Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Blank (02/27/2004) sp-5783

This has been WITHDRAWN - see Opinion # 5802

State v. Blank (02/27/2004) sp-5783

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA
                                

STATE OF ALASKA,              )
                              )    Supreme Court No. S-9721
             Petitioner,           )
                              )    Court of Appeals No. A-6541
     v.                       )    Superior Court No. 3PA-94-2829
CR
                              )
LAURA A. BLANK,               )    O P I N I O N
                              )
             Respondent.      )    [No. 5783 - February 27, 2004]
________________________________)


          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from   the  Superior  Court,  Third  Judicial
          District, Palmer, Beverly W. Cutler, Judge.

          Appearances:     Kenneth    M.    Rosenstein,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Bruce  M. Botelho, Attorney General,  Juneau,
          for   Petitioner.   Christine  S.   Schleuss,
          Anchorage, for Respondent.

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

          EASTAUGH, Justice.
          MATTHEWS,   Justice,  with  whom   CARPENETI,
          Justice, joins, dissenting in part.
I.   INTRODUCTION

           A  state trooper conducted a warrantless search  of  a

driver's breath following a fatal accident.  Was this potentially

a  valid exigent circumstances search even though the driver  was

not arrested substantially contemporaneously with the search?  We

first  hold  that  an  arrest is not a prerequisite  to  a  valid

exigent circumstances warrantless breath test.  Next, we construe

AS 28.35.031(g) as satisfying minimal constitutional requirements

for  warrantless searches when exigent circumstances  exist.   We

also  hold  that  the trooper had probable cause  to  arrest  the

driver for negligent homicide or manslaughter and probable  cause

to  believe that a breath test would produce relevant evidence of

those  crimes.   But because neither the superior court  nor  the

court  of appeals reached the issue whether exigent circumstances

justified this search, we remand so the superior court  can  make

this determination.

II.  FACTS AND PROCEEDINGS

           A  vehicle driven by Laura Blank fatally struck Pennye

McDowell  as she walked with a companion on a residential  street

near  Palmer on September 26, 1994.1  Blank and her two daughters

were driving home from her friend's house.  Blank did not stop.2

           Blank's  husband, Greg Blank, arrived at the  accident

scene  while  Alaska  state troopers were  investigating.3   Greg

Blank  told  Trooper  Bill Tyler that his wife  might  have  been

involved  in the accident.4  Trooper Tyler and two other officers

followed Greg back to the Blank residence.5  There, Trooper Tyler

interviewed  Laura Blank in his patrol car.6  Trooper  Tyler  did

not place Blank under arrest.7

           Blank told Trooper Tyler during the interview that she

had consumed two beers at her friend's house before driving home.8

Without  attempting  to  obtain a search warrant,  Trooper  Tyler

asked  Blank to take a preliminary breath test.9  Blank submitted

to  the  test.   The test registered a blood-alcohol  content  of

.082%.10   Blank  also agreed to accompany  Trooper  Tyler  to  a

hospital  for  a  blood  test, but she  refused  consent  at  the

hospital.11  No blood sample was drawn.

           The  grand  jury indicted Blank in December  1994  for

manslaughter12  and  leaving the scene  of  an  accident.13   The

superior court denied Blank's motion to suppress evidence of  the

preliminary breath test.  The superior court held that  the  test

was  authorized by AS 28.35.031(g), which provides  that  "a  law

enforcement  officer who has reasonable grounds to  believe  that

[a] 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" may administer blood or breath

alcohol  tests  of  the person based on the individual's  implied

consent.   Following a mistrial, a jury convicted Blank  on  both

counts of the indictment.14

          Blank appealed, and the court of appeals reversed.15  It

concluded  that AS 28.35.031(g) violates the search  and  seizure

provisions  of the federal and state constitutions  because  "the

statute allows the officer to administer the test(s) without  any

individualized suspicion that the driver was impaired, whether by

alcohol  or  drugs,  or  even any evidence  that  the  driver  or

operator caused the accident."16  The court of appeals also ruled

that  the preliminary breath test did not fall within the exigent

circumstances exception to the warrant requirement, because Blank

was  not  placed under arrest, as required by Layland v. State,17

before or substantially contemporaneously with the search.18

           The  State of Alaska filed a petition for hearing with

this  court, and Blank filed a cross-petition.  We denied Blank's

cross-petition,  but  granted the state's petition  as  to  three

issues:  (1) does AS 28.35.031(g) authorize a reasonable  search?

(2)  can AS 28.35.031(g) be given a saving construction? and  (3)

was  the  preliminary breath test administered to Blank justified

under   the  exigent  circumstances  exception  to  the   warrant

requirement?

III. DISCUSSION

           We  hold  that Trooper Tyler's warrantless  search  of

Blank's  breath  was  constitutional if it was  a  valid  exigent

circumstances search.19        Whether a particular search  falls

within  an exception to the warrant requirement is a question  of

law,  which we review de novo.  State v. Page, 911 P.2d 513, 515-

16 (Alaska App. 1996).

           First,  we  agree in Part III.A with  the  state  that

Layland   should   be  overruled  insofar  as   it   required   a

substantially  contemporaneous  arrest  to  justify  an   exigent

circumstances search of a driver's blood alcohol content.

