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Haynes v. Dept. of Public Safety (12/30/93), 865 P 2d 753
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
THE SUPREME COURT OF THE STATE OF ALASKA
DANNY J. HAYNES, ) Supreme Court
) File No. S-4677
) Superior Court
v. ) File No. 1KE-90-914 CI
STATE OF ALASKA, DEPARTMENT OF )
PUBLIC SAFETY, )
) O P I N I O N
________________________________) [December 30, 1993 - No. 4040]
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Thomas E. Schulz, Judge.
Appearances: Michael P. Heiser, Keene &
Currall, Ketchikan, for Appellant. Dan N.
Branch, Assistant Attorney General,
Ketchikan, Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
MATTHEWS, Justice, and RABINOWITZ, Chief
I. FACTUAL AND PROCEDURAL BACKGROUND
Danny Haynes was arrested for driving while
intoxicated. Following his arrest, Haynes submitted to an
"Intoximeter 3000"breath analysis, which chemically tests for
the presence of alcohol. See AS 28.35.031 ("A person who
operates or drives a motor vehicle in this state . . . shall be
considered to have given consent to a chemical test or tests of
the person's breath. . . ."). The Intoximeter 3000 breath test
produced a reading of .106 grams of alcohol per 210 liters of
breath. The Intoximeter 3000 has a recognized margin of error of
.01 grams per 210 liters of breath. Therefore, Haynes' actual
breach alcohol content, as measured by the Intoximeter 3000, may
have been as high as .116 or as low as .096.
An alcohol level of .10 grams or more per 210 liters of
the person's breath is required for the Department of Public
Safety (the Department) to revoke a driver's license.
AS 28.15.165(c); AS 28.35.030(a)(2). Applied in Haynes' favor,
the .01 margin of error would equate to an actual result of .096
grams, a reading below the statutory minimum of .10 required for
revocation. The hearing officer considered the margin of error
inherent in Haynes' .106 test result, but declined to apply it in
Haynes' favor. Instead, the hearing officer relied on the
arresting officers' testimony that Haynes' personal appearance
and behavior indicated that he was intoxicated, to find it more
probable than not that Haynes' breath alcohol content was .10 or
higher at the time of the test. Consequently, the Department
revoked Haynes' license. The superior court affirmed the
Department's revocation order, and this appeal followed.
A. Standard of Review
We review the hearing officer's decision to revoke
Haynes' driver's license independent of the superior court's
decision, as the superior court was acting as an intermediate
court of appeal. Jager v. State, 537 P.2d 1100, 1106 (Alaska
1975); State v. Marathon Oil Co., 528 P.2d 293, 298 (Alaska
1974). Because the issues presented in this appeal are purely
questions of law, we are not bound by the lower court's decision.
Rather, we will "adopt the rule of law that is most persuasive in
light of precedent, reason, and policy. Guin v. Ha, 591 P.2d
1281, 1284 n. 6 (Alaska 1979).
B. Consideration of Other Factors
Alaska Statute 28.15.165(c) provides that the
Department of Public Safety may revoke a person's license if "a
chemical test under AS 28.35.031(a) produced a result described
in AS 28.35.030(a)(2)." AS 28.15.165(c) (emphasis added).
Alaska Statute 28.35.030(a)(2) provides that a person commits the
crime of driving while intoxicated (DWI) if a breath analysis
reveals that the person's breath sample contains .10 grams or
more of alcohol per 210 liters of the person's breath. AS
28.35.030(a)(2). Alaska Statute 28.15.165(c) does not provide
for consideration of other factors or circumstances, such as the
appearance and behavior of the individual, in determining whether
the person's breath did, in fact, contain the requisite level of
alcohol.1 AS 28.15.165(c). Therefore, the hearing officer
should not have considered evidence regarding Haynes' appearance
and behavior in determining whether his actual breath alcohol
level was over .10 grams. The officers' testimony regarding
Haynes' appearance and behavior does not provide support for
license revocation pursuant to AS 28.15.165(c).2
C. Margin of Error
The legislature has the power to require the revocation
of a driver's license on the basis of a particular test result or
reading, despite its inherent margin of error, when the
legislature expressly considers that margin and deems it
sufficiently negligible such that it may be disregarded.3 In
such circumstances, the test result is considered tolerably
inaccurate, and, therefore, the Department may revoke a license
on the basis of the test result without regard to the test's
margin of error.
