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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bluel v. State (03/09/2007) sp-6109

Bluel v. State (03/09/2007) sp-6109, 153 P3d 982

     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,


) Supreme Court No. S- 11564
Petitioner, )
) Court of Appeals No. A-8514
v. ) District Court No. 4FA-01-3602 CR
Respondent. ) No. 6109 - March 9, 2007
          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from  the  District  Court,  Fourth  Judicial
          District, Fairbanks, H.E. Crutchfield, Judge.

          Appearances:  William  R.  Satterberg,   Jr.,
          Fairbanks,   for  Petitioner.    Kenneth   M.
          Rosenstein,   Assistant   Attorney   General,
          Anchorage,  and  David W.  M rquez,  Attorney
          General, Juneau, for Respondent.

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

          BRYNER, Chief Justice.

          After  being  arrested for driving  while  intoxicated,
Rodney  Bluel failed the mandatory breath test and then  declined
when  asked if he wanted an optional blood test.  At trial, after
Bluel  testified that he had been surprised by his failing  score
on the breath test, the state was allowed to impeach his claim of
surprise  by  asking about his refusal to ask for the independent
blood  test.   The  issue  here is whether  evidence  that  Bluel
declined  the optional test amounted to an impermissible  comment
on  the exercise of his right to refuse.  Because Alaskas implied
consent  law gave Bluel the right to decline further testing  and
required the state to honor his choice, we conclude that evidence
of  his  refusal  created  a danger of unfair  prejudice  greatly
outweighing  the refusals impeachment value.  We  therefore  hold
that  the  refusal was inadmissible under Alaska Rule of Evidence
          The  relevant facts and proceedings at issue  here  are
undisputed  and  were  summarized as  follows  by  the  court  of
               At about 2:30 in the morning on November
          17,  2001,  an  Alaska state trooper  stopped
          Bluel for a traffic violation on Badger  Road
          in  Fairbanks.   Upon  contact,  the  trooper
          noticed    indications   that    Bluel    was
          intoxicated.  The trooper administered  field
          sobriety  tests, which Bluel  failed.   Bluel
          was   then   arrested   for   driving   while
          intoxicated.   He  was  later  tested  on   a
          DataMaster,  which  showed  that  his   blood
          alcohol content was 0.091 percent.
               After   the  breath  test,  the  trooper
          advised  Bluel that he had the  right  to  an
          independent chemical test.  Bluel declined.
               Before   trial,  Bluel  filed  a  motion
          requesting  that the district court  preclude
          any discussion of whether or not a blood test
          was  offered[.]  In his motion, Bluel  argued
          that any evidence that he had declined to get
          an independent test was more prejudicial than
          probative.   He also claimed that  the  State
          should  not  be  allowed to  comment  on  his
          exercise  of  a  constitutional  right.   The
          State opposed Bluels motion, arguing that  it
          should  not  be  foreclosed from  introducing
          evidence  that  Bluel refused an  independent
          test  if  the  evidence  became  relevant  at
               District  Court  Judge Raymond  M.  Funk
          granted  Bluels motion, construing  it  as  a
          request for a protective order.  Judge  Funks
          pre-trial  order  prevented  the  State  from
          introducing  evidence  in  its  case-in-chief
          that  Bluel  had been offered an  independent
          test,  unless  the  State  showed  that   the
          evidence was relevant and more probative than
               The  trial  was conducted  before  Judge
          Crutchfield.  In accordance with Judge  Funks
          order, the State did not, during its case-in-
          chief, introduce any evidence that Bluel  had
          been  offered a second test.  But during  the
          defense  case, Bluel testified.  He told  the
          jury that he had consumed only one full drink
          earlier that evening, and a small portion  of
          another  drink  just  before  he  drove.   He
          claimed that, in light of the small amount of
          alcohol   he  had  consumed,  he   had   been
          surprised that the DataMaster result  was  so
          high.   Over Bluels objection, the State  was
          then allowed to impeach Bluel by showing that
          he  had  been  given  a  chance  to  take  an
          independent test but had declined.[1]
          After  the  jury  found Bluel guilty of  driving  while
intoxicated  (DWI), Bluel appealed to the court of  appeals.   On
appeal,  he  challenged the admission of his testimony concerning
his  refusal of an independent test, asserting that the  evidence
should have been excluded both as a matter of discretion  because