           Having  overruled Layland, we consider in  Part  III.B

whether  AS  28.35.031(g),  as  applied  to  Blank's  warrantless

search,   should   be  read  to  incorporate  the  constitutional

requirements for a valid exigent circumstances search.   We  have

frequently   held  that  this  statute  provides  the   exclusive

authority for administering a police-initiated chemical  sobriety

test  to obtain evidence of acts allegedly committed by a  driver

while operating a motor vehicle.20  In other words, a search must

satisfy the statute to be valid.  We have consequently held  that

evidence  obtained from an unauthorized chemical test  should  be

suppressed, even if the test was otherwise constitutional.21  But

that  does not mean that a search that satisfies the statute also

automatically satisfies the constitution.  Accordingly,  we  must

consider  whether  AS  28.35.031(g)  may  be  given  a  narrowing

construction  that avoids constitutional problems when  a  breath

test is administered without a search warrant.

          Finally, in Part III.C, we remand so the superior court

can   determine  whether  exigent  circumstances  justified   the

warrantless search of Blank's breath.

          A.    Schmerber  v.  California  Does  Not  Require   a
          Contemporaneous Arrest.
          
           In  Layland,  a state trooper obtained a blood  sample

without  obtaining  a  search warrant  or  the  driver's  consent

following  an  accident  in which another  person  was  killed.22

Although the trooper had probable cause to arrest the driver  for

negligent  homicide at the time of the search, he did not.23   We

considered   and   rejected  four  exceptions  to   the   warrant

requirement  that might have justified the warrantless  search.24

Regarding the exigent circumstances exception, we interpreted the

United States Supreme Court's decision in Schmerber v. California

to  permit  warrantless blood draws only  in  connection  with  a

substantially contemporaneous arrest.25

          The Court held in Schmerber that the warrantless taking

of blood from a driver arrested for driving while intoxicated was

reasonable because (1) the officer had probable cause  to  arrest

and  to  believe that a blood alcohol test would produce evidence

of  the crime; (2) the officer might reasonably have believed  he

was confronted with an emergency in which the delay necessary  to

obtain a warrant might result in the destruction of evidence; and

(3)  the blood draw was performed in a reasonable manner.26   The

Schmerber Court concluded that "the attempt to secure evidence of

blood-alcohol content in this case was an appropriate incident to

petitioner's arrest."27  In Layland, we interpreted Schmerber  to

require a substantially contemporaneous arrest in addition to the

three requirements Schmerber explicitly discussed.

           The  court of appeals held that Trooper Tyler's search

of  Blank's  breath  could  not be justified  under  the  exigent

circumstances exception because Blank was not placed under arrest

before  or  substantially contemporaneously  with  the  search.28

Although the court of appeals followed Layland, as it was obliged

to  do, it cited and discussed cases and treatises rejecting  the

view  that Schmerber requires a contemporaneous arrest to justify

an  exigent  circumstances  search of  a  driver's  blood-alcohol

content.29

          It is not necessary for us to recapitulate the court of

appeals's  helpful  presentation of these  authorities.   Layland

attempted  to  predict  the direction of  federal  law  following

Schmerber, but we are convinced that subsequent cases have proved

our  prediction  to have been inaccurate.  It  is  sufficient  to

quote  United States v. Chapel, in which the United States  Court

of Appeals for the Ninth Circuit sitting en banc reversed its own

earlier  precedent  interpreting Schmerber to  impose  an  arrest

requirement:

          We   now   know  from  the  Supreme   Court's
          reasoning in a case decided after Harvey that
          the  seizure  of  blood  in  Schmerber  "fell
          within the exigent circumstances exception to
          the  warrant requirement."  Winston  v.  Lee,
          470  U.S.  753, 759 [] (1985).   Seizures  of
          evidence  based  on exigent circumstances  do
          not,  of course have to be accompanied by  an
          arrest. . . . Accordingly, an arrest  is  not
          essential  to  support the intrusion  in  the
          absence  of a warrant, so long as  the  three
          explicit  Schmerber  requirements  are   met.
          Thus,  the  interpretation of Schmerber  that
          formed  the basis of our decision in  Harvey,
          though  plausible at the time, is  no  longer
          sustainable  in  light of Winston.   Harvey's
          arrest requirement therefore cannot stand.30
          
We  agree  with Chapel's reasoning, and overrule Layland  to  the

extent  it required an arrest to justify an exigent circumstances

search  of  a  driver's  blood alcohol content.  Trooper  Tyler's

search of Blank's breath is therefore constitutional if the three

explicit  Schmerber requirements are satisfied:  probable  cause,

exigent circumstances, and reasonable procedures.

          B.    We  Read AS 28.35.031(g), as It Applies to  Laura
          Blank,   To   Incorporate  the  Exigent   Circumstances
          Standard for Warrantless Searches.
          
