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State v. Evans (9/2/2016) ap-2515

State v. Evans (9/2/2016) ap-2515

                                                            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
  

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                   IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                             Court of Appeals No. A-11865  

                                         Petitioner,                        Trial Court No. 2NO-13-590 CR  



                               v.  

                                                                                          O P I N I O N  

DAVID EVANS,  



                                         Respondent.                         No. 2515 - September 2, 2016  



                    Petition for Review from the District Court, Second Judicial  

                    District, Nome, Brooke Alowa, Magistrate Judge.  



                    Appearances:    Kenneth  M.  Rosenstein,  Assistant  Attorney  

                     General, Office of Criminal Appeals, Anchorage, and Michael  

                                                         

                     C.  Geraghty,  Attorney  General,  Juneau,  for  the  Petitioner.  

                    Myron  Angstman,  Angstman  Law  Office,  Bethel,  for  the  

                    Respondent.  



                    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                               

                     Superior Court Judge. *  

                                                        



                     Judge ALLARD.  



                    David Evans was arrested for driving under the influence.                                    When Evans   



refused to take a breath test, the police obtained a search warrant to draw a sample of his                                      



     *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

blood.    A test of that sample showed that Evans had a blood-alcohol level of .094                                                          

percent, which is over the legal limit of .08.                             1  



                                                                                                                                                

                       Evans was subsequently charged with both driving under the influence and  



                                                                                                                                        

refusal to submit to a breath test.  He first moved to dismiss the refusal charge, arguing  



                                                                                                                                         

that he could not be subject to the penalties for breath-test refusal under Alaska's implied  



                                                                                                                                                

consent statutory scheme when the police had obtained the same evidence through the  



                                                                                                                                            

warrant process and were pursuing a prosecution for driving under the influence based  



                                                                                   

on that evidence.  The district court denied this motion.  



                                                                                                                                               

                       Evans then moved to suppress the results of the blood test, arguing that  



                                                                                                                          

Alaska law did not authorize the courts to issue search warrants for non-consensual  



                                                                                                                                 

blood draws in cases where only alcohol was suspected and the defendant had already  



                                                                                                                                               

refused to submit to a breath test.   The district court agreed with this argument and  



                                                                                                                              

suppressed the results of the blood test.  The State petitioned for review.  



                                                                                                                                                  

                       This petition requires us to construe the legislature's 2001 amendment to  



                                                                                                                                     

Alaska Statute 28.35.031, Alaska's implied consent statute.  For the reasons explained  



                                                                                                                                             

in this opinion, we conclude that the statute, as amended, authorizes courts to issue  



                                                                                                                                         

search warrants in these circumstances.  Accordingly, we reverse the district court's  



                                                                                                                                                

ruling suppressing the evidence of Evans's blood test result and remand this case for  



                                                                      

further proceedings consistent with this decision.  



                                                                                                                                                       

                       We emphasize that our holding is limited to the issues directly before us.  



                                                                                                                                         

Evans has not cross-petitioned us to review the trial court's earlier ruling on his motion  



      1    AS 28.35.030(a)(2).  



                                                                      - 2 -                                                                2515
  


----------------------- Page 3-----------------------

to dismiss the refusal charge.  We therefore express no opinion as to the merits of that                       

decision.2  



           Why we conclude that Alaska law does not prohibit courts from issuing  

                                                                                                               

          warrants for chemical tests of a person's blood even in cases where the  

                                                                                                                     

          person has refused to submit to a breath test and could potentially be  

                                                                                                                      

          prosecuted for the separate crime of breath-test refusal  

                                                                                    



                    In Alaska, a motorist lawfully arrested for driving under the influence must  

                                                                                                                             



submit to a requested breath test upon receiving the proper legal advisements or face  

                                                                                                                         

prosecution for refusal to submit to a chemical test.3  

                                                                                                                        

                                                                               The question presented in Evans's  



                                                                                                                             

case is whether, in the event a motorist refuses to take a breath test, the police may  



                                                                                                                            

nevertheless obtain a search warrant to compel the motorist to submit to some other  



                                                                                                                          

chemical test (generally ablood test) for the purpose of establishing the motorist's blood- 



             

alcohol level.  



