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Powell v. City and Borough of Sitka8/25/2004
Russell R. Powell pleaded no contest to driving while intoxicated, in violation of Sitka Ordinance 11.48.010(a). When he entered this plea, Powell reserved the right to argue that the case against him should be dismissed because the police failed to give him a breath test following his arrest. Powell's argument actually hinges on two distinct propositions of law: first, that AS 28.35.031(a) obliges the police to administer a breath test to all persons arrested for driving while intoxicated; and second, that if the police violate this statutory duty, the required remedy is dismissal of the prosecution. Under the terms of Powell's plea agreement with the City and Borough of Sitka, he must prevail on both of these issues if he is to prevail in this appeal.
For the reasons explained in this opinion, we do not believe that AS 28.35.031(a) imposes a duty on the police to administer a breath test to all DWI arrestees. Moreover, we are convinced that even if the statute did impose this duty, dismissal would not be the remedy for violation of this duty. We therefore affirm Powell's conviction.
Underlying Facts
Powell was arrested in Sitka for driving while intoxicated. Following Powell's arrest, the police asked him to submit to a breath test. Powell ostensibly agreed to take the test, but he repeatedly belched during the 15-minute pre-test observation period mandated by 13 AAC 63.040(a)(1). The police concluded that Powell was attempting to defeat the test, so they ceased their efforts to administer the test and charged Powell with refusing to take the test.
Earlier, the police had advised Powell of his right to an independent chemical test, but Powell declined the independent test.
Powell later asked the district court to dismiss the two charges against him. He argued that the breath-test refusal charge should be dismissed because his belching was involuntary; that is, he asserted that he had not been trying to defeat the breath test, and that he had always been willing to take the test. Powell further argued that the DWI charge should be dismissed because the police had not given him the breath test. Powell asserted that, under AS 28.35.031(a), the police are obliged to administer a breath test to every DWI arrestee - and that his case should be dismissed because the police, without good cause, failed to give him the breath test.
District Court Magistrate Bruce E. Horton agreed with Powell that the breath-test refusal charge should be dismissed, but the magistrate declined to dismiss the DWI charge. Magistrate Horton concluded that the police had acted in good faith when they declined to administer the breath test to Powell, and he further concluded that any error had been cured because the police offered Powell the opportunity to take an independent chemical test.
Following the district court's ruling, Powell pleaded no contest to the DWI charge, reserving his right to argue that this charge should be dismissed because the police failed to administer the breath test to him.
Powell's plea agreement with the City was reduced to writing. We quote that agreement here because the terms of the agreement are important to our decision of this case:
PARTIES' JOINT CERTIFICATION
REGARDING COOKSEY PLEA
Pursuant to Clark v. Municipality of Anchorage, 2 P.3d 639, 642 (Alaska App. 2000), the parties jointly certify the following regarding the Cooksey plea to which they have agreed in this case:
1. As the District Court has already dismissed the Refusal charge, the only remaining charge is the DWI charge. Mr. Powell's motion to dismiss the latter charge addressed the techni
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