*1 Despite admonition this emergency room.” KEEL, Ms. Marvin’s proceeded. Roger Appellant, counsel
defense “They both question to was: answer the apparently story.” This was the same told Alaska, Appellee. of STATE Ms. Marvin’s impeach to asked in an effort attributing testimony direct examination on No. 4408. to the a statement defendant. such Supreme Alaska. Court of evidence to introduce Having chosen statement, April part the of the victim’s of first another man said that was wherein she her, the is in no
who had beaten defendant complain prosecutor’s the
position now to of of her state-
introduction of the remainder
ment, story her and changed wherein she true as her assail-
identified the defendant Regardless why of defense counsel
ant. did, it question the that he would
asked allow to
have been unconscionable to him advantage part of her
gain the the first suffering the disadvan-
statement without Thus,
tage part. we conclude the second properly
that the evidence was admitted.2 McCormick, (2d ed. §
C. Law Evidence
1972). of error like-
Johnson’s other assertions fail convince us that his conviction
wise to Accordingly superi- the
should be reversed. court’s is judgment
or affirmed.
AFFIRMED. Supportive right. By objecting done is he has his best of this conclusion C. McCor- mistake, mick, (2d remedy 57, p. but court from of Evidence ed. save the Law ruling 1972): by assigning error to the is not opportunity adequate He one. needs a fair party One offers evidence which is inadmissi- by refuting at the the dam- win his case trial object, adversary fails to or ble. Because the aging evidence. so, opportunity to do or because he has no judge erroneously overrules an because the objection, incompetent incompetent the evidence comes again is evidence If the first adversary in. Is to answer this adversary entitled . has relevant . but explana- out, or evidence and denial object or to move to strike failed to proved? tion of facts so objection might apparently such an where harm, have avoided the then allowance inadmissible, answering judge’s evidence, though rest evidence should If rel- weigh probable probably discretion. He should evant and to the issues hence dam- evidence, aging adversary’s of the first the time . . . if influence to the case answering it, objected adversary seasonably and the has or distraction incident strike, adversary possibility of an instruction then and effectiveness moved to should disregard give answering it. to the entitled to *2 breathalyzer of a
28.35.030.1 results test, shortly him after administered to his arrest, against were admitted as by Keel’s conviction was affirmed him. he mounts superior appeal court. On this a attack on the multifaceted test. stopped 1:00 a. m. on
Keel was
at about
16, 1977,
police,
Kodiak
after
by
December
been trav-
stop sign.
a
He had
he had run
per
eling
twenty
fifteen to
miles
hour.
at
Keel,
police
driving
followed
who was
of the
road. He
in the middle
snow-covered
stop
but
not
when the
slowed down
did
flashing light,
turned on
and
their
their
only
they
when
used
siren.
halted
vehicle;
at first refused to leave
Keel
did,
finally
police officer Culbert-
when he
eyes
watery
son observed
Sharon, Cole,
Rhodes,
Hartig,
W.
Michael
perform-
poor.
his balance was
After
and
Mahoney, Anchorage,
appel-
for
&
Norman
tests, Keel
ing
sobriety
several field
admit-
lant.
he had had
beers.2 Culbertson
ted
four
Kodiak,
Mackey,
Atty.,
L.
Dist.
William
him
to the station-
arrested
and took him
Gross,
Gen., Juneau,
Atty.
M.
Avrum
house.
appellee.
stationhouse,
read
At the
Keel was
which,
signed,
if
implied consent form
al-
OPINION
lows a
test to be administered.
RABINOWITZ,
J., and CON-
Before
C.
signed
agreed
the form and
take
BOOCHEVER,
NOR,
MAT-
BURKE and
test,
saying that he knew how “beat
THEWS, JJ.
did, however,
try
He
that machine.”
BOOCHEVER, Justice.
faking
gastric
a
by apparently
stall
test
had
The test indicated that Keel
a
attack.
