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Powell v. City and Borough of Sitka8/25/2004
istent with the decision reached by the Alaska Supreme Court in Snyder v. State, 930 P.2d 1274 (Alaska 1996).
In Snyder, the defendant argued that even after he refused to submit to the breath test mandated by AS 28.35.031(a), the due process clause of the Alaska Constitution guaranteed him the right to obtain an independent chemical test of his blood alcohol level. The supreme court agreed. The remaining question was to determine the appropriate remedy for a violation of the defendant's constitutional right to an independent test.
The court discussed previous cases in which the government had obtained evidence of the defendant's blood alcohol level but had abridged the defendant's right to challenge that evidence (by neglecting to preserve a separate sample of the defendant's breath, or by not giving the defendant the opportunity to obtain an independent test). The court noted that, in such cases, the defendant's remedy had been suppression of the government's blood alcohol evidence. But in Snyder's case - as in Powell's case - "there was no blood alcohol test of any kind, and so [no evidence] to suppress".
The supreme court concluded that, in order to ensure the government's compliance with its constitutional duty to offer motorists the opportunity to obtain an independent chemical test, the court had to attach some adverse consequence to a violation of that duty. "Nevertheless," the court declared, "we are not persuaded that outright dismissal of the DWI charge is warranted or consistent with the sound administration of justice". Instead, the court decided that a motorist in Snyder's situation - i.e., a motorist whose due process right to an independent test had been unlawfully abridged - was entitled to a favorable evidentiary presumption at trial. The finder of fact "should presume that the independent blood test ... , if provided, would have been favorable to [the motorist]."
Even if we assume that the police were required by statute to give a breath test to Powell, his case presents a less egregious version of the same illegality discussed in Snyder. Powell claims a statutory right to a police-administered breath test, while Snyder dealt with a constitutional right to an independent (i.e., non-police-controlled) chemical test. In Snyder, the supreme court considered and rejected the argument that dismissal of the charge was an appropriate remedy for a violation of a motorist's constitutional right to an independent test. We view Snyder as conclusive on the issue of whether dismissal of the charge is an appropriate remedy for a violation of Powell's purported statutory right to a police-supervised breath test.
In Powell's case, as in Snyder, there was no chemical test of any kind, and thus no evidence of the defendant's blood alcohol level. If Powell had gone to trial, his trial would have looked like the trial in Snyder: that is, the government would have had to prove Powell's guilt under the "under the influence" clause of the DWI statute rather than the "blood alcohol" clause of the statute.
Attempting to distinguish his case from Snyder, Powell argues that his purported statutory right to a breath test is actually more important than the constitutional right to an independent test discussed in Snyder. Powell contends that only the police-administered breath test gives rise to the presumptions of guilt or innocence described in AS 28.35.030(a)(2) and AS 28.35.033(a).
With regard to the determination of guilt under AS 28.35.030(a)(2) - the "blood alcohol" clause of the DWI statute - we recently explained in Conrad v. State, 54 P.3d 313 (Alaska App. 2002), as expanded on rehearing, 60 P.3d 701 (Alaska App. 2002), that th
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