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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| LAWRENCE D. MOBERG, | ) |
| ) Court of Appeals No. A-9390 | |
| Appellant, | ) Trial Court No. 3AN-03-12545 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) No. 2082 January 26, 2007 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Brian K. Clark and
Mary Anne Henry, Judges.
Appearances: Stephanie Patel, Law Offices of
Dan Allan, Anchorage, for the Appellant.
John E. McConnaughy III, Deputy Municipal
Attorney, and Frederick H. Boness, Municipal
Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Lawrence D. Moberg appeals his conviction 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 Moberg
was taken following the traffic accident).
Moberg contends (under various legal theories) that the
district court should not have allowed the Municipality to
introduce evidence of the result of the blood alcohol test
conducted by the hospital. For the reasons explained here, we
conclude that none of Mobergs 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.
Mobergs blood alcohol 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 Mobergs duty under Alaskas
financial responsibility law.
Following his interview with Moberg, the
officer asked the hospital staff if they were going to
draw Mobergs 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
Mobergs 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 Mobergs medical records at the Alaska Native
Medical Center. As noted above, the hospital records
showed that Mobergs 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,
Mobergs attorney contacted the Alaska Native Medical
Center and asked them to provide a sample of Mobergs
blood from August 6th (the date of the accident). The
hospital informed Mobergs attorney that they no longer
had a sample of Mobergs 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,
Mobergs attorney filed a motion asking the district
court to dismiss the DUI charge or, in the alternative,
to suppress the blood test result. Mobergs theory was
that, because of the Municipalitys 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
Mobergs motion.
Six months later, on December 27, 2004,
Mobergs attorney filed a second motion to suppress the
blood test result. In this second motion, Moberg
argued that the test result was inadmissible because
the hospitals 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, Mobergs attorney asked the
district court to suppress Mobergs 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 of this search
warrant failed to establish probable cause that Moberg
had committed an offense.
District Court Judge Mary Anne Henry denied
both of these latter suppression motions on May 11,
2005.
A jury later convicted Moberg of driving
under the influence.
Mobergs 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 Municipalitys
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 Mobergs 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 screening reason for waiting as
little as seven days to charge Moberg with DUI. As
Judge Clark noted when he denied Mobergs motion, Moberg
presented [n]othing ... [to meet] his burden of
demonstrating that a delay of [as little as] seven days
was unreasonable.
The second obstacle to Mobergs pre-accusation
delay argument is the rule that a defendant who seeks
dismissal of criminal 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 circumvent 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.
Mobergs argument is incorrect. Even when the
police, through negligence, have lost or failed to
preserve physical evidence, a defendant must show that
the evidence, if preserved, might have led the jury to
entertain a reasonable doubt about the defendants
guilt.3
We acknowledge that in Lauderdale v. State,
548 P.2d 376 (Alaska 1976), our supreme court adopted
a different standard for DUI cases where the government
forces an arrestee to take a breath test but then fails
to preserve a breath sample for re-testing and
otherwise fails to offer the arrestee another method of
cross-examining the governments breath test (for
example, offering the arrestee an independent blood
test).4 In such cases, Lauderdale holds, the fact that
the defendant had no opportunity to verify the
governments breath test result means that the
defendants right of confrontation has been abridged;
thus, the defendant is entitled to suppression of the
governments breath test result without any need to show
that a re-testing of the breath sample or a
contemporaneous independent blood test would have
yielded evidence favorable to the defense. Id., 548
P.2d at 381-82.
But the blood alcohol evidence in Mobergs
case was not derived from a government-mandated or
government-controlled breath test. Instead, this
evidence was the result of a blood test conducted by
hospital personnel for medical reasons. In St. John v.
State, 715 P.2d 1205 (Alaska App. 1986), we held that
the Lauderdale rule does not apply to blood tests
conducted by hospital personnel for medical reasons,5
and we further held that, in such circumstances, a
defendant seeking a reversal of a DUI conviction must
show that preserving a blood sample for a retest by
[the defense] would probably have affected the outcome
of [the] trial.6
Consequently, Moberg is not entitled to the
automatic suppression rule of Lauderdale. Rather, his
case is governed by the general rule that a defendant
seeking dismissal of criminal charges based on
pre-accusation delay must make an affirmative showing
of prejudice. In Mobergs case, as in St. John, [t]here
is no evidence, direct or circumstantial, that the
tests performed [on the blood] were in any way
inaccurate or that a retest by someone else would have
resulted in exculpatory evidence.7
For these reasons, we uphold the district
courts denial of Mobergs pre-accusation delay motion.
