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Powell v. City and Borough of Sitka8/25/2004
e issue to be determined is the defendant's blood alcohol level at the time the defendant was driving, not at the time the defendant was tested. The results of any chemical tests - either the police-administered breath test described in AS 28.35.031(a) or any independent chemical test that the motorist might obtain - ultimately have the same legal status: they are circumstantial evidence of the defendant's blood alcohol level at the time of driving.
When a defendant is prosecuted under AS 28.35.030(a)(1) - the "under the influence" clause of the DWI statute - the amount of alcohol in the defendant's breath or blood will give rise to various presumptions of intoxication or non-intoxication; these presumptions are codified in AS 28.35.033(a). And AS 28.35.033(d) declares that "the chemical analysis of person's breath or blood" will give rise to these presumptions only if the analysis " performed according to methods approved by the Department of Public Safety".
But this does not mean that only police-administered tests qualify. Rather, AS 28.35.033(e) expressly recognizes the right of a motorist to obtain an additional chemical test independently administered by "a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the [motorist's] own choosing". Because the Commissioner of Public Safety has established standards both for breath tests, see 13 AAC 63.020 -- 100, and for blood tests, see 13 AAC 63.110 -- 120, these independent tests can qualify as having been "performed according to methods approved by the Department of Public Safety". Indeed, an examination of the Commissioner's standards for blood testing suggests that most (if not all) blood tests conducted at a hospital, clinic, or laboratory will meet the approved criteria.
We therefore reject Powell's contention that, for purposes of proving a defendant's guilt or innocence, the police-administered breath test described in AS 28.35.031(a) stands on a different legal footing from the independent chemical test discussed in Snyder. And we accordingly conclude that the supreme court's decision in Snyder (concerning the appropriate remedy for an unlawful denial of a motorist's constitutional right to an independent chemical test) governs Powell's case as well.
(4) the blood sample must be deposited into a clean container; if feasible, the blood should be mixed with an anticoagulant and a fluoride preservative;
(5) if feasible, a sample of blood awaiting analysis should be stored in a refrigerator except for periods of time required for transportation;
(6) the identity and integrity of a sample must be maintained from the time of collection through analysis and reporting.
Methods of blood alcohol analysis.
(a) Analysis of a blood sample collected under AS 28.35.033 or 28.35.035 must be performed in a laboratory setting using one of the following generally accepted techniques:
(1) a titration method;
(2) an enzymatic method;
(3) gas chromatographic analysis;
(4) mass spectrophotometeric analysis.
(b) Analytical results must be expressed in terms of the alcohol concentration in blood based on the number of grams of alcohol per 100 milliliters of blood.
Conclusion
For the reasons explained here, we doubt that AS 28.35.031(a) requires police officers to administer a breath test to all persons arrested for driving while intoxicated. But even if the statute did impose this duty, the remedy for violation of the statute would not be dismissal of the prosecution. Accordingly, under the terms of Powell's plea agreement, we AFFI
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