In Barcott v. Department of Public Safety, 741 P.2d 226
(Alaska 1987), we addressed the issue of whether the hearing
officer must consider the inherent margin of error in a chemical
analysis designed to test the presence of alcohol in a person's
breath.4 In the course of our analysis, we examined how courts
in other jurisdictions interpreted their own DWI statutes with
regard to the issue of inherent margin of error in a chemical
blood/breath alcohol test. Id. at 229. Essentially, the courts'
analyses hinged on whether the particular court interpreted its
jurisdictional DWI statute to create an offense upon a test
reading in excess of their statutory limit or upon an actual
level of alcohol in excess of the limit. Courts that interpret
their DWI statutes to create an offense upon a test reading in
excess of the statutory limit presume that the legislature
considered the inherent risk of error in the chemical analysis
and found it to be tolerably inaccurate; thus, the courts did not
require the fact finder to consider the inherent margin of error
of a particular testing device.5 See State v. Rucker, 297 A.2d
400, 402-03 (Del. Super. Ct. 1972); Nugent v. Iowa Dep't of
Transp., 390 N.W.2d 125, 128 (Iowa 1986); Schildgen v. Comm'r of
Pub. Safety, 363 N.W.2d 800, 801 (Minn. App. 1985); State v.
Lentini, 573 A.2d 464, 466-67 (N.J. Super. Ct. App. Div. 1990);
Slagle v. State, 570 S.W.2d 916, 919 (Tex. Crim. App. 1978). In
contrast, courts that interpret their DWI statute to create an
offense upon an actual level of alcohol do not presume that their
legislature considered the inherent margin of error of a chemical
test; thus, those courts require the fact finder to consider the
inherent margin of error before rendering a decision. See State
v. Boehmer, 613 P.2d 916, 918-19 (Haw. Ct. App. 1980); State v.
Bjornsen, 271 N.W.2d 839, 840 (Neb. 1978); State v. Prestier, 455
N.E.2d 24, 27 (Ohio Mun. Ct. 1982); State v. Keller, 672 P.2d
412, 414 (Wash. Ct. App. 1983). In Barcott, we adopted
the latter reasoning and held that there was no evidence or
indication that the Alaska Legislature considered the margin of
error inherent to the Intoximeter 3000. Id. at 230. The
legislature did not specifically approve the Department's use of
the Intoximeter 3000 test, but rather authorized the Department
to approve satisfactory techniques, methods, and standards of
performing the analysis. AS 28.35.033(d); Barcott, 741 P.2d at
230.6 There is no indication that the legislature considered the
.01 margin of error inherent to the Intoximeter 3000 in setting
the legal limit at .10 grams per 210 liters of the person's
breath. Therefore, we do not interpret AS 28.35.030(a)(2) as
creating an offense for violation of the statutory .10 grams per
210 liters of breath, without regard to the margin of error
inherent to the particular testing device utilized. In Alaska, a
driver commits a DWI offense when his or her actual alcohol level
exceeds .10 grams per 210 liters of breath.
D. Due Process
The question, then, is whether the margin of error must
be applied in Haynes' favor. As a matter of statutory
interpretation, we answer this question in the affirmative. It
is well established that
[a] driver's license is an important property
interest, and the driver has a constitutional
right to a meaningful hearing before the
state can suspend his license. As in a
criminal prosecution for driving while
intoxicated, the breath test is of central
importance in the administrative license
revocation proceeding. The ability of the
defendant to evaluate these tests is critical
to his ability to present his case.
Barcott, 741 P.2d at 228 (quoting Champion v. Dep't of Public
Safety, 721 P.2d 131, 133 (Alaska 1986)). In Barcott, we held
that the hearing officer violated the appellant's right to due
process7 when he failed to consider the inherent inaccuracy of
the Intoximeter 3000 breath test in determining that a test
reading of .10 satisfied the statutory requirements to revoke the
appellant's license. Thus, we reversed the decision and remanded
the case to the Department for further proceedings consistent
with the opinion.8 Barcott, 741 P.2d at 230.
