 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Powell v. City and Borough of Sitka8/25/2004
positive, and (2) that they had taken pains to make sure that the issue preserved in their plea agreement was, in fact, dispositive as that term is defined in Miles and Clark.
In Powell's case, the issue of whether the police were obliged to give him a breath test is not dispositive under Miles and Clark. The only potentially dispositive issue presented on appeal is the question of whether, assuming that the police violated the law when they did not give Powell a breath test, Powell would be entitled to dismissal of the prosecution rather than some lesser remedy.
For these reasons, we construe the plea agreement to mean that Powell prevails in this appeal if and only if he is entitled to dismissal of the prosecution as a remedy for the police officers' allegedly unlawful refusal to give him a breath test. If the police acted lawfully, or if the police acted unlawfully but Powell is entitled only to some lesser remedy, then we are to affirm his conviction.
Did the police violate their constitutional duty to gather and preserve exculpatory evidence when they did not administer a breath test to Powell?
Powell argues that because the police did not administer a breath test to him, the police violated their duty (under the due process clause of the Alaska Constitution) to gather and preserve exculpatory evidence. But, as we noted earlier, the police did offer Powell a timely opportunity to obtain an independent chemical test. This satisfied the government's duty under the due process clause. See Snyder v. State, 930 P.2d 1274, 1277-79 (Alaska 1996).
Does AS 28.35.031(a) require police officers to administer a breath test to all persons arrested for driving while intoxicated?
Powell argues that the government has a duty under AS 28.35.031(a) to administer a breath test to all persons arrested for driving while intoxicated. He claims that this statutory duty is an adjunct to the government's due process obligation to gather and preserve potentially exculpatory evidence.
The Alaska implied consent statute, AS 28.35.031, provides (in pertinent part):
(a) A person who operates or drives a motor vehicle in this state ... 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 ... while under the influence of an alcoholic beverage, inhalant, or controlled substance ... . The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle ... while under the influence of an alcoholic beverage, inhalant, or controlled substance[.]
Powell contends that this statute requires police officers throughout the State of Alaska to administer breath tests to all persons arrested for driving while intoxicated (unless there is a valid reason not to administer the test). Powell bases his claim on the portion of the statute which declares that " he test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle ... under the influence". (Emphasis added)
But the italicized language is susceptible of two differing interpretations. It could mean (as Powell contends) that whenever a police officer arrests a motorist upon probable cause to believe that the motorist has been driving while intoxicated, the officer must administer a breath tes
Page 1 2 3 4 5 6 7 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|