McCracken v. State

685 P.2d 1275, 1984 Alas. App. LEXIS 282

• Court: Court of Appeals of Alaska
• Decided: August 31, 1984
• Docket: A-214
• Status: Published

Opinions

OPINION

COATS, Judge.

On May 25, 1983, Tracy S. McCracken was arrested for driving while intoxicated, AS 28.35.030, and refusal to submit to a breathalyzer test, AS 28.35.032(a). The DWI charge was subsequently dismissed. McCracken pled no contest to the refusal charge, reserving the right to appeal the rejection of his constitutional challenges to the statute. See Oveson v. Anchorage, 574 P.2d 801, 803 (Alaska 1978); Cooksey v. State, 524 P.2d 1251, 1257 (Alaska 1974) McCracken was subsequently convicted on the refusal charge, fined $600 and $300 suspended, and sentenced to thirty days with all but seventy-two hours suspended. McCracken appeals his conviction and we affirm.

McCracken raises several constitutional issues on appeal. He first contends that submission to a breathalyzer examination is a warrantless search, and since none of the exceptions to the warrant requirement apply, it is unreasonable and therefore unconstitutional.

This court has determined that a breathalyzer examination is “a reasonable search under the constitution because it is incident to arrest.” Burnett v. Anchorage, 678 P.2d 1364, 1368 (Alaska App.1984). See Svedlund v. Anchorage, 671 P.2d 378, 384 (Alaska App.1983).¹ Therefore, McCracken’s initial argument that a breathalyzer examination is an invalid search since it is made without a warrant is meritless.

McCracken next argues that his right to refuse to consent to a search, guaranteed under the fourth amendment to the United States Constitution and Article I, section 14, of the Alaska Constitution, is effectively destroyed under AS 28.35.032,² which criminalizes such refusal. He cites Elson v. State, 659 P.2d 1195 (Alaska 1983), in support of this argument. This issue was decided against McCracken in Svedlund, 671 P.2d at 384. We also elaborated in Burnett that sanctioning the refusal to take a breathalyzer does not violate the rule in Elson. Burnett, 678 P.2d at 1369.

McCracken also contends that it is a violation of his constitutional right to equal protection of the law³ to incarcerate him, and not other offenders, for refusing to consent to a breathalyzer examination. Again, this court disposed of this issue in Svedlund, 671 P.2d at 383. Although the equal protection challenge in Svedlund was made on a different basis, that there was no connection between the refusal statute and the public purpose of eliminating drunk drivers, a similar analysis would apply here. In Svedlund, we recognized that Alaska courts apply a more stringent equal protection test than the federal courts, requiring that the state show that the classification in question “has a fair and substantial relation to a legitimate governmental objective.” 671 P.2d at 383. We went on to say:

[W]e find that the nexus between the purpose of the law, i.e., to facilitate investigations of drunken driving by producing usable evidence, is sufficiently related to the means chosen, i.e., sanctioning those who hinder the production of evidence. Thus, the Alaska equal protection test and, a fortiori, the federal test, are satisfied_ We conclude that punishing a refusal to take a breathalyzer test bears a fair and substantial relation to the legitimate governmental objective of gathering evidence of possible drunken driving.

Id. Under Svedland, there is no equal protection violation in making it a crime for those arrested for driving while intoxicated to refuse to submit to the breathalyzer examination.

McCracken’s final argument is that by penalizing the refusal to submit to a breathalyzer, the state attaches an unconstitutional condition on the granting of the privilege to drive. He reasons that the condition that a driver will be imprisoned if he does not consent to a breathalyzer test improperly forces the driver to choose between relinquishing his liberty and relinquishing his fourth and fifth amendment rights by submitting to the breathalyzer examination. According to McCracken, the effect of this choice is “to chill the assertion of a citizen’s Fourth and Fifth Amendment Rights.”

In Svedlund, we decided that a refusal to submit to a breathalyzer was not privileged by the fifth amendment since there was no co-existent right to refuse to take the examination. 671 P.2d at 383-84. See Coleman v. State, 658 P.2d 1364, 1365-66 (Alaska App.1983). We also found nothing repugnant to the fourth amendment in penalizing the refusal to submit to a breathalyzer examination. Svedland, 671 P.2d at 384. Moreover, in Burnett we said: “[njothing ... purports to preclude a statute making suppression of evidence a crime even though the conduct constituting the suppression of evidence might be characterized as resistance to a search. Such conduct is generally subject to sanction.” 678 P.2d at 1369.

We also addressed the possible “chilling” effect on the exercise of fourth amendment rights:

We also conclude that the “prejudicial effect” of the statute on the exercise of fourth amendment rights is virtually nonexistent. A defendant is entitled to certain warnings clarifying that he has no constitutional right to refuse the test. Thus there is little risk that he reasonably could be confused about his rights. Further, we see no reason to establish a privilege in this case because the defendant does not lose the right to contest probable cause to arrest by submitting to the breathalyzer. If the defendant was illegally stopped or arrested then his consent to the breathalyzer examination would be tainted by that illegal arrest.

Burnett, 678 P.2d at 1369-70. Therefore, since McCracken does not relinquish any fourth or fifth amendment right to refuse to consent by actually consenting to the breathalyzer examination, it is not unconstitutional to condition his driving privilege on his giving that consent.⁴

The judgment is AFFIRMED.

1 . Burnett and SvedluncL involved convictions for refusal to submit to a breathalyzer in violation of AMC 9.28.022(A), (C). That statute is virtually identical to AS 28.35.032.

2 . Alaska Statute 28.35.032 provides:

Refusal to submit to chemical test, (a) If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test as provided in AS 28.35.031 after being advised by the officer that the refusal will, if that person was arrested while operating or driving a motor vehicle, result in the suspension, denial or revocation of the license or nonresident privilege to drive, that the refusal may be used against the person in a civil or criminal action or proceeding arising out of an act alleged to have been committed by the person while operating or driving a motor vehicle or operating an aircraft or a watercraft while intoxicated, and that the refusal is a misdemeanor, a chemical test shall not be given, except as provided by AS 28.35.035.

(f) Refusal to submit to the chemical test of breath authorized by AS 28.35.031(a) is a class A misdemeanor.

3 . The United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. The Alaska Constitution provides “that all persons are equal and entitled to equal rights, opportunities, and protection under the law.” Alaska Const, art. 1, § 1-

4 . McCracken cites See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), in support of his argument that it is unconstitutional to prosecute him for exercising his fourth amendment rights. These cases are distinguishable. Ca-mara involved the prosecution for refusal to consent to a warrantless health inspection of a dwelling. See involved prosecution for the refusal to consent to a warrantless fire department inspection of a commercial warehouse. Both Camara and See held that the administrative searches in question were protected by the fourth amendment and had to be conducted within the framework of the warrant procedure. Camara, 387 U.S. at 534, 87 S.Ct. at 1733, 18 L.Ed.2d at 938; See, 387 U.S. at 545, 87 S.Ct. at 1740, 18 L.Ed.2d at 947. The court in Camara specifically premised its holding on the fact that no emergency existed justifying a warrantless search. However, though no exception applied to the warrant requirement, no warrant was obtained. The court said, “we therefore conclude that appellant had a constitutional right to insist that the inspectors obtain a warrant to search and that appellant may not constitutionally be convicted for refusing to consent to the inspection.” 387 U.S. at 540, 87 S.Ct. at 1737, 18 L.Ed.2d at 942. In this case we have concluded McCracken has no fourth amendment right to refuse to consent to the breathalyzer examination. Therefore, unlike Camara and See, McCracken has no constitutional right to insist upon a warrant prior to submitting to the breathalyzer examination, and may constitutionally be convicted for refusing to consent to the search.