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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sosa v. State (6/16/00) sp-5283

Sosa v. State (6/16/00) sp-5283

     Notice:  This opinion is subject to 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) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


JUAN SOSA,                    )
                              )    Supreme Court No. S-8840
             Petitioner,      )
                              )    Court of Appeals No. A-6569
     v.                       )    Superior Court No.
                              )    4BE-S96-187 CR
STATE OF ALASKA,              )
                              )    O P I N I O N
             Respondent.      )
______________________________)    [No. 5283 - June 16, 2000]



          Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court of the
State of Alaska, Fourth  Judicial District, Bethel, 
                      Dale O. Curda, Judge. 
 

          Appearances:  Quinlan Steiner, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Petitioner.  Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Respondent.


          Before: Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          EASTAUGH, Justice.


I.   INTRODUCTION
          In two specific circumstances Alaska's implied consent
statutes permit a driver's blood to be drawn for chemical testing
for evidence of driving while intoxicated (DWI).  Those
circumstances do not include unavailability of a breath testing
device. [Fn. 1]  Because no functioning breath testing device was
then available, a magistrate issued a search warrant permitting
Juan Sosa's blood to be drawn after he was arrested for DWI.  Can
Sosa be charged with evidence tampering for defying the warrant,
when neither exceptional circumstance specified by statute was
present?  We hold that he cannot.  Because the warrant could not
legally permit a blood draw to support a DWI charge, his refusal
cannot constitute evidence tampering.  We therefore vacate his
conviction.
II.  FACTS AND PROCEEDINGS
          A Bethel police officer arrested Juan Sosa for DWI and
took him to the police station.  Because the station's chemical
breath testing device was malfunctioning, the officer did not ask
Sosa to submit to a chemical breath test; instead, the officer
obtained a search warrant from a magistrate.  The search warrant
allowed "Any Peace Officer" to seize a sample of Sosa's blood. [Fn.
2]  When approached and shown the warrant, Sosa twice refused to
submit to a blood test; at one point he assumed a combative stance
and stated that he would fight rather than submit to a blood draw. 
The police officers relented and did not draw Sosa's blood.
          The state charged Sosa with felony DWI, reckless driving,
refusal to submit to a chemical test, and tampering with physical
evidence by refusing to submit to the blood test.  It did not
charge Sosa with assault or ask the court to hold him in contempt
for defying the search warrant.  The trial court dismissed the
refusal charge, but a jury convicted Sosa of the three remaining
counts.  The superior court denied Sosa's motion for judgment of
acquittal on the evidence tampering charge, and the court of
appeals affirmed.  This court then granted Sosa's petition for
hearing on the issue of the validity of the evidence tampering
charge.
III. DISCUSSION
     A.   Standard of Review
          We review interpretations of statutes de novo, [Fn. 3]
adopting the rule of law that is most persuasive in light of
precedent, reason, and policy. [Fn. 4]  We review Sosa's claims of
error for plain error because he failed to raise them in the trial
court. [Fn. 5]  Plain error exists "where an obvious mistake has
been made which creates a high likelihood that injustice has
resulted." [Fn. 6]  
     B.   Exceptions to the Prohibition on Chemical Blood Tests
          The Alaska legislature constructed a comprehensive
statutory scheme, commonly known as the implied consent statutes,
[Fn. 7] to govern chemical testing of DWI arrestees.  Under these
statutes, any driver "shall be considered to have given consent to
a chemical test or tests of the person's breath." [Fn. 8]  The
statutes also state that the driver shall be deemed to have
consented to blood testing in two specific and limited
circumstances: (1) if the driver "is involved in a motor vehicle
accident that causes death or serious physical injury to another
person," [Fn. 9] or (2) if the driver is "unconscious or otherwise
. . . incapable of refusal." [Fn. 10]  The implied consent statutes
describe no other circumstance as a basis for implying consent for
a blood test; they contain no general language implying consent to
a blood draw except in the two circumstances specified.
          The state, however, argues that we should recognize an
implicit exception when breath testing devices malfunction.  It
contends that the legislature could not have intended to leave
police with no means to obtain direct evidence of drivers'
intoxication when mechanical breakdowns prevent breath testing. 
          The statutes do not explicitly permit unconsented blood
draws if breath testing machines malfunction or are otherwise
unavailable, and we decline to create an implicit exception to
cover that situation.  "The Implied Consent Statute provides the
exclusive authority for the administration of police-initiated
chemical sobriety tests to a driver arrested for acts allegedly
committed while operating a motor vehicle." [Fn. 11]  "Where a
statute's meaning appears clear and unambiguous, . . . the party
asserting a different meaning bears a correspondingly heavy burden
of demonstrating contrary legislative intent." [Fn. 12]  The state
has discussed no legislative history at all and has referred us to
no facts that would cause us to question the plain language of
these statutes.  We find it significant that the legislature chose
to specify only two limited exceptions, despite the conspicuously
foreseeable possibility that a breath-testing machine might
sometimes be unavailable, especially in a remote location.
          We therefore reject the state's argument, decline to
create an implicit exception to the implied consent statutes, and
hold that Sosa cannot be deemed to have impliedly consented to a
blood test.
     C.   Sosa's Refusal to Comply with the Search Warrant
          The state argues that even if Sosa is not deemed to have
