from the Superior Court, Third Judicial District, Anchorage,
Trial Court No. 3AN-11-8528 CR, Gregory Miller, Judge.
Page, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
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.[*]
Following a jury trial, Rex Raymond Rask was convicted of
felony refusal to submit to a breath test. 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.
reasons explained here, we agree with Rask, and we reverse
the judgment of the superior court.
facts and prior proceedings
early morning of July 27, 2011, Rask drove his car into a
pole near the Cal Worthington Ford dealership on Gambell
Street in 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.
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.
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
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
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.
appeared confused by what he was being told, and he asked if
he was required to submit to the breath test or the blood
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
Officer Roberts: Okay. You want to provide a breath
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
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.
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.
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 ...