           The  superior court upheld the search of Laura Blank's

breath  under  AS 28.35.031(g).  This statute authorizes  "a  law

enforcement  officer who has reasonable grounds to  believe  that

[a] 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" to administer blood or  breath

alcohol  tests  to  the person based on the individual's  implied

consent.  The court of appeals held that AS 28.35.031(g) violates

the  search  and  seizure provisions of the  federal  and  Alaska

constitutions  because it "allows the officer to  administer  the

test(s) without any individualized suspicion that the driver  was

impaired."31   Noting that it could construe a statute  to  avoid

constitutional  concerns, the court of appeals declined  to  read

subsection .031(g) to require that police have probable cause  to

believe the tested driver has committed a crime because the court

appropriately  recognized  that  such  a  requirement  would  not

satisfy Layland.32

           The  state  argues  that  we should  read  Schmerber's

probable  cause  requirements  into  the  statute  to  avoid  any

constitutional infirmity.  Because we have overruled Layland,  it

no  longer  constrains  a  court considering  whether  subsection

.031(g)  can  be  given  a  narrowing  construction  that  avoids

constitutional problems.

           Whether  to  apply a narrowing construction  to  avoid

holding a statute unconstitutional is a question of law to  which

we  bring  our  independent judgment.  For  several  reasons,  we

choose  to decide this issue, rather than remand it to the  court

of  appeals, notwithstanding the expertise that court  brings  to

the  field of criminal procedure and law: the issue raises a pure

question  of law; if we were to remand the issue, no matter  what

the  result below, one of the parties might feel compelled to ask

us to review the decision; it is more expeditious for us to reach

this  issue  now; further, a ruling on this issue now will  guide

the  parties  and the superior court in considering the  exigency

issue  on remand and may advance the ultimate termination of  the

case.

           This court will narrowly construe statutes in order to

avoid  constitutional infirmity where that can  be  done  without

doing violence to the legislature's intent.33

           The text of AS 28.35.031(g) is neither explicitly  nor

implicitly inconsistent with the narrowing construction  we  give

it  here.34   The  statute  implicitly  contemplates  warrantless

searches  under circumstances that may be inherently exigent  and

that may consequently render warrantless searches constitutional.

We  therefore construe subsection .031(g) to be constitutional in

context  of warrantless searches for breath or blood in  accident

cases  involving death or serious physical injury  when  probable

cause  to  search exists and the search falls within a recognized

exception  to the warrant requirement.  So construed,  subsection

.031(g)  has  the  effect  of  specifying  that  such  tests  are

authorized  under Alaska's implied consent statute and  therefore

comply  with  the rule set out in Geber,35 which might  otherwise

exclude  the  test  results as unauthorized, even  if  they  were

constitutionally obtained.

           In  context  of the facts presented in this  case,  we

choose to construe subsection .031(g) to incorporate, in addition

to   the   statutory  requirements,  the  exigent   circumstances

requirements   discussed   in  Schmerber.    Thus,   if   exigent

circumstances  were present in this case, the warrantless  search

was valid.36

          C.    We  Remand  to  the Superior Court  To  Determine
          Whether Exigent Circumstances Justified the Search.
          
            Two   of   the  three  requirements  for  an  exigent

circumstances search - probable cause and reasonable procedures -

are  clearly met here.  Before interviewing Blank, Trooper  Tyler

investigated  the  accident scene and learned that  McDowell  was

dead, that Blank may have caused the accident, and that Blank had

left the scene.37 Accordingly, Trooper Tyler had probable cause38

to  believe that Blank had committed two crimes: felony  hit  and

run39 and either negligent homicide or manslaughter.40

          Trooper Tyler also had probable cause to believe that a

search of Blank's breath would produce relevant evidence of these

crimes.  Blank told him that she consumed two beers at a friend's

house  shortly  before the accident, and Trooper Tyler  testified

that  "the  smell of alcohol became quite apparent" once  he  and

Blank  were  sitting in the patrol car.  Trooper Tyler  also  had

substantial  indirect  evidence of  Blank's  possible  impairment

based on the circumstances of the accident.  He learned that  the

pedestrians were walking on the edge and shoulder of  a  straight

section  of road at the time of the accident, that Blank saw  the

pedestrians in time to avoid them but inexplicably failed  to  do

so,  and that Blank's car and the driving conditions were not the

cause  of  the  accident.  Furthermore, Blank told Trooper  Tyler

that  she  did  not stop at the scene because she  did  not  even

realize that she had hit someone.  She initially thought  one  of

the  pedestrians had thrown a rock at the car, and chose to  keep

driving rather than confront them because they were "just kids."

           Thus,  Trooper  Tyler  had  evidence  that  Blank  was

responsible  for  an accident resulting in a fatality,  that  the

accident was likely caused by Blank's inattention, poor judgment,

misperception, poor coordination, or some combination  of  these,

and  that  Blank  smelled  of alcohol and  admitted  to  drinking

shortly before the accident.  We conclude that this evidence  was

more than sufficient under Schmerber to support probable cause to

search Blank's breath.41

           Another  requirement of Schmerber - that a  reasonable

method  of collecting the blood sample be used - is not at  issue

here.   The  procedure used in this case was minimally intrusive,

involving  a breath sample rather than a blood draw.   Blank  has

not  challenged  Trooper  Tyler's qualifications  to  obtain  her

breath  sample  and has alleged no impropriety in the  manner  in

which he conducted her test.42

             Regarding    Schmerber's    exigent    circumstances

requirement, we decline to decide this issue for the  first  time

on  appeal.  Schmerber held that the exigencies posed by  serious

accidents in combination with the rapid dissipation of alcohol in

the  bloodstream  justified the officer's  failure  to  obtain  a

warrant in that case:

