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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA,
Court of Appeals No. A-13492
Petitioner, Trial Court No. 4FA-18-02557 CR
v.
O P I N I O N
AARON MATTHEW JOHNSON,
Respondent. No. 2716 - December 10, 2021
Petition
for Review from the District Court, Fourth Judicial
District, Fairbanks, Ben A. Seekins, Judge.
Appearances: Timothy W. Terrell, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen
Jr., Acting Attorney General, Juneau, for the Petitioner. Emily
Jura, Assistant Public Defender, and Samantha Cherot, Public
Defender, Anchorage, for the Respondent.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge HARBISON.
Aaron Matthew Johnson was arrested by Alaska State Troopers for driving
under the influence (DUI). He subsequently submitted to a breath test which revealed
that his blood alcohol content exceeded .08 percent. Johnson decided to obtain an
independent blood test from a person of his own choosing under AS 28.35.033(e), but
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during a conversation that followed, a trooper dissuaded Johnson from obtaining such
a test and instead Johnson obtained an independent test at the State's expense. Johnson
subsequently filed a motion to suppress his breath test result, and the trial court granted
this motion.
The State has petitioned for review of the trial court's order suppressing the
evidence. For the reasons explained here, we conclude that the trial court erred by
imposing an exclusionary sanction under the facts of this case, and we reverse the trial
court's order.
Why we conclude that application of the exclusionary rule was not
warranted under the facts of this case
In Alaska, a person arrested for driving under the influence has both a
constitutionaland astatutory right to obtain an independent test tochallengetheaccuracy
1
of a police-administered breath test.
In addition, the Alaska Supreme Court has
explained that, in order to satisfy due process, the police must make reasonable and
2
good-faith efforts to assist a defendant in obtaining an independent test.
However,in Gundersenv. Anchorage, thesupremecourtexplainedthatdue
3
process does not require that the police honor a defendant's choice of independent tests.
As long as the government-selected facility will administer a reliable test, the defendant
4
does not have a constitutional right to an independent test of their own choosing.
1 Gundersen v. Anchorage, 792 P.2d 673, 674-75 (Alaska 1990); AS 28.35.033(e).
2 Gundersen, 792 P.2d at 678.
3 Id. at 677-78.
4 Id.
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Alaska law nevertheless provides a statutory right to an independent test
of the defendant's own choosing.5 Alaska Statute 28.35.033(e), provides, in pertinent
part:
The person tested may have a physician, or a qualified
technician, chemist, registered or advanced nurse, or other
qualified person of the person's own choosing administer a
chemical test in addition to the test administered at the
direction of a law enforcement officer. The failure or
inability to obtain an additional test by a person does not
preclude the admission of evidence relating to the test taken
at the direction of a law enforcement officer; the fact that the
person under arrest sought to obtain such an additional test,
and failed or was unable to do so, is likewise admissible in
evidence.
This statute also contains a provision that requires the police to inform a defendant of
their right to an independent test of their own choosing and to make reasonable and
good-faith efforts to assist the defendant in obtaining such a test:
The person who administers the chemical test shall clearly
and expressly inform the person tested of that person's right
to an independent test described under this subsection, and,
if the person being tested requests an independent test, the
department shall make reasonable and good-faith efforts to
assist the person being tested in contacting a person qualified
to perform an independent chemical test of the person's
breath or blood.[6]
In the present case, Johnson was arrested for DUI and then submitted to a
breath test which revealed that his blood alcohol content was .125 percent, which is
above the legal limit of .08 percent. A trooper subsequently read Johnson a notice
5 AS 28.35.033(e).
6 Id.
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informing him that he had the right to "an independent chemical test at the government's
expense" or to "an independentchemicaltest of [Johnson's] own choosing." The trooper
explained that if Johnson chose the independent test at the State's expense, the State
would make arrangements for the blood draw and for storage of the blood. The trooper
also explained that, ifJohnson wanted an independent test of his own choosing, he would
be required to make arrangements and pay for the test himself.
After hearing this explanation, Johnson told the trooper that he wanted to
pay for the test himself. Johnson then asked several questions about making
arrangements for an independent test:
Johnson : So I can request a personal person to draw
it for me?
Trooper: Well, no. You're going to have to call
somebody who can draw blood.
Johnson : Well obviously, yeah.
Trooper: But do you have somebody that you can do
that with right now?
Johnson : I don't know the exact qualifications, but
yeah, I have someone.
Trooper: I mean, it can't just be, like, your friend or
something. It's going to have to be, like, a -
Johnson : It would be my mom. She's an actual
registered nurse - surgeon nurse and everything. Can I
request her?
