Blank v. State

COATS, Chief Judge,

concurring.

One of the questions this case presents is whether Trooper Tyler could lawfully require the defendant in this case, Laura Blank, to take a portable breath test. Superior Court Judge Beverly W. Cutler denied Blank’s motion to suppress the results of the breath test, holding that AS 28.35.031(g) authorized Trooper Tyler to require Blank to take the breath test.¹

The statute appears to allow a broad array of tests, providing that the driver is considered “to have given consent to a chemical test or tests of the person’s breath and blood for the purpose of determining the alcoholic content of the person’s breath and blood and shall be considered to have given consent to a chemical test or tests of the person’s blood and urine for the purpose of determining the presence of controlled substances in the person’s blood and urine.” The legislative policy set forth in the statute is consistent with allowing law enforcement officers to administer a portable test to a driver who is involved in an automobile accident that causes death or serious physical injury to determine if alcohol or drugs were involved. A driver who is involved in an injury accident may exhibit behavior that is consistent with being intoxicated. But the behavior may be due to injury rather than drugs or alcohol. A portable breath test would give an officer an opportunity to determine whether the behavior is a result of drugs, alcohol, or injury. Accordingly, the use of a portable breath test appears to be consistent with the policy set out by the legislature in the statute. I therefore conclude that Trooper Tyler’s administration of the breath test was authorized by AS 28.35.031(g).

Whether the portable breath test results were admissible as evidence in Blank’s trial is a separate question. To the best of my knowledge, courts have not found that portable breath tests, such as the one that Trooper Tyler used in this case, are admissible as valid scientific evidence.² But Blank concedes that she did not challenge the admissibility of the portable breath test on this ground. It is uneontested that Trooper Tyler had probable cause to believe that Blank was responsible for an accident resulting in a fatality and had probable cause to test Blank’s breath.³ Blank also does not contest Judge Cutler’s finding that there were exigent circumstances that required the police to conduct the breath test. The only question that Blank raises is whether the statute authorized Trooper Tyler to conduct the breath test on the portable device. In my view, Trooper Tyler had authority to conduct the test under AS 28.35.031(g).

1 . AS 28.35.031(g) provides:

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 and blood for the purpose of determining the alcoholic content of the person’s breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person's blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.

2 . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); State v. Coon, 974 P.2d 386 (Alaska 1999).

3 . State v. Blank, 90 P.3d 156, 163 (Alaska 2004).