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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| LAURA A. BLANK, | ) |
| ) Court of Appeals No. A-9034 | |
| Appellant, | ) Trial Court No. 3PA-94-2829 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2061 September 1, 2006 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Christine S. Schleuss,
Anchorage, for the Appellant. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
COATS, Chief Judge, concurring.
MANNHEIMER, Judge, dissenting.
Laura A. Blank struck a pedestrian, Pennye McDowell,
inflicting fatal injuries, and drove away from the scene. Soon
thereafter, an Alaska State Trooper arrived at Blanks home to
investigate. While the trooper and Blank sat in his patrol car
discussing the situation, the trooper asked Blank to blow into an
instrument described as a portable breath test. Blank did so,
and the results of the test were admitted at her trial for
manslaughter and felony leaving the scene of an accident.1 The
jury convicted Blank as charged.
In this appeal, we consider Blanks remaining attacks on
the superior courts admission of the results of this breath test
and reject them. Accordingly, we affirm Blanks conviction.
Background facts and the procedural history of this
case
On September 26, 1994, McDowell and a friend, Diane
Forster, were walking on a residential street in a subdivision
near Palmer when Blank drove up from behind and struck McDowell.
McDowell died from her injuries. Blank did not stop.
Blanks husband, Greg Blank, appeared at the scene while
troopers were investigating. Mr. Blank told Trooper Bill D.
Tyler that Mr. Blanks wife may have been involved in the
accident. Tyler and two other officers followed Mr. Blank back
to the Blank residence. At the residence, Tyler introduced
himself to Laura Blank and suggested she talk with him in his
patrol car.
Blank told Tyler that she had two beers at a friends
house before driving home. Tyler asked Blank to take a breath
test on the portable device he had in the patrol car. She
agreed, and the test resulted in a reading that Blank had a
blood-alcohol content of .082%. Tyler did not arrest Blank.
In our first opinion in this case, we held that the
breath test was unconstitutional because AS 28.35.031(g) did not
require individualized suspicion that the driver had committed a
crime.2 We also ruled that, under the Alaska Supreme Courts
opinion in Layland v. State,3 the breath test was inadmissible.4
The Alaska Supreme Court reversed our ruling, holding that the
breath test was authorized by AS 28.35.031(g). The supreme court
construed the statute to require probable cause and the existence
of exigent circumstances.5 Also, the court overruled Layland.6
The supreme court remanded to the superior court to decide
whether exigent circumstances existed to justify Trooper Tylers
search in Blanks case.7
On remand, Judge Culter found exigent circumstances
existed to justify the admission of the portable breath test.
Blank does not dispute the superior courts finding that exigent
circumstances existed. Rather, Blank raises the issue of whether
the admission of the results of the portable breath test is
barred by statute.
Discussion
Blank frames the appeal in two questions: first, is a
breath test on a portable device exclusively a preliminary breath
test as that test is described in AS 28.35.031(b)? Second, if a
breath test on a portable device is a preliminary breath test, is
its evidentiary use limited to establishing probable cause for
arrest?
Alaskas implied consent statute provides that a person
operating a motor vehicle in Alaska is considered to have given
consent to a chemical test or tests of the persons breath for the
purpose of determining the alcoholic content of the persons blood
or breath[.]8 Usually, a person must be lawfully arrested before
a persons duty to submit to testing under the implied consent
statute is triggered.9
The statute specifies two situations in which a person
impliedly consents to testing without an arrest. First, under
subsection .031(b), an officer may give a preliminary breath test
if the officer has probable cause to believe that a persons
ability to operate a motor vehicle is impaired by alcohol and the
person was involved in an accident.10 Subsection (d) provides
that the results of this preliminary breath test may be used to
determine whether a driver should be arrested.11
Next, subsection .031(g) provides that, if a person is
involved in a motor vehicle accident that causes death or serious
physical injury to another person, that person will be considered
to have given consent to a chemical test or tests of the persons
breath and blood to determine alcohol levels.12 An officer is
not required to arrest the person prior to the test conducted
under subsection .031(g). The Alaska Supreme Court has
interpreted subsection .031(g) to require probable cause to
search and exigent circumstances.13 Here, Judge Cutler found the
test was admissible under subsection .031(g).14
AS 28.35.031 sets no explicit limit on the
admissibility of different kinds of breath tests. AS
28.35.033(d) does provide that, when a chemical analysis of
breath or blood was performed according to approved methods by a
person trained according to techniques, methods, and standards of
training approved by the Department of Public Safety, there is a
presumption that the test results are valid and further
foundation for introduction of the evidence is unnecessary. And
AS 28.35.033(c) specifies that, except for a proviso not relevant
in this case, the statutory presumptions that arise from evidence
of a persons alcohol level may not be construed to limit the
introduction of any other competent evidence bearing upon the
question of whether the person was or was not under the influence
of intoxicating liquor.
Blank asserts that a breath test on a portable device
is synonymous with a preliminary breath test, and therefore, the
test she performed in Trooper Tylers patrol car could only be a
preliminary breath test. In addition, Blank argues that the
statute implicitly limits the admissibility of preliminary breath
tests (performed with portable devices) to establishing probable
cause for arrest.
Blank bases her assertion regarding preliminary breath
tests on a prior case involving the implied consent statute. In
Guerre-Chaley v. State,15 we noted that Guerre-Chaley submitted
to a preliminary breath test i.e., a breath test on a portable
testing device carried by the police officer.16 Blank reads this
language to mean that any test performed on a portable device is
a preliminary breath test for purposes of the implied consent
statute. The State argues that the language in Guerre-Chaley
only indicates that the officer in that case used a portable
device to conduct the preliminary breath test not that any test
administered on a portable device is exclusively a preliminary
breath test under subsection (b).
In Guerre-Chaley, we used the terms preliminary breath
test, preliminary breath test device, and portable testing device
interchangeably. The device in question was a portable device,
and the test in dispute was authorized under .031(b).17 But the
term preliminary used in subsection (b) refers to the timing of
the test authorized under .031(b) not the device on which the
test is performed. Nor does it specify that a device used for a
test under .031(b) can only be used for a preliminary test and no
other purpose.
The statute does not otherwise define preliminary. The
common, ordinary meaning of preliminary specifies a temporal
distinction. Thus, preliminary identifies the breath test by the
time when the test is given (before arrest) but not the device
used.18
In sum, Blank has not shown the statute provides that a
breath test administered with a portable device is exclusively a
preliminary breath test; nor has Blank identified legislative
history that restricts the use of portable devices to preliminary
tests under .031(b).
