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Esque v. State8/25/1999
MEMORANDUM OPINION AND JUDGMENT
[No. 4105 - August 25, 1999]
Appeal from the District Court, Third Judicial District, Palmer, Suzanne H. Lombardi, Judge.
Following a bench trial before District Court Judge Suzanne H. Lombardi, Kathryn L. Esque was convicted of driving while intoxicated (DWI). Esque appeals, contending that the Judge erred in failing to suppress the results from a hospital blood test. We affirm.
On September 5, 1997, Esque was involved in a one-car accident. She was the driver and sole occupant when her vehicle went off the road, rolled over, and came to rest on the west side of Edgerton Parks Road. The vehicle was severely damaged, and Esque had to be cut out from it by emergency personnel. Esque suffered injuries, and after she was extricated from the vehicle, she was transported to Valley Hospital. Alaska State Trooper Kathy Peterson responded to the accident. She arrived while Esque was still trapped in her vehicle. Peterson noted that Esque had a strong odor of alcoholic beverages on her breath, and that she had watery and bloodshot eyes. Peterson also saw several empty beer cans outside the vehicle. Later, at the hospital, Peterson interviewed Esque about the accident. There, Esque acknowledged that she had been driving, and said that after she was fired from work earlier in the day, she had consumed approximately six beers.
After Esque arrived at the hospital, the hospital staff drew and tested her blood. According to this test, Esque's blood alcohol content (BAC) was .178. This result was later obtained by the state with a search warrant, and Esque was charged with DWI for violating both AS 28.35.030(a)(1) and (a)(2).
Esque moved to suppress the blood test result, and an evidentiary hearing was held on December 5, 1997. At the hearing, Peterson and Esque testified, and the parties stipulated to several facts. After the hearing, Judge Lombardi issued a written decision denying Esque's motion. Subsequently, Judge Lombardi conducted a bench trial on stipulated facts; she found Esque guilty of DWI under either statutory theory.
Esque now brings this appeal, contending that the results from a serum blood test for medical purposes should have been suppressed for prosecution under AS 28.35.030(a)(1) because the test was not administered at the direction of law enforcement personnel, because the results from serum blood tests can vary as much as 35 percent from the results of whole blood tests, and because the troopers have no policy or training concerning the conversion of the test results. She also contends that the test results should have been suppressed for prosecution under AS 28.35.030(a)(2) because she received no warning or notice that the blood test results could be used against her. She finally contends, based on the above assertions, that using the results from a serum blood test violated her constitutional due process rights and statutory protections.
Esque's initial three contentions are that the test results were inadmissible for prosecution under AS 28.35.030(a)(1). She first contends that AS 28.35.031(a), part of the implied consent statute, requires that blood tests be conducted only at the direction of law enforcement personnel. She asserts that the language of AS 28.35.031(a) shows that the legislature intended that in DWI cases, breath tests, and by analogy, blood tests, must be administered at the direction of law enforcement officials. She claims that through this statute, the legislature intended to ensure that only tests on whole blood would be performed, double samples would be taken, and samples would be preserved allowing retests.
Alaska Statute 28
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