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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bluel v. State (03/09/2007) sp-6109
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RODNEY K. BLUEL, | ) |
| ) Supreme Court No. S- 11564 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-8514 | |
| v. | ) District Court No. 4FA-01-3602 CR |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6109 - March 9, 2007 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the District Court, Fourth Judicial
District, Fairbanks, H.E. Crutchfield, Judge.
Appearances: William R. Satterberg, Jr.,
Fairbanks, for Petitioner. Kenneth M.
Rosenstein, Assistant Attorney General,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for Respondent.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
After being arrested for driving while intoxicated,
Rodney Bluel failed the mandatory breath test and then declined
when asked if he wanted an optional blood test. At trial, after
Bluel testified that he had been surprised by his failing score
on the breath test, the state was allowed to impeach his claim of
surprise by asking about his refusal to ask for the independent
blood test. The issue here is whether evidence that Bluel
declined the optional test amounted to an impermissible comment
on the exercise of his right to refuse. Because Alaskas implied
consent law gave Bluel the right to decline further testing and
required the state to honor his choice, we conclude that evidence
of his refusal created a danger of unfair prejudice greatly
outweighing the refusals impeachment value. We therefore hold
that the refusal was inadmissible under Alaska Rule of Evidence
403.
II. FACTS AND PROCEEDINGS
The relevant facts and proceedings at issue here are
undisputed and were summarized as follows by the court of
appeals:
At about 2:30 in the morning on November
17, 2001, an Alaska state trooper stopped
Bluel for a traffic violation on Badger Road
in Fairbanks. Upon contact, the trooper
noticed indications that Bluel was
intoxicated. The trooper administered field
sobriety tests, which Bluel failed. Bluel
was then arrested for driving while
intoxicated. He was later tested on a
DataMaster, which showed that his blood
alcohol content was 0.091 percent.
After the breath test, the trooper
advised Bluel that he had the right to an
independent chemical test. Bluel declined.
Before trial, Bluel filed a motion
requesting that the district court preclude
any discussion of whether or not a blood test
was offered[.] In his motion, Bluel argued
that any evidence that he had declined to get
an independent test was more prejudicial than
probative. He also claimed that the State
should not be allowed to comment on his
exercise of a constitutional right. The
State opposed Bluels motion, arguing that it
should not be foreclosed from introducing
evidence that Bluel refused an independent
test if the evidence became relevant at
trial.
District Court Judge Raymond M. Funk
granted Bluels motion, construing it as a
request for a protective order. Judge Funks
pre-trial order prevented the State from
introducing evidence in its case-in-chief
that Bluel had been offered an independent
test, unless the State showed that the
evidence was relevant and more probative than
prejudicial.
The trial was conducted before Judge
Crutchfield. In accordance with Judge Funks
order, the State did not, during its case-in-
chief, introduce any evidence that Bluel had
been offered a second test. But during the
defense case, Bluel testified. He told the
jury that he had consumed only one full drink
earlier that evening, and a small portion of
another drink just before he drove. He
claimed that, in light of the small amount of
alcohol he had consumed, he had been
surprised that the DataMaster result was so
high. Over Bluels objection, the State was
then allowed to impeach Bluel by showing that
he had been given a chance to take an
independent test but had declined.[1]
After the jury found Bluel guilty of driving while
intoxicated (DWI), Bluel appealed to the court of appeals. On
appeal, he challenged the admission of his testimony concerning
his refusal of an independent test, asserting that the evidence
should have been excluded both as a matter of discretion because
its prejudicial impact outweighed its probative value and
because it violated his constitutional rights, including his
privilege against self-incrimination, his right to a Miranda
warning, and his right to be protected against unreasonable
searches and seizures. In an unpublished opinion, the court of
appeals found no abuse of discretion in the trial courts
determination that Bluels refusal was more probative than
prejudicial.2 The opinion upheld admission of the disputed
evidence on this basis, expressly declining to consider Bluels
constitutional claims because they were inadequately briefed.3
We granted Bluels petition for hearing, specifically
requesting the parties to brief whether [Bluel] had a statutory
right to refuse a blood test and, if so, whether the right was
impermissibly undercut by allowing evidence of his refusal.
