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Bushnell v. State (7/21/00) ap-1682
Bushnell v. State (7/21/00) ap-1682
NOTICE: The text of this opinion can be corrected before the opinion is published in
the Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALBERT STEVEN BUSHNELL, )
) Court of Appeals No. A-6944
Appellant, ) Trial Court No. 3AN-S97-5561 Cr
)
v. ) )
STATE OF ALASKA, ) O P I N I O N
)
Appellee. ) [No. 1682 - July 21, 2000]
)
Appeal from the Superior Court, Third Judicial District,
Anchorage, William H. Fuld, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and
Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Kenneth M. Rosenstein and Ben M. Herren, Assistant Attorneys
General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, dissenting.
Following a jury trial, Albert Steven Bushnell was convicted of felony
driving while intoxicated (DWI).1 During the trial, the state admitted evidence of his
breath test which indicated that his breath alcohol content (BAC) was .109 percent.
Alaska Statute 28.40.060 provides that:
Except for an offense under AS 28.35.280, if an
offense described under this title requires that a
chemical test of a person's breath produce a
particular result, and the chemical test is
administered by a properly calibrated instrument
approved by the Department of Public Safety, the
result described by statute is not affected by the
instrument's working tolerance.
Bushnell argues that AS 28.40.060 violates his due process rights because it
allows the Department of Public Safety to approve any instrument, even one which is
very inaccurate, to establish his level of intoxication. We conclude, however, that the
legislature passed AS 28.40.060 with an awareness of the working tolerance of the
Intoximeter 3000, a testing instrument that the Department of Public Safety has used for
many years and which has a working tolerance of .01 percent. Accordingly, we conclude
that AS 28.40.060 does not violate Bushnell's due process rights.
Facts and proceedings.
Bushnell's DWI offense was the result of events that took place on July 18,
1997. An argument occurred while Bushnell was drinking with Tina Gratias and Esther
Schermerhorn at Gratias' apartment. Eventually, Bushnell was asked to leave. When he
would not, Gratias threatened to call the police. After Bushnell tore one of the
apartment's telephones off of the wall, Gratias went to a neighbor's apartment and called
the police. Bushnell then left the apartment. Before leaving the area, however, he broke
the windshield of Gratias' vehicle. After breaking the windshield, Bushnell rode away on
a bicycle.
He soon returned, however, and a neighbor saw him driving a car in the
area. The police then arrived, and soon found Bushnell walking in the area. He fled into
some nearby woods, but - after a short time - was apprehended.
The arresting officers, Rodney Ryan and Scott Nissen, testified that they
saw signs that Bushnell was intoxicated - his eyes were bloodshot and watery, and he
had a moderate to strong odor of alcohol. Although Bushnell initially would not consent
to field sobriety tests, Nissen persuaded Bushnell to submit to the horizontal gaze
nystagmus (HGN) test. According to Nissen, the HGN showed that Bushnell was under
the influence of alcohol. Bushnell was then turned over to Officer Daniel Nix, who took
custody of Bushnell and then administered an Intoximeter test.
Discussion
Does AS 28.40.060 violate Bushnell's state and federal rights to due
process?
We start our analysis with Haynes v. State, Dep't of Public Safety,2 an
administrative license revocation case which involved a claim similar to Bushnell's. In
Haynes, the Intoximeter test results showed that Haynes' BAC was .106 percent. In
challenging the administrative revocation of his license, Haynes claimed that in light of
the Intoximeter's inherent error of .01 percent, his actual BAC was somewhere between
.096 and .116 percent. He argued that the test result was therefore insufficient to satisfy
the burden of proof necessary to impose the license revocation. The supreme court
ultimately held that the margin of error must be applied in Haynes' favor. In doing so, the
court found that:
There is no indication that the legislature considered the .01
margin of error inherent to the Intoximeter 3000 in setting the
legal limit at .10 grams per 210 liters of the person's breath.
