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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DOUGLAS L. VALENTINE, | ) |
| ) Court of Appeals No. A-9491 | |
| Appellant, | ) Trial Court No. 4FA-05-1998 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2088 March 9, 2007 |
| ) | |
Appeal from the
District Court, Fourth Judicial District,
Fairbanks, Winston S. Burbank and Donald D.
Hopwood, Judges.
Appearances: Robert John, Law Office of
Robert John, Fairbanks, and Lawrence F.
Reger, Law Office of Lawrence F. Reger,
Fairbanks, for the Appellant. Tamara E. de
Lucia, 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.
MANNHEIMER, Judge, dissenting.
In 2004, the Alaska legislature made two significant
changes to AS 28.35.030, the law prohibiting driving while under
the influence. Before that time,
to convict a motorist of driving while under the influence based
solely on the result of a chemical test of the motorists breath
or blood, the jury had to find that the motorists blood alcohol
level was at or above the legal limit at the time of driving.1
The legislature in 2004 redefined the offense so that the
defendants blood alcohol level at the time of driving is no
longer determinative now, to find a motorist guilty of that
offense, the jury need only find that a chemical test properly
administered within four hours of driving showed a blood alcohol
level at or above the legal limit at the time of the test.
Second, the legislature prohibited defendants in all
prosecutions for driving while under the influence from offering
evidence to show that they were less intoxicated at the time of
driving than at the time of a later chemical test. (The
legislature made one exception to this prohibition: the defendant
may offer evidence to show that he consumed alcohol between the
time of driving and the time of the chemical test.) That is, the
legislature barred defendants from offering expert testimony or
other evidence to show that the alcohol they had consumed before
driving had not been fully absorbed into their bloodstream at the
time of driving because, for instance, they ate a large meal
right before drinking, or consumed the alcohol in big gulps
shortly before they got in their car.
Douglas L. Valentine was convicted under this new law.
He argues that his conviction should be overturned because the
2004 changes to the driving while under the influence law violate
due process and equal protection, are vague and overbroad, create
impermissible presumptions, violate the constitutional right to
an independent test, and
violate the supreme courts rule-making power. Having reviewed
the record in Valentines case and the legislative history of the
2004 amendments, we conclude that the statute survives all of
Valentines constitutional challenges.
Facts and proceedings
On June 18, 2005, at about 8:45 p.m., Fairbanks Police
Sergeant Dan Welborn stopped Valentine for speeding. When he
contacted Valentine, he noticed that he had a moderate odor of
alcohol and that his eyes were watery and bloodshot. He
administered three field sobriety tests, which Valentine failed,
and then arrested him. At the station, Valentine submitted to a
breath test, which showed a blood alcohol level of .099 percent.
Valentine requested an independent test, which he obtained at
9:45 p.m. That blood test showed a blood alcohol level of .119
percent. The State charged Valentine under both theories in AS
28.35.030: it alleged that Valentine was under the influence at
the time of driving under subsection (a)(1), and that a chemical
test showed that his blood alcohol level was above the legal
limit under subsection (a)(2).
Before trial, Valentine filed a motion to dismiss,
challenging the constitutionality of the 2004 amendments to AS
28.35. District Court Judge Winston S. Burbank denied the motion
to dismiss. In his decision, Judge Burbank incorporated by
reference an earlier ruling by District Court Judge Raymond M.
Funk rejecting the same constitutional claims in a consolidated
Fairbanks case, State v. Baxley, Marshall & Tyler.2 The effect of
the district courts ruling was to prohibit Valentine from
offering evidence to show that, even though his blood alcohol
level was above the legal limit at the time of his two chemical
tests, he was not guilty of driving while under the influence
under
either theory because, at the time he drove, the alcohol he had
consumed had not yet been fully absorbed into his bloodstream.
Valentines case then proceeded to trial before Judge
Donald D. Hopwood. At trial, Valentine argued that he had only
consumed two beers, that people absorb alcohol at different
rates, that there was ample evidence that he was not impaired at
the time he performed the field sobriety tests, and that the
State had no evidence of his actual blood alcohol level at the
time of driving.
The jury convicted Valentine in a general verdict
(that is, a verdict that did not specify whether he was convicted
under subsection (a)(1) or (a)(2)). Valentine now appeals the
denial of his motion to dismiss. He supplemented the record on
appeal with the expert testimony presented in Judge Funks
consolidated case, State v. Baxley.
Background on the 2004 amendments to AS 28.35
In Conrad v. State,3 this court addressed the question
of whether the pre-2004 version of AS 28.35.030(a)(2) required
the State to prove that the defendants blood alcohol level met or
exceeded the legal limit at the time of driving, or whether it
was enough for the State to show that a chemical test properly
administered within four hours of driving showed a blood alcohol
level that met or exceeded the legal limit.4
Conrad submitted to a breath test about one hour and
fifteen minutes after he was stopped by the police. That breath
test showed a blood alcohol level of .154 percent.5 Thirty
minutes later, an independent blood test showed that Conrads
blood alcohol level was .131 percent.6 At trial, Conrad
presented what he called a big gulp defense: he claimed he had
quickly consumed two beers right before he drove and that the
alcohol from these beers had not been fully absorbed into his
bloodstream at the time he was stopped.7 Therefore, he argued,
he was below the legal limit at the time he was driving even
though a breath test more than one hour later showed a blood
alcohol level above the legal limit.8
Although Conrad was able to argue his defense to the
jury, the trial judge in effect instructed the jury that his
defense was no defense the judge told the jury that, under the
version of AS 28.35.030(a)(2) in effect at that time, Conrads
guilt hinged on the result of his breath test, not on his alcohol
level at the time he was driving. The jury convicted Conrad.9
On appeal, Conrad argued that the courts instruction
was error. We agreed, ruling that a defendants guilt under
[former] AS 28.35.030(a)(2) hinges on the defendants blood
alcohol content at the time the defendant operated or controlled
a motor vehicle.10 We observed that a number of states had
defined the offense in terms of the defendants test result and
we suggested that the Alaska legislature might have the authority
to do so as well.11 But we concluded that the wording and
legislative history of former AS 28.35.030(a)(2) yield no such
expression of legislative intent.12
We elaborated on this ruling when we denied the States
petition for rehearing.13 The statute at issue in Conrad
provided that a person committed the offense of driving while
intoxicated if the person operated or controlled a motor vehicle
when, as determined by a chemical test taken within four hours
after the alleged offense was committed, there [was] 0.08 percent
or more by weight of alcohol in the persons blood.14 We found
the statutes use of when ambiguous, and we resolved that
ambiguity against the State:
The problem here is the ambiguous reference
of the adverb
when. Does the statute mean that a person
is guilty if they operate or control a motor
vehicle when ... [their blood contains] 0.08
percent or more ... alcohol [by weight]? Or
does the statute mean that a person is
guilty if they operate or control a motor
vehicle [and later], as determined by a
chemical test taken within four hours [of]
the alleged offense ..., [their blood
contains] 0.08 percent or more ... alcohol
[by
weight]?[15]
Several years later, in 2004, the legislature
responded to the Conrad decision by amending AS 28.35.030.