its  prejudicial  impact  outweighed  its  probative  value   and
because  it  violated  his constitutional rights,  including  his
privilege  against  self-incrimination, his right  to  a  Miranda
warning,  and  his  right  to be protected  against  unreasonable
searches  and seizures.  In an unpublished opinion, the court  of
appeals  found  no  abuse  of  discretion  in  the  trial  courts
determination  that  Bluels  refusal  was  more  probative   than
prejudicial.2   The  opinion  upheld admission  of  the  disputed
evidence  on  this basis, expressly declining to consider  Bluels
constitutional claims because they were inadequately briefed.3
          We  granted  Bluels petition for hearing,  specifically
requesting  the parties to brief whether [Bluel] had a  statutory
right  to  refuse a blood test and, if so, whether the right  was
impermissibly undercut by allowing evidence of his refusal.
     A.   Parties Arguments
          In  challenging the decision of the court  of  appeals,
Bluel renews his claims that evidence disclosing that he declined
independent  testing should have been excluded.  He asserts  that
the  trial court erred by admitting the evidence and violated the
Alaska  Rules of Evidence because the prejudicial impact  of  his
refusal outweighed any probative value it might have had.   Bluel
also  insists that evidence of his refusal was inadmissible as  a
matter  of law because it impermissibly commented on and undercut
his  exercise  of  various constitutional  and  statutory  rights
including his privilege against self-incrimination, his right  to
a Miranda warning, his right to be protected against unreasonable
searches  and  seizures, and his right to refuse further  testing
after consenting to a breath test.
          While  recognizing  that  Bluel  had  a  right  to   an
independent  test  and was free to waive that  right,  the  state
asserts that it would be a misnomer to view his ability to  waive
as a right itself.  And even if his ability to waive is viewed as
a  right,  the  state contends, evidence of his  waiver  did  not
undercut  that  right.    Instead, the  state  insists  that  the
disputed  evidence  became admissible to impeach  Bluel  once  he
          testified that he had been surprised at learning the result of
his  breath test.  In the states view, then, any chilling  effect
was  the  sole product of Bluels own tactical decisions,  namely,
his effort to mislead the jury by testifying as to his surprise.
          With respect to Bluels constitutional claims, the state
asserts that we should decline to reach those claims because they
have  not  been  adequately briefed.  Relying  on  the  court  of
appeals  ruling that Bluels briefing offer[ed] little  more  than
conclusory assertions that his rights were violated,4  the  state
notes  that his current briefing is essentially the same as  that
which  the court of appeals rejected.  Since Bluels opening brief
before this court fails to challenge the court of appeals finding
of  inadequacy,  the state reasons that [t]his  court,  like  the
court of appeals, should refuse to consider Bluels arguments.
          Nevertheless, [i]n an abundance of caution,  the  state
also addresses Bluels constitutional claims on their merits.   It
contends that asking Bluel whether he wanted an independent  test
did  not  amount  to a custodial interrogation  that  could  have
triggered the Miranda rule.  In addition, the state contends that
the  constitutional protection against self-incrimination did not
apply  to  Bluels  refusal,  even though  it  was  a  testimonial
communication,  because  the refusal was not  incriminatory  when
Bluel communicated it to the police.   The state further contends
that, because the exclusive purpose of the independent test is to
provide  a  defendant with the means to challenge the reliability
of   the  mandatory  chemical  test,  Bluels  decision  to  avoid
additional testing cannot be likened to an exercise of his  right
to  refuse an unreasonable search.  While acknowledging that  the
state  might ultimately obtain [this] evidence as a result  of  a
defendants  exercise  of  his right to an  independent  test,  it
insists that this does not convert the test to a police-initiated
     B.   Analysis
          1.   Adequacy of Bluels briefing
          We  turn  first to the states assertion that Bluel  has
inadequately  briefed  his constitutional  claims,  thus  waiving
these  points.  Although we ultimately rest our decision in  this
case on evidentiary grounds, the constitutional issues raised  by
Bluel remain relevant since Bluel relies on the factual and legal
underpinnings  of his constitutional arguments to  reinforce  his
claims  of evidentiary error.  Given the close connection between
the constitutional and evidentiary claims, we think that it would
be inappropriate to accept Bluels theory of evidentiary error if,
as  the  state suggests, his constitutional arguments  failed  to
provide  an  adequate  basis  for  meaningful  appellate  review.
Accordingly,  our reliance on an evidentiary rationale  does  not
permit us to avoid the states claim of waiver.