III. DISCUSSION
A. Parties Arguments
In challenging the decision of the court of appeals,
Bluel renews his claims that evidence disclosing that he declined
independent testing should have been excluded. He asserts that
the trial court erred by admitting the evidence and violated the
Alaska Rules of Evidence because the prejudicial impact of his
refusal outweighed any probative value it might have had. Bluel
also insists that evidence of his refusal was inadmissible as a
matter of law because it impermissibly commented on and undercut
his exercise of various constitutional and statutory rights
including his privilege against self-incrimination, his right to
a Miranda warning, his right to be protected against unreasonable
searches and seizures, and his right to refuse further testing
after consenting to a breath test.
While recognizing that Bluel had a right to an
independent test and was free to waive that right, the state
asserts that it would be a misnomer to view his ability to waive
as a right itself. And even if his ability to waive is viewed as
a right, the state contends, evidence of his waiver did not
undercut that right. Instead, the state insists that the
disputed evidence became admissible to impeach Bluel once he
testified that he had been surprised at learning the result of
his breath test. In the states view, then, any chilling effect
was the sole product of Bluels own tactical decisions, namely,
his effort to mislead the jury by testifying as to his surprise.
With respect to Bluels constitutional claims, the state
asserts that we should decline to reach those claims because they
have not been adequately briefed. Relying on the court of
appeals ruling that Bluels briefing offer[ed] little more than
conclusory assertions that his rights were violated,4 the state
notes that his current briefing is essentially the same as that
which the court of appeals rejected. Since Bluels opening brief
before this court fails to challenge the court of appeals finding
of inadequacy, the state reasons that [t]his court, like the
court of appeals, should refuse to consider Bluels arguments.
Nevertheless, [i]n an abundance of caution, the state
also addresses Bluels constitutional claims on their merits. It
contends that asking Bluel whether he wanted an independent test
did not amount to a custodial interrogation that could have
triggered the Miranda rule. In addition, the state contends that
the constitutional protection against self-incrimination did not
apply to Bluels refusal, even though it was a testimonial
communication, because the refusal was not incriminatory when
Bluel communicated it to the police. The state further contends
that, because the exclusive purpose of the independent test is to
provide a defendant with the means to challenge the reliability
of the mandatory chemical test, Bluels decision to avoid
additional testing cannot be likened to an exercise of his right
to refuse an unreasonable search. While acknowledging that the
state might ultimately obtain [this] evidence as a result of a
defendants exercise of his right to an independent test, it
insists that this does not convert the test to a police-initiated
search.
B. Analysis
1. Adequacy of Bluels briefing
We turn first to the states assertion that Bluel has
inadequately briefed his constitutional claims, thus waiving
these points. Although we ultimately rest our decision in this
case on evidentiary grounds, the constitutional issues raised by
Bluel remain relevant since Bluel relies on the factual and legal
underpinnings of his constitutional arguments to reinforce his
claims of evidentiary error. Given the close connection between
the constitutional and evidentiary claims, we think that it would
be inappropriate to accept Bluels theory of evidentiary error if,
as the state suggests, his constitutional arguments failed to
provide an adequate basis for meaningful appellate review.
Accordingly, our reliance on an evidentiary rationale does not
permit us to avoid the states claim of waiver.
