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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Morris v. State, Dept. of Administration, Division of Motor Vehicles (07/03/2008) sp-6283
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
| RICK MORRIS, | ) |
| ) Supreme Court No. S- 12279 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3KN-05-00074 CI |
| ) | |
| STATE OF ALASKA, DEPART- | ) |
| MENT OF ADMINISTRATION, | ) |
| DIVISION OF MOTOR VEHICLES, | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6283 - July 3, 2008 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Harold M. Brown, Judge.
Appearances: Peter F. Mysing, Kenai, for
Appellant. Margaret Paton Walsh, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Rick Morris appeals the revocation of his drivers
license following his arrest for driving under the influence.
Morris claims that his chemical breath test which showed a
breath alcohol concentration of .089 percent was unreliable and
inaccurate and can not serve as a basis for revocation of his
license because a later-administered independent blood test
produced a result of .070 percent. Morris argues that, because
the variance between the two test results is sufficiently large,
the blood test failed to verify the breath test and the breath
test is therefore invalid. Because we conclude that the hearing
officers finding that it was more likely than not that Morris
produced a chemical breath test of .08 percent or above is
supported by substantial evidence, we affirm the departments
revocation.
II. FACTS AND PROCEEDINGS
A. Facts
At 3:58 a.m. on June 20, 2004, Soldotna Police Officer
Jessie Stoneking was driving north on the Sterling Highway when
she saw a 2001 Jeep Wrangler leave the driveway of the Riverside
House, a bar/lounge in Soldotna, and make a wide sweeping right
turn into the left northbound highway lane without using a turn
signal. Officer Stoneking pulled the vehicle over and approached
the driver. The driver was identified as Rick Morris.
Officer Stoneking noted that Morris had red and glassy
eyes, slurred speech, and a flushed face. Morris informed
Officer Stoneking that he had consumed a beer at home prior to
going to the Riverside House, and that he had drunk two rum-and-
cokes while at the bar. Officer Stoneking required Morris to
perform a number of field sobriety tests, which she found he
executed poorly. Morris then submitted to a preliminary breath
test, which indicated that he had a breath alcohol content of
.092 percent. Stoneking arrested Morris for driving under the
influence (DUI) under AS 28.35.030 and transported him to the
Alaska State Trooper station.
At 4:36 a.m., following a fifteen-minute observation
period, Morris submitted a breath test sample on a Datamaster
breath test instrument. The test reflected a result of .089
percent. Morris then exercised his right to an independent test
and was transported to the Central Peninsula General Hospital for
blood work. At 5:13 a.m., thirty-seven minutes after the
chemical breath test, blood was drawn by a laboratory technician
and placed into evidence storage at the Soldotna Police
Department. Morriss blood sample was tested on August 11, 2004,
by Providence Alaska Medical Center, and reflected a result of
.0701 percent blood alcohol content.1
B. Proceedings
Morris was notified by the Department of
Administration, Division of Motor Vehicles that it intended to
revoke his drivers license based on a chemical breath test
revealing an alcohol concentration of .08 percent or more.2
Morris requested administrative review of the departments
decision, and an administrative hearing was conducted before
Hearing Officer Becky Janik in December 2004 and early January
2005.3 Morris argued that the results of his blood test,
performed thirty-seven minutes after his breath test, varied so
greatly from the breath test result that it fell outside the
generally acceptable range of natural alcohol elimination from
the body and therefore failed to corroborate his breath test
result. He asserted that the blood test result proved that the
chemical breath test, which the department had relied upon to
revoke his drivers license, was therefore inaccurate and that his
license could not be suspended.
In January 2005 the hearing officer affirmed the
departments revocation. She determined that the Datamaster
breath test instrument was working properly and that Morriss
chemical breath test result was valid. She found that the
evidence established that Morris was impaired on the morning in
question and affirmed the departments revocation of Morriss
driving privileges for breath alcohol concentration of .08 or
more.
Morris appealed to the superior court. On March 10,
2005, Superior Court Judge Harold M. Brown affirmed the hearing
officers decision.4 Morris appeals.
III. STANDARD OF REVIEW
We review drivers license revocation hearings under AS
28.15.166(m), which provides that the court may reverse the
departments determination if the court finds that the department
misinterpreted the law, acted in an arbitrary and capricious
manner, or made a determination unsupported by the evidence in
the record.5 Where, as here, the superior court was acting as an
intermediate court of appeal, we will independently review the
hearing officers determination.6
We review issues of law not involving agency expertise
under the substitution of judgment standard7 and the hearing
officers factual findings under the substantial evidence test,
determining whether the findings are supported by such evidence
as a reasonable mind might accept as adequate to support a
conclusion. 8 When an agency chooses between conflicting
determinations and there is substantial evidence in the record to
support either conclusion we will affirm the agencys findings.9
IV. DISCUSSION
We have repeatedly recognized that [a] drivers license
is an important property interest which entitles a driver to a
meaningful hearing before the drivers license can be suspended.10
In order to affirm an administrative license revocation, a
hearing officer must find by a preponderance of the evidence that
a chemical test produced a result described in AS
28.35.030(a)(2).11 Alaska Statute 28.35.030(a)(2) provides that a
person commits the offense of driving while under the influence
if the person operates a vehicle and if, as determined by a
chemical test taken within four hours after the alleged operating
or driving, there is 0.08 percent or more by weight of alcohol in
the persons blood . . . or if there is 0.08 grams or more of
alcohol per 210 liters of the persons breath. In this case, we
must determine whether substantial evidence supports the hearing
officers decision that a chemical test produced a result of .08
percent or more alcohol in Morriss breath or blood. We are asked
to consider whether the variance between a presumptively accurate
breath test and a subsequent blood test that falls outside the
average rates of alcohol elimination from the body proves that
the former is unreliable for the purpose of revoking Morriss
drivers license. Under the facts of the case presented here, we
answer in the negative.
A. Morriss License Revocation
Alaska Statute 28.35.033(d) provides that where a
chemical analysis of breath or blood was performed according to
approved methods by a person trained according to techniques,
methods, and standards of training approved by the Department of
Public Safety, there is a presumption that the test results are
valid and further foundation for introduction of the evidence is
unnecessary. But while AS 28.35.033 creates a presumption of the
chemical tests validity, it does not make those [test] results
unassailable.12 We have said that the breath test is of central
importance in a revocation proceeding, and we have repeatedly
recognized that a defendants right to test the reliability and
accuracy of the test is critical to his ability to present his
case.13 A driver has the right to challenge the accuracy of a
breath alcohol test, which includes the right to obtain evidence
of an independent blood test producing an exculpatory result.14
Indeed, [b]reathalyzer test results, like any other evidence, may
be subject to attack and disproof.15
Morris asserts that the hearing officer erred in
relying upon his .089 percent breath test result because he
claims that the .070 percent blood test result proved that the
former was unreliable.16 Looking to the variance between the test
results, he asserts that that there was no substantial
evidentiary basis for the hearing officers decision to affirm the
departments revocation. The department counters that substantial
evidence supports the hearing officers determination that the
breath test result was valid, that the blood test result does not
prove that the Datamaster breath test was unreliable or
inaccurate, and that Morriss blood test actually supports the
hearing officers finding that Morriss blood alcohol content was
over the legal limit.
Evidence introduced at the revocation hearing revealed
the following. Officer Stoneking conducted a preliminary breath
test on Morris at approximately 3:58 a.m., which reflected a
breath alcohol content of .092 percent. Morriss chemical breath
test, which produced a result of .089 percent, was conducted at
4:36 a.m., thirty-eight minutes later. The Verification of
Calibration Report for the Datamaster breath test instrument
reflected that the machine was certified for use and functioning
properly. The Datamasters internal self-tests were performed
both before and after Morriss test. The hearing officer also
reviewed the departments Breath Alcohol Supervisor Manual
discussing metabolic process and the rates at which alcohol is
eliminated from the body. The manual reflected reported rates
ranging from, on average, .012 to .024g/210L per hour breath
units, with an average elimination rate of .018 per hour. The
manual also noted [h]igher rates of metabolism have been reported
and are usually associated with chronic consumption of large
quantities of ethanol.
Morris testified at the hearing, and his testimony
confirmed many of the preliminary facts noted in Officer
Stonekings police report. He explained that he made an improper
turn in his vehicle on the morning in question because he drives
a dump truck for a living and is accustomed to making wider turns
in order to avoid the curb. He confirmed that he requested and
obtained an independent blood test and that the result of the
test was .070 percent. He also provided a letter from a chemist
at Providence Hospital, Dr. Eileen Nickoloff, which stated that
the generally accepted average elimination is 0.018% per hour,
with a range of .010 to .023%, that the interval between Morriss
chemical breath test and blood test was thirty-seven minutes, and
that this normalized to an average decline of .031 percent,17
which was outside the normally acceptable range for elimination.
