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Snyder v. State (12/27/96), 930 P 2d 1274
NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
DENNIS SNYDER, )
) Supreme Court No. S-6661
Petitioner, ) Court of Appeals No. A-4991
v. ) Superior Court No.
) 4FA-S93-745 Cr.
STATE OF ALASKA, )
) O P I N I O N
______________________________) [No. 4451 - December 27, 1996]
Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the
District Court of the State of Alaska, Fourth
Judicial District, Fairbanks, William R. Smith
and Mark I. Wood, Judges.
Appearances: Robert John, Law Office of
Robert John, Fairbanks, for Petitioner.
John A. Scukanec, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondent.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Carpeneti, Justice pro tem.
COMPTON, Chief Justice.
EASTAUGH, Justice, dissenting in part.
Dennis Snyder was arrested for driving while intoxicated
(DWI). The police attempted to test Snyder's breath, but he did
not blow hard enough into the Intoximeter machine to register a
result. Both before and after the aborted breath test, Snyder
requested a blood test of his alcohol level. The police refused
Snyder was convicted of DWI and Refusal to Submit to a
Breath Test (Refusal). He appealed; the court of appeals affirmed
his convictions. Snyder v. State, 879 P.2d 1025 (Alaska App.
1994). We granted Snyder's Petition for Hearing on the following
issues: (1) Whether the state violated Snyder's statutory right to
an independent chemical test; (2) Whether the state violated
Snyder's constitutional right to an independent chemical test; and
(3) Whether the trial court erred in refusing to instruct the jury
on the defense of subsequent consent. We reverse.
II. FACTS AND PROCEEDINGS
On the night of March 20, 1993, Alaska State Trooper Sgt.
Charles Lovejoy found Snyder in his car, which had slid into a snow
berm at an intersection. According to Lovejoy, Snyder did not
appear to have been injured in the mishap and did not complain of
pain. Lovejoy suspected that Snyder had been drinking and
therefore administered a number of field sobriety tests. He then
placed Snyder under arrest for DWI.
Alaska State Trooper Dixie Spencer drove Snyder from the
scene of the arrest to the police station. While driving to the
station, Snyder requested that Spencer take him to a nearby
hospital for a blood test of his alcohol level. Spencer refused
this request, believing that an arrestee was required to submit to
a breath test before a blood test could be administered.
At the station, Spencer asked Snyder to take a breath
test by blowing into the Intoximeter machine. Snyder made four
purported attempts to blow into the machine. However, despite
Spencer having twice read the implied consent warnings to Snyder,
and despite Spencer's repeated instructions to Snyder about how to
blow into the machine's tube and how long to sustain his breath,
Snyder never provided an adequate breath sample.
After Snyder had thrice blown unsuccessfully into the
tube, Spencer advised him that he could try "one more time." When
Snyder again failed to provide an adequate breath sample, Spencer
told him, "All right, Dennis, we'll just charge you with refusal."
Snyder objected: "I blowed in the tube. It's your fault. . . .
The machine don't work. . . . I blowed in, I did everything you
asked." He then offered to take the test again: "I'll blow again,
. . . It's not over, one more time." Spencer had already pressed
the print button on the Intoximeter; a further test would have
required a five-minute wait. She terminated the session and
charged Snyder with DWI and Refusal. A short time later Snyder
again requested a blood test; the police again denied his request.
Before trial Snyder moved to suppress evidence of his
intoxication and refusal to submit to a breath test, and to dismiss
the charges against him, on the ground that the police improperly
had denied his requests for a blood test. The trial court denied
Snyder's motion. At trial Snyder requested an instruction
regarding subsequent consent as a defense to the Refusal charge.
The court refused to give the instruction, because it concluded
that the defense was available only in the case of an
'unequivocal,' or explicit, refusal to submit to a test. A jury
convicted Snyder of DWI and Refusal. The court of appeals affirmed
A. The Constitutional Right to an Independent Test (EN1)
Snyder moved to dismiss on the ground, inter alia, that
the state's failure to honor his request for an independent blood
test violated his right to due process of law guaranteed him by the
Alaska Constitution. (EN2) In affirming the trial court's denial
of the motion, the court of appeals recognized that in Gundersen v.
Municipality of Anchorage, 792 P.2d 673 (Alaska 1990), this court
established an accused's right to an independent test:
Since a defendant must provide the state with
potentially incriminating evidence at the risk
of criminal penalties, we hold that due
process requires that the defendant be given
an opportunity to challenge the reliability of
that test in the simplest and most effective
way possible, that is, an independent test.
Gundersen, 792 P.2d at 676, quoted in Snyder, 879 P.2d at 1028.
However, the court of appeals held that "[b]y definition"the right
to a blood test "attaches only after an arrestee submits to a
breath test." Snyder, 879 P.2d at 1028. We disagree.
We conclude that the Due Process Clause of the Alaska
Constitution entitles a DWI arrestee to an independent chemical
test even if that person refuses to take the statutorily prescribed
breath test. (EN3)
In Lauderdale v. State, 548 P.2d 376 (Alaska 1976), we
held that due process required the police to gather and preserve
breath samples in order that an accused may challenge the results
of a police-administered breath test. See also Champion v. Dep't
of Public Safety, 721 P.2d 131 (Alaska 1986); Briggs v. State,
Dep't of Public Safety, 732 P.2d 1078 (Alaska 1987); Municipality
of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982). In
Gundersen, we held that the police could satisfy due process by
informing the arrestee of his right to obtain an independent test
and assisting him in obtaining that test. Gundersen, 792 P.2d at
675-76. Our primary concern in Lauderdale and Gundersen may appear
to have been with the accused's opportunity to challenge the
reliability of the breath test. Implicit in these decisions,
however, is our recognition of the unique considerations presented
by the quickly dissipating nature of blood alcohol evidence and
their implications for the due process protections afforded the DWI
arrestee. In Gundersen we stressed that to effectively comply with
the independent test requirement "'the prosecution would, at a
minimum, have to show . . . that persons qualified to conduct
independent tests or to preserve blood or breath samples for the
purpose of conducting independent tests were in fact available in
the area where the breathalyzer test was administered.'" Id. at
676-77 (quoting Serrano, 649 P.2d at 258 n.5). And, of course, it
is unlikely that we would have required preservation of the breath
samples in Lauderdale and its progeny if the accused later could
have obtained a blood alcohol test not rendered meaningless by
It is a fundamental tenet of due process of law that a
person accused of a crime has a right to attempt to obtain
exculpatory evidence. And it is well established that law
enforcement has a duty to preserve and disclose material evidence,
the dereliction of which can deprive the accused of due process.
See Stephan v. State, 711 P.2d 1156 (Alaska 1985); McMahan v.
State, 617 P.2d 494, 502 n.19 (Alaska 1980); Putnam v. State, 629
P.2d 35, 43-44 (Alaska 1980); compare Klumb v. State, 712 P.2d 909,
912 (Alaska App. 1986) ("Pursuant to Criminal Rule 16, the state
has an affirmative duty to collect and preserve material
evidence.") with March v. State, 859 P.2d 714, 716 (Alaska App.
1993) ("While officers have a duty to preserve potentially
exculpatory evidence actually gathered during a criminal
investigation, the due process clause has never required officers
to undertake a state-of-the-art investigation of all reported
crimes."). Although the state normally may not have an obligation
to aid a suspect in gathering potentially exculpatory evidence, in
view of the unique evidentiary circumstances attendant to DWI
arrests, we believe that in the DWI context the accused's right and
the state's duty extend to the opportunity to obtain an independent
chemical test, and that this opportunity must be made available to
the accused whether or not the accused agrees to submit to a breath
The concept of due process is not static; it evolves as
times and circumstances require. See Stephan, 711 P.2d at 1161
("[A]mong other things, [due process] must change to keep pace with
new technological developments."). Over the years the public's
perception of drunk driving has evolved. What the public once
viewed as a common indiscretion it now views as a serious crime and
public health hazard. The state's drunk driving statutes now are
enforced rigorously, prosecuted zealously, and provide for
substantial punishments. See, e.g., AS 28.35.030(n) (providing
that third conviction for DWI is a felony punishable by a fine of
not less than $5,000 and imprisonment for not less than 120 days).
That is proper. It is also proper, however, that we remain
vigilant in safeguarding the rights of individuals and ensure that
those accused of serious crimes such as DWI have the aid of the
process necessary for them fairly to defend against such charges.
The concept of due process also does not exist in a
vacuum. Just as it must evolve with changes in circumstances, it
must adapt to fit its environs. In Stephan we observed:
Since its announcement, the Mallott rule
[requiring recording of interrogations] has
always included a proviso, "when feasible."
The failure to electronically record an entire
custodial interrogation will, therefore, be
considered a violation of the rule, and
subject to exclusion, only if the failure is
711 P.2d at 1162. The Stephan proviso applies in this context. As
long as it is not impracticable for the police to take a defendant
to a facility where he or she can obtain an independent test, this
potentially exculpatory evidence cannot be denied a defendant.
However, if obtaining an independent test is impracticable or
exceedingly burdensome, as may be the case, for example, if the
accused is arrested in a community without the capability of
providing a blood test, no test would be constitutionally required.
We do not believe our conclusion that due process
proscribes pre-conditioning an accused's right to an independent
test on completion of the state's test of choice will significantly
burden law enforcement. As is true of other constitutional rights,
the right to an independent chemical test can be knowingly and
intelligently waived. See Gundersen, 792 P.2d at 677; Thessen v.
State, 454 P.2d 341, 343 (Alaska 1969); see also Schneckloth v.
Bustamonte, 412 U.S. 218, 235-41 (1973) (knowing and intelligent
waiver standard applied to those rights guaranteed to a criminal
defendant to preserve a fair trial). In those many cases in which
the police have apprised the accused of his or her right to an
independent test and the accused has waived the right, today's
decision will not affect the procedures police employ. Of those
cases in which the accused chooses to exercise the right to an
independent test, it is safe to assume that the great majority,
after considering the significant penalties for Refusal, likely
will submit to the breath test. As arrestees already had a
statutory right to an independent test if they submitted to a
breath test, see AS 28.35.033(e), the only burden added by today's
decision is the testing of those arrestees who refuse to take a
breath test, but demand an independent test. No evidence suggests
that number will be significant.
This is not the first context in which we have held that
the Due Process Clause of the Alaska Constitution mandates more
than the state's mere abstention from the destruction of evidence.
In Stephan we held that state due process required law enforcement
agencies to electronically record the custodial interrogation of
suspects. Stephan, 711 P.2d at 1159-60; see also S.B. v. State,
614 P.2d 786, 790 n.9 (Alaska 1980); Mallott v. State, 608 P.2d
737, 743 n.5 (Alaska 1980). We reached this conclusion because we
were convinced "that recording, in such circumstances, is now a
reasonably necessary safeguard, essential to the adequate
protection of the accused's right to counsel, his right against
self incrimination and, ultimately, his right to a fair trial."
Stephan, 711 P.2d at 1159-60. Likewise, where, as here, the
objective evidence is inherently evanescent, is potentially
presumptively exculpatory, (EN4) and can be obtained by the accused
by placing only a slight burden on the state, (EN5) we are
convinced that the opportunity to obtain evidence of blood alcohol
content is a reasonably necessary safeguard, essential to the
adequate protection of the accused's right to a fair trial. (EN6)
What remains is the question of the remedy to be given
Snyder for the state's violation of his due process right. A
typical remedy employed in cases where evidence is obtained in
violation of a defendant's rights is the exclusion of that
evidence. See, e.g., Stephan, 711 P.2d at 1163-64 (exclusion of
defendant's statements proper remedy for police's failure to record
statements). In a variant on this, where the state has denied a
defendant the opportunity to challenge a properly administered
breath test by failing to preserve a breath sample or to offer an
independent test, we have excluded the results of the breath test.
See Briggs, 732 P.2d at 1080; Champion, 721 P.2d at 132-33;
Lauderdale, 548 P.2d at 381; Serrano, 649 P.2d at 258-59.
Here there was no blood alcohol test of any kind, and so
none to suppress. Concern for effective compliance with the rule
we announce today dictates that we attach some sanction to the
state's unconstitutional interference with Snyder's efforts to
obtain an independent test. See Stephan, 711 P.2d at 1163
(adopting blanket exclusionary rule for unrecorded interrogations
because law enforcement failed to comply with recording rule when
the sanction was discretionary). Nevertheless, we are not
persuaded that outright dismissal of the DWI charge is warranted or
consistent with the sound administration of justice, especially in
light of the fact that the jury convicted Snyder of DWI on the
basis of admissible evidence which Snyder had an opportunity to
rebut, albeit not with the potentially most exculpatory evidence.
Cf. Copelin v. State, 659 P.2d 1206, 1215 (Alaska 1983)
("Determining whether an exclusionary remedy is appropriate
requires a balancing of the purpose behind excluding illegally
obtained evidence with the interest in admitting reliable evidence
in those proceedings."(Compton, J., dissenting in part)).
In Thorne v. Dep't of Public Safety, 774 P.2d 1326, 1331-
32 (Alaska 1989), we held that the appropriate sanction for the
state's destruction of a videotape of the defendant performing
field sobriety tests was to remand the case with directions to
presume that the videotape would have been favorable to the
defendant. We believe a similar sanction is appropriate here; on
remand, the superior court should presume that the independent
blood test Snyder sought, if provided, would have been favorable to
him. See AS 28.35.033 (establishing presumptions regarding
intoxication on the basis of blood alcohol content). (EN7)
B. Subsequent Consent
The court of appeals held that Snyder was not entitled to
an instruction on the defense of subsequent consent because he had
presented no evidence that rationally supported a verdict of
acquittal based on the defense:
When Trooper Spencer terminated the test after
the fourth unsuccessful effort, Snyder
repeated his offer to try again. Yet this
offer was neither qualitatively nor
quantitatively different than the offer that
Snyder had made immediately before his fourth
unsuccessful effort. . . .
. . . .
Considering the totality of the evidence
in the light most favorable to Snyder, there
is simply no rational basis to support a
finding that Snyder's initial offers to take
the test were made in bad faith but that his
final offer to take the test was made in good
faith. A juror who harbored a reasonable
doubt as to whether Snyder's final offer to
take the test was sincere could not rationally
have concluded beyond a reasonable doubt that
his initial offers were insincere.
Conversely, no juror who thought Snyder's
first four refusals were insincere could
rationally have found his next offer to have
been genuine . . . .
. . . Under the circumstances of this
case, a subsequent consent instruction could
have been of no material value to the jury or
Snyder, 879 P.2d at 1029-30. The state essentially has adopted the
reasoning of the court of appeals on this issue.
Snyder argues that the court of appeals' "qualitatively
and quantitatively different"requirement is inconsistent with this
court's holding in Pruitt v. State, 825 P.2d 887 (Alaska 1992).
(EN8) He also argues that he is entitled to the jury instruction
regardless of how weak or implausible the evidence may be.
Whether or not a requested jury instruction should be
given lies in the discretion of the trial court. Buchanan v.
State, 561 P.2d 1197, 1207 (Alaska 1977). However, the general
rule is that the defendant is entitled to a jury instruction on a
defense theory if there is "some evidence"to support it. See
Pascoe v. State, 628 P.2d 547, 549 (Alaska 1980); Christie v.
State, 580 P.2d 310, 315 (Alaska 1978); Carson v. State, 736 P.2d
356, 359 (Alaska App. 1987); Brown v. State, 698 P.2d 671, 673-74
(Alaska App. 1985) (citing Toomey v. State, 581 P.2d 1124, 1126
(Alaska 1978)); Paul v. State, 655 P.2d 772, 775 (Alaska App.
1982); Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982). (EN9)
As Snyder points out, the court of appeals repeatedly has
opined that "[t]he burden of producing 'some evidence' is not a
heavy one"and that "[e]ven weak and implausible claims must be
submitted to the jury." Carson, 736 P.2d at 359; see also Brown v.
State, 698 P.2d at 674; Brown v. Anchorage, 680 P.2d 100, 103
(Alaska App. 1984); Paul, 655 P.2d at 775. In deciding whether the
defendant has presented "some evidence,"the trial judge must
determine whether the evidence would permit a reasonable juror to
conclude that a reasonable doubt has been raised as to the
existence of the defense. Christie, 580 P.2d at 315; Carson, 736
P.2d at 359.
In our view, Snyder's offer to blow into the Intoximeter
"one more time"following Spencer's threat of a Refusal charge is
sufficient evidence of Snyder's subsequent consent to warrant an
instruction on the defense. Contrary to the court of appeals'
conclusion, a rational juror who thought Snyder's initial refusals
were insincere could have believed Snyder was sobered by the threat
of a Refusal charge and concluded that his subsequent offer was
sincere. Moreover, there is no indication that an additional test
would have significantly delayed or inconvenienced the police, or
that any of the other Pruitt factors weigh against allowing
Snyder's subsequent consent to cure his prior refusals. See
Pruitt, 825 P.2d at 894.
Assuming for the sake of argument that under the
circumstances of this case Snyder's final offer had to be
"qualitatively [or] quantitatively"different from his previous
offers to be an effective consent, we nevertheless believe the
weighing of the bona fides of Snyder's offer is a task for the
jury. (EN10) The jury very well may have concluded Snyder's
consent was ineffective because his offer was merely another
attempt to feign willingness to submit to a breath test, but it was
the jury's conclusion to draw.
Since there was some evidence to support Snyder's
requested subsequent consent instruction, the superior court abused
its discretion in refusing to give the instruction.
The state should have provided Snyder with the
opportunity to obtain an independent test of his blood alcohol
content. The trial court should have instructed the jury on the
defense of subsequent consent. Snyder's DWI and Refusal
convictions are REVERSED and the case is REMANDED for further
proceedings consistent with this opinion.EASTAUGH, Justice, dissenting in part.
I disagree with Part III.A of the court's decision. The
court there holds that "the Due Process Clause of the Alaska
Constitution entitles a DWI arrestee to an independent chemical
test even if that person refuses to take the statutorily prescribed
breath test." Op. at 5. In my view, the Due Process Clause
confers no such right.
This is a DWI case, but it appears to me that the result
the court reaches here has much broader implications. Absent
legitimate public safety concerns, police may not prevent an
accused from gathering exculpatory evidence, and consequently may
not prevent a DWI accused from arranging to be independently tested
while still in custody. (EN1) The court, however, goes further.
At a minimum it requires police to transport unreleased DWI
accuseds in a timely fashion to a place where their blood can be
drawn for independent testing. (EN2) In effect, police must now
actively help the accused gather potentially exculpatory evidence.
Our prior decisions do not require or forecast this
result. The cases most prominently cited by this court, Gundersen
v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990), and
Lauderdale v. State, 548 P.2d 376 (Alaska 1976), are readily
distinguishable and do not hint at the existence of the right
conferred today. Those cases expressly state that the primary
purpose of the independent test is to allow an arrestee the
opportunity to challenge the state's blood or breathalyzer test
results submitted into evidence. Gundersen, 792 P.2d at 676;
Lauderdale, 548 P.2d at 381-82. Due process requires that this
opportunity be provided to arrestees to rebut that evidence. In
Lauderdale, this court held that
Lauderdale is asking for the opportunity to
test the reliability or credibility of the
results of the breathalyzer test. . . . A
denial of the right to make such analysis,
that is to say, to "cross-examine"the results
of the test, would be reversible error without
any need for a showing of prejudice. It would
be a denial of a right to a fair trial, and a
fair trial is essential to affording an
accused due process of law.
548 P.2d at 381. In Gundersen, we held that
[s]ince a defendant must provide the state
with potentially incriminating evidence at the
risk of criminal penalties, we hold that due
process requires that the defendant be given
an opportunity to challenge the reliability of
that evidence in the simplest and most
effective way possible, that is, an
792 P.2d at 676.
In Gundersen, the accused submitted to a breath test
which incriminated him. The sample was not preserved. This court
found a due process right to an independent test in that context:
We agree with the court of appeals that if the
police choose not to preserve a breath sample,
due process requires that they give clear and
express notice of a defendant's right to an
independent test and offer assistance in
obtaining one in order to introduce police-
administered test results at trial.
792 P.2d at 677.
As the court of appeals correctly observed when it
affirmed Snyder's conviction:
The general rule . . . is that the state has
no duty to collect evidence; its duty of
preservation applies only to evidence that has
actually been gathered.
Under the due process clause of the
Alaska Constitution, a limited exception to
the general rule applies to the extent that
the state is required to gather and preserve
evidence affording DWI arrestees a reasonable
opportunity to challenge the result of a
breath test obtained pursuant to the implied
consent statutes. By definition, however,
this exception to the general rule attaches
only after an arrestee submits to a breath
Snyder v. State, 879 P.2d 1025, 1028 (Alaska App. 1994) (citations
Thus, these cases have read due process to require police
to assist an accused in obtaining an independent blood test, not
because due process accords the accused a right to a blood test,
but because due process requires that the accused have an
opportunity to rebut the breath test administered by police. These
cases do not require the result reached here, which creates a due
process right to an independent blood test even if the accused
refuses the police breath test.
The result the court now reaches cannot logically be
limited to blood samples of DWI arrestees, but has much greater
implications given its reliance on a theory that police must gather
"inherently evanescent"evidence which potentially exculpates
persons accused of "serious crimes such as DWI." Op. at 7, 9. The
court cites two well-founded propositions:
It is a fundamental tenet of due process of
law that a person accused of a crime has a
right to attempt to obtain exculpatory
evidence. And it is well established that law
enforcement has a duty to preserve and
disclose material evidence, the dereliction of
which can deprive the accused of due process.
Op. at 6. But equally well-founded is the general proposition that
the state normally has no obligation to aid a suspect in gathering
potentially exculpatory evidence, as the court expressly
recognizes. (EN 3) Op. at 6-7. DWI evidence is not unique.
Nothing logically sets it apart from other types of evidence, (EN4)
much of which may rapidly degrade until it is no longer probative
of innocence. Its value may be lost before the accused is released
or can make efforts to preserve it. "Evanescent"alcohol levels
bear not only upon guilt in DWIs, but upon other issues, such as
diminished capacity, in other crimes more serious than DWI. Other
chemicals in an arrestee's blood can be equally ephemeral, and
testing potentially just as exculpatory. Crime scene evidence may
be lost if not promptly preserved; it is always potentially
exculpatory. Even for misdemeanors, the consequences of failing to
discover and preserve exculpatory evidence may be severe. Contrary
to the court's assertion, there is nothing unique about the
"evidentiary circumstances attendant to DWI arrests." Op. at 7.