Upon reviewing Bluels briefing, we find no merit to the
states claim of inadequate briefing.5 Bluels opening brief
identifies and describes his constitutional claims; it devotes
more than ten pages of argument to these claims; and it
appropriately cites, quotes, and discusses a substantial body of
legal authority including pertinent constitutional provisions,
as well as many relevant cases to support the constitutional
arguments he advances. Although the state depicts these efforts
as inadequate to allow a meaningful response or review, its own
detailed and accurately targeted responses to Bluels claims
dispel this assertion.6
In our view, Bluels briefing of his constitutional
claims falls comfortably within the minimum range necessary to
enable meaningful appellate review. We thus reject the states
contention that these claims are inadequately briefed and will
consider Bluels constitutional arguments to the extent that they
illuminate the central question: whether the trial court abused
its discretion in admitting the evidence of Bluels refusal.7
2. Admissibility of Bluels refusal under Evidence
Rule 403
a. Rule 403s balancing test
The Alaska Rules of Evidence generally require courts
to determine the admissibility of potentially prejudicial
evidence by carefully balancing its probative value against its
danger of causing unfair prejudice. Evidence Rule 403 describes
the required balancing test:
Although relevant, evidence may be excluded
if its probative value is outweighed by the
danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
evidence.[8]
Trial courts have broad discretion when applying this balancing
test to determine the admissibility of disputed evidence; their
decisions are ordinarily subject to reversal on appeal only when
our review of the record convinces us that an abuse of discretion
occurred.9
Here, as we have already indicated, Bluel argues that
the disputed evidence carried a disproportionate danger of unfair
prejudice by creating the impression that his refusal of the
independent test amounted to an admission of guilt. The state
counters that the evidence of refusal was properly admitted not
to show that Bluels exercise of his right of refusal revealed a
consciousness of guilt, but rather to impeach his trial testimony
claiming surprise at his failing score on the DataMaster
testimony the state now portrays as a tactical choice intended to
mislead the jury.
To decide the relative merits of these conflicting
claims, we begin by examining the refusals probative value as
evidence tending to impeach Bluels testimony claiming surprise.
We then assess the potential prejudice alleged by Bluel the
danger that evidence of his refusal might have unfairly led the
jury to view his decision to exercise his right of refusal as a
badge of guilt.10 Last, we balance the danger of unfair prejudice
against the evidences probative value to determine whether the
potential danger predominated so greatly as to leave us firmly
convinced that admitting the challenged evidence amounted to a
clear abuse of discretion under Evidence Rule 403.
b. Probative value
Alaska Evidence Rule 401 defines relevance to include
all evidence that has any tendency to make the existence of any
fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.11 Evidence Rule 402 then makes all relevant evidence
presumptively admissible:
All relevant evidence is admissible, except
as otherwise provided by the Constitution of
the United States or of this state, by
enactments of the Alaska Legislature, by
these rules, or by other rules adopted by the
Alaska Supreme Court. Evidence which is not
relevant is not admissible.[12]
Under these broad standards, the challenged evidence of
Bluels refusal unquestionably qualified as relevant evidence
because it had at least some tendency to make Bluels testimonial
claim of surprise less probable than it might have been
otherwise; thus, unless otherwise provided by law, the Evidence
Rules, or another rule adopted by this court, the evidence could
properly be admitted.13
But the refusals relevance does not end the inquiry.
As we have seen, Evidence Rule 403 expressly allows courts to
exclude relevant evidence whose probative value fails to outweigh
its prejudicial impact, so we must separately ask how much
relevance the refusal actually had.
The states theory of relevance focuses on the refusals
impeachment value, asserting that evidence of the refusal was
needed to discredit Bluels testimonial claim that his failing
score on the breath test had caused him surprise. The theory is
plausible, but not problem free.
On the one hand, to the extent that Bluels refusal of
an independent test might reasonably be seen as reflecting his
consciousness of guilt, evidence of the refusal would indeed have
probative impeachment value, since it would tend to undercut his
claim of surprise. But on the other hand, to the extent that
Bluels refusal could reasonably have been motivated by something
other than his awareness of guilt, the probative force of the
evidence to show lack of surprise would diminish proportionately.