First, the legislature eliminated the adverb when from AS
28.35.030(a) to resolve the ambiguity identified in Conrad:
(a) A person commits the crime of driving
while under the influence of an alcoholic
beverage, inhalant, or controlled substance
if the person operates or drives a motor
vehicle or operates an aircraft or a
watercraft
(1) while under the influence of an
alcoholic beverage, intoxicating liquor,
inhalant, or any controlled substance,
singly or in combination; or
(2) and if [WHEN], as determined by a
chemical test taken within four hours after
the alleged operating or driving [OFFENSE
WAS COMMITTED], there is 0.08 percent or
more by weight of alcohol in the persons
blood or 80 milligrams or more of alcohol
per 100 milliliters of blood, or
if [WHEN] there is 0.08 grams or more of alcohol per
210
liters of the persons breath[.][16]
Under the amended statute, a person commits the
offense of driving while under the influence if (1) the person
operates or drives a motor vehicle while under the influence or
if (2) the person operates or drives a motor vehicle and if, as
determined by a chemical test taken within four hours after the
alleged operating or driving, there is 0.08 percent or more by
weight of alcohol in the persons blood or 80 milligrams or more
of alcohol per 100 milliliters of blood, or if there is 0.08
grams or more of alcohol per 210 liters of the persons breath.17
Thus, under the plain language of the amended statute, the
defendants guilt under subsection (a)(2) now hinges on the
chemical test result, not on the defendants blood alcohol level
at the time of driving. (Guilt under subsection (a)(1) still
hinges on the motorists impairment at the time of driving.)
During House Judiciary Committee discussion of this amendment,
representatives of the Department of Law emphasized that the
amendment was designed to remove the ambiguity in the statute
that we identified in Conrad.18
At the same time, the legislature added a new
subsection, AS 28.35.030(s), which prohibited defendants from
raising a big gulp or other delayed absorption defense to a
charge of driving while under the influence under subsection
(a)(1) or subsection (a)(2):
(s) In a prosecution under (a) of this
section, a person may introduce evidence on
the amount of alcohol consumed before or
after operating or driving the motor
vehicle, aircraft, or watercraft to rebut or
explain the results of a chemical test, but
the consumption of alcohol before operating
or driving may not be used as a defense that
the chemical test did not measure the blood
alcohol at the time of the operating or
driving. Consumption of alcohol after
operating or driving the motor vehicle,
aircraft, or watercraft may be used to raise
such a defense.[19]
Deputy Attorney General Susan Parkes explained that
this amendment was designed to eliminate the big gulp defense in
driving while under the influence prosecutions:
[The amendment] addresses the big gulp
defense[.] The current law says if a person
is given [a breath] test within four hours
of driving and [the result] is .08 [percent
blood alcohol] or above, that person is
legally intoxicated. However, the courts
have allowed people to argue that they took
a big gulp right before driving and although
the [chemical test] was accurate at the time
taken, the persons blood alcohol level was
lower than that [at the time of driving].
[The Department of Law] does not believe the
intent of the legislation was to get into
the middle of a battle of experts, so [the
amendment] would do away with that defense
and overturn a case called Conrad, issued by
the Court of Appeals.[20]
Subsection (s) was amended several times before the
legislature arrived at the final language. Language was added to
clarify that defendants may introduce evidence that they drank
after driving.21 Language was also added to clarify that
defendants may introduce evidence of how much alcohol they
consumed before driving to rebut or explain the results of the
chemical test for instance, a defendant may offer evidence that
he only had two drinks before driving, and that the chemical test
therefore must have been inaccurate but not to argue that the
alcohol he consumed before driving had not been fully absorbed
into his bloodstream at the time of driving.22
During House Judiciary Committee discussion of the
House version of the bill, Representative Max Gruenberg
questioned whether judges, rather than legislators, should be
deciding what evidence is relevant in a driving while under the
influence prosecution. Representative Les Gara interjected that
the committee was changing the substance of the crime. ... This
isnt really a relevance issue; were changing policy here.
Representative Gruenberg then noted that the bill would make it a
crime to have a blood alcohol level above the legal limit even
though a person might potentially have not been behind the wheel
at that moment in time. Representatives Gara and Ralph Samuels
agreed with that assessment, and Samuels added: If its in your
stomach, its as good as being in your blood, is what were
saying.23 Susan Parkes of the Department of Law echoed: [W]hats
being prohibited is people [who have an illegal] level of alcohol
in their bodies getting into a car and driving.24
Finally, the legislature amended AS 28.35.033(c) to
add the following underlined language:
Except as provided in AS 28.35.030(s), the
provisions of (a) of this section
[providing, inter alia, that a .08 percent
blood alcohol level gives rise to a
presumption that a person is under the
influence] 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.[25]
The effect of this amendment to AS 28.35.033(c) was to
prohibit defendants from offering big gulp or other delayed
absorption evidence to rebut a chemical test result that is
offered to show that the defendant was under the influence at
the time of driving under AS 28.35.030(a)(1).
This legislative history, and the plain language of
the amended statutes, indicate that the legislature intended to
accomplish two things through this legislation. First, it
intended to hinge a defendants guilt in a driving while under the
influence prosecution under subsection (a)(2) on the result of a
chemical test properly administered within four hours of driving
(if the test result is attributable to alcohol ingested before or
during the operation of a motor vehicle). And, second, it
intended to eliminate a delayed absorption defense to any
prosecution under subsection (a)(1) or (a)(2) that relies in
whole or in part on the result of a chemical test, so that
defendants may not argue based on alcohol absorption rates that
the result of their chemical test did not reflect their actual
alcohol level at the time of driving.
The amended statutes are not void for vagueness
Valentine argues that the amended version of the
driving while under the influence law is void for vagueness
because guilt hinges on the result of a chemical test
administered within four hours of driving, rather than on a
motorists blood alcohol level at the time of driving.
When no First Amendment rights are at stake, we
consider two factors in determining if a statute is
unconstitutionally vague. The first is whether the statute gives
adequate notice to the ordinary citizen of what conduct is
prohibited.26 A statute may not be so vague that men of common
intelligence must necessarily guess at its meaning and differ as
to its application.27 The second consideration is whether the
statute invites arbitrary enforcement because it gives too much
discretion to prosecuting authorities.28 To establish this
second factor, the defendant must show a history or strong
likelihood of uneven application.29
Valentine argues that the statute is impermissibly
vague because it is difficult for a motorist to predict if, or
when, within a four-hour period his alcohol level will reach or
exceed the legal limit. He claims that the only way to prevent a
driving while under the influence statute from being
impermissibly vague is to rest guilt on the motorists impairment
at the time of driving.
To support this claim, Valentine cites the
Pennsylvania Supreme Courts decision in Commonwealth v. Barud.30
The statute at issue in that case barred operating a motor
vehicle if the amount of alcohol by weight in the blood of the
person is 0.10% or greater at the time of a chemical test of a
sample ... obtained within three hours after the person drove,
operated, or was in actual physical control of the vehicle.31
The Pennsylvania court struck down the statute, concluding that
it did not provide a reasonable standard to guide conduct because
it was too difficult for a motorist to predict when, or if, he
would reach a .10 percent blood alcohol level within a three-hour
period.32
At the outset, we note that Valentines claim is not
really a vagueness challenge. Valentine is not arguing that the
language of the statute is unconstitutionally imprecise nor
could he persuasively, since the statute unambiguously prohibits
a blood alcohol level of .08 percent or more as measured by a
chemical test properly administered within four hours of driving.
Valentines real claim is that the statute violates due process
because it is too difficult for a motorist who chooses to drink
alcohol before driving to gauge if, or precisely when, his
conduct will violate the statute.
Regardless of how Valentines argument is
characterized, other courts that have addressed this issue (with
the exception of the Pensylvania Supreme Court in Barud) have
rejected this claim.33 As one court explained in upholding a
statute that made it illegal to have a blood alcohol level of .10
percent as determined by a chemical test taken within two hours
of driving:
While it certainly must be hard to predict
if ones BAC has reached or will reach 0.10
percent within any time frame, this does not
mean that the two-hour rule provides no
notice of the prohibited conduct. To the
contrary, the two-hour rule, just as the
former time-of-driving rule, gives fair
notice that, although driving after drinking
is not illegal per se, driving becomes
illegal after a certain level of
consumption; the fact that people cannot
sense exactly what their BAC is at any given
moment or will be in two hours does not
change this. As the Arizona State Supreme
Court put it, [w]here a statute gives fair
notice of what is to be avoided or punished,
it should not be declared void for vagueness
simply because it may be difficult for the
public to determine how far they can go
before they are in actual violation.[34]
The Georgia Supreme Court similarly held that
regardless of whether a statute forbids a certain blood alcohol
level at the time of driving or within three hours of driving, a
person who drinks a substantial amount of alcohol ... is put on
notice that he chooses to drive at his own peril.35
Valentine argues that Alaskas statute is especially
vague because the police have four hours from the time of driving
rather than the more typical two or three hours in states such as
Pennsylvania and Georgia in which to obtain a chemical test.