Given the .01 margin of error inherent to the
Intoximeter 3000, a test reading of .106 could equate to a .096
actual test result. If the .01 margin of error is not applied in
Haynes' favor, the deprivation of an important property interest
could result where the actual breath test result was below .10
grams. Absent express legislative intent to the contrary, we
hold that failure to apply the inherent margin of error of a
particular testing device in favor of the person subject to
license revocation violates due process of law as guaranteed by
the Alaska Constitution.9 Alaska Const. art. I, 7.
In summary, we hold that a chemical breath test reading
or result which may be reduced below the level of .10 grams per
210 liters of the person's breath, by applying the margin of
error inherent in the particular test used, cannot serve as the
basis for a license revocation under AS 28.15.165(c). Extrinsic
evidence of intoxication does not mitigate the inherent error;
the error remains, and must be applied to the test reading. In
light of the .01 acknowledged margin of error in the breath test
administered to Danny Haynes in the case at bar, the Department
was not authorized to revoke Haynes' driver's license under AS
28.15.165(c). The decision of the hearing officer is REVERSED
and the case is REMANDED for further proceedings consistent with
MATTHEWS, Justice, joined by RABINOWITZ, Chief Justice,
Under AS 28.15.165(a) and (c), the Department of Public
Safety is required to revoke the driver's license of a person
driving a motor vehicle where a chemical test administered to the
person "produces a result described in AS 28.35.030(a)(2) . . ."
namely, "0.10 grams or more of alcohol per 210 liters of the
person's breath . . . ." Today's opinion construes this
statutory system to mean that the department must revoke the
driver's license of a driver who is administered a chemical test
where the test produces a result of .11 grams or more of alcohol.
This result is required, according to the majority opinion,
because "[a]s a matter of statutory construction"(Slip Op. 7, 8)
there is no evidence that the legislature considered the .01
margin for error inherent in the testing device.10
"Where a statute's meaning appears clear and
unambiguous . . . the party asserting a different meaning bears a
correspondingly heavy burden of demonstrating contrary
legislative intent." University of Alaska v. Geistauts, 666 P.2d
424, 428 n.5 (Alaska 1983) (quoted in Lagos v. City and Borough
of Sitka, 823 P.2d 641, 643 (Alaska 1991)). This means that the
plainer the language of the statute, the more convincing the
evidence of contrary legislative intent must be. State v. Alex,
646 P.2d 203, 208 n.4 (Alaska 1982). Here the statute is plain
in that it precisely defines the minimum test result which
mandates license revocation. Since, as the majority opinion
points out, there is no legislative history indicating that the
legislature intended to use a different minimum level, we are
required to construe the statute to mean what it says. I do not
believe that it is right to say that a statute does not mean what
it appears to mean because there is no legislative history
indicating that the apparent plain meaning of the statute is the
actual meaning. That is what today's opinion does.
While I think the above correctly identifies the
logical flaw in the majority opinion, I should add that it also
oversimplifies the problems presented by this case. There are
two related problems which we should face. The first is that
this court has never defined the elements of the license
revocation offense. They should be defined. The second is that
our prior decision in Barcott v. State, Dep't of Public Safety,
741 P.2d 226 (Alaska 1987), is poorly reasoned and based on an
erroneous assumption regarding the elements of the license
revocation offense. It should be overruled. The following
discussion addresses these problems.
A. Elements of the License Revocation Offense
The critical debate here is whether a failing test
result alone is all that is required to revoke a driver's license
or whether a failing test result and an illegal blood or breath
alcohol level are needed.11 To fully understand this question our
statutes which define the criminal offense of driving while intox
icated as well as the license revocation offense must be
The statutory provisions which govern this case are AS
28.15.165, 28.15.166, and 28.35.030(a). Under AS 28.15.165(a) if
a chemical test given to a driver "produces a result described in
AS 28.35.030(a)(2)"a notice must be given to the driver that the
Department of Public Safety intends to revoke the driver's
license to operate a motor vehicle. (Emphasis added.) License
revocation follows unless the driver makes a request for review
under AS 28.15.166 within seven days after receipt of the notice.
