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State v. Blank (04/30/2004) sp-5802
State v. Blank (04/30/2004) sp-5802
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. 5802 - April 30, 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 unsuccessfully challenged the use of the preliminary
breath test results in the superior court. The court of appeals
did not reach that issue. Because the issues to be briefed in
the petition now before us did not include that topic, we express
no opinion on it. Blank may reassert her arguments on that issue
in the lower courts.
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).