          The  officer in the present case . . .  might
          reasonably   have  believed   that   he   was
          confronted  with an emergency, in  which  the
          delay  necessary to obtain a  warrant,  under
          the     circumstances,    threatened     "the
          destruction of evidence."  We are  told  that
          the percentage of alcohol in the blood begins
          to  diminish shortly after drinking stops, as
          the  body functions to eliminate it from  the
          system.  Particularly in a case such as this,
          where  time  had  to be taken  to  bring  the
          accused to a hospital and to investigate  the
          scene  of the accident, there was no time  to
          seek   out   a   magistrate  and   secure   a
          warrant.[43]
          
Many   courts  have  implicitly  or  explicitly  held  that   the

dissipation  of  alcohol  always creates sufficient  exigency  to

dispense  with the warrant requirement,44 although at  least  one

court  has held that the state must prove exigency on a  case-by-

case basis.45

           But  we  decline to address this aspect of the exigent

circumstances question presented in this case.  Because the lower

courts  were obliged to follow Layland's arrest requirement,  and

because  there  was  no  dispute  that  Blank  was  not  arrested

contemporaneously with the search of her breath, no  lower  court

has  yet reached the issue whether exigent circumstances actually

justified Trooper Tyler's search.  Accordingly, we remand to  the

superior  court the issue whether exigent circumstances justified

Trooper Tyler's search of Blank's breath.

IV.  CONCLUSION

           For  these reasons, we REVERSE the court of  appeals's

decision  requiring suppression of the breath  test  results  and

REMAND  so that the superior court can determine whether  exigent

circumstances justified the warrantless search.

MATTHEWS,   Justice,   with  whom  CARPENETI,   Justice,   joins,

dissenting in part.

          I disagree with one aspect of today's opinion.  Instead

of  remanding so that the superior court may decide in the  first

instance  whether  exigent circumstances are  inherently  present

where there is a breathalyzer test under AS 28.35.031(g) based on

probable  cause that the person tested has committed a crime  and

that  the test will produce relevant evidence (and if not whether

exigent circumstances existed under the particular facts of  this

case),  I  think this court should decide the question now.   The

homicide  in  this case occurred more than nine  years  ago,  and

further  delay  should be avoided, if reasonably  possible.   The

question  is  briefed,  and the state of the  law  is  accurately

represented  in  notes  44 and 45 and the  related  text  of  the

court's  opinion.  All that remains is for the court  to  make  a

decision.

           The decision is not a difficult one.  Because the body

dissipates  alcohol  over  the  course  of  a  few  hours,   most

jurisdictions  have held that an exigency exists  that  dispenses

with  the  need  for  a  warrant  whenever  alcohol  is  relevant

evidence.46  Of course probable cause to believe that the  person

to  be  tested has committed a crime and that a test for  alcohol

will  produce  relevant  evidence is  still  required.   For  the

reasons  that  follow, I agree with the majority  rule  when,  as

here,  the search in question is no more intrusive than a  breath

test.

           First,  the  physiological basis for the  rule  -  the

relatively rapid elimination of alcohol from the body - is beyond

dispute.  The rule is easy for the police officer in the field to

understand  and  follow.   It  eliminates  difficult  and   often

undeterminable questions - and litigation of those questions - as

to  whether  a  warrant application might have been prepared  and

presented to a judge in time for a warrant to have issued  and  a

test  conducted before alcohol levels were diminished beyond  the

limits of reliable testing.

           Second,  we  adopted a categorical  approach  to  body

alcohol  evidence  under  an exigent circumstances  exception  in

Anchorage  v.  Geber.47  There we rejected an argument  that  the

defendant  had  a  right  to have counsel  present  during  field

sobriety  tests that were conducted at the police  station  after

the  defendant had already been arrested.48 She argued  that  the

right to counsel at such tests was analogous to the right to have

counsel  present at a pre-indictment line-up.  We had  recognized

in Blue v. State49 that the latter right was subject to an exigent

circumstances exception - "unless exigent circumstances exist  so

that  providing counsel would unduly interfere with a prompt  and

purposeful investigation."50  In Geber we rejected the defendant's

right   to  counsel  argument  categorically,  without  examining

whether  under the particular facts of the case the  presence  of

counsel  at  the police station could have quickly been  secured.

