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State v. Simpson (4/25/2003) ap-1869
State v. Simpson (4/25/2003) ap-1869
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
STATE OF ALASKA, )
) Court of Appeals No. A-
8367
Petitioner, ) Trial
Court No. 3AN-S01-6867 CR
)
v. ) O P I N I O
N
)
GREGORY SIMPSON, )
)
Respondent. )
[No. 1869 - April 25, 2003]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Stephanie E.
Joannides, Judge.
Appearances: W.H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Petitioner. Frederick T. Slone, Kasmar
and Slone, P.C., Anchorage, for Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Under the due process clause of the Alaska
Constitution, a person arrested for driving while intoxicated is
entitled to an independent test of his blood alcohol level. The
State charged Gregory Simpson with felony driving while
intoxicated (DWI) based in part upon two prior California
convictions for diving while intoxicated. Simpson moved to
suppress the States use of his prior California convictions on
the ground that those convictions were constitutionally suspect
under Alaska law because his right to an independent test was not
constitutionally protected in California. Superior Court Judge
Stephanie E. Joannides agreed with Simpson and granted his
motion. The State filed a petition for review. We granted the
petition. We reverse Judge Joannidess decision and conclude that
Simpsons prior California convictions are admissible to support
the felony DWI charge.
Normally driving while intoxicated is a class A
misdemeanor.1 But the State can charge the person with a class C
felony if the person has two or more prior convictions since
January 1, 1996, and within the 10 years preceeding the date of
the present offense.2 Judge Joannidess ruling prevented the
State from using Simpsons two prior California convictions to
charge Simpson with a felony.
In reaching her decision to not allow the State to use
Simpsons prior convictions to support a felony driving while
intoxicated charge, Judge Joannides relied on two cases where we
held that some prior convictions were too unreliable to enhance a
defendants sentence. In Pananen v. State,3 we addressed a prior
conviction where the defendant had not been afforded a right to
counsel. In Pananen, the defendant was convicted of two counts
of driving while intoxicated.4 The trial court sentenced the
defendant as a third offender because he had two prior
convictions for that offense in Wisconsin.5 On appeal, the
defendant argued that the first of the two Wisconsin convictions
was invalid to enhance his sentence because, under Wisconsin law,
he was not afforded the right to be represented by counsel.6 We
concluded that an uncounseled conviction is simply too unreliable
to be depended on for purposes of imposing a sentence of
incarceration, whether that sentence is imposed directly or
collaterally.7 Based on this conclusion, we held that [b]ecause
Wisconsin law did not extend to Pananen the right to court-
appointed counsel for his first DWI offense, Pananens first
Wisconsin conviction should not have been relied upon by the
district court as a basis for determining the applicable
mandatory minimum sentence.8
In State v. Peel,9 we addressed whether a prior driving
while intoxicated conviction could be used to support a mandatory
minimum sentence for driving while intoxicated where the
defendant had been denied the right to a jury trial. In Peel,
the trial court concluded that it would not use the defendants
prior Louisiana conviction for driving while intoxicated to
impose a mandatory minimum sentence required by law for second
driving while intoxicated offenders.10 The trial court relied on
the fact that, under Louisiana law, Peel had not been entitled to
a trial by jury for his prior offense.11 The State challenged
the trial courts ruling, distinguishing Pananen by arguing that
the right to a jury trial was not as critical as the right to
counsel.12 We relied on Alaska decisions that equated the right
to counsel and the right to a jury trial and upheld the trial
courts decision to not use the prior Louisiana driving while
intoxicated conviction to apply the mandatory minimum sentencing
provisions.13
Using the logic of these two decisions, Judge Joannides
concluded that Simpsons two prior California convictions could
not be used to support enhancing Simpsons offense from a
misdemeanor to a felony. She held that because California did
not mandate that a defendant was entitled to an independent test
of his blood alcohol level, Simpsons prior convictions, like the
prior convictions we disallowed in Pananen and Peel, were
constitutionally suspect. The State petitioned, arguing that the
right to an independent test is not the equivalent to the right
to counsel or the right to a jury trial.
In order to understand the nature of the right to an
independent test in Alaska, it is helpful to explore the history
of the development of that right. The Alaska Supreme Court first
recognized a due process right to challenge the result of a
police-administered breath test in Lauderdale v. State.14 In
Lauderdale, the court held that in order to introduce the result
of a police administered breath test at trial, the State had to
give the defendant a reasonable opportunity to challenge the
breath test result.15 The court required the State to preserve
ampoules that were part of the breath test procedure so that the
defendant could independently test the ampoules to potentially
attack the breath test result.16
In Anchorage v. Serrano,17 this court was asked to
determine whether, under the logic of Lauderdale, the State
should be required to preserve a breath sample so that a person
charged with driving while intoxicated could have the breath
sample independently examined to challenge the result of a State
administered breath test. Relying on Lauderdale, we concluded
that due process ... [requires] the prosecution to make
reasonable efforts to preserve a breath sample in those cases in
which they wish to admit the result of a breath test.18 But we
concluded that the State was not limited to preserving a breath
sample to allow the defendant to challenge a breath test result.
