Russell v. Municipality of Anchorage , 1985 Alas. App. LEXIS 357 ( 1985 )

COATS, Judge,

concurring.

I concur with Judge Singleton’s opinion. However, I disagree that Russell’s blood test can be justified as a search incident to an arrest. The blood test could not have been taken by the police except at Russell’s request under AS 28.35.033(e). In my view, to hold that Russell was subject to a blood test as a search incident to an arrest would be inconsistent with AS 28.35.032 which provides that if a person refuses to submit to a chemical test of his breath, no test shall be given. See Pena v. State, 684 P.2d 864 (Alaska 1984). It seems to me that even though Russell took a breath test, the police were not authorized to conduct a blood test incident to an arrest unless Russell wanted to take a blood test under AS 28.35.033(e). Here, Russell agreed to take the test, so the test was valid under AS 28.35.033(e). The record in this case supports a finding that Russell consented to the test. In order to consent to the test, Russell did not have to understand that the blood test could later be used in evidence against him. See Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (consent to search valid even though consenter not specifically informed of right to withhold consent). Therefore, I would find that Russell consented to the blood test rather than that the blood test was valid as a search incident to an arrest. In all other respects I agree with Judge Singleton’s opinion.