Blank notes that subsection .031(d) states that
preliminary breath tests under subsection (b) may be used by the
law enforcement officer to determine whether the driver or
operator should be arrested. Blank argues that, under the maxim
expressio unius est exclusio alterius,19 the designated use of
the preliminary breath test for determining probable cause for
arrest should be read as exclusive. While this principle is
often a useful guide for statutory construction, it does not
always apply, particularly when the result of applying the
principle appears contrary to the purpose of the statute.20 The
subsections of AS 28.35.031 all address circumstances under which
a person has impliedly consented to a chemical test of one form
or another. But the subsections of AS 28.35.031 do not restrict,
or even address, the admissibility of relevant evidence under the
evidence rules, and Blank has not shown any legislative history
to that effect.
The next principle of statutory interpretation Blank
employs is that all sections of a statute must be read in harmony
so that each has meaning and none conflict.21 Blank notes that
the subsections dealing with preliminary breath tests were added
to the implied consent statute in 1983, well after the statute
was codified.22 Blank claims that, if the legislature intended
preliminary breath tests to be used for purposes other than
establishing probable cause to arrest, it would have been
unnecessary to add subsection (d) because arrest determinations
would necessarily be included in use as trial evidence.
But Blank has not shown any disharmony in the statute.
As the State points out, before the statutory authorization of
preliminary breath tests, any test authorized under the implied
consent statute required that the testee first be arrested before
the test could be administered.23 As a result, a preliminary
breath test may be useful for assisting an officer in deciding
whether to arrest a suspect, and subsection (d) suggests as much.
But the language in subsection .031(d) does not limit the use of
a portable device to assisting decisions about whether to arrest
an individual. Although this may be a beneficial use for a
portable device, the subsection does not provide that it is the
only use for such a device.
Next, Blank argues that subsection .031(g) does not
authorize a chemical test administered with a portable device.
Specifically, Blank reasons that, because only one breath testing
device was approved for evidentiary use at the time of Blanks
incident (the Intoximeter 3000), subsection .031(g) did not
authorize testing with other devices. Blank argues that, while
subsection .031(g) authorized Trooper Tyler to take Mrs. Blank in
for a breath test on the Intoximeter 3000, it did not authorize a
[portable breath test].24 Blank contends that, in promulgating
subsection .031(g), the legislature did not intend to repeal the
limits on the use of portable breath tests or intend their
admission without the safeguards required for admission of other
breath tests.
The legislature provided that the Department of Public
Safety had the authority to evaluate and approve breath-test
machines.25 The result of a breath test is considered valid if
the chemical analysis ... shall have been performed according to
methods approved by the Department of Public Safety.26 But being
a valid test only means that further foundation for introduction
of the evidence is unnecessary.27 If Blanks breath test had been
taken with an Intoximeter 3000, the results of the test could
have been submitted into evidence under AS 28.35.033(d) without a
further showing of validity because the Intoximeter 3000 was an
approved device. But this does not mean that a different
chemical test performed on another device is not admissible; it
only means that tests on other devices are subject to the normal
rules of admissibility and reliability as required by the rules
of evidence.28
We note here that Blank has not attacked Judge Cutlers
ruling that the test result from the portable device was relevant
and reliable evidence. This is in contrast to Guerre-Chaley,
where the State objected to the use of the results of a breath
test on a portable device because the reliability of that device
had not been demonstrated.29
Approval of a specific test by the Department of Public
Safety only affects whether that test enjoys a statutory
presumption of validity under AS 28.35.033(d). It does not
affect whether that test is admissible in court in general. The
implied consent statute does not limit the use of portable breath
test results to aiding in the decision whether to arrest a
potentially intoxicated driver.
Conclusion
The judgment of the superior court is AFFIRMED.
COATS, Chief Judge, concurring.
One of the questions this case presents is whether
Trooper Tyler could lawfully require the defendant in this case,
Laura Blank, to take a portable breath test. Superior Court
Judge Beverly W. Cutler denied Blanks motion to suppress the
results of the breath test, holding that AS 28.35.031(g)
authorized Trooper Tyler to require Blank to take the breath
test.1
The statute appears to allow a broad array of tests,
providing that the driver is considered to have given consent to
a chemical test or tests of the persons breath and blood for the
purpose of determining the alcoholic content of the persons
breath and blood and shall be considered to have given consent to
a chemical test or tests of the persons blood and urine for the
purpose of determining the presence of controlled substances in
the persons blood and urine. The legislative policy set forth in
the statute is consistent with allowing law enforcement officers
to administer a portable test to a driver who is involved in an
automobile accident that causes death or serious physical injury
to determine if alcohol or drugs were involved. A driver who is
involved in an injury accident may exhibit behavior that is
consistent with being intoxicated. But the behavior may be due
to injury rather than drugs or alcohol. A portable breath test
would give an officer an opportunity to determine whether the
behavior is a result of drugs, alcohol, or injury. Accordingly,
the use of a portable breath test appears to be consistent with
the policy set out by the legislature in the statute. I
therefore conclude that Trooper Tylers administration of the
breath test was authorized by AS 28.35.031(g). Whether
the portable breath test results were admissible as evidence in
Blanks trial is a separate question. To the best of my
knowledge, courts have not found that portable breath tests, such
as the one that Trooper Tyler used in this case, are admissible
as valid scientific evidence.2 But Blank concedes that she did
not challenge the admissibility of the portable breath test on
this ground. It is uncontested that Trooper Tyler had probable
cause to believe that Blank was responsible for an accident
resulting in a fatality and had probable cause to test Blanks
breath.3 Blank also does not contest Judge Cutlers finding
that there were exigent circumstances that required the police to
conduct the breath test. The only question that Blank raises is
whether the statute authorized Trooper Tyler to conduct the
breath test on the portable device. In my view, Trooper Tyler
had authority to conduct the test under AS 28.35.031(g).
MANNHEIMER, Judge, dissenting.
Laura A. Blank struck and killed a pedestrian and then
drove away from the scene. Soon thereafter, an Alaska State
Trooper arrived at Blanks home to investigate. While Blank and
the trooper sat in his patrol car discussing the situation, the
trooper asked Blank to blow into a portable (hand-held) breath
testing device. Blank did so, and the result of this test showed
that Blank had a blood alcohol level of .082 percent.
At the time (1994), the blood alcohol limit proscribed
by Alaska law was .10 percent, so the trooper did not arrest
Blank. However, Blank was later indicted for manslaughter and
felony leaving the scene of an accident,1 and the State
introduced the breath test result at Blanks trial. The jury
convicted Blank of both offenses.
In this appeal, Blank argues that the State should not
have been allowed to introduce the breath test result at Blanks
trial.
AS 28.35.031 defines various situations in which the
police may lawfully demand that a motorist submit to a breath
test. The State contends that the breath test administered to
Blank was authorized by subsection (g) of this statute.
Under subsection (g), a motorist is required to submit
to a chemical test or tests of [their] breath if the motorist has
been involved in an injury accident, and if there is probable
cause to believe that the motorist is guilty of a criminal
offense connected to that accident and that testing the motorists
breath for its alcohol content will yield evidence relevant to
that suspected crime, and if exigent circumstances require an
immediate test.2
Blank does not dispute that she was subject to testing
under this subsection of the statute. However, Blank contends
that the chemical test administered to her in this case was
outside the scope of testing authorized by this statute.
