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Bushnell v. State7/21/2000
th-test machine, or to amend the statute if further research revealed that the Intoximeter 3000 actually had a working tolerance greater than .10 percent. The wording of AS 28.40.060 demonstrates that the legislature wanted to be done with this subject once and for all: they ratified every machine, and every margin of error, that the scientific director might approve. In the absence of identifiable criteria to govern the scientific director's choice, this is unlawful.
The majority offers a second way that the statute may be saved. They point out that, even though the statute may give the scientific director carte blanche, the scientific director has not exercised this unfettered discretion in an unreasonable way. Instead, the scientific director has approved the Intoximeter 3000, a breath-test machine with a concededly reasonable margin of error. Because the scientific director has not abused his discretion, the majority suggests that this court should ignore the statute's underlying flaw until the scientific director does something less reasonable.
This approach was specifically rejected by the Alaska Supreme Court in State v. Fairbanks North Star Borough. As explained above, that case involved a statute that gave the governor unfettered discretion to reduce the budget of any executive agency if, during the fiscal year, state revenues fell below projections. Arguing in support of the statute, the State pointed out that the two governors who had been granted this budget-cutting authority had exercised their power in a restrained and reasonable way. The court answered that this was irrelevant:
This [court does not intend] to impugn the motives or good faith of Governors Sheffield and Cowper. Both have interpreted the grant of authority under [the challenged statute] narrowly and have acted in accord with that narrow interpretation. However, the issue ... is not what has been done under the statute; rather it is what can be done. As [the New Mexico Supreme Court] said:
e find nothing in [the statute] whatsoever to indicate that the legislature was granting [only a limited] authority to be exercised [under] the conditions which [the State Board of Finance] says it has imposed on itself. As we read the [statute], the grant [of authority] is absolute and totally devoid of restraints, direction or rules. Accordingly, the fact that [the Board] acted ... under certain self-imposed restraints can in no way serve to supply what has been omitted. State ex rel. Holmes v. State Board of Finance, 367 P.2d 926, 932 (N.M. 1961).
The [executive branch's] limited exercise of authority ... cannot save a statute which amounts to legislative abdication. State v. Fairbanks North Star Borough, 736 P.2d at 1143-44.
Thus, even though the scientific director may have acted reasonably in exercising the unfettered discretion granted by AS 28.40.060, this does not save the statute. The decision in Fairbanks North Star Borough stands squarely against this contention. As the supreme court said, the issue is not what has been done under the statute; rather, the issue is what can be done.
Conclusion
For these reasons, I conclude that AS 28.40.060 is an unconstitutional delegation of law-making power to an executive branch officer. Because this statute is invalid, the law regarding breath-test results should return to its status following the supreme court's decision in Haynes v. Dept. of Public Safety.
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