Here Alaska law gave Bluel a right to decline an
independent test. Because of this right, the possibility that
Bluel refused the independent test for reasons unrelated to guilt
cannot be lightly discounted.
Alaskas implied consent law authorizes the state to
give DWI arrestees a chemical breath test to determine blood
alcohol14 currently the DataMaster test and forbids all other
compelled testing except in circumstances not relevant here.15
The implied consent law also recognizes that, after submitting to
the required test, DWI arrestees are entitled to obtain an
independent test of their own choice.16 The independent test
serves to give DWI arrestees an opportunity to challenge the
breath-test evidence the state compelled them to submit.17 The
right to an independent test is thus optional: DWI arrestees are
free to decline it; they may arrange the testing themselves; or
they may ask the state for assistance in obtaining the test.18
The person administering the mandatory breath test must clearly
and expressly inform the person tested of that persons right to
an independent test.19 If the person requests an independent
test, the state must make reasonable and good-faith efforts to
assist; if not, the law allows no further compelled testing.20
In keeping with these requirements, Bluel was notified
of his right to an independent test. He was also warned that if
he opted to request a test it would be possible that evidence
from the independent test [might] be obtained by the State
through legal process and used against [him]. But the notice
said nothing to suggest that Bluels decision to decline an
independent test might later be used against him.
In accusing Bluel of attempting to mislead the jury by
claiming surprise at the result of his breath test, the state
seems to assume that no defendant who is genuinely surprised at
failing a DataMaster breath test would decline to ask for an
independent test. But this assumption overstates the probative
force of the refusal.
In a similar factual setting, we recognized in Elson v.
State that a defendants refusal to consent to a search could be
motivated by circumstances unrelated to guilt, such as legal
uncertainty or a desire to consult with an attorney before taking
any action.21 Here, the state advances no sound reason to assume
that Bluels decision was not motivated by similar considerations.
To be sure, as the state points out, in Elson we dealt with the
constitutional right to refuse a warrantless search, whereas, in
the states view, Bluel merely had, and chose not to assert, a
statutory right to request further testing. But while this
distinction impacts the importance of the right Bluel did choose
to assert the right to refuse the test and the consequent need
to protect its assertion, it says nothing about the likelihood
that Bluel might have chosen to assert his right of refusal for
an innocent reason a reason compatible with being surprised.
Accordingly, Elsons discussion describing the inherent
ambiguity of a decision to refuse consent to a search appears
applicable here as well. If anything, the possibility of an
innocent basis for refusal seems more likely here, given the
nature of the statutory right to an independent test. When DWI
arrestees can afford to pay for their own testing and are able to
secure their release on bail shortly after being remanded to
jail, the implied consent law will still allow them to make their
own arrangements for independent testing.22 The law also requires
them to be informed of their right to arrange an independent test
after submitting to the mandatory breath test.23 Thus, a DWI
arrestee who declines an independent test is on notice that the
only right his decision waives is the right to ask the state for
help in obtaining the test. Because Bluels refusal would not
have precluded him from later arranging a test on his own, it did
not by itself rule out an intent to obtain an independent test.
Of course, this does not mean that Bluels decision to
decline independent testing lacked probative force; to the
contrary, the refusal would still tend to make his claim of
surprise less probable, so it would continue to be relevant under
Evidence Rule 401 and presumptively admissible under Rule 402.
But the possibility of circumstances consistent with Bluels claim
of surprise necessarily reduces the refusals probative force as
impeachment evidence: though the refusal would potentially be
inconsistent with surprise, it would not necessarily establish
that Bluel was attempting to mislead the jury, as the state
claims he was.
