Blank v. State

142 P.3d 1210, 2006 Alas. App. LEXIS 144, 2006 WL 2522387

• Court: Court of Appeals of Alaska
• Decided: September 1, 2006
• Docket: No. A-9034
• Status: Published

Opinions

OPINION

STEWART, Judge.

Laura A. Blank struck a pedestrian, Pen-nye McDowell, inflicting fatal injuries, and drove away from the scene. Soon thereafter, an Alaska State Trooper arrived at Blank’s home to investigate. While the trooper and Blank sat in his patrol car discussing the situation, the trooper asked Blank to blow into an instrument described as a portable breath test. Blank did so, and the results of the test were admitted at her trial for manslaughter and felony leaving the scene of an accident.¹ The jury convicted Blank as charged.

In this appeal, we consider Blank’s remaining attacks on the superior court’s admission of the results of this breath test and reject them. Accordingly, we affirm Blank’s conviction.

Background facts and the procedural history of this case

On September 26, 1994, McDowell and a friend, Diane Forster, were walking on a residential street in a subdivision near Palmer when Blank drove up from behind and struck McDowell. McDowell died from her injuries. Blank did not stop.

Blank’s husband, Greg Blank, appeared at the scene while troopers were investigating. Mr. Blank told Trooper Bill D. Tyler that Mr. Blank’s wife may have been involved in the accident. Tyler and two other officers followed Mr. Blank back to the Blank residence. At the residence, Tyler introduced himself to Laura Blank and suggested she talk with him in his patrol car.

Blank told Tyler that she had two beers at a friend’s house before driving home. Tyler asked Blank to take a breath test on the portable device he had in the patrol car. She agreed, and the test resulted in a reading that Blank had a blood-alcohol content of .082%. Tyler did not arrest Blank.

In our first opinion in this case, we held that the breath test was unconstitutional because AS 28.35.031(g) did not require individualized suspicion that the driver had committed a crime.² We also ruled that, under the Alaska Supreme Court’s opinion in Layland v. State,3 the breath test was inadmissible.⁴ The Alaska Supreme Court reversed our ruling, holding that the breath test was authorized by AS 28.35.031(g). The supreme court construed the statute to require probable cause and the existence of exigent circumstances.⁵ Also, the court overruled Lay-land.6 The supreme court remanded to the superior court to decide whether exigent circumstances existed to justify Trooper Tyler’s search in Blank’s case.⁷

On remand, Judge Cutler found exigent circumstances existed to justify the admission of the portable breath test. Blank does not dispute the superior court’s finding that exigent circumstances existed. Rather, Blank raises the issue of whether the admission of the results of the portable breath test is barred by statute.

Discussion

Blank frames the appeal in two questions: first, is a breath test on a portable device exclusively a “preliminary breath test” as that test is described in AS 28.35.031(b)? Second, if a breath test on a portable device is a “preliminary breath test,” is its eviden-tiary use limited to establishing probable cause for arrest?

Alaska’s implied consent statute provides that a person operating a motor vehicle in Alaska is considered “to have given consent to a chemical test or tests of the person’s breath for the purpose of determining the alcoholic content of the person’s blood or breath[.]”⁸ Usually, a person must be “lawfully arrested” before a person’s duty to submit to testing under the implied consent statute is triggered.⁹

The statute specifies two situations in which a person impliedly consents to testing without an arrest. First, under subsection .031(b), an officer may give a “preliminary breath test” if the officer has “probable cause to believe that a person’s ability to operate a motor vehicle” is impaired by alcohol and the person was involved in an accident.¹⁰ Subsection (d) provides that the results of this preliminary breath test “may” be used to determine whether a driver should be arrested.¹¹

Next, subsection .031(g) provides that, if a person is involved in a motor vehicle accident that “causes death or serious physical injury to another person,” that person will be considered to have given consent to a “chemical test or tests of the person’s breath and blood” to determine alcohol levels.¹² An officer is not required to arrest the person prior to the test conducted under subsection .031(g). The Alaska Supreme Court has interpreted subsection .031(g) to require probable cause to search and exigent circumstances.¹³ Here, Judge Cutler found the test was admissible under subsection .031(g).¹⁴

AS 28.35.031 sets no explicit limit on the admissibility of different kinds of breath tests. AS 28.35.033(d) does provide that, when “a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.” And AS 28.35.033(e) specifies that, except for a proviso not relevant in this case, the statutory presumptions that arise from evidence of a person’s alcohol level “may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of intoxicating liquor.”