          Upon reviewing Bluels briefing, we find no merit to the
states  claim  of  inadequate briefing.5   Bluels  opening  brief
identifies  and describes his constitutional claims;  it  devotes
more  than  ten  pages  of  argument  to  these  claims;  and  it
appropriately cites, quotes, and discusses a substantial body  of
legal  authority  including pertinent constitutional  provisions,
as  well  as  many relevant cases  to support the  constitutional
          arguments he advances.  Although the state depicts these efforts
as  inadequate to allow a meaningful response or review, its  own
detailed  and  accurately  targeted responses  to  Bluels  claims
dispel this assertion.6
          In  our  view,  Bluels briefing of  his  constitutional
claims  falls  comfortably within the minimum range necessary  to
enable  meaningful appellate review.  We thus reject  the  states
contention  that these claims are inadequately briefed  and  will
consider Bluels constitutional arguments to the extent that  they
illuminate  the central question: whether the trial court  abused
its discretion in admitting the evidence of Bluels refusal.7
          2.    Admissibility  of Bluels refusal  under  Evidence
Rule 403
               a.   Rule 403s balancing test
          The  Alaska Rules of Evidence generally require  courts
to   determine  the  admissibility  of  potentially   prejudicial
evidence  by carefully balancing its probative value against  its
danger  of causing unfair prejudice.  Evidence Rule 403 describes
the required balancing test:
          Although  relevant, evidence may be  excluded
          if  its probative value is outweighed by  the
          danger of unfair prejudice, confusion of  the
          issues,  or  misleading  the  jury,   or   by
          considerations of undue delay, waste of time,
          or   needless   presentation  of   cumulative
Trial  courts have broad discretion when applying this  balancing
test  to determine the admissibility of disputed evidence;  their
decisions are ordinarily subject to reversal on appeal only  when
our review of the record convinces us that an abuse of discretion
          Here,  as we have already indicated, Bluel argues  that
the disputed evidence carried a disproportionate danger of unfair
prejudice  by  creating the impression that his  refusal  of  the
independent  test amounted to an admission of guilt.   The  state
counters  that the evidence of refusal was properly admitted  not
to  show that Bluels exercise of his right of refusal revealed  a
consciousness of guilt, but rather to impeach his trial testimony
claiming   surprise  at  his  failing  score  on  the  DataMaster
testimony the state now portrays as a tactical choice intended to
mislead the jury.
          To  decide  the  relative merits of  these  conflicting
claims,  we  begin by examining the refusals probative  value  as
evidence  tending to impeach Bluels testimony claiming  surprise.
We  then  assess the potential prejudice alleged  by  Bluel   the
danger  that evidence of his refusal might have unfairly led  the
jury  to view his decision to exercise his right of refusal as  a
badge of guilt.10  Last, we balance the danger of unfair prejudice
against  the  evidences probative value to determine whether  the
potential  danger predominated so greatly as to leave  us  firmly
convinced  that admitting the challenged evidence amounted  to  a
clear abuse of discretion under Evidence Rule 403.
               b.   Probative value
          Alaska  Evidence Rule 401 defines relevance to  include
all  evidence that has any tendency to make the existence of  any
fact  that  is of consequence to the determination of the  action
more  probable  or  less probable than it would  be  without  the
evidence.11   Evidence Rule 402 then makes all relevant  evidence
presumptively admissible:
          All  relevant evidence is admissible,  except
          as  otherwise provided by the Constitution of
          the  United  States  or  of  this  state,  by
          enactments  of  the  Alaska  Legislature,  by
          these rules, or by other rules adopted by the
          Alaska Supreme Court.  Evidence which is  not
          relevant is not admissible.[12]
          Under these broad standards, the challenged evidence of
Bluels  refusal  unquestionably qualified  as  relevant  evidence
because  it had at least some tendency to make Bluels testimonial
claim  of  surprise  less  probable  than  it  might  have   been
otherwise;  thus, unless otherwise provided by law, the  Evidence
Rules, or another rule adopted by this court, the evidence  could
properly be admitted.13
          But  the  refusals relevance does not end the  inquiry.
As  we  have seen, Evidence Rule 403 expressly allows  courts  to
exclude relevant evidence whose probative value fails to outweigh
its  prejudicial  impact,  so we must  separately  ask  how  much
relevance the refusal actually had.
          The  states theory of relevance focuses on the refusals
impeachment  value, asserting that evidence of  the  refusal  was
needed  to  discredit Bluels testimonial claim that  his  failing
score on the breath test had caused him surprise.  The theory  is
plausible, but not problem free.
          On  the one hand, to the extent that Bluels refusal  of
an  independent  test might reasonably be seen as reflecting  his
consciousness of guilt, evidence of the refusal would indeed have
probative impeachment value, since it would tend to undercut  his
claim  of  surprise.  But on the other hand, to the  extent  that
Bluels  refusal could reasonably have been motivated by something
other  than  his awareness of guilt, the probative force  of  the
evidence to show lack of surprise would diminish proportionately.
          Here  Alaska  law  gave Bluel a  right  to  decline  an
independent  test.  Because of this right, the  possibility  that
Bluel refused the independent test for reasons unrelated to guilt
cannot be lightly discounted.
          Alaskas  implied consent law authorizes  the  state  to
give  DWI  arrestees  a chemical breath test to  determine  blood
alcohol14   currently the DataMaster test  and forbids all  other
compelled  testing except in circumstances not  relevant  here.15
The implied consent law also recognizes that, after submitting to
the  required  test,  DWI arrestees are  entitled  to  obtain  an
independent  test  of their own choice.16  The  independent  test
serves  to  give  DWI arrestees an opportunity to  challenge  the
breath-test  evidence the state compelled them to submit.17   The
right to an independent test is thus optional: DWI arrestees  are
free  to decline it; they may arrange the testing themselves;  or
          they may ask the state for assistance in obtaining the test.18
The  person administering the mandatory breath test must  clearly
and  expressly inform the person tested of that persons right  to
an  independent  test.19  If the person requests  an  independent
test,  the  state must make reasonable and good-faith efforts  to
assist; if not, the law allows no further compelled testing.20
          In  keeping with these requirements, Bluel was notified
of  his right to an independent test.  He was also warned that if
he  opted  to  request a test it would be possible that  evidence
from  the  independent  test [might] be  obtained  by  the  State
through  legal  process and used against [him].  But  the  notice
said  nothing  to  suggest that Bluels  decision  to  decline  an
independent test might later be used against him.
          In  accusing Bluel of attempting to mislead the jury by
claiming  surprise at the result of his breath  test,  the  state
seems  to assume that no defendant who is genuinely surprised  at
failing  a  DataMaster breath test would decline to  ask  for  an
independent  test.  But this assumption overstates the  probative
force of the refusal.
          In a similar factual setting, we recognized in Elson v.
State  that a defendants refusal to consent to a search could  be
motivated  by  circumstances unrelated to guilt,  such  as  legal
uncertainty or a desire to consult with an attorney before taking
any action.21  Here, the state advances no sound reason to assume
that Bluels decision was not motivated by similar considerations.
To  be sure, as the state points out, in Elson we dealt with  the
constitutional right to refuse a warrantless search, whereas,  in
the  states  view, Bluel merely had, and chose not to  assert,  a
statutory  right  to  request further testing.   But  while  this
distinction impacts the importance of the right Bluel did  choose
to  assert  the right to refuse the test  and the consequent need
to  protect  its assertion, it says nothing about the  likelihood
that  Bluel might have chosen to assert his right of refusal  for
an innocent reason  a reason compatible with being surprised.
          Accordingly, Elsons discussion describing the  inherent
ambiguity  of  a  decision to refuse consent to a search  appears
applicable  here  as well.  If anything, the  possibility  of  an
innocent  basis  for refusal seems more likely  here,  given  the
nature  of the statutory right to an independent test.  When  DWI
arrestees can afford to pay for their own testing and are able to
secure  their  release on bail shortly after  being  remanded  to
jail, the implied consent law will still allow them to make their
own arrangements for independent testing.22  The law also requires
them to be informed of their right to arrange an independent test
after  submitting to the mandatory breath test.23   Thus,  a  DWI
arrestee  who declines an independent test is on notice that  the
only right his decision waives is the right to ask the state  for
help  in  obtaining the test.  Because Bluels refusal  would  not
have precluded him from later arranging a test on his own, it did
not by itself rule out an intent to obtain an independent test.
          Of  course, this does not mean that Bluels decision  to
decline  independent  testing  lacked  probative  force;  to  the
contrary,  the  refusal would still tend to  make  his  claim  of
surprise less probable, so it would continue to be relevant under
          Evidence Rule 401 and presumptively admissible under Rule 402.