As we will explain below in considering the prejudicial
impact of refusal evidence, this distinction between evidence
whose probative force arguably establishes an inconsistency and
evidence that obviously contradicts a witnesss story can play an
important role when the state seeks to impeach testimony with
evidence of prior silence or refusal to act. In first
considering the refusals probative value, however, it suffices to
observe that the uncertainty surrounding Bluels reasons for
declining does not allow us to conclude that his refusal had
impeachment value strong enough to solidly conflict with his
claim of surprise or to convincingly prove an attempt to mislead
the jury.
c. Potential prejudice
On the opposite side of Rule 403s balance, we must
weigh the possible negative effects of the refusal evidence: the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or . . . considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.24
Here, these dangers seem manifest. The states use of the refusal
raised a serious risk of inviting the jury to view Bluels
decision not to request an independent test as a silent admission
of guilt. In terms of its potential for unfair prejudice, then,
this evidence created a risk of prejudice similar to the one we
considered in Elson v. State.25
Elson held that an intolerable risk of prejudice arises
when the state is allowed to comment on a defendants refusal to
consent to a warrantless search.26 In reaching this conclusion,
Elson relied on two earlier cases, Bargas v. State and Padgett v.
State.27 Both cases involved refusals to submit to warrantless
searches that would have been illegal without the defendants
consent.28
Bargas held that allowing the state to comment on a
refusal in this setting would be entirely impermissible. It
would make meaningless the constitutional protection against
unreasonable searches and seizures if the exercise of that right
were allowed to become a badge of guilt.29 Analogizing the
situation to cases barring comment on assertion of the Fifth
Amendment right to silence, Bargas ruled that [a] like principle
applies here. Ones assertion of his constitutional right not to
submit to a search of his person cannot be used as evidence of
guilt if this constitutional right is to have any meaning.30
Padgett, like Bargas, found evidence of a refusal to
allow an unauthorized search to be inadmissible, emphasizing that
the right to refuse would be effectively destroyed if, when
exercised, it could be used as evidence of guilt.31
In Elson we considered whether the principles discussed
in Bargas and Padgett should extend to a case involving a refusal
to submit to a potentially legal search. We expressly held that
they should, concluding that evidence of a refusal to consent to
a search is inadmissable regardless of the legality of the
search.32 In reaching this conclusion, we stressed that asking a
person to submit to a search confronts the person with a
difficult dilemma because of the inherent uncertainties of the
situation:
As Elson points out, the legality of a search
is often determined long after the fact, and
thus a person who is asked to consent to a
search would not know whether he is
protecting or prejudicing himself by choosing
not to consent. If the person consents, the
fruits of the search would be admissible
regardless of whether the police had the
right to search without consent. If the
person believes the search is impermissible
and withholds his consent, he risks having
his refusal considered as an admission of
guilt if it is later ascertained that the
nonconsensual search was permissible. An
individual in this situation would have to
balance a desire to assert his perceived
fourth amendment rights against the risk of
self-incrimination. This tension is
magnified by the fact that in deciding
whether to consent to a search, the
individual is usually acting without the
benefit of counsels advice as to the legality
of the police conduct and the possible
success of fourth amendment objections.[33]
In our view, the dilemma faced by the defendants in
Elson, Padgett, and Bargas was functionally and legally
indistinguishable from the dilemma Bluel faced here. As the
state acknowledges, once Bluel submitted to the DataMaster test,
Alaskas implied consent law entitled him to an independent test;
under the law he could opt to arrange a test of his own choosing,
ask for help in obtaining a test, or choose no test at all. In
offering to help Bluel obtain an independent test, the states
standard Notice of Right to an Independent Test form expressly
told him that if he did choose to have an independent test, the
state could seek to obtain the evidence and use it against him.
The state does not seem to dispute that the independent test
would have required a physical intrusion sufficient to qualify as
a search.34 Nor does the state dispute that the implied consent
law required the state to honor Bluels choice; in other words,
that the law precluded the state from compelling Bluel to submit
to another blood-alcohol test.35
In terms of its practical consequences, then, Bluels
refusal to accept the states offer to arrange an independent test
is indistinguishable from a refusal to consent to a search.
