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J. Pruitt v. Dept. of Public Safety, Div. of Motor Vehicles (2/7/92), 825 P 2d 887
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NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES T. PRUITT, )
) Supreme Court No. S-3991
Appellant, )
)
v. ) Superior Court No.
) 3KN-88-961 Civil
STATE OF ALASKA, DEPARTMENT OF)
PUBLIC SAFETY, DIVISION OF )
MOTOR VEHICLES, )
) O P I N I O N
Appellee. )
______________________________) [No. 3809 - February 7, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Kenai,
J. Justin Ripley, Judge.
Appearances: Robert Merle Cowan, Law
Offices of Cowan & Gerry, Kenai, for
Appellant. Teresa Williams, Assistant
Attorney General, Anchorage, Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
RABINOWITZ, Chief Justice.
This is an appeal from the superior court's affirmance
of the Department of Public Safety's revocation of James Pruitt's
driver's license. The primary issue in this appeal is whether
the Division of Motor Vehicles (DMV), Department of Public Safety
(DPS) was bound by the District Court's ruling that Pruitt's due
process rights were violated in regard to the criminal refusal to
take a breathalyzer test charge which had been filed against
Pruitt.
I. FACTS AND PROCEEDINGS
On April 15, 1988, James T. Pruitt was stopped and
arrested for driving while intoxicated (DWI). After being taken
to the Seward Correctional Center, Pruitt was asked to submit to
a chemical test of his blood alcohol content by blowing into an
intoximeter. Pruitt refused to submit to the test and asked to
make a phone call to his lawyer. After making a phone call,
Pruitt refused the test again stating "[m]y lawyer told me to do
anything I want to, but I'm still not blowing." The police then
read Pruitt the implied consent notice,1 after which Pruitt again
refused to submit to the test. Pruitt was then brought into the
booking room. As Pruitt was taking his possessions out of his
pocket, he grabbed a bottle of Binaca (a breath freshener which
has an alcohol content), and sprayed it down his throat.
While an officer was reading Pruitt the DMV order of
license revocation, Pruitt stated that he wanted to take the
intoximeter test. The officer refused to administer the test on
the bases that Pruitt had already refused to take the test after
discussing the matter with his attorney; had refused to take the
test after the informed consent notice had been read to him; and
had sprayed his throat with Binaca, which would alter the test
results and consequently require another twenty minute
observation period before the intoximeter test could be
administered.
Pruitt's driver's license was revoked by DMV on the
basis that he refused to submit to the breath test. On April 20,
1988, Pruitt appealed the revocation and requested an
administrative hearing. He conceded the validity of the stop but
asserted that he had not refused to take the test.
In the underlying criminal case, concerning breath
test refusal (BTR), Magistrate Peck ruled on September 12, 1988
that "[t]he court at this point is not necessarily prepared to
find as a matter of law that there was no actus reus to the
charge of BTR." The magistrate ordered further briefing on the
issue.
Thereafter an administrative hearing was held on
November 7, 8, & 10, 1988, before a hearing officer in regard to
the revocation of Pruitt's driver's license. The sole issue at
this hearing was whether Pruitt's actions constituted a refusal
to take a breath test, and whether he had cured that refusal by
subsequently consenting. The hearing officer affirmed the
revocation of Pruitt's license on the basis that Pruitt had been
given ample time and opportunity to take the breath test. Pruitt
objected to the hearing officer's ruling, arguing that Magistrate
Peck's decision of September 12 was a final binding ruling which
dictated a contrary holding. Pruitt further argued that Briggs
v. State, Dep't of Public Safety, 732 P.2d 1078 (Alaska 1987),
supported his contention that the administrative agency was
collaterally estopped by virtue of the district court's ruling in
the criminal proceeding. The hearing officer indicated that she
would examine the case and determine whether she was bound by
Magistrate Peck's decision.
