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Schoenthaler v. State6/28/2000
warrant, was not sufficient to establish probable cause.
Even so, the State argues that the police did not need a warrant to seize blood from Schoenthaler. Because Schoenthaler was under arrest for driving while intoxicated arising out of the accident where Pettit was injured, the State argues that the provisions of AS 28.35.035 were triggered. AS 28.35.035(a) provides:
If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle, aircraft, or watercraft while intoxicated, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person's breath or blood or to determine the presence of controlled substances in that person's blood and urine.
The record establishes that Schoenthaler was under arrest for driving while intoxicated and for assault stemming from the accident where Pettit was physically injured. On its face, this statute authorized the seizure of Schoenthaler's blood whether or not a search warrant had been issued and whether or not Schoenthaler had been offered a breath test. However, we have just concluded that the police arrested Schoenthaler without probable cause, making Schoenthaler's arrest illegal. Evidence obtained as a result of an illegal arrest is tainted and must be suppressed. Therefore, the seizure of Schoenthaler's blood is not authorized by AS 28.35.035.
Finally, the State argues that the seizure of Schoenthaler's blood was authorized by AS 28.35.031(g). AS 28.35.031(g) provides:
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 and blood for the purpose of determining the alcoholic content of the person's breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person's blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.
On its face, this statute appears to authorize the search of any person, whether or not under arrest, who was a driver of a vehicle involved in an accident where a person other than the driver was injured or killed, even when the police have no reason to believe that the driver is at fault or committed any offense. But in Blank v. State, we held that this statute is unconstitutional because it permits a search without probable cause. The State argues here that any constitutional infirmity in the statute can be avoided if we infer a requirement that this statute requires probable cause to believe the driver committed a crime before testing is authorized. But even if we construe the statute as the State suggests, the State's argument fails because we have concluded that the police did not have probable cause to charge Schoenthaler with a crime.
Finally, the State argues that suppression of the blood test is not appropriate even if the statute is unconstitutional because the police were merely fulfilling their responsibility to enforce the statute as written. But the statute does not require testing; it merely authorizes it. Thus, the police we
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