Therefore, we do not interpret AS 28.35.030(a)(2) as creating
an offense for violation of the statutory .10 grams per 210
liters of breath, without regard to the margin of error inherent
to the particular testing device utilized. In Alaska, a driver
commits a DWI offense when his or her actual alcohol level
exceeds .10 grams per 210 liters of breath.3
In reaching its conclusion, the Haynes court reiterated its decision in Barcott
v. State, Dep't of Public Safety,4 where it had also held that because there was "no
evidence or indication" that the legislature had considered the Intoximeter's inherent
margin of error, then the margin of error must be considered by the fact finder.5 But the
Haynes court also indicated that the legislature had the power to base the offense of DWI
on a particular test result, and that a margin of error that it considered "tolerably
inaccurate" could be disregarded.6
Following Haynes, the legislature enacted AS 28.40.060. When enacting
AS 28.40.060, the legislature not only had the Haynes decision for guidance, it also had
the Intoximeter's long history of use in this state. The Intoximeter 3000 first appeared in
reported Alaska case law in 1984;7 the Intoximeter's working tolerance (or margin of
error) of .01 percent is likewise well-known, and was first acknowledged in our reported
cases in 1986.8 With this long-standing historical framework as a backdrop, it is clear
that when the legislature responded to Haynes with AS 28.40.060, it did so knowing that
the Intoximeter 3000 was the testing instrument at issue, and that its working tolerance
was .01 percent. Based on this historical framework, we conclude that the legislature, by
responding to Haynes with AS 28.40.060, implicitly found that a working tolerance of .01
percent of a properly calibrated instrument was "tolerably inaccurate."
Additionally, we recently recognized in Mangiapane v. Anchorage that
"[t]he Alaska Legislature reacted to the Haynes decision by enacting AS 28.040.060."9
We said that the practical effect of AS 28.40.060 was to modify the definition of driving
while intoxicated under AS 28.35.030(a)(2). We held that AS 28.40.060 rejected the
interpretation from Haynes that "the State had to prove, by means of a chemical test, that
the driver's blood actually contained at least .10 percent alcohol by weight, or that the
person's breath actually contained at least .10 grams of alcohol per 210 liters."10 We
stated:
AS 28.40.060 effectively declares that a driver violates
AS 28.35.030(a)(2) if, within four hours of driving, the
driver is tested on a properly calibrated, properly
functioning Intoximeter and the driver's test result is at
least .10 percent blood-alcohol or the equivalent .10
grams of alcohol per 210 liters of breath. The fact that
the driver's true blood-alcohol or breath-alcohol level
may be slightly lower (due to the Intoximeter's
acknowledged margin of error) is no longer relevant to
the driver's guilt under AS 28.35.030(a)(2).11
We concluded that the defendant in Mangiapane was not entitled to the jury instruction
he sought - that the working tolerance be applied in his favor - because the "margin of
error (the machine's 'working tolerance') had no relevance to the jury's decision."12
Although Bushnell argues that AS 28.40.060 - by not specifying the
Intoximeter (or any other instrument) - creates the potential for a varying statutory blood
alcohol level, nothing in the history of DWI enforcement in Alaska, nor in the Haynes
decision, supports this argument. There is no indication that the legislature intended to
create a statutory blood alcohol level that varied depending upon the instrument used by
the state, nor is there any indication that the legislature intended to use this statute to
delegate to the Department of Public Safety the authority to set the statutory blood
alcohol level for DWI in Alaska.
If the Department of Public Safety approved a less accurate testing
instrument without an express legislative finding it might create the due process problem
Bushnell raises in this appeal. It seems unlikely, however, that the state would begin
using a less accurate testing instrument.13 Since such a scenario seems unlikely, we see
no reason to resolve it at this time.