At the hearing, Morris did not challenge the type of
chemical breath test device utilized18 or the certification or
qualifications of the individual administering the test,19 nor did
he argue that the testing instrument had not been properly
calibrated and verified as required under state law.20 Other than
the results of his blood test and a letter from the hospital
chemist, he provided no evidence calling into question the
reliability or validity of his chemical breath test result.21 The
hearing officer determined that the breath test instrument was
working properly and that the evidence confirmed the validity of
Morriss chemical breath test result.
B. Substantial Evidence Supports the Hearing Officers
Decision To Revoke Morriss Drivers License.
Where a hearing officer administratively suspends a
drivers license, we review the record to determine whether the
hearing officers decision is supported by substantial evidence.
In this case, the hearing officers decision was supported by the
results of the breath test, by unchallenged evidence that the
breath test machine was properly certified for use and was
functioning properly, by evidence that the machines internal self-
tests were performed both before and after Morriss test, and by
the fact that the blood test result supports the conclusion that
Morris exceeded the legal limit at the time of his breath test.
In addition, Morriss admission that he had been consuming
alcohol, the evidence of his poor driving, and Officer Stonekings
testimony as to his personal condition and his performance of
field sobriety tests all supported the hearing officers decision.
Finally, AS 28.35.033(d) creates a presumption that where a
chemical breath test was performed according to approved methods
by a person trained according to techniques, methods, and
standards of training approved by the Department of Public
Safety, the test is valid. In these circumstances, there was
substantial evidence that supported the hearing officers
decision.
Morris contends that, in order to harmonize the
variance between the blood and breath test, Morris must have had
a rate of alcohol elimination of .031 percent per hour. Because
this rate is significantly above average, Morris argues that the
variance reveals that the breath test result was unreliable and
invalid per se. But this argument assumes two propositions that
lack factual or legal support. We consider each in turn.
Morris first assumes that only one chemical test the
states breath test showing .089 percent at 4:36 a.m., or Morriss
blood test showing .070 percent at 5:13 a.m. can be right. But
the tests are not necessarily inconsistent. Both tests could
have been accurate if Morris had in fact eliminated alcohol at a
high rate. While the average person eliminates alcohol at a rate
of .012 to .024 percent per hour, the hearing officer had before
her the departments Breath Alcohol Supervisor Manual, which noted
that higher rates of metabolism have been reported and are
usually associated with chronic consumption of large quantities.
Indeed, even Morriss clinical chemist was unwilling to say that
it was impossible for both tests to be accurate, only that he
would have had to have eliminated alcohol at an unexpectedly high
rate.22
In sum, the evidence at Morriss hearing established
that the chemical breath test was presumptively valid, and Morris
did not directly challenge the testing machine or process in any
way. His only evidence was not necessarily inconsistent with the
states evidence. There was substantial evidence to support the
hearing officers conclusion that Morriss chemical breath test
produced a result described under AS 28.35.030(a)(2): a breath
alcohol content at or above .080 percent.
Morriss second assumption is implied; it is that, if a
breath test and a blood test yield inconsistent results,23 the
breath test must be mistaken because the blood test is the
superior method of testing. Before 1980, such a position might
have found some support, for Alaska law defined intoxication only
in terms of the percent of alcohol found in a drivers blood.24
But in 1980 the legislature changed the definition of
intoxication to include the percent of alcohol found in a
drivers breath.25 It is worth a moment to track the development
of drunk driving laws in our state and the effect of this change
on Morriss case now.