On November 9, Magistrate Peck issued a second ruling
in the criminal case. He found that the issue of whether Pruitt
refused to take the breath test was a matter of fact to be
determined by the jury. The following day, on November 10, the
hearing officer ruled that Magistrate Peck's decision of
September 12 was not binding, as the magistrate had not dismissed
the refusal charge. The hearing officer also held that Briggs
was not controlling. Accordingly, the hearing officer affirmed
Pruitt's license revocation. Pruitt then appealed that
administrative decision to the superior court.
On August 1, 1989, Magistrate Peck entered a third
order in the criminal case, reversing himself and dismissing the
criminal charge for refusal to take a breath test. The
prosecution petitioned the court of appeals for review of the
dismissal. The petition was subsequently denied.
On December 22, 1989, Pruitt filed a petition for
reconsideration with the DMV. Pruitt's petition for
reconsideration was based on Magistrate Peck's August 1, 1989
decision in the criminal case. No action was taken by the DMV on
the petition. At oral argument before the superior court in
connection with his administrative appeal, Pruitt moved to
supplement the record with the petition for reconsideration he
had filed with DMV. The superior court denied supplementation of
the record, concluding that the materials had not been before the
hearing officer and that they were not relevant or material to
the pending administrative appeal.
The superior court then affirmed the administrative
agency's decision to revoke Pruitt's driver's license. It
concluded that the administrative agency was not collaterally
estopped from considering the issue of Pruitt's refusal since
there was no final judgment on the merits on the refusal to take
a breath test prior to the decision reached by the hearing
officer. Moreover, it ruled that there was substantial evidence
presented to the hearing officer to support the finding that
Pruitt refused to take the breath test despite several
opportunities, and assuming that this jurisdiction adopted a
flexible rule allowing a motorist to cure a refusal, Pruitt had
not cured his refusal.
This appeal followed.
II. COLLATERAL ESTOPPEL
Pruitt's main contention is that the administrative
agency was collaterally estopped from considering the issue of
his breath test refusal by virtue of the district court's third
decision. That decision dismissed the criminal breath test
refusal charge on the basis that Pruitt's due process rights were
violated since he was not given an opportunity to cure his
refusal. Pruitt cites Briggs v. State, Dep't of Public Safety,
732 P.2d 1078 (Alaska 1987) for the proposition that an order in
a criminal case is binding on a subsequent administrative action
when the requirements of collateral estoppel are met. Pruitt
contends that in the instant case all of the requirements for
collateral estoppel have been met. He urges this court to hold
that the administrative agency was bound by the district court's
decision that his due process rights were violated in connection
with the refusal charge.
The state responds that Magistrate Peck's September 18,
1988 Order did not constitute a final order for purposes of
collateral estoppel. The state argues that prior to the
administrative decision being entered, the magistrate in his
Order of November 9, 1988 found the question of refusal to be a
jury issue. The magistrate's Final Ruling and Dismissal Order of
August 1, 1989 was entered after the agency had made its
determination on November 10, 1988 revoking Pruitt's license.
Accordingly, the state asserts that for purposes of issue
preclusion, the final judgment must be entered prior to the
administrative decision. We agree with the state and reject
Pruitt's arguments. In Briggs, we stated that the requirements
for collateral estoppel are:
(1) the issue decided in a prior
adjudication was precisely the same as that
presented in the action in question; (2) the
prior litigation must have resulted in a
final judgment on the merits; and (3) there
must be 'mutuality' of parties, i.e.,
collateral estoppel may be invoked only by
those who were parties or privies to the
action in which the judgment was rendered.
732 P.2d at 1081, (citing Pennington v. Snow, 471 P.2d 370, 375,
377 (Alaska 1970)); see also Kott v. State, 678 P.2d 386, 391
(Alaska 1984) (upholding mutuality requirement in criminal
context).
Pruitt has fulfilled the first requirement. The issue
of whether Pruitt was given a reasonable opportunity to cure his
refusal was presented in both the criminal and civil proceedings.