Moreover, the provisions of Alaskas implied consent laws that
give Bluel the right to choose whether to obtain an independent
test reflect the same carefully balanced consideration of policy
interests that would have precluded Bluel from being ordered to
submit to another test.36
Finally, the statutory right to an independent test
implicates concerns for fundamental fairness rooted in the due
process right to effectively analyze and challenge the
reliability of the states compelled breath-test evidence.37 We
have described this due process right as one that is closely
analogous, if not equivalent, to the right of cross-examination,
since it affords the defendant the opportunity to bring out facts
which will tend to discredit the results of the mandatory test.38
Just as a decision to bypass the opportunity for cross-
examination creates no inference of guilt, a decision to bypass
an independent test also cannot properly be seen as a badge of
guilt.
For all of these reasons, even if evidence of Bluels
right to refuse testing might not have directly violated any
constitutional rights, we conclude that this evidence exposed him
to essentially the same risk of unfair prejudice as commenting on
his assertion of the constitutional right to refuse an
unreasonable search. Thus, Bluel is entitled to a commensurate
level of protection from such evidence; that is, he is entitled
to insist that his exercise of the right to refuse independent
testing not be chilled by the states use of his refusal as a
badge of guilt.39
d. Result of applying Rule 403s balancing test
The state suggests that the disputed evidence of Bluels
refusal meets this test for admission. Asserting that it offered
the evidence for the sole purpose of impeaching Bluels testimony
that he was surprised at and did not believe the DataMaster
result, the state disclaims using the refusal to prove Bluels
consciousness of guilt and insists that any chilling effect was
the sole product of Bluels own tactical decisions. But as
already pointed out in our discussion of probative value, the
refusals probative value for impeachment is not as strong as the
state contends; it does not necessarily conflict with Bluels
claim of surprise.
Moreover, courts have generally tended to be wary of
attributing probative force to inaction. In Nighswonger v.
State, for example, the court of appeals reversed a decision
declining to issue a pretrial order precluding the state from
cross-examining a defendants alibi witness about the witnesss
invocation of the right to silence in an earlier courtroom
appearance.40 There the state cited a number of cases allowing
impeachment by prior silence.41 But after reviewing the cases and
the witnesss proposed testimony, the court determined that the
cases were distinguishable since they involved witnesses who
took positions in their subsequent testimony which [were]
blatantly inconsistent with prior silence.42 As an example, the
court pointed out that cross-examination . . . is considered
proper where a witness creates the false impression on direct
examination that he willingly cooperated with the prosecution or
that he gave the same testimony . . . at a prior hearing.43
Because the witnesss proposed testimony in Nighswonger was not
blatantly inconsistent with her silence, the court held that the
challenged questioning about prior silence should have been
excluded.44
The justification for admission found lacking in
Nighswonger is likewise absent here. While the claim of surprise
Bluel asserted at trial was arguably inconsistent with his
earlier decision to decline the offer of an independent blood
test, potentially innocent explanations for the refusal preclude
a finding of blatant inconsistency. Moreover, whatever false
impression Bluel might have created by claiming surprise, he did
not create it during his direct examination. To the contrary,
the prosecution deliberately elicited the claim of surprise on
cross-examination.
Soon after the trial began, Bluels attorney called the
courts attention to a pre-trial order issued by another judge
that precluded the state from using Bluels refusal in its case-in-
chief. The state confirmed that it would not use the evidence in
its case-in-chief and would wait to see if it became relevant
when Bluel presented his defense. After the state rested its
case, Bluel took the stand in his own defense and testified that
he drank less than two full drinks before being arrested. On
cross-examination, the prosecutor expressly broached the subject
of surprise by framing it as a leading question; immediately upon
receiving Bluels answer, the state asked Bluel about his refusal:
Q: Now, Mr. Bluel, you were taken to the station
after you were after the trooper felt that you
were intoxicated. What happened at the station?