                                                                                                                                     

                    The  Alaska  Statutes  do  not  directly  answer  this  question.                                    Under  



                                                                                                                               

AS 28.35.031(a), any person who drives a motor vehicle and is lawfully arrested for  



                                                                                                                               

driving under the influence "shall be considered to have given consent to a chemical test  



                                                                                                                               

or tests of the person's breath for the purpose of determining the alcoholic content of the  



                                                                                                                           

person's blood or breath."  If a motorist refuses to submit to this breath test after being  



                                                                                                                                

advised of the legal consequences of that refusal, AS 28.35.032(a) provides that "a  



                                                                                                                   

chemical test  may not be given, except as provided by AS 28.35.035."   (Emphasis  



     2    Cf. AS 28.35.035(c) (permitting the police to administer a non-consensual chemical  



test to a person lawfully arrested for DUI who is involved in an injury accident and who  

                                                                                                          

refuses to submit to a breath test but also providing that if the non-consensual chemical test  

                                                                                     

is administered "that person is not subject to the penalties for refusal to submit to a chemical  

                                                                                                                       

test provided by AS 28.35.032").  



     3    AS 28.35.031; AS 28.35.032.  



                                                              -  3 -                                                       2515
  


----------------------- Page 4-----------------------

added.)   Alaska Statute 28.35.035 provides two circumstances in which the police may                                                                       



administer a chemical test of breath or blood without the motorist's consent:                                                                     (1) if the   



motorist was involved in an accident that caused death or physical injury; or (2) if the                                                                      

motorist is unconscious or otherwise incapable of refusal.                                                   4  



                                                                                      5  

                                                                                                                                                               

                                                                                        the Alaska Supreme Court construed the  

                         In 1979, in Anchorage v. Geber , 



                                                                                                                                                                

language of AS 28.35.032(a) - "a chemical test may not be given" - to apply to all  



                                                                                                                                                                

chemical tests of both breath and blood.   Thus, the Court interpreted the statute to  



                                                                                                                                                          

prohibit the police from administering any chemical test of the person's breath or blood  



                                                        6  

                                                                                                                                                                 

without their express consent.                             The supreme court reasoned that, by elevating refusal to  



                                                                                                                                                      

a separate crime and enacting a comprehensive statutory scheme for the state's implied  



                                                                                                                                               

consent law, the Alaska legislature had made the breath test the "exclusive method for  



                                                                                                                                                      

obtaining direct evidence of a suspect's blood alcohol content, absent his or her express  



                                                                                              7  

                                                                              

consent to the use of some other form of testing." 



                                                                                                8  

                                                                                                                                                              

                                                                                                  the Alaska Supreme Court held that  

                         Fiveyears later, in Pena v. Anchorage, 



                                                                                                                                      

this limitation in AS 28.35.032(a) extended even to police-initiated non-consensual  



                                                                                                 9  

                                                                                   

blood draws performed pursuant to a search warrant.                                                                                                 

                                                                                                    The supreme court again reasoned  



                                                                                                                                                              

that the implied consent statutory consent scheme was intended to be comprehensive and  



                                                                                                                                                

the State was permitted to charge a person lawfully arrested for DUI with breath-test  



      4      AS 28.35.035(a), (b).  



      5      592 P.2d 1187 (Alaska 1979).  



      6     Id. at 1191.  



      7     Id. at 1192.  



      8      684 P.2d 864 (Alaska 1984).  



