Gundersen v. Municipality of Anchorage, No. A-2112

• Court: Court of Appeals of Alaska
• Writing for the Court: Before BRYNER, C.J., SINGLETON; SINGLETON; BRYNER; COATS; BRYNER
• Citation: 762 P.2d 104
• Parties: Dale M. GUNDERSEN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
• Decision Date: 30 September 1988
• Docket Number: No. A-2112

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762 P.2d 104 Dale M. GUNDERSEN, Appellant,
v.
MUNICIPALITY OF ANCHORAGE, Appellee. No. A-2112. Court of Appeals of Alaska. Sept. 30, 1988.

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William Grant Callow, Anchorage, for appellant.

John E. McConnaughy, III, Asst. Mun. Prosecutor, and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee.

OPINION

Before BRYNER, C.J., SINGLETON, J., and STEWART, District Court Judge. ^*

SINGLETON, Judge.

Dale M. Gundersen was convicted by a jury of driving while intoxicated. Anchorage Municipal Code (AMC) § 09.28.020. He appeals, contending that the trial court erred in refusing to suppress the results of his Intoximeter test. He also challenges the trial court's ruling on jury instructions. We affirm.

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FACTS

Gundersen was arrested for driving while intoxicated after the vehicle he was driving collided with a parked car and he failed certain field sobriety tests. He was given an Intoximeter test and it registered a reading of .264 grams of alcohol per 210 liters of breath. No separate sample of Gundersen's breath was taken or preserved. After Gundersen had taken the Intoximeter test, however, Anchorage Police Officer David Koch read him a "Notice of Right to an Independent Test." The notice stated:

You are ... under arrest for the offense of driving while intoxicated. You have provided a sample of your breath for analysis on the Intoximeter 3000. You also have a right to obtain an independent test of your blood alcohol level. If you wish to have an independent test you will be transferred to a local medical facility where a sample of your blood will be drawn by qualified personnel at no charge to you. The blood sample will be stored at the medical facility for a period of 60 days. It will be your responsibility to make arrangements for analysis of your blood sample. The analysis itself will be done at your own expense. At this time you must decide whether or not you want an independent test performed. A refusal to decide will be taken [as] a waiver of your right to obtain an independent test.... I would like you to verbally answer whether you do or do not want a separate test, then check the box, read aloud the box that you have checked and sign here at the bottom, sir. Do you have any questions about the form, Mr. Gundersen?

Gundersen declined the offer of an independent test. Thereafter, the following dialogue occurred:

GUNDERSEN: I'm kind of wondering about the reasoning of the test.

[OFFICER] KOCH: The reason that we offer the blood test is so that you will have the means ... As it says you can check the accuracy of my machine by the blood test. If you want to be able to check the accuracy, if you doubt the accuracy of the machine, anything like that....

GUNDERSEN: They're not a 100% though. The machine itself?

KOCH: Well, the machine is an extremely accurate machine.

GUNDERSEN: But it's not a 100%?

KOCH: It's acceptable within limits. It's like any other machine, sir.

GUNDERSEN: Okay. But it's not a 100% is what I'm asking.

KOCH: The machine is 100% within its capabilities.

GUNDERSEN: 100, 90, or 80?

KOCH: It's 100% within its capabilities.

SUPPRESSION OF INTOXIMETER TEST RESULTS

Gundersen argues that his Intoximeter test should have been suppressed for a number of reasons. First, he contends that the police either intentionally or negligently misinformed him of the scope of his right to an independent chemical test of his blood alcohol level. Specifically, he argues that the form notice read by the arresting officer was incomplete because it did not make it clear to Gundersen that he could have any health professional of his choosing administer the test, and that a urine test or separate breath test could have been obtained, if he wished, in place of a blood test. Next, he argues that the form warning discouraged him from obtaining an independent test by telling him that while a blood sample would be drawn at no expense, he would have to pay for an independent test of that sample. In Gundersen's view, the officer should also have told him that if he could not afford to pay for the test, one would be provided at no charge. Finally, Gundersen contends that the officer's statement about the accuracy of the machine was incomplete because it did not mention the machine's margin of error. For all these reasons, he contends that the trial court should have suppressed his Intoximeter results.