The privity requirement has also been fulfilled. See Briggs, 732
P.2d at 1082 (the Department of Public Safety and the state were
in privity because the general rule is that litigation by one
agency is binding on other agencies of the same government). We
conclude, however, that Pruitt has not met the finality
requirement. In Briggs we stated:
Concerning the finality requirement for
collateral estoppel, we observe that the
state did not appeal the district court's
suppression ruling. For purposes of issue
preclusion, "final judgment" includes "any
prior adjudication of an issue in another
action that is determined to be sufficiently
firm to be accorded conclusive effect.
(citations omitted). Factors supporting a
conclusion that a decision is final for this
purpose are "that the parties were fully
heard, that the court supported its decision
with a reasoned opinion, that the decision
was subject to appeal or was in fact reviewed
on appeal. (quoting Restatement (Second) of
Judgments 13g (1982).
Id. In the instant case the parties were fully heard and the
district court's decision on the refusal issue was appealable.
However, finality is lacking if an issue of law or fact essential
to the adjudication of the claim has been reserved for future
determination.2 Restatement (Second) of Judgments 13b (1982).
In Pruitt's case, a final determination in the criminal
proceeding was not rendered until August 1, 1989, when Magistrate
Peck reversed his previous ruling that the issue of Pruitt's
refusal was a jury issue, and dismissed the criminal charge
against Pruitt regarding his refusal to take the breath test.
Thus, the final judgment on the merits in the criminal case was
entered nine months subsequent to the hearing officer's final
decision.
In arguing that the agency should have granted his
motion for reconsideration by virtue of the district court's
final judgment, Pruitt essentially asks this court to hold that
the doctrine of collateral estoppel can be retroactively applied.
We refuse to do so. Collateral estoppel requires that a final
judgment on the merits occur prior to the decision reached by the
hearing officer. Restatement (Second) of Judgments 27 (1982)
supports our position:
When an issue of fact or law is actually
litigated and determined by a valid and final
judgment, and the determination is essential
to the judgment, the determination is
conclusive in a subsequent action between the
parties, whether on the same or a different
claim.
(Emphasis added).
27 comment states:
a. Subsequent action between the same
parties. The rule of issue preclusion is
operative where the second action is between
the same persons who were parties to the
prior action, and who were adversaries (see
38) with respect to the particular issue,
whether the second action is brought by the
plaintiff or by the defendant in the original
action.
(Emphasis added).
Pruitt cites Brownsberger v. Dep't of Transp., 460 N.W.
2d 449 (Iowa 1990), for an example of a case in which collateral
estoppel was retroactively applied. We do not find that case
persuasive, however, because the reviewing court was interpreting
a statute, which required reinstatement under certain
circumstances, to determine whether it effectively operated as a
statutory exclusionary rule.3 Id. at 450. The court concluded
that it did and reversed the DOT's refusal to rescind
Brownsberger's revocation. Id. at 451.
Unlike Brownsberger, Pruitt is not basing his arguments
for retroactivity on a statute, but on the doctrine of collateral
estoppel. In Briggs v. State, Dep't of Public Safety, 732 P.2d
1078 (Alaska 1987), we held that the state was collaterally
estopped from relitigating whether the state took reasonable
steps to preserve a breath sample, but we retroactively applied
the rule of Champion v. Dep't of Public Safety, 721 P.2d 131
(Alaska 1986), which found that due process requires the state to
take reasonable procedures to preserve a breath sample.4 Thus,
we have held that when a new rule of law is adopted it can be
retroactively applied in certain circumstances. See Farleigh v.
Municipality of Anchorage, 728 P.2d 637 (Alaska 1986); Howe v.
State, 611 P.2d 16 (Alaska 1980). However, we reject Pruitt's
contention that collateral estoppel should be retroactively
applied for the reason that collateral estoppel requires the
final judgment to be entered prior to a determination in the
subsequent proceeding. The final judgment of dismissal in the
criminal proceeding against Pruitt was not obtained until nearly
nine months after the agency made its license revocation
determination. Therefore, we affirm the superior court's
rejection of Pruitt's collateral estoppel claim.
