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State v. Swenson (7/1/2011) ap-2317

State v. Swenson (7/1/2011) ap-2317

         The text of this opinion can be corrected before the opinion is published in thePacific 
        Reporter.   Readers are encouraged to bring typographical or other formal errors to 
        the attention of the Clerk of the Appellate Courts. 

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STATE OF ALASKA,                                  ) 
                                                  )          Court of Appeals No. A-10732 
                             Petitioner,          )          Trial Court No. 3AN-09-9896 CR 
              v.                                  ) 
                                                  )                 O    P  I  N  I  O  N 
EDWIN J. SWENSON,                                 ) 
                             Respondent.          )            No. 2317 - July 1, 2011 

                 Petition   for   Review   from   the   Superior   Court,   Third   Judicial 
                 District, Anchorage, Michael L. Wolverton, Judge. 

                 Appearances: Ann B. Black, Assistant Attorney General, Office 
                 of   Special    Prosecutions     and   Appeals,     Anchorage,     for   the 
                 Petitioner.     Frederick     T.  Slone,    Kasmar     and   Slone,   P.C., 
                 Anchorage, for the Respondent. 

                 Before:     Coats,    Chief   Judge,   and   Mannheimer      and   Bolger, 

                 COATS, Chief Judge. 

                 Edwin J. Swenson is charged with felony driving under the influence.1  On 

Swenson's motion, the superior court suppressed the evidence of Swenson's breath test 

result because the test was not administered on a breath test instrument that had been 

         1   AS 28.35.030(a), (n). 

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

maintained in strict compliance with Department of Public Safety regulations. We granted 

the State's petition for review of that decision.  We conclude that the State was entitled 

to a hearing to establish substantial compliance with the regulations, and that the superior 

court erred by granting the motion to suppress without a hearing. 

                 Why we conclude the superior court should have held a hearing 

                Alaska Statute 28.35.033(d) defines the foundation that must be proved 
before breathalyzer results may be admitted into evidence.2               That statute provides that 

"[t]o be considered valid ... the chemical analysis of [a] person's breath or blood shall 

have   been   performed   according   to   methods   approved   by   the   Department   of   Public 
Safety."3    If the State establishes that a breath test was performed in compliance with 

Department regulations, "there is a presumption that the test results are valid and further 
foundation for introduction of the evidence is unnecessary."4 

                The Department's regulations for administering breath tests and certifying 
and maintaining breath test instruments are set out in the Alaska Administrative Code.5 

Only one regulation is at issue in this case: the regulation requiring that the accuracy of 

the calibration of the breath test instrument be verified "[a]t intervals not to exceed 60 

        2   Keel v. State, 609 P.2d 555, 557 (Alaska 1980). 

        3   AS 28.35.033(d). 

        4   Id. 

        5   13 AAC 63. 

                                                  - 2 -                                            2317

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

days."6    That regulation provides that the certification of a breath test instrument "is valid 

for 60 days after the day the verification of calibration was performed."7 

                 The State concedes that the police did not strictly comply with this regulation 

in Swenson's case. The calibration of the instrument used for Swenson's test was verified 

sixty-six days before his test - that is, six days after the instrument's last sixty-day 

certification   expired - and again the day after Swenson's test.                    Based on this non­ 

compliance, Superior Court Judge Michael L. Wolverton granted Swenson's motion to 

suppress the breath test result. 

                 We conclude that the trial judge should have held a hearing before ruling 

on the motion to suppress.  In a series of cases, the Alaska Supreme Court has held that 

the   State   is   not   required   to   show   that   the   police   strictly   complied   with   regulations 

governing breath testing to establish a foundation for admission of a breath test result - 
a showing of substantial compliance will suffice.8               In evaluating whether the State has 

demonstrated substantial compliance in a particular case, "the crucial concern is that the 

breathalyzer   test   be   performed   in   a   manner   that   assures   accuracy   according   to   the 
statutorily approved methods."9           The court will not find substantial compliance if the 

state's deviation from the regulations casts doubt on the reliability of the breath test 
result.10  Moreover, if the State does establish substantial compliance, the defendant can 

        6    13 AAC 63.100(c). 

