Dale M. GUNDERSEN, Petitioner, v. MUNICIPALITY OF ANCHORAGE, Respondent.
No. S-3219.
Supreme Court of Alaska.
June 15, 1990.
Rehearing Denied July 30, 1990.
792 P.2d 673
Elaine Vondrasek, Asst. Mun. Prosecutor, and Richard D. Kibby, Mun. Atty., Anchorage, for respondent.
Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.
OPINION
MOORE, Justice.
This case involves the scope of a person’s due process right to challenge the result of a breath test that the police administer after the person is arrested for driving while intoxicated. We have held that in order to introduce the result of the police-administered breath test in evidence, due process requires that the state preserve a sample of the defendant’s breath for independent testing. The issue in this case is whether the state may satisfy a defendant’s due process rights without preserving his breath sample if it provides notice
The essential facts of this case are not in dispute.1 On September 10, 1986, Gundersen was arrested for driving while intoxicated in violation of Anchorage Municipal Code (“AMC”)
You are ... under arrest for the offense of driving while intoxicated. You have provided a sample of your breath for analysis on the Intoximeter 3000. You also have a right to obtain an independent test of your blood alcohol level. If you wish to have an independent test you will be transferred to a local medical facility where a sample of your blood will be drawn by qualified personnel at no charge to you. The blood sample will be stored at the medical facility for a period of 60 days. It will be your responsibility to make arrangements for analysis of your blood sample. The analysis itself will be dоne at your own expense. At this time you must decide whether or not you want an independent test performed. A refusal to decide will be taken [as] a waiver of your right to obtain an independent test.
Gundersen told Koch: “I do not want to receive the blood test” and checked the appropriate box on the notice form.
Gundersen moved to suppress the results of the Intoximeter test. The district court denied the motion. At trial, the Intoximeter test result was admitted in evidence. Gundersen was convicted of driving while intoxicated in violation of
Gundersen appealed the conviction to the court of appeals contending that the trial court erred in refusing to suppress the results of his Intoximeter test. Gundersen argued, in part, that the Intoximeter results should have been suppressed because the form notice that Officer Koch read to him was inadequate to satisfy both his due process right to challenge the Intoximeter results and his statutory right to an independent test under
We first recognized a due process right to challenge the result of a police-administered breath test in Lauderdale v. State, 548 P.2d 376 (Alaska 1976). We held that due process requires that in order to introduce the breath test result, the police must give the defendant a reasonable opportunity to challenge the test result. We сoncluded that the police denied Lauderdale due process by failing to preserve a sample of his breath for independent testing:
Lauderdale is asking for the opportunity to test the reliability or credibility of the results of the breathalyzer test. He wishes to do this by a scientific analysis of some of the components of the breathalyzer machine, that is, the ampoules, which we have held may well yield scientifically reliable data bearing on his innocence or guilt of the crime with which he is charged. A denial of the right to make such analysis, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law.
548 P.2d at 381 (footnotes omitted). In holding that due process requires the police to prеserve breath samples, we did not indicate whether we were interpreting the due process clause of the fourteenth amendment of the Federal Constitution or the due process clause of the Alaska Constitution.
The constitutional source of the holding is significant in light of the United States Supreme Court’s decision in California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984). In Trombetta, the Court held “that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agenсies preserve breath samples in order to introduce breath-analysis tests at trial.” 467 U.S. at 491, 104 S. Ct. at 2535. The Court reasoned that a breath sample failed to meet the standard of constitutional materiality set forth in United States v. Agurs, 427 U.S. 97, 109-10, 96 S. Ct. 2392, 2400-05, 49 L. Ed. 2d 342 (1976): “evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” 467 U.S. at 489, 104 S. Ct. at 2534. The Court first concluded that “the chances are extremely low that preserved samples would have been exculpatory.” Id. The Court considered that the high accuracy of the Intoxilyzer4 would mean that a preserved breath sample would simply confirm the original test result “[i]n all but a tiny fraction of cases.” Id. Second, even assuming that the breath sample was exculpatory, the Cоurt found that there were readily available alternative means of demonstrating innocence. The three ways the Intoxilyzer might malfunction, faulty calibration, extraneous interference with machine measurements, and operator error, all can be proven without resort to breath samples. For example, a defendant may inspect the machine for faulty calibration, introduce evidence of factors interfering with the proper operation of the machine, and cross-examine the police officer who administered the test in order to raise doubts about whether the test was properly administered. 467 U.S. at 490, 104 S. Ct. at 2534-35. At the same time, the Court recognized that “[s]tate courts and legislatures, of course, remain free to adopt more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution.” 467 U.S. at 491 n. 12, 104 S. Ct. at 2535 n. 12 (citing Lauderdale v. State, 548 P.2d 376 (Alaska 1976)).