But the possibility of circumstances consistent with Bluels claim
of  surprise necessarily reduces the refusals probative force  as
impeachment  evidence: though the refusal  would  potentially  be
inconsistent  with  surprise, it would not necessarily  establish
that  Bluel  was  attempting to mislead the jury,  as  the  state
claims he was.
          As we will explain below in considering the prejudicial
impact  of  refusal evidence,  this distinction between  evidence
whose  probative force arguably establishes an inconsistency  and
evidence that obviously contradicts a witnesss story can play  an
important  role  when the state seeks to impeach  testimony  with
evidence   of  prior  silence  or  refusal  to  act.   In   first
considering the refusals probative value, however, it suffices to
observe  that  the  uncertainty surrounding  Bluels  reasons  for
declining  does  not allow us to conclude that  his  refusal  had
impeachment  value  strong enough to solidly  conflict  with  his
claim  of surprise or to convincingly prove an attempt to mislead
the jury.
               c.   Potential prejudice
          On  the  opposite  side of Rule 403s balance,  we  must
weigh the possible  negative effects of the refusal evidence: the
danger   of  unfair  prejudice,  confusion  of  the  issues,   or
misleading  the  jury, or . . . considerations  of  undue  delay,
waste of time, or needless presentation of cumulative evidence.24
Here, these dangers seem manifest.  The states use of the refusal
raised  a  serious  risk  of inviting the  jury  to  view  Bluels
decision not to request an independent test as a silent admission
of  guilt.  In terms of its potential for unfair prejudice, then,
this  evidence created a risk of prejudice similar to the one  we
considered in Elson v. State.25
          Elson held that an intolerable risk of prejudice arises
when  the state is allowed to comment on a defendants refusal  to
consent  to a warrantless search.26  In reaching this conclusion,
Elson relied on two earlier cases, Bargas v. State and Padgett v.
State.27   Both cases involved refusals to submit to  warrantless
searches  that  would  have been illegal without  the  defendants
          Bargas  held  that allowing the state to comment  on  a
refusal  in  this  setting would be entirely  impermissible.   It
would  make  meaningless  the constitutional  protection  against
unreasonable searches and seizures if the exercise of that  right
were  allowed  to  become  a badge of guilt.29   Analogizing  the
situation  to  cases barring comment on assertion  of  the  Fifth
Amendment  right to silence, Bargas ruled that [a] like principle
applies here.  Ones assertion of his constitutional right not  to
submit  to  a search of his person cannot be used as evidence  of
guilt if this constitutional right is to have any meaning.30
          Padgett,  like Bargas, found evidence of a  refusal  to
allow an unauthorized search to be inadmissible, emphasizing that
the  right  to  refuse would be effectively  destroyed  if,  when
exercised, it could be used as evidence of guilt.31
          In Elson we considered whether the principles discussed
in Bargas and Padgett should extend to a case involving a refusal
          to submit to a potentially legal search.  We expressly held that
they should, concluding that evidence of a refusal to consent  to
a  search  is  inadmissable regardless of  the  legality  of  the
search.32  In reaching this conclusion, we stressed that asking a
person  to  submit  to  a  search confronts  the  person  with  a
difficult  dilemma because of the inherent uncertainties  of  the
          As Elson points out, the legality of a search
          is  often determined long after the fact, and
          thus  a person who is asked to consent  to  a
          search   would   not  know  whether   he   is
          protecting or prejudicing himself by choosing
          not  to consent.  If the person consents, the
          fruits  of  the  search would  be  admissible
          regardless  of  whether the  police  had  the
          right  to  search  without consent.   If  the
          person  believes the search is  impermissible
          and  withholds his consent, he  risks  having
          his  refusal  considered as an  admission  of
          guilt  if  it is later ascertained  that  the
          nonconsensual  search  was  permissible.   An
          individual  in this situation would  have  to
          balance  a  desire  to assert  his  perceived
          fourth  amendment rights against the risk  of
          self-incrimination.     This    tension    is
          magnified  by  the  fact  that  in   deciding
          whether   to   consent  to  a   search,   the
          individual  is  usually  acting  without  the
          benefit of counsels advice as to the legality
          of   the  police  conduct  and  the  possible
          success of fourth amendment objections.[33]
           In  our  view, the dilemma faced by the defendants  in
Elson,   Padgett,  and  Bargas  was  functionally   and   legally
indistinguishable  from the dilemma Bluel  faced  here.   As  the