        7    Id.

  Keel, 609 P.2d at 558-59; Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978); 

Wester v. State, 528 P.2d 1179, 1183-84 (Alaska 1974). 

        9    Oveson, 574 P.2d at 805.

         10  Keel, 609 P.2d at 558.

                                                   -  3 -                                              2317

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still seek exclusion of the breath test result by showing that the test's accuracy was in fact 
compromised by the violation.11 

                 This court has found substantial compliance in cases in which the defendant's 

test was performed within sixty days of the last verification of calibration - that is, while 

the instrument's preceding sixty-day certification was still valid - but the verification 
of calibration that was performed after the defendant's test was late.12                  For instance, in 

Herter v. State,13 we upheld admission of Herter's breath test result where the instrument's 

calibration was verified forty-five days before his test and again twenty-three days after 
his test (sixty-eight days after the previous verification of calibration).14              We concluded 

the State had shown that the failure to verify the calibration of the instrument as required 
after Herter's test had no appreciable effect on the accuracy of his breath test result.15 

We also noted that Herter had not alleged or shown any potential adverse effect from this 

                 We have never addressed the precise situation raised in Swenson's case, 

where   a    defendant's   breath      test   is  performed    after   the  instrument's   last   sixty-day 

certification period has expired.          But we see no reason why the substantial compliance 

        11   Oveson, 574 P.2d at 805; Wester, 528 P.2d at 1184.

        12   Herter v. State, 715 P.2d 274, 275-76 (Alaska App. 1986); Ahsogaek v. State, 652

P.2d 505, 506 (Alaska App. 1982). 

        13   715 P.2d 274. 

        14   Id. at 275-76. 

        15   Id. at 276. 

        16   Id. 

                                                   - 4 -                                               2317

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

doctrine would not also apply in this circumstance, if the State can show that the failure 
to strictly comply did not undermine the accuracy of the test.17 

                 Swenson argues that his case is likeKeel v. State,18 where the supreme court 

held that the trial court erred in admitting the defendant's breath test result because the 

State failed to prove that the police substantially complied with the regulation requiring 
that   the   verification   of   calibration   be   performed   by   a   qualified   "instructor."19      But 

Swenson's case stands in a different posture than Keel.  In Keel, the trial court admitted 

the defendant's breath test result, over the defendant's specific objection, even though 

the State had not proved that the officer who verified the calibration of the breath test 
instrument was properly qualified under the regulation to do so.20  Thus in Keel the State 

had the opportunity to demonstrate compliance with the regulation.21 

                 In this case the issue was decided on the pleadings. When a defendant moves 

to   suppress   evidence,   the   court   must   hold   a   hearing   if   "verified   pleadings   or   other 

documents filed by the defendant in support of a motion to suppress, when coupled with 
opposing pleadings and documents filed by the state, leave issues of fact to be decided."22 

As we have just explained, breath test results are admissible at trial even in the absence 

of   strict   compliance   with   Department   regulations   if   the   State   can   show   substantial 

        17   See Oveson, 574 P.2d at 805. 

        18   609 P.2d 555. 

        19   Id. at 558. 

        20   Id. 

        21   Id. at 558-59 & n.12. 

        22   Davis   v.   State,   766   P.2d   41,   43-44   (Alaska   App.   1988), superseded   on   other 

grounds by Alaska R. Crim. P. 16(c)(5), as recognized in Marshall v. State, 238 P.3d 590, 
593 (Alaska 2010). 

                                                    -  5 -                                              2317

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

compliance with the regulations. A finding of substantial compliance hinges on whether 

the state's deviation from strict compliance affected the accuracy of the breath test result. 

In this case, the parties' pleadings raised a material dispute as to whether the deviation 

from the specified procedures for maintaining the instrument used for Swenson's test cast 

doubt on the accuracy of the breath test result. We conclude that the superior court should 

have held a hearing to resolve this disputed question of fact. 


              We REVERSE the superior court's decision granting Swenson's motion 

to suppress. 

                                            -  6 -                                      2317
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