At the outset, it is important to recognize that Gundersen's arguments rest on two slightly different rights. The first right springs from AMC § 09.28.023(E), and its

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identical counterpart under state law, AS 28.35.033(e), which permit an individual arrested for driving while intoxicated, after having submitted to an Intoximeter test, to choose any qualified person to administer an independent chemical test. Similar rights arise under the Alaska Constitution. We will address Gundersen's statutory rights first, and then proceed to a discussion of his constitutional rights.

Statutory Argument

Gundersen was arrested for driving while intoxicated. He was therefore subject to the municipality's "implied consent law," which required him to submit to a police administered chemical test of his breath or blood. AMC § 09.28.021; Svedlund v. Anchorage, 671 P.2d 378 (Alaska App.1983). Once he submitted to a chemical test of his breath or blood, he became eligible to have an independent test of his own choosing.

Anchorage Municipal Code § 09.28.023(E) provides:

The person tested may have a physician, or a qualified technician, chemist, registered nurse or other qualified person of his or her own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence.

Similar statutes exist in many jurisdictions and have generated a substantial amount of litigation. Some statutes expressly require that the defendant be given notice that he is entitled to an independent test. Others, including Alaska's, do not require such notice. It is generally agreed that the statutory right to an independent sobriety test is actually a motorist's right to be free of police interference when obtaining such a test by his own efforts and at his own expense. There is no statutory right to police assistance in obtaining the test. See Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605, 606 (1985); Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1124-26 (1983). The statutes normally do not require that indigents be furnished independent tests at public expense. See Williford v. State, 284 Ark. 449, 683 S.W.2d 228, 229 (1985). Moreover, whether the police have substantially interfered with a defendant's opportunity to obtain an independent test is a question of fact to be decided by the trial judge. See, e.g., Cunningham v. State, 255 Ga. 35, 334 S.E.2d 656, 658-59 (1985). Cases interpreting similar statutes are discussed in Annotation, Drunk Driving: Motorist's Right to Private Sobriety Test, 45 A.L.R.4th 11-76 (1987 & Supp.1988).

Alaska law is in accord with these authorities. In Palmer v. State, 604 P.2d 1106 (Alaska 1979), the Alaska Supreme Court indicated that the police are under no duty to inform a defendant of his or her right to an independent test. ¹ Implicitly, the statutory right in Alaska, like the statutory right in other jurisdictions, is the right of the motorist to be free of police interference when obtaining an independent test at his or her own expense. See, e.g., Ward v. State, 758 P.2d 87 (Alaska, 1988). ²

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In the instant case, Gundersen was informed of his right to an independent test. ³ He was offered assistance in obtaining a blood sample at municipal expense. He was also informed that any test of the blood sample would be at his expense. Clearly, the form advice of rights does not completely parallel the terms of the ordinance. In order to prevail, however, Gundersen must establish that the warning he received constituted interference, i.e., prevented him from obtaining an independent test that he would have obtained had he received no warning at all. Since this is a question of fact, we will overturn the trial court's decision only if convinced that it is clearly erroneous. Esmailka v. State, 740 P.2d 466, 470 (Alaska App.1987).

There is nothing in the record to suggest that Gundersen wished a urine test or additional breath test as opposed to a blood test. Gundersen argues that he was "put off" because the form warning indicated that a retest would be at his expense. The ordinance does not, however, provide for retests at public expense. Thus, it is not clear that the warning was inaccurate in this respect. In any event, if Gundersen was in fact confused about his rights and misled by the police, the burden was on him to prove this. See, e.g., Graham v. State, 633 P.2d 211, 215 (Alaska 1981) (defendant motorist has the burden of showing that he or she was in fact confused by warnings given by the police). ⁴ Cf. Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 755 P.2d 1337, 1341 (1988) (defendant must prove insufficient notice of right to independent test adversely affected his subsequent actions); accord Wimmer v. Motor Vehicles Div., 75 Or.App. 287, 706 P.2d 182, 184 (1985).

Gundersen's contention that the police officer's statement regarding the one hundred percent accuracy of the Intoximeter somehow misled him into giving up his right to an independent test is meritless. Gundersen had already indicated that he did not want an independent test before this conversation took place. Moreover, given the substantial Intoximeter reading Gundersen received and the circumstances...