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Powell v. City and Borough of Sitka8/25/2004
t to the motorist, or must direct someone else to administer a breath test to the motorist. On the other hand, this language could mean that if a breath test is given to an arrested motorist, the test must be administered either by, or at the direction of, a police officer who has probable cause to believe that the motorist has been driving while intoxicated.
The first interpretation - the one advanced by Powell - is seemingly inconsistent with a motorist's right to refuse the breath test. Under Alaska law, unless the motorist has been involved in an injury accident, or unless the motorist is unconscious or otherwise incapable of refusing consent to the test, a motorist arrested for driving while intoxicated may refuse to take the breath test - in which case " chemical test [shall] be given".
(In such cases, the motorist is chargeable with the separate criminal offense of refusing to take the breath test, see AS 28.35.032(f), but the police may not administer the breath test or any other chemical test.)
Moreover, our prior decisions in this area appear to support the second interpretation of the statute - the interpretation that if a breath test is given to an arrested motorist, the test must be administered by or at the direction of a police officer having probable cause to believe that the motorist has been driving while intoxicated.
In Anchorage v. Ray, 854 P.2d 740 (Alaska App. 1993), we held that when an apparently intoxicated driver is involved in an injury accident, the police are authorized by AS 28.35.035(a) to immediately arrange to have the motorist's blood drawn for alcohol testing. We rejected the argument that the police were required to first see if the motorist would consent to a breath test. Id. at 747.
We reached a similar conclusion in an unpublished decision, Van Ornum v. Anchorage, Alaska App. Memorandum Opinion No. 4263 (August 16, 2000), 2000 WL 1157770. In Van Ornum, an intoxicated motorist was transported to a hospital (rather than to the police station) so that his injuries could be treated. By the time the hospital treatment was over, the four-hour window for administering a breath test had expired. For this reason, the police declined to give Van Ornum a breath test, despite his repeated requests for one. The police did offer Van Ornum the opportunity to obtain an independent chemical test, but he declined. On appeal, we upheld the police's refusal to administer a breath test to Van Ornum. Id. at 5-6; 2000 WL 1157770 at *3.
For these reasons, we doubt that AS 28.35.031(a) was intended to require the police to administer a breath test to every motorist arrested for driving while intoxicated. But we need not definitively resolve this issue. Under the terms of Powell's plea agreement, he does not prevail in this appeal unless he shows both that the police violated a legal duty to administer a breath test to him, and that the remedy for this violation is dismissal of the prosecution. As we explain in the next section of this opinion, even if we assume that the police were obliged to offer Powell a breath test, the remedy for a violation of this duty would not be dismissal of the DWI charge.
Assuming that the police have a statutory duty to administer a breath test to all persons arrested for driving while intoxicated (at least, those persons who do not affirmatively refuse to take the test), what would be the remedy for violation of this duty?
Powell argues that if the police had a statutory duty under AS 28.35.031(a) to administer a breath test to him, then he would be entitled to dismissal of the DWI charge if he proved that the police violated this duty. But Powell's argument is incons
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