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Rask v. State (4/28/2017) ap-2550

Rask v. State (4/28/2017) ap-2550


          The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  

                                    303 K Street, Anchorage, Alaska  99501

                                               Fax:  (907) 264-0878

                                       E-mail:  corrections @



                                                                       Court of Appeals No. A-11407  

                                      Appellant,                     Trial Court No. 3AN-11-8528 CR  


                                                                                   O P I N I O N  


                                      Appellee.                          No. 2550 - April 28, 2017  


                               from  the  Superior  Court,  Third  Judicial  District,  

                   Anchorage, Gregory Miller, Judge.  

                   Appearances:   John   Page,   Assistant   Public   Defender,   and  


                   Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  


                   Donald  Soderstrom,  Assistant  Attorney  General,  Office  of  


                   Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                   General, Juneau, for the Appellee.  

                   Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  


                   Superior Court Judge.*  

                   Judge ALLARD, writing for the Court.  

                   Judge SUDDOCK, concurring.     

     *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  

Constitution and Administrative Rule 24(d).  

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

                      Following a jury trial, Rex Raymond Rask was convicted of felony refusal                                        


to submit to a breath test.                                                                                                         

                                               Rask appeals his conviction, arguing that his due process  


rights wereviolated becausethepolicegavehimobjectivelymisleadingadviceregarding  


the criminal nature of his act of refusing to submit to a breath test.  


                      For the reasons explained here, we agree with Rask, and we reverse the  


judgment of the superior court.  


            Underlying facts and prior proceedings  


                      In the early morning of July 27, 2011, Rask drove his car into a pole near  


the Cal Worthington Ford dealership on Gambell Street in Anchorage.  


                      AnchoragePoliceOfficers RayneReynoldsandTaddMcCauleyresponded  


to the accident scene and reported that Rask appeared to be impaired - he had "slurred  


 speech, he appeared disoriented, and he appeared under the influence of something."  


Rask did not smell of alcohol.  


                       Officer Reynolds administered the horizontal gaze nystagmus test, which  


Rask failed.  After Rask told him that he had hit his head during the accident, Officer  


Reynolds decided not to continue with any additional field sobriety tests because Rask  


appeared to need medical attention.  


                      At the hospital, the staff administered a portable breath test to Rask, which  


measured his blood-alcohol content at 0.00 percent - leading the hospital staff to  


 suspect drug use.  Based on this information, Officer Reynolds left the hospital to apply  


for a search warrant to test Rask's blood for controlled substances.  


                      Before the police could return with the warrant, Rask left the hospital,  


refusing any more medical treatment. Rask was later found by the police, wandering and  

      1    AS 28.35.032(a) & (p).  

                                                                    - 2 -                                                               2550

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

disoriented, in an area near the hospital.                                                                                                                                    The police arrested him for driving under the                                                                                                                                          

influence and transported him to the police station for processing.                                                                                                                                                                      

                             The DUI processing                      

                                                         Officer Aaron Roberts conducted the DUI processing, which was tape-                                                                                                                                                                            

recorded.   As part of the DUI processing, Officer Roberts told Rask that the police had                                                                                                                                                                                                                                                                          

 secured a warrant to take a blood test from him.                                                                                                                                                             Officer Roberts also told Rask that he                                                                                                                    

was being asked to take a breath test.                                                                                                       

                                                         Rask appeared confused by what he was being told, and he asked if he was                                                                                                                                                                                                                                 

required to submit to the breath test or the blood test.                                                                                                                                                         

                                                         Officer Roberts told Rask that he did not have a choice as to whether to                                                                                                                                                                                                                                        

provide a blood sample because the police had a warrant.                                                                                                                                                                                             But Officer Roberts said that                                                                                

Rask did have a choice as to whether to provide a breath sample.                                                                                                                                                                                                                             The officer did not                                                    

explain that it was a crime for Rask to refuse to provide a breath sample:                                                                                                                                                                                                           

                                                          Officer   Roberts:     Okay.     You   want   to   provide   a   breath  


                                                         Rask :   Ah, do I have to?                                                                

                                                          Officer Roberts                                                   :   Well ...   

