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


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Botson v. Municipality of Anchorage (1/15/2016) sp-7077

Botson v. Municipality of Anchorage (1/15/2016) sp-7077

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  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@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



                                                                      )  

JOHN  K.  BOTSON,                                                     )     Supreme  Court  No.  S-15671  

                                                                      )     Court  of  Appeals  No.  A-11192  

                                 Petitioner,                          )  

                                                                                                                                      

                                                                      )     District Court No. 3AN-10-11042 CR  

           v.                                                         )  

                                                                                                 

                                                                      )     O P I N I O N  

                                      

MUNICIPALITY OF ANCHORAGE,                                            )  

                                                                                                                    

                                                                      )     No. 7077 - January 15, 2016  

                                 Respondent.                          )  

                                                                      )  



                                                                                                                     

                      Petition for Hearing from the Court of Appeals of the State of  

                                                                                                                         

                      Alaska,  on  appeal  from the  District  Court  of  the  State  of  

                                                                                                              

                      Alaska, Third Judicial District, Anchorage, Brian K. Clark,  

                      Judge.  



                                                                                                               

                      Appearances: Brent R. Cole, Law Office of Brent R. Cole,  

                                                                                                        

                      P.C., Anchorage, for Petitioner.  Seneca A. Theno, Municipal  

                                                                                                        

                      Prosecutor,  and  Dennis  A.  Wheeler,  Municipal  Attorney,  

                                                

                      Anchorage, for Respondent.  



                                                                                                                   

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

                                    

                      Bolger, Justices.  



                                         

                      BOLGER, Justice.
  

                                                          

                      FABE, Chief Justice, dissenting.
  



I.         INTRODUCTION  



                                                                                                                                            

                      John Botson was arrested for driving under the influence.  According to a  



                                                                                                                                         

breath test, his blood alcohol level was .141.  The police officer informed Botson of his  


----------------------- Page 2-----------------------

                                                                                                                              

constitutional  right  to  an  independent  chemical  test,  which  Botson  declined.                                        But  



                                                                                                                   

unbeknownst to Botson and the police officer administering the test, the breath test  



                                                                                                                                     

device had produced an error code related to one of its quality assurance mechanisms.  



                                                                                                                              

                    Botson  argues  that  his  breath  test  result  was  inadmissible  under  the  



                                                                                                                  

Anchorage Municipal Code, which requires breath tests to be conducted in compliance  



                                                                                                                              

with methods approved by the Alaska Department of Public Safety. He also argues that  



                                                                                                                 

suppression was required under the Due Process Clause of the Alaska Constitution  



                                                                                                                  

because his ignorance of the error code prevented him from knowingly and intelligently  



                                                                                                                               

waiving his constitutional right to an independent chemical test.   But although the  



                                                                                                                     

administration of Botson's breath test may not have strictly complied with approved  



                                                                                                                                

methods, Botson does not contest the district court's finding that the error code had no  



                                                                                                                              

bearing on the accuracy of the test.  Accordingly, we agree with the district court's and  



                                                                                                                              

the court of appeals' conclusion that the breath test result was admissible under our  



                                                                                                                       

"substantial compliance" doctrine.  We also agree that Botson validly waived his right  



                                                                                                                          

to an independent chemical test because he had a basic understanding of that right before  



                                                   

declining the test.  We therefore affirm.  



                                  

II.       FACTS AND PROCEEDINGS  



                                                                             

          A.        John Botson's Arrest And Breath Test  



                                                                                                                                 

                    John Botson was arrested for driving under the influence and submitted to  



                                                                                                                             

breath testing of his blood alcohol concentration.  The Anchorage police officer who  



                                                                                                                      

administered the test explained to Botson that once the breath test device was prepared  



                                                                                                                                     

it would "go through a bunch of self checks [to] make sure it's functioning properly."  



                                                                                                                              

Following a 15-minute observation period, the officer took Botson's breath sample and  



                                                               -2-                                                         7077
  


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

                                                                                          1  

the breath test device produced a reading of .141,                                          significantly higher than the legal limit                       

of .08.     2  



                         After informing Botson of the result and reading formnotices regarding the  

                                                                                                                                                               



revocation of Botson's driver's license and seizure of his vehicle, the officer read Botson  

                                                                                                                                                       



a notice of his right to an independent chemical test.  The officer told Botson:  

                                                                                                                                                    



                         You are under arrest for  the offense of driving under the  

                                                                                                                                     

                         influence.  In addition to a chemical test of your breath, you  

                                                                                                                                    

                         have a right to an independent chemical test of your level of  

                                                                                                                                       

                         intoxication. . . .  

                                                         



                                      You  may  obtain  an  independent  test  one  of  the  

                                                                                                                                    

                         following  ways.                      If  you  wish  to  have  an  independent  

                                                                                                                  

                         chemical             test       at     municipal              expense,            we        will       make  

                                                                                                                              

                         arrangements for  a sample of your blood to be drawn by  

                                                                                                                                     

                         qualified personnel at no expense to you. . . .  Two, if you  

                                                                                                                                    

                         wish  to  have  an  independent  chemical  test  of  your  own  

                                                                                                                                  

                         choosing, you must make your own arrangements for one to  

                                                                                                                                       

                         be administered within the immediate Anchorage area by a  

                                                                                                                                         

                         qualified person and you must pay for it yourself. . . .  

                                                                                                                               



                                      . . . It is possible that evidence from the independent  

                                                                                                                   

                         chemical test sample may be obtained by the municipality  

                                                                                                                   

                         through legal processes and used against you.  

                                                                                                        



                                      I cannot give you any other legal or medical advice.  

                                                                                                                                            

                         If you have any questions, you should ask your legal and  

                                                                                                                                   

                         health advisors.  At this time you must decide whether or not  

                                                                                                                                     

                         you want to take an independent chemical test.  

                                                                                                                     



Botson responded, "No, I guess not."  

                                                                         



             1           Botson took two breath tests, but the first produced an invalid sample.                                                                     



After the first test, the officer gave Botson further instruction on how to breathe into the                                                                  

machine and administered the second breath test.                                      



             2           See Anchorage Municipal Code (AMC) 09.28.020(B) (2010).  

                                                                                                                                 



                                                                               -3-                                                                        7077
  


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

                                At the time neither Botson nor the officer was aware that the breath test                                                                                



device had produced an error code related to one of its quality assurance measures, the                                                                                                                    



"external standard" test. That test involves a canister of compressed ethanol gas, or "alco                                                                                                           



bottle," connected to the device's testing chamber. Each canister is labeled with a target                                                                                                         



value that the administering officer enters into the device prior to testing, and the device                                                                                                       



                                                                                                                                                     3  

has a regulator that controls the flow of gas into the chamber.                                                                                           



                                 Thebreath test deviceautomatically conducts anexternal standard test both  

                                                                                                                                                                                                         

before and after taking a subject's breath sample.4                                                                             The device first adjusts the target  

                                                                                                                                                                                                     



value according to barometric pressure.   The device's regulator then turns on and a  

                                                                                                                                                                                                    

known quantity of ethanol gas from the canister is pulled into the chamber.5   The device  

                                                                                                                                                                                                   



produces a numerical result based on the amount of alcohol detected, and if that result  

                                                                                                                         



falls within a given range of the target value, the "external standard" test is satisfied.  If  

                                                                                                                                                                                                              



the result falls outside of this range, the machine will produce an error message reading  

                                                                                                                                                                                                



                                                           6  

"standard out of range."   

                                         



                                 In Botson's case the target value adjusted for barometric pressure was .079  

                                                                                                                                                                                                                     



and the pre-sample external standard test produced a result of .080, well within the  

                                                                                                                                                                                                           

acceptable range.7   But the next external standard test, run after Botson's breath sample  

                                                                                                                                                                                                  



                3               ALASKA  SCIENTIFIC  CRIME  DETECTION  LAB., B                                                                      REATH  ALCOHOL  TESTING  



P R  O  G  R  A  M                             M A  N  U  A  L                           2 6 - 2 7 ( 2 0 1 5 ) ,                                           a v a i l a b l e                                a t  

http://www.dps.alaska.gov/crimelab/docs/DMT/Breath_Alcohol_Program_Testing_  

Manual_DMT.pdf  



                4               Id .  



                5               Id .  



                6  

                                                                 

                                Id . at 35, 37.  



                7  

                                                                                                                                                                                                           

                                According to the Municipality's expert witness, the acceptable range at this  

                                                                                                                                                                                  (continued...)  



