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Powell v. City and Borough of Sitka8/25/2004
cal question of whether the lack of a Datamaster test [i.e., a police-administered breath test] illegally deprived Mr. Powell of the benefits of that testing procedure. The defense theory is that this deprivation should result in the dismissal of the DWI charge. (See, Memorandum in Support of Defendant's Motion to Dismiss, II(C), p. 7.) The Municipality disagrees on this point; and the District Court has ruled in favor of the Municipality on this point. This is the point on which Mr. Powell's appeal to a higher court will be made.
2. Mr. Powell's Motion to Dismiss his DWI charge would be dispositive of this case, because a ruling in ... his favor would, as a matter of law, bar continuation of the prosecution.
(Emphasis added)
Identifying the issue that Powell has preserved for appellate review
An underlying issue in this case is whether, as Powell asserts, AS 28.35.031(a) requires the police to administer a breath test to all persons arrested for driving while intoxicated (at least, in the absence of an identifiable good reason for not administering the test).
The parties have not actively litigated this issue. Instead, the City and Borough of Sitka agrees that Powell's view of the statute is correct. In its brief to this Court, the City concedes that, under AS 28.35.031(a), the police normally are obliged to administer a breath test to every person arrested for driving while intoxicated (or, as the offense is now known under state law, "driving ... while under the influence"). The City argues that either the police had good reason not to administer the test to Powell, or any error was cured when the police offered Powell the opportunity to take the independent test.
Because of the City's concession regarding the meaning of AS 28.35.031(a), the parties did not focus on the meaning of this statute when they described the issue preserved for appellate review in their plea agreement. Rather, the parties focused on the remedy that Powell would be entitled to if the court concluded that the police had violated the statute:
The defense theory is that ... deprivation [of the purported statutory right to a police-administered breath test] should result in the dismissal of the DWI charge. ... The Municipality disagrees on this point; and the District Court has ruled in favor of the Municipality on this point. This is the point on which Mr. Powell's appeal to a higher court will be made.
(Emphasis added)
In other words, the parties agreed that Powell would prevail on appeal if, and only if, Powell would be entitled to dismissal of the prosecution (as opposed to any lesser remedy) if he showed that the police unlawfully declined to give him a breath test.
This interpretation of the parties' agreement is bolstered by the fact that, in the introductory clause of the written agreement, Powell and the City declared that they were entering the agreement " ursuant to Clark v. Municipality of Anchorage, 2 P.3d 639, 642 (Alaska App. 2000)". In Clark, we dismissed an appeal because the issue preserved by the parties in their Cooksey agreement was not "dispositive" of the defendant's case, as that term is defined in Miles v. State. The Clark opinion focuses exclusively on the requirement that the preserved issue be dispositive, and we stated (in no uncertain terms) that we would not condone litigants' efforts "to evade or ignore the Miles rule".
Because Powell and the City expressly advert to Clark in the opening clause of their written plea agreement, we infer (1) that Powell and the City were aware of our insistence that the issue preserved for appeal in a Cooksey plea agreement be dis
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