III. DID THE HEARING OFFICER AND THE SUPERIOR COURT ERR IN NOT
ADOPTING A FLEXIBLE TEST ALLOWING A MOTORIST TO CURE A
REFUSAL TO TAKE A BREATH TEST?
The issue of whether a person should be allowed an
opportunity to cure a refusal to take a breath test is one of
first impression for this court. Pruitt submits that in
addressing the question of whether a person should be allowed to
cure a refusal, this court should adopt a "flexible" rule and
allow an accused motorist a "reasonable"opportunity to change a
refusal into a consent. Pruitt argues that absent evidence that
a delay would materially affect the results of the test, or would
be a substantial inconvenience, a motorist should be able to cure
a refusal. Pruitt further submits that a delay of less than 20
minutes in the instant case would not have interfered with the
results of the test. In support of these arguments Pruitt draws
on cases from other jurisdictions that have adopted the
"flexible"rule. E.g., Zahtila v. Motor Vehicle Div., 560 P.2d
847 (Colo. Ct. App. 1977) (refusal may be changed into consent
unless the delay will materially affect the results of the test);
Larmer v. State Dep't of Highway Safety, 522 So.2d 941 (Fla.
Dist. Ct. App. 1988) (defendant may change initial refusal to
take a breath test to a consent by changing his mind moments
later and clearly stating it); State v. Moore, 614 P.2d 931 (Haw.
1980) (defendant can cure a refusal unless a delay would
materially affect the test results or prove substantially
inconvenient to administer); Lund v. Hjelle, 224 N.W.2d 552 (N.D.
1974) (a subsequent consent cures a prior refusal when a request
to take the test is made within a reasonable amount of time after
the prior refusal).
The state argues that once a motorist makes an informed
decision to refuse to take a breath test, that person should be
bound by the decision and not be permitted to later cure the
refusal by agreeing to take the test. The state points out that
many jurisdictions have favored a strict standard because of the
serious impediment to law enforcement that a contrary
interpretation would have. The state quotes Hoyle v. Peterson,
343 N.W.2d 730, 734 (Neb. 1984), for an example of such
considerations:
There are several factors militating
against the argument for additional time to
allow a driver's subsequent offer to take the
test. As time elapses between arrest and the
test, the reliability and accuracy of the
test diminishes. The time element may
require involvement of an expert to
extrapolate information derived from a
delayed test. This tends to unnecessarily
compound or complicate matters of evidence.
Also, permitting a delayed test at the
subsequent offer of the motorist would
require officers to wait and see if there was
a change of mind by the refusing motorist,
and would require officers to forego other
responsibilities in order to arrange the
belated test -- all contrary to the clear
intent behind the implied consent law that
the test be submitted and completed
expeditiously.
(Citations omitted);
See also, Zidell v. Bright, 71 Cal. Rptr. 111 (Cal. Ct. App.
1968) (refusal found where motorist refuses test upon arrest, but
consents 30-45 minutes later); State v. Landry, 428 A.2d 1204,
1206 (Maine 1981) (once motorist has voluntarily refused a
reasonable opportunity to take test, police do not need to
provide test when motorist changes his mind); Application of
Kunneman, 501 P.2d 910 (Okla. Ct. App. 1972) (police had
sufficient grounds to deny motorist's ultimate request to take
test after five prior refusals); Peterson v. State, 261 N.W.2d
405, 409 (S.D. 1977) (refusal found where motorist does not
comply with three requests for test over a 23-minute period, then
consented an hour later after calling a friend).
The state submits that jurisdictions that have adopted
a flexible standard do not allow motorists to contact an attorney
prior to making a decision whether to take the test. Moreover,
the courts which have adopted the "flexible"rule are reluctant
to bind a motorist with an error of judgment, which is often the
result of an uncounseled decision. The state contends that there
is no basis to be similarly reluctant in Alaska, which has
adopted a different rule on access to counsel.
The elements of consideration for courts that have
adopted the "flexible"test are stated in Lund v. Hjelle, 224
N.W.2d at 557 (in which the motorist reconsidered his initial
refusal about one hour later after speaking with his insurance
agent):
[T]he subsequent consent to take the
test cures the prior first refusal when the
request to take the test is made within a
reasonable time after the prior first
refusal; when such a test administered upon
the subsequent consent would still be
accurate; when testing equipment or
facilities are still readily available; when
honoring a request for a test, following a
prior first refusal, will result in no
substantial inconvenience or expense to the
police; and when the individual requesting
the test has been in police custody and under
observation for the whole time since his
arrest.
The state submits that even under standards articulated by courts
which allow the flexible approach, Pruitt did not establish by a
preponderance of the evidence that his eventual request to take
the test was sufficiently timely to cure his prior refusal.
The issue of whether a motorist should be allowed an
opportunity to cure a refusal has previously been addressed by
the court of appeals in a criminal prosecution context. In
Lively v. State, 804 P.2d 66 (Alaska App. 1991), the court of
appeals considered the question of whether to adopt a subsequent
consent as an affirmative defense to the charge of refusal to
submit to a chemical test. The court noted that although all
fifty states have enacted implied consent laws making licence
suspension the automatic penalty for refusal to submit to a
chemical test, only Alaska and Nebraska have made a refusal a
criminal offense in and of itself. Id. at 69.
Reviewing case law from other jurisdictions, the court
examined the rationales behind the minority (flexible) and
majority (absolute) rules:
There are two basic rationales behind
the adoption of the rule that a subsequent
consent can cure a prior refusal. The first
reason is fairness to the arrestee. The
Arizona Court of Appeals held:
Although an absolute
rule preventing a subsequent
consent after an initial refusal
has the advantage of granting
unmistakable clarity to the
defendant's obligation under the
implied consent law, it could lead
to unnecessarily harsh and self-
defeating results.
The other basis for the subsequent
consent rule is the belief that this rule
best furthers the purpose of the implied
consent statutes by encouraging the
administration of chemical tests in as many
cases as possible.
The majority rule is that a refusal
cannot be vitiated by a subsequent
consent. . . .
As in the case with the minority
rule, there are two basic rationales for the
bright-line rule that a refusal cannot be
rescinded by a subsequent consent. The first
is the concern that the reliability of the
test results diminishes with the passage of
time, thus allowing arrestees to manipulate
their test results by delaying their
consent. . . . The other rationale for the
bright-line rule is that it is unreasonable
to expect the arresting officer to consider a
refusal as conditional, and to require the
officer to remain available to test the
arrestee in the event of subsequent change of
heart.
Id. at 69-70 (citations omitted). After balancing the opposing
rationales of the minority and majority rules, the court of
appeals stated that it was inclined to allow a cure under certain
circumstances, but declined to adopt the defense for a motorist
who had already been turned over to jail custodians by the
arresting officer and allowed to smoke a cigarette. Id. at 71.
We agree with the court of appeals and think that the
adoption of a flexible rule is appropriate in light of the
reasons in support of the flexible rule and the fact that Alaska
has criminalized a refusal to take a breathalyzer test. AS
28.35.032. Moreover, we see no reason to apply a different rule
for administrative proceedings when the court of appeals has
adopted a flexible rule for criminal proceedings. In determining
whether a motorist's subsequent consent to take the test cures
the prior refusal, we adopt the factors articulated in Lund v.
Hjelle, 224 N.W.2d at 557, i.e.: that the subsequent consent
occurred within a reasonable time after the prior first refusal;
that the test administered following the subsequent consent will
still be accurate; that the test will not result in any
substantial expense or inconvenience to the police; and that the
arrestee has been in continuous custody of the arresting officer
and under observation for the entire time.
We next address the question of whether under the
flexible rule Pruitt cured his refusal to take a breath test.
