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Guerre-Chaley v. State4/9/2004
Ute Guerre-Chaley was arrested for driving while intoxicated. During her encounter with the police, Guerre-Chaley submitted to a "preliminary breath test" - i.e., a breath test on a portable testing device carried by the police officer. According to this preliminary breath test, Guerre-Chaley's blood alcohol content was 0.079 percent. (The legal limit is 0.080 percent; see AS 28.35.- 030(a)(2).)
Later, at the police station, a breath test conducted using a DataMaster showed that Guerre-Chaley's blood alcohol content was 0.091 percent. Guerre-Chaley then requested an independent blood test; this blood test yielded a blood alcohol level of 0.095 percent.
At Guerre-Chaley's trial, the defense attorney wished to present the testimony of an expert witness who had concluded that, even though Guerre-Chaley's blood alcohol level exceeded the legal limit of 0.080 percent when her breath was tested on the DataMaster at the police station and when her blood was tested a little later, her blood alcohol level had been less than 0.080 percent at the time she was driving. But a problem arose because the expert witness proposed to base this opinion on the results of the preliminary breath test.
The State argued that the results of the preliminary breath test device did not meet the standard for admissibility of scientific evidence under the Daubert-Coon test (the test used in the courts of Alaska). For this reason, the State asked the trial judge to exclude all evidence of the preliminary breath test result (thus effectively prohibiting the defense expert from relying on it).
The trial judge, District Court Judge Raymond M. Funk, agreed that the preliminary breath test result constituted scientific evidence for purposes of the Daubert-Coon rule. The judge further ruled that the defense expert witness could not testify about, or rely on, the result of Guerre-Chaley's preliminary breath test unless the defense first established that the preliminary breath test device produced results that met the Daubert-Coon test for admissibility.
After Judge Funk made this ruling, the defense attorney declined a hearing on this issue and offered no other support for the scientific validity of preliminary breath test results. Accordingly, Judge Funk refused to allow the defense expert witness to rely on the result of the preliminary breath test.
(Despite this ruling, the expert witness, Dr. Lawrence K. Duffy, did testify for the defense. Based on the result of Guerre- Chaley's DataMaster breath test (0.091 percent) and the result of her later blood test (0.095 percent), Dr. Duffy concluded that Guerre- Chaley's blood alcohol level was rising throughout her encounter with the police, and that her blood alcohol level had been slightly below the legal limit when she was first stopped.)
On appeal, Guerre-Chaley argues that Judge Funk should have allowed her defense expert witness to testify about, and to rely on, the result of the preliminary breath test even though Guerre-Chaley failed to prove that this result was scientifically valid under the Daubert- Coon standard. Guerre-Chaley bases her argument on Alaska Evidence Rule 703, which reads:
Basis of Opinion Testimony by Experts.
The facts or data ... upon which an expert [witness] bases an opinion or inference may be [either] perceived by or made known to the expert at or before the hearing. [These] acts or data need not be admissible in evidence, but [they] must be of a type reasonably relied upon by experts in [that] particular field in forming opinions or [drawing] inferences upon [that] subject.
Guerre-Chaley asserts that this rule exempts the propon
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