Blank asserts that a breath test on a portable device is synonymous with a preliminary breath test, and therefore, the test she performed in Trooper Tyler’s patrol ear could only be a “preliminary breath test.” In addition, Blank argues that the statute implicitly limits the admissibility of preliminary breath tests (performed with portable devices) to establishing probable cause for arrest.

Blank bases her assertion regarding preliminary breath tests on a prior case involving the implied consent statute. In Guerre-Chaley v. State,15 we noted that “Guerre-Chaley submitted to a ‘preliminary breath test’ — i.e., a breath test on a portable testing device carried by the police officer.”¹⁶ Blank reads this language to mean that any test performed on a portable device is a “preliminary breath test” for purposes of the implied consent statute. The State argues that the language in Guerre-Chaley only indicates that the officer in that case used a portable device to conduct the preliminary breath test-not that any test administered on a portable device is exclusively a preliminary breath test under subsection (b).

In Guerre-Chaley, we used the terms “preliminary breath test,” “preliminary breath test device,” and “portable testing device” interchangeably. The device in question was a portable device, and the test in dispute was authorized under .031(b).¹⁷ But the term “preliminary” used in subsection (b) refers to the timing of the test authorized under .031(b) — not the device on which the test is performed. Nor does it specify that a device used for a test under .031(b) can only be used for a “preliminary” test and no other purpose.

The statute does not otherwise define “preliminary.” The common, ordinary meaning of “preliminary” specifies a temporal distinction. Thus, “preliminary” identifies the breath test by the time when the test is given (before arrest) but not the device used.¹⁸

In sum, Blank has not shown the statute provides that a breath test administered with a portable device is exclusively a “preliminary breath test;” nor has Blank identified legislative history that restricts the use of portable devices to preliminary tests under .031(b).

Blank notes that subsection .031(d) states that preliminary breath tests under subsection (b) “may be used by the law enforcement officer to determine whether the driver or operator should be arrested.” Blank argues that, under the maxim expres-sio unius est exclusio alterius,¹⁹ the designated use of the preliminary breath test for determining probable cause for arrest should be read as exclusive. While this principle is often a useful guide for statutory construction, it does not always apply, particularly when the result of applying the principle appears contrary to the purpose of the statute.²⁰ The subsections of AS 28.35.031 all address circumstances under which a person has impliedly consented to a chemical test of one form or another. But the subsections of AS 28.35.031 do not restrict, or even address, the admissibility of relevant evidence under the evidence rules, and Blank has not shown any legislative history to that effect. .

The next principle of statutory interpretation Blank employs is that all sections of a statute must be read in harmony so that each has meaning and none conflict.²¹ Blank notes that the subsections dealing with preliminary breath tests were added to the implied consent statute in 1983, well after the statute was codified.²² Blank claims that, if the legislature intended preliminary breath tests to be used for purposes other than establishing probable cause to arrest, it would have been unnecessary to add subsection (d) because “arrest determinations would necessarily be included in use as trial evidence.”

But Blank has not shown any disharmony in the statute. As the State points out, before the statutory authorization of preliminary breath tests, any test authorized under the implied consent statute required that the testee first be arrested before the test could be administered.²³ As a result, a preliminary breath test may be useful for assisting an officer in deciding whether to arrest a suspect, and subsection (d) suggests as much. But the language in subsection .031(d) does not limit the use of a portable device to assisting decisions about whether to arrest an individual. Although this may be a beneficial use for a portable device, the subsection does not provide that it is the only use for such a device.

Next, Blank argues that subsection .031(g) does not authorize a chemical test administered with a portable device. Specifically, Blank reasons that, because only one breath testing device was approved for evidentiary use at the time of Blank’s incident (the Intox-imeter 3000), subsection .031(g) did not authorize testing with other devices. Blank argues that, “while subsection .031(g) authorized Trooper Tyler to take Mrs. Blank in for a breath test on the Intoximeter 3000, it did not authorize a [portable breath test].”²⁴ Blank contends that, in promulgating subsection .031(g), the legislature did not intend to repeal the limits on the use of portable breath tests or intend their admission without the safeguards required for admission of other breath tests.