                                                                                                      -4-                                                                                             7077
  


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

was taken, resulted in a value of only .018, far below the expected value. The breath test                                                                                                                                                                                                                                                                                                                                                                          



device therefore produced an error message reading "standard out of range."                                                                                                                                                                                                                                                                                                                                                   This error   



message appeared on the device's screen as well as a printout that the officer initialed                                                                                                                                                                                                                                                                                                                                                 



 and dated.                                               But according to the officer, the error message nonetheless went unnoticed.                                                                                                                                                                                                                                                                                                                                                       



                                                                         The Municipality of Anchorage subsequently charged Botson with driving                                                                                                                                                                                                                                                                                                



under the influence, noting that his breath test revealed a blood alcohol level of .141.                                                                                                                                                                                                                                                                                                                                                          



                                     B.                                  The Trial Court Proceedings                                                                     



                                                                         Botson   filed   two   suppression   motions   before   the   district   court,   both  



highlighting the failure of the final external standard test and the resulting error code.                                                                                                                                                                                                                                                                                                                                                                                         



                                                                         Botson's first motion was based primarily on AMC 09.28.023(E), which   



 states, "To be considered valid under the provisions of this section, the chemical analysis                                                                                                                                                                                                                                                                                                                                               



 of   the   person's   breath   or   blood   shall   have   been   performed   according   to  methods  



 approved by the state department of public safety."                                                                                                                                                                                                                                        The district court held a two-day                                                                                                    



 evidentiary hearing at which the officer and two expert witnesses testified.                                                                                                                                                                                                                                                                                                                                         The officer   



 explained that at the end of the                                                                                                                                                     test sequence, a prompt appears on the breath test                                                                                                                                                                                                                         



device's screen asking the operator if the external testing canister (the alco bottle) has                                                                                                                                                                                                                                                                                                                                                                         



been turned off, and the operator must input "yes" before the test results can be printed.                                                                                                                                                                                                                                                                                                                                                                                                  



According to the officer, he "[got] ahead of [himself]" during Botson's test and turned                                                                                                                                                                                                                                                                                                                                                            



 off the alco bottle too early "so [he] could just push the yes button."                                                                                                                                                                                                                                                                                                             After listening to   



 an audio recording of Botson's breath test, the officer identified the "clunking" sound of                                                                                                                                                                                                                                                                                                                                                                                



the alco bottle being turned off before the final external standard test was completed.                                                                                                                                                                                                                                                                                                                                                                                          



                                                                         The   Municipality's   expert   witness,   Colleen   O'Bryant,   confirmed   this  



interpretation   of   the   audio   recording   and   testified   that   turning   off   the   alco   bottle  



                                     7                                   (...continued)  



                                                                                                                                                                                                                                                                                       

barometric pressure would have been .069 to .089.  



                                                                                                                                                                                                                                     -5-                                                                                                                                                                                                                                              7077  


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

prematurely would have caused the final external standard test to produce a result out of                                                                                                                                     



range.    She further explained that the calibration of the breath test device had been                                                                                                                               



verified on September 14 and October 7, 2010, and that the device would have been                                                                                                                                      



"working properly" on September 30, when Botson was arrested.                                                                                         



                                   Botson presented expert testimony froma retired Anchoragepoliceofficer,                                                                                                       



                                                                                                                                                                                                                                 8  

Donald Mann.                            Much of Mann's testimony was unrelated to the external standard test,                                                                                                                         



but Mann confirmed based on the audio recording of Botson's breath test that the officer  

                                                                                                                                                                                                                  



likely shut off the alco bottle prematurely.  Mann further opined that this could have  

                                                                                                                                                                                                                       



caused the alco reading to fall significantly below the target value.  Reaching a different  

                                                                                                                                                                                                            



conclusion from the Municipality's expert, however, Mann testified that regardless of  

                                                                                                                                                                                                                              



what caused the final external standard test to fail, this error precluded the required  

                                                                                                                                                                                                            



assurance of accuracy.  

                                                             



                                   The district court denied Botson's suppression motion, concluding that for  

                                                                                                                                                                                                                            



purposes of AMC 09.28.023(E), "methods approved by the state department of public  

                                                                                                                   



safety" referred only to those which the Department had  codified, rather than "any  

                                                                                                                                                                                                                      



 [statewide] procedure or method that the [Department] instituted or taught."  Because  

                                                                                                                                                                                                             



neither state statute nor regulation requires external standard testing, the court reasoned,  

                                                                                                                                                                                                           



the failure of the final external standard test did not render the test result inadmissible.  

                                                                                                                                                                                                                                      



In the alternative, the court concluded that even if external standard testing had been  

                                                                                                                                                                                                                       



required,  the  Municipality  had  substantially  complied  with  applicable  protocol.  

                                                                                                                                                                                                                                      



Specifically, the court found that the officer prematurely turned off the alco bottle, that  

                                                                                                                                                                                                                          



                  8                Specifically, Mann analyzed the audio tone produced by the breath test                                                                                                                 



device   during   both   of   Botson's   breath   tests.     Based   on   his   analysis   of   the   audio  

recording, Mann speculated that the thermistor - which measures air flow into the                                                                                                                                          

device's chamber - may not have been functioning correctly.                                                                                                                 But critically, Mann                    

testified that this air flow issue "ha[d] absolutely nothing to do with the accuracy of the                                                                                                                                 

analysis of what[] [was] in the sample chamber."                                                                                    



                                                                                                              -6-                                                                                                     7077
  


----------------------- Page 7-----------------------

this caused the final external standard test to fail, and that in light of this "simple"                                                                                                                             



explanation for the error code, the reliability of Botson's test results was not in doubt.                                                                                                                                                       



Accordingly,  the   court   concluded   that   the   Municipality   had   proved   substantial  



compliance and that Botson's test result was therefore admissible.                                                                                                                      



                                     Botson then filed a second suppression motion alleging that the officer's                                                                                                         



failure to disclose the "standard out of range" error had deprived Botson of his due                                                                                                                                               



process right to an independent chemical test, because his waiver of this right was not                                                                                                       

                                                                                                       9      Botson supported this claim with an affidavit  

"knowingly and intelligently made."                                                                                                                                                                                   



stating that he would have taken a blood test had he known about the undisclosed error.  

                                                                                                                                                                                                                                                 



Botson also noted that as a rheumatologist he "[relies] extensively on laboratory testing  

                                                                                                                                                                                                                            



andinstrumentation"andis "familiar with thepurposeand need for insuring theaccuracy  

                                                                                                                                                                                                                      



of instruments and machines." He further attested that based on the officer's mention of  

                                                                                                                                                                                                                                         



the breath test device's self-tests, he "assumed . . . [the officer] would tell [him] if the  

                                                                                                                                                                                                                                      



 [device] was not functioning correctly."  

                                                                                                                



                                     The district court denied this second suppression motion.  Citing Zemljich  

                                                                                                                                                                                                                      

                                                                                   10  the court stated:  

v. Municipality of Anchorage,  

                                                                                                                   



                                     [F]or a knowing waiver to occur, it is generally sufficient that  

                                                                                                                                                                                                

                                     defendant is notified of his right to an independent chemical  

                                                                                                                                                                                 

                                     test, is aware that he has been arrested for operating under the  

                                                                                                                                                                                                  

                                     influence,                       and            understands                            that            the           purpose                     of         the  

                                                                                                                                                                                             



                  9                  See   Gundersen   v.   Municipality   of   Anchorage,   792   P.2d   673,   676-77  



(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 in the                                                                                                                                               

simplest and most effective way possible, that is, an independent test. . . . A defendant's                                                                                                                   

waiver of this due process right essential to a fair trial is valid only if it is knowingly and                                                                                                                                     

intelligently made.").   



                   10                151 P.3d 471, 476-78 (Alaska App. 2006).  

                                                                                                                                         



                                                                                                                   -7-                                                                                                          7077
  


----------------------- Page 8-----------------------

                                     independent chemical test is to obtain evidence of his blood                                                                                       

                                     alcohol level.                        



The court reasoned                                      that  Botson knowingly and intelligently waived his right to an                                                                                                              



independent chemical test under that "basic outline of the law."                                                                                                                         The district court   



concluded that as a matter of law, "[t]here is nothing requiring the police to inform a                                                                                                                                                  



defendant of any particular problems with the [breath test device] prior to obtaining a                                                                                                                                                  



waiver of an independent chemical test." And even if such disclosure                                                                                                                       were  required, the   



court found as a factual matter that this "would not have changed a reasonable person's                                                                                                                              



analysis of whether or not to obtain an independent chemical test."                                                                                                                     



                                     Thedistrict                    court held anon-jurytrial,                                            at which theMunicipalityintroduced                                    

                                                                                                                11      Based on this sample and stipulated facts,  

evidence of Botson's breath test sample.                                                                                                                                                                                     



Botson was convicted of driving under the influence.  

                                                                                                                      



                  C.                 The Court Of Appeals' Decision  

                                                                                                          

                                    Botson appealed, and the court of appeals affirmed Botson's conviction.12  

                                                                                                                                                                                                                                              



The court first noted that the government is not required to "show absolute compliance  

                                                                                                                                                                                                             



with  breath  test  procedures"  to  introduce  a  breath  test  result;  rather,  "substantial  

                                                                                                                                                                                                          

compliance  is  sufficient."13                                                       In  determining  whether  the  government  has  shown  

                                                                                                                                                                                                                        



substantial  compliance,  the  court  defined  the  relevant  inquiry  as  "whether  the  

                                                                                                                                                                                                                                 



government's departure from normal procedures affected the reliability of the breath  

                                                                                                                                                                                                                           

test."14               Based on the district court's finding of reliability - which Botson did not  

                                                                                                                                                                                                                                   



                  11                Botson v. Municipality of Anchorage                                                                 , A-11192,                     2014 WL 4050588, at *1                                         



(Alaska App. Aug. 13, 2014).                                    



                  12                Id .  at  *5-6.  



                  13                Id .  at  *2.  



                  14                Id .  



                                                                                                                  -8-                                                                                                          7077
  


----------------------- Page 9-----------------------

challenge - the court of appeals upheld the district court's conclusion "that the error in                                                                            



the administration of the second [external standard] test did not invalidate Botson's                                                                   

breath test result."                15  



                                                                                                                                                

                          In  addressing  Botson's  constitutional  claim,  the  court  of  appeals  first  



                                                                                                                                                           

summarized its pastdecisions on knowingand intelligent waiver, statingthat"an arrestee  



                                                                                                                                                                    

cannot knowingly and intelligently waive the right to an independent test if he does not  

                                                                                                                                  16   The court further  

                                                                                                                                                            

have a 'basic understanding' of the right to an independent test." 



noted that  

                     



                          [a]n arrestee acquires a "basic understanding" of that right if  

                                                                                                                                             

                          he is "notified of the right to an independent test, is aware  

                                                                                                                                    

                          that he or she was arrested for driving under the influence,  

                                                                                                                            

                          andgenerally understands thatthepurposeoftheindependent  

                                                                                                                        

                          test is to obtain evidence of his or her blood alcohol level."[17]  

                                                                                                                              



The court concluded that Botson had acquired this "basic understanding" of his right to  

                                                                                                                                                                      

an independent chemical test.18  

                                                   



                          ChiefJudgeMannheimer dissented,concluding that Botson couldnotmake  

                                                                                                                                                                



an informed decision about whether to exercise his constitutional right to an independent  

                                                                                                                                                  

test absent knowledge of the error message.19   He noted that the majority's position may  

                                                                                                                                                                  



be consistent with Crim v. Municipality of Anchorage, where the court of appeals held  

                                                                                                                                                                 



             15           Id .  



             16           Id . at *4 (quoting                Crim v. Municipality of Anchorage                                     , 903 P.2d 586, 588  



(Alaska App. 1995)).        