When a request for review is made, the driver is entitled to a
hearing before a hearing officer designated by the Commissioner
of Public Safety. AS 28.15.166(f). The issues to be determined
at the hearing are expressly limited as follows:
(g) The hearing under this section
shall be limited to the issues of whether the
arresting officer has reasonable grounds to
believe that the person was driving a motor
vehicle while intoxicated and whether . . .
(2) the chemical test . . . produced a result
described in AS 28.35.030(a)(2).
AS 28.15.166(g) (emphasis added). If both of these issues are
determined in the affirmative by a preponderance of the evidence
the license is revoked. AS 28.15.166(j). If one or both of the
issues are determined in the negative the license is not revoked.
Id. Alaska Statute 28.35.030(a)(2) describes the "result"
referred to in AS 28.15.165(a) and AS 28.15.166(g)(2). It
(a) A person commits the crime of
driving while intoxicated if the person
operates or drives a motor vehicle or
operates an aircraft or a watercraft
. . . .
(2) when, as determined by a
chemical test taken within four hours after
the alleged offense was committed, there is
0.10 percent or more by weight of alcohol in
the person's blood or 100 milligrams or more
of alcohol per 100 milliliters of blood, or
when there is 0.10 grams or more of alcohol
per 210 liters of the person's breath[.]
The primary function of AS 28.35.030(a)(2) is to
express the elements of one of three ways in which a person may
commit the crime of driving while intoxicated.12 Although the
elements of the subsection (a)(2) DWI offense have never been
defined by this court or by the court of appeals, the court of
appeals has interpreted language in a municipal ordinance similar
to AS 28.35.030(a)(2). See Erickson v. Municipality of
Anchorage, 662 P.2d 963, 967 (Alaska App. 1983). The court
construed the ordinance to require the driver's actual breath
alcohol level to be above legal levels at the time of operation
of a motor vehicle. Id. at 967. According to the plurality of
the court, an elevated test result was intended to be presumptive
proof of an actual illegal alcohol level. Id. Judge Singleton
wrote a concurring opinion in which he expressed the view that a
bad test result alone -- so long as the driver had not consumed
alcohol between the time that he drove and was tested -- was the
essence of the offense. Id. at 970 (Singleton, J., concurring).
Judge Singleton stated: "The jury need not determine the precise
blood alcohol level that existed at any given time while the
defendant was operating his vehicle." Id. at 968. This
difference of opinion is reflected in the case law of other juris
Some courts read their DWI statute, as Judge Singleton
did, to create an offense of registering a blood/breath alcohol
test reading in excess of the statutory limit. See Nugent v.
Iowa Dep't of Transp., 390 N.W.2d 125, 128 (Iowa 1986); Schildgen
v. Commissioner of Pub. Safety, 363 N.W.2d 800, 801 (Minn. App.
1985); State v. Lentini, 573 A.2d 464, 466-67 (N.J. Super. App.
Div. 1990). If a properly administered test registers a result
at or above the statutory level the offense is automatic.13 Under
this view, any margin of error or inherent inaccuracy in the
testing technology can be seen as tolerated by the legislature
which prescribed the statutory requirements of the offense. See
State v. Rucker, 297 A.2d 400, 403 (Del. Super. 1972); Slagle v.
State, 570 S.W.2d 916, 919 (Tex. 1978). Thus, evidence
concerning the testing equipment's margin of error is irrelevant
because such evidence tends to prove the individual's actual
alcohol content and does not shed light upon the proper
functioning or use of the testing equipment.
Under a second approach, courts read their DWI statute,
as the plurality of the court of appeals did in Erickson, to
require an actual blood or breath alcohol content at or above the
statutory level. See e.g., People v. Campos, 188 Cal. Rptr. 366,
368 (Cal. Super. 1982); State v. Prestier, 455 N.E.2d 24, 27
(Ohio Mun. 1982). Under this view, the results of a chemical
sobriety test are treated as a means of proving actual alcohol
content. Thus, the inherent margin of error for any testing
equipment is relevant to the issue of the accuracy of the test
equipment's measurement of actual alcohol content. Courts in
these jurisdictions admit and permit the utilization of non-test
evidence of intoxication. E.g., State v. Babcock, 419 N.W.2d 527
(Neb. 1988); State v. Gates, 777 P.2d 717, 720-21 (Haw. App.