The issue is this: When subsection (g) speaks of a
chemical test or tests of [a] persons breath, are these breath
tests confined to tests conducted with a breath testing
instrument whose operation and calibration are certified by the
Department of Public Safety under Title 13, chapter 63 of the
Alaska Administrative Code? Or does the phrase chemical test or
tests encompass all forms of breath testing, even tests conducted
with a non-certified portable breath testing device like the one
used by the trooper in Blanks case?
Both of my colleagues are convinced that this statutory
language is broad enough to encompass breath tests conducted in
the field using non-certified portable testing devices. I
disagree.
It is true that the phrase chemical test or tests does
not appear to prescribe or limit the types of testing devices
that the police may employ when conducting the breath tests
authorized by subsection (g). But subsection (g) does not stand
by itself.
AS 28.35.031 has three subsections (a), (b), and (g)
that authorize the police to conduct breath tests of motorists.
Subsections (a) and (g) require motorists to submit to a chemical
test or tests of [their] breath, while subsection (b) requires
motorists to submit to a preliminary breath test.
As I explain in more detail below, the result of a
breath test administered under either subsection (a) or
subsection (g) but not the result of a preliminary breath test
administered under subsection (b) can establish a persons guilt
of driving under the influence under AS 28.35.030(a)(2) (the
portion of the statute that prohibits driving when a persons
blood alcohol level equals or exceeds .08 percent). Moreover,
the result of a breath test administered under either subsection
(a) or subsection (g) but not the result of a preliminary breath
test administered under subsection (b) can trigger the
administrative revocation of a persons drivers license under
AS 28.15.165 166 (requiring administrative license revocation if
a persons breath test result equals or exceeds .08 percent).
In other words, the test result of a chemical test
authorized by either subsection (a) or subsection (g) can trigger
significant legal consequences, but the test result of a
preliminary breath test carries no penalty.
This drastic difference in consequences is attributable
to the fact a fact repeatedly demonstrated by the legislative
history of these various statutes that the legislature and the
Department of Public Safety have always proceeded under the
assumption that the chemical tests authorized by subsections (a)
and (g) would be conducted on breath testing machines that are
approved and certified by the Department of Public Safety (in
other words, the breath testing machines that are installed, and
periodically calibrated, in police stations and other fixed
locations), while the preliminary breath tests authorized by
subsection (b) would be conducted by officers in the field using
portable breath testing devices that the Department of Public
Safety would not need to approve or certify (because the test
result had no legal consequences for the motorist).
If the phrase chemical test or tests in subsections (a)
and (g) is construed as my colleagues propose that is, if this
phrase encompasses all breath tests, even the tests conducted on
hand-held breath testing devices that have not been approved or
certified by the Department of Public Safety then people could
be convicted of driving under the influence, and people could
have their drivers license administratively revoked, based on a
test result obtained with a non-certified portable breath testing
device.
The legislature never intended this. And for this
reason, my colleagues interpretation of this statutory language
must be wrong.
For the reasons explained here, I conclude that only
AS 28.35.031(b) authorizes the police to conduct breath tests
using non-certified portable breath testing devices. In
contrast, AS 28.35.031(a) and (g) require that the breath tests
authorized by these subsections be conducted with a testing
instrument certified by the Scientific Director of the State
Crime Lab, under the testing procedures specified in 13 AAC 63.
Because the breath test in Blanks case was conducted on
a non-certified portable breath testing device, this breath test
was not authorized by AS 28.35.031(g). It was therefore error
for the superior court to allow the State to introduce the result
of that breath test at Blanks trial.
I believe that this error was harmless with respect to
Blanks conviction for leaving the scene of an injury accident.
However, this error requires the reversal of Blanks conviction
for manslaughter.
The procedural background of this litigation
This is the second time that Blanks case has
come before this Court.
Blank originally attacked the admission of
the breath test result on two grounds: first, that AS
28.35.031(g) was unconstitutional because it did not
require the police to have reason to believe that a
motorist had committed a criminal offense before
requiring the motorist to submit to chemical testing;
and second, that even if subsection (g) was
constitutional, the police were not authorized to use a
portable breath testing device to conduct the chemical
tests authorized by that statute.
We agreed with Blank that subsection (g) was
unconstitutional.3 For this reason, we reversed Blanks
convictions without reaching her argument concerning
the portable testing device.
However, the State petitioned the Alaska
Supreme Court to review our decision. In State v.
Blank, 90 P.3d 156 (Alaska 2004) (Blank II), the
supreme court adopted a narrowing construction of
AS 28.35.031(g) to save it from constitutional
infirmity. The supreme court interpreted subsection
(g) to authorize chemical testing of a persons breath
or blood if (1) the police have probable cause to
believe that the person committed a criminal offense
while operating a motor vehicle that was involved in an
accident causing death or serious physical injury to
another person, (2) the police have probable cause to
believe that evidence of the persons blood alcohol
level will be relevant to the proof or disproof of this
suspected offense, and (3) exigent circumstances
justify an immediate test.4
The supreme court concluded that the first
two prongs of this test were met in Blanks case, but
the court remanded Blanks case to the superior court
for a decision on whether the circumstances justified
an immediate test. On remand, the superior court
concluded that exigent circumstances had justified
immediate administration of a breath test.
Accordingly, the superior court re-affirmed its
decision that the breath test result was properly
admitted at Blanks trial.
Blank now returns to this Court. She does
not challenge the superior courts ruling regarding
exigent circumstances. However, she renews her
argument that the police can not use a portable breath
testing device to administer the chemical tests
authorized by subsection (g).
Why I conclude that the statutory phrase chemical test
or tests of [a] persons breath is limited to breath
tests performed on a certified breath testing
instrument, and thus does not include tests conducted
in the field with a non-certified portable breath
testing device
Three subsections of AS 28.35.031 describe
different circumstances in which the operator of a
motor vehicle is deemed to have consented to chemical
testing of their breath that is, circumstances in
which a motorist has a legal duty to submit to breath
testing.
Subsection (a)
Under subsection (a) of AS 28.35.031, a
person must submit to a chemical test or tests of the
persons breath for the purpose of determining the
alcoholic content of the persons blood or breath if the
person has been lawfully arrested for an offense
arising out of acts alleged to have been committed
while the person was operating ... a motor vehicle ...
while under the influence of intoxicants.
Refusal to submit to this test is a separate
criminal offense, carrying a punishment equivalent to
the punishment for driving under the influence.5 That
is, refusal to submit to the breath test authorized by
subsection (a) is a class A misdemeanor or a class C
felony, depending on the motorists prior record.
When AS 28.35.031 was originally enacted, the
situation described in subsection (a) was the sole
circumstance in which a motorist was required to submit
to breath testing.6 In other words, the police could
not require a motorist to submit to a chemical test of
their breath unless the motorist had first been
lawfully arrested for driving under the influence (or
some other crime involving the operation of a motor
vehicle while under the influence).
But in 1983, the legislature amended AS
28.35.031 by adding subsection (b), as well as the
ancillary subsections (c)-(f).7 These subsections
describe a motorists duty to submit to a preliminary
breath test even though the motorist has not yet been
arrested.
Subsection (b)
Under subsection (b) of AS 28.35.031, a
person must submit to a preliminary breath test when,
even though the person is not yet under arrest, the
police have probable cause to believe that [the]
persons ability to operate a motor vehicle ... is
impaired by the ingestion of alcoholic beverages and
probable cause to believe that the person was operating
a motor vehicle ... involved in an accident or that the
person committed a moving traffic violation.
An ancillary portion of the statute
subsection (d) states that the police may use the
result of a preliminary breath test administered under
subsection (b) to determine whether the [motorist]
should be arrested.
It is unlawful to refuse to submit to a
preliminary breath test, but refusal of this test is
merely an infraction.8 The apparent reason for this
slight penalty is that the officer must already have
probable cause to make an arrest before the motorist
can be asked to take the preliminary breath test, and,
under subsection (d), the preliminary breath test is
only an aid to the officer in strengthening or
weakening the pre-existing grounds for arrest.
Subsection (f) of AS 28.35.031 clarifies the
relationship between the preliminary breath test
authorized in subsection (b) and the chemical test or
tests authorized in subsection (a). Subsection (f)
states that if, after the police administer the
preliminary breath test, the police decide to arrest
the motorist, then the provisions of [subsection (a)]
apply. In other words, the arrested motorist is now
obliged to take the breath test authorized in
subsection (a), and the motorist faces the much greater
penalties for refusal.
A closer examination of subsection (a) and
subsection (b)
As already explained, Blanks case does not
directly involve either subsection (a) or subsection
(b). Rather, the issue is whether the breath test
administered to Blank was authorized by subsection (g).
But the operative language of subsection (g)
chemical test or tests of [a] persons breath is the
same language found in subsection (a). In fact, this
statutory language originated in subsection (a); the
legislature simply re-used this language when they
enacted subsection (g) twenty-five years later. For
these reasons, the resolution of Blanks case requires a
closer examination of subsection (a) and then,
following this examination of subsection (a),
a comparison of the chemical test authorized by
subsection (a) to the preliminary breath test
authorized by subsection (b).
Before beginning this discussion, it is
important to note one way in which subsections (a) and
(b) are alike: neither subsection describes the type
of testing equipment that police officers must (or must
not) employ when conducting the authorized breath
tests. Subsection (a) simply refers to a chemical test
or tests of the persons breath, while subsection (b)
simply refers to a preliminary breath test.
My colleagues conclude that these two
different phrases refer simply to the timing and
purpose of the breath tests authorized by these
statutes and that these phrases do not describe or
limit the types of testing devices that the police can
use when administering these breath tests.
I believe that this conclusion is wrong. The
wording and history of subsection (a), the wording and
history of certain related sections of AS 28.35, and
the legislative history of subsection (b) all point to
a different conclusion: when the legislature enacted
subsection (b) and its preliminary breath test in 1983,
both the legislature and the Department of Public
Safety understood that the chemical tests authorized by
subsection (a) would be conducted at police stations
using certified breath testing instruments under the
procedures specified in 13 AAC 63, while the prelimi
nary breath tests authorized by subsection (b) would be
conducted in the field using non-certified hand-held
breath testing devices.
The pre-1983 history of subsection (a)
AS 28.35.031(a), which originally comprised
the entirety of AS 28.35.031, was enacted in 1969 along
with two companion statutes. These companion statutes
were AS 28.35.032, which prescribed the consequences
of refusing the breath test, and AS 28.35.033, which
defined the legal presumptions arising from a breath
test result, assuming that the test was performed, and
its result evaluated, in accordance with the methods
specified by the Department of Health and Social
Services.9
(The mandatory testing methods and evaluative
procedures were initially codified in 7 AAC 30
(effective February 1970).10 Later, after the Governor
transferred the duty of approving and certifying breath
test instruments to the Department of Public Safety,11
the methods and procedures were moved to 13
AAC 63 (effective April 1989).)
Initially, the Department of Health and
Social Services certified the Breathalyzer as the
instrument that police agencies were to use when
conducting the breath tests authorized by AS 28.35.031.
See Wester v. State, 528 P.2d 1179 (Alaska 1974)
(describing the working of the Breathalyzer, and
answering questions concerning the evidentiary
foundation that the State had to establish before the
State could introduce the test results), and Oveson v.
Anchorage, 574 P.2d 801 (Alaska 1978) (answering other
questions regarding the foundational requirements for
introducing the result of a test conducted with a
Breathalyzer instrument).
By 1978, both the Alaska Supreme Court and
police agencies around the state were using the term
Breathalyzer test as a synonym for the chemical test or
tests authorized by AS 28.35.031(a). See, e.g., Graham
v. State, 633 P.2d 211 (Alaska 1981) (passim); Wirz v.
State, 577 P.2d 227 (Alaska 1978) (passim). This Court
followed the same practice in our decisions. See,
e.g., Anchorage v. Serrano, 649 P.2d 256 (Alaska App.
1982) (passim). There are no reported cases in which
the State or a municipal government attempted to
introduce a test result from any other breath testing
device.
In 1980, the legislature amended the
definition of the offense of driving while intoxicated
AS 28.35.030(a) in a manner that changed the legal
significance of the breath tests authorized by
subsection (a) of AS 28.35.031. Under the new
definition of driving while intoxicated, a person could
commit the crime in either of two ways: (1) by
operating a motor vehicle while under the influence of
intoxicants, or (2) by operating a motor vehicle when
the persons blood alcohol level was .10 percent or
greater.12
Before this 1980 amendment, the result of a
chemical test of a persons breath might trigger a
presumption that the person was under the influence,
see AS 28.35.033(a), but a persons blood alcohol level
was not, by itself, sufficient to establish the crime
of driving while intoxicated. The 1980 amendment
changed that. After this amendment, a person could be
found guilty simply because they were driving with a
certain level of alcohol in their blood and the result
of a chemical test conducted within four hours of the
event was deemed prima facie evidence of that blood
alcohol level.13
In 1982, in large part because of this change
in the law, this Court held that the due process clause
of the Alaska Constitution prohibited the government
from introducing the result of a breath test in a
criminal trial unless the police agency who
administered the breath test preserved an extra breath
sample of the defendants breath,
so that a corroborative test could be performed.
Anchorage v. Serrano, 649 P.2d 256, 259-260 (Alaska
App. 1982).
The enactment of subsection (b) the preliminary
breath test
In 1983, the year after this Court decided
Anchorage v. Serrano, the legislature enacted the
provisions that govern the preliminary breath test
subsections (b) through (f) of AS 28.35.031.
Unlike subsection (a), which only authorizes
the testing of persons who have been arrested,
subsection (b) declares that a person must submit to a
preliminary breath test, even though the person is not
yet under arrest, if the police have probable cause to
believe that [the] persons ability to operate a motor
vehicle ... is impaired by the ingestion of alcoholic
beverages and probable cause to believe that the person
was operating a motor vehicle ... involved in an
accident or that the person committed a moving traffic
violation. The police may then use the result of the
preliminary breath test to help them decide whether to
arrest the person. See AS 28.35.031(d).
As I pointed out earlier, subsection (b) does
not specify the testing device that the police are to
use when conducting preliminary breath tests. However,
the wording and the legislative history of subsection
(b) especially, the fact that motorists are obliged to
submit to the preliminary breath test before an arrest
demonstrate that the legislature anticipated that
preliminary breath tests would normally be administered
at the side of the road or in a patrol car, incident to
a traffic stop.
As a practical matter, this meant that
preliminary breath tests could not be performed on the
Breathalyzer because Breathalyzer instruments had to
be installed, tested, and operated at a particular
fixed location, due to potential radio frequency
interference.14 This fact suggests that the
legislature anticipated that preliminary breath tests
would be administered using a portable breath testing
device rather than the Breathalyzer.
This inference is confirmed by the
legislative history of House Bill 6 (13th Legislature)
the bill that ultimately became SLA 1983, ch. 77, and
that enacted subsections (b) through (f) of AS
28.35.031. House Bill 6 was substantially reworked in
the House Judiciary Committee, and the Judiciary
Committee Minutes of April 28, 1983 contain a sectional
analysis of Committees version of the bill.
Section 14 of the bill (the portion that
ultimately became section 16 of SLA 1983, ch. 77)
authorized the pre-arrest preliminary breath test and
described the circumstances in which a motorist was
obliged to take this preliminary test.
Section 15 of the bill (the portion that
ultimately became section 17 of SLA 1983, ch. 77)
amended AS 28.35.032, the statute that specifies the
penalties for breath test refusal. Previously, AS
28.35.032 made it a crime to refuse [any] request of a
law enforcement officer to submit to a chemical test of
breath as provided in AS 28.35.031 that is, any
request to submit to a chemical test under what is now
subsection (a) of AS 28.35.031. But House Bill 6
narrowed this language: Under the amended wording, it
was now a crime to refuse [any] request of a law
enforcement officer to submit to a chemical test under
AS 28.35.031(a). (Emphasis added)
In other words, now that AS 28.35.031
authorized two types of breath tests the pre-arrest
preliminary breath test authorized by subsection (b),
and the post-arrest chemical test authorized by
subsection (a) the legislature amended AS 28.35.032 so
that its severe penalties for breath test refusal would
be imposed only on those people who refused the post-
arrest breath test. In contrast, the legislature
declared that refusal to submit to the preliminary
breath test authorized by subsection (b) was only an
infraction a minor offense punishable by a fine. See
AS 28.35.031(c).
This interpretation of the legislatures
action is confirmed by the sectional analysis of House
Bill 6. The sectional analysis of Section 15 states
that the above-described amendment to AS 28.35.032 was
intended to ma[ke] it clear that [only] refusing to
submit to a chemical test after being arrested [will]
constitute[] the crime of refusing to submit to a
chemical test. (Emphasis in the original)
One month later, when the Senate Judiciary
Committee was discussing a committee substitute for
House Bill 6, Senator Mitchell Abood proposed
additional language to clarify this concept. He
suggested that the bill be amended to explicitly state
that the preliminary breath test [authorized by
subsection (b)] is in addition to the Breathalyzer test
[authorized by subsection (a)], and that if a driver is
arrested, the provisions of [subsection (a)] apply.
Senator Abood emphasized that the preliminary breath
test [was] not [to be] a substitute for the
Breathalyzer test, and that a person must be arrested
before [being] subjected to any type of testing for
DWI.15
Obviously, the senators last statement can
not be interpreted literally, because the senator was
proposing a law that would subject people to a type of
breath testing the preliminary breath test even
though they had not yet been arrested. Reading Senator
Aboods words in context, what the senator must have
meant is that:
(1) the preliminary breath test was only to
be used as an aid for determining whether to
arrest a motorist; the result of a preliminary
breath test could not be used to establish a
persons blood alcohol level for the purpose of
assessing whether they were guilty of driving
while intoxicated under AS 28.35.030(a)(2) (the
blood alcohol level clause of the statute), or for
the purpose of triggering the presumption of
intoxication described in AS 28.35.033(a);
instead,
(2) the only breath test result that would
trigger these adverse consequences (guilt of DWI
under AS 28.35.030(a)(2), or a presumption of
intoxication under AS 28.35.033(a)) was the result
of a post-arrest chemical test authorized by
subsection (a) what Senator Abood referred to as
the Breathalyzer test.
This interpretation is corroborated by
another provision of the same session law: SLA 1983,
ch. 77, 3. Section 3 of this session law enacted two
new statutes AS 28.15.165 and AS 28.15.166 that
authorized administrative revocation of a persons
drivers license based on the result of a breath test
administered under subsection (a) of AS 28.35.031.
The first statute, AS 28.15.165, authorized
the immediate seizure and administrative revocation of
the drivers license of (1) any person whose breath test
result was greater than or equal to the blood alcohol
level specified in the DWI statute or (2) any person
who refused a mandated breath test. The second
statute, AS 28.35.166, authorized administrative review
of this license revocation, but the review was limited
to three issues: whether the arresting officer had
probable cause to believe that the person was driving
while intoxicated, and (alternatively) whether the
chemical test yielded a result above the legal limit,
or whether the person refused to take the test.16
Both of these administrative license
revocation statutes specified that the only test result
that triggered these administrative consequences was
the result of a test conducted under subsection (a) of
AS 28.35.031 that is, a test result from a post-arrest
breath test performed on a certified breath testing
instrument. The result of a preliminary breath test
did not trigger these administrative consequences.
Likewise, a refusal to submit to a post-arrest breath
test authorized by subsection (a) would trigger these
administrative consequences, but not a refusal to
submit to a preliminary breath test.
My conclusions regarding the legislative intent
behind subsections (a) and (b)
As I explained early in this dissent, neither
the wording of subsection (a) (chemical test or tests)
nor the wording of subsection (b) (preliminary breath
test) gives any outward indication that the police are
required to use, or are forbidden from using,
particular testing instruments or devices when they
administer the breath tests authorized by these two
subsections.
But based on the pre-1983 history and
judicial interpretation of subsection (a), and based on
the wording and legislative history of subsection (b),
I conclude that the legislature anticipated that pre-
arrest breath tests and post-arrest breath tests would
be conducted with two different types of testing
devices. When the legislature enacted the pre-arrest
preliminary breath test in 1983, they acted under the
assumption that the post-arrest chemical test
authorized in subsection (a) would continue to be
conducted at a police station using a Breathalyzer (the
certified breath test instrument at the time), while
the preliminary breath test authorized in subsection
(b) would be conducted in the field using a portable
breath testing device a device that need not have a
proven level of accuracy.
My interpretation of the legislative record
is corroborated by the testimony given at Blanks trial
by two employees of the State Crime Lab, Kathryn Echols
and Everett Clary. Echols testified that the portable
testing device commonly used to administer the
preliminary breath test was not certified and approved
for evidentiary use (as of 1995), and Clary testified
that the only breath testing device that was certified
and approved for evidentiary use (again, as of 1995)
was the Intoximeter 3000.
In other words, the Department of Public
Safety does not assess or certify the accuracy and
functioning of the portable breath testing devices used
by officers in the field to conduct the preliminary
breath tests authorized by subsection (b). In
contrast, the Department does assess and certify the
breath testing instruments that are used to conduct the
chemical tests authorized by subsection (a). Indeed,
an entire chapter of the Alaska Administrative Code 13
AAC 63 is devoted to specifying the requirements and
procedures for certifying these breath testing
instruments and for training and certifying the
officers who operate and calibrate them.
The Departments failure to analyze and
certify portable breath testing devices suggests that
the Department shares my interpretation of AS
28.35.031. That is, the Departments decision not to
test or certify portable breath testing devices implies
that the Department does not believe that the test
results from these portable devices will be used for
any official purpose, other than providing police
officers with additional information when they are
deciding whether to arrest a motorist.
And while my interpretation of AS 28.35.031
must stand or fall on the strength of my reasoning, the
Departments interpretation of this statute is entitled
to independent weight because the Department is the
agency entrusted with the duty of administering this
statute by certifying the instruments and prescribing
the procedures that are used for conducting breath
tests in this state.17
Finally, the fact that the Department does
not analyze or certify portable breath testing devices
means that the interpretation of AS 28.35.031 adopted
by my colleagues leads to results that are both
illogical and contrary to the legislatures intentions.
As Judge Coats explains in his concurring
opinion, the basic premise that he and Judge Stewart
share is that the statutory phrase found in both
subsection (a) and subsection (g) chemical test or
tests is broad enough to encompass all forms of
chemical testing, even breath tests that are performed
on non-certified portable breath testing devices. But
if this is so if a test run on a portable breath
testing device qualifies as a chemical test for
purposes of subsections (a) and (g) then police
officers who arrest a person for driving under the
influence would have no need to drive the person to a
police station for testing on a DataMaster (the current
successor to the Breathalyzer). The police officer
could simply demand that the person blow into a
portable breath testing device.
If the test result obtained with this non-
certified portable testing device was .08 percent or
greater, the persons drivers license would be
administratively revoked under AS 28.15.165-166
because the test conducted with this portable breath
testing device would now qualify as a chemical test
administered under ... AS 28.35.031(a). Likewise, if
the result of this chemical test was .08 percent or
greater, the government would have a prima facie case
that the person was guilty of DUI under
AS 28.35.030(a)(2). And finally, if the motorist
refused to blow into the portable breath testing
device, and instead insisted on going to the police
station for testing on a certified breath testing
instrument, the motorist could be charged with
misdemeanor breath test refusal under AS 28.35.032(f)
or felony breath test refusal under AS 28.35.032(p)
again, because a test conducted with a portable breath
testing device would now qualify as a chemical test
authorized by ... AS 28.35.031(a).
It is inconceivable that the legislature
intended the language of AS 28.35.031(a) to be
interpreted and applied in this way. The legislative
history of both subsection (a) and subsection (b)
demonstrates that, although the legislature was content
to have preliminary breath tests conducted with non-
certified hand-held devices of unproven accuracy, the
chemical tests authorized by subsection (a) are to be
conducted using breath testing instruments that are
certified, maintained, and operated under procedures
established by the Department of Public Safety.
For these reasons, I conclude that the phrase
chemical test or tests in subsection (a) of AS
28.35.031 does not include breath tests that are
conducted using non-certified portable breath testing
devices.
Subsection (g)
I now turn to subsection (g) of AS 28.35.031
the portion of the statute that, according to the State
and my colleagues, authorized the breath test that was
administered to Blank.
Subsection (g) was the last part of AS
28.35.031 to be enacted. It was enacted in 1994,
eleven years after the legislature authorized the
preliminary breath test.18
Like subsection (a) of the statute,
subsection (g) authorizes the police to require a
person to submit to a chemical test or tests of [their]
breath. But unlike subsection (a), subsection (g) does
not require the police to arrest the motorist as a
prerequisite to this breath testing. Rather, the
authority to administer a breath test arises if (1) the
police have probable cause to believe that the motorist
was involved in a motor vehicle accident that caused
death or serious physical injury to another person, and
that the motorist committed a crime connected to this
accident; and (2) the police have probable cause to
believe that the presence or absence of alcohol in the
motorists body will be relevant to the proof or
disproof of this suspected crime; and (3) exigent
circumstances require immediate testing.19
I have already explained why I conclude that
the phrase chemical test or tests of [a] persons
breath, as employed in subsection (a) of the statute,
does not include breath tests conducted with a non-
certified portable breath testing device. Because this
same language is used in subsection (g), and because
both subsections (a) and (g) are part of the same
statute, the law presumes that the legislature intended
this statutory language to mean the same thing in both
subsections.20
The question, then, is whether anything in
the legislative history of subsection (g) suggests that
the legislature intended this language to have a
broader meaning than it has in subsection (a). The
answer is that the legislative history suggests exactly
the opposite. The legislative history confirms that
the legislature intended this language to have the same
meaning in both subsections.
When this proposed law House Bill 445 am
(18th Legislature) was discussed in the House
Judiciary Committee on March 14, 1994, one of the first
questions addressed to the Deputy Commissioner of
Public Safety (who was appearing in support of the
bill) was why the Department was proposing to have
motorists tested if these motorists were not being
arrested for any crime. The deputy commissioner
explained that, by and large, subsection (g) would be
used to obtain chemical tests from motorists who were
indeed suspected of crimes.
