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Esque v. State8/25/1999
.35.031(a) refers to the breath test that police may administer to a person lawfully arrested for driving while intoxicated:
"(a) A person who operates or drives a motor vehicle in this state or who operates an aircraft as defined in AS 28.35.030(o)(2) or who operates a watercraft as defined in AS 28.35.030(o)(3) 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 lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle or operating an aircraft or a watercraft while intoxicated or if lawfully arrested under AS 28.35.280 for the offense of minor operating a vehicle after consuming alcohol. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle or operating an aircraft or a watercraft in this state while intoxicated or that the person was a minor operating a vehicle after consuming alcohol."
Esque is essentially claiming that this statute excludes otherwise admissible blood test evidence simply because it was not collected at the direction of a law enforcement officer. However, she offers no legislative history or other authority supporting this assertion. On its face, the statute does not purport to be a rule of evidence, nor attempt to limit what evidence is permissible in DWI cases. Rather, it creates an obligation on drivers to submit to a breath test under specified circumstances. Esque has not provided any authority demonstrating that this statute was intended to exclude evidence of blood testing conducted by hospital personnel for medical purposes.
Esque next contends that the serum blood test should have been suppressed because its result varies too much from a whole blood test result. As noted above, the parties stipulated for the evidentiary hearing and for trial that while typical DWI blood tests use a sample of whole blood, Esque's test used a sample of her serum blood. The parties further stipulated that the results from a test performed on serum blood can vary as much as 35 percent from the results of a test performed on whole blood. Finally, the parties stipulated that quality control tests had been performed on the machine used to test Esque's blood, that the machine had operated within its working tolerance, that the machine was capable of detecting interfering substances, and that there were no interfering substances detected in Esque's blood sample. In light of these stipulations, Judge Lombardi found that "there is no evidence that . . . the medical test, although different from the legal test, is 'inaccurate.'"
The fact that there is an expected difference between the results of the two types of blood tests does not render a serum blood test result inadmissible, particularly when the parties have stipulated to the variance. There was no evidence in the record that the serum blood test result was inaccurate, or that a retest of the sample would have yielded a different result. In this case, the record supports Judge Lombardi's finding that the serum blood test was accurate. Further, the Judge, sitting as the fact finder, was fully informed that the variance between the tests could be as high as 35 percent. Judge Lombardi found that, converting the serum blood result of .178 using the stipulated variance of 35 percent, Esque's blood alcohol level was still greater than .10 percent. In this case, the converted result was admissible to support Esque's conviction under either subsection (a)(1) or (a)(2) of AS 28.35.030. We f
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