State v. Blank

90 P.3d 156, 2004 Alas. LEXIS 57, 2004 WL 928163

Opinions

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

A state trooper conducted a warrantless search of a driver’s breath following a fatal accident. Was this potentially a valid exigent circumstances search even though the driver was not arrested substantially contemporaneously with the search? We first hold that an arrest is not a prerequisite to a valid exigent circumstances warrantless breath test. Next, we construe AS 28.35.031(g) as satisfying minimal constitutional requirements for warrantless searches when exigent circumstances exist. We also hold that the trooper had probable cause to arrest the driver for negligent homicide or manslaughter and probable cause to believe that a breath test would produce relevant evidence of those crimes. But because neither the superior court nor the court of appeals reached the issue whether exigent circumstances justified this search, we remand so the superior court can make this determination.

II. FACTS AND PROCEEDINGS

A vehicle driven by Laura Blank fatally struck Pennye McDowell as she walked with a companion on a residential street near Palmer on September 26, 1994.¹ Blank and her two daughters were driving home from her friend’s house. Blank did not stop.²

Blank’s husband, Greg Blank, arrived at the accident scene while Alaska state troopers were investigating.³ Greg Blank told Trooper Bill Tyler that his wife might have been involved in the accident.⁴ Trooper Tyler and two other officers followed Greg back to the Blank residence.⁵ There, Trooper Tyler interviewed Laura Blank in his patrol car.⁶ Trooper Tyler did not place Blank under arrest.⁷

Blank told Trooper Tyler during the interview that she had consumed two beers at her friend’s house before driving home.⁸ Without attempting to obtain a search warrant, Trooper Tyler asked Blank to take a prelimi nary breath test.⁹ Blank submitted to the test. The test registered a blood-alcohol content of .082%.¹⁰ Blank also agreed to accompany Trooper Tyler to a hospital for a blood test, but she refused consent at the hospital.¹¹ No blood sample was drawn.

The grand jury indicted Blank in December 1994 for manslaughter¹² and leaving the scene of an accident.¹³ The superior court denied Blank’s motion to suppress evidence of the preliminary breath test. The superior court held that the test was authorized by AS 28.35.031(g), which provides that “a law enforcement officer who has reasonable grounds to believe that [a] person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person” may administer blood or breath alcohol tests of the person based on the individual’s implied consent. Following a mistrial, a jury convicted Blank on both counts of the indictment.¹⁴

Blank appealed, and the court of appeals reversed.¹⁵ It concluded that AS 28.35.031(g) violates the search and seizure provisions of the federal and state constitutions because “the statute allows the officer to administer the test(s) without any individualized suspicion that the driver was impaired, whether by alcohol or drugs, or even any evidence that the driver or operator caused the accident.”¹⁶ The court of appeals also ruled that the preliminary breath test did not fall within the exigent circumstances exception to the warrant requirement, because Blank was not placed under arrest, as required by Layland v. State,17 before or substantially contemporaneously with the search.¹⁸

The State of Alaska filed a petition for hearing with this court, and Blank filed a cross-petition. We denied Blank’s cross-petition, but granted the state’s petition as to three issues: (1) does AS 28.35.031(g) authorize a reasonable search? (2) can AS 28.35.031(g) be given a saving construction? and (3) was the preliminary breath test administered to Blank justified under the exigent circumstances exception to the warrant requirement?

III. DISCUSSION

We hold that Trooper Tyler’s war-rantless search of Blank’s breath was constitutional if.it was a valid exigent circumstances search.¹⁹

First, we agree in Part III A with the state that Layland should be overruled insofar as it required a substantially contemporaneous arrest to justify an exigent circumstances search of a driver’s blood alcohol content.

Having overruled Layland, we consider in Part III.R whether AS 28.35.031(g), as applied to Blank’s warrantless search, should be read to incorporate the constitutional requirements for a yalid exigent circumstances search. We have frequently held that this statute provides the exclusive authority for administering a police-initiated chemical sobriety test to obtain evidence of acts allegedly committed by a driver while operating a motor vehicle.²⁰ In other words, a search must satisfy the statute to be valid. We have consequently held that evidence obtained from an unauthorized chemical test should be suppressed, even if the test was otherwise constitutional.²¹ But that does not mean that a search that satisfies the statute also automatically satisfies the constitution. Accordingly, we must consider whether AS 28.35.031(g) may be given a narrowing construction that avoids constitutional problems when a breath test is administered without a search warrant.

Finally, in Part III.C, we remand so the superior court can determine whether exigent circumstances justified the warrantless search of Blank’s breath.

A. Schmerber v. California Does Not Require a Contemporaneous Arrest.

In Layland, a state trooper obtained a blood sample without obtaining a search warrant or the driver’s consent following an accident in which another person was killed.²² Although the trooper had probable cause to arrest the driver for negligent homicide at the time of the search, he did not.²³ We considered and rejected four exceptions to the warrant requirement that might have justified the warrantless search.²⁴ Regarding the exigent circumstances exception, we interpreted the United States Supreme Court’s, decision in Schmerber v. California to permit warrantless blood. draws only in connection with a substantially contemporaneous arrest.²⁵

The Court held in Schmerber that the war-rantless taking of blood from a driver arrested for driving while intoxicated was reasonable because (1) the officer had probable cause to arrest and to believe that a blood alcohol test would produce evidence of the crime; (2) the officer might reasonably have believed he was confronted with an emergency in which the delay necessary to obtain a warrant might result in the destruction of evidence; and (3) the blood draw was performed in a reasonable manner.²⁶ The Schmerber ■ Court concluded that “the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.”27 In Layland, we interpreted Schmerber to require a substantially contemporaneous arrest in addition to the three requirements Schmerber explicitly discussed.

The court of appeals held that Trooper Tyler’s search of Blank’s breath could not be justified under the exigent circumstances exception because Blank was not placed under arrest before or substantially contemporaneously with the search.²⁸ Although the court of appeals followed Layland, as it was obliged to do, it cited and discussed cases and treatises rejecting the view that Schmer-ber requires a contemporaneous arrest to justify an exigent circumstances search of a driver’s blood-alcohol content.²⁹

It is not necessary for us to recapitulate the court of appeals’s helpful presentation of these authorities. Layland attempted to predict the direction of federal law following Schmerber, but we are convinced that subsequent cases have proved our prediction to have been inaccurate. It is sufficient to quote United States v. Chapel, in which the United States Court of Appeals for the Ninth Circuit sitting en bane reversed its own earlier precedent interpreting Schmerber to impose an arrest requirement:

We now know from the Supreme Court’s reasoning in a case decided after Harvey that the seizure of blood in Schmerber “fell within the exigent circumstances exception to the warrant requirement.” Winston v. Lee, 470 U.S. 753, 759, [105 S.Ct. 1611, 84 L.Ed.2d 662] (1985). Seizures of evidence based on exigent circumstances do not, of course have to be accompanied by an arrest-Accordingly, an arrest is not essential to support the intrusion in the absence of a warrant, so long as the three explicit Schmerber requirements are met. Thus, the interpretation of Schmerber that formed the basis of our decision in Harvey, though plausible at the time, is no longer sustainable in light of Winston. Harvey’s arrest requirement therefore cannot stand.³⁰

We agree with Chapel’s reasoning, and overrule Layland to the extent it required an arrest to justify an exigent circumstances search of a driver’s blood alcohol content. Trooper Tyler’s search of Blank’s breath is therefore constitutional if the three explicit Schmerber requirements are satisfied: probable cause, exigent circumstances, and reasonable procedures.

B. We Read AS 28.35.031(g), as It Applies to Laura Blank, To Incorporate the Exigent Circumstances Standard for Warrantless Searches.

The superior court upheld the search of Laura Blank’s breath under AS 28.35.031(g). This statute authorizes “a law enforcement officer who has reasonable grounds to believe that [a] person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person” to administer blood or breath alcohol tests to the person based on the individual’s implied consent. The court of appeals held that AS 28.35.031(g) violates the search and seizure provisions of the federal and Alaska constitutions because it “allows the officer to administer the test(s) without any individualized suspicion that the driver was impaired.”³¹ Noting that it could construe a statute to avoid constitutional concerns, the court of appeals declined to read subsection .031(g) to require that police have probable cause to believe the tested driver has committed a crime because the court appropriately recognized that such a requirement would not satisfy Layland.32

The state argues that we should read Schmerber’s probable cause requirements into the statute to avoid any constitutional infirmity. Because we have overruled Lay-land, it no longer constrains a court considering whether subsection .031(g) can be given a narrowing construction that avoids constitutional problems.

Whether to apply a narrowing construction to avoid holding a statute unconstitutional is a question of law to which we bring our independent judgment. For sever al reasons, we choose to decide this issue, rather than remand it to the court of appeals, notwithstanding the expertise that court brings to the field of criminal procedure and law: the issue raises a pure question of law; if we were to remand the issue, no matter what the result below, one of the parties might feel compelled to ask us to review the decision; it is more expeditious for us to reach this issue now; further, a ruling on this issue now will guide the parties and the superior court in considering the exigency issue on remand and may advance the ultimate termination of the case.

This court will narrowly construe statutes in order to avoid constitutional infirmity where that can be done without doing-violence to the legislature’s intent.³³

The text of AS 28.35.031(g) is neither explicitly nor implicitly inconsistent with the narrowing construction we give it here.³⁴ The statute implicitly contemplates warrant-less searches under circumstances that may be inherently exigent and that may consequently render warrantless searches constitutional. We therefore construe subsection .031(g) to be constitutional in context of war-rantless searches for breath or blood in accident cases involving death or serious physical injury when probable cause to search exists and the search falls within a recognized exception to the warrant requirement. So construed, subsection .031(g) has the effect of specifying that such tests are authorized under Alaska’s implied consent statute and therefore comply with the rule set out in Geber;³⁵ which might otherwise exclude the test results as unauthorized, even if they were constitutionally obtained.

In context of the facts presented in this case, we choose to construe subsection .031(g) to incorporate, in addition to the statutory requirements, the exigent circumstances requirements discussed in Schmer-ber. Thus, if exigent circumstances were present in this case, the warrantless search was valid.³⁶

C. We Remand to the Superior Court To Determine Whether Exigent Circumstances Justified the Search.

Two of the three requirements for an exigent circumstances search — probable cause and reasonable procedures — are clearly met here. Before interviewing Blank, Trooper Tyler investigated the accident scene and learned that McDowell was dead, that Blank may have caused the accident, and that Blank had left the scene.³⁷ Accordingly, Trooper Tyler had probable cause³⁸ to believe that Blank had committed two crimes: felony hit and run³⁹ and either negli gent homicide or manslaughter.⁴⁰

Trooper Tyler also had probable cause to believe that a search of Blank’s breath would produce relevant evidence of these crimes. Blank told him that she consumed two beers at a friend’s house shortly before the accident, and Trooper Tyler testified that “the smell of alcohol became quite apparent” once he and Blank were sitting in the patrol car. Trooper Tyler also had substantial indirect evidence of Blank’s possible impairment based on the -circumstances of the accident. He learned that the pedestrians were walking on the edge and shoulder of a straight section of road at the time of the accident, that Blank saw the pedestrians in time to avoid them but inexplicably failed to do so, and that Blank’s car and the driving conditions were not the cause of the accident. Furthermore, Blank told Trooper Tyler that she did not stop at the scene because she did not even realize that she had hit someone. She initially thought one of the pedestrians had thrown a rock at the car, and chose to keep driving rather than confront them because they were “just kids.”

Thus, Trooper Tyler had evidence that Blank was responsible for an accident resulting in a fatality, that the accident was likely caused by Blank’s inattention, poor judgment, misperception, poor coordination, or some combination of these, and that Blank smelled of alcohol and admitted to drinking shortly before the accident. We conclude that this evidence was more than sufficient under Schmerber to support probable cause to search Blank’s breath.⁴¹

Another requirement of Schmer-ber — that a reasonable method of collecting the blood sample be used — is not at issue here. The procedure used in this case was minimally intrusive, involving a breath sample rather than a blood draw. Blank has not challenged Trooper Tyler’s qualifications to obtain her breath sample and has alleged no impropriety in the manner in which he conducted her test.⁴²

Regarding Schmerber’s exigent circumstances requirement, we decline to decide this issue for the first time on appeal. Schmerber held that the exigencies posed by serious accidents in combination with the rapid dissipation of alcohol in the bloodstream justified the officer’s failure to obtain a warrant in that case:

The officer in the present case ... might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened “the destruction of evidence.” We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a ease such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.[⁴³]

Many courts have implicitly or explicitly held that the dissipation of alcohol always creates sufficient exigency to dispense with the warrant requirement,⁴⁴ although at least one court has held that the state must prove exigency on a case-by-case basis.⁴⁵

But we decline to address this aspect of the exigent circumstances question presented in this case. Because the lower courts were obliged to follow Layland’s arrest requirement, and because there was no dispute that Blank was not arrested contemporaneously with the search of her breath, no lower court has yet reached the issue whether exigent circumstances actually justified Trooper Tyler’s search. Accordingly, we remand to the superior court the issue whether exigent circumstances justified Trooper Tyler’s search of Blank’s breath.

IV. CONCLUSION

For these reasons, we REVERSE the court of appeals’s decision requiring suppression of the breath test results and REMAND so that the superior court can determine whether exigent circumstances justified the warrantless search.

MATTHEWS, Justice, with whom CARPENETI, Justice, joins, dissenting in part.

Footnotes

1

. Blank v. State, 3 P.3d 359, 362 (Alaska App. 2000). We take many of the facts from the opinion of the court of appeals.

2

. Id.

3

. Id.

4

. Id.

5

. Id.

6

. Id.

7

. Id.

8

. Id.

9

. Blank never verbally acknowledged this request, and it is not clear that she actually heard it, but she submitted to the test without hesitation or complaint. The superior court held that Blank's acquiescence to Trooper Tyler's request did not satisfy the consent exception to the warrant requirement because she did not make "a knowing, voluntary, and intelligent choice to submit to the test." The court of appeals did not address this issue, and the state did not seek review of the superior court’s ruling before this court. Therefore, we assume that the consent exception is inapplicable in this case.

10

. Blank, 3 P.3d at 362.

11

. Id.

12

. AS 11.41.120(a).

13

. AS 28.35.060(a).

14

. Blank, 3 P.3d at 362.

15

. Id. at 371.,

16

. Id. at 366, 368. The court of appeals noted that the United States Supreme Court has authorized some types of searches even without individualized suspicion where the search served "special needs” beyond ordinary law enforcement. Id. (citing Skinner v. Ry. Labor Executives' Ass’n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). The court of appeals held this doctrine inapplicable because subsection .031(g) does not address "special societal needs Other than normal law enforcement.” Id. at 367-68. The state initially contested this conclusion in its opening brief to this court, but abandoned this tack in its reply brief, admitting that the primary purpose of the searches authorized by AS 28.35.031(g) is-to generate evidence for criminal prosecution. See Ferguson v. City of Charleston, 532 U.S. 67, 83, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (holding that special needs doctrine is inapplicable to warrantless drug testing-of pregnant women because "immediate objective of the searches was to generate evidence for law enforcement purposes”).

17

. 535 P.2d 1043, 1047-49 (Alaska 1975).

18

. Blank, 3 P.3d at 370-71.

19

. A breath test is a search. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (breath tests are searches under Fourth Amendment); Burnett v. City of Anchorage, 806 F.2d 1447, 1449 (9th Cir.1986) (same); Leslie v. State, 711 P.2d 575, 576 (Alaska App.1986) (same). Warrantless searches are per se unreasonable unless they fall within one of the ''well-delineated exceptions” to the warrant requirement. Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Lupro v. State, 603 P.2d 468, 476 (Alaska 1979).

Whether a particular search falls within an exception to the warrant requirement is a question of law, which we review de novo. State v. Page, 911 P.2d 513, 515-16 (Alaska App.1996).

20

. Sosa v. State, 4 P.3d 951, 953-54 (Alaska 2000); Pena v. State, 684 P.2d 864, 867 (Alaska 1984); Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). We have thus held that evidence obtained from an unauthorized chemical test should be suppressed, even if the test was otherwise constitutional. Geber, 592 P.2d at 1192 & n. 8.

21

. Geber, 592 P.2d at 1192.

22

. 535 P.2d at 1044.

23

. Id. at 1044, 1047 & n. 22.

24

. Id. at 1046-50.

25

. Id. at 1045, 1048-49 (interpreting Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)).

26

. 384 U.S. at 768-72, 86 S.Ct. 1826.

27

.. Id. at 771, 86 S.Ct. 1826 (emphasis added).

28

. Blank, 3 P.3d at 368-70.

29

. Id. at 369-70.

30

. 55 F.3d 1416, 1418-19 (9th Cir.1995) (overruling United States v. Harvey, 701 F.2d 800, 803-04 (9th Cir.1983)).

31

. Blank, 3 P.3d at 366, 368.

32

. Id. at 368-69.

33

. State v. Alex, 646 P.2d 203, 207-08 (Alaska 1982) (citing Bonjour v. Bonjour, 592 P.2d 1233, 1237-38 (Alaska 1979)). In State v. Alex we noted that only a reasonable construction may be placed on a statute in this manner, because giving the statute an unintended meaning "would be stepping over the line of interpretation and engaging in legislation.” Id. (citing Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978)).

34

. AS 28.35.031(g) provides:

A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person’s breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person’s blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.

35

. 592 P.2d at 1192 & n. 8.

36

. We consider only the exigent circumstances exception here because Blank was not arrested and there is no reason to consider in this case whether some other exception might theoretically apply.

37

. Blank, 3 P.3d at 362.

38

. Probable cause to arrest exists if the facts and circumstances known to the officer would warrant a prudent person in believing that the defendant had committed an offense. Schmid v. State, 615 P.2d 565, 574 (Alaska 1980).

39

. AS 28.35.060(a).

40

. AS 11.41.120 (defining manslaughter to include "recklessly causfing] the death of another person”); AS 11.41.130 ("A person commits the crime of criminally negligent homicide if, with criminal negligence, the person causes the death of another person.”).

41

. Numerous cases from other jurisdictions support this conclusion. See DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732, 735 (1972) (holding that involvement in serious auto accident and odor of liquor on breath sufficient to establish probable cause to extract blood sample under Schmerber); State v. Oevering, 268 N.W.2d 68, 74 (Minn.1978) (holding that officer had probable cause to extract blood where officer knew traffic fatality had occurred, witness identified driver, and officer smelled alcohol on driver’s breath); Turner v. State, 726 So.2d 117, 126-27 (Miss. 1998) (concluding that officer had probable cause to order blood test based on his knowledge that driver had collided with rear end of another vehicle stopped at traffic signal, occupant of other vehicle was killed in accident, and officer believed driver was intoxicated); Commonwealth v. Simon, 440 Pa.Super. 428, 655 A.2d 1024, 1027 (1995) (noting that superior court "has repeatedly upheld probable cause to conduct a blood alcohol test ... where the defendant has looked and smelled like he has consumed alcohol and a serious one car or head-on accident has occurred") (citations omitted).

42

.Blank unsuccessfully challenged, the use of the .preliminary breath test results in the superior court. The court of appeals did not reach that issue. Because the issues to be briefed in the petition now before us did not include that topic, we express no opinion on it. Blank may reassert . her arguments on that issue in the lower courts.

43

. Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826 (citations omitted).

44

. E.g., United States v. Reid, 929 F.2d 990, 993 (4th Cir.1991) (categorically rejecting defendant's argument that state could have obtained warrant prior to extracting blood because "compliance with [federal telephonic warrant] rules takes time. Time is what is lacking in these circumstances.”); Ry. Labor Executives' Ass'n v. Burnley, 839 F.2d 575, 583 (9th Cir.1988) ("We can agree that the exigencies of testing for the presence of alcohol and drugs in blood, urine or breath require prompt action which precludes obtaining a warrant.”) (citations omitted), rev’d on other grounds, Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 613, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); People v. Shepherd, 906 P.2d 607, 610 (Colo.1995) (presuming exigency and allowing warrantless search "[b]ecause alcohol dissipates quickly in the blood”); State v. Ravotto, 169 N.J. 227, 777 A.2d 301, 315 (2001) (finding that "consistent with Schmerber and our analogous case law, the dissipating nature of the alcohol content in defendant's blood presented an exigency that required prompt action by the police. Under those conditions, a warrantless search was justified.”); State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399, 400 (1993) ("[T|he dissipation of alcohol from a person's blood stream constitutes a sufficient exigency to justify a warrantless blood draw.”).

45

. State v. Moylett, 313 Or. 540, 836 P.2d 1329, 1335 (1992) (suppressing blood test where police "could have obtained a search warrant without sacrificing evidence”). Moylett further noted, however, that “[i]n the context of an alcohol-related crime, there commonly will be an exigency because, as we already have noted, a suspect is 'a vessel containing evidence of a crime he had committed — evidence that [i]s dissipating with every breath he t[akes].' " Id. (citation omitted).