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Conrad v, State (9/27/2002) ap-1831
Conrad v, State (9/27/2002) ap-1831
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES J. CONRAD, )
) Court of Appeals No. A-
8065
Appellant, ) Trial Court
No. 3PA-S99-1998 CR
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1831
September 27, 2002]
)
Appeal from the District Court, Third Judi
cial District, Palmer, John R. Lohff, Judge.
Appearances: Eugene B. Cyrus, Law Office of
Eugene Cyrus, P.C., Eagle River, for
Appellant. Robert J. Collins, Assistant
District Attorney, Palmer, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
This case requires us to construe the offense of
driving while intoxicated under AS 28.35.030(a)(2). This
subsection of the statute makes it a crime to operate or control
a motor vehicle when, as determined by a chemical test taken
within four hours after the alleged offense, a persons blood
contains 0.08 percent or more alcohol (by weight) or a persons
breath contains 0.08 grams or more alcohol per 210 liters.
The question is this: Does AS 28.35.030(a)(2) define
the offense in terms of the test result so that the State must
prove only that the chemical test yielded a result of 0.08 or
higher (assuming the test was properly administered within the
prescribed four hours)? Or does the statute require the State to
prove that the defendants blood alcohol level was 0.08 or higher
at the time the defendant operated or controlled a motor vehicle
so that the test result is merely circumstantial evidence of the
fact that must ultimately be proved?
As we explain in this opinion, we conclude that the
statute requires proof of the defendants blood alcohol level at
the time the defendant operated or controlled a motor vehicle.
Underlying proceedings
Charles J. Conrad was tried for driving while
intoxicated under both the impairment theory codified
in AS 28.35.030(a)(1) and the blood alcohol level
theory codified in AS 28.35.030(a)(2). The trial judge
instructed the jury that, for purposes of assessing
Conrads guilt under the blood alcohol level theory, it
was sufficient for the State to prove that a chemical
test administered within four hours of Conrads
operation of the vehicle yielded a result of 0.10 or
greater.1
The States evidence showed that, about an
hour and a quarter after Conrad was stopped by the
police, he submitted to an Intoximeter test; the test
result was a blood alcohol level of 0.154 percent.
One half-hour later, Conrad obtained an independent
blood test; this test showed that Conrads blood alcohol
level was 0.131 percent.
Conrad presented what he called the big gulp
defense: He claimed that he had quickly consumed two
beers just before he drove. Conrad contended that even
though his blood alcohol level was illegally high an
hour or so later after he was stopped, his blood
alcohol level had been within legal limits at the time
he was driving.
At trial, Conrad presented an expert witness
retired pathologist Donald R. Rogers to explain that,
based on Conrads blood test result, and using the
assumption that Conrad had consumed two beers just
before driving, and using average alcohol absorption
and elimination rates, Conrads blood alcohol level at
the time he was driving could have been less than 0.10
percent.
But, as explained above, the trial judge
instructed the jury that Conrads proposed defense was
actually no defense; the judge told the jury that
Conrads guilt hinged on the test result and not his
actual blood alcohol level at the time he was driving.
The jury convicted Conrad, returning a general verdict
that did not specify whether they found Conrad guilty
under subsection (a)(1), subsection (a)(2), or both.
A defendants guilt under AS 28.35.030(a)(2) hinges on
the defendants blood alcohol level at the time the
defendant operated or controlled a motor vehicle, not
on the defendants test result
In Mangiapane v. State,2 we were called upon
to construe the meaning of AS 28.40.060, a statute that
declares that a drivers chemical test result is not to
be adjusted to account for the testing instruments
margin of error. In the course of our discussion in
Mangiapane, we described AS 28.35.030(a)(2) in a way
that suggested that a drivers guilt rests on the
drivers test result:
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 drivers 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
drivers true blood-alcohol or breath-alcohol
level may be slightly lower (due to the
Intoximeters acknowledged margin of error) is
no longer relevant to the drivers guilt under
AS 28.35.030(a)(2).3
We now conclude that we did not speak
carefully enough.
The issue in Mangiapane was the
effect of the newly enacted AS 28.40.060.
Mangiapane did not directly raise the issue
that confronts us in Conrads case: Whether
the State must prove that a motorists blood
alcohol level was above the legal limit at
the time of the testing or, instead, at the
time the motorist operated or controlled the
vehicle.
