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Blank v. State5/19/2000
o consent to random drug testing before participating in extracurricular athletic programs was reasonable under the Fourth Amendment.
The governor's transmittal letter for the bill from which AS 28.35.031(g) arose shows that the subsection was designed for direct law enforcement. ("This proposed legislation gives police and prosecutors the tools they need . . .") This subsection abandons any requirement of individualized suspicion that a driver is impaired and permits the search, at the discretion of a police officer, of any driver involved in an accident where someone else suffers serious injury.
A suspicionless search program implemented for normal law enforcement, the apparent purpose of AS 28.35.031(g), does not meet the Supreme Court's "special needs" balancing test. In the cases discussed above, the Supreme Court pointed out that the suspicionless searches at issue served special societal needs other than normal law enforcement. Subsection (g) addresses normal law enforcement. Even if normal law enforcement was not the apparent purpose of subsection (g), the statute would have to meet the Supreme Court's balancing test. That test requires a "context-specific inquiry, examining closely the competing private and public interests advanced by the parties." And in Skinner, the Court stated: "In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion."
In the circumstances of this case, normal law enforcement needs would not be jeopardized by requiring the government to have individualized suspicion before subjecting a person to a breath test. Although a driver involved in an accident where someone else is seriously injured can reasonably expect that police would investigate the accident, the expectation of an investigation does not lessen a driver's expectation of privacy. Certainly, a portable breath test is relatively unobtrusive, particularly when compared to a seizure of blood. However, the need to supply the police and prosecutors with an additional tool for law enforcement that does not require individualized suspicion does not appear great. Having considered the three factors from the Supreme Court's analysis in Acton, we conclude that AS 28.35.031(g) permits unreasonable intrusions contrary to the Fourth Amendment.
We also reach the same conclusion under article I, section 14 of the Alaska Constitution. The Alaska Constitution restricts the legislature's authority to permit searches without a warrant. Article I, section 14 provides broader protection than the Fourth Amendment, especially when it is construed together with the right to privacy provision of article I, section 22.
We asked for additional briefing on whether the search of Blank's breath would have been permitted under the Fourth Amendment if the police had probable cause to believe that Blank committed a crime. In its response, the State suggests that Fourth Amendment concerns with the statute could be avoided if we construe AS 28.35.031(g) to require that the police have probable cause to believe that the tested driver has committed a crime, here vehicular homicide and hit and run. We recognize that a statute can be construed in a manner that does not raise constitutional concerns.
However, the State's proposed construction of the statute overlooks Layland v. State. Layland was receiving treatment at a hospital for his own injuries from a motor vehicle accident where another individual was killed. The police asked Layland for his
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