We stated:

                 Field  sobriety  tests  are  used   to
          determine whether a suspect has used  alcohol
          and,  if  so, the degree to which his  mental
          and  physical skills have been impaired.   It
          is  common  knowledge that one's  ability  to
          perform  such  tests  is  influenced  by  the
          percentage  of alcohol in his or  her  blood,
          and  that that percentage diminishes with the
          passage of time.  Such being the case, if the
          tests  are  to provide any real indicator  of
          the degree of impairment, if any, existing at
          the time of the alleged offense, they must be
          performed  as  soon thereafter  as  possible.
          This fact alone distinguishes such cases from
          the  usual lineup situation . . . , where the
          passage  of a few hours would have little  or
          no effect.[51]
          
Geber's  categorical,  rather  than  case-by-case,  treatment  of

diminishing  alcohol-related  evidence  in  the  context  of  the

exigent circumstances exception to the right to counsel indicates

that  a  similar approach should be taken in the context  of  the

same exception to the warrant requirement.52

           Finally,  an especially persuasive reason to  conclude

that  no  case-by-case  examination of exigent  circumstances  is

required for breath searches under subsection .031(g) lies in the

fact  that the underlying rationale for such searches is the same

as the rationale for garden variety drunk driving breath searches

under  subsection .031(a).  As to the latter it is clear that  no

case-by-case examination of exigent circumstances is  required.53

Because this categorical treatment of the exigency requirement is

valid  with respect to subsection .031(a), such treatment  should

likewise be valid when applied to subsection .031(g).

           Subsections  .031(a) and .031(g) both  give  statutory

authorization for breath tests.54  The first applies  to  typical

drunk  driving  situations whereas the second  applies  to  cases

where  there is a car accident involving death or serious  injury

to  another  person.   Under  both subsections,  the  reason  for

administering the breath test is to obtain relevant  evidence  of

the person's blood alcohol content.  The rationale underlying the

treatment  of  exigency under both subsections is the  same:   to

avoid  the destruction of evidence through the body's dissipation

of  alcohol.   And  the elements required for a  constitutionally

permissible search under Schmerber v. State of California are the

same for both subsections: (1) probable cause to believe that the

person to be tested has committed a crime; (2) probable cause  to

believe that a breath test will produce evidence relevant to  the

crime;  and (3) exigent circumstances.55   Because the  rationale

and  the constitutional requirements for subsections .031(a)  and

.031(g)  are  the  same,  there is no  reason  to  recognize  the

inherent exigency created by the presence of alcohol in the  body

when  subsection .031(a) is in play but fail to do  so  when  the

subsection in question is .031(g).

           Today's opinion makes clear that it is probable cause,

not  the  fact  of the arrest, that justifies a search  for  body

alcohol  content.   As  construed  today,  the  requirements   of

subsections .031(a) and .031(g) are parallel.56  When the  police

officer  on  the scene can make the probable cause determinations

required  by  Schmerber under subsection (a)  as  to  crimes  (a)

applies to, he can administer a breath test.  There is no  reason

to require more when the officer makes the same determinations in

a  case  arising under subsection (g) as to crimes to which  that

subsection applies.

           Today's  opinion  holds that the  police  officer  who

tested Blank had probable cause to believe that she had just been

involved in a motor vehicle accident causing death, that she  had

committed  a  crime,  and that a breath test  for  alcohol  would

produce  relevant evidence.  I agree with these  conclusions  and

believe  that  since they parallel the constitutionally  required

elements  for  a  search  under  subsection  .031(a)  we   should

conclude,  as  in  cases  arising  under  .031(a),  that  exigent

circumstances  sufficient to justify the  breath  test  that  was

given  were  present.   As the Fourth Circuit  stated  in  United

States v. Reid:

                Society  has a recognized  interest  in
          protecting  its citizens from drunk  drivers.
          Breathalyzer  tests cause a lesser  intrusion
          than  blood  tests.  Time is of  the  essence
          when  testing for alcohol in the bloodstream.
          The  combination  of these factors  sets  out
          exigent circumstances which are sufficient to
          require  that the police be allowed  to  test
          drunk  drivers without first having to obtain
          a warrant.[57]
          
            For  these  reasons,  I  conclude  that  the  exigent

circumstances  exception  to  the warrant  requirement  has  been

satisfied  and would therefore remand this case with instructions

to reinstate Blank's conviction.