                                                         Rask :   A breath sample or ...                                                                                  

                                                          Officer Roberts                                                   :   Breath.  

                                                         Rask :   ... or blood?

                                                          Officer Roberts                                                   :   We've got a search warrant for your blood,

                                                         but I'm asking if you're willing to - to provide a breath


                                                         Rask :       So   -                                                          I   have    to    take    the    breath    sample    or


                                                                                                                                                                               - 3 -                                                                                                                                                                     2550

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

                                                   Officer Roberts                                             :    The - we're requesting you to take the                                                                                                               

                                                   Breathalyzer.     You   don't   have   a   choice   about   the   blood,  

                                                   because we got a search warrant for the blood.                                                                                                          

                                                   Following this exchange, Rask asked, "If I take the Breathalyzer now, are                                                                                                                                                                                                 

you guys going to do away with the blood work?" Officer Roberts told him, "No, that's                                                                                                                                                                                                                               

not how it works.                                                   You're still going to have to do the blood anyway."                                                                                                                                                    Officer Roberts   

then read Rask an implied consent warning form, urging Rask to "stay awake" while                                                                                                                                                                                                                                 

Roberts read the form.                                          

                                                   The standard implied consent form begins, "You are under arrest for the                                                                                                                                                                                    

offense of operating or driving a motor vehicle while intoxicated.                                                                                                                                                                                       You are being asked                                       

to submit to a chemical test of your breath to measure the alcoholic content of your                                                                                                                                                                                                                                  

breath.   Refusal to submit to a chemical test can either be a class A misdemeanor or a                                                                                                                                                                                                                                             

class C felony."   This standard form tracks the statutory language of AS 28.35.031(a),                                                                                            

Alaska's implied consent law, which requires a person lawfully arrested for DUI to                                                                                                                                                                                                                                              

 submit to a chemical test of their breath.                                                                                   

                                                   However, Officer Roberts did not read this part of the form.                                                                                                                                                                               Instead of   

reading the warning that applies to persons lawfully arrested for DUI, Officer Roberts   

read the section of the form that applies to drivers involved in "an accident causing death                                                                                                                                                                                                                         


or serious physical injury."                                                                                                                                                                                                                                                                             

                                                                                                                     Thus, the implied consent warning that Rask actually  


received was as follows:  


                                                   You're under arrest for the offense of driving or operating a  


                                                   motor  vehicle  while  intoxicated.                                                                                                      You're  being  asked  to  


                                                   submit to a chemical test of your breath or blood to measure  


                                                   the alcoholic content in your breath  or blood.   Refusal to  


                                                   submit to a chemical test can either be a class A misdemeanor  


                                                   or a class C felony. ...  

             2           See AS 28.35.031(g).  

                                                                                                                                                           - 4 -                                                                                                                                                   2550

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

In other words, instead of telling Rask that he had to submit to a breath test and that                                                                                                                                                                                                        

refusal to do so was a crime, Officer Roberts told Rask that he had to submit to either a                                                                                                                                                                                                                

breath test or a blood test and that refusal to submit to one of these two tests was a crime.                                                                                                                                                                                                                  

                                               (The implied consent advisement that Officer Roberts gave was not only                                               

confusing given the multiple chemical tests that Rask was facing, it was also wrong as                                                                                                                                                                                                                

a matter of law.                                                Alaska Statute 28.35.031(a) authorizes the police to administer a                                                                                                                                                                       

warrantless breath test to a person lawfully arrested for DUI, but it does not authorize the                                                                                                                                                                                                       

police to administer a warrantless blood test under these circumstances.                                                                                                                                                                                 Indeed, such a                                  

law would be unconstitutional. In the recent case                                                                                                                        Birchfield v. North Dakota                                                                   , the United     

 States  Supreme   Court   struck   down   various   implied   consent   laws   that   authorized  

warrantless blood tests of persons lawfully arrested for DUI, reasoning that blood tests                                                                                                                                                                                                     

are significantly more intrusive than breath tests and should not be administered without                                                                                                                                                                                          

a warrant absent particularized exigent circumstances.                                                                                                                                       3)  


                                              After  mistakenly  telling  Rask  that  he  was  being asked  to  submit  to  a  


chemical test of his breath or his blood, Officer Roberts read Rask the remainder of the  


implied consent form.  The rest of the form took several minutes to read.  It detailed the  


other legal consequences of a "refusal to submit to a chemical test" (again, without  


differentiating between a test of breath or blood).  After completing the form, Officer  


Roberts asked Rask if he agreed to submit to the breath test.  