Valentine has no standing to challenge the statute on this ground
because, as he concedes, his breath and blood tests were
administered within one hour of driving.36 But in any event,
according to the expert testimony advanced by Valentine, most
people reach their peak alcohol level within one hour after they
stop drinking. Consequently, the fact that the police have four,
instead of two or three, hours in which to obtain a sample would
not make it appreciably more difficult for the typical motorist
to evaluate whether they had consumed too much alcohol to legally
drive.
We find the view adopted by the majority of courts
persuasive and conclude that the amended driving while under the
influence statutes give adequate notice of what conduct is
prohibited. Valentine has not argued, much less shown, that
there is a history or strong likelihood that the law will be
unevenly applied. We therefore find no merit to his claim that
the statute is impermissibly vague, and therefore violates due
process.
The amended statutes are not unconstitutionally
overbroad
Valentine next argues that the amended driving while
under the influence law is overbroad because it punishes people
for innocent conduct. He argues that the law unconstitutionally
criminalizes lawful conduct because a motorist can be convicted
of driving while under the influence even if his blood alcohol
level is below the legal limit at the time of driving.
This claim fails because, under the revised statutes,
driving with a blood alcohol level below the statutory limit is
not necessarily lawful conduct. As discussed earlier, the plain
language and legislative history of the amended statutes indicate
that it is now illegal to drive or operate a motor vehicle after
ingesting enough alcohol to register a blood alcohol level of .08
percent or more at the time of a chemical test administered
within four hours of driving. As Representative Samuels
explained: If its in your stomach, its as good as being in your
blood.37 Or, as Representative Gara declared:
We know that youre not a technician and that
you didnt time the amount you had to drink
to get you home before you got drunk you
essentially just got lucky that you hadnt
exceeded .08 at the time you got in your
car, but you had been drinking
irresponsibly. And I think even though
youre not technically at a .08 percent [at
the time of driving], we want to punish you
for having that much to drink and getting in
your car, because I think the truth is, even
at .05 and .06, youre putting the public in
danger.[38]
To the extent that Valentine is arguing that the
legislature has no authority to penalize a motorist whose blood
alcohol level is lower than .08 percent at the time of driving,
that claim is meritless. The legislature violates substantive
due process by enacting a law that has no reasonable relationship
to a legitimate government purpose.39 The State has a legitimate
interest in preventing driving while under the influence40 and it
is the legislatures role, within constitutional limits, to
determine the precise blood alcohol level or degree of impairment
that makes operating a car unacceptably dangerous to the public.
Valentine has not argued that the legislatures judgment is wrong,
and that a motorist who drives or operates a motor vehicle after
ingesting enough alcohol to register a blood alcohol level of .08
percent within the next four hours poses no risk to others.
Indeed, the legislature previously recognized, in enacting AS
28.33.030(a)(2), the statute prohibiting operating a commercial
motor vehicle with a blood alcohol level of .04 percent or more,
that driving with a blood alcohol level of less than .08 percent
might pose an unacceptable risk.
For these reasons, we reject Valentines claim that the
amended statutes are unconstitutionally overbroad because a
defendant may be convicted of driving while under the influence
even if his alcohol level at the time of driving is below the
statutory limit.
The amended statutes do not impose criminal liability
without mens rea
Valentine argues that the amended law
unconstitutionally allows a person to be convicted without any
proof of mens rea with respect to the circumstance of driving
while impaired or with a blood alcohol level above the legal
limit.
Valentine acknowledges that this court has repeatedly
held that the offense of driving while under the influence does
not require proof that the defendant was aware that he was
legally impaired or that his blood alcohol level was above the
legal limit it is enough that the defendant knowingly drank and
knowingly drove.41 As this court explained in Morgan v.
Anchorage42:
It certainly does not make sense to allow a
defendant to claim that his intentional
consumption of alcohol impaired his ability
to know that he was intoxicated. It does
make sense to require a person who drinks
and drives to be responsible for not
drinking to the point where he is under the
influence of alcohol. He should drive at
his peril rather than only at the publics
peril.[43]
Valentine argues that this line of cases is at odds
with our other decisions requiring a mens rea of at least
criminal negligence with respect to the circumstance of driving
with a revoked or suspended license.44 But as we explain below,
these cases are not irreconcilable; they simply reflect the
different proof requirements and policy interests underlying
prosecutions for driving with a suspended or revoked license and
driving while under the influence.
To convict a defendant of driving with a suspended or
revoked license, the State does not have to show that the
defendant was aware that his license was suspended or revoked;
nor does the State have to show that the defendant understood the
legal effect or scope of that revocation or suspension.45 All
the State must prove with respect to that circumstance is
criminal negligence: that a reasonable person in the defendants
position would have been aware of a substantial and unjustifiable
risk that his license was revoked or suspended, and that the
defendants failure to perceive that risk constituted a gross
deviation from the standard of care that a reasonable person
would exercise.46
To convict a defendant of driving while under the
influence, the State is not required to prove any mens rea with
respect to the circumstance of having consumed too much alcohol
to legally drive. But the State must prove that the defendant
was legally intoxicated (either because his blood alcohol level
met or exceeded the statutory limit within four hours of driving,
or because he was under the influence at the time of driving) and
that he knowingly drank and drove;47 it is implicit in the proof
of these elements that the defendant was criminally negligent as
to the circumstance of being too impaired to legally drive. The
conduct of consuming alcohol puts a person on notice that he may
be impaired. Morgan and its progeny simply preclude a defendant
from arguing that he did not have the required mens rea to commit
the offense because, even though he knowingly drank and drove, he
was too intoxicated to know he was impaired.
Valentine also argues that the line of cases following
Morgan was implicitly overruled by the Alaska Supreme Court in
State v. Hazelwood.48 In Hazelwood, the supreme court explained
that, when a criminal statute proscribes conduct only when a
relevant circumstance is present, a conviction under that statute
must be predicated on a finding that the defendant was at least
negligent with respect to that circumstance.49 For instance, a
defendant cannot be convicted of transporting illegally taken
game unless the defendant was at least negligent with respect to
the fact that the game was illegally taken because if the game
was not illegally taken, transporting it would not be a crime.50
Valentine argues by analogy that a person cannot be convicted of
driving while under the influence unless the person was at least
negligent with respect to the circumstance of being legally
intoxicated because drinking and driving is otherwise not
sanctionable. This claim fails for the same reason discussed
above: proof that the defendant was legally intoxicated and
that the defendant knowingly consumed alcohol and drove is
sufficient to establish that the defendant was negligent with
respect to the circumstance that he was too impaired to legally
drive. We therefore reject Valentines claim that the amended law
is unconstitutional because it imposes criminal liability without
proof of mens rea.
The amended statutes did not deny Valentine due
process by creating impermissible presumptions
Valentine argues that the amended law creates an
impermissible presumption that a motorist was at least as
intoxicated at the time of driving as at the time of a chemical
test administered within four hours of driving.
