Petition
for Review from the District Court, Second Judicial District,
Trial Court No. 2NO-13-590 CR Nome, Brooke Alowa, Magistrate
Judge.
Kenneth M. Rosenstein, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for the Petitioner.
Myron
Angstman, Angstman Law Office, Bethel, for the Respondent.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
OPINION
ALLARD, JUDGE
David
Evans was arrested for driving under the influence. When
Evans refused to take a breath test, the police obtained a
search warrant to draw a sample of his blood. A test of that
sample showed that Evans had a blood-alcohol level of .094
percent, which is over the legal limit of .08.[1]
Evans
was subsequently charged with both driving under the
influence and refusal to submit to a breath test. He first
moved to dismiss the refusal charge, arguing that he could
not be subject to the penalties for breath-test refusal under
Alaska's implied consent statutory scheme when the police
had obtained the same evidence through the warrant process
and were pursuing a prosecution for driving under the
influence based on that evidence. The district court denied
this motion.
Evans
then moved to suppress the results of the blood test, arguing
that Alaska law did not authorize the courts to issue search
warrants for non-consensual blood draws in cases where only
alcohol was suspected and the defendant had already refused
to submit to a breath test. The district court agreed with
this argument and suppressed the results of the blood test.
The State petitioned for review.
This
petition requires us to construe the legislature's 2001
amendment to Alaska Statute 28.35.031, Alaska's implied
consent statute. For the reasons explained in this opinion,
we conclude that the statute, as amended, authorizes courts
to issue search warrants in these circumstances. Accordingly,
we reverse the district court's ruling suppressing the
evidence of Evans's blood test result and remand this
case for further proceedings consistent with this decision.
We
emphasize that our holding is limited to the issues directly
before us. Evans has not cross-petitioned us to review the
trial court's earlier ruling on his motion to dismiss the
refusal charge. We therefore express no opinion as to the
merits of that decision.[2]
Why
we conclude that Alaska law does not prohibit courts from
issuing warrants for chemical tests of a person's blood
even in cases where the person has refused to submit to a
breath test and could potentially be prosecuted for the
separate crime of breath-test refusal
In
Alaska, a motorist lawfully arrested for driving under the
influence must submit to a requested breath test upon
receiving the proper legal advisements or face prosecution
for refusal to submit to a chemical test.[3] The question
presented in Evans's case is whether, in the event a
motorist refuses to take a breath test, the police may
nevertheless obtain a search warrant to compel the motorist
to submit to some other chemical test (generally a blood
test) for the purpose of establishing the motorist's
blood-alcohol level.
The
Alaska Statutes do not directly answer this question. Under
AS 28.35.031(a), any person who drives a motor vehicle and is
lawfully arrested for driving under the influence "shall
be considered to have given consent to a chemical test or
tests of the person's breath for the purpose of
determining the alcoholic content of the person's blood
or breath." If a motorist refuses to submit to this
breath test after being advised of the legal consequences of
that refusal, AS 28.35.032(a) provides that "a chemical
test may not be given, except as provided by AS
28.35.035." (Emphasis added.) Alaska Statute 28.35.035
provides two circumstances in which the police may administer
a chemical test of breath or blood without the motorist's
consent: (1) if the motorist was involved in an accident that
caused death or physical injury; or (2) if the motorist is
unconscious or otherwise incapable of refusal.[4]
In
1979, in Anchorage v. Geber, [5] the Alaska
Supreme Court construed the language of AS 28.35.032(a) -
"a chemical test may not be given" - to apply to
all chemical tests of both breath and blood. Thus, the Court
interpreted the statute to prohibit the police from
administering any chemical test of the person's
breath or blood without their express consent.[6] The supreme court
reasoned that, by elevating refusal to a separate crime and
enacting a comprehensive statutory scheme for the state's
implied consent law, the Alaska legislature had made the
breath test the "exclusive method for obtaining direct
evidence of a suspect's blood alcohol content, absent his
or her express consent to the use of some other form of
testing."[7]
Five
years later, in Pena v. Anchorage, [8] the Alaska
Supreme Court held that this limitation in AS 28.35.032(a)
extended even to police-initiated non-consensual blood draws
performed pursuant to a search warrant.[9] The supreme court
again reasoned that the implied consent statutory consent
scheme was intended to be comprehensive and the State was
permitted to charge a person lawfully arrested for DUI with
breath-test refusal if the person refused to submit to a
requested breath test but the State was not permitted to seek
a search warrant to obtain the same evidence through other
means.[10]
Thus,
under Geber and Pena, ifa person lawfully
arrested for driving under the influence refused to submit to
a breath test, the State was entitled to charge that person
with the crime of breath-test refusal and could use evidence
of the refusal against the person in the prosecution for the
underlying offense of driving under the influence; but the
State was not entitled to compel the person to comply with a
non-consensual chemical test of their breath or blood - even
through the warrant process.
