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State v. Evans

Court of Appeals of Alaska

September 2, 2016

STATE OF ALASKA, Petitioner,
DAVID EVANS, Respondent.

         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. [*]


          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 ...

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