And, for these same reasons, we reject
Mobergs related argument that the Municipality had (and
violated) a duty to direct the Alaska Native Medical
Center to preserve a sample of Mobergs blood beyond the
hospitals normal seven-day retention period.
We additionally note that, when the district
court ruled on Mobergs suppression motion, the district
court expressly found that Moberg, after being
interviewed by the police officer about the traffic
accident, and after being questioned about his
drinking, was aware that he was being investigated for
a criminal offense and that [the alcohol content of
his] blood might be used in a criminal prosecution.
Because of the district courts finding on
this question of fact, Mobergs case is also governed by
our decision in Bradley v. State, 662 P.2d 993 (Alaska
App. 1983). In Bradley, we held that the result of a
hospital blood test was admissible against the
defendant, even though the state had not preserved a
sample, because the blood sample was taken by[,] and
was in the possession of[,] an independent entity ...
[and because] both the defendant and the [government]
had the opportunity to preserve the sample. Id., 662
P.2d at 995.
See also Prenesti v. State, 594 P.2d 63
(Alaska 1979), where the Alaska Supreme Court rejected,
on similar grounds, a claim of pre-accusation delay.
The defendant in Prenesti asserted that he had been
prejudiced by the States delay in charging him because
... he was unable to locate several possible
eyewitnesses to the incident who might have exonerated
him. Id., 594 P.2d at 64. The supreme court
responded: [W]e agree with the superior court that the
loss of these witnesses was due to Prenestis failure to
exercise due diligence in his own behalf. He became
aware that he was the subject of a police investigation
two months after the incident, but did not hire a
lawyer until three months after that time or an
investigator until seven months had passed. Id. at 65.
Under the supreme courts decision in Prenesti
and our decision in Bradley, the fact that Moberg knew
that he was being investigated by the police, and that
his blood might contain relevant evidence, means that
Moberg was obliged to take action himself if he wished
the hospital to preserve his blood (or furnish him with
a sample of his blood) for later re-testing.
Mobergs argument that evidence of his blood alcohol
level was inadmissible because the hospital failed to
adhere to the testing methods specified by the
Department of Public Safety in 13 AAC 63.110
Under the law of the State of Alaska (AS
28.35.033) and the law of the Municipality of Anchorage
(AMC 09.28.023), a driver is presumed to be under the
influence of alcohol if a test of the drivers breath or
blood yields a blood alcohol level of .08 percent or
higher.8 Conversely, a test result of .04 percent or
lower creates a presumption that the driver was not
under the influence of alcohol.9 And a test result
between .04 percent and .08 percent creates no
presumption either way.10
Both the state statute and the Anchorage
ordinance declare that, [t]o be considered valid under
the provisions of this section i.e., valid for
purposes of creating these presumptions the chemical
analysis of the persons breath or blood [must] have
been performed according to methods approved by the
[Alaska Department of Public Safety].11
Relying on this latter provision of the
municipal ordinance, Moberg asked the district court to
exclude the result of his hospital blood test. Moberg
argued that the hospital failed to follow the testing
procedures established by the Alaska Department of
Public Safety by failing to retain a sample of Mobergs
blood long enough for Mobergs attorney to have the
blood re-tested after Moberg was charged with DUI.
(a) The regulation at issue, the precise nature of
Mobergs argument, and the district courts ruling
The blood testing procedures in question are
codified in 13 AAC 63.110, Collection and handling of
blood samples. This regulation, promulgated by the
Department of Public Safety, declares: The following
procedures must be followed to collect and retain a
blood sample collected under AS 28.35.033 or 28.35.035:
(1) the blood sample must be collected
by a physician, nurse, laboratory technician,
or other qualified person;
(2) the blood sample must be collected
by medically acceptable means as soon as
feasible after an alleged offense, using a
clean hypodermic needle and syringe, or other
appropriate collection device;
(3) if feasible, sufficient blood should
be collected to permit duplicate
determinations;
(4) the blood sample must be deposited
into a clean container; if feasible, the
blood should be mixed with an anticoagulant
and a fluoride preservative;
(5) if feasible, a sample of blood
awaiting analysis should be stored in a
refrigerator except for periods of time
required for transportation; [and]
(6) the identity and integrity of a
sample must be maintained from the time of
collection through analysis and reporting.