Justice
Compton dissented from the holding in Pena. In
Justice Compton's view, the implied consent statutory
scheme addressed only chemical tests given "at the
direction of a law enforcement officer, " not tests
compelled by court order through a lawfully obtained
warrant.[11] Justice Compton observed that there was
"nothing in the statutes to indicate that the
legislature contemplated restricting searches pursuant to
warrant, which derive from the judicial authority of the
court, rather than the power of an officer to search an
individual at the time of arrest."[12]
Six
years after Pena, in 2000, the Alaska Supreme Court
decided Sosa v. State.[13] Sosa involved a
defendant who was arrested for driving under the influence in
a remote location. When the police realized that the local
breath-test machine was malfunctioning, they applied for, and
obtained, a search warrant to seize a sample of Sosa's
blood for chemical testing. Sosa resisted the efforts to draw
his blood and was later charged with, and convicted of,
tampering with physical evidence based on that
resistance.[14]
The
Alaska Supreme Court reversed the tampering conviction in
Sosa, applying the same reasoning it relied on in
Geber and Pena and concluding that Sosa
could not be compelled to undergo a non-consensual test of
his blood, even pursuant to a warrant, because a
malfunctioning breath-test machine did not fit into the
statutory exceptions created by the legislature in AS
28.35.035.[15] The State argued that an exception
should be made for circumstances in which no operable
breath-test machine existed and there was therefore no other
means to obtain the necessary evidence and no possible
penalties for breath-test refusal. But the supreme court
declined to recognize such an exception.[16]
A year
after Sosa was decided, the 2001 Alaska legislature
declared its disagreement with the Alaska Supreme Court's
Geber-Pena-Sosa line of precedent by adding
subsection (h) to AS 28.35.031.[17] That subsection provides:
"Nothing in this section shall be construed to restrict
searches or seizures under a warrant issued by a judicial
officer, in addition to a test permitted under this
section."[18]
When we
interpret the intended scope and meaning of a statutory
provision under Alaska law, we apply a sliding-scale approach
to statutory interpretation.[19] Under this approach, the plain
language of a statute is significant but does not always
control its interpretation because "legislative history
can sometimes alter a statute's literal
terms."[20] As a general matter, "the plainer
the language of the statute, the more convincing contrary
legislative history must be."[21]
Here,
the plain language of subsection (h) indicates that the
legislature intended to remove all of the limitations placed
by the Alaska Supreme Court on the government's ability
to use the search warrant process to investigate and obtain
evidence of driving under the influence.
The
legislative history of subsection (h) supports this
interpretation. The sponsor statement expressly states that
the intent of the amendment is to repudiate the reasoning in
Pena and Sosa and to adopt the view
expressed in Justice Compton's dissent in Pena -
that is, to adopt the view that the implied consent statutory
scheme limits the authority of the police to obtain a
warrantless chemical test incident to a lawful
arrest for DUI, but it was not intended to restrict the
authority of the courts to issue a warrant to compel
blood or other chemical evidence upon a proper showing of
probable cause.[22]
This
point was also made during a discussion of the proposed 2001
amendment in the House Judiciary Committee.[23] Chief
Assistant Attorney General Dean Guaneli of the Department of
Law told lawmakers that the courts had construed the implied
consent statutes to preclude the police from administering
any chemical test other than a breath test "even
pursuant to a warrant."[24] Guaneli stated that subsection
(h) "simply tells the court that it cannot construe the
statute in this fashion because it is not what is intended by
the legislature."[25]
Evans
argues that the legislature's intent to overrule
Pena and Sosa was more limited. He claims
that the legislature enacted subsection (h) to permit the
police to obtain warrants for blood draws only in cases where
a breath test is unavailable or otherwise inadequate -for
example, when no operable breath-test machine is available,
or when there is reason to believe the defendant is under the
influence of controlled substances. Evans further contends
that the legislature never intended the courts to issue
search warrants for blood draws in "routine" DUI
cases like his, where no controlled ...