      9     Id. at 867.  



                                                                             - 4 -                                                                       2515
  


----------------------- Page 5-----------------------

refusal if the person refused to submit to a requested breath test but the State was not                                                          

permitted to seek a search warrant to obtain the same evidence through other means.                                                                10  



                                                                                                                                              

                       Thus, under Geber and Pena, if a person lawfully arrested for driving under  



                                                                                                                                                

the influence refused to submit to a breath test, the State was entitled to charge that  



                                                                                                                                           

person with the crime of breath-test refusal and could use evidence of the refusal against  



                                                                                                                                                         

the person in the prosecution for the underlying offense of driving under the influence;  



                                                                                                                            

but the State was not entitled to compel the person to comply with a non-consensual  



                                                                                                                     

chemical test of their breath or blood - even through the warrant process.  



                                                                                                                                    

                       Justice Compton dissented fromthe holding in Pena. In JusticeCompton's  



                                                                                                                                                  

view, the implied consent statutory scheme addressed only chemical tests given "at the  



                                                                                                                                                     

direction of a law enforcement officer," not tests compelled by court order through a  



                                               11  

                                                                                                                                                  

                                                   Justice Compton observed that there was "nothing in the  

lawfully obtained warrant. 



                                                                                                                                                   

statutes to indicate that the legislature contemplated restricting searches pursuant to  



                                                                                                                                                    

warrant, which derive from the judicial authority of the court, rather than the power of  



                                                                                                12  

                                                                                   

an officer to search an individual at the time of arrest." 



                                                                                                                                                    

                       Six years after Pena, in 2000, the Alaska Supreme Court decided Sosa v.  



          13  

State.                                                                                                                                              

               Sosa involved a defendant who was arrested for driving under the influence in  



                                                                                                                                                

a remote location.   When the police realized that the local breath-test machine was  



                                                                                                                                                   

malfunctioning, they applied for, and obtained, a search warrant to seize a sample of  



                                                                                                                        

Sosa's blood for chemical testing.  Sosa resisted the efforts to draw his blood and was  



      10   Id.  



      11   Id. at 868 (Compton, J., dissenting).  



      12   Id.  



      13    4 P.3d 951 (Alaska 2000).  



                                                                       -  5 -                                                                2515
  


----------------------- Page 6-----------------------

later charged with, and convicted of, tampering with physical evidence based on that                                                           



                   14  

resistance.             



                                                                                                                                            

                       The Alaska Supreme Court reversed the tampering conviction in Sosa,  



                                                                                                                                             

applying the same reasoning it relied on in Geber and Pena and concluding that Sosa  



                                                                                                                                                  

could not be compelled to undergo a non-consensual test of his blood, even pursuant to  



                                                                                                                                      

a warrant, because a malfunctioning breath-test machine did not fit into the statutory  



                                                                                                  15  

                                                                                                                                                 

 exceptions  created  by  the  legislature  in  AS  28.35.035.                                          The  State  argued  that  an  



                                                                                                                                       

 exception should be made for circumstances in which no operable breath-test machine  



                                                                                                                                                 

 existed and there was therefore no other means to obtain the necessary evidence and no  



                                                                                                                                     

possible penalties for breath-test refusal.   But the supreme court declined to recognize  



                                 16  

               

 such an exception. 



                                                                                                                                                 

                       A year after Sosa was decided, the 2001 Alaska legislature declared its  



                                                                                                                                                 

disagreement with the Alaska Supreme Court's Geber-Pena-Sosa line of precedent by  



                                                                     17  

                                                                                                                                               

                                                                          That subsection provides:  "Nothing in this  

adding subsection (h) to AS 28.35.031. 



                                                                                                                                                   

 section shall be construed to restrict searches or seizures under a warrant issued by a  



                                                                                                                 18  

                                                                                                  

judicial officer, in addition to a test permitted under this section."                                               



                                                                                                                                      

                       When we interpret the intended scope and meaning of a statutory provision  



                                                                                                                                      19  

                                                                                                                                           

under Alaska law, we apply a sliding-scale approach to statutory interpretation.                                                          Under  



                                                                                                                                         

this approach, the plain language of a statute is significant but does not always control  



      14    Id. at 952.  



      15    Id. at 953-54.  



      16    Id. at 953-54.  



      17    Ch. 63,  12, SLA 2001.  



      18    AS 28.35.031(h).  



      19    Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).  



                                                                       -  6 -                                                              2515
  


----------------------- Page 7-----------------------

its  interpretation   because   "legislative   history   can   sometimes   alter   a   statute's   literal  



           20  

terms."                                                                                                                      

                 As  a  general  matter,  "the  plainer  the  language  of  the  statute,  the  more  



                                                                           21  

                                                                      

convincing contrary legislative history must be." 



                                                                                                                     

                    Here, the plain language of subsection (h) indicates that the legislature  



                                                                                                                                 

intended to remove all of the limitations placed by the Alaska Supreme Court on the  



                                                                                                                        

government's ability to use the search warrant process to investigate and obtain evidence  



                                 

of driving under the influence.  



                                                                                                                                

                     The legislative history of subsection (h) supports this interpretation.  The  



                                                                                                                                 

sponsor statement expressly states that the intent of the amendment is to repudiate the  



                                                                                                                    

reasoning in Pena  and Sosa  and to adopt the view expressed in Justice Compton's  



                                                                                                                          

dissent in Pena - that is, to adopt the view that the implied consent statutory scheme  



                                                                                                                            

limits the authority of the police to obtain a warrantless chemical test incident to a lawful  



                                                                                                                                    

arrest for DUI, but it was not intended to restrict the authority of the courts to issue a  



                                                                                                                        

warrant to compel blood or other chemical evidence upon a proper showing of probable  



          22  

cause. 



                                                                                                                             

                     This  point  was  also  made  during  a  discussion  of  the  proposed  2001  



                                                                       23  

                                                                                                                              

amendment in the House Judiciary Committee.                               Chief Assistant Attorney General Dean  



                                                                                                                                 

Guaneli of the Department of Law told lawmakers that the courts had construed the  



                                                                                                                                

implied consent statutes to preclude the police from administering any chemical test  



     20   Id. (quoting Bartley v. State Dep't of Admin., Teacher's Ret. Bd., 110 P.3d 1254, 1258   



(Alaska 2005)).  



     21    Id. (quoting Bartley, 110 P.3d at 1258).  



     22   Supplemental Sponsor Statement of Rep. Norman Rokeberg for C.S.H.B. 4, 22d Leg.,  

                                                                

1st Sess. (Feb. 16, 2001) (quoting Pena, 684 P.2d at 868 (Compton, J., dissenting)).  



     23  

                                                                                                                        

          Minutes of House Judiciary Committee, House Bill 4, testimony of Chief Assistant  

Attorney General Dean Guaneli, log no. 1623 (Apr. 3, 2001).  



                                                               -  7 -                                                        2515
  


----------------------- Page 8-----------------------

                                                                                                                                 24  

other than a breath test "even pursuant to a warrant."                                                                                Guaneli stated that subsection (h)                                          



"simply tells the court that it cannot construe the statute in this fashion because it is not                                                                                                                    

what is intended by the legislature."                                                     25  



                                                                                                                                                                                                               

                                  Evans argues that the legislature's intent to overrule Pena and Sosa was  



                                                                                                                                                                                                          

more limited.  He claims that the legislature enacted subsection (h) to permit the police  



                                                                                                                                                                                                                    

to obtain warrants for blood draws only in cases where a breath test is unavailable or  



                                                                                                                                                                                                  

otherwise inadequate -for example, when no operable breath-test machine is available,  



                                                                                                                                                                                               

or when there is reason to believe the defendant is under the influence of controlled  



                                                                                                                                                                                                             

substances. Evans further contends that the legislature never intended the courts to issue  



                                                                                                                                                                                               

search warrants for blood draws in "routine" DUI cases like his, where no controlled  



                                                                                                                                                                                                                      

substances are suspected and where his refusal to submit to the breath test resulted in a  



                                                                                                                           

criminal prosecution for the crime of breath-test refusal.  