We have previously identified two possible defects in
a presumption directed against the accused in a criminal case:
(1) the nexus between the fact proved and the fact to be presumed
may be so insubstantial as to violate due process[;] and (2) the
presumption may undermine the governments duty to prove guilt
beyond a reasonable doubt.51
Valentine attacks the amended driving while under the
influence statutes on both these grounds. First, he argues that
the presumption that a motorist was at least as intoxicated at
the time of driving as at the time of a later chemical test is
unconstitutional even if it is permissive and rebuttable because
it has no basis in science. He argues that it is more likely,
given alcohol elimination and absorption rates, that a motorist
will be less intoxicated at the time of driving than at the time
of a later chemical test. In advancing this claim, Valentine
relies on expert testimony from State v. Baxley and the general
rule that even a permissive presumption must be based on
empirically valid inferences.52
Second, Valentine argues that this presumption is
unconstitutional because the defendant can no longer rebut it by
offering delayed absorption evidence. He argues that, because
the defendant cannot offer this rebuttal evidence, the
presumption verges on a mandatory conclusive presumption that
is, a presumption that removes from the jury the element that the
defendant was under the influence at the time of driving once the
State proves that the defendants chemical test result was at
least .08 percent blood alcohol. He argues that this presumption
violates Evidence Rule 303 by impermissibly shifting the burden
of production (and perhaps the burden of persuasion) to the
defendant.
As to Valentines first claim, he has not shown that
the presumption that a motorist was at least as intoxicated at
the time of driving as at the time of a later chemical test lacks
an empirical basis. Valentine advances expert testimony to show
that it normally takes forty-five minutes to one hour for alcohol
to be fully absorbed after a person stops drinking, and that it
could take as long as four hours for someone who ate a large meal
or had an upset stomach. That means some people will have a
lower alcohol level at the time of driving than at the time of a
later chemical test. But that is not enough to invalidate the
presumption. We owe considerable deference to the legislative
facts underlying a presumption.53 The inference that a persons
alcohol level at the time of driving was at least as high as at
the time of a later chemical test doubtless takes into account
many factors beyond alcohol absorption rates including the fact
that many people who drink enough alcohol to become legally
intoxicated do so over a period of time, not all at once right
before driving a car.
Valentines other claims must be addressed separately
for prosecutions under subsections (a)(1) (the under the
influence theory) and (a)(2) (the blood alcohol theory). With
respect to prosecutions under subsection (a)(2), Valentines
claims fail for the reasons already discussed: the amended law
does not create a presumption that the motorist was at least as
intoxicated at the time of driving as at the time of the later
chemical test. Under subsection (a)(2), it does not matter how
intoxicated the motorist was at the time of driving. What
matters is whether the motorist ingested enough alcohol before or
while driving to have a blood alcohol level at or above .08
percent at the time of a chemical test administered within four
hours of driving. The defendant may attack the accuracy of the
chemical test, or show that alcohol was consumed after driving.
What he cannot offer is evidence to show that the test did not
measure his blood alcohol level at the time of driving because
the alcohol he consumed before or while driving had not been
fully absorbed evidence that is no longer relevant under the
amended statutes.
Under AS 28.35.030(a)(1), guilt still hinges on
whether the motorist is under the influence at the time of
driving.54 If the State charges the defendant under this
subsection, and offers no evidence of a chemical test result, the
defendant is still permitted to offer evidence to show that he
was not under the influence at the time of driving. That is
because subsection (s) only prohibits delayed absorption evidence
that is offered to show that the chemical test did not measure
the blood alcohol at the time of operating or driving.55 Thus,
for instance, if the State presented testimony that the defendant
must have been under the influence because he drank six beers
before driving, the defendant could offer testimony to show that
he drank those beers immediately before driving and that the
alcohol had not been sufficiently absorbed into his blood to
impair his driving.
But if the defendant is charged under subsection
(a)(1) and the State offers a chemical test result as evidence
that the defendant was under the influence at the time of
driving, the defendant may not offer delayed absorption evidence
to argue that the chemical test result did not accurately reflect
his impairment at the time of driving.
To understand the significance of this, one must look
to AS 28.35.033(a), a related statute which the legislature left
unchanged in 2004. That statute outlines certain inferences
juries may draw from a defendants chemical test result in
deciding if the defendant was under the influence at the time of
driving.56 Under the statute, the jury may infer from a
chemical test result that shows a blood alcohol level of .04
percent or less that the defendant was not under the influence at
the time of driving. If a test shows that the defendants blood
alcohol level was more than .04 percent but less than .08
percent, there is no presumption, but the jury may consider the
chemical test result, together with other competent evidence, to
determine if the defendant was under the influence at the time of
driving. If a test shows that the defendants alcohol level was
.08 or more, the jury may infer from this fact alone that the
defendant was under the influence of alcohol. We have previously
explained that these presumptions apply to the defendants
impairment at the time of driving.57
Consistent with this statute, the jurors in Valentines
case received the standard instructions informing them (1) that
they may infer that he was under the influence if a chemical test
showed that his blood alcohol level was at least .08 percent and
(2) that they may infer that his chemical test result accurately
reflected his alcohol level at the time of driving. We have
previously upheld similar jury instructions based on the
presumptions in AS 28.35.033(a) against claims that they
impermissibly shifted the burden of proof to the defendant.58
Valentines jury was further instructed that it could
consider any ... competent evidence to determine if Valentine was
under the influence at the time of driving. To underscore this
point, Valentine in closing argument detailed all the evidence he
claimed showed he was not impaired at the time of driving, and
reminded the jury that it was free to disregard any inference
based on his chemical test results that he was under the
influence when he drove.
As the record in Valentines case demonstrates, there
is no merit to the claim that the amended statutes create a
mandatory conclusive presumption that directs the jury to find
that the defendant was under the influence at the time of driving
based on a chemical test result showing a blood alcohol level of
at least .08 percent.59 Rather, as was true before the 2004
revisions to the driving under the influence law, the jury may,
but need not, infer from such a test result that the defendant
was under the influence at the time of driving.60
It is true that, under the 2004 amendments, a
defendant may no longer offer big gulp or other delayed
absorption evidence to show that his chemical test result did not
reflect his impairment at the time of driving.61 But we conclude
that the legislature had the authority to redefine the offense in
this manner.62 The legislature wished to discourage motorists
from playing a form of Russian roulette with the driving public
by consuming large amounts of alcohol and then racing the clock
to reach their destination before the alcohol was absorbed into
their bloodstream and they became too impaired to drive.63
Prohibiting a delayed absorption defense was a reasonable way to
deter this conduct. We cannot say there is no circumstance in
which prohibiting this evidence would infringe the defendants
right to present a defense.64 For instance, a court would
violate the defendants due process rights if it allowed the State
to offer evidence of alcohol elimination and absorption rates to
show that the defendant was more intoxicated at the time of
driving than at the time of a later chemical test, and then
prohibited the defendant from countering the States proof with a
delayed absorption defense. But that is not the circumstance
presented here. Legislative enactments are presumed to be
constitutional, and Valentine has not met his burden to show a
violation of due process in this case.65
The 2004 amendments do not infringe the rule-making
power of the
Alaska Supreme Court
Valentine also argues that the 2004 amendments
unconstitutionally infringe the rule-making power of the Alaska
Supreme Court. Specifically, he argues that the legislation
conflicts with Alaska Evidence Rule 402 by preventing defendants
charged with driving while under the influence from introducing
evidence relevant to their alcohol level at the time of driving.
This claim is without merit. Evidence Rule 402
provides that [a]ll relevant evidence is admissible, except as
otherwise provided ... by enactments of the Alaska Legislature[.]
Evidence Rule 402 thus expressly permits the legislature to
define the parameters of relevant evidence, within constitutional
limits. The language of AS 28.35.033(c) makes clear that the
legislature intended to restrict the evidence that could be
admitted in driving while under the influence prosecutions.
There is thus no merit to Valentines claim that the legislature
infringed the supreme courts rule-making power.