                                              At this point, Rask appears to have become unresponsive, and he required  


prompting by the officer:  


                                               Officer Roberts:  The type of test you [are] requested to take  


                                               is breath.  Neither your right to speak to an attorney nor your  


                                              right to remain silent gives you the right to refuse a chemical  


                                              test.  Do you - Hello?  

            3          Id.; see also Missouri v. McNeely, 133 S.Ct. 1552, 1558 (2013) (dissipation of alcohol   

in blood does not create sufficient exigency to justify warrantless blood test).   

                                                                                                                                              - 5 -                                                                                                                                      2550

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

                                                                   Rask  [apparently drowsing]:                                                                                                                      Hmm?

                                                                    Officer Roberts                                                                :   Do you agree to submit to the breath test?

                                                                   Rask :   Ah, ...

                                                                    Officer Roberts                                                                :   Or do you refuse?

                                                                   Rask : Ah, I refuse ... If it's ... my right, I refuse the blood test

                                                                    and the Breathalyzer.                 

                                                                    Officer Roberts                                                               :   Okay.   Well, I'm going to indicate that you                                                                                                                                                            

                                                                   refused the Breathalyzer. However, you don't have a right to                                                                                                                                                                                                                                        

                                                                   refuse the blood test, because Officer Reynolds got a search                                                                                                                                                                                                           


                                                                    Officer Roberts then left the roomto                                                                                                                                               make a phone call. Rask                                                                                                   asked Officer  

Reynolds (the officer who had secured the warrant for the blood test, and who had been                                                                                                                                                                                                                                                                                                                                      

present during the DUI processing):                                                                                                                                                     "If I did the Breathalyzer, would you guys let me                                                                                                                                                                                           

go on the - on this blood [test]?"                                                                                                                                                       Officer Reynolds could not initially understand                                                                                                                                                   

Rask's question because he was slurring his speech so badly.                                                                                                                                                                                                                                                                   Rask asked two more                                                                       

times if the police would still "stick [him] with a bunch of needles" if he agreed to take                                                                                                                                                                                                                                                                                                                                     

the breath test.                                                           Officer Reynolds told Rask that the blood test would be performed even                                                                                                                                                                                                                                                                           

if Rask took the breath test.                                                                                        

                                                                    Officer Roberts, who had returned from the phone call, then read Rask the                                                                                                                                                                                                                                                                                        

vehicle impoundment form. While Officer Roberts was reading this form, Rask fell from                                                                                                                                                                                                                                                                                                                                       

his chair.   

                                                                    Officer Roberts also read a form to Rask informing him of his right to an                                                                                                                                                                                                                                                                                           

independent blood test.                                                                                                       After reading Rask this form, Officer Roberts asked Rask                                                                                                                                                                                                                                  

whether he wanted to exercise his right to an independent blood test.                                                                                                                                                                                                                                                                                   Rask continued to                                                                  

 express  confusion  about   what   the   independent   blood   test   was,   and   whether   it   was  

different from the blood test that the police were going to administer pursuant to the                                                                                                                                                                                                                                                                                                                                             

warrant.  Rask requested Officer Roberts read the form again.  The officer made Rask                                                                                                                                                                                                                                                                   

                                                                                                                                                                                                              - 6 -                                                                                                                                                                                                    2550

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

"promise [to] stay awake," and then he read the form a second time.  After the second                                    

reading, the officer had to ask Rask multiple times if he wanted to take an independent                                                                                                                                         

blood test before he finally answered no.                                                                         

                                        At this point, Officer Reynolds took over reading the rest of the forms                                                                                                                                    

(which covered the license revocation consequences of a refusal), stating that "I can zip                                                                                                                                                                   

through them and [Rask is] sleeping." Officer Reynolds subsequently told Rask to listen                                                                                                                                                               

up and not to sleep.                                                Rask said                         "okay," but the remainder of his responses on the                                                                                                    

recording are mumbled and indiscernible. Following the DUI processing, Rask's blood                                                                                                                                                                  

was drawn and tested pursuant to the search warrant.                                                                                   

                                        Rask was subsequently indicted on charges of felony driving under the                                                                                                                                               

                            4                                                                                                                                        5  


                                 and felony refusal to submit to a breath test. 


                                         TheStatelater voluntarily dismissed thefelony DUI chargeafter it received  


the results of the blood test. The blood test revealed that Rask had ingested phenazepam,  


a  sedative  drug  in  the  benzodiazepine  family  with  similar  qualities  to  Xanax.  


Manufactured in Russia, phenazepamis not listed as a controlled substance under federal  



or state law. 


                                        Rask filed a motion to dismiss the refusal charge, arguing, inter alia, that  


the police had failed to properly advise him of the criminal consequences of his decision  


not  to  take  the  breath  test.                                                           The  superior  court  denied  Rask's  due  process  claim,  

          4         AS 28.35.030(a) & (n).  

          5         AS 28.35.032(a) & (p).  Rask was also charged with and convicted of driving while   

license revoked and fourth-degree escape.  These convictions are not at issue in this appeal.  



                    See  AS 28.35.030(a)(1) ("A person commits the crime of driving while under the  


influence of ... [a] controlled substance if the person operates or drives a motor vehicle ...  


while under the influence of ... any controlled substance[.]");  see also  AS 28.35.039 &  

AS 28.33.190.  

                                                                                                                            - 7 -                                                                                                                    2550

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

concluding   that  "the   police   did   not   misinform   Rask   of   the   statutory   penalties   and  

consequences for refusing to submit to the chemical breath test."                                        

                       Rask was subsequently convicted of felony breath test refusal. This appeal                                           


            The  legal  advisements  given  in  Rask's  case  were  misleading  and  



                       Under  Alaska  law,  a  motorist  lawfully  arrested  for  driving  under  the  


influence must submit to a breath test when requested or risk prosecution for the separate  


crime of breath test refusal.7  


                                                 Alaska law penalizes the crime of refusal to the same extent  



as the underlying crime of driving under the influence. 



                       Breath test refusal is a crime of omission.                               Due process therefore requires  




that the defendant be given adequate notice of his legal duty to take the breath test. 


This is typically achieved by notifying the defendant that refusal to submit to a breath  



test is itself a crime.               Because the criminal consequences of refusal are so severe, "care  


must be taken to [ensure] that the arrested person is not misled about his or her rights,  



or the absence thereof, under the implied consent statute."                                                                                  

                                                                                                          Thus, in Graham v. State,  

      7     See AS 28.35.031(a); AS 28.35.032(a) & (f).  

      8     See AS 28.35.030 & AS 28.35.032.  

      9     See Yang v. State, 107 P.3d 302, 309 (Alaska App. 2005).  

      10   Id.  

      11    See AS 28.35.032(a).  

      12    Graham v. State, 633 P.2d 211, 214 (Alaska 1981); see also Olson v. State, 260 P.3d  

1056, 1060 (Alaska 2011) (noting that in Alaska, arrestees have the power to refuse, meaning  

the police may  not administer the test if  a person continues to refuse after being informed that  

refusal is a crime but that  there  is no constitutional, statutory, or implied right to refuse to  


                                                                       - 8 -                                                                  2550

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

our supreme court held that "[when] an arrested person refuses to submit to a [breath]                                                                             

test, the administering officer must inquire into the nature of the refusal and, if it appears                                                                     

that the refusal is based on a confusion about a person's rights, the officer must clearly                                                                            



advise that person [as to their actual rights.]"                                                 That is, the officer must explain that the  


arrested  motorist has no  "right"  to  refuse the breath  test without suffering adverse  


consequences, and that refusal to submit to the breath test is a crime.  


                            We have reviewed the DUI processing tape in this case and we conclude  


that the advisements given here were inadequate to satisfy the demands of due process.  


A significant part of the problem is the unusual circumstances of this case.  