             17           Id . (quoting Zemljich v. Municipality of Anchorage, 151 P.3d 471, 475  

                                                                                                                                                                  

(Alaska App. 2006)).  

                            



             18           Id .  



             19           Id . at *6-11 (Mannheimer, C.J., dissenting).  

                                                                                          



                                                                                  -9-                                                                           7077
  


----------------------- Page 10-----------------------

that an arrestee could validly waive the right to an independent test absent knowledge of                                                                          



                                                     20  

his actual breath test result.                                                                                                                                  

                                                            But Chief Judge Mannheimer concluded that Crim had  



                                                                                                                                                          

been wrongly decided, reasoningthat"[f]or an arresteeto be able to meaningfully choose  



                                                                                                                                                             

whether to assert their right to an independent blood test, the arrestee must know more  



                                                                                                                                        

than the general purpose of the breath test and the general purpose of the independent  

                       21     Characterizing  the  officer's  failure  to  discover  the  error  message  as  

                                                                                                                                                                  

blood  test." 



negligent,  Chief  Judge  Mannheimer  concluded  that  Botson  was  "deprived  -  by  

                                                                                                                                                                 



government action - of a fair opportunity to decide whether to exercise his right to an  

                                                                                                                                                                  

independent test."22  

                          



                          Botson filed a petition for hearing, which we granted.  

                                                                                                                  



III.         STANDARD OF REVIEW  

                                                  



                          When  we  review  an  appellate  decision  of  the  court  of  appeals,  we  

                                                                                                                                                                

independently review the underlying judgment of the trial court.23  

                                                                                                                 



                          "We review a denial of a motion to suppress evidence in the light most  

                                                                                                                                                             

favorable to upholding the trial court's ruling."24  

                                                                                                                                                       

                                                                                               Although "[t]he trial court's findings  



                                                                                                                                           

of fact will not be disturbed unless they are clearly erroneous[,] [w]e independently  



                                                                                                                                                             25  

                                                                                                                                    

determine whether the trial court's factual findings support its legal conclusions." 



             20          Id . at *7-8 (citing               Crim, 903 P.2d at 588).
                        



             21          Id . at *11.
  

                                     



             22          Id .
  



             23           State v. Hodari              , 996 P.2d 1230, 1232 (Alaska 2000).                         



             24  

                                                                                                                          

                          State v. Miller, 207 P.3d 541, 543 (Alaska 2009).  



             25          Id . (citation omitted).  

                                                  



                                                                               -10-                                                                          7077
  


----------------------- Page 11-----------------------

                          "[T]he interpretation of . . . controlling statutes and regulations is a legal                                                    



                                                                        26  

question which we review de novo."                                                                                                                     

                                                                              "When deciding [constitutional] due process  



                                                                                                                                                            

claims,  we  apply  our  independent  judgment,  adopting  the  rule  of  law that  is  most  



                                                                                                     27  

                                                                                      

persuasive in light of precedent, reason, and policy." 



IV.	         DISCUSSION  



                                                                                                                                                        

             A.	          The District Court Was Not Required To Suppress Botson's Breath  

                                                                                                         

                          Test Result Under AMC 09.28.023(E).  



                                                                                                           

                         Anchorage Municipal Code 09.28.023(E) provides:  



                                                                                                                                      

                          To be considered valid . . . , the chemical analysis of the  

                                                                                                                          

                         person's breath or blood shallhavebeenperformedaccording  

                                                                                                                                              

                         to methods approved by the state department of public safety.  

                                                                                                                                         

                          If it is established at trial that a chemical analysis of breath or  

                                                                                                                                          

                         blood was performed according to approved methods by a  

                                                                                                                                   

                         person   trained   according   to   techniques,   methods   and  

                                                                                                                                        

                          standards of training approved by the state department of  

                                                                                                                                       

                         public safety, there is a presumption that the test results are  

                                                                                                                            

                         valid and further foundation for introduction of the evidence  

                               

                          is unnecessary.  



                                                                                                                                                         

Botson argues that because the breath test device produced a "standard out of range"  



                                                                                                                                                              

error code during the final external standard test, the Municipality failed to comply with  



                                                                                                                        

"methods approved by the state department of public safety."  



                                                                                                                                                

                          1.	         The  Municipality  did  not  strictly  comply  with  "methods  

                                                                                                                                 

                                      approved by the state department of public safety."  



                                                                                                                                                     

                          The quality assurance measure at issue in this case - external standard  



                                                                                                                                                         

testing - is not mentioned in any regulations adopted by the Department of Public  



             26          Moody v. Royal Wolf Lodge                             , 339 P.3d 636, 638 (Alaska 2014).                      



             27          Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation                                                        , 145 P.3d     



561, 564 (Alaska 2006) (citation omitted).                      



                                                                               -11-	                                                                        7077
  


----------------------- Page 12-----------------------

                                                        28  

Safety    (the    Department),                                and    the    Municipality    argues    that    compliance    with  



Department-approved methods for purposes of AMC 09.28.023(E) should be measured                                                                                



only against              codified  protocol.  



                           As an initial matter, we disagree with the Municipality's assertion that this                                                                   



issue is "settled" under our current caselaw.                                                 The Municipality points to three of our                                      



cases involving deviations from the Department's breath testing protocol:                                                                                     Wester v.   



            29                                                                                 30                                      31 

                Oveson v. Municipality of Anchorage,                                               and Keel v. State.    It is true that each  

State,                                                                                                                                                          



of  these cases addressed an alleged omission with respect to an expressly codified  

                                                                                                                                                                 

requirement.32  But we have never held that for purposes of AMC 09.28.023(E) or the  

                                                                                                                                                                            



nearly identical language in AS 28.35.030(d), "methods approved by the [Department]"  

                                                                                                                                                     



are restricted to those methods outlined in the administrative code.  And for the reasons  

                                                                                                                                                                   



below, we decline to do so here.  

                                                         



                            TheDepartment'sregulationsprovideguidanceon severalaspects ofbreath  

                                                                                                                                                                      

alcohol testing, including the approval of new breath testing equipment,33 certification  

                                                              



              28           See   13  Alaska  Administrative  Code  (AAC)  63.005-.900  (2010).   



              29            528  P.2d   1179  (Alaska   1974).   



              30            574  P.2d  801  (Alaska   1978).  



              31            609  P.2d  555  (Alaska   1980).  



              32           See  Keel,  609  P.2d  at  558  (evaluating  alleged  non-compliance  with  a  prior  



version   of   13   AAC   63.100);   Oveson,   574   P.2d   at   803-04   (evaluating   alleged   non- 

compliance   with   a   prior   regulation   requiring   the   completion   of   a   "Breathalyzer  

Operational  Checklist");   Wester,  528  P.2d  at   1184  (evaluating  alleged  non-compliance  

with  a  prior  version  of   13  AAC  63.040(a)(1)).  



              33            13 AAC 63.030.  

                                               



                                                                                     -12-                                                                               7077
  


----------------------- Page 13-----------------------

                                                   34                                                                                                              35  

of breath test operators,                                and verification of a test instrument's calibration.                                                           But as   



Botsoncorrectlypointsout, the only guidance "[w]ith respect to thebreath                                                                                  test procedure   



itself" is 13 AAC 63.040, entitled "Procedure for breath test analysis."                                                                                    This section  



requires that an officer conduct a 15-minuteobservationprior to breath testing; enter data                                                                                     



when prompted by the breath test instrument; and "instruct the [subject] to blow into the                                                                                        



mouthpiece   until   the   visual   display   indicates   that   a   satisfactory   sample   has   been  

                      36     But the regulations contain no further detail about the operation of the  

obtained."                                                                                                                                                                      



breath test instrument such as quality assurance measures or appropriate responses to  

                                                                                                                                                                                   

error codes.37  

                               



                            Instead it appears that the Department has reserved these details for the  

                                                                                                                                                                                 



Scientific Crime Detection Laboratory's Breath Alcohol Program Testing Manual (the  

                                                                                                                                                                               



Manual).  The Manual outlines several troubleshooting steps to be taken in response to  

                                                                                                                                                                                   



a "standard out of range" error code and advises the breath test operator to contact the  

                                                                                                                                                                                 



crime lab if the error message persists.  The Manual also describes the external standard  

                                                                                                                                                                      



testing process, explaining that the test "delivers a known quantity of ethanol to the  

                                                                                                                                                                                 



[breath test device] both before and after the subject sample.  The purpose is to ensure  

                                                                                                                

the [device] is accurately recognizing and quantitating ethanol concentrations."38  

                                                                                                                                      



              34             13  AAC  63.050(a).   



              35             13  AAC  63.100(a)-(c).  



              36             13  AAC  63.040(a).  