In Doyle v. State,4 we construed a
related statute AS 28.35.033 that
establishes various presumptions as to
whether or not a driver is impaired by
alcohol, depending on the result of the
drivers chemical test. In Doyle, we
construed this statute to create a rebuttable
presumption that a drivers blood alcohol
level at the time of the offense was
equivalent to the result of the chemical test
administered to the driver later.5 In other words,
Doyle suggests that the ultimate fact to be proved is the drivers
blood alcohol level at the time of the offense, not at the time
of the test. At the same time, however, Doyle interpreted AS
28.35.033 as authorizing the State to rely on the presumption
that the drivers test result was at least as high as the drivers
blood alcohol level at the time of the offense so that it would
[not] be necessary for the state to call expert witnesses in
every case to establish by extrapolation the blood alcohol
content of the defendant at the time of the alleged offense.6
It appears that the Alaska
Legislature would have the authority to
define the offense in terms of the defendants
test result at a test administered within a
specified time after the defendant operated
or controlled a motor vehicle even though
the test result might be higher than the
defendants blood alcohol level at the time
the defendant operated or controlled the
vehicle. Our review of case law and statutes
from other jurisdictions reveals that a
number of state legislatures have done this.7
In these states, however, the
statutes clearly specify that a defendants
guilt rests on the test results and that the
defendants actual breath or blood alcohol
content at the time of driving is not an
element. For example, the Arizona Court of
Appeals explained that its state legislature
had concluded that a person with a [blood
alcohol content] of 0.10 or greater within
the two-hour period poses a sufficient danger
to the public to justify broadening the
statutorily proscribed conduct.8 The New
Jersey Supreme Court found that its state
legislature reached the same general
conclusion.9
But the wording and history of AS
28.35.030(a)(2) yield no such expression of
legislative intent. We find no indication
that the Alaska Legislature, either when it
passed AS 28.35.030(a)(2) or when it later
passed AS 28.40.060, intended to shift the
focus away from the defendants blood alcohol
level at the time of driving and to make the
test result determinative of the defendants
guilt.
Accordingly, despite the wording of
our decision in Mangiapane, we conclude that
a defendants guilt under AS 28.35.030(a)(2)
hinges on the defendants blood alcohol
content at the time the defendant operated or
controlled a motor vehicle. At the same
time, we re-affirm the approach we took in
Doyle: If a chemical test is administered to
the defendant within the statutorily
prescribed four hours, the test result will
create a presumption that the defendants
blood alcohol level was at least as high at
the time the defendant operated or controlled
the vehicle. (And, as stated in AS
28.40.060, the test result is not to be
adjusted for the testing machines margin of
error.)
The defendant may introduce
evidence to rebut this presumption (as Conrad
did in this case), but if the presumption is
unrebutted either because the defendant does
not challenge it, or because the jury does
not believe the defendants contrary evidence
then the presumption created by the test
result is enough to support a conviction.10
(Of course, the State may choose to
introduce evidence to show that a defendants
blood alcohol level at the time of the
offense was actually higher than at the time
of the test.)
Conclusion
The judgment of the district court is
REVERSED. Conrad is entitled to a new trial.
_______________________________
1 Conrad was prosecuted under the former version of AS
28.35.030(a)(2). Since then, the legislature has lowered the
allowable level of alcohol to 0.08 percent.
2 974 P.2d 427 (Alaska App. 1999).
3 974 P.2d at 430 (emphasis in original).
4633 P.2d 306 (Alaska App. 1981).
5See id. at 309-10.
6Id. at 310.
7See, e.g., State v. Oliver, 470 S.E.2d 16, 23-24 (N.C.
1996) (the per se offense prohibits driving on a state
highway having consumed sufficient alcohol that at any
relevant time after the driving the defendant had an
alcohol concentration of [0.08] or more); State v.
Martin, 847 P.2d 619, 623 (Ariz. App. 1993) ([S]ection
28-692(A)(2) now provides that it is illegal to have a
BAC of 0.10 or more within two hours of driving rather
than a BAC of 0.10 at the time of the offense as
provided in former section 28-692(A)(2)); Purser v.
State, 412 S.E.2d 869, 870 (Ga. App. 1991) (among other
things, the DWI statute made it unlawful for a person
to drive or to be in physical control of a moving
vehicle after having consumed alcohol if at any time
within the three-hour period after such driving or
being in physical control ended, he or she registered a
blood-alcohol concentration of 0.12 grams or more as a
result of such prior alcohol consumption.); State v.
Tischio, 527 A.2d 388, 388-89 (N.J. 1987) (court ruled
that it is the blood-alcohol level at the time of the
breathalyzer test that constitutes the essential
evidence of the offense.).
8Cacavas v. Bowen, 811 P.2d 366, 368 (Ariz. App. 1991).
9State v. Tischio, 527 A.2d 388, 388-89 (N.J. 1987).
10See Erickson v. Anchorage, 662 P.2d 963, 967 (Alaska App.
1983) (Singleton, J., concurring) (the breathalyzer
result alone established a prima facie case, entitling
the municipality to go to the jury on the issue of
Ericksons blood-alcohol level at the time of her
driving.).