state  acknowledges, once Bluel submitted to the DataMaster test,
Alaskas implied consent law entitled him to an independent  test;
under the law he could opt to arrange a test of his own choosing,
ask  for help in obtaining a test, or choose no test at all.   In
offering  to  help Bluel obtain an independent test,  the  states
standard  Notice of Right to an Independent Test  form  expressly
told  him that if he did choose to have an independent test,  the
state  could seek to obtain the evidence and use it against  him.
The  state  does  not seem to dispute that the  independent  test
would have required a physical intrusion sufficient to qualify as
a  search.34  Nor does the state dispute that the implied consent
law  required  the state to honor Bluels choice; in other  words,
that  the law precluded the state from compelling Bluel to submit
to another blood-alcohol test.35
          In  terms  of its practical consequences, then,  Bluels
refusal to accept the states offer to arrange an independent test
is  indistinguishable  from a refusal to  consent  to  a  search.
Moreover,  the  provisions of Alaskas implied consent  laws  that
give  Bluel  the right to choose whether to obtain an independent
          test reflect the same carefully balanced consideration of policy
interests  that would have precluded Bluel from being ordered  to
submit to another test.36
          Finally,  the  statutory right to an  independent  test
implicates  concerns for fundamental fairness rooted in  the  due
process   right   to  effectively  analyze  and   challenge   the
reliability  of the states compelled breath-test evidence.37   We
have  described  this due process right as one  that  is  closely
analogous,  if not equivalent, to the right of cross-examination,
since it affords the defendant the opportunity to bring out facts
which will tend to discredit the results of the mandatory test.38
Just   as  a  decision  to  bypass  the  opportunity  for  cross-
examination creates no inference of guilt, a decision  to  bypass
an  independent test also cannot properly be seen as a  badge  of
          For  all  of these reasons, even if evidence of  Bluels
right  to  refuse  testing might not have directly  violated  any
constitutional rights, we conclude that this evidence exposed him
to essentially the same risk of unfair prejudice as commenting on
his   assertion  of  the  constitutional  right  to   refuse   an
unreasonable  search.  Thus, Bluel is entitled to a  commensurate
level  of  protection from such evidence; that is, he is entitled
to  insist  that his exercise of the right to refuse  independent
testing  not  be chilled by the states use of his  refusal  as  a
badge of guilt.39
               d.   Result of applying Rule 403s balancing test
          The state suggests that the disputed evidence of Bluels
refusal meets this test for admission.  Asserting that it offered
the  evidence for the sole purpose of impeaching Bluels testimony
that  he  was  surprised  at and did not believe  the  DataMaster
result,  the  state disclaims using the refusal to  prove  Bluels
consciousness of guilt and insists that any chilling  effect  was
the  sole  product  of  Bluels own tactical  decisions.   But  as
already  pointed  out in our discussion of probative  value,  the
refusals probative value for impeachment is not as strong as  the
state  contends;  it  does not necessarily conflict  with  Bluels
claim of surprise.
          Moreover,  courts have generally tended to be  wary  of
attributing  probative  force  to inaction.   In  Nighswonger  v.
State,  for  example,  the court of appeals reversed  a  decision
declining  to  issue a pretrial order precluding the  state  from
cross-examining  a  defendants alibi witness about  the  witnesss
invocation  of  the  right  to silence in  an  earlier  courtroom
appearance.40   There the state cited a number of cases  allowing
impeachment by prior silence.41  But after reviewing the cases and
the  witnesss proposed testimony, the court determined  that  the
cases  were  distinguishable since they  involved  witnesses  who
took   positions  in  their  subsequent  testimony  which  [were]
blatantly  inconsistent with prior silence.42 As an example,  the
court  pointed  out that cross-examination . .  .  is  considered
proper  where  a witness creates the false impression  on  direct
examination that he willingly cooperated with the prosecution  or
that  he  gave  the  same testimony . . . at a  prior  hearing.43
Because  the witnesss proposed testimony in Nighswonger  was  not
          blatantly inconsistent with her silence, the court held that the
challenged  questioning  about prior  silence  should  have  been
          The  justification  for  admission  found  lacking   in
Nighswonger is likewise absent here.  While the claim of surprise
Bluel  asserted  at  trial  was arguably  inconsistent  with  his
earlier  decision  to decline the offer of an  independent  blood
test,  potentially innocent explanations for the refusal preclude
a  finding  of  blatant inconsistency.  Moreover, whatever  false
impression Bluel might have created by claiming surprise, he  did