                                                                                                                                                                                               

                                  In support of this position, Evans points to various legislative committee  



                                                                                                                                                                                                  

hearings in which proponents of the bill explained that it was needed to fix the problems  



                                                                                                                                                                                                                      

created by broken breath-test machines or other situations where the breath test or a  



                                                                                                                           26  

                                                                                               

charge of breath-test refusal would be inadequate.                                                                                                                                                         

                                                                                                                                 Evans also points to concerns raised  



        24      Id.  



        25      Id.  



        26       See, e.g., Minutes of House Judiciary Committee, House Bill 4, testimony of Chief                                                                                                          



Assistant Attorney General Dean Guaneli, log no. 0424 (Mar. 29, 2001) (explaining that one   

motivation for AS 28.35.031(h) was the belief that "when law enforcement officers face the   

difficult situation of being unable to collect evidence                                                                       due to a lack of functioning equipment,  

they should have the latitude to get search warrants" (emphasis added)); Minutes of House   

Judiciary Committee, House Bill 4, testimony of Chief Assistant Attorney General Dean                                                                                                   

Guaneli,  log  no.  0703  (Mar.  29,  2001)  (explaining  the  police  need  search  warrants  in  

"situations in which the [breath-test] machines break down").  



                                                                                                       -  8 -                                                                                              2515
  


----------------------- Page 9-----------------------

by legislators that non-consensual blood draws would become routine in every driving                                                                   

under the influence case.                      27  



                                                                                                                                                              

                         We acknowledge that many of the committee hearings focused on the rare  



                                                                                                                                               

circumstances where search warrants were needed because a breath test was unavailable  



                                                                            

or otherwise inadequate.  But a review of the committee hearings as a whole confirms  



that the legislature understood that subsection (h) was intended to return full authority  



                                                                                                                                                               

to the court to issue search warrants in DUI investigations, as appropriate under the  



                                                                                                                                         

circumstances, and unencumbered by any limitations otherwise caused by the implied  



                                                 28  

                                  

consent statutory scheme. 



      27     See, e.g., Minutes of House Judiciary Committee, House Bill 4, statements of Rep.                                                               



Ethan Berkowitz, log nos. 0424, 0996, 1696 (Mar. 29, 2001).  



      28  

                                                                                    

              See, e.g., Minutes of House Judiciary Committee, House Bill 4, testimony of Chief  

                                                                                                         

Assistant Attorney General Dean Guaneli, log no. 0703 (Mar. 29, 2001) (explaining that  

under AS 28.35.031(h), judges would consider "whether there is probable cause to believe  

                                                                                                                

that a crime has been committed and that there is evidence of that crime that exits such that  

                                                                                                                                           

the state should be allowed to seize that evidence" and that the factors that would bear on  

                 

whether a warrant should issue are "one, are there sufficient grounds to believe that an  

individual was driving drunk; two, is there evidence to be obtained; and three, are there other  

                                                                                                                    

ways  to  obtain  that  evidence");  Minutes  of  House  Judiciary  Committee,  House  Bill  4,  

                                                                       

testimony of Chief Assistant Attorney General Dean Guaneli, log no. 0424 (Mar. 29, 2001)  

                                                                                                                                                                  

("[F]or 200 years, search warrants have been the traditional means used in this country to  

                                                                                                                             

gather evidence.  [AS 28.35.031(h)] requires that an application be presented to the judge  

                  

whereby he/she then determines whether a search can occur, and under what conditions ...  