Many of these requirements are
directed toward ensuring that the blood is
collected and stored in a manner that assures
the integrity of the sample and the accuracy
of the test. But Moberg did not question the
hospitals procedures in this regard. That
is, Moberg did not argue that the hospitals
procedures cast doubt on the integrity of the
blood sample or the accuracy of the testing
itself. Rather, Moberg argued that the
hospital failed to comply with requirement
(3): the requirement that, if feasible,
sufficient blood should be collected to
permit duplicate determinations.
It is important to note that
Mobergs argument was not based on the wording
of requirement (3), but rather was based on
an extrapolation from that wording.
Requirement (3), on its face,
speaks only to the amount of blood that must
be drawn. This amount must be sufficient ...
to permit duplicate determinations. But
Moberg did not argue that the amount of blood
drawn by the Alaska Native Medical Center was
insufficient to permit re-testing. Instead,
Moberg argued that the hospital violated
requirement (3) by failing to retain the
blood sample long enough so that Moberg could
have it retested after he was charged with
DUI.
Mobergs precise contention is not
spelled out clearly in the appellate briefs.
However, the nature of Mobergs argument was
clarified at two hearings held in front of
Judge Henry on March 3 and March 14, 2005.
At the March 3rd hearing, Mobergs
attorney told Judge Henry that the problem
was that no blood samples were retained that
would permit any subsequent testing by the
defendant. [That] is [the] problem with the
foundational elements. Judge Henry responded
that the issue appeared to be one of law:
[whether] you are requiring more foundation
than is necessary. Judge Henry then
suggested that the matter could probably be
handled [by] oral argument rather than an
evidentiary hearing presumably, because the
issue appeared to turn on a question of
statutory interpretation, rather than on the
particular facts of the hospitals blood
collection and testing procedures.
A little later, when Judge Henry
returned to Mobergs foundation objection, she
asked the parties if there was anything she
needed to consider beyond the parties written
pleadings and their oral argument of the
issue. Both the prosecutor and the defense
attorney declared that the issue could be
decided on that basis. In other words, both
parties agreed with Judge Henry that the
issue was one of law.
Judge Henry heard additional
argument on this matter on March 14th. At
that second hearing, Judge Henry asked the
defense attorney if Moberg would still object
to the admission of the blood test result if
the Municipality introduced evidence showing
that the hospitals testing procedure was
accurate. The defense attorney replied that
the accuracy of the test was not the issue.
Rather, the crucial issue was that hospital
had not held onto the blood. According to
the defense attorney, the Department of
Public Safety regulation [requires the tester
to] keep a duplicate sample. Because the
hospital did not retain the blood, the
defense attorney argued, the test result was
inadmissible even though the testing may
otherwise have been done properly.
Judge Henry ultimately concluded
that it did not matter whether
subdivision (3) of 13 AAC 63.110 required
retention of a blood sample until a defendant
either conducts or waives re-testing.
Instead, Judge Henry concluded that the
requirements of 13 AAC 63.110 apply only to
blood testing conducted by the government.
The judge held that 13 AAC 63.110 does not
govern blood testing conducted by hospitals
and clinics for medical purposes.
(b) The regulation at issue, 13 AAC 63.110, does
not govern blood testing conducted by medical care
providers for medical purposes
On appeal, Moberg renews his argument that
the Alaska Native Medical Center was obliged to
adhere to the requirements of 13 AAC 63.110 when
sampling and testing Mobergs blood. But Mobergs
argument overlooks the introductory clause of this
regulation.
The beginning words of 13 AAC 63.110 are:
The following procedures must be followed to
collect and retain a blood sample collected under
AS 28.35.033 or 28.35.035. That is, the
regulation itself declares that it applies only to
the blood tests authorized by these two statutes.
The first of these statutes, AS 28.35.033,
has one subsection that authorizes blood testing.
Subsection (e) of this statute declares that an
arrested motorist whose breath or blood has been tested
by the government has a right to an independent
chemical test by a physician ... or other qualified
person of the [motorists] choosing. Although
subsection (e) does not specify that this independent
chemical test will be a blood test, very few (if any)
private health care providers possess breath testing
machines approved for use in the State of Alaska and
thus, of necessity, the independent test authorized by
AS 28.35.033(e) will normally be a blood test.