Today, we reaffirm our holding in Lauderdale undеr the due process clause of the Alaska Constitution. A positive Intoximeter test result is the single most important piece of evidence against a defendant accused of driving while intoxicated. We recognize that the Intoximeter is ordinarily an accurate machine and that there are alternative methods of challenging the test result such as cross-examining the operator and inspecting the machine. However, we do not believe these opportunities to challenge the test result are necessarily sufficient given the state’s coercive power to subject a person arrested for driving while
Gundersen argues that since the state failed to preserve a breath sample, his Intoximeter test result should have been suppressed. The Municipality counters that its notice and offer of assistance is a constitutionally adequate substitute for preserving breath samples under the court of appeals’ decision in Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982). In Serrano, the court addressed the issue whether due process permits the state to introduce Intoximeter evidence if the police did not preserve a sample of the defendant’s breath at the time of testing. The court concluded that “due process does require the state and the municipality to take reasonable steps to attempt to preserve breath samples for dеfendants for their independent analysis or to provide some other alternative check of the breathalyzer results.” 649 P.2d at 259 (emphasis added). The court explained that “effective compliance” with
We believe that effective compliance with
AS 28.35.033(e) would constitute an acceptable alternative to routine preservation of breath samples. In order to establish effective compliance withAS 28.35.033(e) , however, we believe that the prosecution would, at a minimum, have to show the following: (1) that the officer who administered the breathalyzer test clearly and expressly informed the defendant of his right to secure an independent test underAS 28.35.033(e) ; (2) that if the defendant requested an independent test, the officer ... made reasonable and good-faith efforts to assist the defеndant in obtaining access to a person qualified to perform an independent examination; and (3) that persons qualified to conduct independent tests or to preserve blood or breath samples for the purpose of conducting independent tests were in fact available in the area where the breathalyzer test was administered.
We agree with the Serrano court that clear and express notice of a defendant’s statutory right to an independent test under these conditions satisfies the requirements of due process. In Lauderdale, we held that the state violated Lauderdale’s due process rights by failing to preserve a breath sample because he was denied a reasonable opportunity to obtain an independent test to challenge the result of the police-administered test. However, it is not necessary to preserve a breath sample in ordеr to provide a defendant with a reasonable opportunity to obtain an independent test. While the state may provide this opportunity by preserving the defendant’s breath sample for later independent testing, it also may provide this opportunity by notifying a defendant of his right to an independent test and assisting the defendant in obtaining one.
We recognize that a person may waive his constitutional right to challenge the Intoximeter test if he has to choose to exercise that right while in police custody. No such choice is necessary if the breath sample is preserved for later testing. However, we do not believe that having to make a choice while in police custody so diminishes the value of the notice of the right to an independent test that it makes it an unreasonable opportunity to challenge the accuracy of the Intoximеter test result. We agree with the court of appeals that if the police choose not to preserve a breath sample, due process requires that they give clear and express notice of a defendant’s right to an independent test and offer assistance in obtaining one in order to introduce police-administered test results at trial.8
A defendant’s waiver of this due process right essential to a fair trial is valid only if it is knowingly and intelligently made. See Thessen v. State, 454 P.2d 341, 343 (Alaska 1969); see also Schneckloth v. Bustamonte, 412 U.S. 218, 235-241, 93 S. Ct. 2041, 2041-55, 36 L. Ed. 2d 854 (1973) (knowing and intelligent waiver standard applied to those rights guaranteed to a criminal defendant to preserve a fair trial). Justice Burke correctly observes that “an accused may be intoxicated to such an extent that a knowing and intelligent waiver [of his due process right] is precluded.” Infra p. 678. Justice Burke concludes that since a person charged with driving while intoxicated frequently will be intoxicated, “the probability of an involuntary waiver of the accused’s due process rights is high.” Id. Thus, Justice Burke would adopt a prophylactic rule requiring the state to preserve an accused’s breath sample to protect his due process rights. Id.
We do not believe such a prophylactic rule is necessary. We have held that a defendant’s waiver of his due process rights is effective despite his intoxication so long as “he knew what hе was doing.” Thessen, 454 P.2d at 345; see also People v. Moore, 20 Cal. App. 3d 444, 97 Cal. Rptr. 601, 603-04 (1971); State v. Pease, 129 Vt. 70, 271 A.2d 835, 838 (1970). Although Gundersen does not allege that his waiver was invalid because he was intoxicated, we observe that Gundersen’s insightful questions to the arresting officer concerning the accuracy of the Intoximeter test indicate that he knew what he was doing. See Gundersen, 762 P.2d at 107. A defendant’s ability to challenge the introduction of Intoximeter evidence on the ground that he was so intoxicated that he did not know what he was doing adequately proteсts his due process right to challenge the Intoximeter test.
Gundersen challenges the adequacy of the form notice under the due process clause of the Alaska Constitution on the ground that it did not inform him of the full scope of his statutory right under
We conclude that the notice read to Gundersen satisfied due process. First, we agree with the court of appeals that the drawing of blood is not “so intrusive a procedure as to be an unreasonable alternative per se.” 762 P.2d at 112. Therefore, that Gundersen was not given his choice of reasonable tests did not deny him his due process right to a reasonable opportunity to obtain an independent test. Similarly, without any allegation that the police-selected facility would not administer a reliable test, that Gundersen was not given his choice of reasonаble facilities at which to take the test also did not deny him due process. We hold that the notice and offer of assistance given to Gundersen complied with his due process right to challenge the result of the police-administered Intoximeter test.10
The judgment of the court of appeals is AFFIRMED.
BURKE, Justice, dissenting.
I dissent.
Today the court recognizes that “[a] positive Intoximeter test result is the single most important piece of evidence against a defendant accused of driving while intoxicated,” and holds that “due process requires that the defendant be given an opportunity to challenge” the reliability of such evidence by obtaining an independent test.
Dale Gundersen was arrested because he appeared to be too intoxicated to drive. Thereafter, he was tested and the test results showed him to have a blood alcohol content of .26. It is generally accepted that a person with a bloоd alcohol content between .15 and .20 is “obviously intoxicated.”1 Given these circumstances, it is questionable whether Gundersen was cognizant enough to understand a hurried recitation of his “rights,” and difficult to accept that he “waived” those rights.
In the area of confessions, the state must show—by a preponderance of the evidence—the voluntariness of a confession. Sprague v. State, 590 P.2d 410, 413 (Alaska 1979); Schade v. State, 512 P.2d 907, 916-17 (Alaska 1973). Primary indicium of voluntariness are the defendant’s capacities to understand both his rights and the consequences of waiving those rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966); see also Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 987-88, 108 L. Ed. 2d 100 (1990) (procedural due process violated where state officials allowed a mentally incompetent patient to sign an “informed consent” form for hospital admission). This court, and the court of appeals, have recognized the principle that an accused may be intoxicated to such an extent that a knowing and intelligent waiver is precluded. Sprague, 590 P.2d at 414; Hampton v. State, 569 P.2d 138, 141-43 (Alaska 1977); Thessen v. State, 454 P.2d 341, 345
In cases where the defendant’s intoxication is merely incidental to the underlying crime, the majority’s case-by-case review for involuntariness is appropriate. See Phillips v. State, 625 P.2d 816, 817 n. 5 (Alaska 1980). In cases where intoxication is an essential element of the crime charged, such as driving while intoxicated, the probability of an involuntary waiver of the accused’s due process rights is high. The burden on the state to preserve a breath sample is, on the othеr hand, minimal. I would, therefore, as a prophylactic rule, require the state to take and preserve a breath sample for the defendant’s later use. Whether the sample ultimately proves exculpatory, or inculpatory, is inapposite. What is important is the state’s respect for the individual’s capacity to understand and appreciate the nature of the due process rights afforded an accused.
Notes
The person tested may have a physician, or a qualified technician, chemist, registered nurse or other qualified person of the person’s own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence.