Manuel R. PENA, Jr., Appellant/Petitioner, v. STATE of Alaska, Appellee/Respondent. Richard RYCHART, Appellant/Petitioner, v. STATE of Alaska, Appellee/Respondent.
Nos. 6174, 7052
Supreme Court of Alaska
July 20, 1984
684 P.2d 864
Here, Providence‘s potential liability for punitive damages assessed against Valdez is affected by a number of hypotheticals, including whether Valdez may and will ultimately be held liable for punitive damages. Nevertheless, in light of the general rule that an insurance company need not wait for a judgment to be rendered against its insured before contesting the existence and extent of its own liability,
The above notwithstanding, a finding that the question presented here is neither advisory nor moot does not end the inquiry. The basic question remains whether in this particularly case the issue is an appropriate one for declaratory judgment. I believe on balance that it is not, and that the lower court abused its discretion in granting relief. A court should be wary of basing decisions on hypothetical questions of law even more than on hypothetical questions of fact.
This court prefers to wait for a more adverse representation to decide the issues of whether municipal corporations may be sued for punitive damages and whether public policy generally precludes insuring against them. Therefore, it seems extremely premature to decide that Valdez would nevertheless be able to insure against such damages and that the insurance policy at issue here in fact covered them. Even if a decision here would not be advisory or moot, the court would nevertheless “fear for its own carelessness in acting when nothing seems to be at stake.”
The parties have not demonstrated any harm that would befall them if the court withheld a decision at this time.1 Although the court‘s construction of the contract may serve to clarify in a narrow sense the legal relations in issue, Jefferson v. Asplund, 458 P.2d at 998, the dangers involved in deciding secondary questions of law before primary ones would seem to outweigh the potential utility of a declaratory judgment in this case.
Fleur Roberts, Cowper & Madson, Fairbanks, for appellant/petitioner, Richard Rychart.
David Mannheimer, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee/respondent.
Before BURKE, C.J., and RABINOWITZ, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
MOORE, Justice.
On September 2, 1980, an automobile driven by Manuel R. Pena, Jr. collided with an automobile driven by Chris Scisente resulting in the death of Billy S. Downey, a passenger in Scisente‘s vehicle. Anchorage police officers investigating the accident, suspecting that Pena had been drinking arrested Pena; took him to the police station, and requested that he take a breathalyzer test. Pena refused to take the test and the police obtained a search warrant authorizing the taking of a sample of Pena‘s blood. Pena was then taken to the Alaska Hospital where the blood was
The facts behind Rychart‘s appeal are similar to Pena‘s. On August 15, 1981, a vehicle driven by Rychart was involved in an accident with another vehicle. Benjamin Coffin, a passenger in Rychart‘s automobile, died as a result of the collision. On the way to the hospital, police asked Rychart if he would submit to a breath or blood test to determine his blood alcohol content, and he refused. Police later placed Rychart under arrest and pursuant to a search warrant directed emergency room technicians to draw a sample of Rychart‘s blood. This sample showed that Rychart‘s blood contained .17% alcohol.
Both Pena and Rychart were charged with manslaughter. Results of the chemical sobriety tests were admitted into evidence at each trial over defense objections. Pena and Rychart were convicted and both appealed their convictions. In Pena v. State, 664 P.2d 169 (Alaska App., 1983), the court of appeals upheld Pena‘s conviction, ruling that the test results were properly admitted into evidence. On May 11, 1983 the court of appeals issued a summary disposition denying Rychart‘s appeal in light of the Pena decision.
Pena and Rychart appeal their convictions arguing that, in light of Alaska‘s Implied Consent Statutes, results of the nonconsensual chemical sobriety tests were improperly admitted into evidence. In 1969 the Alaska Legislature passed the Alaska Implied Consent Statute, which at the time of Pena‘s and Rychart‘s arrests provided in part:
AS 28.35.031 IMPLIED CONSENT. 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 his breath for the purpose of determining the alcoholic content of his blood if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state while under the influence of intoxicating liquor.
AS 28.35.032 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 of his breath ... after being advised by the officer that his refusal will result in the suspension, denial or revocation of his license, a chemical test shall not be given.
We agree with appellants that the Implied Consent Statutes that were in effect at the time of their arrests preclude the admission into evidence of chemical sobriety test results obtained pursuant to a search warrant after the arrestee has refused to take such a test.