The second of these statutes, AS 28.35.035,
authorizes the government to conduct a blood test of an
arrested motorist if (1) there is probable cause to
believe that the motorist, through an act of
intoxicated driving, is responsible for causing the
death or serious physical injury of another person, or
if (2) the motorist is unconscious or is otherwise
incapable of expressing refusal of the breath test
normally mandated by AS 28.35.031(a).
Mobergs blood test was not conducted under
either of these statutes. His blood was not tested by
the government under the circumstances set forth in
AS 28.35.035, nor was his blood test an independent
chemical test authorized by AS 28.35.033. Rather,
Mobergs blood was tested by the Alaska Native Medical
Center for medical purposes. By its terms, 13 AAC
63.110 does not govern such a test.
Moberg argues that, despite the wording of 13
AAC 63.110, the legislature must have intended this
regulation to apply whenever the government seeks to
introduce the result of a blood test in criminal
litigation regardless of why, or by whom, the testing
was done. Moberg points out that most of the
provisions of 13 AAC 63.110 are addressed to ensuring
the integrity of the blood sample and the accuracy of
the testing. He therefore contends that 13 AAC 63.110
was intended to establish the evidentiary foundation
for introducing any blood test result.
The first problem with Mobergs argument is
that, as we explained above, Moberg never questioned
the hospitals compliance with the quality assurance
provisions of the regulation. Instead, Moberg asserted
that the hospitals sole mistake was failing to retain
the blood sample long enough for Moberg to have it re-
tested when, months later, he was charged with DUI.
Thus, the validity and carefulness of the hospitals
sampling and testing procedures was never at issue.
And, with respect to the hospitals failure to
retain the blood sample long enough for Moberg to have
it re-tested after he was charged with DUI, we again
note that the district court expressly found that
Moberg was aware that he was being investigated for a
criminal offense and that [the alcohol content of his]
blood might be used in a criminal prosecution. Thus,
Mobergs argument is governed by our decision in Bradley
v. State, 662 P.2d at 995 our holding that a hospital
blood test result is admissible against a defendant,
even though the State fails to retain a sample of the
blood, because the blood sample was in the possession
of an independent entity (i.e., the hospital) and was
equally available to both the defendant and the
government.
More importantly, though, we have examined
the legislative history of AS 28.35.033 and 13 AAC
63.110, and this history fully corroborates Judge
Henrys conclusion that 13 AAC 63.110 was not intended
to apply to blood tests conducted by hospitals and
clinics for medical purposes.
AS 28.35.033 was originally enacted in 1969;
it was part of the package of legislation that included
Alaskas first implied consent law AS 28.35.031, the
statute that places a duty on arrested motorists to
take a breath test.12
For the most part, the 1969 version of AS
28.35.033 looked much like the current version of the
statute. Subsection (a) listed the various
presumptions to be drawn from the result of a breath
test. Subsection (e) gave motorists the right to seek
an independent chemical test from a physician or other
qualified person of their choosing. And subsection (d)
declared that, [t]o be considered valid under the
provisions of this section[,] the chemical analysis of
the persons breath [must] have been performed according
to the methods approved by the Department of Health and
Welfare.
(The responsibility for formulating testing
procedures was originally entrusted to the Department
of Health and Welfare. When, two years later, this
department was renamed the Department of Health and
Social Services, the wording of subsection (d) was
amended to reflect this change.13 And when, in 1987,
the governor issued an executive order transferring
this responsibility to the Department of Public Safety,
the wording of subsection (d) was again amended to
reflect this change.14 )
To resolve the issue presented in Mobergs
case whether the Departments testing procedures apply
to blood tests conducted by a hospital for medical
purposes it is important to note that, as enacted in
1969, subsection (d) of the statute declared that the
methods approved by the Department of Health and
Welfare applied only to the chemical analysis of the
persons breath.
At that time, under Alaskas implied consent
law (AS 28.35.031), the police only had the authority
to ask a motorist to take a breath test. The police
had no authority to test the motorists blood. At the
same time, however, AS 28.35.033(e) gave motorists the
right to seek an independent chemical test and, as
explained above, this independent test usually took the
form of a blood test.