Roger
Keel was
a district
convicted
He
percent.3
alcohol content of .18
operating
in Kodiak
a motor
blood
court
intoxicated,
videotaped
the station.
while
in violation AS was also
at
vehicle
part:
28.35.033(a)
28.35.030 states
1. AS
reads:
3.AS
Upon the trial of a civil or criminal action
Driving while
inñuence of intoxi-
under the
proceeding
alleged
arising
who,
or
have
out of acts
cating liquor
(a)
person
drugs,
or
A
by person
oper-
been
committed
while
intoxicating
li-
while under
quor,
drugs
influence of
ating a motor
depressant,
vehicle under the influence
hallucinogenic
of
in
stimulant
or
intoxicating liquor,
alcohol
drugs
the amount of
in AS
or narcotic
as defined
person’s
alleged,
the
shown
breath,
blood
17.10.230(13)
17.12.150(3) operates
at the time
and AS
analysis
person’s
automobile, motorcycle
chemical
drives an
or other
or
motor vehicle in the
give
conviction,
following pre-
state, upon
shall
rise to
$1,000,
sumptions:
punishable by a fine
not
than
of more
(1)
per
imprisonment
If
one
there
0.05
cent or less
or
for not more than
weight
blood,
year,
impose
person’s
of alcohol
or
both and
in the
the court shall
presumed
imprisonment
person
of not
shall be
minimum sentence of
less
that the
was not
days.
liquor.
intoxicating
than three
under the
consecutive
influence of
per
If there was in excess of 0.05
cent
testified, however,
per
by weight
2. Keel
but less than 0.10
that he was not
cent
drunk,
explained
person’s blood,
obey
in the
that his failure to
alcohol
that fact does
stop sign
driving
give
any presumption
and his
in the middle of
not
rise to
person
the road were due to the bad road conditions.
was or was not under the influence of
objection to Keel’s line of
ing the state’s
trial,
off Keel’s ef-
the court cut
hisAt
statute,
however,
Culbertson,
merely
That
inquiry.7
who ad-
forts to cross-examine
the elements
that must be
test,
function-
defines
regarding the
ministered
test results
ad-
possible sources
before
ing
evidence;
it does not make
Additionally, Keel mitted into
readings.
in its
of error
Indeed,
unassailable.
the stat-
those results
to the admission
objected repeatedly
*3
presumption
creates
a
of the test’s
ground
only
that
ute
results on the
breathalyzer
test
presumption
it
is that
that
validity,
admission
for their
proper
the
foundation
conclude
trying
Keel was
to attack. We
The court overruled
been laid.
had not
error in
the trial court committed reversible
jury was instructed
objections.
these
unduly restricting the cross-examination.
of intoxica-
statutory presumption
on the
tion,
reading.4 It
breathalyzer
based on the
operation
the
of the breath
We described
charged.
guilty
found Keel
as
State,
in Lauderdale v.
in
548
alyzer
detail
376,
(Alaska 1976) (quoting
P.2d
improp
the court
Keel claims
Baker,
846, 355 P.2d
State v.
56 Wash.2d
cross-examination of Cul
erly restricted his
806,
(1960)). Pursuant
to AS 28.35.-
809
right
is a basic
bertson. Cross-examination
033(d),8
Department
the
of Health and So
defendant,
curtailed.
lightly
not to be
of the
extensive
promulgated
has
cial Services
66,
(Alaska
v.
78
Salazar
559 P.2d
the administration
of
regulations
regarding
Stevens,
McGinnis
1976);
543 P.2d
alleges
the
Keel
breathalyzer
tests.9
seeking
(Alaska 1975). Keel was
1231
compliance with
failure to establish
state’s
of Cul
through
attempted questioning
precluded
have
ad
regulations
these
should
jury’s
in the
mind
to raise doubts
bertson
mission of the test results.
reliability
breathalyzer
the
regarding the
of
objective
clearly a valid
of
test.5 This is
of the
We will not consider most
cross-examination.6
objections
puts
forth
foundational
here,
raise these
of his failure to
seemingly
on the
because
The trial court
relied
do find that one
28.35.033(d)
objections below.10 We
in sustain-
last sentence of AS
28.35.033(d)
may
intoxicating liquor,
reads:
be con-
8. AS
but that fact
competent
provisions
in de-
with other
sidered
the
valid under
To be considered
person
termining
analysis
under the
whether the
of the
the chemical
of this section
intoxicating liquor.
performed
person’s
of
have been
influence
breath shall
according
approved
the De-
to methods
per
or more
If there was 0.10
cent
blood,
partment
weight
person’s
of Health and Social Services.
of alcohol in the
Department
presumed
person
Health and Social Services
that the
was under
of
shall
satisfactory
intoxicating liquor.
approve
tech-
the influence of
to
authorized
niques,
methods,
training
and standards of
supra.
necessary
qualifications of
See note 3
to ascertain
analysis.