I should say, what was your reading on the
DataMaster?
A: .091.
Q: And now you said youd had only one drink for the
entire evening; is that correct? Youd been at the
Badger Den for four hours, but youd only had one
drink?
A: Yes. I had and some of that last drink there
before we left, but not all.
Q: And well now, is it a little sip of it or some of
it, but not all of it?
A: Maybe a quarter of it.
Q: Okay. .091, thats over the legal limit. I mean,
you know that, right?
A: I didnt believe I was.
Q: So you must have been pretty surprised when lo and
behold, your breath alcohol is .091 if you only
had one drink; is that correct?
A: Yes.
Q: And did you have an option to have a second test?
A: Yes.
Q: And what was that that test?
[Defense Attorney]: Your Honor, may we approach
briefly?
The state asserts that Bluel opened the door to
impeachment by claiming surprise; it professes that it offered
the evidence for the sole purpose of impeaching Bluels testimony
that he was surprised at and did not believe the DataMaster
result. But since the state created its own need to impeach on
this point, it seems difficult to credit its argument that Bluel
opened the door. Rather, the state opened the door and led Bluel
to the very statement that it now claims was an affirmative
attempt to mislead the jury.
Impeachment evidence offered on the theory that the
witness opened the door ordinarily is considered proper where a
witness creates the false impression on direct examination.45 If
we ignored this consideration and allowed the states bootstrapped
justification for impeachment to prevail, then virtually all
defendants who declined an independent test and testified at
trial could be targeted for impeachment by prior refusal unless
they admitted that they were not surprised when learned that they
failed their breath test.
As Bluel rightly observes, this rule would subvert the
basic purpose of the independent test and leave individuals
arrested for DWI a Hobsons choice:
What was intended to be a due process/fair
trial safeguard [would be] turned into a two-
edged blade if the DWI arrestee elects to
have an independent blood-draw, the State
will apply for and obtain a search warrant to
have the blood tested, then use the result to
advance its case against the arrestee, if the
results favor the State. However, if, on the
other hand, the DWI arrestee declines to have
an independent blood-draw, the State [will
then use] the arrestees decision at trial as
evidence to argue that the defendant
implicitly agrees with the breath-alcohol
test, thereby creating an inference of guilt.
To summarize, then, evidence that Bluel declined an
independent test did not blatantly conflict with his testimony
claiming surprise at the result of the DataMaster breath test.
Bluels claim of surprise arose only because the state
affirmatively elicited it to justify admitting the evidence of
refusal. But in the absence of a claim of surprise that was
blatantly inconsistent with Bluels prior refusal and that he
injected into the case himself, we conclude that the refusal
created a danger of unfair prejudice greatly outweighing the
refusals probative value for impeaching the claim of surprise.
We accordingly hold that allowing the state to admit evidence of
the refusal amounted to an abuse of discretion under Evidence
Rule 403.
IV. CONCLUSION
For these reasons, we REVERSE the decision of the court
of appeals, VACATE the judgment of conviction entered by the
district court, and REMAND to the district court for a new
trial.
_______________________________
1 Bluel v. State, 2004 WL 1418697, at *1 (Alaska App.
June 23, 2004).
2 Id. at *2.
3 Id.
4 Id.
5 The adequacy of Bluels briefing presents a question of
law that we determine independently. See Wilkerson v. State,
Dept of Health & Social Servs., 993 P.2d 1018, 1021 (Alaska
1999).
6 Moreover, the lone case the state cites to support its
claim of deficient briefing is readily distinguishable on its
facts. The state cites Great Divide Insurance Co. v. Carpenter
ex rel. Reed, 79 P.3d 599, 608 n.10 (Alaska 2003), for the
proposition that inadequately briefed claims are considered
waived. But the briefing found inadequate in Great Divide
consisted of a single unexplained quotation from a treatise; the
brief failed to explain or argue the quotation, though it
appeared to make an oblique attack on a jury instruction that had
not been challenged at trial. Id. at 608. These circumstances
bear little similarity to the relatively robust briefing claimed
to be inadequate here.