_______________________________
1    Blank v. State, 3 P.3d 359, 362 (Alaska App. 2000).  We take
many of the facts from the opinion of the court of appeals.
2    Id.
3    Id.
4    Id.
5    Id.
6    Id.
7    Id.
8    Id.
9     Blank never verbally acknowledged this request, and  it  is
not  clear that she actually heard it, but she submitted  to  the
test  without hesitation or complaint.  The superior  court  held
that  Blank's  acquiescence to Trooper Tyler's  request  did  not
satisfy  the consent exception to the warrant requirement because
she did not make "a knowing, voluntary, and intelligent choice to
submit  to the test."  The court of appeals did not address  this
issue,  and the state did not seek review of the superior court's
ruling  before this court.  Therefore, we assume that the consent
exception is inapplicable in this case.
10    Blank, 3 P.3d at 362.
11    Id.
12    AS 11.41.120(a).
13    AS 28.35.060(a).
14    Blank, 3 P.3d at 362.
15    Id. at 371.
16    Id. at 366, 368.  The court of appeals noted that the United
States  Supreme Court has authorized some types of searches  even
without individualized suspicion where the search served "special
needs"  beyond ordinary law enforcement.  Id. (citing Skinner  v.
Ry.  Labor  Executives' Ass'n, 489 U.S. 602,  619  (1989)).   The
court   of  appeals  held  this  doctrine  inapplicable   because
subsection .031(g) does not address "special societal needs other
than   normal  law  enforcement."   Id.  at  367-68.   The  state
initially contested this conclusion in its opening brief to  this
court, but abandoned this tack in its reply brief, admitting that
the primary purpose of the searches authorized by AS 28.35.031(g)
is  to  generate evidence for criminal prosecution.  See Ferguson
v.  City  of  Charleston, 532 U.S. 67, 83  (2001)  (holding  that
special  needs  doctrine  is  inapplicable  to  warrantless  drug
testing  of  pregnant women because "immediate objective  of  the
searches was to generate evidence for law enforcement purposes").
17    535 P.2d 1043, 1047-49 (Alaska 1975).
18    Blank, 3 P.3d at 370-71.
19    A breath test is a search.  Skinner v. Ry. Labor Executives'
Ass'n,  489  U.S. 602, 616-17 (1989) (breath tests  are  searches
under  Fourth Amendment); Burnett v. City of Anchorage, 806  F.2d
1447, 1449 (9th Cir. 1986) (same); Leslie v. State, 711 P.2d 575,
576  (Alaska App. 1986) (same).  Warrantless searches are per  se
unreasonable  unless they fall within one of the "well-delineated
exceptions"  to the warrant requirement.  Mincey v. Arizona,  437
U.S.  385, 390 (1978); Lupro v. State, 603 P.2d 468, 476  (Alaska
1979).

20     Sosa  v. State, 4 P.3d 951, 953-54 (Alaska 2000); Pena  v.
State,  684 P.2d 864, 867 (Alaska 1984); Anchorage v. Geber,  592
P.2d  1187, 1192 (Alaska 1979).  We have thus held that  evidence
obtained from an unauthorized chemical test should be suppressed,
even  if the test was otherwise constitutional.  Geber, 592  P.2d
at 1192 & n.8.
21    Geber, 592 P.2d at 1192.
22    535 P.2d at 1044.
23    Id. at 1044, 1047 & n.22.
24    Id. at 1046-50.
25    Id. at 1045, 1048-49 (interpreting Schmerber v. California,
384 U.S. 757 (1966)).
26    384 U.S. at 768-72.
27    Id. at 771 (emphasis added).
28    Blank, 3 P.3d at 368-70.
29    Id. at 369-70.
30     55  F.3d 1416, 1418-19 (9th Cir. 1995) (overruling  United
States v. Harvey, 701 F.2d 800, 803-04 (9th Cir. 1983)).
31    Blank, 3 P.3d at 366, 368.
32    Id. at 368-69.
33      State v. Alex, 646 P.2d 203, 207-08 (Alaska 1982) (citing
Bonjour  v.  Bonjour, 592 P.2d 1233, 1237-38 (Alaska 1979)).   In
State v. Alex we noted that only a reasonable construction may be
placed on a statute in this manner, because giving the statute an
unintended   meaning  "would  be  stepping  over  the   line   of
interpretation   and  engaging  in  legislation."   Id.   (citing
Gottschalk v. State, 575 P.2d 289, 296 (Alaska 1978)).
34    AS 28.35.031(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 probable
          cause   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.
          
35    592 P.2d at 1192 & n.8.
36     We consider only the exigent circumstances exception  here
because Blank was not arrested and there is no reason to consider
in  this  case  whether some other exception might  theoretically
apply.
37    Blank, 3 P.3d at 362.
38      Probable  cause  to  arrest  exists  if  the  facts   and
circumstances known to the officer would warrant a prudent person
in believing that the defendant had committed an offense.  Schmid
v. State, 615 P.2d 565, 574 (Alaska 1980).
39    AS 28.35.060(a).
40     AS 11.41.120 (defining manslaughter to include "recklessly
caus[ing] the death of another person"); AS 11.41.130 ("A  person
commits  the  crime  of criminally negligent  homicide  if,  with
criminal  negligence,  the person causes  the  death  of  another
person.").

