Moberg v. Municipality of Anchorage

152 P.3d 1170, 2007 Alas. App. LEXIS 11, 2007 WL 196006
CourtCourt of Appeals of Alaska
DecidedJanuary 26, 2007
DocketNo. A-9390
StatusPublished
Cited by4 cases

This text of 152 P.3d 1170 (Moberg v. Municipality of Anchorage) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moberg v. Municipality of Anchorage, 152 P.3d 1170, 2007 Alas. App. LEXIS 11, 2007 WL 196006 (Ala. Ct. App. 2007).

Opinion

OPINION

MANNHEIMER, Judge.

Lawrence D. Moberg appeals his convietion for misdemeanor driving under the influence.1 Moberg was convicted of this offense based on his involvement in a traffic accident, and also based on the result of a blood alcohol test conducted by the Alaska Native Medical Center (the hospital to which Mo-berg was taken following the traffic accident).

Moberg contends (under various legal theories) that the district court should not have allowed the Municipality to introduce evi[1172]*1172dence of the result of the blood alcohol test conducted by the hospital. For the reasons explained here, we conclude that none of Moberg's arguments has merit, and we therefore affirm his conviction.

Underlying facts

On August 6, 2003, Moberg was admitted to the Alaska Native Medical Center for treatment of injuries he had just suffered in a motor vehicle accident. This accident occurred when Moberg, who was driving a motorcycle, crashed into the rear of a car that had slowed or stopped because of backed-up traffic.

Moberg suffered a fractured leg, and the hospital staff also feared that he might have a head injury. As part of their treatment of Moberg, the hospital staff took a sample of his blood and tested it for, among other things, the presence of alcohol. Moberg's blood aleohol level was .194 percent-more than twice the legal limit for operating a motor vehicle.

After Moberg was taken to the hospital, an Anchorage police officer arrived at the hospital to interview Moberg. The officer noticed that Moberg had red and watery eyes, and that there was an odor of alcoholic beverages upon his person. Moberg acknowledged that he had been drinking, but he declared that he had been drinking less than the officer was "probably thinking". Moberg then invoked his right to an attorney.

The officer did not arrest Moberg. However, the officer gave Moberg a police case number, as well as a notice describing Mo-berg's duty under Alaska's financial responsibility law.

Following his interview with Moberg, the officer asked the hospital staff if they were going to draw Moberg's blood, and if they were going to test the blood for the presence of alcohol. The hospital staff informed the officer that they had already drawn Moberg's blood, and that they would be testing it for alcohol.

(The district court later took judicial notice that it was "standard hospital procedure to draw blood and test it for the presence of alcohol ... in cases where there are injuries such as [Moberg] had".)

More than three months later, on November 14, 2003, the Anchorage police obtained a search warrant for Moberg's medical records at the Alaska Native Medical Center,. As noted above, the hospital records showed that Moberg's blood alcohol level following the accident was .194 percent.

Two weeks later, on November 29, 2003, the Municipality of Anchorage filed a DUI charge against Moberg, and the district court issued a warrant for his arrest.

Moberg was arrested on March 20, 2004. Approximately two months later, on May 14, 2004, Moberg's attorney contacted the Alaska Native Medical Center and asked them to provide a sample of Moberg's blood from August 6th (the date of the accident). The hospital informed Moberg's attorney that they no longer had a sample of Moberg's blood. The hospital explained that they do not retain patients' blood samples for longer than seven days unless someone expressly asks them to do so.

The following month, on June 16, 2004, Moberg's attorney filed a motion asking the district court to dismiss the DUI charge or, in the alternative, to suppress the blood test result. Moberg's theory was that, because of the Municipality's delay in charging Moberg with DUI, Moberg had lost the opportunity to ask the hospital to retain a sample of his blood for re-testing. District Court Judge Brian K. Clark denied Moberg's motion.

Six months later, on December 27, 2004, Moberg's attorney filed a second motion to suppress the blood test result. In this see-ond motion, Moberg argued that the test result was inadmissible because the hospital's method for blood testing did not comply with the foundational requirements specified in the Alaska statutes and regulations governing the use of blood tests at a criminal trial.

At the same time, Moberg's attorney asked the district court to suppress Moberg's medical records from the Alaska Native Medical Center (the records which contained the blood test result). As explained above, these records were obtained by search warrant. Moberg argued that the affidavit in support [1173]*1173of this search warrant failed to establish probable cause that Moberg had committed an offense.

District Court Judge Mary Aune Henry denied both of these latter suppression motions on May 11, 2005.

A jury later convicted Moberg of driving under the influence.

Moberg's argument that his case should be dismissed, or that evidence of his blood alcohol level should be suppressed, because of pre-accusation delay

Moberg argues that the district court should have dismissed his case because of the Municipality's delay in filing the DUI charge. Moberg contends that, had he been charged with DUI immediately following the accident, he would have known to contact the hospital and ask them to retain a sample of his blood within the seven-day period in which the hospital normally kept its patients' blood samples.

The first obstacle to Moberg's pre-accusation delay argument is the fact that the Alaska Native Medical Center had a policy of retaining patients' blood samples for only seven days. This means that, in order to prevail in his claim of pre-accusation delay, Moberg would have to show that the Municipality had no investigative and/or sereening reason for waiting as little as seven days to charge Moberg with DUI. As Judge Clark noted when he denied Moberg's motion, Mo-berg presented "[Inlothing ... [to meet] his burden of demonstrating that a delay of [as little as] seven days was unreasonable".

The second obstacle to Moberg's pre-aceu-sation delay argument is the rule that a defendant who seeks dismissal of eriminal charges because of pre-accusation delay must show that their ability to defend the case was prejudiced on account of the delay.2 Here, Moberg suggests that he might have been able to re-test his blood sample if the Municipality had filed the charge more quickly, but Moberg has failed to present any evidence suggesting that (1) the blood sample could actually have been re-tested if he had known to ask for it sooner, or (2) that re-testing of the blood sample would have yielded any evidence favorable to his defense.

Moberg seeks to cireumyvent this difficulty by arguing that the loss of this physical evidence, standing alone, constitutes the prejudice required for a dismissal based on pre-accusation delay,. That is, Moberg argues that the law does not require him to show a reasonable possibility that re-testing the blood sample would have yielded evidence favorable to him.

Moberg's argument is incorrect. Even when the police, through negligence, have lost or failed to preserve physical evidence, a defendant must show that the evi-denee, if preserved, might have led the jury to entertain a reasonable doubt about the defendant's guilt.3

We acknowledge that in Lauderdale v.

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Cite This Page — Counsel Stack

Bluebook (online)
152 P.3d 1170, 2007 Alas. App. LEXIS 11, 2007 WL 196006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moberg-v-municipality-of-anchorage-alaskactapp-2007.