The deputy commissioner told the committee
that the main purpose of subsection (g) was to solve a
financial problem. The problem was this: Motorists
who were suspected of crimes in connection with injury
accidents were often sent to a hospital for treatment
or observation as a result of the accident. Under the
then-current version of AS 28.35.031 that is, under
subsection (a) of the statute these motorists could
not be subjected to chemical testing unless they were
first arrested. But if a motorist was arrested, the
Department of Public Safety became responsible for
their hospital bills. For this reason, the Department
was asking the legislature to authorize mandatory
chemical testing even if the person was not under
arrest.21
(The deputy commissioner reiterated this
rationale for the proposed law when he appeared in
front of the House Finance Committee on April 19, 1994
and in front of the Senate Finance Committee on May 4,
1994 to support the bill.)22
A little later in the House Judiciary
Committee hearing, another member of the committee
asked the deputy commissioner about the accuracy of the
drug and alcohol tests available to the police. The
deputy commissioner replied (in part) that he believed
the Intoximeter 3000 to be accurate, since these
devices were maintained on a daily basis.23
(The Intoximeter 3000 replaced the
Breathalyzer as the state-approved breath testing
instrument in May 1983.)24
The deputy commissioners answer to the
committee members inquiry strongly implies that the
Department of Public Safety anticipated that the breath
tests authorized by subsection (g) would be performed
using the same breath testing instruments that were
employed for the breath tests authorized by subsection
(a) in other words, breath testing instruments that
were certified, maintained, and operated under
procedures established by the Department of Public
Safety.
This interpretation is corroborated by
several other provisions of the resulting session law,
SLA 1994, ch. 55.
Sections 8 and 10 of the 1994 session law
amended AS 28.35.032, the statute that makes it a crime
to refuse a mandated breath test. This statute had
previously covered refusals to submit to a post-arrest
chemical test authorized by AS 28.35.031(a), but not
refusals to submit to a preliminary breath test
authorized by AS 28.35.031(b). In the 1994 session
law, AS 28.35.032(a) was amended so that the statute
now includes refusals to submit to a chemical test
authorized by AS 28.35.031(g), and AS 28.35.032(f) was
amended so that refusal to submit to a chemical test
authorized by AS 28.35.031(g) carries the same penalty
as refusal to submit to a chemical test authorized by
subsection (a). In contrast, refusal to submit to a
preliminary breath test authorized by subsection (b)
remains an infraction punishable only by a fine.
Similarly, section 9 of the 1994 session law
amended AS 28.35.032(e), the statute which declares
that a persons refusal to submit to a mandated breath
test can be admitted into evidence against them in a
civil or criminal action. This statute had previously
included refusals to take a chemical test authorized by
AS 28.35.031(a), but not refusals to take a preliminary
breath test authorized by AS 28.35.031(b). After the
1994 amendment, this statute also included refusals to
submit to a chemical test authorized by AS 28.35.031(g)
but still not refusals to submit to a preliminary
breath test.
Sections 1, 2, and 3 of the 1994 session law
amended AS 28.15.165 and AS 28.15.166 the two statutes
that authorize the Department to administratively
revoke the drivers license of any person whose breath
test result equals or exceeds the blood alcohol level
specified in AS 28.35.030(a)(2), or any person who
refuses a mandated breath test.
As I explained earlier in this dissent,
before the 1994 amendment, these statutes imposed
administrative license revocation based either on the
result of a breath test administered under subsection
(a) of AS 28.35.031, or on the refusal to submit to a
breath test authorized by that subsection but not
based on the result of a preliminary breath test, or on
refusal to submit to a preliminary breath test.
The 1994 amendments expanded these license
revocation statutes by imposing administrative license
revocation based on the result of a breath test
authorized by either subsection (a) or subsection (g)
of AS 28.35.031, or based on a refusal to submit to a
breath test authorized by either of these subsections.
But the statutes, even as amended, still did not cover
the test result of a preliminary breath test, or the
refusal to submit to a preliminary breath test.
Section 4 of the 1994 session law enacted a
corresponding amendment to AS 28.15.181(a)(8). As
amended, this statute declared that a conviction for
refusal to submit to a chemical test authorized by
either subsection (a) or subsection (g) of AS 28.35.031
but not a refusal to take the test authorized by
subsection (b) was grounds for immediate revocation of
the persons drivers license.
In other words, the administrative revocation
of a drivers license now hinges on the result of a
breath test administered under either subsection (a) or
subsection (g), or on a refusal to submit to a test
authorized by either of these two subsections but not
on the results of, or a refusal to submit to, a
preliminary breath test administered under
subsection (b).
In all of these 1994 amendments, the
legislature changed the provisions of Title 28 so that
the same consequences attached to the results of the
breath tests authorized by subsections (a) and (g) of
AS 28.35.031, or to a motorists refusal to submit to
either of these tests. In contrast, the result of a
preliminary breath test authorized by subsection (b),
or the refusal to submit to a preliminary breath test,
has markedly different (i.e., markedly less severe)
consequences.
All of this corroborates the conclusion that
the legislature intended or assumed that the breath
tests administered under subsection (g) would be
conducted in the same fashion as the breath tests
administered under subsection (a). In other words,
these tests would be conducted with breath testing
instruments whose operation and calibration are
certified by the Department of Public Safety under 13
AAC 63, rather than on non-certified portable breath
testing devices.
My conclusion
Both AS 28.35.031(a) and AS 28.35.031(g)
authorize the police to require motorists to submit to
a chemical test or tests of [their] breath. The
question presented in this appeal is whether this
statutory language is limited to breath tests conducted
with a certified breath testing instrument that is, a
breath testing instrument whose operation and
calibration are certified by the Department of Public
Safety under 13 AAC 63 or whether this statutory
language includes breath tests conducted with a non-
certified portable breath testing device.
I have described the histories of subsections
(a) and (g), as well as the history of the contrasting
subsection of the statute, subsection (b). I have also
described the legislatures enactment and amendment of
various other statutory provisions related to these
three subsections. Everything points to the conclusion
that the legislature believed and intended that the
breath tests authorized by subsections (a) and (g)
would be performed on certified breath testing
instruments instruments that meet the standards of
accuracy established by the Scientific Director of the
Crime Lab, and that are operated and periodically
calibrated in accordance with the procedures specified
in 13 AAC 63. The legislature did not intend for these
tests to be performed on non-certified portable breath
test devices of unproven accuracy.
Accordingly, I conclude that Blanks position
in this appeal is correct: Blank was subject to
testing under AS 28.35.031(g), but the test performed
in Blanks case fell outside the scope of testing
authorized by subsection (g) because this test was
conducted with a non-certified portable breath testing
device. The State should not have been allowed to
introduce the result of this unauthorized breath test.
When this Court issued its first decision in
Blanks case, I concluded that the error in admitting
the breath test result was harmless with respect to
Blanks conviction for leaving the scene of an injury
accident, but that this error required reversal of
Blanks conviction for manslaughter. See Blank I, 3
P.3d at 371-72 (Mannheimer, J., dissenting). I still
hold this view. I would therefore affirm Blanks
conviction for felony hit-and-run, but I would reverse
her conviction for manslaughter.