              37            See   13  AAC  63.005-.900.  



              38            ALASKA  SCIENTIFIC  CRIME  DETECTION  LAB.,  BREATH  ALCOHOL  TESTING  



P R  O  G  R  A  M                        M A  N  U  A  L                       2 6              ( 2 0 1 5 ) ,                       a v a i l a b l e                           a t  

http://www.dps.alaska.gov/crimelab/docs/DMT/Breath_Alcohol_Program_Testing_  

Manual_DMT.pdf.  



                                                                                       -13-                                                                                  7077
  


----------------------- Page 14-----------------------

                                         Testimony    at    the    suppression  hearing    similarly    shed    light    on    the  



Department's approved protocol.                                                                         In particular, the officer testified that he should have                                                                                           



waited for the breath test device's prompting before turning off the alco bottle (which                                                                                                                                                             



contains   the   ethanol   gas   used   in   the   external  standard   test)   and   responded   to   the  



subsequent error                                      code by                      checking   the alco                                        bottle or                     using   another   machine.     The  



Municipality's expert witness similarly described the appropriate response to the error                                                                                                                                                                   



message produced during Botson's test.                                                                                      But because the officer failed to note the error                                                                              



message on the device's screen and printout, no remedial measure was taken.                                                                                                                                                                                 We  



therefore conclude that the Municipality failed to strictly comply with Department-                                                                                                                                              



approved methods in administering Botson's breath test.                                                                                                                         



                                         2.	                  The               Municipality                                     substantially                                   complied                            with                 "methods  

                                                              approved    by    the    state    department    of    public    safety"    in  

                                                              administering Botson's breath test.                                                                  



                                         As   noted   above,   AMC   09.28.023(E)   requires   that    a   breath   test   be  



"performed according to methods approved by the state department of public safety."                                                                                                                                                                           But  

in applying the analogous provision in state statute,39  

                                                                                                                                                                           we have held that "where the                                                        



record demonstrates that the test was properly performed," substantial compliance with                                                                                                                                                                      

approved methods is sufficient to establish admissibility.                                                                                                                     40  



                                         In Wester v. State we applied this rule to a requirement that the breath tester  

                                                                                                                                                                                                                                                          

"observe the subject to be tested for at least 15 minutes immediately prior to testing."41  

                                                                                                                                                                                                                                                                             



We held that although the tester may not have personally observed the subject for the  

                                                                                                                                                                                                                                                                



entire 15-minute period, observation by the arresting  officer constituted substantial  

                                                                                                                                                                                                                                       



                    39                   See  AS  28.35.033(d).  



                     40                  Oveson  v.  Municipality  of  Anchorage ,  574  P.2d  801,  805  (Alaska   1978).  



                     41                  528  P.2d   1179,   1183-85   &  n.21   (Alaska   1974) (quoting   former   7  AAC  



30.020(2)  (1974)).
  



                                                                                                                               -14-	                                                                                                                      7077
  


----------------------- Page 15-----------------------

compliance   and   that   "a   rigid  standard   of   proof   [as   to   that]   foundational   fact   is  

unnecessary."42  



                      We reached a similar result in Oveson v. Municipality of Anchorage, which  

                                                                                                                                      



involved  the  omission  of  a  checkmark  on  a  "Breathalyzer  Operational  Checklist"  

                                                                                                                             

required under prior regulations.43  In that case "[t]here was uncontroverted testimony  

                



that  the  step  in  question  was  performed  despite  the  failure  to  check  off  the  box  

                                                                                                                                        

representing that step."44  As we explained, the omission rendered the usual presumption  

                                                                                                                           



of  the  test's  validity  inapplicable  but  did  not  automatically  render  the  test  results  

                                                                                                                                    

inadmissible.45            We held that "where there has been substantial compliance with the  

                                                                                                                                          



[checklist provision], and . . . where the record demonstrates that the test was properly  

                                                                                                                                 

performed, the test results are admissible."46  

                                                   



                      In Keel v. State  we reached the opposite result in considering a former  

                                                                                                                                    



regulatory  requirement  that  a  breath  test  instrument  be  calibrated  by  a  qualified  

                                                                                                                                

                     47  There the state had shown that the breath test device had been calibrated  

"instructor."                                                                                                                  



within the requisite time period by a police lieutenant, but had not "inquire[d] further into  

                                                                                                                                         



           42         Id . at 1184-85.     



           43  

                                                                                                                       

                      574 P.2d at 803-04 (citing former 7 AAC 30.020 (1976)).  



           44  

                                

                      Id . at 805.  



           45         Id . at 804.     



           46         Id . at 805.  

                                



           47  

                                                                                                                               

                      609 P.2d 555, 557-59 (Alaska 1980) (citing former 7 AAC 30.050(b)  

                                                                                                                              

(1980)).         A  similar  regulation  now  requires  periodic  calibration  by  the  "scientific  

                                                                                                                                      

director"  or  a  "qualified  person  designated  by  the  scientific  director."                                               13  AAC  

63.100(b).  



                                                                    -15-                                                              7077
  


----------------------- Page 16-----------------------

                                                                                                                      48  

where, when[,] or by whom [the lieutenant] had been 'certified.' "                                                        We held that "[t]he       



state's failure to show that [the lieutenant] was properly qualified, therefore, casts doubt                                                       



on   the   accuracy   of   the   calibration  and   hence   on   the   reliability   of   the   [breath   test]  

result[]."49  



                        Here the district court found that despite the deviation from protocol, the  

                                                                                                                                                        



accuracy of Botson's test result was not in doubt, and Botson did not challenge the  

                                                                                                                                                       

district court's factual findings in either his appeal50  or his petition for hearing.  Even if  

                                                                                                                                                          



he  had,  we could  not say  that the district court's finding of reliability  was clearly  

                                                                                                                                                

erroneous.51            The district court appropriately considered the following evidence:  1) the  

                                                                                                                                                        



officer's confirmation after listening to an audio recording of the testing process, that he  

                                                                                                                                                         



had turned off the alco bottle prematurely;  2) calibration verification reports from both  

                                                                                                                                                     



before and after Botson's arrest; 3) O'Bryant's expert testimony after listening to the  

                                                                                                                                                       



audio recording that she could hear the alco bottle being turned off and that this would  

                                                                                                                                                  



have caused the error code in question; and 4) the absence of any compelling testimony  

                                                                                                                                            



from Botson's expert witness suggesting that the breath test device was unreliable.  

                                                                                                                                                               



                        Botson's position would require us to disregard this evidence. He appears  

                                                                                                                                               



to argue that if a deviation from testing protocol could theoretically have impacted the  

                                                                                                                                                        



accuracy of a breath test result, this precludes the consideration of a "post hoc theory"  

                                                                  



as to how the test may nonetheless have been accurate.  And he argues that the court of  

                                                                                                                                                         



            48          Keel,  609  P.2d  at  558.  



            49          Id .  



            50          Botson  v.  Municipality  of  Anchorage ,  A-11192,  2014  WL  4050588,  at   *2  



(Alaska  App.  Aug.   13,  2014).  



            51          See  State  v.  Miller,  207  P.3d 541, 543  (Alaska  2009)  ("The  trial  court's  



findings  of  fact  will  not  be  disturbed  unless  they  are  clearly  erroneous."  (citing  State  v.  

Joubert,  20  P.3d   1115,   1118  (Alaska  2001))).   



                                                                           -16-                                                                    7077
  


----------------------- Page 17-----------------------

appeals mischaracterized the relevant precedent when it stated that "the crucial issue in                                                                                              



determining whether there has been substantial compliance is whether the government's                                                                         



                                                                                                                                                                    52  

departure from normal procedures affected the reliability of the breath test."                                                                                            



                                                                                                                                                                      

                             But we view the trial court's substantial compliance analysis as consistent  



with the relevant caselaw, where we have expressly considered the state's evidence in  



                                                                                                                                                                                       

determining whether the deviation from codified protocol undermined the reliability of  



                                                                                                                                                                                

a breath  test.                   In  Wester for  instance, we concluded  that the minor  deviation  from  



                                                                                                                                                                                     

protocol in the administration of the 15-minute observation period had no impact on the  



                                                                                                                                                                    

reliability of the test result, in light of testimony that the subject was under continuous  

                                                                                       53   Similarly in Oveson, we looked to the state's  

                                                                                                                                                                              

observation for the requisite time period. 



"uncontroverted" testimony that although the officer had failed to mark one of the boxes  

                                                                                                                                                                               



on the "Breathalyzer Operational Checklist," he indeed performed the actions described  

                                                                                                                                                                       

therein.54   In contrast the government failed to provide such evidence in Keel :  although  

                                                                                                                                                                        



it presented testimony alleging that its calibrating officer met the requirements for a duly  

                                                                                                                                                                                 



certified "instructor," we noted that stronger evidence was required to establish this  

                                                                                                                                                                                   

foundational fact.55   In summary, we have never considered the admissibility of a breath  

                                                                                                                                                                             



test result in a factual vacuum.  

                                                



                             Botson attempts to distinguish his case from Oveson's application of the  

                                                                                                                                                                                     



substantial compliance doctrine by characterizing the officer's failure to complete the  

                                                                                                                                                                                    



final external standard check as jeopardizing the "substantive purpose of the [breath test  

                                                                                                                                                                                    



device's] self-check" process.  But the purpose of the self-check process here, like the  

                                                                                                                                                                                     



               52            See Botson              , 2014 WL 4050588, at *2.                           



               53            528 P.2d 1179, 1183-85 & n.27 (Alaska 1974).                                             



               54            574 P.2d 801, 804-05 (Alaska 1978).                                