Alaska‘s Implied Consent Statutes provide that a driver impliedly consents to being subjected to chemical sobriety tests and creates penalties for a driver‘s refusal to submit to this testing.1 The penalty for refusing the test, at the time of the arrests in this case, was a three-month suspension of the suspect‘s driver‘s license.2
The Implied Consent Statute states that, if the driver refuses to submit to a chemical sobriety test, “a chemical test shall not be given.”
In the case at bar, the court of appeals held that Geber does not control the instant cases because Geber only addresses the question of the admissibility of nonconsensual test results obtained as a search incident to arrest. Pena v. State, 664 P.2d 169, 174 (Alaska App., 1983). The court ruled that non-consensual test results obtained pursuant to a search warrant are distinguishable and that the Implied Consent Statute does not preclude their admission into evidence. The court of appeals reasoned that to suppress the blood test results would inhibit the goals behind the Implied Consent Statute of reducing the incidence of drunk driving.
We find no reason to draw the distinction drawn by the court of appeals. The Implied Consent Statute provides the exclusive authority for the administration of police-initiated4 chemical sobriety tests to a driver arrested for acts allegedly committed while operating a motor vehicle. The statute clearly provides that after a driver refuses to submit to a chemical sobriety test the driver shall be penalized by the sanctions established in
In 1982 and 1983, after the arrests of Pena and Rychart, the legislature enacted and amended the Implied Consent Statute by passing
ADMINISTRATION OF CHEMICAL TESTS WITHOUT CONSENT. (a) If a person is under arrest for an offense arising out of the acts alleged to have been committed while the person was driving a motor vehicle while intoxicated, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person‘s breath or blood.5
Thus, the legislature has eliminated the driver‘s ability to refuse a chemical sobriety test6 in situations, such as in the case at
Conviction REVERSED and case REMANDED.
COMPTON, Justice, dissenting.
The language of Alaska‘s Implied Consent Statutes, as they read at the time of Pena‘s and Rychart‘s arrests, demonstrates that the statutes were intended to apply only in the context of searches incident to arrest. A person was deemed to consent to testing when “lawfully arrested.”
There is simply nothing in the statutes to indicate that the legislature contemplated restricting searches pursuant to warrant, which derive from the statutory authority of the court, rather than the power of an officer to search an individual at the time of arrest. Numerous reasons have been advanced for the existence of implied consent statutes, but there is none which would support the majority‘s application of the prohibition against nonconsensual blood testing to searches performed pursuant to warrant.
As we noted in Lundquist v. Department of Public Safety, 674 P.2d 780, 783 (Alaska 1983), the legislature‘s purpose in enacting the Implied Consent Statutes is not clear. There we explained that such statutes were originally intended to aid police in obtaining evidence of intoxication at a time when the United States Supreme Court had put in doubt the constitutionality of non-consensual searches for evidence inside an individual‘s body. However, many states, including Alaska, did not pass such laws until after the Supreme Court had made clear in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), that forcibly extracting blood for the purpose of determining a driver‘s blood alcohol content did not offend the Constitution. In Lundquist we found convincing one commentator‘s statement that “[t]he most likely explanation for the wide-spread adoption of implied consent by the states despite the Schmerber decision is that the implied consent language was familiar and had been approved by the courts.” Id. at 783, quoting Note, Driving While Intoxicated and the Right to Counsel: The Case Against Implied Consent, 58 Texas L.Rev. 935, 944 (1980). Another related explanation is that in 1967 the federal Department of Transportation promulgated regulations requiring some form of implied consent law before a state could establish its eligibility to receive federal highway funds. See Note, supra at 942-43. The federal regulations were written after Schmerber, and did not require a provision prohibiting testing if no consent was given,
Other courts, in interpreting implied consent laws enacted after Schmerber, have decided that their purpose is to prevent the violent confrontations that might arise between police officers and drunken motorists if the officers attempted to administer, or have administered, chemical tests by force. See Note, supra at 941-2. Appellant Rychart asserts that this is the purpose of Alaska‘s Implied Consent Statutes, and that it is served equally by limiting searches incident to arrest and searches
Thus, there is no conceivable purpose in extending the provisions of
The language of
In short, I see every reason “to draw the distinction drawn by the court of appeals,” Pena v. State, 684 P.2d 864, 867 (Alaska 1984), in this case, and cannot agree with this court‘s conclusion that the implied consent statutes in effect at the time of the defendants’ arrests precluded the “admission into evidence of chemical sobriety test results obtained pursuant to a search warrant after the arrestee has refused to take such a test.” Pena v. State, 684 P.2d at 866. Therefore, I dissent from the order reversing the defendants’ convictions and remanding the cases for new trials.