Trooper: Hmm. I think it would have to be an actual
like medical practice or something.
Johnson : Yeah, all right.
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Trooper: If you wanted, we can take you down to
FMH [Fairbanks Memorial Hospital] and they'll draw and
we'll - we'll put it in evidence here for you. And it won't
cost you anything either.
Johnson : If it won't cost me anything, I'll try it.
Yeah.
The trooper then clarified, "Okay. It's up to you, though," and Johnson reiterated that
he wanted to "try it" - i.e., to get an independent blood test paid for by the State. The
trooper accordingly transported Johnson to Fairbanks Memorial Hospital where he had
his blood drawn.
Prior to trial, Johnson's attorney filed a motion to suppress the result of the
breath test, arguing that Johnson's right to an independent test of his own choosing had
been violated and that suppression was the appropriate remedy. The trial court
conducted an evidentiary hearing. At the hearing, the trooper, Johnson, and Johnson's
mother testified.
The trooper explained that he had never before encountered a DUI arrestee
who wanted an independent test of their own choosing rather than an independent test
paid for by the State. According to the trooper, he was concerned that Johnson's mother
would not have access to the proper equipment to draw blood in the middle of the night.
When asked what he would do in this type of situation in the future, the trooper
responded, "[J]ust to avoid this, I'd ask some more questions," and he agreed with the
defense attorney's suggestion that he would give a defendant either type of independent
test, as long as he could "figure out how to make [the test] actually come about."
For his part, Johnson testified that, based on the conversation he had with
the trooper, he felt limited to the independent test provided by the State. And Johnson's
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----------------------- Page 6-----------------------
mother testified that she was a registered nurse and that she would have drawn her son's
blood that night if she had been contacted.
The trial court granted Johnson's motion to suppress. The court found that
the trooper had dissuaded Johnson from obtaining a test of his own choosing and also
that the trooper needed to be deterred from future violations of AS 28.35.033(e). The
trial court accordingly held that exclusion of the breath test result was required. This
petition for review followed.
In the briefing before this Court, the State does not challenge the trial
court's finding that the trooper dissuaded Johnson from obtaining a test of his own
choosing. And the parties agree that Johnson ultimately did obtain an independent test
- because he submitted to the test offered at Fairbanks Memorial Hospital. As a result,
the question presented by this petition is whether the exclusionary rule is the appropriate
remedy for the trooper's violation of Johnson's statutory right, even though Johnson's
constitutional due process right to challenge the breath test by obtaining an independent
7
test was not violated.
When granting Johnson's motion to suppress, the trial court relied on the
8
supreme court's opinion in Ward v. State.
In Ward, the police refused to allow the defendant to have an independent
test at the facility of his choosing but offered to provide one at a facility chosen by the
State. Ward did not accept this offer, and as a result, he did not obtain an independent
test. He then moved to suppress his breath test result, but the trial court denied his
motion. On appeal, the supreme court concluded that Ward's breath test result must be
suppressed.
7 See Gundersen, 792 P.2d at 678.
8 Ward v. State, 758 P.2d 87 (Alaska 1988).
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In reaching this conclusion, the supreme court noted that it had applied the
exclusionary rule in a related line of cases which involved the violation of a statutory
right - specifically, the violation of AS 12.25.150(b), which gives a person arrested for
DUI the right to consult with an attorney before submitting to a police-administered
9
breath test. The court stated that the rationale supporting application of the exclusionary
rule in that context was equally compelling in the context of a violation of the statute
providing the right to an independent test.
As explained by the supreme court, this rationale is twofold. First, the
exclusionary rule should be applied when the police conduct is sufficiently unreasonable
that an exclusionary remedy is warranted. And second, the exclusionary rule should be
9 See, e.g., Copelin v. State , 659 P.2d 1206, 1214-15 (Alaska 1983) (holding that an
exclusionary remedy is appropriate to deter future illegal conduct by police or when the
statutory violation at issue had an effect on the defendant's ability to present a defense at
trial); Farrell v. Anchorage, 682 P.2d 1128, 1131 (Alaska App. 1984) (failure of police to
make even a minimal effort to accommodate the right to communicate with an attorney
required suppression of breath test result); Whisenhunt v. Dep't of Pub. Safety, 746 P.2d
1298, 1300 (Alaska 1987) (excluding breath test result in a civil license revocation hearing
where police violated the arrestee's right to consult with an attorney before taking the test);
Zsupnik v. State, 789 P.2d 357, 361 (Alaska 1990) (holding that a person arrested for DUI
had a statutory right to contact both a lawyer and a relative during the observation period and
that violations of this statutory right for purposes related to the defense process requires
exclusion of the breath test). But see Kiehl v. State, 901 P.2d 445, 448 (Alaska App. 1995)
(because police misconduct did not result in deprivation of defendant's statutory right to
consult an attorney, exclusionary rule did not apply); Saltz v. Dep't of Pub. Safety, 942 P.2d
1151, 1153-54 (Alaska 1997) (declining to apply exclusionary rule where trooper did not
assist defendant in contacting an attorney after trooper had already begun to administer the
breath test); Grossman v. State, 285 P.3d 281, 284-85 (Alaska App. 2012) (suppression of
breath test was not appropriate remedy where police gave the defendant an opportunity to
contact an attorney during the pre-test observation period and then declined to interrupt the
administration of the breath test in order to give defendant an additional opportunity to
contact an attorney).