If it is
individuals to conduct
analysis
Erwin,
at trial that
chemical
established
Driving
2See R.
Defense of Drunk
according
ap-
performed
Cases,
to
of breath was
(3rd
1978),
22.05 and 22.07
§§
ed.
by person
accord-
examples
along
highly
methods
trained
of
effective cross-examination
ing
techniques,
methods and standards
this line.
Department
training approved by
Services,
pre-
questions regarding
glance,
is a
Health and Social
sumption
there
first
6. At
knowledge
valid and
that the test results are
Culbertson’s
irrelevant,
may appear
components
as
its
for introduction of the evi-
and
Culbertson
further foundation
undergone
unnecessary.
that he had
had testified
dence is
training
7
30.030 for
mandated
AAC
(eff. 2/20/70).
9. 7 AAC 30.010.070
breathalyzer tests. Keel’s
administration
questions
apparently designed
to show
here,
below,
argues
argue
10. Keel
but failed to
forgotten what he learned
that Culbertson had
breathalyz-
prove
that the state did not
that the
suggest
training,
and thus to
in that
type,
er
quired by
of the
used was
Borkenstein
as re-
proper-
forgotten
how to
he
also have
30.010;
7 AAC
ly
tests.
administer
sixty days
was calibrated after the test within
calibration,
previous
required
30.050(a);
7. See note 8 infra.
AAC
and that the test indicated .18
merit,
specific objection
In view
objection
has
and was
fied.”
foundational
brought
counsel,
to the attention of the
properly
we therefore
defense
conclude that
proper calibration of
trial court. Because
necessary
foundation for admission was
guarantee
is essential
not established.
regulations require
readings, the
accurate
find,
Nor can we
as we
did Oveson v.
by an “in-
that calibration be
Municipality
Anchorage,
admission constituted harmless under 622, (Alaska
Love v. 457 P.2d
1969).13 judgment of conviction is RE- VERSED. KERSLAKE, Appellant, Charlot E.
BURKE, Justice, concurring. KERSLAKE, Appellee. Harold A. disagree majority’s I conclusion with No. 4208. conviction must be reversed be- proof cause of lack of Supreme Court of Alaska. “instructor,” re- was calibrated April quired by 30.050(b). 7 AAC § 30.040(b) qualified 7 AAC states that a *5 “instructor” calibrate in testing.
struments used for 7 AAC 30.-
050(b)(2) requires calibrating an instructor
such send his rec instruments to calibration Department
ords to the of Health & Social Sgt.
Services in Juneau. Conrad Walters Department Kodiak Police testified that department’s
Lt. Oldham was the “certified machines;'
calibrator of routinely
he calibrates such machines as duties;
part of his that he makes records of results;
his calibration that he sends these Juneau; required
records to and that he is
to do so There was no evidence to law. contrary.
Although Walters did not use the word
“instructor,” fairly I think it can in- be was,
ferred from Oldham fact, “instructor,” properly qualified
to calibrate the machine that report approved 12. The did not refer to calibration ator’s course and calibrate the instru- qualifications of the calibrator and was certi- ments. fied, oath, hereby certify under “I follows: specific instrument has might possibly 13. There be a case where one specified by within the tolerances turer and is the manufac- could conclude that results erro- approved for use in Alcohol Breath neously “appreciably did not affect” admitted Testing.” The defect here could involved jury’s verdict. Love v. 457 P.2d at easily by adding cured to the certificate a state- case, clearly But this is not such a where qualified by ment that the calibrator is explained driving that his erratic was due Department State of Alaska of Health and So- conditions, to bad road and even the said cial Services under Title 7 of the Administrative fairly sobriety he did well on his field tests. breathalyzer oper- Code of Alaska to teach the