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Karlson v. State9/6/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4266- September 6, 2000]
Appeal from the Superior Court, First Judicial District, Juneau, Larry R. Weeks, Judge.
Following a jury trial, Bruce Karlson was convicted of the felony of driving while intoxicated (DWI). Karlson had been indicted on one count of felony DWI; he was charged under alternate theories - that he knowingly operated a vehicle while under the influence of alcohol, or that he knowingly operated a vehicle when there was .010 percent or more of alcohol by volume in his breath. During the trial, the state admitted evidence of his breath test which indicated that his breath alcohol content (BAC) was .109 percent. Karlson attempted to cross-examine a police officer about the inherent working tolerance of the testing device, the Intoximeter 3000. The state objected, arguing that AS 28.40.060 made this working tolerance irrelevant. Superior Court Judge Larry R. Weeks agreed, and sustained the objection. Karlson appeals, contending that AS 28.40.060 is unconstitutional because it violates his rights to due process.
Alaska Statute 28.40.060 provides that if a person is required by statute to take a chemical test of his breath, if he takes a test on an instrument approved by the Department of Public Safety, and the instrument is properly calibrated, then the result of the test is not affected by the working tolerance or margin of error of the instrument. Karlson 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. He also claims that limiting the evidence that a defendant can introduce in a DWI trial violates due process because it denies the right to a fair trial.
As we recently said in Bushnell v. State, however, the legislature - in response to Haynes v. State, Dep't of Public Safety - 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. We also noted that the Haynes court indicated that the legislature had the power to base the offense of DWI on a particular test result, and that a margin of error that it considered "tolerably inaccurate" could be disregarded. We concluded, considering the history of the Intoximeter and its established working tolerance, the discussion in Haynes, and the language of AS 28.40.060, that the legislature implicitly decided that a .01 percent working tolerance was "tolerably inaccurate," and, therefore, "irrelevant to the driver's guilt under AS 28.35.030(a)(2)." There is no indication that the legislature intended to create a statutory blood alcohol level that varied depending upon the instrument used by the state.
Nor does AS 28.40.060 impermissibly limit the evidence that a defendant can introduce at trial. In Bushnell, we reiterated what we said in Mangiapane: the practical effect of AS 28.40.060 was to modify the definition of driving while intoxicated under AS 28.35.030(a)(2). We held in Mangiapane that AS 28.40.060 rejected the interpretation from Haynes 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." We stated:
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 a
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