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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Public Safety v. Shakespeare (6/30/00) sp-5292

State, Dept. of Public Safety v. Shakespeare (6/30/00) sp-5292

     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
                                 


STATE OF ALASKA, DEPARTMENT   )
OF PUBLIC SAFETY,             )    Supreme Court No. S-8952
                              )
             Appellant,       )    Superior Court No.
                              )    1JU-98-134 CI
     v.                       )
                              )    O P I N I O N
LORI C. SHAKESPEARE,          )
                              )    [No. 5292 - June 30, 2000]
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
                      Larry R. Weeks, Judge.


          Appearances:  Marilyn J. Kamm, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant.  David D. Mallet, David D. Mallet Law Office,
Juneau, for Appellee.  


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


          EASTAUGH, Justice.


I.   INTRODUCTION
          A woman arrested for driving while intoxicated refused to
submit to a breath test.  She later consented to take a breath test
and police officers administered the test to her and obtained test
results.  Relying on her initial refusal, the Alaska Department of
Public Safety administratively revoked her driver's license under
Alaska's implied consent statutes.  The superior court reversed the
administrative revocation, holding that the driver had been
permitted to cure her refusal.  We affirm the superior court's
decision, reasoning that the driver cannot be deemed to have
refused after officers actually administered a breath test and
obtained potentially probative evidence.
II.  FACTS AND PROCEEDINGS    
          On October 28, 1997, at around 8:30 p.m., Juneau Police
Department Officers Weske and Fermin saw Lori Shakespeare drive up
to a Juneau home.  When Officer Weske talked with Shakespeare he
smelled alcohol and noticed that she had bloodshot eyes and slurred
speech.  He therefore gave her standard field sobriety tests.  She
failed the tests and admitted that she had consumed "two beers." 
The officers arrested her for driving while intoxicated.
          They took her to the local Alaska State Trooper
detachment for a breath test, arriving there at 9:06 p.m.  The
officers were about nine minutes into a required fifteen-minute
observation period when Shakespeare said that she had to use the
restroom.  Officer Weske allowed her to enter the restroom but told
her that the fifteen-minute observation period would have to start
over.  Both officers were male and could not accompany her into the
restroom to ensure that she put nothing in her mouth.
          After Shakespeare returned and thirteen more minutes had
passed, Officer Weske told her that he was going to start the
Intoximeter.  Shakespeare again said that she had to use the
restroom.  Officer Weske again allowed her to enter the restroom,
but sent a female dispatcher with her to ensure that Shakespeare
put nothing in her mouth.  When Shakespeare came out, Officer Weske
started the Intoximeter.  Shakespeare asked if the fifteen minutes
had to start over and Officer Weske said, no, because the
dispatcher had been with her.  Shakespeare then refused to take the
test.  Officer Fermin read an implied consent warning form to
Shakespeare at around 9:50 p.m. and allowed Shakespeare to read the
notice and warning on the form for herself.  Shakespeare still
refused to take a breath test but stated that she was willing to
give a blood sample. 
          The Juneau Police Department had recently adopted a
policy prohibiting its officers from charging a driver with
criminal refusal if the driver refused to take a breath test but
agreed to a take an independently administered blood test.  After
Officer Weske called another officer to verify that policy, he
explained to Shakespeare that if she took the blood test, the
police would not charge her criminally, but the Alaska Department
of Public Safety would nonetheless administratively revoke her
driver's license.  Shakespeare then signed the notice and
revocation order form, acknowledging that she read and understood
it, and surrendered her license.
          The officers took Shakespeare to the hospital, arriving
there at around 10:19 p.m.  After learning that her own doctor
would not administer the independent blood test, Shakespeare said
that she would rather take the breath test.  This request came
within thirty minutes after her refusal to give a breath sample at
the trooper detachment.  Officer Weske told her that he thought her
consent was too late, but he called an assistant district attorney
for advice and was told to proceed with the blood test and also to
administer the breath test if Shakespeare still wanted to be given
that test.  The nurse had difficulty drawing Shakespeare's blood
and it took about an hour to obtain a blood sample.  The two
officers and Shakespeare then drove to the Juneau Police
Department.  They again waited the required fifteen minutes, and
Shakespeare took the breath test at 11:42 p.m.  The test results
showed that Shakespeare's breath contained .070 grams of alcohol
per 210 liters of breath; this was under the legal limit for
driving in Alaska. [Fn. 1] 
          Although Shakespeare had finally submitted to a breath
test, the Department of Public Safety, Division of Motor Vehicles,
administratively revoked her driver's license.  Shakespeare
requested and received a hearing, after which the hearing officer
affirmed the license revocation. [Fn. 2]
          Shakespeare appealed to the superior court, which held
that by accommodating Shakespeare's request to take a breath test,
the officers had allowed her to cure her prior refusal.  The
superior court remanded the case to the Department of Public Safety
and directed the agency to reinstate Shakespeare's license.  The
department appeals. [Fn. 3]
III. DISCUSSION
     A.   Standard of Review
          We review the Department of Public Safety's revocation of
Shakespeare's driver's license independently of the superior court,
which was acting as a court of intermediate appeal. [Fn. 4]  We
review issues of law not involving agency expertise, such as
statutory interpretation and constitutional issues, under a
"substitution of judgment" standard. [Fn. 5]  Application of this
standard permits a reviewing court to substitute its own judgment
for the agency's, even if the agency's decision had a reasonable
basis in law. [Fn. 6] 
     B.   Implied Consent Law and Administrative Revocation
          Under Alaska's implied consent statutes, drivers are
considered to have given consent to a breath test. [Fn. 7]  A law
enforcement officer may therefore ask a person to submit to a
breath test if the officer has reasonable grounds to believe that
the person has operated a vehicle while intoxicated. [Fn. 8]  If
the driver refuses to submit to the test, his or her driver's
license may be administratively revoked by the Department of Public
Safety and the driver may also be subject to criminal penalties.
[Fn. 9]  For the department's administrative revocation to be
effective, the officer must first read and deliver proper notice to
the driver and then must seize the license for delivery to the
department. [Fn. 10]  The purpose of the administrative revocation
statute is to compel drivers to submit to a breath test that
provides evidence of intoxication. [Fn. 11]
          If a driver is arrested for driving while intoxicated,
the arrestee has a right to an independent blood test. [Fn. 12] 
But this right does not give a driver a choice of tests under the
implied consent statutes. [Fn. 13]
          We have not considered whether the Department of Public
Safety may administratively revoke a license under the implied
consent statutes if the driver, after first refusing to submit to
a breath test, ultimately consents to be tested and is then
actually tested.  But we have considered the circumstances in which
a driver may affirmatively defend against an administrative license
revocation by asserting that he or she has "cured" the refusal even
though a test was not ultimately administered.
          In Pruitt v. State, Department of Public Safety, [Fn. 14]
we first considered whether a person should be allowed to "cure" a
refusal to take a breath test by subsequently consenting. [Fn. 15] 
We adopted a flexible test and concluded that the licensee must
prove by a preponderance of the evidence: 
          [T]hat the subsequent consent occurred within a
reasonable time after the prior first refusal; that the test
administered following the subsequent consent will still be
accurate; that the test will not result in any substantial expense
or inconvenience to the police; and that the arrestee has been in
continuous custody of the arresting officer and under observation
for the entire time.[ [Fn. 16]]  