                                                   

[AS  28.35.031(h)]  simply  allows  officers  to  use  the  traditional  method  for  gathering  

                                                                                                                                                        

evidence."); Minutes of House Judiciary Committee, House Bill 4, testimony of Deputy  

                                                                                                                                                          

Director  of  the  Public  Defender  Agency Blair  McCune,  log  no.  0255  (Mar.  29,  2001)  

(opposing AS 28.35.031(h) because it amounted to a rejection of "what the legislature had  

                                                                           

said a number of years ago, that the way to punish people who refuse to take a breathalyzer  

test is via the refusal statute," not by authorizing search warrants for their blood); Minutes  

                                                                                                                                           

of House Judiciary Committee, House Bill 4, statement of Rep. Jeannette  James, log no.  

                                                                                                                                        

 1623  (Apr.  3,  2001)  (noting  that  under  AS  28.35.031(h),  judges  would  have  discretion  

whether or not to issue a warrant in each case).  



                                                                              -  9 -                                                                      2515
  


----------------------- Page 10-----------------------

                              The other parts of the legislative history also make this legislative intent                                                                         



clear.  As already noted, the sponsor statement expressly states that the purpose of the                                                                                                 



amendment was to eliminate the restrictions on search warrants imposed by the Alaska                                                                                             



Supreme   Court's  decision   in   Pena   and   to   "adopt ...                                                           the view expressed                            by   Justice  



Compton in his dissenting opinion in                                             Pena v. State              " -specifically, the viewthat "[t]here                             



simply   is   nothing   in   the   [implied   consent   and   refusal]   statutes   to   indicate   that   the  



                                                                                                                                                         29  

legislature   contemplated   restricting   searches   pursuant   to   warrant."                                                                                            

                                                                                                                                                                 The  sectional  



                                                                                     30  

                                                                   

analysis further confirms this purpose. 



                                                                                                                                                                                           

                              Evans argues that if the legislature actually intended AS 28.35.031(h) to be  



                                                                                                                                                                                        

read this broadly, the legislature would have done more than just enact subsection (h),  



                                                                                                                                                                                          

it would have also amended or altered the statutory language in the refusal statute -  



                                                                                                                                                                           

which still provides that if a person lawfully arrested for driving under the influence  



                                                                                                                                                 

refuses to submit to a breath test, after being advised of the legal consequences of that  



                                                                                                                                                                                       

refusal, "a chemical test may not be given except as provided by AS 28.35.035" (the  



                                                                                                                               31  

                                                                                                          

exceptions for injury accident and unconscious motorist). 



                                                                                                                                                                                           

                              The State responds to this argument by claiming that the enactment of  



                                                                                                                                                                                         

subsection (h) "impliedly repealed" the "no chemical test may be given" language in the  



                 

refusal statute.  



       29       Supplemental Sponsor Statement of Rep. Norman Rokeberg for C.S.H.B. 4, 22d Leg.,      



 1st Sess. (Feb. 16, 2001) (quoting Pena, 684 P.2d at 868 (Compton, J., dissenting)).  



        30     Sectional analysis for C.S.H.B. 4, 22d Leg., 1st Sess. (Feb. 16, 2001) (stating that the  



provision that became subsection (h) "provid[es] that the implied consent statute was not  

                                                 

intended to prevent police search warrants").  



        31     AS 28.35.032(a) (emphasis added).                                               In his opening brief, Evans cites AS 28.35.- 



                                                                                                                                                                                    

031(c), which contains similar language. But that subsection governs onlypreliminarybreath  

tests. Consequently, we have addressed Evans's argument as if it were directed to AS 28.35.-                                        

032(a).  



                                                                                         -  10 -                                                                                   2515
  


----------------------- Page 11-----------------------

                                                                                                                                                                              32  

                             We disagree that the doctrine of implied repeal is appropriate here.                                                                                  "[I]t  



is an established principle of statutory construction that all sections of an act are to be                                                                                            



                                                                                                                                                                                         33  

construed together so that all have meaning and no section conflicts with another."                                                                                                            



                                                                                                                                                                   

Here, contrary to the State's argument, the two statutory provisions can be harmonized  



                                                                                    

with one another and are not in direct conflict.  



                                                                                                                                                                                

                             The retention of the language "a chemical test may not be given" in the  



                                                                                                                                                                              

refusal statute is consistent with the legislative intent to adopt the reasoning of Justice  



                                                                                                                                                                                     

Compton's dissent in Pena.   As already explained, Justice Compton did not see any  



                                                                                                                                                                     

conflict between the statutory limitations on law enforcement's power to administer  



                                                                                                                                                                                      

warrantless chemical tests pursuant to the implied consent statutory scheme and the  



                                                                                                                                                                                

general authority of the courts to issue search warrants for a person's breath or blood  



                                                                                            34  

                                                                               

upon a proper showing of probable cause. 



                                                                                                                                                                               

                             Our decision in Pena (which was reversed by the Alaska Supreme Court)  



similarly did not see any conflict between the statutory limitations to the police power  



                                                                                                                                                                                 

to administer chemical tests to persons who have refused to submit to a blood test under  



                                                                                                                                                                          

AS 28.35.032(a) and the court's separate authority to issue search warrants for evidence  



                                                                          35  

                                                                                                                                                                               

of  a  crime  under  AS  12.35.020.                                               As  Chief  Judge  Alex  Bryner  explained,  "Both  



                                                                                                                                                                                      

statutory provisions can be given full effect by reading AS 28.35.032(a) to restrict the  



                                                                                                                                                                            

use of chemical tests other than a breathalyzer only in situations where the implied  



       32      See Allen v. Alaska Oil & Gas Conservation Comm'n                                                                 , 147 P.3d 664, 668 (Alaska   



2006) (explaining doctrine of implied repeal under Alaska statutory construction principles).                                              



       33       Bullock v. State, Dep't of Cmty. & Reg'l Affairs, 19 P.3d 1209, 1215 (Alaska 2001)  

                                                                                         

(quoting In re Hutchison's Estate , 577 P.2d 1074, 1075 (Alaska 1978)).  



       34     Pena v. State, 684 P.2d 864, 868-69 (Alaska 1984) (Compton, J., dissenting).  



       35     Pena v. State, 664 P.2d 169, 175 (Alaska App. 1983), rev'd, 684 P.2d 864 (Alaska  

                                                                                                                                  

 1984).  



                                                                                        -  11 -                                                                                 2515
  


----------------------- Page 12-----------------------

consent statute is relied on as the exclusive source of authority for subjecting a person                                              



                                 36  

to alcohol testing."                                                                                                                            

                                      In other words, in situations where the police are relying on the  



                                                                                                                                         

implied consent statutory scheme as their authority for subjecting a person to alcohol  



                                                                                                                                         

testing, they are prohibited fromadministering non-consensual chemical tests to persons  



                                                                                                                                                 

who  have  refused  to  submit  to  a  breath  test  except  in  the  circumstances  listed  in  



                                                                                                                                           

AS 28.35.035.  But there are no such limitations to the court's authority to issue search  



                                                                                                                          

warrants for chemical tests for which probable cause otherwise exists.  



                                                                                                                                         

                       Our  harmonized  reading  of  these  two  statutory  provisions  is  further  



                                                                                                                                                

bolstered  by  the  legislative  discussion  surrounding  a  proposed  amendment  to  



                                                                                                                            

AS 28.35.035 as part of the legislation that added subsection (h) to AS 28.35.031.  



                                                                                                                                                   

                       As  explained  above,  AS  28.35.035  authorizes  the  police  to  compel  a  



                                                                                                                                                

chemical test without a motorist's express consent under two circumstances:  (1) if the  



                                                                                                                                       

motorist was involved in an accident that resulted in injury or death; or (2) if the motorist  



                                                                                                                                      

is unconscious or otherwise incapable of refusal. The sponsors of the 2001 bill proposed  



                                                                                                                                                  

expanding the statutory exceptions listed under AS 28.35.035 to allow the police to  



                                                                                                                                                  

compel a chemical test when "exigent circumstances" precluded the administration of  



                       37  

                                                                                                                                                

a  breath  test.             This  amendment  was  offered  as  an  alternative  way  to  address  the  



                                                                                                      38  

                                                                                                                                      

situation in Sosa, where the breath-test machine was broken.                                              Chief Assistant Attorney  



                                                                                                                                                

General  Dean  Guaneli  explained  to  the  House  Judiciary  Committee  that  such  an  



      36   Id.  



      37    C.S.H.B. 4,  45, 22d Leg., 1st Sess. (as introduced, Feb. 28, 2001).  



      38    Supplemental Sponsor Statement of Rep. Norman Rokeberg for C.S.H.B. 4, 22d Leg.,   



1st Sess. (Feb. 6, 2001).  



                                                                     -  12 -                                                               2515
  


----------------------- Page 13-----------------------

amendment to AS 28.35.035 "would allow, under exigent circumstances, for a blood                                                                    

sample to be taken without either the suspect's consent or a search warrant."                                                                39  



                                                                                                                                                         

                         Guaneli indicated, however, that the Department of Law considered this  



                                                                                                                                                           

proposed  amendment  to  be  less  important  than  the  addition  of  subsection  (h)  to  



                                                                                                                                               

AS28.35.031, which Guaneli characterized as"theimportantprovision,"in theproposed  



                                                                                                                                               

legislation.            Guaneli  also  commented  that  adding  a  general  exception  for  "exigent  



                                                                                                                                                       

circumstances" to AS 28.35.035 "is more risky, legally, because [the police] would need  



                                                                                            40  

                                                                          

to prove that the exigent circumstances exist[ed]." 



                                                                                                                                                   

                        Ultimately,  the  legislature  rejected  this  proposed  expansion  of  police  



                                                                                                                                            

authority to compel chemical tests under AS 28.35.035.  But the legislative discussion  



                                                                                                                                             

surrounding this proposedamendmentfurthersupportsour conclusion that thelegislature  



                                                                                                                                                  

understood the distinction between the court's general authority to issue a search warrant  



                                                                                                                                                           

for a chemical test of a person's breath or blood and the authority of the police to  



                                                                                                                                           

administer a warrantless chemical test as part of a search incident to a DUI arrest.  



                                                                                                                                           

                        We accordingly conclude that the district court erred when it interpreted  



                                                                                                                                                  

Alaska's implied consent law as restricting the court's authority to issue a search warrant  



                                                                                                                                                         

for a chemical test of a person's blood upon a proper showing of probable cause.  We  



                                                                                                                                            

therefore reverse the district court's order suppressing  the results of the blood  test  



      39    Minutes of House Judiciary Committee, House Bill 4, testimony of Chief Assistant                                                   



Attorney General Dean Guaneli, log no. 2201 (Mar. 29, 2001).  



      40    Id. ; see also Birchfield v. North Dakota, 136 S.Ct. 2160, 2174 (2016) (holding that the  



                                     

Fourth Amendment does not permit warrantless blood tests incident to arrests for drunk  

                                                                                                                                                           

driving and any exigent-circumstances exception to warrant requirement is determined on  

                                         

a  case-by-case  basis); Missouri  v.  McNeely ,  133  S.Ct.  1552,  1568  (2013)  (holding  that  

                                                                                                                                              

metabolization  of  alcohol  in  bloodstream  does  not  create  per  se  exigency  to  justify  

warrantless, non-consensual blood testing in all drunk-driving cases).  



                                                                          -  13 -                                                                   2515
  


----------------------- Page 14-----------------------

administered in Evans's case, and we remand this case to the district court for further                                                                         



                                                                                              

proceedings on the criminal complaint against Evans.  



              Conclusion  



                           The decision of the district court is REVERSED.  

                                                                                                   



                                                                                 -  14 -                                                                          2515
  

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