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Bushnell v. State7/21/2000
[No.1682 - July 21, 2000]
Appeal from the Superior Court, Third Judicial District, Anchorage, William H. Fuld, Judge.
COATS, Chief Judge. MANNHEIMER, Judge, dissenting.
Following a jury trial, Albert Steven Bushnell was convicted of felony driving while intoxicated (DWI). During the trial, the state admitted evidence of his breath test which indicated that his breath alcohol content (BAC) was .109 percent. Alaska Statute 28.40.060 provides that:
Except for an offense under AS 28.35.280, if an offense described under this title requires that a chemical test of a person's breath produce a particular result, and the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument's working tolerance.
Bushnell argues that AS 28.40.060 violates his due process rights because it allows the Department of Public Safety to approve any instrument, even one which is very inaccurate, to establish his level of intoxication. We conclude, however, that the legislature passed AS 28.40.060 with an awareness of the working tolerance of the Intoximeter 3000, a testing instrument that the Department of Public Safety has used for many years and which has a working tolerance of .01 percent. Accordingly, we conclude that AS 28.40.060 does not violate Bushnell's due process rights.
Facts and proceedings.
Bushnell's DWI offense was the result of events that took place on July 18, 1997. An argument occurred while Bushnell was drinking with Tina Gratias and Esther Schermerhorn at Gratias' apartment. Eventually, Bushnell was asked to leave. When he would not, Gratias threatened to call the police. After Bushnell tore one of the apartment's telephones off of the wall, Gratias went to a neighbor's apartment and called the police. Bushnell then left the apartment. Before leaving the area, however, he broke the windshield of Gratias' vehicle. After breaking the windshield, Bushnell rode away on a bicycle.
He soon returned, however, and a neighbor saw him driving a car in the area. The police then arrived, and soon found Bushnell walking in the area. He fled into some nearby woods, but - after a short time - was apprehended.
The arresting officers, Rodney Ryan and Scott Nissen, testified that they saw signs that Bushnell was intoxicated - his eyes were bloodshot and watery, and he had a moderate to strong odor of alcohol. Although Bushnell initially would not consent to field sobriety tests, Nissen persuaded Bushnell to submit to the horizontal gaze nystagmus (HGN) test. According to Nissen, the HGN showed that Bushnell was under the influence of alcohol. Bushnell was then turned over to Officer Daniel Nix, who took custody of Bushnell and then administered an Intoximeter test.
Discussion
Does AS 28.40.060 violate Bushnell's state and federal rights to due process?
We start our analysis with Haynes v. State, Dep't of Public Safety, an administrative license revocation case which involved a claim similar to Bushnell's. In Haynes, the Intoximeter test results showed that Haynes' BAC was .106 percent. In challenging the administrative revocation of his license, Haynes claimed that in light of the Intoximeter's inherent error of .01 percent, his actual BAC was somewhere between .096 and .116 percent. He argued that the test result was therefore insufficient to satisfy the burden of proof necessary to impose the license revocation. The supreme court ultimately held that the margin of error must be applied in Haynes' favor. In doing so, the court found that:
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