 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Harvey v. State8/11/1999
lding extends only "to the opportunity to obtain an independent chemical test," an opportunity the police denied Snyder by rejecting his request for a blood test.
Here, Harvey does not challenge Magistrate Christensen's factual finding that Harvey never requested a breath test. Officer Wannamaker had no duty to administer a breath test or any test to Harvey when she did not even request one.
We AFFIRM the conviction.
MANNHEIMER, Judge, Concurring.
I agree with the majority's Conclusion that AS 04.21.080(b)(8) is not worded so vaguely as to be unconstitutional. My primary quarrel with the majority opinion is that it discusses the statute at such length that we run the risk of simultaneously adopting three or four competing interpretations of the statutory language. I prefer a shorter analysis.
The statute uses two key phrases: it requires proof that a person's physical or mental conduct was "substantially impaired" by the consumption of alcohol, and it requires proof that the person exhibited "those plain and easily observed or discovered outward manifestations of behavior commonly known to be produced by the overconsumption of alcoholic beverages".
I interpret this statute as requiring proof of two things. First, the government must prove that the person was in fact intoxicated - that the person's mental and/or physical acuity was indeed "substantially impaired" by their consumption of alcohol. Second, the government must prove that this impairment would have been obvious to a reasonable observer - that the person's mental and physical behavior was affected to such a degree that a reasonable observer would have perceived that the person was intoxicated.
Harvey argues that the adjective "substantially" is so indefinite that the phrase "substantially impaired" has no fixed meaning. To the extent that "substantially" might be indefinite, the statute remedies this defect by requiring proof that the person was obviously intoxicated.
Harvey also argues that the outward manifestations of intoxication are so numerous and varied that reasonable persons would have to guess at what the legislature meant when it referred to intoxication that is "plain and easily observed or discovered". But the law has long recognized that " he objective signs of intoxication are matters of common knowledge and experience" , and that the "members of the general public have a common knowledge about whether a person is under the influence of alcohol" . This being so, the phrase used in AS 04.21.080(b)(8) - "outward manifestations of behavior commonly known to be produced by the overconsumption of alcoholic beverages" - is not unconstitutionally vague.
Page 1 2 3 4 5 6 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|