Historically Alaska, as well as many other states,
defined the offense of driving while intoxicated as operating a
vehicle with a blood alcohol concentration above a certain limit.26
Under these schemes, an individuals blood alcohol concentration
could be measured in a number of ways, but where a breath test
was used it was necessary to convert the breath alcohol
concentration to a blood alcohol concentration by utilizing a
partition ratio in order to determine whether the person had
violated the particular [DUI] statute.27 When blood alcohol
content was the standard defining the offense, defendants could
raise the partition ratio defense, arguing that a given
individuals actual ratio was different from the statutorily-
presumed ratio of 2100:1. This defense was available where DUI
laws defined the offense based upon a prohibited blood alcohol
concentration and the defendant was accused of DUI based upon the
results of a breathalyzer test. Many states, including Alaska,
reacted to the use of the partition ratio defense by amending
their laws to prohibit driving with either a blood or breath
alcohol concentration in excess of specific standards.28
In a 1979 case, Cooley v. Municipality of Anchorage,29
the court of appeals noted that the Anchorage DUI ordinance had
been recently amended to define the intoxication level in terms
of alcohol concentrations in both blood and breath.30 Responding
to appellants argument that the breathalyzer test result may have
inaccurately converted breath alcohol concentration into blood
alcohol concentration under the partition ratio, the court
concluded that [a]s a practical matter, this source of possible
inaccuracy may no longer arise under the municipal ordinance
because the amendment had expanded a determination of
intoxication to include intoxication based upon breath alcohol
concentration.31
The 1980 amendments to Alaskas DUI statutory scheme
that added breath alcohol concentration to blood alcohol
concentration as a means of determining intoxication32 thus ended
any presumption that a blood test is entitled to preference or
priority over a breath test in determining intoxication. The
offense is committed when either the blood alcohol level or the
breath alcohol level is at or above .08 percent.
We have seen that Alaskas statutes defining drunk
driving do not give priority or greater weight to a blood test
over a breath test. How, then, should a hearing officer resolve
conflicts between two tests? We have held that arguments
challenging the reliability or validity of a particular test
generally go to its weight, rather than its admissibility.33
Thus, the weight given to the breath test is a factual matter
properly left to the hearing officer.34 The plain language of AS
28.15.166(g) provides that it is within the hearing officers
province to determine whether the chemical test produces a
proscribed result.
Finally, the hearing officers determination that
Morriss test results exceeded the legal limit finds support in
the breath test result. While Morriss blood test result can be
completely harmonized with his breath test result only by
assuming that he eliminated alcohol at an unusually high rate,
the blood test in fact supports the hearing officers finding
that Morriss test results were at .08 percent or above assuming
only an average rate of elimination. Recall that in order to
revoke a drivers license, AS 28.15.166(g)(2) requires a hearing
officer to find that a chemical breath test produced a result
described under AS 28.35.030(a)(2), that is, at or above .08
percent alcohol concentration in the persons blood or breath. And
it is the test result, rather than a drivers intoxication level
at the time of driving, that is the critical element: The focus
of [the hearing officers inquiry under] subsection .166(g)(1)-(3)
is clearly on the result of the test.35 Even if the hearing
officer had rejected the breath test result and assumed that
Morriss .070 percent blood test was an accurate measurement of
Morriss blood alcohol concentration at the time of the test, she
could have reasonably concluded that Morris was above the legal
limit at the time of his breath test even without reconciling the
competing results. Specifically, had the hearing officer assumed
the accuracy of the .070 percent blood test at 5:13 a.m., and
extrapolated backwards in time using the average rate of alcohol
elimination of .018 percent per hour, Morriss level of
intoxication would have been .081 percent at 4:36 a.m., the time
of his chemical breath test. Thus, his blood test result
supports the conclusion that Morris was in excess of the legal
limit at the time of his breath test.36
Moreover, using this same rate of elimination, Morriss
intoxication level at the time of driving would have been .093
percent, remarkably in line with his preliminary breath test
result of .092 percent. The blood test therefore supports the
states position that Morriss chemical test produced a result of
.08 percent or more.37 And while this exercise yields a breath
test result different from that actually produced (.081 percent
versus .089 percent), it is significant in that it confirms that
on the morning in question Morris produced a chemical test result
of at least .08 percent.38 Under these circumstances, we cannot
conclude that Morriss independent blood test is sufficiently
exculpatory that the hearing officer could not have found that
Morriss chemical test produced a result in excess of the
statutorily proscribed level.
While an independent blood test result may have
significant bearing on the weight afforded a breath tests
reliability in a given case, Morris has failed to provide
sufficient support for his proposition that in this case the
hearing officers finding is not supported by substantial
evidence.39
V. CONCLUSION
Because we conclude that substantial evidence supports
the hearing officers determination, we AFFIRM the decision to
revoke Morriss drivers license.