It is therefore significant that, under
subsection (d), the Departments prescribed methods of
testing applied only to breath tests. This limitation
strongly suggests that the legislature did not intend
for the Department to establish testing procedures for
all chemical tests in particular, the blood tests that
motorists would be obtaining under subsection (e).
Rather, the legislature intended the Departments
procedures to apply only to the breath tests conducted
by the government under the authority of the implied
consent law, AS 28.35.031.
This interpretation is corroborated by the
fact that when the Department of Health and Welfare
(later, the Department of Health and Social Services)
promulgated its regulations to carry out the mandate of
this statute, those regulations were concerned solely
with breath testing devices and procedures. See former
7 AAC 30.010 080.15 The Department promulgated no
blood testing regulations.
In 1982, the Alaska Legislature enacted AS
28.35.035.16 This statute, for the first time,
authorized the police to take blood samples (as opposed
to breath samples) from some motorists specifically,
motorists who were involved in accidents resulting in
death or serious physical injury, and motorists who
were unconscious or otherwise incapable of manifesting
a refusal to take the breath test authorized by AS
28.35.031.
In conjunction with this new statute, the
legislature amended the first sentence of AS
28.35.033(d) to include a new reference to blood
testing: To be considered valid under the provisions
of this section[,] the chemical analysis of the persons
breath or blood [must] have been performed according to
the methods approved by the Department of Health and
Social Services.17 But, based on the fact that the
legislature added this reference to blood testing only
when the legislature authorized the police to take
blood samples from some motorists, it appears that the
legislature was continuing its earlier policy that the
Departments testing regulations would apply only to
chemical tests conducted by the government the breath
tests conducted under the authority of AS 28.35.031,
and the blood tests conducted under the authority of
AS 28.35.035.
Again, this interpretation is borne out by
the regulations adopted by the Department. After the
legislature made these statutory changes in the 1982
legislative session, the Department of Health and
Social Services promulgated three new regulations 7
AAC 30.100, 110, and 190 to govern the newly
authorized blood tests.18
7 AAC 30.100 was the regulation that
specified the procedures for collecting and handling
blood samples. This regulation later became 13 AAC
63.110, after the authority for prescribing the
procedures for chemical testing was transferred to the
Department of Public Safety in 1987.19
As originally promulgated in 1982, 7 AAC
30.100 began with the words, The following procedures
must be followed to collect and retain blood samples
for blood alcohol analysis.20 To the extent that this
wording might be interpreted to cover all blood
testing, it potentially supports Mobergs position that
the Departments regulation was intended to govern not
only blood testing conducted by the police but also
blood testing conducted by hospitals and clinics for
medical purposes.
But the Department apparently realized that
this wording was misleadingly broad because two and a
half years later, in May 1985, the Department amended
the opening language of 7 AAC 30.100 to read: The
following procedures must be followed to collect and
retain blood samples collected under AS 28.35.035.21
This amended wording clarified the regulations intent:
it did not apply to the independent blood tests
obtained by defendants under AS 28.35.033(e), nor did
it apply to blood tests conducted by hospitals and
clinics for medical purposes. Rather, the regulations
scope was clearly confined to the blood samples
collected by the police under the authority of
AS 28.35.035.
In 1987, the governor transferred the
responsibility for these matters from the Department
of Health and Social Services to the Department of
Public Safety. As a result, the Department of Public
Safety took the Department of Health and Social
Services regulations (7 AAC 30.005 et seq.) and
repromulgated these regulations as 13 AAC 63.010 et
seq.22
When the Department of Public Safety
repromulgated 7 AAC 30.100 as the new 13 AAC 63.110,
the Department changed the introductory language once
more. The regulation now reads: The following
procedures must be followed to collect and retain a
blood sample collected under AS 28.35.033 or
28.35.035.23 As explained above, this language
ostensibly means that the regulation now covers (1)
blood tests conducted by the police under the authority
of AS 28.35.035 and (2) independent blood tests
obtained by defendants under the authority of AS
28.35.033.
One might debate whether this change of
wording (i.e., the Departments decision to include the
independent blood tests authorized by AS 28.35.033(e))
is consistent with the legislative intent underlying
the authorizing statute, AS 28.35.033(d). But that
issue is irrelevant to the decision of Mobergs appeal.