_______________________________
1 AS 11.41.120(a) & AS 28.35.060(a), respectively.
2 Blank v. State, 3 P.3d 359, 366 (Alaska App. 2000).
3 535 P.2d 1043 (Alaska 1975), overruled on other grounds by
Anchorage v. Geber, 592 P.2d 1187, 1191-92 & n.8 (Alaska 1979).
4 See Blank, 3 P.3d at 370.
5 State v. Blank, 90 P.3d 156, 161-64 (Alaska 2004).
6 Id. at 160-61.
7 Id. at 162-64.
8 AS 28.35.031(a).
9 See AS 28.35.031(a).
10AS 28.35.031(b).
11AS 28.35.031(d).
12AS 28.35.031(g).
13Blank, 90 P.2d at 162.
14Blank, 90 P.2d at 159.
1588 P.3d 539 (Alaska App. 2004).
16Guerre-Chaley, 88 P.3d at 541.
17Id. at 544.
18Websters defines preliminary as coming before or leading up
to the main action, discussion, business, etc.; introductory;
prefatory; preparatory. Websters New World College Dictionary
1134 (4th ed. 2001).
19Literally, the expression of one is the exclusion of
another. See Puller v. Anchorage, 574 P.2d 1285, 1287 (Alaska
1978) (The maxim establishes the inference that, where certain
things are designated in a statute, all omissions should be
understood as exclusions.) (quoting Sands Sutherland Statutory
Construction, 47.23 at 123 (4th ed. 1973)).
20See Sonneman v. Hickel, 836 P.2d 936, 939 (Alaska 1992).
21See Matter of Hutchinsons Estate, 577 P.2d 1074, 1075
(Alaska 1978) (It is an established principle of statutory
construction that all sections of an act are to be construed
together so that all have meaning and no section conflicts with
another.).
22See Ch. 83, 1, SLA 1969; Ch. 77, 16, SLA 1983.
23Subsection (g) does not require arrest, but it was added in
1994, after subsection (b).
24This argument dovetails with Blanks arguments above that a
test conducted on a portable device is necessarily a preliminary
breath test and is only admissible to show probable cause to
arrest.
25AS 28.40.060.
26AS 28.35.033(d).
27AS 28.35.033(d). See also Oveson v. Anchorage, 574 P.2d
801, 804 (Alaska 1978) (noting that AS 28.35.033(d) allows a
presumption that results of a valid test are valid without any
additional showing of foundational facts).
28See Wester v. State, 528 P.2d 1179, 1181 (Alaska 1974) (The
Alaska legislature ... has specified the foundational facts
necessary for admissibility of a chemical analysis of breath in
AS 28.35.033(d). The statute, however, does not specify the
method of proof of the foundational facts, which is controlled by
the applicable rules of evidence.).
29See Guerre-Chaley, 88 P.3d at 541.
1 AS 28.35.031(g) provides:
A person who operates or drives a motor vehicle in this
state shall be considered to have given consent to a
chemical test or tests of the persons breath and blood
for the purpose of determining the alcoholic content of
the persons breath and blood and shall be considered to
have given consent to a chemical test or tests of the
persons blood and urine for the purpose of determining
the presence of controlled substances in the persons
blood and urine if the person is involved in a motor
vehicle accident that causes death or serious physical
injury to another person. The test or tests may be
administered at the direction of a law enforcement
officer who has probable cause to believe that the
person was operating or driving a motor vehicle in this
state that was involved in an accident causing death or
serious physical injury to another person.
2 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); State v. Coon, 974
P.2d 386 (Alaska 1999).
3 State v. Blank, 90 P.3d 156, 163 (Alaska 2004).
1 AS 11.41.120(a) and AS 28.35.050(a) / AS 28.35.060(a),
respectively.
2 See State v. Blank, 90 P.3d 156, 160-62 (Alaska 2004) (an
earlier stage of this same case).
3 Blank v. State, 3 P.3d 359, 366, 370 (Alaska App. 2000)
(Blank I).
4 Blank II, 90 P.3d at 160-62.
5 See AS 28.35.032(f) (definition of the offense), (g)
(misdemeanor penalties), and (p) (felony penalties for
repeat offenders).
6 SLA 1969, ch. 83, 1.
7 SLA 1983, ch. 77, 16.
8 AS 28.35.031(c).
9 All three statutes were enacted by SLA 1969, ch. 83, 1.
10See Keel v. State, 609 P.2d 555, 557 n. 9 (Alaska 1980);
Oveson v. Anchorage, 574 P.2d 801, 804 (Alaska 1978).
11See Executive Order No. 67, 2 (1987).
12SLA 1980, ch. 129, 10 (effective September 28, 1980).
13Conrad v. State, 54 P.3d 313, 315 (Alaska App. 2002), on
rehearing, 60 P.3d 701, 702 (Alaska App. 2002).
14See Thayer v. Anchorage, 686 P.2d 721, 724-25 (Alaska App.
1984), and former 7 AAC 30.050.
15Senate Judiciary Committee, Minutes of May 30, 1983.
16AS 28.15.166(g).
17Bartley v. Teachers Retirement Board, 110 P.3d 1254, 1261
(Alaska 2005); Grimm v. Wagoner, 77 P.3d 423, 433 (Alaska
2003); Union Oil Co. v. Alaska Dept of Revenue, 560 P.2d 21,
23-24 (Alaska 1977). Cf. Norman J. Singer, Sutherland on
Statutes and Statutory Construction (6th ed. 2000), 49:05,
Vol. 2B, pp. 52-53 (Ordinarily, courts should give great
weight to the frequent, consistent, and long-standing
construction of a statute by an agency charged with its
administration, particularly with respect to a statute that
is susceptible of two different interpretations.).
18SLA 1994, ch. 55, 7.
19See Blank II, 90 P.3d at 160-62 (interpreting the statute to
require proof of these elements).
20See Chugach Natives, Inc. v. Doyon, Ltd., 588 F.2d 723, 725-
26 (9th Cir. 1978) (the same words or phrases are presumed
to have the same meaning when used in different parts of a
statute).
21House Judiciary Committee, Minutes of March 14, 1994, Tape
94-41, Side A, Log Numbers 683-720.
22House Finance Committee, Minutes of April 19, 1994, Tape HFC
94-132, Side 2 (The deputy commissioner stressed that, in
most serious injury or fatal accidents, it is not practical
for the officer to make an arrest because the state would be
liable for medical costs if the person is arrested.) Senate
Finance Committee, Minutes of May 4, 1994, Tape SFC 93-87,
Side 2 (The deputy commissioner stated that, in major injury
accidents, the person would usually be in the hospital, and
if an arrest [were] made, the department would be
responsible for that person from that time on.)
23House Judiciary Committee, Minutes of March 14, 1994, Tape
94-41, Side B, Log Numbers 007-034.
24See Herter v. State, 715 P.2d 274, 275 (Alaska App. 1986).
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