               55            609 P.2d 555, 558-59 (Alaska 1980).  

                                                                                                



                                                                                         -17-                                                                                   7077
  


----------------------- Page 18-----------------------

purpose of the checklist requirement in                         Oveson, was to ensure that the breath test was                      



              56  

accurate.                                                                                                                            

                  And here as in Oveson, the State provided persuasive evidence to show that  



                                                                                                                                

the breath test device was functioning normally and providing accurate readings despite  



                                                                                                                               57  

                                                                                                                  

the police officer's failure to strictly comply with statutorily approved methods. 



                     Finally Botson argues that under the relevant caselaw, police officers must  

                                                                                                                                   



" 'substantially comply' with each substantive part of the State-approved breath test  

                                                                                                                                     



protocol."         But  we  have  never  held  that  "substantial  compliance"  is  required  at  a  

                                                                                                                    

particular  level  of  granularity,58                  and  we  decline  to  do  so  now.  Imposing  such  a  

                                                                                                                                        



requirement would likely lead to less accurate breath testing because it would provide  

                                                                                                                



the Department of Public Safety and local municipalities with the incentive to reduce the  

                                                                                                                                      



number of individual safeguards in their testing protocols.  

                                                                              



                     Accordingly, we disagree with Botson's attempt to distinguish his case  

                                                                                                                                   



from Oveson and Wester based on the significance of the police officer's deviation from  

                                                                                                                                   



protocol. The district court did not err in denying Botson's first motion to suppress.  

                                                                                                                                       



           B.	       Botson Knowingly And Intelligently Waived His Constitutional Right  

                                                                                                                                 

                     To An Independent Chemical Test.  

                                                                          



                     This  court  has  long  recognized  an  individual's  due  process  right  to  

                                                                                                                                       

challenge  the  results  of  a  breath  alcohol  test.59  

                                                                                                                                       

                                                                                   In  Gundersen  v.  Municipality  of  



           56        See  Oveson,  574  P.2d  at  804-05.  



           57        Cf.  id.  at  805.  



           58        See,   e.g.,   id.   at   803,   805   (finding   substantial   compliance   despite  testing  



officer's  failure  to  mark  the  checkbox  indicating  he  had  "[g]auge[d]  [the]  test  ampul  and  

insert[ed]  [it]  in  left-hand  holder").  



           59        See Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976) ("A denial of the  

                                                                                                                                      

right to  [analyze a breathalyzer's  components], that is to say, to  'cross-examine' the  

                                                                                                                                     

results  of  the  test,  would  be  reversible  error  without  any  need  for  a  showing  of  

                                                                                                                                      

                                                                                                                    (continued...)  



                                                                  -18-	                                                           7077
  


----------------------- Page 19-----------------------

Anchorage  we explained that "[s]ince a defendant must provide the state with potentially                                                          



incriminating evidence at the risk of criminal penalties, . . . due process requires that the                                                                    



defendant be given an opportunity to challenge the reliability of that evidence in the                                                                           

                                                                                                                                           60    We further  

simplest and most effective way possible, that is, an independent test."                                                                                 



noted that "if the police choose not to preserve a breath sample, due process requires that  

                                                                                                                                                                



they give clear and express notice of a defendant's right to an independent test and offer  

                                                                                                                                                              



assistance in obtaining  one in  order  to  introduce police-administered  test results at  

                                                                                                                                                                   

trial."61  

                 



                          "A defendant's waiver of this due process right essential to a fair trial is  

                                                                                                                                                                   

valid only if it is knowingly and intelligently made."62   "We have held that a defendant's  

                                                                                                                                                



waiver of his due process rights is effective despite his intoxication so long as he knew  

                                                                                                                                                            

                                         63    But we have not further addressed what constitutes effective  

what he was doing."                                                                                                                                   

                           



waiver of the right to an independent chemical test.  The court of appeals has addressed  

                                                                                                                                                    



this issue more directly, stating that effective waiver requires  

                                                                                                                       



                          "a basic understanding of the right to an independent test,"  

                                                                                                                                   

                          which is satisfied if the driver is notified of the right to an  

                                                                                                                                         

                          independent test, is aware that he or she was arrested for  

                                                                                                                                       

                          driving under the influence, and generally understands that  

                                                                                                                                      



             59           (...continued)
  



prejudice."  (citing  R.L.R.  v.  State,  487  P.2d  27,  44  (Alaska   1971))).
  



             60           792  P.2d  673,  676  (Alaska   1990).  



             61           Id .  at  677.  



             62           Id .  



             63           Id .  (quoting  Thessen  v.  State, 454 P.2d  341,  345  (Alaska   1969))  (internal  



quotation  marks  omitted).  



                                                                               -19-                                                                          7077
  


----------------------- Page 20-----------------------

                         the purpose of the independent test is to obtain evidence of                                                  

                         his or her blood alcohol level.                          [64]  



The court of appeals also has noted that effective waiver "does not require that the driver  

                                                                                                                                                         



be able to 'assess[] the potential advantages and disadvantages of availing himself of the  

                                                                                                                                                              

right to an independent test.' "65  

                                                        



                         Of the court of appeals' decisions addressing the right to an independent  

                                                                                                                                  



chemical  test,  only  one  has  held  an  arrestee's  waiver  ineffective.                                                                    That  case,  

                                                                                                                                                         



Ahtuangaruak v. State ,  involved a defendant with limited English abilities who could  

                                  

not understand the police officer's "lengthy attempt to explain the blood test option."66  

                                                                                                                                                                      



The court of appeals held that because this language barrier prevented the arrestee from  

                                                                                                                                                           



gaining a "basic understanding" of his constitutional right to an independent test, due  

                                                                                                                                                             

process required suppression of the arrestee's breath test result.67  

                                                                                                             



                         Echoing  this  characterization  of  waiver  as  requiring  only  "a  basic  

                                                                                                                                                         

understanding of the right to an independent test,"68  the court of appeals has upheld a  

                                                                                                                                                                  

defendant's  waiver  as  valid  in  every  subsequent  case.69                                                      Crim  v.  Municipality  of  

                                                                                                                                                               



             64          Zemljich v. Municipality of Anchorage                                     , 151 P.3d 471, 475 (Alaska App.                        



2006) (quoting                Ahtuangaruak v. State                     , 820 P.2d 310, 311 (Alaska App. 1991)).                         



             65          Id . (alteration in original) (quoting Crimv. Municipality of Anchorage, 903  

                                                                                                                                                             

P.2d 586, 588 (Alaska App. 1995)).  

                                                       



             66           820 P.2d at 311.  

                                                 



             67          Id . at 311-12.  

                                     



             68          See id. at 311.  

                                            



             69          See, e.g., Wing v. State, 268 P.3d 1105, 1108 (Alaska App. 2012) (holding  

                                                                                                                                                    

waiver effective despite arrestee's argument that she didn't know whether it would be  

                                                                                                                                              

strategic to have an independent chemical test); Zemljich, 151 P.3d at 474-78 (holding  

                                                                                                                                                    

waiver effective where arrestee declined to make a decision whether or not to invoke the  

                                                                                                                                                              

                                                                                                                                          (continued...)  



                                                                              -20-                                                                        7077
  


----------------------- Page 21-----------------------

                   70  

Anchorage               is most directly on point.                     There the court held that a defendant could                          



"knowingly and intelligently" waive his right to an independent chemical test without                                                    

                                                                                         71    Looking to the "totality of the  

knowing the results of his breath test in advance.                                                                                              



circumstances," the court noted that the arrestee "appeared to understand the gravity of  

                                                                                                                                                   



his situation, that he had been arrested for driving while intoxicated, that the police had  

                                                                                                                                                



taken a sample of his breath for a reading of his alcohol level, and the significance of an  

                                                                                                                                                  

opportunity to have an independent test of his alcohol level."72  

                                                                                               



                       We agree with the conclusion of both the district court and the court of  

                                                                                                                                                   



appeals that Botson acquired a "basic understanding" of his right to an independent  

                                                                                                                                 



chemical test, as defined in the caselaw outlined above. And on the facts of this case, we  

                                                                                                                                                  



find that this "basic understanding" standard satisfies due process requirements.  The  

                                                                                                                                               



circumstances required for a "basic understanding" were all present in the instant case:  

                                                                                                                                              



 1) the officer read Botson a form notice of his right; 2) the intake transcript suggests that  

                                                                                                                                                



Botson understood he had been arrested for driving under the influence; and 3) as the  

                                                                                                                                



court of appeals correctly observed, "Botson does not dispute that he understood the  

                                                                                                                                                 



significance  of  the  breath  test  and  the  importance  of  the  opportunity  to  have  an  

                                                                                                                                                 

independent test of his blood alcohol level."73  

                                                                  



            69         (...continued)  



                                                                                                                                        

right); Moses v. State, 32 P.3d 1079, 1084 (Alaska App. 2001) (holding waiver effective  

                                                         

despite arrestee's argument that he was unable to understand whether the independent  

                                         

test would work in his favor).  



            70         903 P.2d 586.  

                                         



            71         Id . at 588-89.  

                                  



            72         Id .  



            73         Botson v. Municipality of Anchorage , A-11192,  2014 WL 4050588, at *4  

                                                                                                                                                  

                                                                                                                               (continued...)  



                                                                       -21-                                                                  7077
  


----------------------- Page 22-----------------------

                         Botson   does   not   appear   to   argue   that  suppression   was   required   under  



existing   precedent.   Instead   he   asks   us   to   adopt   the   position   taken   by   Chief   Judge  



Mannheimer in his dissenting opinion.                                      Chief Judge Mannheimer opined that                                      Crim  was  



wrongly decided and proposed the following rule:                                                   "In order to give an arrestee a fair                        



opportunity to decide whether to exercise the right to an independent blood test, the                                                                           



government must be required to apprise the arrestee of                                                     the circumstances that would                   

                                                                                                                                                 74    For the  

reasonably bear on the arrestee's decision whether to exercise this right                                                                     ."                



reasons below, we decline to overrule Crim in favor of this alternative framework.  

                                                                                                                                                                



                         First, we agree with the court of appeals' conclusion that "[t]he [rule]  

                                                                                                                                                           



Botson proposes, carried to its logical conclusion, would require the government to show  

                                                                                                                                                            



strict compliance rather than substantial compliance with any breath test procedures that  

                                                                                                                                                               

                                                                                                          75   -  a  result  that  would  be  

govern  the  actual  administration  of  the  breath  test"                                                                                                     

                                                                                                 



inconsistent  with  existing  precedent  that  substantial  compliance  with  Department- 

                                                                                                                                             

                                                                                                                    76   As the court of appeals  

approved protocol may be sufficient to establish foundation.                                                                                      

                                                                        



reasoned,suppression would berequired under ChiefJudgeMannheimer'sproposedrule  

                                                                                                                                                               



             73           (...continued)  



(Alaska  App.  Aug.   13,  2014).  



             74          Id .  at  *9  (Mannheimer,  C.J.,  dissenting)  (emphasis  added).  



             75          Id .  at  *5.  



             76          See  Oveson  v.  Municipality  of  Anchorage ,  574  P.2d  801,  805  (Alaska  1978)  



("[W]here   there   has been   substantial   compliance   with   the   'Breathalyzer   Operational  

Checklist'  provision  [in  then-existing  code]  and  .  .  .  the  record  demonstrates  that  the  test  

was  properly  performed,  the test results  are admissible under  AS  28.35.033(d).");  Wester  

v.  State,  528  P.2d  1179,  1184  (Alaska  1974)  ("[W]here  substantial  compliance  with  the  

 15-minute   provision   is   established   on   the   record,   .   .   .   a   prima   facie   showing of   the  

foundational  fact  necessary  to  establish  admissibility  is  satisfied.").  



                                                                               -22-                                                                         7077
  


----------------------- Page 23-----------------------

even where          substantial  compliance was present and where the deviation from protocol                                      



                                                                     77  

had no impact on the accuracy of the test.                                 



                      Botson echoes Chief Judge Mannheimer's contrary conclusion  that "a  

                                                                                                                                            



decision in Botson's favor [would not] mean the end of the substantial compliance  

                                                                                                                             

doctrine."78         We first note that the rule Botson proposes appears limited to "observable  

                                                                                                                            

irregularit[ies]  in  the  breath  testing  process,"79                             which  would  indeed  preserve  the  

                                                                                                                                          



substantial compliance doctrine in the context of more latent errors, such as deviations  

                                                                                                                               

from the prescribed process for verifying breath test instruments' proper calibration.80  

                                                                                                                                                  



But we have never drawn a distinction between observable and latent errors in evaluating  

                                                                                                                                

the admissibility of breath test results, and decline to do so here.81  If anything, adherence  

                                                                                                                                



to  protocol  may  be  of  heightened  importance  in  the  context  of  errors  that  are  not  

                                                                                                                                           



immediately apparent, such as a calibration issue that could cast doubt not only on an  

                                                                                                                                            

individual breath test result, but on a more systemic basis.82  

                                                                                        



                      In a related vein, Chief Judge Mannheimer suggests that the substantial  

                                                                                                                              



compliance  doctrine  would  still  apply  to  "flaws  which,  even  if  detected  and  

                                                                                                                                         



communicated to the arrestee, would not have materially affected the arrestee's decision  

                                                                                                                                   



           77         Botson,  2014  WL  4050588,  at  *5.  



           78         Id .  at  *11  (Mannheimer,  C.J.,  dissenting).  



           79         Id .  at  *9  (emphasis  added).  



           80         See   13  AAC  63.100(a)-(c).  



           81         In   Wester,  for  instance,  we  applied  the  substantial  compliance  doctrine  to  



the testing officer's failure to  personally  observe  the subject  for  the mandatory  15-minute  

period  -   an   omission  that  was   immediately   apparent   from  the  testing  process   itself.   

528  P.2d  at   1184-85.  



           82         See Keel v. State, 609 P.2d 555, 558 (Alaska  1980) (noting that "proper  

                                                                                                                                   

calibration of the breathalyzer is essential to guarantee accurate readings").  

                                                                                                           



                                                                     -23-                                                              7077
  


----------------------- Page 24-----------------------

                                                                                                                                 83  

concerning whether to demand an independent blood test."                                                                              But deciding in Botson's             



favor would mean that even a flaw not impacting the accuracy of an arrestee's breath test                                                                                              



could be deemed to "materially affect[] the arrestee's decision" whether to invoke the                                                                                                  



right.   Chief Judge Mannheimer maintains that "the issue in Botson's case is                                                                                                 not  the  

                                                                                                84  but we fail to see how else an error in the  

ultimate reliability of the breath test result,"                                                                                                                                        



testing process would be relevant to a reasonable person's decision whether to take an  

                                                                                                                                                                                         



independent chemical test.  

                                                             



                             Botson argues that knowledge of an error that is later proven "harmless"  

                                                                                                                                                                      



could  impact  this  decision,  and  Chief  Judge  Mannheimer  correctly  points  out  that  

                                                                                                                                                                                     

"[a]rrestees must make their decision about the independent test on the spot."85                                                                                              Botson  

                                                                                                                                                                               



contends that the solution is simple:  "require officers to inform arrestees of machine  

                                                                                                                                                                           



error messages, even if an officer is of the opinion - and a court may later agree - that  

                                                                                                                                                                                      



the error had no effect on accuracy." But this is not a case where an officer intentionally  

                                                                                                                                                                   



withheld information about a potential inaccuracy; rather, the officer failed to realize his  

                                                                                                                                                                                        



mistake or notice the resulting error code. If the mere specter of unreliability is sufficient  

                                                                                                                                                                          



to render a breath test result invalid on constitutional grounds, the effect would be to  

                                                                                                                                                                                          



require strict as opposed to substantial compliance whenever an officer's mistake was  

                                                                                                                                                                                      



only later discovered.  

                       



                             In addition Chief Judge Mannheimer surmises that under Crim, "Botson's  

                                                                                                                                                                         



waiver [would be] valid regardless of whether the officer's failure to inform Botson of  

                                                                                                                                                                                          



               83            Botson, 2014 WL 4050588, at *11 (Mannheimer, C.J., dissenting).                                                           



               84  

                                     

                             Id .  



               85            Id . at *10.  

                                          



                                                                                           -24-                                                                                    7077
  


----------------------- Page 25-----------------------

                                                                                                       86  

the error message was willful or only negligent."                                                           Similarly Botson argues that a more                               



protective constitutional rule would "provide . . . incentive for officers to pay attention                                                                            



to error messages and appropriately respond to them."                                                                But evidentiary requirements in                                 

                                                                   87                                                88  already operate to prevent the  

                                                                        and its state analogue                                                                                     

the Anchorage Municipal Code                                                                       



admission of a breath test where an officer's conduct - whether willful or merely  

                                                                                                                                                                          



negligent  -  impacts  a  test's  reliability.                                                 These  requirements  also  encourage  law  

                                                                                                                                                                                



enforcement's adherence  to  Department-approved  protocol in  the administration of  

                                                                                                                                                                                    

breath tests: such adherence gives the test a presumption of validity,89 whereas deviation  

                                                                                                                                                                      



from established protocol requires the prosecution to present additional evidence of a  

                                                                                                                                                                                       

breath test's accuracy.90  An arrestee's constitutional right to an independent chemical  

                                                                                                                                           



test is not the only assurance of reliability; evidentiary requirements directly serve this  

                                                                                                                                                                                  



function.  



                             Finally,  we  address  Botson's  argument  analogizing  the  right  to  an  

                                                                                                                                                                           



independent chemical test to the right to cross-examination.  In Lauderdale v. State we  

                                                                                                                                                                                   



analogized an arrestee's "opportunity to test the reliability or credibility" of a breath test  

                                                                                                                                                                                  



              86            Id .  



              87             AMC 09.28.023(E).   



              88             AS 28.35.033(d).   



              89             AMC 09.28.023(E) ("If it is established at trial that a chemical analysis of                                                                            



breath   or   blood   was   performed   according   to   approved   methods   .   .   .   ,   there   is   a  

presumption that the test results are valid and further foundation for introduction of the  

                                                                                                                                                                                   

evidence is unnecessary.").  

                          



              90             See, e.g., Wester v. State, 528 P.2d 1179, 1184-85 & n.27 (Alaska 1974)  

                                                                                                                                                                             

(noting testimony that arrestee had been observed for the requisite 15-minute period,  

                                                                                                                                                                          

even if not by the testing officer); Oveson v. Municipality of Anchorage, 574 P.2d 801,  

                                                                                                                                                                                

805 (Alaska 1978) (noting "uncontroverted testimony" that the step omitted from the  

                                                                                                                                                                                   

prescribed checklist had been performed).  

                                                                 



                                                                                        -25-                                                                                  7077
  


----------------------- Page 26-----------------------

with a criminal defendant's constitutional right to cross-examine a witness who testifies                                                              



                       91  

against him.                                                                                                                                            

                            In his dissent here, Chief Judge Mannheimer noted this analogy, stating:  



                                                                                                                 

                                      When  a  court  decides  whether  the  government's  

                                                                                                                          

                          failure to make pre-trial discovery [disclosures] adversely  

                                                                                                                                 

                          affected a defendant's choices regarding the right of cross- 

                                                                                                                          

                          examination . . . , we do not simply ask whether the defendant  

                                                                                                                                        

                         understood  (1)  that  the  government's  general  purpose  in  

                                                                                                                                     

                         presenting   the   witness's   testimony   was   to   secure   the  

                                                                                                                                        

                          defendant's conviction, and (2) that the general purpose of  

                                                                                                                                          

                          cross-examination is to test the credibility and accuracy of a  

                                             

                         witness's testimony.  