Mobergs case involves neither a government blood test
conducted under AS 28.35.035 nor an independent blood
test authorized by AS 28.35.033(e). Rather, Mobergs
case involves a blood test conducted by a hospital for
medical purposes. Thus, 13 AAC 63.110 does not apply.
For these reasons, we agree with the district
court that the result of the blood test conducted by
the Alaska Native Medical Center was admissible against
Moberg, even assuming (for purposes of argument) that
the hospital did not comply with all of the provisions
of 13 AAC 63.110.
We disavow any suggestion to the contrary in
Macauly v. State, 734 P.2d 1020, 1025-26 (Alaska App.
1987).
This is not to say that, at trial, Moberg was
barred from attacking the accuracy or trustworthiness
of the hospitals blood test result by showing that the
hospitals procedures for collecting and ensuring the
integrity of the blood sample failed to comply with the
practices codified in 13 AAC 63.110.
To the extent that the requirements of this
regulation overlap with, or are pertinent to, the
foundational requirements specified in Alaska Evidence
Rule 901, a defendant could argue that a hospitals
failure to comply with these procedures renders the
evidence of a blood test result inadmissible under
Evidence Rule 901 or Evidence Rule 403. Moreover, even
when a blood test result is admissible under Rule 901
and Rule 403, the defendant is still free to argue to
the jury that a hospitals failure to comply with the
procedures listed in 13 AAC 63.110 might constitute a
reason for doubting the trustworthiness of the blood
test result. That is, the defendant could urge the
jury to give little weight to the blood test result,
even though the result is admissible.
But, as we explained above, when Moberg
litigated this issue in the district court, he never
claimed that the hospitals blood collection and testing
procedures cast any doubt on the accuracy of his test
result. Mobergs sole claim was that 13 AAC 63.110
obliged the hospital to retain a sample of his blood
until after he was charged and that, because the
hospital failed to comply with this purported duty, the
blood test result was inadmissible. This was not a
valid objection to the admission of the blood test
result.
Mobergs attacks on the search warrant authorizing the
police to seize the hospital records containing
evidence of Mobergs blood alcohol level
As we explained earlier in this opinion, the
Municipality obtained its evidence of Mobergs blood
alcohol level when the district court issued a search
warrant for Mobergs medical records at the Alaska
Native Medical Center. Moberg contends that this
search warrant should not have been issued; he argues
that the affidavit in support of the search warrant
application fails to establish probable cause to
believe that he had committed the crime of driving
under the influence.
The search warrant affidavit reads as
follows:
On 8-6-03 at about 19[:]39 Lawrence
Moberg was involved in a motor vehicle
collision at Tudor and Checkmate. Moberg was
on a motorcycle and ran into the back of a
vehicle backed up in traffic. Moberg
sustained a head injury and a broken left leg
and was transported to ANMC by medics. On
contact at ANMC he smelled strongly of
alcohol, had blood shot watery eyes, and
admitted to consuming alcohol, although he
would not tell me how much he had to drink,
or where he had been drinking. Hospital
staff advised that Mobergs blood had been
drawn, and they would be testing it for the
presence of alcohol. Moberg has three prior
convictions for DUI[:] 1-94[,] 5-93[, and] 4-
93.
Moberg first argues that the search
warrant affidavit could not properly include
the information that the hospital had drawn a
sample of Mobergs blood for testing. Moberg
contends that this information i.e., the
fact that a sample of Mobergs blood had been
drawn, and the fact that the hospital planned
to test this blood sample for alcohol content
was a part of his private medical records, a
component of his medical treatment, and thus
the hospital staff had no right to disclose
this information to the police.
When Moberg raised this medical
privacy argument in the district court, Judge
Henry concluded that Mobergs right of medical
privacy did not include the mere fact that
his blood had been drawn, or that the
hospital planned to test the blood sample in
the future.
In Mobergs brief to this Court, he
asserts that Judge Henry was wrong about
this, but Moberg fails to provide any
authority on this point, with the exception
of Whalen v. Roe,24 a case dealing with the
constitutionality of a statute that required
health care providers to reveal the
identities of people who were given
prescriptions for certain types of controlled
substances.