In light of the history of the Intoximeter and its established working
tolerance, the discussion in Haynes, and the language of AS 28.40.060, it seems clear to
us that the legislature implicitly decided that a .01 percent working tolerance was
"tolerably inaccurate," and, therefore, irrelevant to the driver's guilt under AS
28.35.030(a)(2).14 Accordingly, we conclude that AS 28.40.060 does not violate
Bushnell's state or federal due process rights.
Does AS 28.40.060 violate Bushnell's state and federal rights to equal
protection?
Bushnell next contends that AS 28.40.060 violates the state and the federal
equal protection clauses because it exempts those aged 14 to 21 who are charged under
another statute. Bushnell asserts that it is unfair that a testing instrument's working
tolerance is relevant in cases where minors are charged with operating a vehicle after
consuming alcohol, but not in cases where adults are charged with DWI.
Alaska Statute 28.40.060 does create an exception for minors who, under
AS 28.35.280, are charged with operating or driving a motor vehicle after having
consumed any quantity of alcohol. The offense under AS 28.35.280, however, is
essentially a much more restrictive version of the DWI offense Bushnell was charged
with. Under AS 28.35.280, minors commit an offense if they operate a motor vehicle
after consuming any alcohol. Therefore, Bushnell has no basis to contend that minors are
treated more favorably because minors are in fact subject to a stricter law. Accordingly,
we conclude that there is no equal protection violation.
Should the jury have been instructed that the Intoximeter's margin of error
must be applied in Bushnell's favor?
Relying on Haynes, Bushnell's final claim is that the jury should have been
instructed to apply the Intoximeter's margin of error in his favor. In light of our holding,
however, Bushnell was not entitled to this instruction.15
Conclusion
The conviction is AFFIRMED.
MANNHEIMER, Judge, dissenting.
Somewhere among the offices and cubicles of the State Trooper Crime
Detection Laboratory can be found a state official known as the "scientific director of the
breath and blood alcohol testing program". Alaska law - specifically, 13 AAC
63.010(a) - directs the Commissioner of Public Safety to appoint the scientific director
from among the employees of the Crime Lab, but the precise identity of this official is not
easily discoverable: the "Department of Public Safety" section of the Alaska Directory of
State Officials contains no listing for the "scientific director of the breath and blood
alcohol testing program".1
Despite the scientific director's relative anonymity, this official wields
considerable power over the motorists of this state. The Alaska Legislature has enacted a
statute, AS 28.40.060, that in effect authorizes the scientific director to set the amount of
blood alcohol that will make a motorist guilty of driving while intoxicated. The
legislature has failed to establish any criteria or policies to guide the scientific director's
decision; the scientific director's discretion in this matter is completely unfettered and
apparently unreviewable.
Our constitution forbids the legislature from giving administrators
"unguided and uncontrolled discretionary power to govern as they see fit."2 Because AS
28.40.060 gives an executive branch official sole and unfettered discretion to define the
amount of blood alcohol that constitutes the crime of driving while intoxicated, I conclude
that this statute is an unconstitutional delegation of legislative authority.
The Alaska Legislature charges the Department of Public Safety with evaluating
and approving breath-test machines. This authority is delegated to the scientific
director, who has complete discretion in this matter.
Under AS 28.35.030(a)(2), a person commits the crime of driving
while intoxicated if they operate a motor vehicle and if, within the next four hours,
a chemical test of their breath or blood shows that their blood alcohol level is
.10 percent or higher (or the equivalent .10 grams of alcohol per 210 liters of
breath). Motorists' blood alcohol level is most often determined by using a
machine to test a sample of their breath.3
Originally, the Department of Health and Social Services was in
charge of selecting the breath-test machines that would be approved for use by
Alaska law enforcement agencies.4 This function has now been transferred to the
Department of Public Safety.5
The Alaska Legislature has not placed any restrictions or conditions
on the Department of Public Safety's authority to designate the approved breath-
test machine or machines. The legislature has simply stated that, in order for a
chemical analysis of a person's breath to be considered valid, "the chemical
analysis ... shall have been performed according to methods approved by the
Department of Public Safety."6
As already explained, the Department of Public Safety has enacted a
regulation, 13 AAC 63.010, that calls for the Commissioner to appoint a "scientific
director of the breath and blood alcohol testing program" from among the
employees of the Crime Lab. Pursuant to this regulation, the scientific director is
"responsible for all aspects of the statewide breath and blood alcohol testing
program, including the certification of breath test instruments".7
As 13 AAC 63.020 explicitly states, the scientific director is in
charge of evaluating and approving breath-test machines:
Breath test instruments approved for analysis. The
scientific director must approve a type of breath test
instrument for use in ascertaining the alcohol content of a
breath sample by chemical analysis of the breath. The
scientific director will maintain a list of the individual
instruments of this type which have been certified under 13
AAC 63.100 as operating within acceptable limits established
by the scientific director.
No statute or regulation restricts or guides the
scientific director's choice of breath-test machine(s). Most
importantly, 13 AAC 63.020 gives the scientific director carte
blanche to establish the "acceptable [operating] limits" of
these machines - that is, their acceptable working tolerances
or margins of error.
The Alaska Supreme Court and the Alaska Legislature debate
whether a breath-test machine's margin of error should be weighed
in favor of the defendant or in favor of the government. The
legislature resolves this debate by enacting AS 28.40.060. This
statute declares that, so long as the breath-test machine is properly
calibrated (in accordance with the standards set by the scientific
director), the government receives the benefit of the machine's
margin of error.
The Intoximeter 3000 is a breath-test machine currently
approved for use in Alaska. Its recognized margin of error is .01
grams of alcohol per 210 liters of breath. Expressed in terms of
blood alcohol, this margin of error translates to .01 percent.8 Thus,
when the Intoximeter 3000 yields a test result of .10 percent blood
alcohol, the motorist's true blood alcohol content might be as high as
.11 percent or as low as .09 percent.
As explained above, AS 28.35.030(a)(2) states that a
motorist is guilty of driving while intoxicated if, within four hours of
driving, a chemical test shows that their blood alcohol level is .10
percent or higher. A sibling provision, AS 28.15.165(c), requires the
Department of Public Safety to suspend or revoke a person's driver's
license "if a chemical test [administered in connection with a DWI
arrest] produced a result described in AS 28.35.030(a)(2)" - that is,
a result of .10 percent blood alcohol or higher.
In Haynes v. Dept. of Public Safety9, the supreme court
was asked to decide whether this license-revocation statute required
proof that the test result was .10 percent or higher, or (alternatively)
required proof that the motorist's actual blood alcohol level was .10
percent or higher. The court ruled that the statute required the
government to prove the defendant's actual blood alcohol level, and
thus the defendant was entitled to the benefit of the machine's
margin of error.10
The supreme court conceded that the legislature "has
the power to require the revocation of a driver's license on the basis
of a particular test result or reading, despite [the testing machine's]
margin of error, [if] the legislature expressly considers that margin
[of error] and deems it sufficiently negligible ... that it may be
disregarded."11 But the court concluded that "there was no evidence
or indication that the Alaska Legislature considered the margin of
error inherent to the Intoximeter 3000."12 The court noted that
[t]he legislature did not specifically approve the Department's
use of the Intoximeter 3000 ... , but rather [generally]
authorized the Department to approve satisfactory [testing]
techniques, methods, and standards[.] There is no indication
that the legislature considered the .01 [percent] margin of
error inherent to the Intoximeter 3000 in setting the legal limit
... .
Haynes, 865 P.2d at 755-56 (citations omitted). Because the
legislature did not expressly recognize the Intoximeter 3000's
margin of error and expressly declare their intent that this
margin of error should be disregarded, the supreme court held
that "failure to apply the inherent margin of error of a
particular testing device in favor of the person subject to
license revocation violates [the] due process [clause of] the
Alaska Constitution."13
The Haynes opinion was issued on December
30, 1993. Two and a half years later, toward the end of the
1996 legislative session, the legislature responded to Haynes
by enacting AS 28.40.060.14 Under this statute,
if an offense described [in Title 28] requires that a chemical
test of a person's breath produce a particular result, and [if]
the chemical test is administered by a properly calibrated
instrument approved by the Department of Public Safety, the
result described by statute is not affected by the instrument's
working tolerance.
As this court recognized in Mangiapane v.
Anchorage15, the practical effect of this statute was to modify
the definition of driving while intoxicated under
AS 28.35.030(a)(2). Haynes had effectively interpreted the
DWI statute to require proof that a motorist's blood actually
contained at least .10 percent alcohol. By enacting
AS 28.40.060, the legislature rejected this interpretation of the
offense and declared that the test result was the determinative
fact. An arrested motorist who tested at .10 percent or higher
would be guilty of DWI under AS 28.35.030(a)(2) even
though the motorist's true blood-alcohol or breath-alcohol
level might be lower than the prescribed statutory limit (due
to the Intoximeter 3000's acknowledged margin of error).
This margin of error was no longer relevant to the driver's
guilt under AS 28.35.030(a)(2).16
In effect, AS 28.40.060 declares that the
government shall receive the benefit of a breath-test
machine's margin of error. If the machine's margin of error is
.01 percent, then some drivers will be convicted of DWI even
though their actual blood alcohol level is as low as .09 per-
cent. If the machine's margin of error is .02 percent, then
some drivers will be convicted of DWI even though their
actual blood alcohol level is as low as .08 percent.
Expressing this rule in general terms: as the working
tolerance (i.e., the margin of error) of the approved breath-test
machine becomes greater and greater, the amount of actual
blood alcohol necessary to convict a driver of DWI becomes
less and less.
The scientific director of the Department of Public Safety's breath
and blood alcohol testing program has unfettered discretion in
selecting the breath-test machines that will be used in Alaska. Now
that the legislature has enacted AS 28.40.060, this power of selection
amounts to the power to define the level of blood alcohol needed to
prove the crime of driving while intoxicated under
AS 28.35.030(a)(2). The Alaska Constitution forbids the legislature
from granting executive branch officers unfettered discretion to
define criminal offenses. Thus, AS 28.40.060 is unconstitutional.
Under Alaska law, the scientific director has complete
discretion to select the breath-test machines that will be used by
Alaska law enforcement agencies. Currently, the scientific director
has designated the Intoximeter 3000 as the breath-test machine
approved for use in Alaska. The Intoximeter 3000's blood alcohol
reading can be wrong by as much as .01 percent. Because the
legislature has now declared that a motorist's guilt of DWI hinges on
the test result, not the motorist's actual blood alcohol content,
defendants with blood alcohol levels as low as .09 percent will be
convicted of DWI.
This result, in itself, is not a problem. The legislature
has the authority to define DWI as driving with a blood alcohol level
of .09 percent - or .08 percent, or .05 percent, if they choose.
Moreover, even though the definition of crimes is
normally considered a legislative function, the legislature can
authorize a regulatory agency to define crimes arising from acts and
omissions within that agency's field of regulation. For example, the
legislature has delegated this type of power to the Board of Fisheries
and the Board of Game. The legislature could conceivably authorize
the Department of Public Safety to evaluate the impairing effects of
alcohol consumption and then enact a regulation defining the
maximum blood alcohol level that drivers may have before they
become guilty of DWI.
But when the legislature delegates power, it must
establish criteria for the exercise of that power. "Administrators
should not have unguided and uncontrolled discretionary power to
govern as they see fit."17
The essential inquiry is whether the [legislature has provided
specific] guidance [which] sufficiently marks the field within
which the administrator is to act[,] so that it may be known
whether [the administrator] has kept within [these bounds] in
compliance with the legislative will. This question involves a
sliding-scale analysis: [as] the scope [of the delegated
authority] increases[,] the standards [governing this delegated
authority] must be correspondingly more precise.
Municipality of Anchorage v. Anchorage Police Dept.
Employees Assn., 839 P.2d at 1085.18
For example, in State v. Fairbanks North Star
Borough19, the Alaska Supreme Court struck down a statute
that granted the governor the authority to withhold money
appropriated to state agencies if, at any time during the fiscal
year, the governor determined that the State's revenues would
be insufficient to generate the budgeted appropriation. This
statute was unconstitutional, the court concluded, because the
legislature had "articulated no principles ... to guide the
[governor] ... . Most importantly, the executive [was]
provided with no policy guidance as to how the cuts should be
distributed."20
The authority granted to the scientific director of
the breath and blood alcohol testing program is similarly
open-ended. The legislature has directed the Department to
approve one or more breath-test machines for use in Alaska,
but the legislature has given the Department no criteria for
making its selections. If the company that manufactures the
Intoximeter 3000 were to decide that they could make more
money if they used cheaper parts, lowered the price of the
machine, and raised its working tolerance to .025 percent, the
scientific director would have complete discretion to continue
to certify this revised Intoximeter 3000 as the breath-test
machine for Alaska. Similarly, the scientific director has
complete discretion to decide that the Intoximeter 3000 is too
expensive and that it should be scrapped in favor of a cheaper
machine with a greater margin of error. Some people might
think this decision ill-advised, but no provision of the Alaska
Statutes limits the scientific director's discretion. He or she
enjoys complete liberty to decide that budgetary constraints
make cheaper, less accurate machines more appropriate.
In fact, the scientific director's decision to
abandon the Intoximeter 3000, (or to certify the hypothetical
new and cheaper version) would not have to be based on
budgetary concerns - or any other articulable concerns.
There are no criteria governing the scientific director's choice,
other than criteria set by the scientific director himself.
AS 28.40.060 does not prescribe any particular type of breath-
test machine, it does not prescribe any upper limit on a breath-
test machine's margin of error, and it does not establish any
criteria for selecting a machine or for assessing whether a
margin of error is reasonable or acceptable. Thus, the
scientific director has unfettered discretion to determine the
range of blood alcohol levels that can be prosecuted under the
DWI statute.
Before the enactment of AS 28.40.060, the lack
of constraints on the scientific director's discretion might not
have posed as severe a problem. But following the enactment
of AS 28.40.060, a person's guilt of DWI hinges on the
breath-test result, and the legislature has announced its before-
the-fact ratification of all test results produced by any
machine approved by the scientific director. Thus, the
scientific director has the sole discretion to determine the
amount of acceptable error in breath-testing. And through
this choice, the scientific director establishes (for all practical
purposes) the amount of blood alcohol that suffices to prove
the crime of driving while intoxicated.
It is true that regulatory agencies (such as the
Boards of Fisheries and Game and the Department of Public
Safety) have been delegated the authority to enact regulations
that define criminal offenses. But their regulations must be
enacted in conformity with the Administrative Procedure Act,
AS 44.62. This Act requires agencies to notify the public of
all proposed regulations (and proposed repeals of regulations),
to allow the public to comment on the agency's proposed
action, and to keep a record of this public comment.21
Following the adoption or repeal of a regulation, the agency is
required to file a copy of its action with the lieutenant
governor22, and the lieutenant governor has a duty both to
apprise the legislature of the agency's action23 and to codify
and publish all regulations so that they are available to the
public.24 In addition, the legislature has the authority to annul
any regulation by concurrent resolution.25 None of these
procedural protections apply to the scientific director's
approval of a breath-test machine.
For these reasons, I conclude that AS 28.40.060
constitutes an unlawful delegation of legislative power to the
scientific director.
The majority's arguments in favor of the statute
The majority offers two rationales for upholding the
statute. The majority suggests that the statute can be construed
narrowly so as to limit the scientific director's discretion.
Alternatively, the majority suggests that, even if the statute can not
be construed narrowly, we need not strike it down because, so far, it
has caused no problems.
First, the majority points out that the legislature enacted
AS 28.40.060 in response to the supreme court's decision in Haynes
v. Dept. of Public Safety. Haynes discusses one specific breath-test
machine (the Intoximeter 3000) having an identified margin of error
(.01 percent blood alcohol). From this, the majority infers that the
legislature intended AS 28.40.060 to grant only limited authority to
the scientific director.
According to the majority, AS 28.40.060 does not ratify
the scientific director's future choices of breath-test machines, but
only the scientific director's current choice (the Intoximeter 3000).
In the alternative, the majority suggests that even if the statute was
intended to ratify the scientific director's future choices, the statute
nevertheless implicitly requires the scientific director to select
machines whose margin of error is no more than .10 percent blood
alcohol.
I am unconvinced by the majority's construction of the
statute. True, AS 28.40.060 was enacted in response to Haynes. But
this begs the real question: how exactly did the legislature respond?
In Haynes, the supreme court explicitly suggested how
the legislature might change the law (and thus the Haynes result):
the court told the legislature that they could achieve the result they
wanted by enacting a statute that specifically recognized and
approved the Intoximeter 3000 and its .01 percent margin of error.26
It would have been easy for the legislature to follow the
court's blueprint. But the legislature chose a different course.
Instead of enacting a statute that specified a particular machine or a
particular maximum acceptable margin of error, the legislature
enacted a statute that ratifies the result of "[any] chemical test ...
administered by a properly calibrated instrument approved by the
Department of Public Safety[, regardless of] the instrument's
working tolerance".
This wording indicates that the legislature did not want
the scientific director to be bound to a particular machine or a
particular margin of error. This wording also indicates that the
legislature did not want to bind itself to enact a new statute every
time the scientific director approved a new breath-test machine, or to
amend the statute if further research revealed that the Intoximeter
3000 actually had a working tolerance greater than .10 percent. The
wording of AS 28.40.060 demonstrates that the legislature wanted to
be done with this subject once and for all: they ratified every
machine, and every margin of error, that the scientific director might
approve. In the absence of identifiable criteria to govern the
scientific director's choice, this is unlawful.
The majority offers a second way that the statute may
be saved. They point out that, even though the statute may give the
scientific director carte blanche, the scientific director has not
exercised this unfettered discretion in an unreasonable way. Instead,
the scientific director has approved the Intoximeter 3000, a breath-
test machine with a concededly reasonable margin of error. Because
the scientific director has not abused his discretion, the majority
suggests that this court should ignore the statute's underlying flaw
until the scientific director does something less reasonable.
This approach was specifically rejected by the Alaska
Supreme Court in State v. Fairbanks North Star Borough. As
explained above, that case involved a statute that gave the governor
unfettered discretion to reduce the budget of any executive agency if,
during the fiscal year, state revenues fell below projections. Arguing
in support of the statute, the State pointed out that the two governors
who had been granted this budget-cutting authority had exercised
their power in a restrained and reasonable way. The court answered
that this was irrelevant:
This [court does not intend] to impugn the motives or good
faith of Governors Sheffield and Cowper. Both have interpreted the
grant of authority under [the challenged statute] narrowly and have
acted in accord with that narrow interpretation. However, the issue
... is not what has been done under the statute; rather it is what can be
done. As [the New Mexico Supreme Court] said:
[W]e find nothing in [the statute] whatsoever to
indicate that the legislature was granting [only a
limited] authority to be exercised [under] the
conditions which [the State Board of Finance] says it
has imposed on itself. As we read the [statute], the
grant [of authority] is absolute and totally devoid of
restraints, direction or rules. Accordingly, the fact that
[the Board] acted ... under certain self-imposed
restraints can in no way serve to supply what has been
omitted.
State ex rel. Holmes v. State Board of Finance, 367 P.2d 926, 932
(N.M. 1961). The [executive branch's] limited exercise of authority
... cannot save a statute which amounts to legislative abdication.
State v. Fairbanks North Star Borough, 736 P.2d at 1143-44.
Thus, even though the scientific director may have
acted reasonably in exercising the unfettered discretion granted by
AS 28.40.060, this does not save the statute. The decision in
Fairbanks North Star Borough stands squarely against this
contention. As the supreme court said, the issue is not what has been
done under the statute; rather, the issue is what can be done.
Conclusion
For these reasons, I conclude that AS 28.40.060 is an
unconstitutional delegation of law-making power to an executive
branch officer. Because this statute is invalid, the law regarding
breath-test results should return to its status following the supreme
court's decision in Haynes v. Dept. of Public Safety.
1 AS 28.35.030(a)(1), (a)(2), & (n).
2 865 P.2d 753 (Alaska 1993).
3 Id. at 756.
4 741 P.2d 226, 230 (Alaska 1987).
5 Haynes, 865 P.2d at 755.
6 Id.
7 See Anchorage v. Flack, 685 P.2d 108, 109 (Alaska App. 1984); McCracken v.
State, 685 P.2d 1275, 1276 (Alaska App. 1984).
8 See Kalmakoff v. Anchorage, 715 P.2d 261 (Alaska App. 1986); Ansay v. State,
715 P.2d 1194, 1195 (Alaska App. 1986).
9 974 P.2d 427, 429 (Alaska App. 1999).
10 Id. at 430 (emphasis in original).
11 Id. (emphasis in original) (AS 28.35.030(a)(2) is the .10 theory of DWI).
12 Id.
13 See Haynes, 865 P.2d at 755 n.3 ("An 'acceptable' margin of error is one having
reasonable limits. A greater margin of error could not be conveniently ignored, without
inviting a constitutional challenge").
14 See Mangiapane, 974 P.2d at 430.
15 Id.
1 See Alaska Directory of State Officials (February 2000 edition).
2 Municipality of Anchorage v. Anchorage Police Dept. Employees Assn., 839 P.2d
1080, 1086 (Alaska 1992).
3 See AS 28.35.031 - 032; but see AS 28.35.035.
4 See former 7 AAC 30.005 - 190.
5 See AS 28.35.033(d) and 13 AAC 63.010 - 100. But see 13 AAC 63.130(b),
which declares that "[b]reath test instruments [and] associated equipment [previously]
approved [by the Department of Health and Social Services] under 7 AAC 30.005 - 7 AAC
30.190 remain approved ... unless the scientific director orders otherwise."
6 AS 28.35.033(d).
7 See 13 AAC 63.010(b).
8 See Haynes v. Dept. of Public Safety, 865 P.2d 753, 754 (Alaska 1993).
9 865 P.2d 753 (Alaska 1993).
10 See Haynes, 865 P.2d at 756.
11 Id. at 755. The court did, however, express reservation about the legislature's
power to disregard a testing machine's margin of error if that margin of error is "[beyond]
reasonable limits". Id. at 755 n.3. The court did not clarify what it meant by "reasonable
limits".
12 Id. at 755.
13 Id. at 756.
14 See SLA 1996, ch. 143, 17.
15 974 P.2d 427, 429 (Alaska App. 1999).
16 See id. at 429-430.
17 Municipality of Anchorage v. Anchorage Police Dept. Employees Assn., 839 P.2d
1080, 1086 (Alaska 1992).
18 Quoting State v. Fairbanks North Star Borough, 736 P.2d 1140, 1143 (Alaska
1987).
19 736 P.2d 1140 (Alaska 1987).
20 Fairbanks North Star Borough, 736 P.2d at 1043.
21 See AS 44.62.190 - 215.
22 See AS 44.62.040.
23 See AS 44.62.320(b).
24 See AS 44.62.130.
25 See AS 44.62.320(a).
26 See Haynes, 865 P.2d at 755-56.
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