Pruitt has the burden to establish by a preponderance of the
evidence that his eventual request to take the test was made
within a reasonable time, that a breath test administered upon
his eventual consent would have been accurate, or that honoring
his request for a test would not have resulted in substantial
inconvenience or expense to the police. Our study of the record
leads us to hold that Pruitt has failed to do so.
Officer Richard's testimony indicates that Pruitt was
read the implied consent notice, was allowed to call his
attorney, yet continued to refuse to take the test after several
opportunities, and only consented after spraying breath spray
containing alcohol down his throat. This latter act on Pruitt's
part is tantamount to a refusal regardless of any expressed
willingness on his part to take the breath test. See e.g., White
v. Melton, 401 N.Y.S.2d 664 (N.Y. App. Div. 1978); Moseley v.
Commonwealth, 492 S.W.2d 204 (Ky. App. 1973). Moreover, Pruitt's
act of spraying his throat necessitated an additional twenty
minute observation period according to the provisions of 7 AAC
30.020.5 Such a delay would pose a substantial burden on the
officer who then had custody of Pruitt since the officer would
have been prevented from fulfilling other duties.
For the reasons stated above, we affirm the superior
court's affirmance of DMV's revocation of Pruitt's driver's
license.
IV. ATTORNEY'S FEES
We next address the question of whether the superior
court abused its discretion in granting the state $1,106.00 in
attorney's fees.
A. Background
Pruitt appealed the decision of the DMV hearing officer
to suspend his license. The superior court entered its decision
on April 20, 1990, affirming the agency's decision. Pruitt filed
a notice of appeal to this court and also sought a stay of the
enforcement of his license suspension pending resolution of the
appeal. Pruitt's application for a stay was denied. Thereafter
Pruitt's attorney contacted the Attorney General's Office and
proposed to withdraw Pruitt's appeal to this court "as long as
both parties suffer their own costs and fees." The Attorney
General's Office conditioned the agreement on the grounds that
Pruitt pay $500 in attorney's fees. Pruitt refused. Then on
November 28, 1990, the state requested the superior court to
award it attorney's fees pursuant to Appellate Rule 508(e).
Thereafter, on January 4, 1991, the superior court entered an
award in the amount of $1,106, which sum represented 50% of the
state's actual attorney's fees.
Pruitt argues that the superior court abused its
discretion in granting the State's attorney's fees in response to
a motion that was untimely and for which no showing of excusable
neglect or good cause was offered. Although Pruitt concedes that
there is no explicit time limit for the filing of motions for
attorney's fees following appeal, he submits that nine months
constitutes an excessive and prejudicial delay. Pruitt argues
that he should have been accorded the benefit of an adjudication
of attorney's fees prior to making a decision as to whether to
appeal from the superior court to this court. Pruitt notes that
the state's delayed motion for attorney's fees after this appeal
was filed forced him to file motions to supplement the points on
appeal and for permission to file supplemental briefing.
Additionally, Pruitt notes the recent amendment of Civil Rule 82
which provides for a 30 day deadline in which to move for an
award of attorney's fees after the date shown in the Clerk's
Certificate of Distribu-tion on the Judgment.
The state cites Rosen v. State Bd. of Pub. Accountancy,
689 P.2d 478, 482 (Alaska 1984), in arguing that the
determination of Rule 508(e) attorney's fees, when the superior
court is acting as an intermediate appellate tribunal, "is
committed to the sound discretion of our trial courts."
Moreover, the state argues that under Rosen, the superior court
is not required to give its reasons for awarding attorney's fees.
Thus, the state contends that the court properly exercised its
discretion in awarding attorney's fees against Pruitt.
We have previously held that it is within the
discretion of the trial court to impose a time limit for the
filing of attorney's fees. State v. University of Alaska, 624
P.2d 807 (Alaska 1981). However, a motion for attorney's fees
must be made within a reasonable time after the entry of final
judgment. Id. As Justice Matthews previously noted,
It is important that a motion for
attorney's fees be made reasonably promptly
after judgment because the losing party may
base his decision whether to appeal on the
merits on the size of the adverse award of
attorney's fees. Since the decision on
whether to appeal on the merits must be made
within 30 days after distribution of the
judgment, Appellate Rule 204(a)(1), a motion
for attorney's fees should be made at a time
soon enough after judgment so that the motion
may be ruled upon before the 30 days in which
an appeal may be taken has expired.