In the absence of meaningful
briefing on this point, we confine ourselves
to noting two things. First, under Alaska
law, the physician-patient privilege does not
apply to criminal proceedings. See Alaska
Evidence Rule 504(d)(7). Second, as this
Court noted in Moudy v. Superior Court, 964
P.2d 469 (Alaska App. 1998), even the broader
attorney-client privilege normally does not
protect the incidents of representation a
class of information that includes the
clients name, the amount and payment of a
fee, and the fact that an attorney-client
consultation occurred.25
Whatever might be said in favor of
Mobergs position (i.e., the argument that the
hospital staff were forbidden from even
revealing that they planned to test Mobergs
blood), Moberg has failed to adequately brief
this point. The argument is therefore
waived.26
Moberg next argues that, even
taking the search warrant affidavit as a
whole (that is, with the inclusion of the
information that the hospital planned to test
Mobergs blood), the affidavit still fails to
establish probable cause to believe that
Moberg had committed the crime of driving
under the influence.
There is no merit to this argument.
The affidavit asserts that Moberg was on a
motorcycle and ran into the back of a vehicle
backed up in traffic; that Moberg sustained
injuries and was transported to the hospital;
and that [o]n contact at [the hospital], he
smelled strongly of alcohol, had blood shot
watery eyes, and admitted to consuming
alcohol.
Moberg argues that the affidavit
does not expressly assert that Moberg was
driving the motorcycle (as opposed to riding
as a passenger). But we are to interpret
search warrant affidavits in a commonsense
and realistic fashion.27 Here, the affidavit
asserts that Moberg ... ran into the back of
[another] vehicle. The clear inference is
that Moberg was directing the motion of the
motorcycle.
Moberg also faults the affidavit
for failing to explicitly identify the amount
of time between the motor vehicle accident
and the hospitals act of drawing Mobergs
blood for testing, or the officers later
interview with Moberg at the hospital. But
[a] magistrate and [a] reviewing court can
draw reasonable inferences about the recency
of the alleged crime from the evidence
supporting the warrant request.28
Moreover, if we draw the common-
sense inference that Moberg consumed no
further alcoholic beverages after he was
transported to the hospital, it does not
matter (for the limited purpose of assessing
probable cause) how much time elapsed between
the accident and the blood sampling or the
officers later interview with Moberg at the
hospital. In fact, one might argue that the
longer the interval, the more incriminating
the information that Moberg still smelled
strongly of alcoholic beverages and had
bloodshot, watery eyes.
Mobergs final argument is that the
search warrant affidavit fails to explain how
the officer obtained the information that
Moberg had been riding a motorcycle and that
Moberg had driven into the rear of another
vehicle that had slowed or stopped for backed-
up traffic.
Judge Henry concluded that it was
obvious, from the affidavit, that the officer
must have obtained his information either
from witnesses on the scene or from another
police officer who had interviewed witnesses
on the scene. We agree.
The Alaska Supreme Court addressed
a similar challenge to a search warrant in
State v. Davenport, 510 P.2d 78 (Alaska
1973). The defendant in Davenport was
charged with receiving and concealing stolen
property after the police obtained a warrant
to search his residence, based on the prior
discovery (inside the residence) of a handgun
that had been stolen during a burglary of
Howards Gun Shop in Anchorage.29 Davenport
contended that the affidavit in support of
the search warrant was insufficient because
(1) the officer who applied for the warrant
had relied on hearsay when he asserted that
Howards Gun Shop had been burglarized, and
that the stolen handgun had been found inside
Davenports residence, and because (2) the
officers affidavit did not specify the
sources of this hearsay, nor attempt to
establish the trustworthiness of these
sources.30
In footnote 8 of its opinion, the
supreme court summarily rejected this attack
on the search warrant affidavit:
We simply note Davenports argument that
[the officers] failure to name the source of
his information a) that Howards Gun Shop had
been burglarized, and b) that a gun had been
discovered at Davenports residence following
his arrest invalidates the warrant. We do
not agree. It is not necessary that every
assertion of fact [in a search warrant
affidavit] be traced to its ultimate source.
The Fourth Amendments requirements are
practical and not abstract, and affidavits
must be tested and interpreted by magistrates
and courts in a commonsense and realistic
fashion. ... Technical requirements of
elaborate specificity ... have no proper
place in this area. United States v.
Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741,
746, 13 L.Ed.2d 684 (1965).
Davenport, 510 P.2d at 82 n. 8.
