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Blank v. State5/19/2000
rth Amendment may not require an arrest before the warrantless seizure of evidence from a suspect in Blank's circumstances, our supreme court in Layland ruled that article I, section 14 of the Alaska Constitution does require that formality.
The court reasoned as follows:
In our view, strict adherence to the substantially contemporaneous arrest requirement ensures to persons suspected of driving under the influence of alcohol protection from arbitrary denials of their right of privacy. Adherence to the substantially contemporaneous arrest prerequisite provides some measure of assurance that probable cause is based upon considerations independent of the blood-alcohol test results.
Professor LaFave maintains that our court's concern is "untenable, as the need for a court to determine that probable cause existed prior to the test is present under either rule." Even so, the Layland court concluded that the warrantless seizure of Layland's blood could not be justified under the exigent-circumstances exception to the warrant requirement. We are bound to follow the decisions of our supreme court. Because Blank was not under arrest when she was searched, the portable breath test result was obtained contrary to article I, section 14 of the Alaska Constitution.
The State argues that because the portable breath test was obtained in good faith compliance with the dictates of the statute, suppression is not an appropriate remedy even if the statute is unconstitutional because the police complied with the direction of the statute. But this argument is unconvincing. The statute did not mandate testing. Rather, it gave the police discretion to test a driver who was involved in an accident where someone else was seriously injured (" he test or tests may be administered at the direction of a law enforcement officer . . .").
The State argues that the failure to arrest Blank was harmless beyond a reasonable doubt because the record establishes that the police could have arrested Blank when the portable breath test was administered. However, we have ruled that the evidence was inadmissible under Layland. The State argued to the jury that Blank's blood alcohol level as shown by the portable breath test was relevant evidence to meet the burden of proof for both manslaughter and failure to render assistance. The State claimed that Blank's blood alcohol level showed that Blank was impaired and that her impairment affected her ability to perceive the risk caused by her conduct. As instructed, the jury could find that the State met its burden of proof on the mental state for each crime charged by showing that Blank failed to perceive the risk of her conduct because of her impairment. The State additionally presented expert testimony on the rate that alcohol was absorbed and metabolized, allowing inferences to be drawn from the alcohol level at the time of the portable breath test. The State also presented expert testimony regarding the influence of alcohol on cognitive and physical functions at various blood alcohol levels and evidence of a consensus in the scientific community that a person with a .08 level is too impaired to drive. Finally, the State used the .082 breath test result to attack Blank's credibility by presenting expert testimony that she could not have consumed only two beers as she reported to Trooper Tyler and obtained a .082 portable breath test result, but that she would have to have had four times the amount of beer that she reported to obtain that result. We cannot conclude that the use of the portable breath test result was harmless. Therefore, Blank's convictions must be reversed because Blank's breath test was illegally obtained and admitted at her trial.
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