The legislature provided that the Department of Public Safety had the authority to evaluate and approve breath-test machines.²⁵ The result of a breath test is considered valid if “the chemical analysis ... shall have been performed according to methods approved by the Department of Public Safety.”²⁶ But being a “valid” test only means that “further foundation for introduction of the evidence is unnecessary.”²⁷ If Blank’s breath test had been taken with an Intoximeter 3000, the results of the test could have been submitted into evidence under AS 28.35.033(d) without a further showing of validity because the Intoximeter 3000 was an approved device. But this does not mean that a different chemical test performed on another device is not admissible; it only means that tests on other devices are subject to the normal rules of admissibility and reliability as required by the rules of evidence.²⁸

We note here that Blank has not attacked Judge Cutler’s ruling that the test result from the portable device was relevant and reliable evidence. This is in contrast to Guerre-Chaley, where the State objected to the use of the results of a breath test on a portable device because the reliability of that device had not been demonstrated.²⁹

Approval of a specific test by the Department of Public Safety only affects whether that test enjoys a statutory presumption of validity under AS 28.35.033(d). It does not affect whether that test is admissible in court in general. The implied consent statute does not limit the use of portable breath test results to aiding in the decision whether to arrest a potentially intoxicated driver.

Conclusion

The judgment of the superior court is AFFIRMED.

COATS, Chief Judge, concurring.

MANNHEIMER, Judge, dissenting.

1 . AS 11.41.120(a) & AS 28.35.060(a), respectively.

2 . Blank v. State, 3 P.3d 359, 366 (Alaska App. 2000).

3 . 535 P.2d 1043 (Alaska 1975), overruled on other grounds by Anchorage v. Geber, 592 P.2d 1187, 1191-92 & n. 8 (Alaska 1979).

4 . See Blank, 3 P.3d at 370.

5 . State v. Blank, 90 P.3d 156, 161-64 (Alaska 2004).

6 . Id. at 160-61.

7 . Id. at 162-64.

8 . AS 28.35.031(a).

9 . See AS 28.35.031(a).

10 . AS 28.35.031(b).

11 . AS 28.35.031(d).

12 . AS 28.35.031(g).

13 . Blank, 90 P.3d at 162.

14 . Blank, 90 P.3d at 159.

15 . 88 P.3d 539 (Alaska App.2004).

16 . Guerre-Chaley, 88 P.3d at 541.

17 . Id. at 544.

18 . Webster’s defines "preliminary” as "coming before or leading up to the main action, discussion, business, etc.; introductory; prefatory; preparatory." Webster's New World College Dictionary 1134 (4th ed.2001).

19 . Literally, "the expression of one is the exclusion of another." See Puller v. Anchorage, 574 P.2d 1285, 1287 (Alaska 1978) (“The maxim establishes the inference that, where certain things are designated in a statute, 'all omissions should be understood as exclusions.'") (quoting Sands Sutherland Statutory Construction, § 47.23 at 123 (4th ed. 1973)).

20 . See Sonneman v. Hickel, 836 P.2d 936, 939 (Alaska 1992).

21 . See Matter of Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978) ("It is an established principle of statutory construction that all sections of an act are to be construed together so that all have meaning and no section conflicts with another.").

22 . See Ch. 83, § 1, SLA 1969; Ch. 77, § 16, SLA 1983.

23 . Subsection (g) does not require arrest, but it was added in 1994, after subsection (b).

24 . This argument dovetails with Blank’s arguments above that a test conducted on a portable device is necessarily a "preliminary breath test” and is only admissible to show probable cause to arrest.

25 . AS 28.40.060.

26 . AS 28.35.033(d).

27 . AS 28.35.033(d). See also Oveson v. Anchorage, 574 P.2d 801, 804 (Alaska 1978) (noting that AS 28.35.033(d) allows a presumption that results of a valid test are valid without "any additional showing of foundational facts”).

28 . See Wester v. State, 528 P.2d 1179, 1181 (Alaska 1974) ("The Alaska legislature ... has specified the foundational facts necessary for admissibility of a chemical analysis of breath in AS 28.35.033(d). The statute, however, does not specify the method of proof of the foundational facts, which is controlled by the applicable rules of evidence.”).

29 . See Guerre-Chaley, 88 P.3d at 541.