The amended law does not violate the constitutional
right to an
independent test
Valentine next argues that the 2004 amendments violate
a motorists constitutional right to an independent test because
the defendant can no longer use the result of his independent
test to support his claim that his alcohol level was rising at
the time of the test, and was probably lower at the time of
driving.
In Snyder v. State,66 the Alaska Supreme Court held
that an accused has the right to an independent test for two
reasons: (1) to give the defendant the opportunity to challenge
the reliability of the State-administered breath test and, more
broadly, (2) to safeguard the accuseds right to obtain evanescent
exculpatory evidence.67 Under the amended statute, these rights
are still protected.
Valentine argues that the amended statute violates due
process by forcing the defendant into a Hobsons choice because
any independent test that shows a blood alcohol level at or above
.08 percent will necessarily be incriminating. But the right to
an independent test has never guaranteed an exculpatory test
result.
Valentine also asserts that the new statute rewards
post-driving drinking by permitting a big gulp defense in that
circumstance, thus encouraging motorists to keep a flask of
alcohol in the car in case they are pulled over. It is unclear
how this argument relates to Valentines claim that the statute
violates the right to an independent test. To the extent that
Valentine is arguing that this claimed discrepancy violates due
process, that argument fails. Alaska Statute 28.35.030(s) permits
a defendant to offer evidence that he drank after driving to
establish that the chemical test did not measure his alcohol
level (or impairment) at the time of driving. It does not, as
Valentine claims, preserve a delayed absorption defense for post-
driving drinkers while barring that defense for pre-driving
drinkers. Under the statute, evidence that the motorist drank
after driving would not be admitted to show that alcohol had not
been fully absorbed into the bloodstream at the time of driving,
but rather to show that the motorists test result was above the
legal limit due to alcohol that was consumed after driving. The
legislature has a strong interest in discouraging motorists from
consuming too much alcohol before driving a motor vehicle; it
does not have this same interest in penalizing a motorist for
drinking after driving. Allowing motorists to offer evidence of
post-driving drinking is thus reasonably related to the statutes
purpose.68
The amended statutes do not violate equal protection
Lastly, Valentine argues that the amended statutes
violate Alaskas guarantee of equal protection of the laws. He
argues that the statutes are overinclusive because they
criminaliz[e] those with rising blood-alcohol levels and
underinclusive because they omit[] those with declining blood-
alcohol levels. In other words, he argues that there is an
insufficiently tight fit between the goal of the amended statutes
and the means chosen to accomplish that goal because some
motorists who had a blood alcohol level above the legal limit at
the time of driving will escape responsibility for that offense
while other motorists who were below the legal limit when driving
will be convicted, based on the happenstance of when the state
administers its chemical test.
The amended driving while under the influence law does
treat similarly situated people differently, in that guilt in
some cases may depend on the arbitrary timing of the chemical
test. The question is whether the means-to-ends fit is imprecise
enough to violate equal protection given the nature of the
interest at stake.
In evaluating whether legislation violates the equal
protection clause of the Alaska Constitution, this court applies
a flexible test that is dependent on the importance of the rights
involved:
Initially, [the court] must look to the
purpose of the statute, viewing the
legislation as a whole, and the
circumstances surrounding it. It must be
determined that this purpose is legitimate,
that it falls within the police power of the
state. Examining the means used to
accomplish the legislative objectives and
the reasons advanced therefore, the court
must then determine whether the means chosen
substantially further the goals of the
enactment. Finally, the state interest in
the chosen means must be balanced against
the nature of
the constitutional right involved.[69]
The State has a compelling interest in protecting the
public from impaired drivers.70 And although the right to drive
is an important interest,71 there is no constitutionally
protected right to drink and drive.72 Therefore, the law will
survive an equal protection challenge if it substantially
furthers the goals of the legislature.
The general purpose of the driving while under the
influence law is to deter and penalize driving while under the
influence.73 Although arguably the most effective means of
accomplishing that aim would be to convict only motorists whose
alcohol level reaches a certain level while driving, such
precision is impossible given the technology now in use and the
inevitable delays involved in administering a DataMaster or other
chemical test.
Valentine has offered no evidence or argument to
refute the legislatures judgment that a person who drives after
consuming enough alcohol to register a .08 blood alcohol level
within four hours is a danger to the public. And there is a
rational basis for that judgment. A motorist cannot necessarily
predict how long it will take him to drive to his destination or,
given the many variables influencing how fast alcohol is
absorbed, how impaired he will become en route. The 2004
amendments substantially further the legislatures goal of
deterring a motorist who has consumed enough alcohol to reach a
blood alcohol level of .08 percent or more within the four hours
after driving or operating a motor vehicle. Given that the only
interest at stake is the interest in drinking and driving, that
is enough for the amended statute to survive constitutional
scrutiny. While it is true that some who commit the offense will
escape detection, and others will not, that is true of all
criminal offenses.
Valentine also claims that the statute violates equal
protection by hinging guilt for a pre-driving drinker on his
alcohol level at the time of the chemical test while hinging
guilt for a post-driving drinker on his alcohol level at the time
of driving. But the statute does not treat similarly situated
persons differently. All people charged with driving while under
the influence may offer evidence to show that their alcohol level
was above the legal limit at the time of a chemical test because
of alcohol they consumed after driving. As discussed earlier,
the legislature has little interest in penalizing motorists for
drinking after driving.
For these reasons, we reject Valentines equal
protection challenge.
Conclusion
Valentines conviction is AFFIRMED.
MANNHEIMER, Judge, dissenting in part.
AS 28.35.030 is the statute that defines the offense
of driving under the influence and that specifies certain
procedures and penalties pertaining to that offense. In 2004, in
response to this Courts decision in Conrad v. State, the Alaska
Legislature made two major changes to the DUI statute. For the
reasons explained in this dissent, I conclude that one of the
legislatures changes is constitutional, but the other is not.
Background of this case: this Courts construction of
the DUI statute in Conrad
AS 28.35.030(a) defines two ways in which
the operator of a motor vehicle can commit the offense
of driving under the influence. Under subsection
(a)(1), a motorist commits this crime by being under
the influence of alcohol or controlled substances.
Under subsection (a)(2), a motorist commits this crime
by having a blood alcohol level of .08 percent or
higher.
Subsection (a)(1), the under the influence
clause, has always been interpreted to require proof
that a motorist was under the influence of intoxicants
at the time of driving (as opposed to being under the
influence either before or after driving). However,
there was a debate as to whether, under subsection
(a)(2), a motorist could be convicted of DUI if their
blood alcohol level was .08 percent or greater at the
time they submitted to the chemical test, even though
their blood alcohol level might have been lower at the
time of driving.
We resolved this debate in Conrad v. State,
54 P.3d 313, on rehearing 60 P.3d 701 (Alaska App.
2002). In Conrad, we held that subsection (a)(2)
required proof that a motorists blood alcohol level
equaled or exceeded .08 percent at the time of driving.
If a later chemical test of the motorists breath or
blood showed that the motorist had a blood alcohol
level of .08 percent or more, this created a
presumption that the motorists blood alcohol level was
at least that high at the time of driving but this
presumption was rebuttable, and the motorist was
entitled to introduce evidence tending to show that the
result of the chemical test was not an accurate
indicator of the motorists blood alcohol level at the
time of driving. Conrad, 54 P.3d at 315-16, on
rehearing 60 P.3d at 702.
The legislatures response to Conrad: the 2004
amendments to the DUI statute
In 2004, the legislature responded to the
Conrad decision by making two significant changes to
the DUI statute.
First, the legislature rewrote subsection
(a)(2), the subsection that defines the blood alcohol
level theory of the crime. Conrad held that a person
violated subsection (a)(2) if they operated a motor
vehicle at a time when their blood alcohol level was
.08 percent or higher. In response to Conrad, the
legislature amended subsection (a)(2) so that, now, a
person violates subsection (a)(2) if they operate a
motor vehicle and if, within four hours of their
operation of the vehicle, their blood alcohol level is
.08 percent or higher, and if this blood alcohol level
is attributable to the persons voluntary consumption of
alcoholic beverages either before or during their
operation of the vehicle.
(I agree with my colleagues that this
amended version of subsection (a)(2) is constitutional,
and I reach that conclusion for the reasons set forth
in the majority opinion.)
Second, the legislature enacted a new
subsection, AS 28.35.030(s), that prohibits defendants
from raising a delayed absorption defense in a DUI
prosecution.1
The delayed absorption defense is premised
on the fact that there is an inevitable delay between a
persons consumption of alcoholic beverages and their
bodys absorption of the alcohol into their bloodstream.
This means that a persons blood alcohol level can
continue to rise for some amount of time after they
stop drinking. Because of this delay in the bodys
absorption of alcohol, there will be occasions when a
chemical test administered to an arrested driver will
yield a result that is significantly higher than the
persons blood alcohol level at the time they were
driving.
This phenomenon is illustrated by the facts
of a case recently decided by this Court: Painter v.
State, Alaska App. Memorandum Opinion No. 5192 (March
9, 2007).
When the defendant in Painter was initially
stopped by the state troopers, he submitted to a
preliminary breath test which showed his blood alcohol
level to be .072 percent. (That is, the test showed
that his blood alcohol level, according to the PBT, was
under the legal limit.) One hour later, at the trooper
station, Painter submitted to a second breath test,
this time on a DataMaster; this second test showed his
blood alcohol level to be .082 percent (i.e., slightly
over the legal limit). Thirty-five minutes later,
Painter obtained an independent blood test, and the
result of this third test was .092 percent (i.e.,
considerably over the legal limit).
This potential discrepancy between a persons
blood alcohol level at the time of testing and their
blood alcohol level at the time they were driving is
now irrelevant in prosecutions under subsection (a)(2)
of the statute because subsection (a)(2) now declares
that a persons guilt hinges on the test result, and not
on the persons blood alcohol level at the time of
driving.
But this potential discrepancy remains
important in prosecutions under subsection (a)(1) of
the statute. The legislature did not amend subsection
(a)(1); this subsection still requires proof that a
person operated a motor vehicle while under the
influence of an alcoholic beverage. Thus, to prove the
offense of DUI under subsection (a)(1), the government
must establish that the defendant operated or otherwise
controlled a motor vehicle at a time when the
defendants ability to control the vehicle was impaired
due to the consumption of alcohol.2 It is not
sufficient to prove that the defendant operated a motor
vehicle and then, sometime later, became impaired.
Because, under subsection (a)(1), the
ultimate fact to be proved is the defendants
impairment, a defendants guilt or innocence does not
directly hinge on the result of the defendants post-
arrest chemical test. Theoretically, a person might
have a blood alcohol level of .08 percent (or greater)
and still not be impaired. Conversely, as we
recognized in Ballard v. State, a person might be under
the influence for purposes of subsection (a)(1) that
is, the person might be demonstrably impaired even
though their blood alcohol level is less than the legal
limit.3
Nevertheless, the result of the defendants
post-arrest chemical test can be an important element
of the States proof in prosecutions under subsection
(a)(1). This is because of the evidentiary
presumptions codified in a companion statute, AS 28.35.
033(a).
In AS 28.35.033(a)(3), the legislature has
decreed that when a persons post-arrest chemical test
result is .08 percent blood alcohol or greater, this
creates a rebuttable presumption that the person was
under the influence of an alcoholic beverage for
purposes of prosecutions under subsection (a)(1). In
other words, in prosecutions under subsection (a)(1),
if the defendants post-arrest chemical test yielded a
result of .08 percent or higher, a jury may lawfully
find (based on this evidence alone) that the defendant
was under the influence at the time that the defendant
operated the motor vehicle.
(See Doyle v. State, 633 P.2d 306, 310-11
(Alaska App. 1981), where we construed this statute to
create a backward-looking presumption: a presumption
that authorizes the jury to find, based on the result
of a defendants post-arrest chemical test, that the
defendant was under the influence at the time of
driving.)
The statute challenged in this appeal AS
28.35.030(s) was enacted for the purpose of limiting
the ways in which a defendant can rebut this statutory
presumption of impairment. Specifically, this new
subsection declares that a defendant is barred from
introducing evidence of delayed absorption to rebut the
presumption of impairment that arises under AS
28.35.033(a)(3) if the result of the defendants post-
arrest chemical test is .08 percent or higher.
Subsection (s) reads:
(s) In a prosecution [for driving
under the influence], ... [evidence of] the
[defendants] consumption of alcohol before
operating or driving may not be used as a
defense that the [defendants] chemical test
did not [reflect] the [defendants] blood
alcohol at the time of the operating or
driving. [However, evidence of the
defendants] [c]onsumption of alcohol after
operating or driving the motor vehicle,
aircraft, or watercraft may be used to raise
such a defense. [Emphasis added]
In other words, subsection (s)
prohibits a defendant from introducing
evidence that, because of the natural delay
in the absorption of alcohol into the
bloodstream, the defendants blood alcohol
level may have risen significantly between
the time that the defendant stopped driving
and the time that the defendant took the post-
arrest chemical test and that, consequently,
the defendants post-arrest chemical test
result might not be a trustworthy indicator
of the defendants level of intoxication at
the time that the defendant was operating the
motor vehicle.
Why I conclude that subsection (s) is unconstitutional
when applied to prosecutions for DUI under
subsection (a)(1)
In prosecutions under subsection (a)(1), the
ultimate question is whether the defendant was
under the influence at the time that they operated
the motor vehicle. A defendants post-arrest
chemical test result does not directly prove or
disprove this ultimate fact. However, because of
the evidentiary presumption codified in AS 28.35.
033(a)(3), the government can rest its case solely
on the defendants chemical test result. Pursuant
to this statute, juries are instructed that if a
defendants post-arrest chemical test result was
.08 percent or higher, the jury can find that the
defendant was impaired at the time of driving.
It is undisputed that there is a delay
between a persons consumption of alcoholic
beverages and the absorption of the alcohol into
the persons bloodstream (where it causes
intoxication). This delay in the absorption of
alcohol into the bloodstream is obviously relevant
to the issue of whether a defendants post-arrest
chemical test result is an accurate indicator of
whether the defendant was impaired earlier, at the
time of driving. Nevertheless, subsection (s)
prevents defendants from offering evidence of
delayed absorption to contest the statutory
presumption of impairment that arises when a
defendants post-arrest chemical test result is .08
percent or higher.
This preclusion of evidence is irrelevant in
prosecutions under subsection (a)(2) because, under
the amended version of subsection (a)(2), the ultimate
fact to be proved is now the defendants blood alcohol
level at the time of the chemical test, and not the
defendants earlier blood alcohol level at the time of
driving. It therefore does not matter if the
defendants blood alcohol level might have been lower at
the time of driving.
But in prosecutions under subsection (a)(1),
the government must prove that the defendant was
impaired at the time of driving. It is not enough to
show that the defendant operated a motor vehicle and
then became impaired later. Because of this, the rule
of evidence preclusion codified in subsection (s)
violates the guarantee of due process of law when it is
applied to prosecutions under subsection (a)(1). It
unjustifiably prevents defendants from introducing
evidence that is both scientifically valid and directly
relevant to the question of whether the defendant was
impaired by alcohol at the time of driving.
As our supreme court stated in Smithart v.
State, a defendants right to present a defense is a
fundamental element of due process. 988 P.2d 583, 586
(Alaska 1999). See also Keith v. State, 612 P.2d 977,
982-83 (Alaska 1980).