1989); State v. Brockaway, 441 N.E.2d 602 (Ohio App. 1981); State
v. Keller, 672 P.2d 412, 413-14 (Wash. App. 1983).
While AS 28.35.030(a)(2) is ambiguous with respect to
the necessary elements of the crime of DWI, does the ambiguity
carry through to the conduct necessary to give rise to an
administrative license revocation under AS 28.15.165 and .166?
Today's majority opinion states that the criminal DWI offense
requires an actual alcohol level at or above statutory limits,
and implies that an illegal actual alcohol level is also needed
for license revocation. I disagree with the latter conclusion.
It seems to me that the most straightforward reading of our
statutes is that all that is required for license revocation is a
failing test result based on a properly administered test.
Alaska Statute 28.15.165(a) requires only "a chemical test"
properly administered which "produces a result" at or above
statutory limits. Use of the term "result"in .165(a) rather
than language which suggests the need for illegal levels of
alcohol present in the person's blood or breath, as in AS
28.35.030(a)(2), points to this conclusion. Moreover, the fact
that by the express terms of AS 28.15.166(g) the issue at the
license revocation hearing is limited to whether the chemical
test "produced a result"at illegal levels also suggests that the
test result itself is the critical element.
As noted above, in jurisdictions where an actual level
of alcohol is critical, evidence of intoxication independent of
the test result is admissible. Today's opinion concludes that no
evidence other than the test result may be admitted to prove
actual alcohol levels. This is an accurate reading of the
limitation imposed by AS 28.15.165(g)(2) but that limitation only
makes sense if the test result rather than actual alcohol level
is the critical fact for determination. One must ask why a legis
lature would enact a statutory scheme in which actual levels of
alcohol are critical and then preclude the state from employing
non-test evidence which tends to prove that such levels exceeded
legal limits in particular cases? The answer is that this would
be a very odd thing for a legislature to do. No rationale for a
system weighted so artificially and heavily in favor of the
drinking driver can readily be hypothesized. Thus, the
legislature probably intended that the critical element for
license revocation was merely a failing test result.
B. Barcott v. State, Dep't of Public Safety
As in this case, the driver in Barcott v. State, Dep't
of Public Safety, 741 P.2d 226 (Alaska 1987), was tested by an
Intoximeter 3000. The test indicated a .10 alcohol level and the
driver's license was suspended. Id. at 227. Barcott claimed
that the administrative hearing officer denied him due process of
law by refusing to consider the device's .01 inherent margin for
error. Id. We agreed and remanded for further proceedings. Id.
The Barcott opinion is unclear as to whether a failing
test result produced by a properly administered test was
sufficient for license revocation or whether a failing test and
an illegal alcohol breath or blood level are required. There is
much in the opinion which suggests that the court assumed that
both a failing test result and an illegal level of alcohol were
essential. Throughout the opinion the controlling issue is
framed in terms of the hearing officer's refusal to consider
evidence of the margin for error, not that the margin for error
was necessarily dispositive. See id.
The rehearing history of Barcott as reflected in the
public records of this court, but not in the published opinion,
makes clear that our decision was based on the assumption that
actual alcohol content was relevant. When the original Barcott
opinion was issued the final sentence read: "The decision of the
hearing officer is reversed." The State filed a petition for
rehearing, contending that the reversal without a remand instruc
tion amounted to a finding by this court that revocation of
Barcott's license was not permissible under any circumstances
and, therefore, Barcott's license had to be restored without the
State having an opportunity to present its case to a hearing
officer. The court granted the State's petition and added the
current remand language: "and the case is remanded to the
department for further proceedings consistent with this opinion."
Id. at 230. The only sensible explanation for this action is
that the Barcott court assumed that a driver's actual alcohol
level was an element of the license revocation offense, therefore
the State should be allowed on remand to present evidence of the
driver's actual alcohol level in addition to the test score.
