWI) and AS 28.35.032(g)(2)(A) (dealing with
refusal) -- which provide that the court may not "suspend
execution of . . . sentence . . . except on condition that the
person serve the minimum imprisonment" -- require only that he
serve the mandatory minimum term on either of his two charges; in
other words, Snyder argues that these provisions allowed the
court in his case to suspend the execution of the entire
mandatory minimum jail term for either of his offenses, as long
as it imposed the mandatory minimum on the other. This argument
is unpersuasive. Because each of Snyder's offenses carried a
mandatory minimum sentence, and because the imposition of
consecutive jail terms was statutorily required, the sentencing
court properly determined that Snyder was required to serve the
mandatory minimum terms separately.
Nevertheless, it appears from the record that the
sentencing court may have believed that consecutive imposition of
mandatory minimum fines and license revocations was also
required. To this extent, the court erred. See Curtis v. State,
831 P.2d 359 (Alaska App. 1992) (construing former AS
28.35.030(c), which was similar in pertinent part to AS
28.35.032(g), to apply only to jail time). Accordingly, we
conclude that a remand will be necessary to allow the district
court to reconsider Snyder's consecutive license revocations and
fines in light of Curtis.
2. Constitutionality of license revocations
Snyder contends that revoking his driver's license is
unconstitutional as an excessive fine or a cruel and unusual
punishment, as a violation of the substantive due process, equal
protection, and taking of property clauses, and as a violation of
his state constitutional right to rehabilitation. Snyder's
argument is that it is irrational and counterproductive for the
legislature to authorize or mandate total suspension of a
driver's license because issuing a limited driver's license with
work-related driving privileges will suffice to protect the
public from drunken drivers. We find Snyder's arguments
meritless. See State v. Guarderas, 589 P.2d 870, 872-73 (Alaska
1979); McNabb v. State, 860 P.2d 1294, 1298 (Alaska App. 1993);
Burnor v. State, 829 P.2d 837, 840 (Alaska App. 1992); Resecker
v. State, 721 P.2d 650, 654 (Alaska App. 1986); Dancer v. State,
715 P.2d 1174, 1179-81 (Alaska App. 1986).2
3. Reliance on no contest plea
Snyder also contends that it was improper to enhance
his mandatory minimum sentences based on his two prior
convictions for DWI, because those convictions resulted from
pleas of no contest. Snyder relies on Miller v. State, 617 P.2d
516 (Alaska 1980), in which the supreme court upheld the
defendant's right to plead nolo contendere without admitting a
factual basis for a finding of guilt and despite a continued
claim of innocence. Miller, however, stands only for the
proposition that a plea of nolo contendere does not amount to an
express admission of guilt. Significantly, the Miller court
cited with approval its earlier decision in Lowell v. State, 574
P.2d 1281, 1284 (Alaska 1978); there the court had stated "that
the only forbidden consequence of a nolo plea is its use as an
admission in a civil action, and that all other uses of the
conviction are permissible as if the plea were of guilty, not
nolo." Id. at 1285.
Lowell is dispositive of Snyder's argument. In
sentencing Snyder as a fourth DWI offender, the court did not
purport to find that he had admitted previous incidents of DWI;
rather, it relied on the fact that he had previously been
convicted of the offense.
4. Remaining sentencing issues
Snyder's remaining sentencing arguments lack merit and
require no discussion.3 Having independently reviewed the
entire sentencing record, we conclude that the sentence imposed
below was not clearly mistaken. McClain v. State, 519 P.2d 811,
813-14 (Alaska 1974).
CONCLUSION
The convictions are AFFIRMED. The sentences are
AFFIRMED in all respects other than the consecutive imposition of
fines and license revocations. This case is REMANDED for
reconsideration of the consecutive fines and license revocations
in light of Curtis v. State, 831 P.2d 359 (Alaska App. 1992).
_______________________________
1. Snyder argues: that the evidence at trial was
insufficient to support his conviction for refusal and that the
trial court therefore erred in rejecting his motion for judgment
of acquittal; that the trial court erred in refusing proposed
instructions dealing with the elements of refusal, imposing a
presumption against the state for failing to provide an
independent blood test, and informing the jury that the police
are authorized to provide blood tests to consenting arrestees;
and that the trial court erred in failing to grant a challenge
for cause against juror Jill Meath or to allow additional
peremptory challenges.
2. We recently held that in an appropriately serious DWI
case, a lifetime revocation of a driver's license is not cruel
and unusual punishment. See Dodge v. Anchorage, ____ P.2d ____,
Op. No. 1355 (Alaska App., July 8, 1994).
3. These contentions are: that it is unconstitutional to
consider prior DWI convictions as prior convictions for the
purpose of enhancing the minimum sentence for refusal; that it
violates double jeopardy to both suspend Snyder's driver's
license administratively and punish Snyder criminally for his
single act of refusal; and that "the trial court's written
statement is inconsistent with its oral sentencing order
concerning the license revocations."