Both Smithart and Keith involved evidentiary
rulings by a trial judge that improperly restricted the
defendants presentation of a defense. However, the
same principle applies when the evidentiary restriction
is enacted by the legislature,4 or is codified in a
rule of court,5 or is adopted as a rule of common law
by a states appellate courts.6
I acknowledge that the legislature has broad
discretion when defining the elements of crimes, and
that this broad discretion includes the authority to
define elements in a manner that renders certain
matters irrelevant (and thus inadmissible). For
instance, in Abruska v. State, 705 P.2d 1261, 1265-66
(Alaska App. 1985), and Neitzel v. State, 655 P.2d 325,
334-35 (Alaska App. 1982), this Court upheld the
legislatures authority to define the culpable mental
states of knowingly and recklessly in such a way as to
preclude a potential defense of voluntary intoxication.
See also Montana v. Egelhoff, 518 U.S. 37,
56; 116 S.Ct. 2013, 2023-24; 135 L.Ed.2d 361 (1996)
(upholding a state legislatures authority to preclude
evidence of a defendants voluntary intoxication to
rebut the governments proof of the defendants culpable
mental state); Fisher v. United States, 328 U.S. 463,
475-77; 66 S.Ct. 1318, 1324-25; 90 L.Ed. 1382 (1946)
(upholding Congresss authority to preclude a defendant
from introducing evidence of a mental disability or
deficiency short of insanity on the issue of the
defendants capacity for premeditation and
deliberation); Muench v. Israel, 715 F.2d 1124, 1144-45
(7th Cir. 1983) (holding that the states [are] not
constitutionally compelled to recognize the doctrine of
diminished capacity, and that therefore a state may
exclude expert testimony offered for the purpose of
establishing that a criminal defendant lacked the
capacity to form a specific intent.); People v.
Carpenter, 627 N.W.2d 276, 284-85 (Mich. 2001) (same).
The Alaska Legislature pursued this course
when it amended the blood alcohol level clause of the
DUI statute, subsection (a)(2): the legislature
amended the definition of the crime in a way that made
it irrelevant whether the result of the defendants post-
arrest chemical test accurately reflected the
defendants blood alcohol level at the time of driving.
But the definition of DUI under subsection
(a)(1) remains the same as it has always been: the
government must prove that the defendant was under the
influence at the time the defendant operated the motor
vehicle.
Moreover, as we explained in Doyle, the
evidentiary presumption codified in AS 28.35.033(a)(3)
is a backward-looking presumption that relates to the
defendants physical and mental condition at the time of
driving. Under this statute, a test result of .08
percent or higher does not give rise to a presumption
that the defendant was under the influence at the time
of the test; rather, it gives rise to a presumption
that the defendant was under the influence at the time
of driving.
Because the ultimate fact to be proved is
the defendants impairment at the time of driving, and
because the scientifically recognized phenomenon of
delayed absorption is directly relevant to the jurys
assessment of whether the result of the defendants post-
arrest chemical test is a trustworthy indicator of the
defendants earlier impairment, the legislature may not
prohibit the defendant from presenting evidence about
delayed absorption, and may not prohibit the defendant
from asking the jury to consider this phenomenon when
the jury assesses whether the defendant was under the
influence at the time of driving.
For these reasons, I conclude that the
evidentiary prohibition codified in AS 28.35.030(s)
violates a defendants right to due process of law when
the defendant is prosecuted for DUI under AS
28.35.030(a)(1) and the government relies on the result
of a post-driving chemical test.
_______________________________
1 Under AS 28.35.030(a)(2), a motorist commits the crime of
driving while under the influence if as determined by a chemical
test taken within four hours after the alleged operating or
driving, there is 0.08 percent or more by weight of alcohol in
the persons blood or 80 milligrams or more of alcohol per 100
milliliters of blood, or if there is 0.08 grams or more of
alcohol per 210 liters of the persons breath. For convenience,
we refer to this as the blood alcohol theory, though we recognize
that the State may also establish guilt under subsection (a)(2)
with evidence of the concentration of alcohol in the motorists
breath.
2 4FA-04-770 CR, 4FA-04-2284 CR, and 4FA-04-2695 CR,
respectively.
3 54 P.3d 313 (Alaska App. 2002).
4 Id. at 313.
5 Id. at 314.
6 Id.
7 Id.
8 Id.
9 Id.
10 Id. at 315.
11 Id.
12 Id.
13 Conrad v. State, 60 P.3d 701 (Alaska App. 2002).
14 Id. at 701 (quoting former AS 28.35.030(a)(2)).
15 Id. at 701 (brackets in original).
16 Ch. 124, 25, SLA 2004. The legislature added the
underlined text and eliminated the text in brackets.
17 AS 28.35.030(a).
18 See Committee Minutes, House Judiciary Committee
discussion of C.S.H.B. 244 (JUD), the House version of S.B. 170
(JUD) (March 30, 2004, comments by Susan Parkes, Deputy Attorney
General, Criminal Division, Department of Law, and April 2, 2004,
comments by Dean Guaneli, Chief Assistant Attorney General, Legal
Services Section, Department of Law).
19 Ch. 124, 27, SLA 2004.
20 Committee Minutes, Senate Judiciary Committee
discussion of Amendment 4 to C.S.S.B. 170 (JUD) (March 24, 2004).
21 See Committee Minutes, House Judiciary Committee
discussion of C.S.H.B. 244 (JUD) (March 19, 2004, statements by
Parkes and Rep. Gruenberg, March 30, 2004, statements by Parkes
and Rep. Gara, and April 7, 2004, statements by Rep. Gara).
22 See Committee Minutes, House Judiciary Committee
discussion of C.S.H.B. 244 (JUD) (March 19, 2004, statements by
Parkes and Rep. Gara); Committee Minutes, Senate Judiciary
Committee discussion of Amendment 4 to C.S.S.B. 170 (JUD) (March
24, 2004, statements by Parkes).
23 Committee Minutes, House Judiciary Committee discussion
of C.S.H.B. 244 (JUD) (April 2, 2004).
24 Committee Minutes, House Judiciary Committee discussion
of C.S.H.B. 244 (JUD) (March 19, 2004).
25 Ch. 124, 29, SLA 2004.
26 Stock v. State, 526 P.2d 3, 7-8 (Alaska 1974).
27 Id. at 8.
28 Id.
29 Id.
30 681 A.2d 162 (Pa. 1996).
31 Id. at 164 (citing former 75 Pa. C.S. 3731(a)(5)).
32 Id. at 166.
33 See, e.g., United States v. Skinner, 973 F. Supp. 975,
980 (W.D. Wash. 1997); State v. Martin, 847 P.2d 619, 623 (Ariz.
Ct. App. 1992); Bohannon v. State, 497 S.E.2d 552, 556-57 (Ga.
1998); Sereika v. State, 955 P.2d 175, 177 (Nev. 1998).
34 Skinner, 973 F. Supp. at 980 (quoting Fuenning v.
Superior Court ex rel. Maricopa County, 680 P.2d 121, 129 (Ariz.
1983)).
35 Bohannon, 497 S.E.2d at 556 (internal quotation marks
and citations omitted).
36 See Stock, 526 P.2d at 9-10.
37 Committee Minutes, House Judiciary Committee discussion
of C.S.H.B. 244 (JUD) (April 2, 2004).
38 Id.
39 Griswold v. Homer, 925 P.2d 1015, 1019 (Alaska 1996)
(citing Concerned Citizens of South Kenai Peninsula v. Kenai
Peninsula Borough, 527 P.2d 447, 452 (Alaska 1974)).
40 Lundquist v. Dept of Public Safety, 674 P.2d 780, 784
(Alaska 1983).
41 State v. Simpson, 53 P.3d 165, 167 (Alaska App. 2002)
(noting that this court previously rejected the notion that a DWI
defendant must know that [he is] under the influence); Hoople v.