41     Numerous  cases  from  other  jurisdictions  support  this
conclusion.   See  DeVaney v. State, 288 N.E.2d  732,  735  (Ind.
1972) (holding that involvement in serious auto accident and odor
of  liquor  on breath sufficient to establish probable  cause  to
extract  blood  sample under Schmerber); State v.  Oevering,  268
N.W.2d  68,  74 (Minn. 1978) (holding that officer  had  probable
cause  to  extract blood where officer knew traffic fatality  had
occurred, witness identified driver, and officer smelled  alcohol
on  driver's  breath); Turner v. State, 726 So.  2d  117,  126-27
(Miss. 1998) (concluding that officer had probable cause to order
blood  test based on his knowledge that driver had collided  with
rear  end  of another vehicle stopped at traffic signal, occupant
of  other  vehicle  was killed in accident, and officer  believed
driver  was  intoxicated); Commonwealth v. Simon, 655 A.2d  1024,
1027   (Pa.  Super.  1995)  (noting  that  superior  court   "has
repeatedly upheld probable cause to conduct a blood alcohol  test
.  .  .  where the defendant has looked and smelled like  he  has
consumed  alcohol and a serious one car or head-on  accident  has
occurred") (citations omitted).
42     Blank  has  also  not asserted that  the  results  of  her
preliminary  breath test were inadmissible for any  reason  other
than  the  alleged illegality of the warrantless seizure  of  her
breath.   Because the general admissibility of lawfully  obtained
PBT  results has not been questioned here, we express no  opinion
on that topic.
43    Schmerber, 384 U.S. at 770-71 (citations omitted).
44     E.g.,  United States v. Reid, 929 F.2d 990, 993 (4th  Cir.
1991)  (categorically rejecting defendant's argument  that  state
could  have  obtained warrant prior to extracting  blood  because
"compliance  with [federal telephonic warrant] rules takes  time.
Time  is  what  is lacking in these circumstances.");  Ry.  Labor
Executives' Ass'n v. Burnley, 839 F.2d 575, 583 (9th  Cir.  1988)
("We can agree that the exigencies of testing for the presence of
alcohol and drugs in blood, urine or breath require prompt action
which precludes obtaining a warrant.") (citations omitted), rev'd
on  other  grounds,  Skinner v. Ry. Labor Executives' Ass'n,  489
U.S. 602, 613 (1989); People v. Sheperd, 906 P.2d 607, 610 (Colo.
1995)   (presuming  exigency  and  allowing  warrantless   search
"[b]ecause  alcohol dissipates quickly in the blood");  State  v.
Ravotto,  777 A.2d 301, 315 (N.J. 1991) (finding that "consistent
with Schmerber and our analogous case law, the dissipating nature
of the alcohol content in defendant's blood presented an exigency
that   required  prompt  action  by  the  police.   Under   those
conditions,  a  warrantless  search was  justified.");  State  v.
Bohling,  494 N.W.2d 399, 400 (Wis. 1993) ("[T]he dissipation  of
alcohol  from  a person's blood stream constitutes  a  sufficient
exigency to justify a warrantless blood draw.").
45      State  v.  Moylett,  836  P.2d  1329,  1335  (Or.   1992)
(suppressing  blood  test where police  "could  have  obtained  a
search  warrant without sacrificing evidence").  Moylett  further
noted,  however,  that  "[i]n the context of  an  alcohol-related
crime,  there commonly will be an exigency because, as we already
have noted, a suspect is `a vessel containing evidence of a crime
he  had  committed  - evidence that [i]s dissipating  with  every
breath he t[akes].' "  Id. (citation omitted).
46     Authorities in addition to those set out in footnote 44 of
the opinion of the court indicating that alcohol creates a per se
exigency  include:   State v. Cocio, 709 P.2d 1336,  1345  (Ariz.
1985)  (evanescent nature of alcohol in defendant's blood  stream
is  exigent  circumstance since alcohol in a suspect's  blood  is
certain  to disappear); People v. Ritchie, 130 Cal. App. 3d  455,
458  (Cal.  App. 1982) ("In intoxication by alcohol, the  special
factor  that  the  percentage of alcohol in the blood  begins  to
diminish  shortly after its consumption triggers the  warrantless
intrusion into the body."); State v. Taylor, 531 A.2d 157, 160-61
(Conn. App. 1987) (exigent circumstance consisting of dissipation
of  blood alcohol content justified breathalyzer tests); State v.
Entrekin,  47  P.3d  336, 348 (Haw. 2002) (exigent  circumstances
clearly  present  because alcohol dissipates  from  bloodstream);
State  v.  Woolery,  775  P.2d 1210, 1212  (Idaho  1989)  ("[T]he
destruction  of the evidence by metabolism in the blood  provides
an  inherent exigency which justifies the warrantless  search.");
DeVaney  v.  State,  288  N.E.2d 732, 735  (Ind.  1972)  (exigent
circumstances present since the evidence of blood alcohol content
"might  soon  disappear during the time necessary to  obtain  the
warrant");  State  v. Baker, 502 A.2d 489, 493 (Me.  1985)  ("The
bodily  process  that  eliminates alcohol also  provides  exigent
circumstances  obviating  the  need  for  a  warrant   prior   to
administering a blood test."); State v. Lerette, 858 S.W.2d  816,
819   (Mo.  1993)  (exigent  circumstances  exist  because   "the
percentage  of alcohol in the bloodstream diminishes  with  time"
and  "the delay caused by having to obtain a warrant might result
in  the  destruction of evidence"); Commonwealth v.  Anderl,  477
A.2d 1356, 1364 (Pa. Super. 1984) ("[T]he warrantless seizure  of