not  create  it during his direct examination.  To the  contrary,
the  prosecution deliberately elicited the claim of  surprise  on
          Soon after the trial began, Bluels attorney called  the
courts  attention  to a pre-trial order issued by  another  judge
that precluded the state from using Bluels refusal in its case-in-
chief.  The state confirmed that it would not use the evidence in
its  case-in-chief  and would wait to see if it  became  relevant
when  Bluel  presented his defense.  After the state  rested  its
case, Bluel took the stand in his own defense and testified  that
he  drank  less than two full drinks before being  arrested.   On
cross-examination, the prosecutor expressly broached the  subject
of surprise by framing it as a leading question; immediately upon
receiving Bluels answer, the state asked Bluel about his refusal:
     Q:   Now,  Mr.  Bluel, you were taken  to  the  station
          after  you were  after the trooper felt  that  you
          were  intoxicated.  What happened at the  station?
          I  should  say,  what  was  your  reading  on  the
     A:   .091.
     Q:   And  now you said youd had only one drink for  the
          entire evening; is that correct?  Youd been at the
          Badger  Den for four hours, but youd only had  one
     A:   Yes.   I  had   and some of that last drink  there
          before we left, but not all.
     Q:   And well now, is it a little sip of it or some  of
          it, but not all of it?
     A:   Maybe a quarter of it.
     Q:   Okay.   .091, thats over the legal limit.  I mean,
          you know that, right?
     A:   I didnt believe I was.
     Q:   So you must have been pretty surprised when lo and
          behold,  your breath alcohol is .091 if  you  only
          had one drink; is that correct?
     A:   Yes.
     Q:   And did you have an option to have a second test?
     A:   Yes.
     Q:   And what was that  that test?
          [Defense  Attorney]:  Your Honor, may we  approach
          The  state  asserts  that  Bluel  opened  the  door  to
impeachment  by claiming surprise; it professes that  it  offered
the  evidence for the sole purpose of impeaching Bluels testimony
          that he was surprised at and did not believe the DataMaster
result.   But since the state created its own need to impeach  on
this  point, it seems difficult to credit its argument that Bluel
opened the door.  Rather, the state opened the door and led Bluel
to  the  very  statement that it now claims  was  an  affirmative
attempt to mislead the jury.
          Impeachment  evidence offered on the  theory  that  the
witness  opened the door ordinarily is considered proper where  a
witness creates the false impression on direct examination.45  If
we ignored this consideration and allowed the states bootstrapped
justification  for  impeachment to prevail,  then  virtually  all
defendants  who  declined an independent test  and  testified  at
trial  could be targeted for impeachment by prior refusal  unless
they admitted that they were not surprised when learned that they
failed their breath test.
          As  Bluel rightly observes, this rule would subvert the
basic  purpose  of  the  independent test and  leave  individuals
arrested for DWI a Hobsons choice:
          What  was  intended to be a due  process/fair
          trial safeguard [would be] turned into a two-
          edged  blade  if the DWI arrestee  elects  to
          have  an  independent blood-draw,  the  State
          will apply for and obtain a search warrant to
          have the blood tested, then use the result to
          advance its case against the arrestee, if the
          results favor the State.  However, if, on the
          other hand, the DWI arrestee declines to have
          an  independent blood-draw, the  State  [will
          then use] the arrestees decision at trial  as
          evidence   to   argue  that   the   defendant
          implicitly  agrees  with  the  breath-alcohol
          test, thereby creating an inference of guilt.
          To  summarize,  then, evidence that Bluel  declined  an
independent  test did not blatantly conflict with  his  testimony
claiming  surprise at the result of the DataMaster  breath  test.
Bluels   claim   of  surprise  arose  only  because   the   state
affirmatively  elicited it to justify admitting the  evidence  of
refusal.   But  in  the absence of a claim of surprise  that  was
blatantly  inconsistent with Bluels prior  refusal  and  that  he
injected  into  the case himself, we conclude  that  the  refusal
created  a  danger  of unfair prejudice greatly  outweighing  the
refusals  probative value for impeaching the claim  of  surprise.
We  accordingly hold that allowing the state to admit evidence of
the  refusal  amounted to an abuse of discretion  under  Evidence
Rule 403.
          For these reasons, we REVERSE the decision of the court
of  appeals,  VACATE the judgment of conviction  entered  by  the
district  court,  and REMAND  to the district  court  for  a  new
     1     Bluel  v.  State, 2004 WL 1418697, at *1 (Alaska  App.
June 23, 2004).