Given my conclusion that a failing test result alone is
the critical element in license revocation cases and that a
driver's actual alcohol level is irrelevant, Barcott's holding
that it is a violation of due process not to consider a testing
device's inherent margin for error is plainly wrong. Drunken
driving is a social problem of considerable magnitude. The
legislature can respond to this problem by making it an offense
to drive when a test of the driver's blood or breath yields a
given test reading as long as there is a reasonable relationship
between the level established by the legislature and driver
impairment. In setting a level, a certain testing margin of
error is tolerable within reasonable limits. Clearly the
legislature could prohibit driving with an actual alcohol content
of .09.14 Thus, there is no reason to condemn as fundamentally
unfair, and therefore unconstitutional, a license revocation
procedure in which a driver is sanctioned for a test reading of
between .10 and .109, given a .01 margin for error.
If, on the other hand, actual alcohol level is the
critical element, I agree that it would be unfair not to permit
consideration of the testing device's margin for error. However,
it is one thing to allow consideration of a device's margin for
error along with other evidence bearing on the issue of intoxica
tion.15 This is what we did in Barcott. It is another and much
more questionable thing to conclude that whenever a test result
is such that considering the margin for error an innocent alcohol
level is possible, there can be no license revocation because no
other evidence of intoxication can be received. This conclusion
is strange not only because there is no apparent purpose for the
limitation, but also because no other jurisdiction in which
actual alcohol level is critical employs such a limitation.
In conclusion, I would affirm the decision of the
superior court which affirmed the revocation of Haynes' driver's
license. The critical requirement for license revocation is a
properly given test which produces a failing score. Barcott,
which assumes otherwise, should be overruled. The legislature
has established the point at and above which a test score is to
be regarded as failing. That point is .10. The majority opinion
errs in changing that point to .11 where an Intoximeter 3000 is
used. Under our view of the plain meaning rule of statutory
construction, the apparent plain meaning of a statute cannot be
changed except where there exists compelling legislative history
that a different meaning was intended. By relying on the absence
of legislative history to alter the plain meaning of the current
statutory system, today's opinion stands the plain meaning rule
on its head.
1 AS 28.15.165(c) refers to the circumstances surrounding the
arrest, but not for the purpose of determining the accuracy of a
particular chemical test. The statute provides:
Upon receipt of a sworn report of a law
enforcement officer that a chemical test under AS
28.35.031(a) produced a result described in AS
28.35.30(a)(2) or that a person refused to submit
to a chemical test under AS 28.35.031(a), that
notice under (a) of this section was provided to
the person, and that contains a statement of the
circumstances surroun-ding the arrest and the
grounds upon which the officer's belief that the
person was driving while intoxicated a motor
vehicle for which a driver's license is required
was based, the department shall revoke the
person's license. . . .
AS 28.15.165(c) (emphasis added).
2 Were we to allow extrinsic evidence to overcome the margin of
error inherent in the test result, the department could revoke
the license of a driver testing well below .10, if the extrinsic
evidence was sufficiently persuasive to convince the Department
that the driver's "true"breath alcohol content was .10 or higher
when the test was performed. Although it is doubtful that the
legislature intended AS 25.55.165(c) to operate in this fashion,
such a result is possible employing the reasoning of the hearing
officer in this case.
3 An "acceptable" margin of error is one having reasonable
limits. A greater margin of error could not be conveniently
ignored, without inviting a constitutional challenge.
4 The Intoximeter 3000 was the instrument utilized to perform
the breath test in Barcott, as well. 741 P.2d at 227.
5 These courts do, however, consider deficiencies in the
administration of the test and/or operation of the device which
may tend to support a defendant's argument that the machine did
not, in fact, produce a test result above the legal limit.
6 This observation is not intended to suggest that the
Department's use of the Intoximeter 3000 is unauthorized. See
Barcott, 741 P.2d at 230.
7 Article I, section 7 of the Alaska Constitution provides:
No person shall be deprived of life, liberty, or
property, without due process of law. The right
of all persons to fair and just treatment in the
course of legislative and executive investigations
shall not be infringed.
Alaska Const. art. 1, 7.
8 The issue of whether the margin of error must be applied in
favor of the defendant was not before this court in Barcott.
Thus, it would have been premature to address the issue at that
9 Although the margin of error inherent to the Intoximeter 3000
is .01, the margin of error inherent to another type of testing
device may be more or less than .01. See, e.g., People v.
