Haynes v. State, Department of Public Safety , 1993 Alas. LEXIS 131 ( 1993 )

OPINION

BURKE, Justice.

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 In-toximeter 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.

II. DISCUSSION

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 28.85.031(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 Tramp., 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, 240 N.J.Super. 330, 573 A2d 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, 1 Haw.App. 44, 613 P.2d 916, 918-19 (1980); State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839, 840 (1978); State v. Prestier, 7 Ohio Misc.2d 36, 455 N.E.2d 24, 27 (Ohio Mun.Ct.1982); State v. Keller, 36 WashApp. 110, 672 P.2d 412, 414 (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.-038(d); Barcott, 741 P.2d at 230.⁶ There is no indication that the legislature considered the .01 margin of error inherent to the Intox-imeter 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 ease.

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 this opinion.

MATTHEWS, J., and RABINOWITZ, C.J., dissent.

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 surrounding 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 time.

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, 138 Cal.App.3d Supp. 1, 188 Cal.Rptr. 366 (Cal.App.Dep't Super.Ct.1982) (.005 margin of error); People v. Cansel, 137 Misc.2d 260, 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 device utilized.