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applied when the statutory violation has an effect on the defendant's ability to present
10
a defense at trial.
Applying this rationale to the facts presented in Ward, the supreme
court concluded that, because the police had "acted deliberately in denying [Ward] the
right to [an independent] test," application of the exclusionary rule would serve to deter
11
The court also concluded that Ward "was unable, as a
future illegal police conduct.
result of being denied a blood test, to attack the accuracy of his [police-administered
12
breath test]," which negatively impacted his ability to present a defense. For these
reasons, suppression of the result of the police-administered breath test was warranted.
We have repeatedly emphasized that the primary purpose of the
exclusionary rule is deterrence of future illegal conduct by the police. But, in cases
following the supreme court's decisions in Ward and in Copelin, we have also applied
the exclusionary rule to statutory violations that negatively impacted the defendant's
ability to present a defense at trial. For example, in Lau v. State and MacLeod v. State,
we applied the exclusionary rule when the police, while acting in good faith, convinced
13
the defendant to decline the opportunity for an independent blood test. In Lau, we
emphasized that the defendant's "ability to present a defense at trial was diminished by
14
the denial of a chance to directly attack the accuracy of the breath test result."
We accordingly conclude that the exclusionary rule should be applied to
violations of AS 28.35.033(e) when (1) the statutory violation has an effect on the
10 Ward, 758 P.2d at 90-91.
11 Id. at 90.
12 Id. at 91.
13 Lau v. State , 896 P.2d 825, 828-29 (Alaska App. 1995); MacLeod v. State , 28 P.3d
943, 944-45 (Alaska App. 2001).
14 Lau , 896 P.2d at 829.
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defendant's ability to present a defense at trial or (2) the police conduct is sufficiently
unreasonable that an exclusionary remedy is warranted.
On appeal, Johnson argues that the exclusionary rule should be applied
whenever the police dissuade a defendant from obtaining an independent blood test of
the person's own choosing, even if the defendant ultimately obtains an independent
blood test at government expense. He notes that the supreme court applied the
exclusionary rule in Ward after finding that the police deprived Ward of his statutory
right to obtain an independent test by a facility of his own choosing and argues that the
same outcome is required here.
But, as we have explained, in Ward, the police action prevented the
defendant from obtaining any independent blood test, and as a result, Ward "was
15
unable . . . to attack the accuracy of [the breath test]." In this case, by contrast, Johnson
did obtain an independent blood test. Although the police dissuaded Johnson from
obtaining an independent blood test of his choosing, Johnson ultimately obtained an
independent blood test at a facility selected by the government. Accordingly, the
statutory violation did not impact Johnson's ability to present a defense at trial, and the
16
supreme court's holding in Ward does not control the outcome of this case.
The remaining question is whether the conduct by the police was
sufficiently unreasonable to require exclusion of the evidence in order to deter future
police misconduct.
At the evidentiary hearing on Johnson's motion to suppress, Johnson
testified that, based on the conversation he had with the trooper, he felt limited to the
15 Ward, 758 P.2d at 91.
16 We reached a similar conclusion in our unpublished decision, McCabe v. Anchorage ,
1998 WL 872385, at *3 (Alaska App. Dec. 16, 1998) (unpublished).
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----------------------- Page 10-----------------------
independent test provided by the State. The trial court apparently accepted this
testimony when it found that the trooper dissuaded Johnson from obtaining a test of his
own choosing. The State chose not to challenge that finding on appeal. But this fact
alone does not require exclusion of the evidence.
The statutory right to obtain an independent test of one's choosing under
AS 28.35.033(e) - like the statutory right to contact and consult with counsel - is not
17
an absolute right but instead is a limited one.
Under AS 28.35.033(e), the police must
make a "reasonable" effort to assist the accused in obtaining the requested independent
18
test.
