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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BELINDA DANICE NELSON,
Court of Appeals Nos. A-13008 & A-13014
Appellant/Cross-Appellee, Trial Court No. 1KE-17-00024 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee/Cross-Appellant. No. 2721 - February 18, 2022
Appeal from the District Court, First Judicial District,
Ketchikan, Kevin G. Miller, Judge.
Appearances: Emily L. Jura, Assistant Public Defender, and
Samantha Cherot, Public Defender, Anchorage, for the
Appellant/Cross-Appellee. Michal Stryszak, Assistant Attorney
General, Office of Criminal Appeals, Anchorage, and Kevin G.
Clarkson, Attorney General, Juneau, for the Appellee/Cross-
Appellant.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge WOLLENBERG.
Belinda Danice Nelson was charged with driving under the influence and
refusal to submit to a chemical test after she drove her car into a ditch in Metlakatla. At
her bench trial, Nelson argued that the government violated her right to due process by
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failing to advise her of her right to an independent chemical test. She further argued that,
as a result of this violation, the district court was required to presume that an independent
test would have revealed either no alcohol or a low level of alcohol in her blood.
The State did not dispute, and the court agreed, that Nelson's right to due
process was violated by the failure to advise her of her right to an independent chemical
test. But the court concluded that the proper remedy for this violation was to presume
only that the result of the test would have been below .08 percent. The court ultimately
found Nelson guilty of driving under the influence, but acquitted her of refusal to submit
to a chemical test.
Nelson now appeals her conviction, primarily challenging the district
court's ruling regarding the applicable presumption.
For the reasons we explain in this opinion, we agree that the presumption
adopted by the district court was insufficiently favorable to Nelson, and we reverse her
conviction for driving under the influence.
Factual and procedural background
In the fall of 2016, Nelson crashed her car into a ditch in Metlakatla.
Metlakatla Police Chief Bruce Janes responded to the scene. Upon arrival, Janes
observed Nelson unsuccessfully attempting to drive her car out of the ditch. According
to Janes, Nelson was uncooperative, initially refused to get out of her car, and later
refused to perform field sobriety tests. He also testified that her breath smelled of
alcohol, and she staggered when she tried to walk.
Janes arrested Nelson for driving under the influence.
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At the police station, Janes asked Nelson if she would submit to a breath
test, but Nelson remained silent. Janes did not notify Nelson of her right to an
1
independent chemical test.
No breath or blood test was ever conducted.
Nelson was charged with driving under the influence under
2
AS 28.35.030(a)(1). Under this portion of the statute, the government is not required
to prove that the defendant's blood or breath alcohol content was at a particular level as
determined by a chemical test. Instead, the government must prove that the defendant
3
was "actually impaired" by the consumption of alcohol (or a controlled substance). In
this type of case, however, evidence of a defendant's blood or breath alcohol content as
determined by a chemical test may be relevant to determining whether the defendant was
impaired.4
Nelson waived her right to a jury trial, and her case proceeded to a bench
trial. Nelson testified in her own defense. She testified that she had been having car
problems, which contributed to her driving into the ditch. She denied drinking any
1 See AS 28.35.033(e) (codifying right to independent chemical test); Gundersen v.
Anchorage , 792 P.2d 673, 676-77 (Alaska 1990) (holding that the Alaska due process clause
requires that a defendant accused of driving under the influence be given an opportunity to
challenge the reliability of the police-administered breath test, and that notice of the right to
obtain an independent chemical test, and assistance in obtaining that test, satisfies that right).
2 Nelson was also charged with refusal to submit to a chemical test under
AS 28.35.032(a). The trial court acquitted her of that charge, finding that there was a
reasonable doubt as to whether Nelson knowingly refused to submit to the test.
3 See Comeau v. State, 758 P.2d 108, 110 (Alaska App. 1988); Anderson v. Anchorage ,
645 P.2d 205, 212 (Alaska App. 1982).
4 See AS 28.35.033(a) (establishing presumptions for whether a vehicle operator was
under the influence based on specific ranges of chemical test results); see also Anderson, 645
P.2d at 212 (discussing former version of statute).
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alcohol that day. She also testified that Janes became combative with her before she had
the opportunity to cooperate.
After the State rested its case, Nelson's attorney argued that Janes's failure
to advise Nelson of her right to an independent test violated her right to due process
under the Alaska Constitution. Citing the Alaska Supreme Court's decision in Snyder
v. State, Nelson's attorney asked the court to presume that the result of an independent
5
test, had one been conducted, would have been favorable to Nelson.
More specifically,
Nelson's attorney asked the court to presume that an independent test would have
revealed that Nelson "had no alcohol in her system or, at the very least, that it was so low
that she was not impaired by it."
The State did not dispute that Nelson's due process rights were violated.
But the State did challenge Nelson's proposed remedy. The State argued that it was
sufficient for the court to presume that an independent test would have revealed a blood
alcohol level below .08 percent.
The district court concluded that a due process violation had occurred but
agreed with the State as to the appropriate remedy. In particular, the court stated that it
was "assuming that, had Ms. Nelson submitted to a test, it would have been below .08,"
but that it was "not presuming that it was .000."