                            Typically, a person is asked to submit to a breath test as a substitute for the  



police securing a warrant for the more invasive blood test.                                                                   Here, however, the police  


had already secured a warrant for a blood test. Moreover, they had done so based largely  


on the fact that the portable breath test administered earlier at the hospital had  not  


indicated any alcohol in Rask's breath sample. Given these circumstances, a reasonable  


person might well be confused about why the police were seeking both a blood test and  


a breath test, and why both tests would be required under the law.  


                            Given these circumstances, it was incumbent on the police to make sure  


Rask received adequate notice that both tests were legally required - that is, the blood  


test was legally required pursuant to the warrant and the breath test was legally required  


under Alaska's implied consent law.  But this is not what happened.  Instead, the officer  

       12     (...continued)  

take  a  breath  test);  Copelin  v.  State,  659  P.2d  1206,  1212  (Alaska  1983)  (holding  that  


arrestees have no right to refuse, but do have a power to refuse).  

       13     Graham, 633 P.2d at 215.  

       14     See, e.g., Pena v. State, 684 P.2d 864 (Alaska 1984); State v. Evans, 378 P.3d 413  


(Alaska App. 2016).  

                                                                                     - 9 -                                                                               2550

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

misread the implied consent form and told Rask he had a duty to submit to a "chemical                                                                                                                                                                                                                                                                                                                          

test of his breath                                                                            or  blood," or face criminal prosecution for "refusal to submit to a                                                                                                                                                                                                                                                                                                 

 chemical test."                                                                  

                                                                       The officer also repeatedly framed the decision of whether to take the                                                                                                                                                                                                                                                                                                            

breath test as a "choice" that Rask was allowed to make - a choice that the officer                                                                                                                                                                                                                                                                                                                                                   

distinguished from the blood test, over which Rask had no such "choice."                                                                                                                                                                                                                                                                                                                                   

                                                                        Officer Roberts                                                                   :   We've got a search warrant for your blood,                                                                                                                                                          

                                                                       but I'm                                asking if you're willing ... to provide a breath sample.                                                                                                                                                                                                                                 

                                                                                                           . . . .  

                                                                        Officer                                        Roberts:                                               [W]e're                                             requesting                                                        you                           to                  take                            the  

                                                                       Breathalyzer.     You   don't   have   a   choice   about   the   blood,  

                                                                       because we got a search warrant for the blood.                                                                                                                                                                      

                                                                                                           . . . .   

                                                                       Rask :   [If] I take the Breathalyzer now, are you guys ... going                                                                                                                                                                                                                              

                                                                       to [forgo] the blood work?                                                                                 

                                                                        Officer Roberts                                                                    :    No, that's not how it works.                                                                                                                                      You're still   

                                                                       going to have to do the blood anyway.                                                                                                                         

                                                                       In effect, Rask was told that he had a legal duty to submit to                                                                                                                                                                                                                                                          either  a breath   

test  or  a blood test, and that he had no choice about the blood test, but that he did have                                                                                                                                                                                                                                                                                                                                                     

 a choice as to whether to take the breath test                                                                                                                                                                                             in addition to                                                             the blood test.                                                                 

                                                                       In the recording of the DUI processing, Rask sounds confused about what                                                                                                                                                                                                                                                                                                   

is being asked of him.                                                                                                 Although Rask's confusion may have stemmed, at least in part,                                                                                                                                                                                                                                                              

 from his apparent intoxication, we conclude that a reasonable, sober person in these                                                                                                                                                                                                                                                                                                                                                         

 circumstances would also have been confused by these advisements.                                                                                                                                                                                                                                                                                                                 That is, a sober      

person receiving these advisements could have reasonably believed that they were free                                                                                                                                                                                                                                                                                                                                                                 

to exercise the one choice that was being offered to them - the choice to refuse the                                                                                                                                                                                                                                                                                                                                                                     

breath test.   

