JOHN K. BOTSON, Petitioner,
MUNICIPALITY OF ANCHORAGE, Respondent
Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the District Court of the State of Alaska, Third Judicial District, Anchorage, Brian K. Clark, Judge. Court of Appeals No. A-11192. District Court No. 3AN-10-11042 CR.
Brent R. Cole, Law Office of Brent R. Cole, P.C., Anchorage, for Petitioner.
Seneca A. Theno, Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for Respondent.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices. FABE, Chief Justice, dissenting.
John Botson was arrested for driving under the influence. According to a breath test, his blood alcohol level was .141. The police officer informed Botson of his constitutional right to an independent chemical test, which Botson declined. But unbeknownst to Botson and the police officer administering the test, the breath test device had produced an error code related to one of its quality assurance mechanisms.
Botson argues that his breath test result was inadmissible under the Anchorage Municipal Code, which requires breath tests to be conducted in compliance with methods approved by the Alaska Department of Public Safety. He also argues that suppression was required under the Due Process Clause of the Alaska Constitution because his ignorance of the error code prevented him from knowingly and intelligently waiving his constitutional right to an independent chemical test. But although the administration of Botson's breath test may not have strictly complied with approved methods, Botson does not contest the district court's finding that the error code had no bearing on the accuracy of the test. Accordingly, we agree with the district court's and the court of appeals' conclusion that the breath test result was admissible under our " substantial compliance" doctrine. We also agree that Botson validly waived his right to an independent chemical test because he had a basic understanding of that right before declining the test. We therefore affirm.
II. FACTS AND PROCEEDINGS
A. John Botson's Arrest And Breath Test
John Botson was arrested for driving under the influence and submitted to breath testing of his blood alcohol concentration. The Anchorage police officer who administered the test explained to Botson that once the breath test device was prepared it would " go through a bunch of self checks [to] make sure it's functioning properly." Following a 15-minute observation period, the officer took Botson's breath sample and the breath test device produced a reading of .141, significantly higher than the legal limit of .08.
After informing Botson of the result and reading form notices regarding the revocation of Botson's driver's license and seizure of his vehicle, the officer read Botson a notice
of his right to an independent chemical test. The officer told Botson:
You are under arrest for the offense of driving under the influence. In addition to a chemical test of your breath, you have a right to an independent chemical test of your level of intoxication. . . .
You may obtain an independent test one of the following ways. If you wish to have an independent chemical test at municipal expense, we will make arrangements for a sample of your blood to be drawn by qualified personnel at no expense to you. . . . Two, if you wish to have an independent chemical test of your own choosing, you must make your own arrangements for one to be administered within the immediate Anchorage area by a qualified person and you must pay for it yourself. . . .
. . . It is possible that evidence from the independent chemical test sample may be obtained by the municipality through legal processes and used against you.
I cannot give you any other legal or medical advice. If you have any questions, you should ask your legal and health advisors. At this time you must decide whether or not you want to take an independent chemical test.
Botson responded, " No, I guess not."
At the time neither Botson nor the officer was aware that the breath test device had produced an error code related to one of its quality assurance measures, the " external standard" test. That test involves a canister of compressed ethanol gas, or " alco bottle," connected to the device's testing chamber. Each canister is labeled with a target value that the administering officer enters into the device prior to testing, and the device has a regulator that controls the flow of gas into the chamber.
The breath test device automatically conducts an external standard test both before and after taking a subject's breath sample. The device first adjusts the target value according to barometric pressure. The device's regulator then turns on and a known quantity of ethanol gas from the canister is pulled into the chamber. The device produces a numerical result based on the amount of alcohol detected, and if that result falls within a given range of the target value, the " external standard" test is satisfied. If the result falls outside of this range, the machine will produce an error message reading " standard out of range." 
In Botson's case the target value adjusted for barometric pressure was .079 and the pre-sample external standard test produced a result of .080, well within the acceptable range. But the next external standard test, run after Botson's breath sample was taken, resulted in a value of only .018, far below the expected value. The breath test device therefore produced an error message reading " standard out of range." This error message appeared on the device's screen as well as a printout that the officer initialed and dated. But according to the officer, the error message nonetheless went unnoticed.
The Municipality of Anchorage subsequently charged Botson with driving under the influence, noting that his breath test revealed a blood alcohol level of .141.
B. The Trial Court Proceedings
Botson filed two suppression motions before the district court, both highlighting the failure of the final external standard test and the resulting error code.
Botson's first motion was based primarily on AMC 09.28.023(E), which states, " To be considered valid under the provisions of this section, the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the state department of public safety." The district court held a two-day evidentiary hearing at
which the officer and two expert witnesses testified. The officer explained that at the end of the test sequence, a prompt appears on the breath test device's screen asking the operator if the external testing canister (the alco bottle) has been turned off, and the operator must input " yes" before the test results can be printed. According to the officer, he " [got] ahead of [himself]" during Botson's test and turned off the alco bottle too early " so [he] could just push the yes button." After listening to an audio recording of Botson's breath test, the officer identified the " clunking" sound of the alco bottle being turned off before the final external standard test was completed.
The Municipality's expert witness, Colleen O'Bryant, confirmed this interpretation of the audio recording and testified that turning off the alco bottle prematurely would have caused the final external standard test to produce a result out of range. She further explained that the calibration of the breath test device had been verified on September 14 and October 7, 2010, and that the device would have been " working properly" on September 30, when Botson was arrested.
Botson presented expert testimony from a retired Anchorage police officer, Donald Mann. Much of Mann's testimony was unrelated to the external standard test, but Mann confirmed based on the audio recording of Botson's breath test that the officer likely shut off the alco bottle prematurely. Mann further opined that this could have caused the alco reading to fall significantly below the target value. Reaching a different conclusion from the Municipality's expert, however, Mann testified that regardless of what caused the final external standard test to fail, this error precluded the required assurance of accuracy.
The district court denied Botson's suppression motion, concluding that for purposes of AMC 09.28.023(E), " methods approved by the state department of public safety" referred only to those which the Department had codified, rather than " any [statewide] procedure or method that the [Department] instituted or taught." Because neither state statute nor regulation requires external standard testing, the court reasoned, the failure of the final external standard test did not render the test result inadmissible. In the alternative, the court concluded that even if external standard testing had been required, the Municipality had substantially complied with applicable protocol. Specifically, the court found that the officer prematurely turned off the alco bottle, that this caused the final external standard test to fail, and that in light of this " simple" explanation for the error code, the reliability of Botson's test results was not in doubt. Accordingly, the court concluded that the Municipality had proved substantial compliance and that Botson's test result was therefore admissible.
Botson then filed a second suppression motion alleging that the officer's failure to disclose the " standard out of range" error had deprived Botson of his due process right to an independent chemical test, because his waiver of this right was not " knowingly and intelligently made."  Botson supported this claim with an affidavit stating that he would have taken a blood test had he known about the undisclosed error. Botson also noted that as a rheumatologist he " [relies] extensively on laboratory testing and instrumentation" and is " familiar with the purpose and need for insuring the accuracy of instruments and machines." He further attested that based on the officer's mention of the breath test device's self-tests, he " assumed . . . [the
officer] would tell [him] if the [device] was not functioning correctly."
The district court denied this second suppression motion. Citing Zemljich v. Municipality of Anchorage, the court stated:
[F]or a knowing waiver to occur, it is generally sufficient that defendant is notified of his right to an independent chemical test, is aware that he has been arrested for operating under the influence, and understands that the purpose of the ...