The court ultimately found Nelson guilty of driving under the influence.
The court acknowledged that Nelson had testified that she had not had anything to drink
and that the accident had been caused by mechanical problems. But the court found that
5 See Snyder v. State (Snyder I), 930 P.2d 1274, 1278-79 (Alaska 1996) (holding that
the police must afford the defendant an opportunity to obtain an independent test, even when
the defendant refuses to take the statutorily prescribed test, and that the remedy for violating
this requirement under those circumstances is for the fact-finder to presume that the results
of an independent test would have been "favorable" to the defendant).
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Nelson's testimony was not credible. Instead, the court credited Janes's testimony (and
the testimony of an additional witness on the scene) that Nelson smelled of alcohol and
was unable to stand on her own.
Why we reject the State's request to affirm Nelson's conviction on the
ground that her due process rights were not violated
We must first address a preliminary claim that is raised by the State in a
cross-appeal: that although Snyder generally requires the police to offer an independent
chemical test to a person arrested for driving under the influence, Nelson's case falls into
6
an exception and therefore no due process violation occurred.
In particular, relying on
Janes's testimony about the unavailability of independent tests in Metlakatla and the
difficulty of traveling to Ketchikan given the time of Nelson's arrest relative to the flight
and ferry transport times, the State contends that obtaining an independent test would
have been impracticable in this case. The State therefore argues that there was no need
for a favorable presumption of any kind and that we can affirm Nelson's conviction on
this alternate ground.
It is true that, under Snyder, an independent test is not constitutionally
required "if obtaining an independent test is impracticable or exceedingly burdensome"
7
under the circumstances. But the State never argued in the trial court that it would have
been impracticable or burdensome to obtain an independent test in this case. Indeed, the
6 The State raises this claim in a cross-appeal, although strictly speaking, a cross-appeal
as to this issue was unnecessary because the State, as the appellee, may argue for affirmance
on any ground established by the record. See Millman v. State, 841 P.2d 190, 195 (Alaska
App. 1992). (We note that a cross-appeal was necessary as to a different claim initially
raised by the State - that the trial court erred in dismissing the refusal charge - but the
State did not pursue that issue in its briefing.)
7 Snyder I, 930 P.2d at 1278.
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State did not dispute that the failure to offer Nelson an independent test violated her right
to due process.
As a result, the district court never made any factual findings as to whether
anindependent test would havebeen impracticableor exceedingly burdensomegiven the
time and place of Nelson's arrest. And as an appellate court, we are not authorized to
make factual findings in the first instance. Given the absence of the factual findings that
would be necessary to decide this claim, we reject the State's request to affirmthe court's
8
decision on this alternate ground.
Why we agree with Nelson that the presumption adopted by the district
court was insufficiently favorable
Onappeal, Nelsonarguesthatthedistrictcourt erred whenit presumed only
that the result of an independent chemical test would have been below .08 percent.
Citing Snyder and AS 28.35.033(a), Nelson argues that the court was required to
presume that the result would have been below .04 percent.
8 See Seybert v. Alsworth , 367 P.3d 32, 38-39 (Alaska 2016) ("[W]e will affirm on
independent grounds not relied on by the superior court only when those grounds are
established by the record as a matter of law."); Irby v. Fairbanks Gold Mining, Inc. , 203 P.3d
1138, 1142 (Alaska 2009) ("The principle that [an appellate court] can affirm on alternative
grounds applies 'only to issues of law that find support in settled facts' and 'does not extend
to new theories that would normally be resolved by discretionary powers traditionally
reserved for trial courts - powers relying on case-specific consideration of disputed or
disputable issues of fact.'" (quoting Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006)));
Burnett v. State, 264 P.3d 607, 612 (Alaska App. 2011) (noting that an appellee "is entitled
to argue for affirmance of the district court's decision on any legal ground revealed by
undisputed facts in the trial court record"); see also Meidinger v. Koniag, Inc., 31 P.3d 77,
88 (Alaska 2001) (concluding that the issues raised in the cross-appeal were not preserved
for review).
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In Alaska, a person accused of driving under the influence has the
9
constitutional and statutory right to an independent chemical test.
This right is violated
if the government refuses a defendant's request for an independent test or if the
10
In Snyder
government fails to notify the defendant of their right to an independent test.
v. State, the Alaska Supreme Court held that a person has the right to an independent test
11
even if the person refuses to take the statutorily prescribed breath test.
When the defendant submits to a breath test, but the State violates the
defendant's due process right to an independent chemical test, the proper remedy is
12
suppression of the breath test. But in Snyder, the supreme court stated that when there
is no test to suppress - as is the case here - suppression is not a meaningful sanction
13
for the State's due process violation. Instead, the supreme court held, the appropriate
remedy is for the fact-finder to presume that the results of an independent test, had one
14
been conducted, would have been "favorable" to the defendant.
9 AS 28.35.033(e); Gundersen v. Anchorage, 792 P.2d 673, 676-77 (Alaska 1990).
10 Snyder I, 930 P.2d at 1278; Gundersen, 792 P.2d at 677 (holding that "clear and
express notice of a defendant's statutory right to an independent test under these conditions
satisfies the requirements of due process").
11 Snyder I, 930 P.2d at 1278 ("[W]e believe that in the DWI context the accused's right
and the state's duty extend to the opportunity to obtain an independent chemical test, and that
this opportunity must be made available to the accused whether or not the accused agrees to
submit to a breath test."). The independent test, if performed, does not preclude the State
from charging the defendant with refusal to submit to the statutorily-prescribed breath test.
Id. at 1277 n.3.
12 Id. at 1279.
13 Id.
14 Id.
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The issue presented here is whether the presumption adopted by the district
court in this case - that an independent test would have revealed an amount below .08
- was sufficiently "favorable" to Nelson.
The Snyder court did not define with precision what it meant by
"favorable." Instead, the court cited to AS 28.35.033 as "establishing presumptions
15
regarding intoxication on the basis of blood alcohol content."
Alaska Statute 28.35.033(a) establishes three possible presumptions for
cases in which there is an admissible chemical test and the State chooses to prosecute the
defendant under an impairment theory. Subsection (a)(1) provides that if the test reveals
a blood or breath alcohol level of .04 or lower, "it shall be presumed that the person was
not under the influence of an alcoholic beverage." Subsection (a)(2) provides that if the
test reveals a blood or breath alcohol level of more than .04 but less than .08, there is no
presumption as to whether the defendant was or was not under the influence of an
alcoholic beverage. And subsection (a)(3) provides that if the test reveals a blood or
breath alcohol level of .08 or more, "it shall be presumed that the person was under the
influence of an alcoholic beverage."
On appeal, Nelson argues that, of these three subsections, only the first,
subsection (a)(1), can be accurately described as adopting a presumption that is
"favorable" to the defendant. The plain language of the statute supports this position.
Subsection (a)(1) requires a presumption that the person was not under the influence of
an alcoholic beverage, whereas subsection (a)(2) requires no presumption, and
subsection (a)(3) requires a presumption that the person was under the influence of an
alcoholic beverage.
15 Id. at 1279-80.
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Nelson's position is further supported by the supreme court's decision in
Snyder II - a decision addressing the administrative revocation of Snyder's driver's
16
license based on the same incident that gave rise to Snyder I .
In Snyder II, the supreme
court characterized its holding in Snyder I as follows: "Because the police violated
Snyder's right to due process by refusing him an independent blood test, we ordered in
Snyder I that courts apply a presumption that the blood test results would have been
17
favorable to him and thus supported his claim that he was not intoxicated." In support
of this assertion, the court expressly cited the blood alcohol percentage contained in
AS 28.35.033(a)(1) - noting that, while a blood alcohol level below .05 percent (a
18
number that has now been amended to .04 percent) "does not automatically exonerate
a defendant" of driving under the influence, "it establishes a presumption that a person
19
is not under the influence of intoxicating liquor."
Based on this discussion in Snyder II, we conclude that AS 28.35.033(a)(1)
establishes the favorable presumption required by Snyder I.
Here, the district court agreed with Nelson that she was entitled to a
"favorable" presumption, but it only presumed that the result of an independent test
would have revealed a blood alcohol level below .08 percent. This was insufficiently
"favorable" because the presumption that the person is not under the influence of
intoxicating liquor is only triggered when the blood alcohol level is .04 percent or less.
16 Snyder v. State, Dep't of Pub. Safety, Div. of Motor Vehicles (Snyder II), 31 P.3d 770
(Alaska 2001).
17 Id. at 775.
18 SLA 2001, ch. 63, § 14.
19 Snyder II, 31 P.3d at 775 & n.21.
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The trial court should therefore have presumed that Nelson's breath test would have
yielded a result of .04 or less.
20
We note, however, that this presumption is rebuttable.
Even when the
fact-finder is required to presume that the results of an independent test would have been
.04 percent or lower, the State may still present evidence to demonstrate that the
defendant was nonethelessunder theinfluenceofalcohol (either singlyor in combination
with other qualifying substances), and the fact-finder may still conclude, if the other
evidence is sufficiently persuasive, that the State has established beyond a reasonable
21
doubt that the defendant was under the influence.
Thus, because the trial court did not apply a sufficiently "favorable"
presumption for purposes of the supreme court's decisions in Snyder I and Snyder II, we
conclude that Nelson's conviction must be vacated and her case remanded for a new trial
22
in which the proper presumption under AS 28.35.033(a)(1) is applied.
Conclusion
Nelson'sconvictionfordrivingundertheinfluenceisREVERSED, and this
case is REMANDED for further proceedings consistent with this opinion.
20 See Anderson v. Anchorage , 645 P.2d 205, 212 (Alaska App. 1982) (construing a prior
version of AS 28.35.033(a) & (c), which contained nearly identical language, as creating a
rebuttable presumption).
21 See AS 28.35.033(c) (providing that the presumptions set out in AS 28.35.033(a)
"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").
22 Because we are remanding for a new trial, we need not address Nelson's claim that
the trial court erred in allowing the investigating officer to offer an opinion as to whether
Nelson was intoxicated.
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