impliedly consented to the blood test, he had no right to disobey
the warrant.  According to the state, when the police officers
served Sosa with the warrant authorizing a blood draw, he had an
obligation to permit the blood draw, regardless of the underlying
legality of the attempted search.  The state directs us to Elson v.
State. [Fn. 13]  In that case, a driver physically resisted a
police "pat down" by grabbing the hand of the arresting officer
when he reached into Elson's pocket to remove what he thought was
a knife. [Fn. 14]  When the state later charged Elson with cocaine
possession, Elson attempted to exclude evidence of his physical
resistance to the search. [Fn. 15]  We upheld the superior court's
admission of the evidence of Elson's resistance and held that "a
private citizen may not use force to resist a peaceful search . .
. regardless of whether the search is ultimately determined to be
illegal." [Fn. 16]
          Sosa told the officers that he would not permit a blood
draw and insisted that they go away so he could sleep.  The
superior court found that Sosa resisted the blood draw by
threatening to fight if the officers attempted to draw his blood. 
          The rationale underlying Elson was promotion of orderly
settlement of disputes and avoidance of violent self-help. [Fn. 17] 
We were concerned with the "danger of escalating violence" in
situations where a citizen physically resisted arrest and provoked
a potentially violent confrontation with police. [Fn. 18]
          We need not consider whether Sosa's conduct would have
been admissible as evidence of assault, had he been so charged.
[Fn. 19]  The issue here is whether Sosa could be charged with
evidence tampering. [Fn. 20]  Sosa argues that conviction for
tampering with evidence "is irreconcilable with the legislature's
prohibition on the production of that evidence.  This argument does
not address the admissibility of evidence."
          We agree with Sosa.  There are three closely related
reasons.  First, to permit an evidence tampering charge for his
refusal to permit the blood draw is equivalent to prosecuting him
for violating the implied consent statutes, i.e., for refusing to
submit himself to a test he is deemed to have impliedly consented 
to take.  Because the implied consent statutes are the
legislature's comprehensive regime for implying consent and for
punishing a failure to comply with the statutes, a refusal to be
tested should be punished in accordance with the implied consent
statutes, and not under the tampering statute.
          Second, as contemplated by the implied consent statutes,
a refusal to give a blood (or breath) sample may only be prosecuted
if the driver had a duty to give the sample.  There is no
prosecutable refusal unless the person refuses to give a sample
when legally obliged to do so.  The implied consent statutes define
the driver's legal obligation.  It would be remarkable if a
tampering charge could lie for declining to produce evidence which
the statutes do not allow the state to demand in the factual
circumstances of Sosa's arrest.  Thus, where the only ostensible
authority for ordering Sosa's blood drawn is the very statutory
regime which does not punish him for withholding his consent, his
refusal may not be the basis for an evidence tampering charge.
          Third, evidence tampering requires interference by force,
threat, or deception with the production of physical evidence. [Fn.
21]  But Sosa was entitled to peacefully refuse to comply under
these circumstances; had he refused peacefully, his blood could not
properly have been drawn, and if it had been drawn despite his
refusal, the implied consent statutes would not have regarded it as
evidence supporting the DWI charges.  Therefore, his conduct, even
if not peaceful, could not be regarded as having causally
interfered with production of evidence of DWI.  This is not merely
the equivalent of conduct that prevents production of evidence
which turns out to be inadmissible, and whose admissibility cannot
be determined until later. [Fn. 22]   Here the complete inutility
of the test results as evidence was readily knowable given the
complete absence of facts that might have brought either statutory
exception into play.  Sosa's warrant facially violated the implied
consent statutes. [Fn. 23]  Had the officers subdued Sosa and drawn
his blood for testing, the unlawfulness of the warrant would have
made the test results unusable.
          In enacting the implied consent statutes, the legislature
carefully balanced the privacy interests of DWI arrestees against
the state's interest in collecting evidence.  Permitting the state
to charge Sosa with evidence tampering in this situation would
upset that balance.  Sosa cannot be charged with evidence tampering
for having refused to submit to this unlawful search.  
     D.   Preservation of Issue
          The state argues that Sosa's failure to challenge the
validity of the warrant in the trial court precludes consideration
of its validity on appeal.  Our resolution of the merits
demonstrates that it was plain error to permit the state to proceed
on the tampering charge, and we consider claims of plain error
regardless of whether the parties argued them in the trial court.
[Fn. 24]
          The state nonetheless argues that Moreau v. State [Fn.
25] should control.  In Moreau, we refused to consider an
exclusionary rule argument because the defendant had not raised the
issue in the trial court by asking that court to suppress the
evidence. [Fn. 26] 
          Moreau does not control here.  First, Moreau applies to
improper police conduct, not to a statutory violation based on an
invalid warrant. [Fn. 27]   Second, the exclusionary rule cannot
apply here.  Because no blood was drawn and no tests were
conducted, there was no evidence to suppress.  Sosa had no reason,
much less an obligation, to challenge the warrant in the trial
court.  Had Sosa acceded to the unlawful warrant and his blood had
been drawn, we assume for discussion's sake that he would have been
obliged to challenge the warrant in the trial court. [Fn. 28]  But
absent evidence subject to exclusion, a Moreau hearing would have
been pointless.  Moreau does not preclude Sosa from raising the
issue in this petition.
IV.  CONCLUSION
          For these reasons, we VACATE Sosa's conviction for
evidence tampering.


