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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dennis v. State, Dept. of Administration, Division of Motor Vehicles (3/21/2014) sp-6878

Dennis v. State, Dept. of Administration, Division of Motor Vehicles (3/21/2014) sp-6878

         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, email  

                                                                                    

         corrections@appellate.courts.state.ak.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



DANIEL V. DENNIS,                                     )  

                                                      )        Supreme Court No. S-14989  

                           Appellant,                 )  

                                                      )        Superior Court No. 4FA-11-02914 CI  

         v.                                           )  

                                                      )        O P I N I O N  

STATE OF ALASKA,                                      )  

DEPARTMENT OF                                         )  

ADMINISTRATION, DIVISION                              )       No. 6878 - March 21, 2014  

OF MOTOR VEHICLES,                                    )  

                                                      )  

                           Appellee.                  )  

                                                      )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                  Fourth Judicial District, Fairbanks, Michael A. MacDonald,  

                                                                               

                  Judge.  



                  Appearances:  Kenneth L. Covell, Fairbanks, for Appellant.  

                                                   

                  Andy Harrington, Assistant Attorney General, Fairbanks, and  

                  Michael      C.    Geraghty,       Attorney       General,      Juneau,     for  

                                                                   

                  Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                     

                  Bolger, Justices.  



                  BOLGER, Justice.  



I.       INTRODUCTION  

     



                  A motorist was arrested for driving under the influence of alcohol and  



submitted to a breath test that indicated his breath alcohol concentration was over the  

                                                       


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legal limit.  The motorist challenged the revocation of his driver's license at a hearing  



before  the  Division  of  Motor  Vehicles,  arguing  that  the  breath  test  instrument's  

                                                                                  



calibration was not properly verified.                 The hearing officer concluded that the scientific  



director  of  the  Department  of  Public  Safety  followed  the  controlling  regulation  by  



                                            

providing for this verification to be performed automatically.  The superior court agreed  



with the hearing officer and we affirm.  



II.       FACTS AND PROCEEDINGS  



                                                                                            

                   Daniel Van Dennis was arrested for driving under the influence of alcohol  



                                         

and submitted to a chemical test, which showed that his breath alcohol concentration was  



over the legal limit.  Dennis received a notice of the revocation of his driver's license,  



                                                                                                           

and he requested a hearing to contest the revocation.  Before the hearing, Dennis filed  



                                                

a motion to suppress the breath test result, arguing that the verification report for the  



instrument's calibration did not comply with the controlling regulation.  



                                                                                                         

                   The verification report at issue was signed by the Scientific Director of the  



State Breath Alcohol Program, stating:  



                   (1)  I  am  a  Forensic  Scientist  IV  for  the  State  of  Alaska  

                   Scientific Crime Detection Laboratory.  



                   (2) The Alaska Scientific Crime Detection Laboratory is an  

                   entity within the Department of Public Safety.  



                   (3) I am the Scientific Director of the State Breath Alcohol  

                   Program.  



                                                            

                   (4)  In  that  capacity,  I  am  responsible  for  overseeing  the  

                   Breath   Alcohol   Program,   which   includes   assuring   that  

                                                          

                   instruments are calibrated and maintaining program records.  



                                                                                   

                   (5)   The   above   is   a   true   and   accurate   verification   of  

                   calibration, which is performed by the instrument's software,  

                   as    specified       by    the     State     Breath      Alcohol        Program.  



                                                            -2-                                                      6878
  


----------------------- Page 3-----------------------

                   Verification  of  calibration  is  a  regularly  conducted  and  

                   regularly   recorded   activity   of   the   state   breath   alcohol  

                   program.  



                   (6) The referenced instrument is certified for evidentiary use  

                                                                              

                   in the State of Alaska.  



                   The hearing officer found that the verification had been properly performed  



by the scientific director or her designee.  The hearing officer denied Dennis's motion  



to suppress the breath test and affirmed the license revocation.  Dennis appealed to the  

                                                                                                     



superior court, which affirmed the hearing officer's decision.  



III.     STANDARD OF REVIEW  



                   Alaska  Statute  28.15.166(m)  "provides  that  the  court  may  reverse  the  



department's determination if the court finds that the department misinterpreted the law,  

                                                                                           



acted  in  an  arbitrary  and  capricious  manner,  or  made  a  [factual]  determination  

                                                                1   "Where the superior court acts  as  an  

                                                                                                           

unsupported by the evidence in the record."  

intermediate court of appeals, we independently review the hearing officer's decision."2  



 IV.     DISCUSSION  



                   Dennis's sole argument in this appeal is that the result of his breath test  



should not have been admitted against him because the verification of the instrument's  

                                                                          



calibration  was  performed  by  the  instrument's  software.    He  relies  on  13  Alaska  

                                             



Administrative Code (AAC) 63.100(c), which provides:  



                                                                                              

                   At  intervals  not  to  exceed  60  days,  the  accuracy  of  the  

                   calibration of a breath test instrument must be verified.  The  

                   verification of calibration must be performed by the scientific  

                                                                                  

                   director or by a qualified person designated by the scientific  

                                                                                 



         1        Alvarez v. State , 249 P.3d 286, 290-91 (Alaska 2011) (citation and internal   



quotation marks omitted).  



         2         Id. at 291 (citation and internal quotation marks omitted).  



                                                           -3-                                                       6878  


----------------------- Page 4-----------------------

                     director.  A written report of the verification of calibration  

                                                                                              

                     shall      be     made       by      the     person        who       performed          that  

                                        [3] 

                     verification.  



To implement this regulation, the Department of Public Safety has adopted a Breath  

                                                                                           



Alcohol Procedure Manual, which details the procedure for this verification:   



                     Per 13 AAC 63.100 the accuracy of the calibration of the  

                     breath  test  instruments  must  be  verified  at  least  every  60  

                                 

                     days.    The  documentation  of  this  accuracy  check  is  the  

                     verification  of  calibration  report.    The  accuracy  check  

                     performed for the verification of calibration report consists of  

                                                                        

                     a  diagnostic  check  and  five  tests  of  the  external  dry  gas  

                     ethanol standard. The verification of calibration procedure is  

                                                                                                 

                     incorporated into the instrument software under the direction  

                                                                                       

                     of  the  scientific  director.              A  verification  of  calibration  is  

                                                                                              

                     initiated by the instrument software in intervals of less than  

                                         [4] 

                     60 days . . . .  



                     In the past, these verifications were initiated manually.  Now, they are  



                                                                                                                   

initiated by the instrument's software.  The manual provides that "[a]t the completion of  



                                                             

a successful verification of calibration the instrument stores a copy of the written report  



                                                                                                 

to memory." Next, the instrument's memory is "uploaded to a crime lab computer. . . .  



                                                 

The completed verification of calibration report is printed from the uploaded file and  



                                                                                        

technically reviewed by the members of the breath test section," and  the report is then  



"signed and notarized by the scientific director."  



                                                

                     The verification report certifies that the scientific director is "responsible  



                                         

for overseeing the Breath Alcohol Program, which includes assuring that the instruments  



          3          13 AAC 63.100(c) (2013).  



          4          Dennis argues briefly in his reply brief that the breath alcohol procedure     



manual "is not in the Administrative Record and ought not be relied on at all."  However,  

the  hearing  officer  took  official  notice  of  the  manual,  and  Dennis  did  not  raise  any  

                                                                                                                          

objection at that time.  



                                                                  -4-                                                           6878
  


----------------------- Page 5-----------------------

                                                                                                      

are calibrated and maintaining program records."  In that capacity, the scientific director  



ensures  that  the  proper  verification  procedure  is  incorporated  into  the  instrument  



                                              

software.    Technical  review  of  the  verification  reports  "is  performed  by  a  qualified  



                                                                                        

member of the breath alcohol section prior to the report being reviewed and signed by  



                                                             

the scientific director."  The technical review includes several components, which are  



                                                     5  

repeated by the scientific director.   Once the scientific director signs the verification  



                                                                        

report, the "report certifies the instrument for continued evidentiary use in the State of  



Alaska."  



                     We  presume  that  the  scientific  director  properly  discharged  the  duties  



                                                                               6  

outlined  in  the  breath  alcohol  procedure  manual.     This  presumption  and  the  facts  



certified  in  the  verification  report  support  the  hearing  officer's  conclusion  that  the  



scientific director performed this verification.  



                                                                  7  

                                                                                

                     Dennis relies on Keel v. State ,  where we held that a breath test result was  



                                                                                                              

inadmissible because the applicable regulation required the instrument to be calibrated  



                                        8 

                                                               

by a certified "instructor,"  and the state had "failed to prove that the last calibration of  



          5          These components include verification that the external dry gas ethanol   



standard cylinder lot number and expiration date are included in the list of approved  

cylinders kept at the crime lab; that the five external standard results fall within +/- 0.005  

                                                                                

of the target value, adjusted for barometric pressure; that the standard deviation of the  

                                                                                                             

five external standard results is equal to or less than 0.0030; that each component of the  

diagnostic check reads "passed"; and that there are no status messages.  



          6         See  Wallace  v.  State,  933  P.2d  1157,  1162  (Alaska  1997)("Where  no  



evidence indicating otherwise is produced, the presumption of regularity supports the  

                                                                                                                   

official acts of public officers, and courts presume that they have properly discharged  

their official duties." (citation omitted)).  



          7          609 P.2d 555 (Alaska 1980).  



          8         Id. at 558.  



                                                                -5-                                                          6878
  


----------------------- Page 6-----------------------

the instrument prior to [the appellant's] test was done by an instructor as defined by the           

                    9  Dennis argues that this case is controlled by Keel because, in both cases,  

regulations."                                                      



"the wrong individual performed the test."  



                                                                                                                      

                     However, Keel is distinguishable because, there, the regulation required an  



"instructor" to calibrate the machine, and we concluded that this requirement had not  



                       10  

been  satisfied.             Here,  by  contrast,  there  is  no  issue  about  the  qualifications  of  the  



scientific  director  or  the  personnel  she  designates  to  assist  her  with  the  verification  



report.  We conclude that the procedures detailed in the manual support the hearing  



                                                                                 

officer's finding that the verification in this case was performed by the scientific director.  



                     When the superior court reviewed the hearing officer's decision in this case,  



the judge concluded that "[v]erification of calibration is performed by [the scientific  



director] to the extent that, by program[m]ing the software, she is causing verification  



                          

of calibration to be automatically initiated at regular intervals and she is causing the test  



results to be automatically sent to her.  This complies with 13 AAC 63.100."  We agree  



with the superior court's reasoning.  We thus conclude that the verification procedure  



described in this record complies with the controlling regulation.   



V.        CONCLUSION  



                     For the foregoing reasons, we AFFIRM the superior court's decision to  



uphold the decision of the Division of Motor Vehicles.  



          9         Id.  



          10        Id. at 558-59  



                                                                 -6-                                                              6878  

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