                                                                                                                                       

                                      Instead,weexaminetheundisclosed information to see  

                                                                                                                    

                         whether  it  likely  would  have  affected  the  defendant's  

                                                                                                                               

                          assessment  of  whether  to  exercise  the  right  of  cross- 

                          examination.[92]  



                         Undisclosed information can impact any number of a criminal defendant's  

                                                                                                                                                



strategic decisions, including but not limited to whether and how to cross-examine an  

                                                                                                                                                                 

adverse witness.93                   For this reason, we have indeed held that a failure to make required  

                                                                                                                                                      

pre-trial disclosures under Alaska Criminal Rule 16(a) is presumptively prejudicial.94  

                                                                                                                                                                       



             91           548 P.2d 376, 381 (Alaska 1976);                                 see  U.S. Const. amend. VI.                    



             92          See Botson v. Municipality of Anchorage                                        , A-11192,  2014 WL 4050588,  



at *9 (Alaska App. Aug. 13, 2014) (Mannheimer, C.J., dissenting).                                          



             93          See Alaska R. Crim. P. 16(a) ("In order to provide adequate information for  

                                                                                                                                                                 

informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross- 

                                                                                                                                                           

examination, and meet the requirements of due process, discovery prior to trial should  

                                                                                                                                           

be  as  full  and  free  as  possible  consistent  with  protection  of  persons,  effective  law  

                                                                                                                                                              

enforcement, and the adversary system.").  

                                                              



             94          Bostic v. State, 805 P.2d 344, 349 (Alaska 1991) ("[W]e conclude that a  

                                                                                                                                                                    

defendant is presumptively prejudiced when confronted with a Criminal Rule16(b)(1)(i)  

                                                                                                                                                  

violation.").  



                                                                               -26-                                                                         7077
  


----------------------- Page 27-----------------------

And when evaluating whether a non-disclosure is prejudicial, we sometimes inquire into                                                                                                                                         



                                                                                                                                                                                                                                 95  

whether the withheld information would have affected a party's strategic decisions.                                                                                                                                                     



                                    But the test for prejudicial error is not identical to the test for whether a  

                                                                                                                                                                                                                                      



waiver of a constitutional right is knowing and intelligent.  In our view, Botson appears  

                                                                                                                                                                                                                     



to argue that, to make an "intelligent" waiver, the arrestee must be apprised of any  

                                                                                                                                                                                                                               



information that would promote a strategic decision on whether to take the independent  

                                                                                                                                                                                                         



test. But this requirement conflicts with how a waiver is reviewed in other contexts. For  

                                                                                                                                                                                                                                



example, a waiver of the right to remain silent may be knowing and intelligent "in the  

                                                                                                                                                                                                                                 



sense that there was awareness of the right . . . and a decision to forego that right, but yet  

                                                                                                                                                                                                                                 



not knowing and intelligent in the sense that the tactical error of that decision was not  

                                                                                                                                                                                                                                

perceived."96  Similarly here an arrested driver's waiver of the right to an independent  

                                                                                                                                                                



chemical test may be effective even if the driver does not understand the full tactical  

                                                                                                                                                                                                                     



significance of that decision. The constitution does not necessarily entitle a criminal  

                                                                                                                                                                                                                



defendant to all information that could conceivably affect his decision to waive his right  

                                                                                                                                                                                                                             



to an independent chemical test.  And we decline to adopt such an expansive rule on the  

                                                                                                                                                                                                                                 



facts of this case.  

                                 



                                    Wealso recognizethat Botson could havearguedamoremoderateposition:  

                                                                                                                                                                                                                                            



that an arrestee should be provided with any information that would directly bear on the  

                                                                                                                                                                                                                                 



                  95                See, e.g.              ,  id. at 348 (noting government's non-disclosure led defendant to                                                                                                       



"commit[] himself to a theory of the case without being put on notice not only that his                                                                                                                 

theory would be rebutted by expert testimony, but that it would be rebutted by someone                                                                                                                           

with whom he had a privileged relationship").                                         



                  96                2 WAYNE  R. L                          AFAVE, J                 EROLD  H. I   SRAEL, N                                ANCY  J. K                 ING, O            RIN  S. K             ERR,  

                                         

     RIMINAL PROCEDURE  6.9(b) (3d ed. 2007) (footnotes omitted);                                                                                                           see also Blank v. State                                    ,  

C                                                              

3 P.3d 359, 364 (Alaska App. 2000) (concluding driver's confession was voluntary even                                                                                                                                        

though interviewing trooper did not reveal accident victim had been killed)                                                                                                                                     rev'd on  

other grounds                          , 90 P.3d 156 (Alaska 2004).                                                    



                                                                                                               -27-                                                                                                         7077
  


----------------------- Page 28-----------------------

                                                                                                                                                                                                                                                                                               97  

likelihood that the breath test was inaccurate or unreliable.                                                                                                                                                                                                                                           In this case, however, the                                                                                       



district court concluded that the error message did not raise any such concerns:                                                                                                                                                                                                                                                                     



                                                                  Complete and accurate knowledge of the event in question                                                                                                                                                                                                  

                                                                  . . . would have been that the officer improperly turned the                                                                                                                                                                                                                          

                                                                  Alco bottle off prior to the last self-test being conducted. The                                                                                                                                                                                                                  

                                                                  error result from this mistake had no implications regarding                                                                                                                                                                                         

                                                                  the accuracy of the DataMaster test result itself.                                                                                                                                                                                       Objectively  

                                                                  speaking, this would not change a defendant's analysis of                                                                                                                                                                                                                                

                                                                  whether or not to challenge the DataMaster result.                                                                                                                                                                     



We agree with the district court's conclusion on this issue.                                                                                                                                                                                                                                         Accordingly, we need not                                                                                            



wade into                                           how such                                              information,  erroneously   or   willfully   withheld, might bear                                                                                                                                                                                                                                               on  



whether an arrestee knowingly and intelligently waived his right to an independent test.                                                                                                                                                                                                                                                                                                                             



V.                               CONCLUSION  



                                                                  We therefore AFFIRM the court of appeals' decision affirming Botson's  

                                                                                                                                    



conviction.  



                                 97                               See Gunderson v. Municipality of Anchorage                                                                                                                                                                                     , 792 P.2d 673, 675 (stating                                                                       



that "due process requires that the defendant be given an opportunity to challenge the                                                                                                                                                                                                                                                                                                                                   

reliability" of the breath test evidence by requesting an independent test).                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                           -28-                                                                                                                                                                                                   7077
  


----------------------- Page 29-----------------------

FABE, Chief Justice, dissenting.                  



                              I disagree with the court's conclusion that John Botson knowingly and                                                                                        



intelligently waived his right to an independent chemical test. I do agree with the court's                                                                                         



rejection of a rule that would require arrestees to "be apprised of any information that                                                                                                   

                                                                                                                                                                            1    Such an  

would promote a strategic decision on whether to take the independent test."                                                                                                                  



expansive rule is not constitutionally required.  But I depart from the court's analysis  

                                                                                                                                                                                 



when  it  declines  to  consider  how  information  about  the  error  message  in  the  

                                                                                                                                                                                          



administration of the breath test may have borne on Botson's ability to knowingly and  

                                                                                                                                                           



intelligently waive his right to an independent test.  

                                                                                                                     



                              Having rejected the broader rule discussed above, the court acknowledges  

                                                                                                                                                                   



that a"moremoderateposition"would require the government to provide arrestees "with  

                                                                                                                                                                                       



any information  that would directly bear on the likelihood that the breath test was  

                                                                                                                                                                                          

inaccurate or unreliable."2                                    But the court declines to reach the question whether this  

                                                                                                                                                                                           



alternative approach to Crim's "basic understanding"test isnecessaryto ensure effective  

                                                                                                                                                                                



waiver because it concludes that the error message in this case did not raise any concerns  

                                                                                                                                                                               

about  the  accuracy  of  the  test.3                                            Because  the  court  concludes  that  "[o]bjectively  

                                                                                                                                                                  



speaking," knowledge of the error message "would not change a defendant's analysis"  

                                                                                                                                                                               



of  whether  to  exercise  the  right  to  an  independent  test,  it  does  not  "wade  into"  a  

                                                                                                                                                                                                



discussion of how knowledge of the error message might have influenced Botson's  

                                                                                                                                                                              



               1              Op.  at  27.  



               2              Op.  at  27-28.  



               3              Op.   at   28;   see   Crim   v.   Municipality   of  Anchorage ,   903   P.2d   586,   588  



(Alaska  App.   1995).  



                                                                                             -29-                                                                                       7077
  


----------------------- Page 30-----------------------

decision not to obtain an independent test.                                                          4  I disagree that information about the error                                                 



message would have been irrelevant to Botson's decision at the time of his arrest.                                                                                                                    



                                The threshold question in this case is whether knowledge of the error                                                                                              



message would have been relevant to Botson's decision-making process had it been                                                                                                                    



available to him at the time of his arrest. The court answers this question in the negative                                                                                                 



on the ground that "[c]omplete and accurate" information would have assured Botson                                                                                                             

                                                                                                                       5    But if the officer who administered  

that the error message did not suggest inaccuracy.                                                                                                                               



the breath test had noticed the error message, it is unclear from the record whether he  

                                                                                                                                                                                                          



would have known the source of the message and would have been able to guarantee  

                                                                                                                                                                                        



Botson that it did not signify inaccuracy.  