7 As the state acknowledges and our own examination
confirms, Bluels current briefing of his constitutional claims is
essentially identical to his briefing in the court of appeals.
It follows that our ruling as to the adequacy of his current
briefing also extends to his court of appeals briefing. In our
view, his constitutional claims should not have been rejected
below as inadequately briefed.
8 Alaska R. Evid. 403.
9 Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
10 Cf. Elson v. State, 659 P.2d 1195, 1197 (Alaska 1983)
(determining that admitting evidence of a defendants refusal to
consent to a search would make meaningless the constitutional
protection against unreasonable searches and seizures if the
exercise of that right were allowed to become a badge of guilt)
(citing Bargas v. State, 489 P.2d 130, 132 (Alaska 1971)).
11 Alaska R. Evid. 401.
12 Alaska R. Evid. 402.
13 Alaska R. Evid. 402; cf. McCormick v. Municipality of
Anchorage, 999 P.2d 155, 158-59 (Alaska App. 2000) (admitting
evidence of refusal to perform field sobriety test when no right
of refusal existed); Srala v. Municipality of Anchorage, 765 P.2d
103, 105-06 (Alaska App. 1988) (admitting evidence of refusal of
blood test when no right of refusal existed).
14 AS 28.35.031(a).
15 See AS 28.35.031(g); Sosa v. State, 4 P.3d 951, 953-54
(Alaska 2000).
16 AS 28.35.033(e).
17 Gundersen v. Municipality of Anchorage, 792 P.2d 673,
675-76 (Alaska 1990).
18 AS 28.35.033(e).
19 Id.
20 Id.
21 Elson v. State, 659 P.2d 1195, 1198-99 (Alaska 1983).
22 See AS 28.35.033(e).
23 Id.
24 Alaska R. Evid. 403.
25 Elson v. State, 659 P.2d 1195 (Alaska 1983).
26 Id. at 1197-99.
27 Id. at 1197-98 (citing Padgett v. State, 590 P.2d 432,
434 (Alaska 1979); Bargas v. State, 489 P.2d 130, 133 (Alaska
1971)).
28 Id. at 1198.
29 Bargas, 489 P.2d at 132.
30 Id. at 133.
31 Padgett, 590 P.2d at 434.
32 Elson, 659 P.2d at 1199.
33 Id. at 1198-99 (footnote omitted).
34 See, e.g., State v. Blank, 90 P.3d 156, 159 n.19
(Alaska 2004) (A breath test is a search.).
35 See Sosa, 4 P.3d at 955.
36 See id.
37 See Gundersen v. Municipality of Anchorage, 792 P.2d
673, 676 (Alaska 1990) (Since a defendant must provide the state
with potentially incriminating evidence at the risk of criminal
penalties, we hold that due process requires that the defendant
be given an opportunity to challenge the reliability of that
evidence . . . .).
38 Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976)
([Lauderdale] is asking for an opportunity to test the
reliability or credibility of the breathalyzer test results.
This is closely analogous, if not equivalent, to the case where
defense counsel, by cross-examination, tests the credibility of a
witness who testifies against an accused. Cross-examination in
such a case is a matter of right, and the purpose of that right
is to attempt to bring out facts which will tend to discredit the
witness by showing that his testimony was untrue.).
39 See Elson, 659 P.2d at 1197 (citing Bargas, 489 P.2d at
132).
40 Nighswonger v. State, 662 P.2d 445, 446 (Alaska App.
1983).
41 Id. at 448 n.2.
42 Id.
43 Id. (citing United States v. Sing Kee, 250 F.2d 236,
240 (2d Cir. 1957), cert. denied 355 U.S. 954 (1958)).
44 Id. at 448.
45 See id. at 448 n.2.
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