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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
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         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.).