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State6/30/2000
[No. 5292 - June 30, 2000]
Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Larry R. Weeks, Judge.
I. INTRODUCTION
A woman arrested for driving while intoxicated refused to submit to a breath test. She later consented to take a breath test and police officers administered the test to her and obtained test results. Relying on her initial refusal, the Alaska Department of Public Safety administratively revoked her driver's license under Alaska's implied consent statutes. The superior court reversed the administrative revocation, holding that the driver had been permitted to cure her refusal. We affirm the superior court's decision, reasoning that the driver cannot be deemed to have refused after officers actually administered a breath test and obtained potentially probative evidence.
II. FACTS AND PROCEEDINGS
On October 28, 1997, at around 8:30 p.m., Juneau Police Department Officers Weske and Fermin saw Lori Shakespeare drive up to a Juneau home. When Officer Weske talked with Shakespeare he smelled alcohol and noticed that she had bloodshot eyes and slurred speech. He therefore gave her standard field sobriety tests. She failed the tests and admitted that she had consumed "two beers." The officers arrested her for driving while intoxicated.
They took her to the local Alaska State Trooper detachment for a breath test, arriving there at 9:06 p.m. The officers were about nine minutes into a required fifteen-minute observation period when Shakespeare said that she had to use the restroom. Officer Weske allowed her to enter the restroom but told her that the fifteen-minute observation period would have to start over. Both officers were male and could not accompany her into the restroom to ensure that she put nothing in her mouth.
After Shakespeare returned and thirteen more minutes had passed, Officer Weske told her that he was going to start the Intoximeter. Shakespeare again said that she had to use the restroom. Officer Weske again allowed her to enter the restroom, but sent a female dispatcher with her to ensure that Shakespeare put nothing in her mouth. When Shakespeare came out, Officer Weske started the Intoximeter. Shakespeare asked if the fifteen minutes had to start over and Officer Weske said, no, because the dispatcher had been with her. Shakespeare then refused to take the test. Officer Fermin read an implied consent warning form to Shakespeare at around 9:50 p.m. and allowed Shakespeare to read the notice and warning on the form for herself. Shakespeare still refused to take a breath test but stated that she was willing to give a blood sample.
The Juneau Police Department had recently adopted a policy prohibiting its officers from charging a driver with criminal refusal if the driver refused to take a breath test but agreed to a take an independently administered blood test. After Officer Weske called another officer to verify that policy, he explained to Shakespeare that if she took the blood test, the police would not charge her criminally, but the Alaska Department of Public Safety would nonetheless administratively revoke her driver's license. Shakespeare then signed the notice and revocation order form, acknowledging that she read and understood it, and surrendered her license.
The officers took Shakespeare to the hospital, arriving there at around 10:19 p.m. After learning that her own doctor would not administer the independent blood test, Shakespeare said that she would rather take the breath test. This request came within thirty minutes after her refusal to give a breath sample at the trooper detachment. Officer Weske told her tha
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