Fairness and justice do not require the result reached
here. It is one thing to impose a duty to aid in independent
testing if the prosecution has access to highly-persuasive breath
testing results. The most effective way to dispute such results is
through independent testing. But because Snyder refused to give a
breath sample, there are no police test results. Further, the
record does not reveal that Snyder was precluded from arranging an
independent blood test to be conducted while he was still in
The duty the court now imposes creates procedural and
practical problems which, assuming they can be surmounted by
diligent and exacting police work, illustrate not only why imposing
such a duty is a bad idea, but also why the existence of such a
right is constitutionally improbable. Snyder demanded an
independent test, but if the right now conferred has due process
origins, at a minimum police must disclose the right to DWI
arrestees; some will be incapable of making an informed decision
whether to exercise the right. Presumably, also, the public must
pay for an independent test if the arrestee cannot. Transporting
arrestees to the place of independent testing will reduce the
number of officers available to patrol actively for DWI offenders
(or to respond to other reported crimes). I do not agree that the
burden that will be imposed on the state (and other non-state law
enforcement agencies) will only be "slight,"Op. at 10, but it also
seems probable that collateral disputes will arise about whether
the failure to provide independent testing for particular arrestees
is excusable because it was in fact completely infeasible or could
be obtained only after extraordinary effort. Assuming for sake of
discussion that an arrestee is entitled to independent testing
within two or three hours after arrest (keeping in mind that it is
in the arrestee's interest to delay the test as long as possible),
one can foresee that due process could require that an arrestee be
transported over great distances. If there is no person qualified
to draw blood for an independent test in the near vicinity, does
due process require that the arrestee be transported to the nearest
community by road or air at public expense?
Finally, the court fashions an unwarranted remedy which
illustrates why no such right should be conferred. Reasoning that
because police did not administer a breath test, there are no
police test results to suppress, the court requires the trial court
on remand to "presume that the independent blood test Snyder
sought, if provided, would have been favorable to him." Op. at 12.
Thus, Snyder, by refusing to give a breath sample to police, has
the best of all worlds: he prevented police from gathering
incriminating test results, and he receives a presumption that his
independent blood test would have been exculpatory. Snyder's
refusal, consequently, not only deprived the state of incriminating
evidence, but generates the equivalent of exculpatory evidence. I
am not suggesting that some other remedy, such as dismissal, would
be appropriate. Instead, the remedy reveals the fundamental
illogic in conferring any such right in the first place.
1. Whether the state violated Snyder's constitutional right to an
independent test is a question of constitutional law to which we
apply our independent judgment. Arco Alaska, Inc. v. State, 824
P.2d 708, 710 (Alaska 1992). Our duty is to adopt the rule of law
which is most persuasive in light of precedent, reason and policy.
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1978).
2. Article I, section 7 of the Alaska Constitution provides in
part: "No person shall be deprived of life, liberty, or property,
without due process of law."
3. AS 28.35.032(f) provides that refusal to submit to the
chemical breath test is a Class A misdemeanor. Refusal of the
chemical breath test is a criminal act irrespective of any request
for or submission to a blood alcohol test.
4. AS 28.35.033(a)(1) provides:
If there [is] 0.05 percent or less by weight
of alcohol in the person's blood, or 50
milligrams or less of alcohol per 100
milliliters of the person's blood, or 0.05
grams or less of alcohol per 210 liters of the
person's breath, it shall be presumed that the
person was not under the influence of
5. The dissent suggests that our holding will create unnecessary
collateral disputes about whether failure to provide independent
testing for a particular arrestee is excusable. We disagree. The
resolution of such disputes is no different from resolution of
collateral disputes that arise generally in criminal cases, such as
the availability of witnesses for pre-trial interrogation, the
suppression of evidence allegedly illegally seized, severance of
charges or parties, the admissibility of certain testimony, and
6. At least two other states have concluded that a defendant is
entitled to an independent blood test regardless of whether he
submits to a police designated test. See State v. Swanson, 722
P.2d 1155, 1157 (Mont. 1986); Montano v. Superior Court Pima
County, 719 P.2d 271 (Ariz. 1986).
