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Blank v. State5/19/2000
the evidence obtained from the search warrants should be suppressed because the portable breath test was an illegal search. However, if illegally obtained evidence is included in an application for a search warrant, we do not invalidate the warrant if the warrant could have been issued on the basis of the untainted evidence in the application.
Both search warrant applications in this case included evidence that Blank struck and killed McDowell while driving her car and did not stop at the scene of the accident. Her car suffered extensive and noticeable damage. The road was straight and level with no visual obstructions. McDowell and her companion were walking along the side of the road when McDowell was struck during daylight hours. Even without the result of the portable breath test, this evidence provided probable cause to believe that Blank committed felony leaving the scene of an injury accident, manslaughter, or criminally negligent homicide. Thus, the portable breath test result was not material to the issuance of the warrants.
Was the portable breath test an authorized search?
In a criminal investigation, a breath test for alcohol is a search. In Leslie v. State, we held that a police officer could administer a preliminary breath test under AS 28.35.031(b) only if the officer had probable cause to believe that the driver's ability to operate a motor vehicle was impaired by alcohol.
Here, Trooper Tyler had evidence that Blank left the scene of an injury accident that caused substantial and visible damage to her car. Tyler also knew that McDowell had died from her injuries. But, although there was probable cause to believe that Blank committed a crime, the State does not contend that the police had any individualized suspicion that Blank's "ability to operate a motor vehicle impaired by the ingestion of alcoholic beverages[.]" Moreover, the record would not support that conclusion. The record shows that Trooper Tyler noticed the odor associated with alcohol consumption, and that Blank stated that she consumed two beers at her friend's house. But the State has not identified any other evidence that Blank was impaired by alcohol.
Rather than relying on AS 28.35.031(b) as authority for the portable breath test, the State relies on AS 28.35.031(g) which provides as follows:
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 adminis- tered 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, subsection (g) by stating that " he test or tests may be administered at the direction of a law enforcement officer[,]" gives a police officer the discretion to test any driver or operator of a motor vehicle involved in an accident where someone else receives serious physical injuries or is killed. Apparently, the statute allows the officer to administer the test(s) without any individualized suspicion that the driver was impaired, whether by alcohol or drugs, or even any evidence that the driv
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