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Sosa v. State6/16/2000
No. 5283
Petition for Hearing from the Court of Appeals of the State of Alaska, on Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Dale O. Curda, Judge.
I. INTRODUCTION
In two specific circumstances Alaska's implied consent statutes permit a driver's blood to be drawn for chemical testing for evidence of driving while intoxicated (DWI). Those circumstances do not include unavailability of a breath testing device. Because no functioning breath testing device was then available, a magistrate issued a search warrant permitting Juan Sosa's blood to be drawn after he was arrested for DWI. Can Sosa be charged with evidence tampering for defying the warrant, when neither exceptional circumstance specified by statute was present? We hold that he cannot. Because the warrant could not legally permit a blood draw to support a DWI charge, his refusal cannot constitute evidence tampering. We therefore vacate his conviction.
II. FACTS AND PROCEEDINGS
A Bethel police officer arrested Juan Sosa for DWI and took him to the police station. Because the station's chemical breath testing device was malfunctioning, the officer did not ask Sosa to submit to a chemical breath test; instead, the officer obtained a search warrant from a magistrate. The search warrant allowed "Any Peace Officer" to seize a sample of Sosa's blood. When approached and shown the warrant, Sosa twice refused to submit to a blood test; at one point he assumed a combative stance and stated that he would fight rather than submit to a blood draw. The police officers relented and did not draw Sosa's blood.
The state charged Sosa with felony DWI, reckless driving, refusal to submit to a chemical test, and tampering with physical evidence by refusing to submit to the blood test. It did not charge Sosa with assault or ask the court to hold him in contempt for defying the search warrant. The trial court dismissed the refusal charge, but a jury convicted Sosa of the three remaining counts. The superior court denied Sosa's motion for judgment of acquittal on the evidence tampering charge, and the court of appeals affirmed. This court then granted Sosa's petition for hearing on the issue of the validity of the evidence tampering charge.
III. DISCUSSION
A. Standard of Review
We review interpretations of statutes de novo, adopting the rule of law that is most persuasive in light of precedent, reason, and policy. We review Sosa's claims of error for plain error because he failed to raise them in the trial court. Plain error exists "where an obvious mistake has been made which creates a high likelihood that injustice has resulted."
B. Exceptions to the Prohibition on Chemical Blood Tests
The Alaska legislature constructed a comprehensive statutory scheme, commonly known as the implied consent statutes, to govern chemical testing of DWI arrestees. Under these statutes, any driver "shall be considered to have given consent to a chemical test or tests of the person's breath." The statutes also state that the driver shall be deemed to have consented to blood testing in two specific and limited circumstances: (1) if the driver "is involved in a motor vehicle accident that causes death or serious physical injury to another person," or (2) if the driver is "unconscious or otherwise . . . incapable of refusal." The implied consent statutes describe no other circumstance as a basis for implying consent for a blood test; they contain no general language implying consent to a blood draw except in the two circumstances specified.
The state, however, argues that we should recogn
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