State, 985 P.2d 1004, 1006 (Alaska App. 1999) (holding that the
statute prohibiting driving while intoxicated does not require
proof of any culpable mental state regarding the circumstance
that makes the driving illegal (the fact that the driver was
intoxicated or that the drivers blood-alcohol content exceeded
[the legal limit])); Cooley v. Anchorage, 649 P.2d 251, 253 n.3
(Alaska App. 1982) (rejecting the claim that the Anchorage
driving under the influence ordinance violated due process
because it required no criminal intent and because motorists had
no way of knowing whether their blood or breath alcohol had
reached a level that placed them in violation of the ordinance);
Van Brunt v. State, 646 P.2d 872, 873 (Alaska App. 1982) (holding
that conviction under the driving while intoxicated statute does
not require proof that the motorist knew he was under the
influence or that his blood or breath alcohol level exceeded the
legal limit; the fact that the motorist knowingly drank and drove
was enough to support a conviction); Morgan v. Anchorage, 643
P.2d 691, 692 (Alaska App. 1982) (rejecting claim that motorist
must be aware that he is under the influence to be convicted
under the Anchorage driving under the influence ordinance).
42 643 P.2d 691.
43 Id. at 692.
44 See Busby v. State, 40 P.3d 807, 816 (Alaska App.
2002); Gregory v. State, 717 P.2d 428, 431 (Alaska App. 1986).
45 Busby, 40 P.3d at 816-17.
46 Id. at 816.
47 Simpson, 53 P.3d at 167.
48 946 P.2d 875 (Alaska 1997).
49 Id. at 879.
50 Id. (discussing State v. Rice, 626 P.2d 104, 108
(Alaska 1981)).
51 Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982)
(citing Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L.
Ed. 2d 39 (1979); County Court v. Allen, 442 U.S. 140, 99 S. Ct.
2213, 60 L. Ed. 2d 777 (1979); Tot v.United States, 319 U.S. 463,
63 S. Ct. 1241, 87 L. Ed. 1519 (1943)).
52 See McLean v. Moran, 963 F.2d 1306, 1308 (9th Cir.
1992); Doyle v. State, 633 P.2d 306, 311 (Alaska App. 1981)
(citing United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13
L. Ed. 2d 658 (1965); Alaska R. Evid. 303(a)(1) & Commentary)).
53 See Erickson v. Anchorage, 662 P.2d 963, 969 (Alaska
App. 1983) (Singleton, J., concurring) ([I]t has never been
necessary that a legislatures legislative factual assumptions be
probably right to sustain a statute. It is sufficient if a
reasonable legislator could believe them to be true.) (citing
State v. Erickson, 574 P.2d 1, 17-18 (Alaska 1978); Ravin v.
State, 537 P.2d 494, 505 n.44 (Alaska 1975)).
54 See also Doyle, 633 P.2d at 310.
55 AS 28.35.030(a) (emphasis added).
56 See Alaska R. Evid. 303(a)(1) & Commentary (discussing
the circumstances in which a court should instruct the jury on
statutory presumptions in criminal cases, and disallowing
presumptions that preempt the jurys function of finding facts and
assessing guilt and innocence).
57 Doyle, 633 P.2d at 310.
58 Pilant v. State, 115 P.3d 579, 580 (Alaska App. 2005);
Kalmakoff v. Anchorage, 715 P.2d 261, 262-63 (Alaska App. 1986);
Doyle, 633 P.2d at 310-11.
59 Compare McLean, 963 F.2d at 1310-11 (reversing
defendants conviction under a Nevada statute prohibiting driving
while under the influence or with a .10 percent blood alcohol
level because the judge interpreted the law as prohibiting him
from considering any evidence that the defendant was not under
the influence at the time of driving if the chemical test showed
a blood alcohol level above the legal limit).
60 See Kalmakoff, 715 P.2d at 262; Alaska R. Evid.
303(a)(1).
61 AS 28.35.033(c) & AS 28.35.030(s).
62 See Montana v. Egelhoff, 518 U.S. 37, 42-43, 116 S. Ct.
2013, 2017, 135 L. Ed. 2d 361 (1996) (plurality opinion) & 518
U.S. at 57, 116 S. Ct. at 2024 (Ginsburg, J., concurring).
63 Erickson, 662 P.2d at 970 n.3 (Singleton, J.,
concurring); see also Committee Minutes, House Judiciary
Committee discussion of C.S.H.B. 244 (JUD) (April 2, 2004).
64 See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999);
see also Holmes v. South Carolina, ___ U.S. ___, 126 S. Ct. 1727,
1732, 164 L. Ed. 2d 503 (2006) ([T]he Constitution ... prohibits
the exclusion of defense evidence under rules that serve no
legitimate purpose or that are disproportionate to the ends that
they are asserted to promote.); United States v. Scheffer, 523
U.S. 303, 308, 118 S. Ct. 1261, 1264, 140 L. Ed. 2d 413 (1998)
(noting that the exclusion of evidence is unconstitutionally
arbitrary or disproportionate where it has infringed upon a
weighty interest of the accused).
65 See Brandon v. Corrections Corp. of America, 28 P.3d
269, 275 (Alaska 2001) (When a constitutional challenge to a
statute is raised, the party bringing the challenge must
demonstrate the constitutional violation; constitutionality is
presumed, and doubts are resolved in favor of constitutionality.)
(citation omitted).
66 930 P.2d 1274 (Alaska 1996).
67 Id. at 1277-79.
68 Griswold, 925 P.2d at 1019.
69 Erickson, 574 P.2d at 12.
70 Lundquist, 674 P.2d at 784.
71 Whitesides v. State, 20 P.3d 1130, 1135-36 (Alaska
2001).
72 Fuenning, 680 P.2d at 128 ([W]e recognize no right to
ingest a substantial amount of alcohol and then drive.);
Bohannon, 497 S.E.2d at 557 (rejecting the claim that there is a
constitutional right to drink and drive so long as the motorist
is not impaired); Fargo v. Stensland, 492 N.W.2d 591, 593 (N.D.
1992) (same); State v. Chirpich, 392 N.W.2d 34, 37 (Minn. Ct.
App. 1986) (holding that driving while under the influence is not
constitutionally protected conduct); see also Hernandez v. Dept
of Motor Vehicles, 634 P.2d 917, 919 (Cal. 1981) ([P]ast
authorities[,] while fully cognizant of the practical importance
of an individuals right to drive[,] have uniformly recognized
that the area of driving is particularly appropriate for
extensive legislative regulation, and that the states
traditionally broad police power authority to enact any measure
which reasonably relates to public health or safety operates with
full force in this domain.).
73 State v. Conley, 754 P.2d 232, 236 (Alaska 1988).
1 In the 2004 legislative hearings, this defense was
referred to as the big gulp defense a reference to the
possibility that a motorist had hurriedly consumed a large
quantity of an alcoholic beverage shortly before the police
pulled the motorist over. Although the phrase big gulp may
be catchier than delayed absorption, this latter phrase is a
more accurate description of the defense. There are several
potential reasons why the absorption of alcohol into a
persons bloodstream might be delayed for example, illness
or the recent consumption of a heavy meal. And it is this
delay that is the crucial component of any defense claim
that a post-arrest chemical test result might not accurately
indicate the defendants blood alcohol level at the time of
driving.
2 Swensen v. Anchorage, 616 P.2d 874, 880 n. 10 (Alaska
1980); Ballard v. State, 955 P.2d 931, 940 (Alaska App.
1998).
3 Ballard, 955 P.2d at 940.
4 See Davis v. Alaska, 415 U.S. 308, 311, 320; 94 S.Ct.
1105, 1108, 1112; 39 L.Ed.2d 347 (1974).
5 See id.
6 See Chambers v. Mississippi, 410 U.S. 284, 294-98; 93
S.Ct. 1038, 1045-47; 35 L.Ed.2d 297 (1973).
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