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Moberg v. Municipality of Anchorage (1/26/2007) ap-2082

Moberg v. Municipality of Anchorage (1/26/2007) ap-2082

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         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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