As was true in Davenport, a common-
sense reading of the affidavit in Mobergs
case leads to the conclusion that the
officers information about the occurrence of
the accident (his assertions that Moberg had
been riding a motorcycle, and that Moberg had
driven into the rear of another vehicle that
had slowed or stopped for backed-up traffic)
must have come from sources whose
trustworthiness is presumed: on-the-scene
witnesses, and/or other police officers.31
Because the officers affidavit,
interpreted in a realistic and common-sense
fashion, shows that the challenged
information was obtained in a way that
satisfies the Aguilar-Spinelli test,32 we
uphold Judge Henrys denial of Mobergs
suppression motion.
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1Anchorage Municipal Code 09.28.020.
2State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991); York
v. State, 757 P.2d 68, 70 (Alaska App. 1988).
3Catlett v. State, 585 P.2d 553, 557-58 (Alaska 1978);
Torres v. State, 519 P.2d 788, 795-97 (Alaska 1974).
4See Anchorage v. Serrano, 649 P.2d 256, 258 n. 5 (Alaska
App. 1982).
5St. John, 715 P.2d at 1211. See also Russell v. Anchorage,
706 P.2d 687, 693 (Alaska App. 1985) (holding that a
defendants right to an independent blood alcohol test means
the right to a test that is not subject to [government]
manipulation).
6St. John, 715 P.2d at 1212.
7Id.
8AS 28.35.033(a)(3); AMC 09.28.023(A)(3).
9AS 28.35.033(a)(1); AMC 09.28.023(A)(1).
10AS 28.35.033(a)(2); AMC 09.28.023(A)(2).
11AS 28.35.033(d); AMC 09.28.023(E).
12See SLA 1969, ch. 83, 1.
13See SLA 1971, ch. 104, 6.
14See Executive Order No. 67, 1-2 (1987).
157 AAC 30.010, 020, 030, 040, 050, 060, 070, and 080 were
promulgated by the Department in Alaska Administrate Code
Register 32, effective February 20, 1970. 7 AAC 30.035,
045, and 055 were promulgated by the Department in Register
85, effective February 2, 1983. The last additions to this
series of regulations, 7 AAC 30.005, 047, and 049, were
promulgated in Register 93, effective December 19, 1984.
16See SLA 1982, ch. 117, 21.
17See SLA 1982, ch. 117, 20 (emphasis added).
18These regulations were promulgated by the Department in
AAC Register 84 (January 1983), effective September 22,
1982. (For reasons that are not explained, these
regulations were first published in AAC Register 85 (April
1983).)
19See AAC Register 112, Part 2, (January 1990).
20See AAC Register 84 (January 1983), first published in AAC
Register 85 (April 1983).
21See AAC Register 94 (July 1985), effective May 16, 1985
(emphasis added).
22See AAC Register 112, Part 2 (January 1990).
23See AAC Register 110 (January 1990), effective April 29,
1989 (emphasis added).
24429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977).
25Moudy, 964 P.2d at 471, citing Stephen A. Saltzburg,
Michael M. Martin, and Daniel J. Capra, Federal Rules
of Evidence Manual (7th ed.1998), Vol. 2, pp. 711-12.
26See Katmailand, Inc. v. Lake and Peninsula Borough, 904
P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual
Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska
1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska
1978); Kristich v. State, 550 P.2d 796, 804 (Alaska
1976).
27State v. Davenport, 510 P.2d 78, 82 n. 8 (Alaska 1973),
quoting United States v. Ventresca, 380 U.S. 102, 108;
85 S.Ct. 741, 746; 13 L.Ed.2d 684 (1965).
28Williams v. State, 737 P.2d 360, 362 (Alaska App. 1987).
29Davenport, 510 P.2d at 80.
30Id. at 82 & n. 8.
31See Landon v. State, 941 P.2d 186, 190 (Alaska App. 1997);
Stam v. State, 925 P.2d 668, 670 (Alaska App. 1996)
(when assessing the trustworthiness of hearsay
information contained in a search warrant application,
courts presume that police officers and citizen
informants are credible sources of information).
32Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d
723 (1964); Spinelli v. United States, 393 U.S. 410, 89
S.Ct. 584, 21 L.Ed.2d 637 (1969). See State v. Jones,
706 P.2d 317, 322-25 (Alaska 1985) (holding that, as a
matter of state law, the Aguilar-Spinelli test
continues to govern the evaluation of hearsay
information offered to support a search or seizure).
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