Anchorage v. Geber
| Decision Date | 30 March 1979 |
| Docket Number | 3827 and 4046,4037,Nos. 4016,s. 4016 |
| Citation | 592 P.2d 1187 |
| Parties | ANCHORAGE, a Municipal Corporation, Appellant, v. Arthur GEBER, Appellee. David EARLEY, Appellant, v. STATE of Alaska, Appellee. Jennie L. WILLIS, Petitioner, v. ANCHORAGE, a Municipal Corporation, Respondent. ANCHORAGE, a Municipal Corporation, Petitioner, v. Jerry Dean BUFFINGTON, Respondent. |
| Court | Alaska Supreme Court |
Douglas B. Baily, Dunn, Baily & Mason, Anchorage, for appellee Geber.
Craig Cornish, Asst. Public Defender, Brian C. Shortell, Public Defender, Anchorage, for appellant Earley.
Roger W. DuBrock, Wade & DuBrock, Anchorage, for petitioner Willis.
Joseph W. Evans, Birch, Horton, Bittner & Monroe, Anchorage, for respondent Buffington.
Allen M. Bailey, Municipal Pros., Anchorage, Donald L. Starks, Municipal Prosecutor, Anchorage and Theodore Berns, Municipal Atty., Anchorage, for appellant, petitioner and respondent Anchorage, a Municipal Corp.
Monica Jenicek and Mary Anne Henry, Asst. Dist. Attys., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for State.
Before BOOCHEVER, C. J., RABINOWITZ, and BURKE, JJ., DIMOND, Senior Justice, and COMPTON, Superior Court Judge.
The main issue in each of four cases 1 now before us is whether, in prosecuting a charge of operating a motor vehicle while under the influence of intoxicating liquor, law enforcement officials can utilize the results of a blood alcohol test, when the blood used in performing the test was extracted from the accused against his or her will, after refusal to submit to a breathalyzer examination. A second issue, found in only one of the cases, is whether the suspect has a right to have counsel present during the video taping of field sobriety tests performed at the request of the arresting officer. 2 On the main issue, we hold that the extraction and testing of blood under these circumstances has been prohibited by the legislature's enactment of AS 28.35.031-.033. On the second issue, we hold that there is no right to have counsel present.
In separate incidents, Arthur Geber, David Earley, Jennie L. Willis and Jerry Dean Buffington were arrested on charges of operating a motor vehicle while under the influence of intoxicating liquor. Geber, Willis and Buffington were charged with violations of a municipal ordinance, section 9.28.020 of the Code of Ordinances of the Municipality of Anchorage. 3 Earley was charged with a violation of state law, AS 28.35.030. 4 After refusing to submit to breathalyzer examinations, Geber, Earley and Buffington were transported to medical facilities where, over their objection, blood samples were extracted for the purpose of testing for the presence of alcohol. Following her arrest, Willis was immediately transported to a hospital where, after initially refusing to do so, she submitted to the extraction of her blood after being informed by police that if she continued to refuse it would be taken forcibly. Thereafter, Willis was transported to the police station where she was ordered to perform certain field sobriety tests. As she performed the various tests a video tape was made of her actions. At that point she was also offered an opportunity to take a breathalyzer test but refused to do so.
The blood test performed as to each of the four defendants revealed the presence of alcohol. Each moved in district court for an order suppressing the results of the blood tests. These motions produced conflicting results in both the district and superior courts. 5 Eventually, the rulings in each case became the subject of an appeal 6 or petition for review 7 to this court.
In 1969, the legislature of Alaska enacted what is commonly known as the Alaska Implied Consent Statute. Ch. 83, § 1, SLA 1969. This enactment, codified as AS 28.35.031-.034, is entitled: "An act relating to chemical tests as to alcoholic content of blood when operating or driving a motor vehicle under the influence of intoxicating liquor." It amended AS 28.35 by adding several new sections, including the following:
AS 28.35.031. Implied consent. 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 his breath for the purpose of determining the alcoholic content of his blood if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was operating or driving a motor vehicle in this state while under the influence of intoxicating liquor. (Emphasis added.)
AS 28.35.032. Refusal to submit to chemical test. (a) If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test of his breath as provided in § 31 of this chapter, after being advised by the officer that his refusal will result in the suspension, denial or revocation of his license, A chemical test shall not be given. (Emphasis added.)
Simply stated, the question in the cases at bar is whether the language of AS 28.35.032(a), providing that, upon a person's refusal to submit to a chemical test of his breath, "A chemical test shall not be given," means that law enforcement officials are precluded from performing other chemical tests in order to determine whether alcohol is present in the person's blood.
In 1969, Senator Lowell Thomas, Jr., introduced Senate Bill No. 23. It was this bill, after subsequent revisions, which was destined to become Alaska's Implied Consent Statute. As originally introduced, the bill would have amended AS 28.35 by adding, among other things, the following:
Section 28.35.031. IMPLIED CONSENT. (a) A person who operates a motor vehicle in this state shall be considered to have given consent, subject to the provisions of sec. 33 of this chapter, to A chemical test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating liquor. The Department of Public Safety shall designate which of the tests shall be administered.
(b) A person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be considered not to have withdrawn the consent provided by (a) of this section, and the test or tests may be administered, subject to the provisions of sec. 33 of this chapter.
Section 28.35.032. REFUSAL TO SUBMIT TO CHEMICAL TEST. If a person under lawful arrest refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the Department of Public Safety as provided in sec. 31(a) of this chapter, None may be given ; but if he does so refuse, evidence of his refusal shall be admissible in a civil or criminal action or proceeding arising out of acts alleged to have been committed while he was driving or in actual physical control of a motor vehicle in this state while under the influence of intoxicating liquor. (Emphasis added.)
S.B. 23, 6th Leg., 1st Sess. (original version Jan. 28, 1969). It should be noted that Senator Thomas' bill provided for implied consent to tests of the blood, breath or urine, and specifically stated that "none may be given" in the event of a refusal. We think it also important that his bill provided that evidence of an individual's refusal could be used in a civil or criminal proceeding arising out of the arrest.
On February 13, 1969, the Senate Health, Welfare, and Education Committee introduced a committee substitute for Senate Bill No. 23. C.S.S.B. 23, 6th Leg., 1st Sess. (Feb. 13, 1969). The committee substitute, like the original bill, provided that consent was deemed given to blood, breath or urine tests. However, a change was made in AS 28.35.032(a), dealing with refusals to submit to chemical tests. In particular, the committee substitute provided (emphasis added):
Section 28.35.032. REFUSAL TO SUBMIT TO CHEMICAL TEST. (a) If a person . . . refuses . . . to submit at least To a chemical test of his breath as provided in sec. 31(a) of this chapter and the acts allegedly committed while the person was operating a motor vehicle while under the influence of intoxicating liquor did not result in an accident causing serious bodily injury or death to a person other than himself, A chemical test shall not be given.
The committee substitute also provided, for the first time, for license suspension or revocation for a refusal to submit to the required chemical test or tests. The period of suspension or revocation was deemed to be six months. Evidence of the individual's refusal to submit to a chemical test or tests continued to be admissible in a civil or criminal action.
On March 18, 1969, the Senate Judiciary Committee introduced yet another committee substitute for Senate Bill No. 23. C.S.S.B. 23 am, 6th Leg., 1st Sess. (Mar. 18, 1969). Under this version a driver was only "considered to have given consent to a chemical test or tests of his breath." All references to testing of blood or urine were dropped. Id., sec. 28. 35.031. In addition, the license revocation or suspension period was reduced to three months and the right to use evidence of refusal in a civil or criminal action was omitted. Id., sec. 28.35.032(b). The language of AS 28.35.032(a) was changed to read:
If a person under arrest refuses the request of a law enforcement...
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Burnett v. Municipality of Anchorage
...were intended to provide an exclusive method for obtaining direct evidence of a suspect's blood-alcohol content. Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). The statute was intended to deter refusals to submit to chemical tests and to ensure that those who do refuse will gain no ......
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State v. Hitchens, 63969
...n. 4 (Ala.Crim.App.1978) ("The person cannot be compelled to submit to a test against his will . . . .") (dictum); Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979); Campbell v. Superior Court, 106 Ariz. 542, 549, 479 P.2d 685, 692 (1971) (driver has "physical power" to refuse to submit......
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State v. Hollingsworth, 8426SC1109
...cert. denied, 87 N.M. 450, 535 P.2d 657 (1975); Layland v. State, 535 P.2d 1043 (Alaska 1975), overruled on other grounds, Anchorage v. Geber, 592 P.2d 1187 (1979); State v. Towry, 26 Conn.Sup. 35, 210 A.2d 455 (1965). Other jurisdictions have interpreted Schmerber to mean that no arrest is......
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Burnett v. Municipality of Anchorage
...were intended to provide an exclusive method for obtaining direct evidence of a suspect's blood-alcohol content. Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). The statute was intended to deter refusals to submit to chemical tests and to ensure that those who do refuse will gain no ......