If obtaining an independent test is impracticable or exceedingly burdensome, no
19
test is constitutionally required.
As a practical matter, police officers who are tasked with assisting the
accused in obtaining an independent test "of the person's own choosing" must make a
number of decisions. For example, they must determine whether the location of the
defendant's proposed provider is within a reasonable distance from the place of arrest,
whether the proposed provider will be able to complete the test within a reasonable
period of time, and what type of assistance in locating and selecting a private
17 See Copelin, 659 P.2d at 1211-1212, 1212 n.14 (holding that "the statutory right
[under AS 12.25.150(b)] to contact and consult with counsel is not an absolute one (which
might involve a delay long enough to impair testing results), but, rather a limited one of
reasonable time and opportunity that can be reconciled with the implied consent statutes" and
that, when an accused is denied this right, the burden of proof is on the State to show that the
accused demanded an unreasonable amount of time and thereby interfered with the "prompt
and purposeful investigation" of the case); see also Snyder v. State, 930 P.2d 1274, 1278
(Alaska 1996).
18 AS 28.35.033(e) (providing that the Department of Public Safety "shall make
reasonable and good-faith efforts to assist the person being tested in contacting a person
qualified to perform an independent chemical test").
19 Snyder, 930 P.2d at 1278.
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independent testing facility the police must reasonably offer to the defendant. And while
significant guidance for complying with the statutory mandate of AS 12.25.150(b) may
20
be found in a line of cases beginning with the supreme court's decision in Copelin, our
case law provides little guidance for police officers tasked with assisting defendants in
obtaining a chemical test of their own choosing under AS 28.35.033(e).
In this case, the trooper testified that he had never before encountered a
person arrested for DUI who wanted an independent test of their own choosing rather
than an independent test paid for by the State. The trooper apparently recognized that,
as a registered nurse, Johnson's mother was a "qualified person" as defined by
AS 28.35.033(e), but he testified that he was concerned that Johnson's mother would not
have access to the proper equipment to draw blood in the middle of the night. Further,
when the trooper explained to Johnson that the troopers could transport him to a facility
of the State's choosing for a blood test and that the blood test would be free, Johnson
immediately agreed to this plan. Even after Johnson had agreed to the free independent
blood test at the facility chosen by the State, the trooper reminded Johnson that
ultimately the choice of testing facilities was "up to you." And the trooper did not
transport Johnson to the State's chosen facility until Johnson reaffirmed his decision to
20 In Copelin, the supreme court noted that, since a minimum fifteen-minute waiting
period is necessary before the police administer a breath test, no additional delay is incurred
by acceding to a request to contact an attorney during that time. Police accordingly are
required to allow defendants to contact their attorneys during this waiting period. See
Copelin, 659 P.2d at 1211. And in subsequent cases, this Court held that even though police
officers have a duty to maintain custodial observation of a defendant before administration
of the breath test, the officers nevertheless must give the defendant a reasonable opportunity
to hold a private conversation with an attorney. See Kiehl v. State , 901 P.2d 445, 446
(Alaska App. 1995); Reekie v. Anchorage, 803 P.2d 412, 415 (Alaska App. 1990);
Anchorage v. Marrs , 694 P.2d 1163, 1165-66 (Alaska App. 1985); Farrell v. Anchorage, 682
P.2d 1128, 1130-31 (Alaska App. 1984).
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----------------------- Page 12-----------------------
forego a test of his own choosing and to instead obtain the free test offered by the State.
Given these circumstances, the trooper's conduct was not unreasonable.
Indeed, the trial court did not find that the trooper acted unreasonably.
Instead, the trial court found that application of the exclusionary rule was needed to deter
the trooper from committing future violations of AS 28.35.033(e). But the record does
not support the trial court's finding that the trooper was likely to commit future
violations. At the evidentiary hearing, the trooper testified that if this situation arose
again, he would ask more questions and he would provide a defendant with a test of their
own choosing as long as he could "figure out how to make [the test] actually come
about." In other words, the trooper testified that he would make good-faith, reasonable
efforts to ensure that a defendant's right to an independent test of their own choosing was
honored. This is what the law requires.
We accordingly conclude that, in this case, application of the exclusionary
rule was not necessary to deter future misconduct by the police. And since we have also
concluded that Johnson's ability to present a defense was not impacted by the statutory
violation in this case, we must reverse the trial court's order suppressing the breath test
result.
Conclusion
The trial court's order suppressing the result of the police-administered
breath test is REVERSED. This case is REMANDED to the trial court for further
proceedings consistent with this opinion.
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