                                                                                                                                                                                                                      - 10 -                                                                                                                                                                                                                2550

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

                                                                                         In the recording, Rask told the officers that he would refuse both tests "                                                                                                                                                                                                                                                                                                                                                                                                          if  

 it's ... my right." (Emphasis added.) In response, the officer made no attempts to clarify                                                                                                                                                                                                                                                                                                                                                                                                                                                       

that Rask had no "right" to refuse the breath test.                                                                                                                                                                                                                                                                              Nor did the officer make any attempts                                                                                                                                                              

to clarify that Rask would face criminal prosecution for refusing to take the breath test.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

Instead, the officer simply announced that Rask had no right to refuse the                                                                                                                                                                                                                                                                                                                                                                                                                                              blood  test  

 (because the police had a warrant to draw his blood), and that he (the officer) was going                                                                                                                                                                                                                                                                                                                                                                                                                                                             

to mark down that Rask refused the breath test.                                                                                                                                                                                                                                             

                                                                                         Rask's subsequent attempt to try to convince the other officer to let him                                                                                                                                                                                                                                                                                                                                                                                                

trade the blood                                                                                            test for                                                the breath                                                                 test further                                                                     suggests that Rask                                                                                                                          believed   that the   

 circumstances were as he had been told -                                                                                                                                                                                                                                                i.e., that he was legally required to submit to                                                                                                                                                                                                                                        

 a chemical test of                                                                                                  either  his breath                                                                                              or  his blood.   

                                                                                         In   its   briefing   on   appeal,   the   State   focuses   on   the   independent   test  

 advisement that the officers gave to Rask                                                                                                                                                                                                                                       after  they had recorded his refusal to take the                                                                                                                                                                                                                                       

breath test. The State points out that, unlike the earlier erroneous advisements, this later                                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 advisement correctly stated that "if you refuse to submit to a chemical test of your breath,                                                                                                                                                                                                                                                                                                                                                                                                                                                   

you'll be charged with driving under the influence and a refusal to submit to a chemical                                                                                                                                                                                                                                                                                                                                                                                                                                 

test, whether or not you decide to take an independent test."                                                                                                                                                                                                                                                                                                                                                    The State argues that this                                                                                                                         

 advisement cured any deficiencies in the earlier advisements.                                                                                                                                                                                                                                                                                                                                                            But this advisement did  

not occur until after the police had already recorded that Rask had refused the breath test,                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

 and the officers did not offer Rask any renewed opportunity to take the breath test                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

 following this advisement.                                                                                                                                                       Moreover, by this point in the processing, Rask was falling                                                                                                                                                                                                                                                                                                    

 off his chair, nearly incoherent, and the officers needed to repeatedly wake him up.                                                                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                         Weacknowledgethat                                                                                                                            policeofficers                                                                                  often facea difficulttaskin                                                                                                                                                      explaining  

 a motorist's rights and responsibilities to an intoxicated suspect during DUI processing.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

But as our supreme court has explained, the decision to take or refuse a breath test "is not                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                            - 11 -                                                                                                                                                                                                                                                                    2550

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


a simple one," and it "requires careful consideration."                                                                                            Where, as here, a suspect's                     

refusal is based on an obvious confusion about his or her rights, the police have an                                                                                                                                   

obligation to clarify those rights to ensure that the motorist's decision is not "based on                                                                                                                             

an ignorance of the actual consequences of refusing."                                                                                    16  


                                  Here, the record demonstrates that proper care was not taken, and that Rask  


remained confused about his rights.  Given the circumstances of this case, we conclude  


that Rask could not reasonably be expected to understand the criminal consequences of  


refusing the breath test from the advisements he received.  The superior court therefore  


erred in finding these advisements adequate for purposes of assuring Rask's due process  



                                  We REVERSE the judgment of the superior court.  


         15      Olson, 260 P.3d at 1061.  

         16      Id. at 1061-62.  

                                                                                                       - 12 -                                                                                                  2550

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

Judge SUDDOCK, concurring.                                                                               

                                                                        With some frequency, impaired drivers compound their reckless decision                                                                                                                                                                                                                                                                                    

to   drive   a   vehicle   with   a   second   reckless   decision   -   a   decision   to   commit   an  

independent crime by refusing to take a breath test.                                                                                                                                                                                                                                         We have today determined that                                                                                                                               

Rask's refusal was influenced by confusion arising fromrelatively unique circumstances                                                                                                                                                                                                                                                                                                             

particular to his case.                                                                                              But even absent such circumstances, refusal is not uncommon.                                                                                                                                                                                                                                                                                                 

The   recurrence   of   this   crime   raises   the   question   of   whether   the   State's   breath   test  

warning is too often failing in its mission to alert drivers that it is usually folly to refuse                                                                                                                                                                                                                                                                                                                                               

the breath test.                                       

                                                                        I conclude that the State's warning is less than optimally effective because,                                                                                                                                                                                                                                                                            

while it explicitly purports to be a warning, it is not written like one.                                                                                                                                                                                                                                                                                                Over the past half-                                                         

 century, industrial engineers have honed the science of effectively warning persons                                                                                                                                                                                                                                                                                                                                               

 against diverse hazards.                                                                                                        The State's breath test warning violates nearly every principle                                                                                                                                                                                                                               

 of this discipline.                

                                                                        Arguably, the warning does not speak bluntly enough.                                                                                                                                                                                                                                                  It is labeled as an                                                                

"Implied Consent Warning," a phrase devoid of meaning to most.                                                                                                                                                                                                                                                                                                            The breath test is                                                                        

verbosely termed a "chemical test of your breath to measure thealcoholic content of your                                                                                                                                                                                                                                                                                                                                                              

breath."   The driver is not commanded but rather is "asked" or "requested" to take a                                                                                                                                                                                                                                                                                                                                                                                  

breath test.                                                 This wording suggests that the driver has a right to refuse to take the test,                                                                                                                                                                                                                                                                                          

when, in fact, drivers have no more right to refuse the test than they do to commit any                                                                                                                                                                                                                                   

 other crime.                                                        And the driver is informed that a refusal "can be" either a felony or a                                                                                                                                                                                                                                                                                                                           

misdemeanor - wording that implies that in some instances, a refusal might not be a                                                                                                                                                                                                                                                                                                                                                                                     

 crime at all.                               

                                                                        And at this moment when an impaired driver may be poised to commit a                                                                                                                                                                                                                           

 self-destructive crime, the driver's peril is perhaps obscured by too much information.                                                                                                                                                                                                                                                                                                                                                                                          

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For example, the driver is made to listen to all of the complicated factors that make a                                                                                                                                                                                                                                                                                                                                                                                                  

breath test refusal a felony versus a misdemeanor, and to the maximum sentences and                                                                                                                                                                                                                                                                                                                                                                                        

 fines for each level of crime.                                                                                            

                                                                          Lastly,   the   advisement   is   not   only   too   wordy,   it   is   also   too   polite   -   

 subliminally suggesting that a breath test refusal is not an antisocial act.                                                                                                                                                                                                                                                                                                                                      For example,   

the   breath   test  warning   informs   drivers   that   if   they   refuse   the   breath   test,   a   "law  

 enforcement officer" will provide them a document explaining how to contest their                                                                                                                                                                                                                                                                                                                                                                                  

 ensuing (and inevitable) license revocation.                                                                                                                                      

                                                                          Under AS 28.35.032(a), the breath test warning need only make three                                                                                                                                                                                                                                                                                                                     

points:   a refusal is a crime, a refusal also entails loss of driving privileges, and a refusal                                                                                                                                                                                                                                                                                                                                                     

is admissible evidence against the refuser.                                                                                                                                                                                                 I believe that the breath test warning would                                                                                                                                                                     

be more                                           effective if it confined itself to                                                                                                                                                        those essentials.                                                                                  In addition,                                                                an effective   

warning would perhaps include a large-font notice near the refusal check box entitled                                                                                                                                                                                                                                                                                                                                                                 

 "WARNING" to re-emphasize that to check the refusal box is to commit a serious crime                                                                                                                                                                                                                                                                                                                                                                            

 entailing a mandatory jail sentence and other consequences.                                                                                                                                                                                                

                                                                           In sum, if the State were to substitute a shorter and more cogent breath test                                                                                                                                                                                                                                                                                                                     

warning, employing proven techniques for maximum impact, the number of breath test                                                                                                                                                                                                                                                                                                                                                                                           

refusals might significantly decrease.  It seems to me that the spirit, if not the letter, of   

 due process calls out for such a change.                                                                                                                                 

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