_______________________________
1 Evidence offered by Morris reflected two tests on the
blood sample, the first producing a result of .070 percent and
the second of .068 percent.
2 AS 28.15.165 provides for administrative revocation of
a drivers license.
3 AS 28.15.166 provides for administrative review of the
departments revocation.
4 In June 2005 Judge Brown granted Morriss motion for
stay of the license revocation during the pendency of this
appeal.
5 Saltz v. State, Dept of Pub. Safety, 942 P.2d 1151,1152
(Alaska 1997) (holding that supreme court applies same standard
as superior court).
6 State, Dept of Pub. Safety v. Shakespeare, 4 P.3d 322,
324 (Alaska 2000).
7 Snyder v. State, Dept of Pub. Safety, 31 P.3d 770, 774
(Alaska 2001).
8 Saltz v. State, Dept of Admin., Div. of Motor Vehicles,
126 P.3d 133, 136 (Alaska 2005). (quoting Borrego v. State, Dept
of Pub. Safety, 815 P.2d 360, 363 (Alaska 1991)).
9 Anderson v. State, Dept of Revenue, 26 P.3d 1106, 1109
(Alaska 2001).
10 Champion v. Dept of Pub. Safety, 721 P.2d 131, 133
(Alaska 1986).
11 AS 28.15.166(g) and (j).
12 Keel v. State, 609 P.2d 555, 557 (Alaska 1980)
(construing former version of AS 28.35.033(d)).
13 Champion, 721 P.2d at 133.
14 See Barcott v. State, Dept of Pub. Safety, 741 P.2d
226, 229 (Alaska 1987).
15 Cooley v. Municipality of Anchorage, 649 P.2d 251, 254-
55 (Alaska App. 1982).
16 In his reply brief, Morris contends that the State
mischaracterizes the issue of the validity of the breath test as
a finding of fact rather than a conclusion of law. Morris raises
this argument for the first time in his reply brief. Indeed,
Morris himself initially suggested that the hearing officers
determination was a finding of fact: [T]here was substantial
evidence presented . . . that the breath test . . . was not
reliable and it should not have been used as a basis to revoke
his driving privileges. Because arguments raised for the first
time in a reply brief will not be considered, we decline to
address Morriss argument here. See Sumner v. Eagle Nest Hotel,
894 P.2d 628, 632 (Alaska 1995).
17 The letter from Dr. Nickoloff actually refers to an
average decline of 0.31% over a one hour period. The superior
courts order affirming the hearing officers decision adopts this
.31% figure, as does the appellant. The appellee notes that Dr.
Nickoloffs letter likely contains a decimal place error and
accordingly assumes that the actual figure is .031 percent. We
find the appellees reasoning persuasive and adopt the .031
percent figure.
18 See 13 Alaska Administrative Code (AAC) 63.020
(requiring scientific director of the breath and blood alcohol
testing program to approve breath test instrument).
19 See 13 AAC 63.050 (requiring operators of breath test
instruments be certified).
20 See 13 AAC 63.100 (requiring testing instruments be
correctly calibrated and verified).
21 See Keel v. State, 609 P.2d 555, 557 (Alaska 1980)
(noting that presumption of validity of test results means if
regulations followed, there is sufficient evidence to admit test
results into evidence, but weight given evidence is a factual
matter for jury).
22 Morris also relies on Best v. Municipality of
Anchorage, 712 P.2d 892 (Alaska App. 1985), for the proposition
that the variance in his test results is sufficiently large to
refute the breath tests validity. Best is inapposite and offers
no assistance to Morris because it involved a completely
different situation: the attempt to check a first breath test by
preserving a second breath sample in a perchlorate tube for later
testing. There, checking of the initial breath results was
impossible because of improper collection technique utilized by
insufficiently trained officers [using] inadequately designed and
maintained adapters used for the perchlorate tube collection
process. Id. at 902. Thus, the variances in Best were all
between breath samples that were collected at the same time.
Moreover, Best involved a situation where the defendant had
sustained his burden of showing [] that he was not furnished a
reasonable means of verification, id. at 897 (quoting State v.
Kerr, 712 P.2d 400, 406 (Alaska App. 1985)), whereas Morris of
course does not even assert that he was ever denied an
opportunity to independently verify his breath test.
23 As we saw in the immediately preceding discussion, the
results in this case are not necessarily inconsistent.