Campos, 188 Cal. Rptr. 366 (Cal. App. Dep't Super. Ct. 1982)
(.005 margin of error); People v. Cansel, 520 N.Y.S.2d 509, 510
(N.Y. Crim. Ct. 1987) (.001 margin of error). The Alaska
Legislature had not set forth a "margin of error"standard. See
AS 28.35.033(d). Thus, the Department may, at some point in the
future, adopt a testing procedure or device which has a higher or
lower margin of error than the Intoximeter 3000. Were we to
presume that the legislature intended the .10 statutory level to
reflect a test reading instead of an actual test result, we would
be sanctioning a varying statutory level, depending upon the
10 The majority thus has adopted what one journal has called
the "discount approach": the breath test reading is reduced to
the lowest level possible given the margin for error. Note, Is
DWI DOA?: Admissibility of Breath Testing Evidence in the Wake
of Recent Challenges to Breath Testing Devices, 20 Sw. U. L.
Rev., 247, 272-78 (1991). According to this article, the
discount approach was very briefly employed by courts in Nebraska
and New Jersey, but now has been judicially overruled in both of
those states. Id. at 273-74, 276. Neither the article nor the
majority opinion mention any jurisdiction which currently uses
the discount approach.
This article also demonstrates that the problem we are con
fronted with today is only the tip of the margin for error ice-
berg. Because of individual physiological differences, the ratio
used to convert breath alcohol concentrations into blood alcohol
concentrations -- the partition ratio -- currently fixed at 1 to
2100, is not universal and may yield improperly high results in
some individuals. Id. at 260; see Cooley v. Municipality of
Anchorage, 649 P.2d 251, 254 n.7 (Alaska App. 1982) (expert
testimony indicated breathalyzer yielded improperly high results
in 14% of cases). A lower partition ratio can skew breathalyzer
readings significantly. For example, the Nebraska Supreme Court
reduced a defendant's breath test reading by 52.38% because of
the possibility that his partition ratio was 1:1,100 rather than
1:2,100. See State v. Burling, 400 N.W.2d 872 (Neb. 1987)
(following discount approach subsequently abandoned in State v.
Babcock, 419 N.W.2d 527, 530 (Neb. 1988)).
11 The second footnote in today's majority opinion suggests
that if non-test evidence of intoxication were allowed even a
driver who passed a test might suffer a license revocation.
However, such a result would not be possible as long as the
elements of the offense include a failing test score and an
illegal alcohol level. Of course, if a failing test result alone
suffices, non-test evidence of intoxication is irrelevant.
12 The other two means are driving (1) while under the
influence of intoxicating liquor or controlled substance or (3)
while under the combined influence of intoxicating liquor and
another substance. AS 28.35.030(a)(1) and (3).
13 Importantly, even these courts recognize that the test
must be "properly administered." Any evidence that the test
equipment fails to meet legal operating or maintenance
requirements or that the officer administering the test failed to
follow proper procedures may, of course, be admitted to prove
that, in fact, an individual never actually produced a test
result above the legal limit. Note, however, that this argument
takes the position that this particular test result was
unreliable, not that the testing method per se is inaccurate.
14 A number of states have established an .08% blood alcohol
level at or above which a driver is per se guilty of DWI. Cal.
Veh. Code 23152(b) (West Supp. 1990); Me. Rev. Stat. Ann. tit.
29, 1312-B(1)(B) (West Supp. 1989); Or. Rev. Stat.
813.010(1)(a) (1987); Utah Code Ann. 41-6-44(1)(a) (1988).
Congress has encouraged all states to adopt a .04% level for
commercial vehicle drivers, 49 U.S.C. 2707(f)(4) (Supp. 1990)
and Alaska has complied. AS 28.33.030(a).
15 It is well settled that non-test evidence by either lay
witnesses or trained police officers concerning a party's intox
ication is admissible. Loof v. Sanders, 686 P.2d 1205, 1213
(Alaska 1984). In addition to observation evidence concerning
intoxication, non-test evidence of intoxication may include
independent quantitative evidence as to the amount of drinking
the driver has done before the arrest. This is sometimes very
persuasive, as was the case in State v. Keller, 672 P.2d 412, 414
(Wash. App. 1983), where the defendant admitted drinking "six
beers and two tequilas"prior to driving.