7. In view of our decision on his constitutional claim, we do not
address Snyder's claim that he has a statutory right to an
independent chemical test regardless of whether or not he submits
to a breath test.
8. In Pruitt this court adopted a "flexible"rule that allows a
subsequent consent to a breath test to cure a prior refusal under
some circumstances. Pruitt, 825 P.2d at 894. The factors the
court enunciated for determining whether the arrestee's subsequent
consent cures the refusal are: whether the subsequent consent
occurred within a reasonable time after the prior refusal; whether
the test administered following the subsequent consent will still
be accurate; whether the test will result in any substantial
expense or inconvenience to the police; and whether the arrestee
has been in continuous custody of the arresting officer and under
observation for the entire time. Id.
9. Relatedly, Alaska Criminal Rule 30 provides that the court
"shall instruct the jury on all matters of law which it considers
necessary for the jury's information in giving their verdict."
Alaska R. Crim. P. 30 (b); see Sears v. State, 713 P.2d 1218, 1219
(Alaska App. 1986).
10. Snyder's last offer was, of course, quantitatively different -
- he made it one more time.
1. A person in Snyder's position has a right to be independently
tested at his expense. In exercising that right, Snyder would have
been entitled to make arrangements to be tested while in custody or
upon release on bond. Police could not interfere with that effort,
apart from satisfying valid police interests, such as completing
the process of charging and booking Snyder and maintaining facility
2. The court apparently would not impose any duty of assistance
with respect to an accused who has been released. The right
conferred here appears to apply only to accuseds in custody.
3. The court states that "[a]t least two other states have
concluded that a defendant is entitled to an independent blood test
regardless of whether he submits to a police designated test." Op.
at 10 n.6. In support of this assertion, the court cites Montano
v. Superior Court Pima County, 719 P.2d 271, 277 (Ariz. 1986)
(holding that an arrestee is entitled to be informed of the right
to an independent test when the implied consent law is not
invoked), and State v. Swanson, 722 P.2d 1155, 1157 (Mont. 1986).
Those jurisdictions that have granted the right to an independent
test have been extremely cautious in granting that right. The
cases explicitly state that no affirmative burden is imposed upon
the police to assist the arrestee in obtaining the test; instead,
the requirement is only that they not impede an arrestee's efforts
to obtain a test. These decisions make it clear that the police
have no affirmative duty to assist an accused in obtaining an
independent blood test, such as the duty the court would impose
here. Montano, 719 P.2d at 277 (holding that "[t]he state has no
obligation . . . to actually gather evidence for a suspect, but in
the absence of the implied consent law it must provide suspects a
fair chance to gather evidence by informing them of their right to
testing"); State v. Peterson, 739 P.2d 958, 961 (Mont. 1987)
(clarifying rule in Swanson). Furthermore, State v. Miller, 778
P.2d 1364, 1366 (Ariz. App. 1989), held that "Montano is limited to
its particular facts, and that due process does not require that a
suspect be advised of his right to an independent test where the
state has invoked the implied consent law." See also State ex rel.
Dean v. City Court, 789 P.2d 180, 183-84 n.4 (Ariz. 1990) (noting
that "[f]ailure to inform the defendant of his right to an
independent test did not constitute interference with his right to
obtain the test, where the defendant was afforded a fair chance to
obtain independent evidence"(citing State v. Ramos, 745 P.2d 601,
604 (Ariz. App. 1987))); State v. Superior Court, 878 P.2d 1381,
1383 (Ariz. App. 1994); State v. Vannoy, 866 P.2d 874, 877 (Ariz.
4. In the past, this court has drawn analogies between preserving
breath samples and preserving other types of evidence, such as tape
recordings of police interrogations. See Stephan v. State, 711
P.2d 1156, 1160 (Alaska 1985).