          About thirty minutes passed between Shakespeare's
explicit refusal to be tested and her subsequent consent.  But
because she consented at the hospital, the officers had to take
Shakespeare to the Juneau Police Department to administer the
breath test.  Pruitt concerned an arrestee who sprayed breath spray
down his throat before he consented to take a breath test,
requiring an additional twenty-minute observation period before he
could be tested. [Fn. 17]  We stated that "such delay would pose a
substantial burden on the officer who then had custody of Pruitt
since the officer would have been prevented from fulfilling other
duties." [Fn. 18]
          Similarly, it appears that Shakespeare's vacillation
substantially burdened these police officers.  But the
circumstances here render the officers' pre-testing burden
irrelevant.  At least when officers actually administer a breath
test and obtain potentially probative evidence [Fn. 19] after a
driver withdraws a prior refusal, it would be unfair and
inconsistent to treat the earlier refusal as justification for
administratively revoking the driver's license.
          We therefore hold that when a DWI arrestee initially
refuses a breath test, and then changes his or her mind and offers
to take the test, the police must decide whether to permit him or
her to give a breath sample.  If the police administer the test and
obtain potentially probative results, the arrestee's license may
not be administratively revoked for the prior refusal to be tested. 
If the police do not administer a test, the department may revoke
the license unless the arrestee meets the burden of proving, under
Pruitt, that he or she cured the refusal.  Here the officers
permitted the driver to give a breath sample.  Her prior refusal,
therefore, cannot be the basis for administratively revoking her
license.
IV.  CONCLUSION          
          Because Shakespeare, with the officers' permission,
actually gave a breath sample providing potentially probative
evidence, her license may not be administratively revoked despite
her earlier refusal to be tested.  We therefore AFFIRM the superior
court's decision remanding the case to the Department of Public
Safety for reinstatement of Shakespeare's license.


                            FOOTNOTES


Footnote 1:

     See AS 28.35.030(a)(2) ("A person commits the crime of driving
while intoxicated . . . when, as determined by a chemical test
taken within four hours after the alleged offense was committed .
. . there is 0.10 grams or more of alcohol per 210 liters of the
person's breath.").


Footnote 2:

     The Department of Administration conducted the hearing. See AS
28.05.141; 13 Alaska Administrative Code (AAC) 67.290-.310.


Footnote 3:

     We note with disapproval that the appellant's excerpt of
record fails to include the superior court order.  See Alaska R.
App. P. 210(c)(2).


Footnote 4:

     See Barcott v. Department of Pub. Safety, 741 P.2d 226, 228
(Alaska 1987).


Footnote 5:

     See Church v. State, Dep't of Revenue, 973 P.2d 1125, 1127
(Alaska 1999).


Footnote 6:

     See Earth Resources Co. v. State, Dep't of Revenue, 665 P.2d
960, 965 (Alaska 1983).


Footnote 7:

     See AS 28.35.031(a).


Footnote 8:

     See id.


Footnote 9:

     See AS 28.35.031-.032; AS 28.15.165.


Footnote 10:

     See AS 28.15.165(a)-(b).


Footnote 11:

     See Lundquist v. Department of Pub. Safety, 674 P.2d 780, 785
(Alaska 1983).


Footnote 12:

     See Snyder v. State, 930 P.2d 1274, 1277-78 (Alaska 1996).


Footnote 13:

     See AS 28.15.165(a); AS 28.33.031(a); AS 28.35.031(a), (g);
Snyder v. State, 879 P.2d 1025, 1027 (Alaska App. 1994), rev'd on
other grounds, 930 P.2d 1274 (Alaska 1996).  If not impracticable,
police must accommodate a request for an independent blood test and
assist an arrestee in obtaining one because of the arrestee's due
process right to obtain exculpatory evidence.  See Snyder, 930 P.2d
at 1277-78.  Under Alaska's implied consent statutes, police may,
but are not required to, accommodate a reasonable request to accept
another type of test.  See Snyder, 879 P.2d at 1027.


Footnote 14:

     825 P.2d 887 (Alaska 1992).


Footnote 15:

     See id. at 892.


Footnote 16:

     Id. at 894.


Footnote 17:

     See id. at 894-95.


Footnote 18:

     Id. 


Footnote 19:

     Our analysis does not turn on whether test results are
inculpatory or exculpatory.  Shakespeare was tested about three
hours and fifteen minutes after officers saw her drive.  Her test
provided evidence potentially probative of the issue of
intoxication.  See AS 28.35.030(a) ("A person commits the crime of
driving while intoxicated if the person operates or drives a motor
vehicle . . . (2) when, as determined by a chemical test taken
within four hours after the alleged offense was committed, . . .
there is 0.10 grams or more of alcohol per 210 liters of the
person's breath . . . .").  When tested, Shakespeare's breath was
below the statutory limit.  Courts have recognized that litigants
may adduce evidence extrapolating backwards from breath alcohol
test results to determine a person's breath alcohol at an earlier
time.  See Hoyle v. Peterson, 343 N.W.2d 730, 734 (Neb. 1984).  We
need not consider here the effect of allowing a driver to be tested
more than four hours after the alleged offense.