T & G Aviation, Inc. v. Footh, 792 P.2d 671, 672 (Alaska 1990)
(Matthews, C.J., dissenting).
We hold that the state's motion for attorney's fees,
filed seven months after final judgment has been entered, was not
filed within a "reasonable time." Here we think it relevant that
Pruitt has shown he was prejudiced by the state's delay.
Accordingly, we conclude that the superior court abused
its discretion in awarding the state attorney's fees under
Appellate Rule 508(e) on a motion that was filed seven months
after judgment was entered. Thus we hold that the superior
court's award of attorney's fees must be vacated.
The decision of the superior court is AFFIRMED in part
and REVERSED in part.
_______________________________
1. Alaska Statute 28.35.032 provides in part:
(a) If a person under arrest refuses the
request of a law enforcement officer to
submit to a chemical test under AS
28.35.031(a), after being advised by the
officer that the refusal will, if that person
was arrested while operating or driving a
motor vehicle for which a driver's license is
required, result in the denial or revocation
of the license or nonresident privilege to
drive, that the refusal may be used against
the person in a civil or criminal action or
proceeding arising out of an act alleged to
have been committed by the person while
operating or driving a motor vehicle or
operating an aircraft or a watercraft while
intoxicated, and that the refusal is a
misdemeanor, a chemical test shall not be
given, except as provided by AS 28.35.035.
2. We have often stated that a final judgment retains all
of its res judicata effects pending resolution of an appeal of
the judgment. Rapoport v. Tesoro Alaska Petroleum Co., 794 P.2d
949, 952 (Alaska 1990); Holmberg v. State, Div. of Risk Mgt., 796
P.2d 823 (Alaska 1990). Such preclusive effect is only afforded,
however, when the issue in the first action has been resolved by
a final judgment on the merits. Rapoport, 794 P.2d at 951.
3. Iowa Code section 321J.13(4) provides in part:
A person whose motor vehicle licence
or operating privilege has been or is being
revoked under section 321J.9 or 321J.12 may
reopen a department hearing on the revocation
if the person submits . . . a petition
stating that a criminal action on a charge of
a violation of section 321J.2 filed as a
result of the same circumstances which
resulted in the revocation has resulted in a
decision in which the court has held that the
peace officer did not have reasonable grounds
to believe that a violation of section 321J.2
had occurred to support a request for or to
administer a chemical test. . . . Such a
decision by the court is binding on the
department and the department shall rescind
the revocation.
Brownsberger, 460 N.W.2d at 450.
4. In Briggs this court addressed the issue of whether
Champion should be retroactively applied:
Champion was decided on June 20, 1986.
Briggs's breathalyzer test was administered
on April 13, 1984, and the administrative
hearing held on August 24, 1984. This court
has weighed certain criteria in determining
the extent to which a new rule of law should
be applied in the criminal area: (1) the
purpose to be served by the new standards;
(2) the extent of reliance by law enforcement
authorities on the old standards; and (3) the
effect on the administration of justice of a
retroactive application of the new standards.
State v. Glass, 596 P.2d 10, 13 (Alaska
1979); Lauderdale v. State, 548 P.2d 376, 383
(Alaska 1976).
732 P.2d at 1080, n. 4.
5. For purposes of an administrative license revocation, a
blood alcohol test result must be .10 or more. AS
28.35.030(a)(2). It is possible that a timely breath test result
would have been above .10, but that a delay would allow the
alcohol level to dissipate below .10. Thus, a second observation
period potentially would have skewed the test results since a
dissipation of blood alcohol would occur, making a delay in
implementing a breath test prejudicial.
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