We pointed out that the State could take other steps to allow a
defendant to determine the accuracy of the breath test.19 We
suggested that the defendant could be informed of his right to
secure an independent test and, if he requested an independent
test, could be allowed or assisted to obtain that test.20
The Alaska Supreme Court has continued to expand and
protect the right to an independent test. The court has
explained that [a] positive Intoximeter test result is the single
most important piece of evidence against a defendant accused of
driving while intoxicated and concluded that [s]ince a defendant
must provide the state with potentially incriminating evidence at
the risk of criminal penalties, . . . the defendant [must] be
given an opportunity to challenge the reliability of that
evidence in the simplest and most effective way possible, that
is, an independent test.21 The State has met its obligation to
provide defendants with the right to challenge their breath test
results by providing them with the opportunity to take an
independent blood test.22
Other courts have generally reached a different result.
In California v. Trombetta,23 the United States Supreme Court
held that the Due Process Clause of the Fourteenth Amendment does
not require that law enforcement agencies preserve breath samples
in order to introduce the results of breath-analysis tests at
trial.24 Since the United States Supreme Courts decision in
Trombetta, most states have concluded that a defendant does not
have a right to an independent test under the due process clauses
of their respective state constitutions.25 Few, if any, states
protect the right to an independent chemical test to the extent
that Alaska does.26
The constitutional right to an independent chemical
test is a firmly established and important right in Alaska. But,
as important as this right is, we do not believe that criminal
proceedings in states that do not recognize this right can be
equated to criminal proceedings in which the defendant has no
right to counsel or no right to a jury trial. When a defendant
has been denied the right to counsel or the right to trial by
jury, the trial process itself is fundamentally flawed. But the
right to an independent chemical test is not so crucial a right.
This distinction is illustrated in our decision in
Serrano, where we held that the supreme courts Lauderdale
decision required the State to offer a defendant the right to an
independent chemical test. In Serrano, we declared that law
enforcement officials could satisfy their burden to provide the
defendant with an independent chemical test if they made
reasonable efforts to preserve a breath sample or to take other
steps to allow a defendant to verify their results of the
[breath] test.27 That is, the rule we announced in Serrano was
limited by practicality: the State suffers adverse consequences
for failing to afford a defendant the opportunity to obtain an
independent chemical test only if the police fail to make
reasonable efforts to offer the independent test.
More recently in Snyder v. State,28 the Alaska Supreme
Court reiterated this doctrine of reasonable efforts. The court
compared the police departments duty to offer defendants an
independent chemical test to the requirement announced in Stephan
v. State29 that the police electronically record custodial
interrogations.30 The supreme court stated:
As long as it is not impracticable for the
police to take a defendant to a facility
where he or she can obtain an independent
test, this potentially exculpatory evidence
cannot be denied a defendant. However, if
obtaining an independent test is
impracticable or exceedingly burdensome, as
may be the case, for example, if the accused
is arrested in a community without the
capability of providing a blood test, no test
would be constitutionally required.[31]
Thus, even in Alaska, a defendant charged with driving
while intoxicated is not always entitled to an independent
chemical test. If it is impracticable or exceedingly burdensome
to obtain an independent chemical test, then the test is not
required. Under such circumstances, a defendant may properly be
convicted of the offense even though there is no independent
chemical test. Moreover, if the defendant were ever again
prosecuted for driving while intoxicated, this conviction would
qualify as a prior conviction for purposes of enhancing the
defendants sentence or supporting a charge of felony driving
while intoxicated.
All of this demonstrates the very real difference, from
a due process standpoint, between criminal proceedings where the
defendant had no opportunity to obtain an independent chemical
test and criminal proceedings where the defendant had no right to
counsel or no right to a jury trial. It is obvious that our
supreme court would never excuse the failure to provide a
defendant with legal counsel or the failure to grant the
defendant a jury trial on the ground that it was impracticable or
exceedingly burdensome to do so.
