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Rask v. State

Court of Appeals of Alaska

April 28, 2017

REX RAYMOND RASK, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-11-8528 CR, Gregory Miller, Judge.

         Appearances:

          John Page, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.[*]

          OPINION

          ALLARD, Judge

          Following a jury trial, Rex Raymond Rask was convicted of felony refusal to submit to a breath test.[1] Rask appeals his conviction, arguing that his due process rights were violated because the police gave him obj ectively misleading advice regarding the criminal nature of his act of refusing to submit to a breath test.

         For the reasons explained here, we agree with Rask, and we reverse the judgment of the superior court.

         Underlying facts and prior proceedings

         In the early morning of July 27, 2011, Rask drove his car into a pole near the Cal Worthington Ford dealership on Gambell Street in Anchorage.

         Anchorage Police Officers Rayne Reynolds and Tadd McCauley responded to the accident scene and reported that Rask appeared to be impaired-he had "slurred speech, he appeared disoriented, and he appeared under the influence of something." Rask did not smell of alcohol.

         Officer Reynolds administered the horizontal gaze nystagmus test, which Rask failed. After Rask told him that he had hit his head during the accident, Officer Reynolds decided not to continue with any additional field sobriety tests because Rask appeared to need medical attention.

         At the hospital, the staff administered a portable breath test to Rask, which measured his blood-alcohol content at 0.00 percent - leading the hospital staff to suspect drug use. Based on this information, Officer Reynolds left the hospital to apply for a search warrant to test Rask's blood for controlled substances.

         Before the police could return with the warrant, Rask left the hospital, refusing any more medical treatment. Rask was later found by the police, wandering and disoriented, in an area near the hospital. The police arrested him for driving under the influence and transported him to the police station for processing.

         The DUIprocessing

         Officer Aaron Roberts conducted the DUI processing, which was tape-recorded. As part of the DUI processing, Officer Roberts told Rask that the police had secured a warrant to take a blood test from him. Officer Roberts also told Rask that he was being asked to take a breath test.

         Rask appeared confused by what he was being told, and he asked if he was required to submit to the breath test or the blood test.

         Officer Roberts told Rask that he did not have a choice as to whether to provide a blood sample because the police had a warrant. But Officer Roberts said that Rask did have a choice as to whether to provide a breath sample. The officer did not explain that it was a crime for Rask to refuse to provide a breath sample:

Officer Roberts: Okay. You want to provide a breath sample?
Rask: Ah, do I have to?
Officer Roberts: Well...
Rask: A breath sample or ...
Officer Roberts: Breath.
Rask: ... or blood?
Officer Roberts: We've got a search warrant for your blood, but I'm asking if you're willing to - to provide a breath sample.
Rask: So - I have to take the breath sample or Breathalyzer?
Officer Roberts: The - we're requesting you to take the Breathalyzer. You don't have a choice about the blood, because we got a search warrant for the blood.

         Following this exchange, Rask asked, "If I take the Breathalyzer now, are you guys going to do away with the blood work?" Officer Roberts told him, "No, that's not how it works. You're still going to have to do the blood anyway." Officer Roberts then read Rask an implied consent warning form, urging Rask to "stay awake" while Roberts read the form.

         The standard implied consent form begins, "You are under arrest for the offense of operating or driving a motor vehicle while intoxicated. You are being asked to submit to a chemical test of your breath to measure the alcoholic content of your breath. Refusal to submit to a chemical test can either be a class A misdemeanor or a class C felony." This standard form tracks the statutory language of AS 28.35.031(a), Alaska's ...


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