24 Former AS 28.35.033(a) (1978) provided in relevant
part:
[T]he amount of alcohol in the
persons blood at the time alleged,
as shown by chemical analysis of
the persons breath, shall give rise
to the following presumptions:
. . . .
(3) If there was 0.10 per cent or
more by weight of alcohol in the
persons blood, it shall be presumed
that the person was under the
influence of intoxicating liquor.
(Emphasis added.)
25 In 1980 the legislature amended AS 28.35.033(a) to
provide that intoxication would depend on the amount of alcohol
in the persons blood or breath. See also Bill Analysis,
Department of Public Safety, HB 833, March 6, 1980 (noting
program effects of bill included that [b]reath analysis would be
added to blood analysis as a method of determining intoxication).
AS 28.35.033(a)(3) currently provides in relevant part: If there
was 0.08 percent or more by weight of alcohol in the persons
blood . . . or 0.08 grams or more of alcohol per 210 liters of
the persons breath, it shall be presumed that the person was
under the influence of an alcoholic beverage.
26 See Simpson v. Municipality of Anchorage, 635 P.2d
1197, 1200-01 (Alaska App. 1981) (discussing statutory
presumption of intoxication under former AS 28.35.033(a) that
provided upon proceeding arising out of acts committed by person
operating vehicle under the influence the amount of alcohol in
the persons blood at the time alleged, as shown by chemical
analysis of the persons breath, shall give rise to the following
presumptions . . . . (emphasis added)); see also State v.
Hardesty, 39 P.3d 647, 648-49 (Idaho App. 2002) (internal
citations omitted).
27 Hardesty, 39 P.3d at 648-49. The partition ratio is
generally 2100:1, indicating for every molecule of alcohol in the
breath there is considered to be 2100 molecules of alcohol in the
blood. Id. at 649. The partition ratio varies from individual
to individual. Id. at 649 n.1; see also Haynes v. State, Dept of
Pub. Safety, 865 P.2d 753, 757 n.1 (Alaska 1993) (Matthews, J.,
dissenting).
28 Hardesty, 39 P.3d at 648-49. See also Meehan v. Kansas
Dept of Revenue, 959 P.2d 940, 944-45 (Kan. App. 1998); Dept of
Highway Safety & Motor Vehicles v. Patrick, 895 So.2d 1131, 1134
(Fla. Dist. App. 2005) (noting either blood alcohol or breath-
alcohol test result is expression of the persons alcohol level).
29 649 P.2d 251 (Alaska App. 1982).
30 Id. at 253 n.1.
31 Id. at 254 n.6.
32 AS 28.35.030; AS 28.35.033; see Bill Analysis,
Department of Public Safety, HB 833, March 6, 1980 (noting that
[b]reath analysis would be added to blood analysis as a method of
determining intoxication). The legislative history of the amended
version of AS 28.35.030 that was introduced in 1980 is a
complicated one. It was summarized in large part in Van Brunt v.
State, 653 P.2d 343, 344 n.2 (Alaska App. 1982).
33 See Gilbreath v. Municipality of Anchorage, 773 P.2d
218, 222 (Alaska App. 1989) (holding that once statutory
requirements for admissibility of test results are satisfied,
breath test result is admissible and weight of evidence is for
trier of fact).
34 See Cooley v. Municipality of Anchorage, 649 P.2d 251,
255 n.8 (Alaska App. 1982) (noting presumption of breath tests
validity means sufficient evidence to admit results into evidence
but weight given to evidence factual matter for jury).
35 Javed v. Dept of Pub. Safety, 921 P.2d 620, 625 (Alaska
1996) (noting statute contains very precise limiting language for
the issues that are to be considered).
36 See Kaufman v. Dir. of Revenue, 193 S.W.3d 300, 302-03
(Mo. App. 2006) (noting driver failed to present sufficient
evidence rebutting states prima facie case where evidence
challenges scientific reliability of test but failed to adduce
evidence showing drivers alcohol content below legal limit).
37 AS 28.35.030(a)(2).
38 We do not address whether or when, under different
facts, an unexplained or unsubstantiated variance between a
chemical breath test and subsequent independent blood test will
successfully impeach the validity of the states chemical breath
test result.
39 See Byrne v. State, 654 P.2d 795, 796 (Alaska App.
1982) (noting defendant confused relevancy of evidence with its
conclusiveness).
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