     2    Id. at *2.

     3    Id.

     4    Id.

     5     The adequacy of Bluels briefing presents a question of
law  that  we determine independently.  See Wilkerson  v.  State,
Dept  of  Health  &  Social Servs., 993 P.2d 1018,  1021  (Alaska

     6     Moreover, the lone case the state cites to support its
claim  of  deficient briefing is readily distinguishable  on  its
facts.   The state cites Great Divide Insurance Co. v.  Carpenter
ex  rel.  Reed,  79  P.3d 599, 608 n.10 (Alaska  2003),  for  the
proposition  that  inadequately  briefed  claims  are  considered
waived.    But  the  briefing found inadequate  in  Great  Divide
consisted of a single unexplained quotation from a treatise;  the
brief  failed  to  explain  or argue  the  quotation,  though  it
appeared to make an oblique attack on a jury instruction that had
not  been  challenged at trial.  Id. at 608.  These circumstances
bear  little similarity to the relatively robust briefing claimed
to be inadequate here.

     7     As  the  state  acknowledges and our  own  examination
confirms, Bluels current briefing of his constitutional claims is
essentially  identical to his briefing in the court  of  appeals.
It  follows  that our ruling as to the adequacy  of  his  current
briefing also extends to his court of appeals briefing.   In  our
view,  his  constitutional claims should not have  been  rejected
below as inadequately briefed.

     8    Alaska R. Evid. 403.

     9    Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).

     10     Cf. Elson v. State, 659 P.2d 1195, 1197 (Alaska 1983)
(determining that admitting evidence of a defendants  refusal  to
consent  to  a  search would make meaningless the  constitutional
protection  against  unreasonable searches and  seizures  if  the
exercise  of that right were allowed to become a badge of  guilt)
(citing Bargas v. State, 489 P.2d 130, 132 (Alaska 1971)).

     11    Alaska R. Evid. 401.

     12    Alaska R. Evid. 402.

     13     Alaska R. Evid. 402; cf. McCormick v. Municipality of
Anchorage,  999  P.2d 155, 158-59 (Alaska App.  2000)  (admitting
evidence of refusal to perform field sobriety test when no  right
of refusal existed); Srala v. Municipality of Anchorage, 765 P.2d
103, 105-06 (Alaska App. 1988) (admitting evidence of refusal  of
blood test when no right of refusal existed).

     14    AS 28.35.031(a).

     15    See AS 28.35.031(g); Sosa v. State, 4 P.3d 951, 953-54
(Alaska 2000).

     16    AS 28.35.033(e).

     17     Gundersen v. Municipality of Anchorage, 792 P.2d 673,
675-76 (Alaska 1990).

     18    AS 28.35.033(e).

     19    Id.

     20    Id.

     21    Elson v. State, 659 P.2d 1195, 1198-99 (Alaska 1983).

     22    See AS 28.35.033(e).

     23    Id.

     24    Alaska R. Evid. 403.

     25    Elson v. State, 659 P.2d 1195 (Alaska 1983).

     26    Id. at 1197-99.

     27    Id. at 1197-98 (citing Padgett v. State, 590 P.2d 432,
434  (Alaska  1979); Bargas v. State, 489 P.2d 130,  133  (Alaska

     28    Id. at 1198.

     29    Bargas, 489 P.2d at 132.

     30    Id. at 133.

     31    Padgett, 590 P.2d at 434.

     32    Elson, 659 P.2d at 1199.

     33    Id. at 1198-99 (footnote omitted).

     34     See,  e.g.,  State v. Blank, 90 P.3d  156,  159  n.19
(Alaska 2004) (A breath test is a search.).

     35    See Sosa, 4 P.3d at 955.

     36    See id.

     37     See Gundersen v. Municipality of Anchorage, 792  P.2d
673,  676 (Alaska 1990) (Since a defendant must provide the state
with  potentially incriminating evidence at the risk of  criminal
penalties,  we hold that due process requires that the  defendant
be  given  an  opportunity to challenge the reliability  of  that
evidence . . . .).

     38     Lauderdale v. State, 548 P.2d 376, 381 (Alaska  1976)
([Lauderdale]  is  asking  for  an  opportunity   to   test   the
reliability  or  credibility  of the breathalyzer  test  results.
This  is closely analogous, if not equivalent, to the case  where
defense counsel, by cross-examination, tests the credibility of a
witness  who testifies against an accused.  Cross-examination  in
such  a case is a matter of right, and the purpose of that  right
is to attempt to bring out facts which will tend to discredit the
witness by showing that his testimony was untrue.).

     39    See Elson, 659 P.2d at 1197 (citing Bargas, 489 P.2d at

     40     Nighswonger v. State, 662 P.2d 445, 446 (Alaska  App.

     41    Id. at 448 n.2.

     42    Id.

     43     Id. (citing United States v. Sing Kee, 250 F.2d  236,
240 (2d Cir. 1957), cert. denied 355 U.S. 954 (1958)).

     44    Id. at 448.

     45    See id. at 448 n.2.

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