                                                                                                     



                                We now have the benefit of 20-20 hindsight to conclude that the error  

                                                                                                                                                                                                   



message did not necessarily indicate that the test result was inaccurate.  But our inquiry  

                                                                                                                                                                                              



does not turn on the correctness of the ultimate determination that the breath test was  

                                                                                                                                                                                                      



reliable:   It turns on whether Botson's waiver was knowing and whether he had all  

                                                                                                                                                                                                         



information  directly  bearing  on  the  accuracy  of  the  test  result  before  he  made  his  

                                                                                                                                                                                                        



decision. The fact that more complete information relating to the source and effect of the  

                                                                                                                                                                                                         



error message was obtained later is not relevant to Botson's knowledge at the time he  

                                                                                                                                                                                                          



waived his constitutional right.  Only the knowledge and information available to the  

                                                                                                                                                                                                        



defendant at the time of his purported waiver are relevant in determining whether his  

                                                                                                                                                                                                         

waiver was knowing and voluntary.6                                                         And the very fact that the police officer made an  

                                                                                                                                                                                                          



                4               Op.  at  28.  



                5               Op.  at  28.  



                6               See  United  States  v.  Erskine,  355  F.3d  1161,  1169  (9th  Cir.  2004)  (holding  



in  the  analogous  waiver  of  Fifth  Amendment  rights  under  the  U.S.  Constitution,  "[t]he  

question  .  .  .  is  not  .  .  .  what  the  record  reveals  about  [a  defendant's]  understanding  .  .  .  

                                                                                                                                                                                (continued...)  



                                                                                                   -30-                                                                                             7077
  


----------------------- Page 31-----------------------

error while administering the test would surely have been relevant to Botson's decision.                                                                                                                                                                   



Knowledge that the police officer had already committed one error, regardless of its                                                                                                                                                             



ultimate effect on the accuracy of the test, would likely have played a role in Botson's                                                                                                             



decision whether to request an independent test.                                                                                            



                                      Because I disagree that information about the error message would have                                                                                                                              



been irrelevant to Botson's decision-making                                                                                   process, I would reach the                                               question whether   



the "basic understanding" test articulated in                                                                                Crim  passes constitutional muster.                                                                 I do not      



believe that it does.                                     



                                       The requirements for a voluntary, knowing, and intelligent waiver have                                                                                                                             



been   discussed   extensively   by   federal   and   state   courts   in   the   context   of   other  



constitutional rights, including the right to                                                                             Miranda  warnings and the right to counsel.                                                                                      



In the context of guilty pleas, we have explained that "waivers of constitutional rights . . .                                                                                                                                                       



not only                   must be voluntary                                        but [also] must be knowing,                                                            intelligent acts done with                                     

 sufficient awareness of the relevant circumstances and likely consequences."                                                                                                                                                7  



                   6                   (...continued)  



                                                                                                                                                                                                                            

throughout the different stages of the proceedings . . . but specifically what the defendant  

                                                                                                                                                                                                                                                

understood at the particular stage of the proceedings at which he purportedly waived his  

                                                                                                                                                                                                                                             

right." (emphasis in original)); United States v. Dujanovic, 486 F.2d 182, 186 (9th Cir.  

                                                                                                                                                                                                                                                   

 1973) (noting that in the context of the right to counsel, the "keystone determination" in  

                                                                                                                                                                                                                                       

the waiver inquiry is the "state of mind of the accused or information at hand upon which  

                                                                                                                                                                                                                                       

he at that time intelligently waived his constitutional right." (emphasis added)).  



                   7                   Wilson v. MacDonald, 168 P.3d 887, 889 n.10 (Alaska 2007) (quoting  

                                                                                                                                                                                                                               

Brady v. United States, 397 U.S. 742, 748 (1970)) (internal quotation marks omitted);  

see also Edwards v. Arizona, 451 U.S. 477, 482 (1981) ("It is reasonably clear . . . that  

                                                                                                                                                                                                                                         

waivers of counsel must not only be voluntary, but must also constitute a knowing and  

                                                                                                                                                                                                                                             

intelligent relinquishment or abandonment of a known right or privilege, a matter which  

                                                                                                                                                                                                                                       

depends in each case 'upon the particular facts and circumstances surrounding that  

                                                                                                                                                                                                                                            

case . . . .' " (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938))); Johnson, 304 U.S.  

                                                                                                                                                                                                                                           

at 464 ("The determination of whether there has been an intelligent waiver of right to  

                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                  (continued...)  



                                                                                                                      -31-                                                                                                                7077
  


----------------------- Page 32-----------------------

                           I agree with the court that an appropriately protective rule in the context of                                                                



the right to obtain an independent test would "not necessarily entitle a criminal defendant                                                               

                                                                                                                                              8    But it would  

to all information that could conceivably affect his [or her] decision."                                                                                        



                                                                                                                                                                           9  

require defendants to be informed of "relevant circumstances and likely consequences."   

                                                                                                                                             



So while an effective waiver can occur without access to all information that would help  

                                                                                                                                                                    



with strategy, arrestees must be informed of information they would need in order to  

                                                                                                                                                                         



knowingly and intelligently waive their right.   Because the right to an independent  

                                                                                                                                                    



chemical test is meant to protect defendants from having erroneous results admitted  

                                                                                                                                                           

against them at trial,10  any information regarding the reliability of the test must qualify  

                                                                                                                                                               



             7             (...continued)  



                                                                                                                                               

counsel  must  depend,  in  each  case,  upon  the  particular  facts  and  circumstances  

                                                                                                                                                                     

surrounding  that  case,  including  the  background,  experience,  and  conduct  of  the  

                         

accused.").  



             8             Op. at 27.  In Crim, the court of appeals correctly held a waiver effective  

                                                                                                                               

when Crim complained that "without knowing the result of his . . . breath test, he could  

                                                                                                                                                                  

not have assessed the potential advantages and disadvantages of availing himself of the  

                                                                                                                                                                       

right to an independent test."  903 P.2d 586, 588 (Alaska App. 1995).  Similarly, in  

                                                                                                                                                                        

Moses v. State, the court of appeals held a waiver effective when an arrestee claimed his  

                                                                                                                                                                       

waiver was not knowingly and intelligently made because he did not understand whether  

                                                                                                                                                             

the independent test would work in his favor.  32 P.3d 1079, 1083-84 (Alaska App.  

                                                                                                                                                                  

2001).   Holding otherwise would have contradicted existing precedent and allowed  

                                                                                                                                                             

defendants to have evidence suppressed merely because they were unable to predict  

                                                                                                                                                              

whether an independent test would work in their favor or to their detriment.  

                                                                                                                                   



             9             Wilson, 168 P.3d at 889 n.10.  

                                                                                       



              10           As the court recognizes, "due process requires that the defendant be given  

                                                                                                                                                                  

an opportunity to challenge the reliability of that evidence . . . [by taking] an independent  

                                                                                                                                                     

test." Op. at 19.  See also John P. Ludington, LL.B., Drunk Driving: Motorist's Right to  

                                                                                                                                                                         

Private Sobriety Test, 45 A.L.R. 4th 11,  2(a) (1986) ("The rationale [behind the right  

                                                                                                                                                                   

to an independent test] is that denial of such an opportunity amounts to suppression of  

                                                                                                                                                                         

evidence or at least interference with amotorist's right to obtain exculpatory evidence.").  

                                                                                                                                                                              



                                                                                  -32-                                                                            7077
  


----------------------- Page 33-----------------------

as "relevant circumstances."   At the very least, "relevant circumstances" include those                                                                                                   



that, at the time of arrest, appear to directly bear on the likelihood of the test's accuracy                                                                                                                                                                 



                                               11  

or inaccuracy.                                       



                                                                            

                                            Here, the fact that the machine issued an error message would have been  



                                                                                                                                                                                                                                                                                

an important - if not the most important - factor  in  Botson's assessment of the  



                                                                                                                                                                                                                                                                           

reliability of the test.  There is no question that if the arresting officer had seen the error  



                                                                                                                                                                                                                                                          

message but deliberately concealed this fact from Botson, we could not have concluded  



                                                                                                                                                                                                                                                                                

that Botson knowingly waived his right to an independent test.  And the fact that in this  



                                                                                                                                                                                                                                                                          

case the officer negligently rather than intentionally withheld the information from  



                                                                                     

Botson does not alter this analysis.  



                                                                                                                                                                                                                                                                               

                                            For these reasons, I respectfully dissent and would reverse the decision that  



                                                                                                                                                                                                                                      

Botson knowingly and voluntarily waived his right to an independent test.  



                      11                    In  State v. Sanchez                                            , the Arizona Court of Appeals considered a case in                                                                                                                     



which the breath test in question was subsequently determined to be                                                                                                                                                                inaccurate.    967  

P.2d 129, 130-31 (Ariz. App. 1998).                                                                                            The court held that "[t]here was no knowing,                                                                                

intelligent, and voluntary waiver of [the arrestee's] right to obtain an independent test"                                                                                                                                                                                  

because "[t]he blood test was obviously declined because he believed that he was being                                                                                                                                                                                   

offered the opportunity to take another equally valid test."                                                                                                                                   Id.  at 132.                         While the test in                                

this case was subsequently determined to be accurate, the relevant question is whether                                                                                                                                                                          

Botson had sufficient information to                                                                                    assess  the likelihood of its accuracy.                                                                                    



                                                                                                                                       -33-                                                                                                                                7077
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC