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Wood v. State4/21/1999
MEMORANDUM OPINION AND JUDGMENT
[No. 4040 - April 21, 1999]
Appeal from the District Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge.
A jury convicted Glen T. Wood of driving while intoxicated (DWI), a class A misdemeanor. We affirm.
In the early morning of August 16, 1997, University of Alaska at Fairbanks Police Officer Samuel Beaudreault stopped Wood for speeding and then observed an open box of beer cans in the vehicle with some cans missing. He also noticed Wood's bloodshot, watery eyes, slurred speech, and the smell of alcoholic beverages. Wood admitted to consuming three or four beers. Wood failed one set of three field sobriety tests administered by Beaudreault and another set in a different location by Fairbanks Police Officer Stephen Goetz. After Wood failed these tests, Beaudreault arrested him for DWI. A later breath test showed Wood's breath-alcohol level as 0.168 percent. A videotape of Wood's breath-testing proceedings was made at the police station and was played for the jury at trial.
On appeal, Wood first contends, generally, that District Court Judge Jane F. Kauvar erred by "conducting the trial on the premise that in Alaska if a properly administered breath test is greater [than] .10 a defendant must be convicted by the jury." However, this premise is essentially correct. As this court has recently held:
"As written, AS 28.35.030(a)(2) declares that a person is guilty of driving while intoxicated "if the person operates or drives a motor vehicle . . . when, as determined by a chemical test taken within four hours after the alleged offense was committed, there is 0.10 percent or more by weight of alcohol in the person's blood . . . or when there is 0.10 grams or more of alcohol per 210 liters of the person's breath". In Haynes [v. State Dep't of Pub. Safety, 865 P.2d 753 (Alaska 1993)], the supreme court interpreted this language as meaning that the State had to prove, by means of a chemical test, that the driver's blood actually contained at least .10 percent alcohol by weight, or that the person's breath actually contained at least .10 grams of alcohol per 210 liters. The newly enacted statute rejects this interpretation of the offense. AS 28.40.060 effectively declares that a driver violates AS 28.35.030(a)(2) if, within four hours of driving, the driver is tested on a properly calibrated, properly functioning Intoximeter and the driver's test result is at least .10 percent blood-alcohol or the equivalent .10 grams of alcohol per 210 liters of breath. The fact that the driver's true blood-alcohol or breath-alcohol level may be slightly lower (due to the Intoximeter's acknowledged margin of error) is no longer relevant to the driver's guilt under AS 28.35.030(a)(2).[ ]"
In any event, we note that Wood does not argue that Judge Kauvar erroneously instructed the jury on the elements of DWI. In fact, Judge Kauvar probably erred in Wood's favor when she explicitly instructed the jury that it was "strictly a factual matter for you, the Jury" to assign any weight to Wood's breath-test result, which "may be rebutted by [other] evidence." We find no error.
Wood also contends that Judge Kauvar erred by instructing the jury: "A person is 'under the influence of intoxicating liquor' if his or her ability to operate a motor vehicle has been impaired in any way by the consumption of alcoholic beverages." Wood proposed an instruction that was more verbose but gave substantially the same definition (although using the words "to a noticeable degree" instead of "in any way"). Wood cites no authority for his contention that Judge Kauvar's instruction was incorrect, other than his asse
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