                            FOOTNOTES


Footnote 1:

     See AS 28.35.031, .032, .035.


Footnote 2:

     The excerpt does not contain the warrant.


Footnote 3:

     See Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).


Footnote 4:

     See M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995).


Footnote 5:

     See Moreau v. State, 588 P.2d 275, 279 (Alaska 1978).


Footnote 6:

     Broeckel v. State, Dep't of Corrections, 941 P.2d 893, 897
(Alaska 1997) (quoting Miller v. Sears, 636 P.2d 1183, 1189 (Alaska
1981)).


Footnote 7:

     See AS 28.35.031, .032, .035. 


Footnote 8:

     AS 28.35.031(a) (emphasis added).


Footnote 9:

     AS 28.35.031(g).  Subsection (g) provides:   

          A person who operates or drives a motor
vehicle in this state shall be considered to have given consent to
a chemical test or tests of the person's breath and blood for the
purpose of determining the alcoholic content of the person's breath
and blood and shall be considered to have given consent to a
chemical test or tests of the person's blood and urine for the
purpose of determining the presence of controlled substances in the
person's blood and urine if the person is involved in a motor
vehicle accident that causes death or serious physical injury to
another person.  The test or tests may be administered at the
direction of a law enforcement officer who has reasonable grounds
to believe that the person was operating or driving a motor vehicle
in this state that was involved in an accident causing death or
serious physical injury to another person.

(Emphasis added.)


Footnote 10:

     AS 28.35.035(b).  Subsection (b) provides: 

          A person who is unconscious or otherwise in a
condition rendering that person incapable of refusal is considered
not to have withdrawn the consent provided under AS 28.33.031(a) or
AS 28.35.031(a) or (g) and a chemical test may be administered to
determine the amount of alcohol in that person's breath or blood or
to determine the presence of controlled substances in that person's
blood and urine.  A person who is unconscious or otherwise
incapable of refusal need not be placed under arrest before a
chemical test may be administered.

(Emphasis added.)


Footnote 11:

     Pena v. State, 684 P.2d 864, 867 (Alaska 1984).  See also Bass
v. Municipality of Anchorage, 692 P.2d 961, 964 (Alaska App. 1984)
(concluding that, based on Pena, "[i]t therefore seems clear that
the municipality can justify forcibly taking the blood sample from
Bass only if the taking falls under AS 28.35.035(b)").


Footnote 12:

     University of Alaska v. Tumeo, 933 P.2d 1147, 1152 (Alaska
1997).


Footnote 13:

     659 P.2d 1195 (Alaska 1983).


Footnote 14:

     See id.


Footnote 15:

     See id.


Footnote 16:

     Id. at 1200.


Footnote 17:

     See id. (citing United States v. Ferrone, 438 F.2d 381, 390
(3d Cir. 1971)).


Footnote 18:

     Id.


Footnote 19:

     See AS 11.41.230(a)(3) (a person commits the crime of fourth-
degree assault if "by words or other conduct that person recklessly
places another person in fear of imminent physical injury.").


Footnote 20:

     AS 11.56.610(a)(3) provides that "A person commits the crime
of tampering with physical evidence if the person . . . prevents
the production of physical evidence in an official proceeding or a
criminal investigation by the use of force, threat, or deception
against anyone . . . ."


Footnote 21:

     See AS 11.56.610(a)(3).


Footnote 22:

     Cf. Brown v. State, 739 P.2d 182, 184 (Alaska App. 1987).


Footnote 23:

     As we stated in Pena, a warrant cannot override the statute:
"The Implied Consent Statute . . . applies equally to preclude
chemical sobriety tests performed pursuant to search warrants as it
does to tests performed as searches incident to arrest."  Pena, 684
P.2d at 867.


Footnote 24:

     See State Farm Ins. Co. v. Raymer, 977 P.2d 706, 711 (Alaska
1999) (stating that "[w]e will not consider new arguments not
raised in the trial court, unless the issues establish plain
error").


Footnote 25:

     588 P.2d 275 (Alaska 1978).


Footnote 26:

     Id. at 280. 


Footnote 27:

     See id.


Footnote 28:

     See id.