One other aspect of our Serrano decision offers insight
regarding the nature of a defendants right to an independent
chemical test. When we decided Serrano, we also had to decide
whether to apply our decision retroactively. We concluded that
the right to an independent chemical test should be applied
mainly prospectively, since there has been considerable
reasonable reliance on the prior standard of law by law
enforcement officials.32 In contrast, when the United States
Supreme Court decided Gideon v. Wainwright,33 extending the right
to counsel in criminal prosecutions to indigent state defendants
under the Fourteenth Amendment, the Supreme Court made its
decision retroactive.34 If we had concluded that the lack of an
independent chemical test rendered any resulting conviction
fundamentally unfair, we likewise would have made Serrano
retroactive.
We accordingly conclude that, even though the Alaska
due process clause normally guarantees the right to an
independent chemical test, the failure of another state to
provide an equivalent guarantee does not bar the use of prior
convictions from that state in Alaska prosecutions for driving
while intoxicated either to establish the applicable mandatory
minimum sentence or to establish the predicate prior convictions
for a charge of felony driving while intoxicated.
The decision of the superior court is REVERSED.
_______________________________
1 AS 28.35.030(b).
2 AS 28.35.030(n). Simpson was charged under former AS
28.35.030 but changes to the statute are not relevant to this
appeal.
3 711 P.2d 528 (Alaska App. 1985).
4 Id. at 529.
5 Id.
6 Id. at 530 (Under Wisconsin law, a first-offense DWI is
treated as a civil forfeiture, not as a crime. The offense is
not punishable by imprisonment. ... Accordingly, an indigent
person charged with a first-offense DWI in Wisconsin is not
entitled to court- appointed counsel.).
7 Id. at 532.
8 Id.
9 843 P.2d 1249 (Alaska App. 1992).
10 Id. at 1250.
11 Id. ([U]nder Louisiana law, defendants who were
charged with criminal offenses which carry a penalty of no more
than six months in jail cannot obtain a jury trial. DWI is such
an offense in Louisiana, and [the defendant] therefore had no
right to a jury trial.).
12 Id. at 1250-51.
13 Id. at 1251.
14 548 P.2d 376 (Alaska 1976).
15 Id. at 381-82.
16 Id. at 382.
17 649 P.2d 256 (Alaska App. 1982).
18 Id. at 260.
19 Id. at 258.
20 Id. at 258 n.5.
21 Gundersen v. Anchorage, 792 P.2d 673, 675-76 (Alaska
1990).
22 Snyder v. State, 930 P.2d 1274, 1277 (Alaska 1996)
(extending the right to an independent chemical test even if the
defendant had refused to take the statutorily prescribed breath
test); Gundersen, 792 P.2d at 675-78 (holding that the police
could satisfy a defendants due process right to an independent
test by informing the defendant of his right to an independent
test and assisting him to obtain the test); Champion v. State,
Dept of Pub. Safety, 721 P.2d 131, 132-33 (Alaska 1986)
(extending the right to an independent test to license revocation
proceedings).
23 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
24 Id. at 491, 104 S.Ct. at 2535.
25 See, e.g., People v. Trombetta, 173 Cal. App. 3d 1093,
1100 (Cal. App. 1985); Havens v. Charnes, 738 P.2d 1202, 1204
(Colo. App. 1987); State v. Vernon, 356 N.W.2d 887, 889-90 (Neb.
1984); Montoya v. Metro. Court, 651 P.2d 1260, 1261 (N.M. 1982),
revd on other grounds, State v. Alberico, 861 P.2d 192 (N.M.
1993); Commonwealth v. Gamber, 506 A.2d 1324, 1327 (Pa. App.
1986); State v. Williams, 480 A.2d 1383, 1390 (R.I. 1984); State
v. Sandler, 336 S.E.2d 535, 538 (W. Va. 1985).
26 See, e.g., Snyder, 930 P.2d at 1282 n.3 (Eastaugh, J.,
dissenting); John P. Ludington, Annotation, Drunk Driving:
Motorists Right to Private Sobriety Test, 45 A.L.R. 4th 11 (1986)
(discussing the various states extension of statutory and
constitutional protections to independent tests); Flem Whited,
III, Independent Test, 1 Drinking/Driving Litigation: Criminal
and Civil 11:19 (2002) (same).
27 Serrano, 649 P.2d at 258.
28 930 P.2d 1274, 1278 (Alaska 1996).
29 711 P.2d 1156 (Alaska 1985).
30 Snyder, 930 P.2d at 1278.
31 Id.
32 Serrano, 649 P.2d at 260.
33 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
34 See Johnson v. New Jersey, 384 U.S. 719, 727-28, 86
S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966) (recognizing and
defending the retroactive application of Gideon); Gideon v.
Wainwright, 153 So.2d 299, 300 (Fla. 1963) (outlining the
procedure adopted by the Florida court system to handle the
anticipated future appeals arising from the Supreme Courts Gideon
decision).