the  appellant's alcohol-laden breath is valid either as a search
incident   to  arrest  or  a  search  necessitated   by   exigent
circumstances;  i.e., the evanescent nature  of  the  alcohol  in
appellee's [sic] bloodstream.");  State v. Humphreys,  70  S.W.3d
752,  760-61 (Tenn. Crim. App. 2001) ("Based upon the  fact  that
evidence  of  blood  alcohol content begins to  diminish  shortly
after  drinking stops, a compulsory breath or blood  test,  taken
with  or  without  the  consent of the donor,  falls  within  the
exigent  circumstances  exception to the warrant  requirement.");
Aliff  v.  State,  627  S.W.2d 166, 170 (Tex.  Crim.  App.  1982)
(because  "alcohol in blood is quickly consumed and the  evidence
would be lost forever," the warrantless taking of blood does  not
violate the Fourth Amendment); Tipton v. Commonwealth, 444 S.E.2d
1, 3 (Va. App. 1994) ("[E]xigent circumstances existed due to the
dissipating  nature  of  alcohol  in  the  blood.");  Bennett  v.
Coffman,  361  S.E.2d 465, 469 (W. Va. 1987) overruled  on  other
grounds  by State v. Chase Securities, Inc., 424 S.E.2d  591  (W.
Va.  1992) (Warrantless administration of blood-alcohol test  did
not   violate   plaintiff's  constitutional   rights   based   on
"destruction of evidence" exception to the warrant requirement).
47    592 P.2d 1187 (Alaska 1979).
48    Id. at 1192.
49    558 P.2d 636 (Alaska 1977).
50    Geber, 592 P.2d at 1191 (quoting Blue, 558 P.2d at 642).
51    Id.
52     In  some  other  circumstances  the  presence  of  exigent
circumstances is also analyzed categorically, rather  than  on  a
case-by-case  basis.  When an arrest is made  and  a  search  for
evidence  is  conducted,  the justification  for  the  search  is
exigent  circumstances,  because otherwise  the  person  arrested
might  destroy or dispose of the evidence.  McCoy v.  State,  491
P.2d  127,  135-37  (Alaska  1971);  Hinkel  v.  Municipality  of
Anchorage,  618  P.2d 1069, 1070 (Alaska 1980) (recognizing  "the
two  reasons justifying searches incident to arrests,  protecting
the   arresting   officer  and  preventing  the  destruction   of
evidence").   When,  in the course of such  a  search,  a  closed
container is found on the person arrested, the container  may  be
opened  without a warrant.  Id. at 1070; Middleton v. State,  577
P.2d  1050, 1055 (Alaska 1978); McCoy, 491 P.2d at 139.  This  is
so even though it would be possible for the police to simply take
the  container  from the person - thus removing the  exigency  of
possible  destruction of evidence - and seek a warrant to  search
the container.  Hinkel, 618 P.2d at 1070 (recognizing that "it is
not  strictly necessary to open a closed container found  on  the
person  of  one who is arrested in order to protect the arresting
officer  from  the  use  of a hidden weapon  or  to  prevent  the
destruction   of  evidence.   These  goals  can   ordinarily   be
accomplished simply by seizing the container and removing it from
the reach of the arrestee.").
53     AS  28.35.031(a) is similar to "implied consent"  statutes
that  exist  in most other states.  It has been in existence  for
more  than  34 years, see ch. 83,  1, SLA 1969, and has  received
judicial approval.  See Burnett v. Anchorage, 678 P.2d 1364, 1372
(Alaska  App.  1984)  (Bryner,  C.J.,  concurring);  Burnett   v.
Municipality of Anchorage, 806 F.2d 1447, 1451 (9th  Cir.  1986).
Similar   "implied  consent"  statutes   have  "almost  uniformly
withstood  various constitutional attacks."  State v. Moore,  483
P.2d  630,  632  (Wash. 1971) (en banc);  see  e.g.,   Kellum  v.
Thorneycroft  ex rel. Arizona Highway Dep't Motor  Vehicle  Div.,
649  P.2d 994, 995-96 (Ariz. App. 1982); Spurlock v. Dep't  Motor
Vehicles,  1 Cal. App. 3d 821, 830 (1969); People v.  Brown,  485
P.2d  500 (Colo. 1971) (en banc); Morrow v. State, 303 A.2d  633,
635 (Del. 1973); People v. Farr, 347 N.E.2d 146, 149 (Ill. 1976);
Newman  v.  Stinson,  489 S.W.2d 826, 830 (Ky.  1972);  State  v.
Manley, 202 N.W.2d 831, 833 (Neb. 1972); Anderson v. MacDuff, 143
N.Y.S.2d 257, 259 (N.Y. Sup. 1955); State v. Starnes, 254  N.E.2d
675,  678-80 (Ohio 1970); Winter v. Mayberry, 533 P.2d  968,  969
(Okla. 1975); Haag v. Commonwealth, 443 A.2d 888, 889 (Pa. 1982);
State v. Brean, 385 A.2d 1085, 1088 (Vt. 1978).
54    AS 28.35.031(a) provides in relevant part:

                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
          for  the  purpose of determining the  alcohol
          content  of the person's blood or  breath  if
          lawfully arrested for an offense arising  out
          of  acts alleged to have been committed while
          the  person was operating or driving a  motor
          vehicle . . . while under the influence of an
          alcoholic beverage . . . .  The test or tests
          shall be administered at the direction  of  a
          law  enforcement  officer  who  has  probable
          cause   to   believe  that  the  person   was
          operating or driving a motor vehicle . . . in
          this  state while under the influence  of  an
          alcoholic beverage . . . .
          AS 28.35.031(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  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 probable
          cause   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.
55    384 U.S. 757 (1966).
56    See Slip Op. at 12-13.
57    929 F.2d 990, 994 (4th Cir. 1991).