 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Collard v. State3/21/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4364
MANNHEIMER, Judge, dissenting.
Following a jury trial, Robert Collard was convicted of driving while intoxicated (DWI). He had been indicted on one count of felony DWI, but was charged under alternate theories - that he knowingly operated a vehicle while under the influence of alcohol, or that he knowingly operated a vehicle when there was .10 grams or more of alcohol per 2.0 liters of his breath. Among other things, during the trial the state introduced evidence of Collard's breath test that indicated that approximately fifty minutes after he was stopped, his breath alcohol content was .126 percent.
Prior to trial, relying on AS 28.40.060, the state asked for a protective order prohibiting Collard from introducing evidence or arguing about the testing device's - the Intoximeter 3000 - working tolerance. Collard objected, but Superior Court Judge William H. Fuld ruled that while Collard could address the working tolerance as it applied to the state's impairment theory, under AS 28.40.060, Collard could not do so with regard to the state's .10 theory. In addition, Collard unsuccessfully asked the court to instruct the jury to apply the working tolerance in Collard's favor.
Collard now appeals, contending that AS 28.40.060 violates due process because the statute does not require the trial court to consider the margin of error of any particular testing device and expressly determine that it is "tolerably inaccurate." He also claims that the jury should have been instructed to apply the working tolerance in his favor.
We addressed nearly identical claims in Bushnell v. State. In Bushnell, we found that the legislature - in response to the supreme court's decision in Haynes v. State, Dep't of Public Safety - had determined that the working tolerance of the Intoximeter 3000, the testing device used in Collard's case, was "tolerably inaccurate." We thus concluded that AS 28.40.060 did not violate due process. We also concluded that in light of our holding, Bushnell was not entitled to a jury instruction similar to the one Collard requested. Our decision in Bushnell is dispositive of Collard's claims.
The conviction is AFFIRMED.
MANNHEIMER, Judge, dissenting.
I dissent from the decision of my colleagues for the reasons explained in my dissent in Bushnell v. State, 5 P.3d 889, 893-99 (Alaska App. 2000).
Page 1 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|