Bushnell v. State

5 P.3d 889, 2000 Alas. App. LEXIS 103, 2000 WL 1006745

• Court: Court of Appeals of Alaska
• Decided: July 21, 2000
• Docket: A-6944
• Status: Published

Opinions

0 P I N I O N

COATS, Chief Judge.

Following a jury trial, Albert Steven Bushnell was convicted of felony driving while intoxicated (DWI)¹ During the trial, the state admitted evidence of his breath test which indicated that his breath aleohol content (BAC) was .109 percent. Alaska Statute 28.40.060 provides that:

Except for an offense under AS 28.85.280, 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 inaceu-rate, 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 Schermer-horn 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 Seott 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 aleohol. 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 28.4,0.060 violate Bushnell's state and federal rights to due process?

We start our analysis with Haynes v. State, Dep't of Public Safety,² 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 Intoxime-ter'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:

There is no indication that the legislature considered the .0O1 margin of error inherent to the Intoximeter 8000 in setting the legal limit at .10 grams per 210 liters of the person's breath. Therefore, we do not interpret AS 28.35.030(a)(2) as creating an 'offense for violation of the statutory .10 grams per 210 liters of breath, without regard to the margin of error inherent to the particular testing device utilized. In Alaska, a driver commits a DWI offense when his or her actual alcohol level exceeds .10 grams per 210 liters of breath.³

In reaching its conclusion, the Haynes court reiterated its decision in Barcott v. State, Dep't of Public Safety,⁴ where it had also held that because there was "no evidence or indication" that the legislature had considered the Intoximeter's inherent margin of error, then the margin of error must be considered by the fact finder.⁵ But the Haynes court also 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.⁶

Following Haynes, the legislature enacted AS 28.40.060. When enacting AS 28.40.060, the legislature not only had the Haynes decision for guidance, it also had the Intoxime-ter's long history of use in this state. The Intoximeter 8000 first appeared in reported Alaska case law in 1984;⁷ the Intoximeter's working tolerance (or margin of error) of .0L percent is likewise well-known, and was first acknowledged in our reported cases in 1986.⁸ With this long-standing historical framework as a backdrop, it is clear that when the legislature responded to Haynes with AS 28.40.060, it did so knowing that the Intoxim-eter 8000 was the testing instrument at issue, and that its working tolerance was .O01 percent. Based on this historical framework, we conclude that the legislature, by responding to Haynes with AS 28.40.060, implicitly found that a working tolerance of .01 percent of a properly calibrated instrument was "tolerably inaccurate."

Additionally, we recently recognized in Mangiapane v. Anchorage that "[the Alaska Legislature reacted to the Haynes decision by enacting AS 28.40.060."⁹ We said that the practical effect of AS 28.40.060 was to modify the definition of driving while intoxicated under AS 28.85.080(a)(2). We held 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." ¹⁰ 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 at least .10 percent blood-aleohol or the equivalent .10 grams of alcohol per 210 liters of breath. The fact that the driver's true blood-aleohol or breath-aleohol level may be slightly lower (due to the Intoxime-ter's acknowledged margin of error) is no longer relevant to the driver's guilt under AS 28.35.030(a)(2).¹¹

We concluded that the defendant in Mangic-pane was not entitled to the jury instruction he sought-that the working tolerance be applied in his favor-because the "margin of error (the machine's 'working tolerance') had no relevance to the jury's decision."¹²

Although Bushnell argues that AS 28.40.060-by not specifying the Intoximeter (or any other instrument)-creates the potential for a varying statutory blood aleohol level, nothing in the history of DWI enforcement in Alaska, nor in the Haynes decision, supports this argument. There is no indication that the legislature intended to create a statutory blood aleohol level that varied depending upon the instrument used by the state, nor is there any indication that the legislature intended to use this statute to delegate to the Department of Public Safety the authority to set the statutory blood alcohol level for DWI in Alaska.

If the Department of Public Safety approved a less accurate testing instrument without an express legislative finding it might create the due process problem Bushnell raises in this appeal. It seems unlikely, however, that the state would begin using a less accurate testing instrument.¹³ Since such a scenario seems unlikely, we see no reason to resolve it at this time.

In light of the history of the Intoximeter and its established working tolerance, the discussion in Haynes, and the language of AS 28.40.060, it seems clear to us 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).¹⁴ Accordingly, we conclude that AS 28.40.060 does not violate Bushnell's state or federal due process rights.

Does AS 28.40.060 violate Bushnell's state and federal rights to equal protection?

Bushnell next contends that AS 28.40.060 violates the state and the federal equal protection clauses because it exempts those aged 14 to 21 who are charged under another statute. Bushnell asserts that it is unfair that a testing instrument's working tolerance is relevant in cases where minors are charged with operating a vehicle after consuming alcohol, but not in cases where adults are charged with DWL.

Alaska Statute 28.40.060 does create an exception for minors who, under AS 28.35.280, are charged with operating or driving a motor vehicle after having consumed any quantity of alcohol. The offense under AS 28.35.280, however, is essentially a much more restrictive version of the DWI offense Bushnell was charged with Under AS 28.35.280, minors commit an offense if they operate a motor vehicle after consuming any alcohol. Therefore, Bushnell has no basis to contend that minors are treated more favorably because minors are in fact subject to a stricter law. Accordingly, we conclude that there is no equal protection violation.

Should the jury have been instructed that the Intoximeter's margin of error must be applied in Bushnell's favor?

Relying on Haynes, Bushnell's final claim is that the jury should have been instructed to apply the Intoximeter's margin of error in his favor. In light of our holding, however, Bushnell was not entitled to this instruction.¹⁵

Conclusion

The conviction is AFFIRMED.

1 . AS 28.35.030(a)(1), (a)(2), & (n).

2 . 865 P.2d 753 (Alaska 1993).

3 . Id. at 756.

4 . 741 P.2d 226, 230 (Alaska 1987).

5 . Haynes, 865 P.2d at 755.

6 . Id.

7 . See Anchorage v. Flack, 685 P.2d 108, 109 (Alaska App.1984); McCracken v. State, 685 P.2d 1275, 1276 (Alaska App.1984).

8 . See Kalmakoff v. Anchorage, 715 P.2d 261 (Alaska App.1986); Ansay v. State, 715 P.2d 1194, 1195 (Alaska App.1986).

9 . 974 P.2d 427, 429 (Alaska App.1999).

10 . Id. at 430 (emphasis in original).

11 . Id. (emphasis in original) (AS 28.35.030(a)(2) is the .10 theory of DWI).

¹²

13 . See Haynes, 865 P.2d at 755 n. 3 ("An 'acceptable' margin of error is one having reasonable limits. A greater margin of error could not be conveniently ignored, without inviting a constitutional challenge").

14 . See Mangiapane, 974 P.2d at 430.

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