Gundersen v. Municipality of Anchorage, S-3219

Citation792 P.2d 673
Decision Date15 June 1990
Docket NumberNo. S-3219,S-3219
PartiesDale M. GUNDERSEN, Petitioner, v. MUNICIPALITY OF ANCHORAGE, Respondent.
CourtSupreme Court of Alaska (US)

William Grant Callow, Anchorage, for petitioner.

Elaine Vondrasek, Asst. Mun. Prosecutor, and Richard D. Kibby, Mun. Atty., Anchorage, for respondent.

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

OPINION

MOORE, Justice.

This case involves the scope of a person's due process right to challenge the result of a breath test that the police administer after the person is arrested for driving while intoxicated. We have held that in order to introduce the result of the police-administered breath test in evidence, due process requires that the state preserve a sample of the defendant's breath for independent testing. The issue in this case is whether the state may satisfy a defendant's due process rights without preserving his breath sample if it provides notice of his right to an independent test and offers assistance in obtaining one. The defendant, Dale M. Gundersen, claims that the results of his breath test should have been suppressed because the notice and offer of assistance he received was constitutionally deficient. The court of appeals disagreed and affirmed his conviction. We affirm.

The essential facts of this case are not in dispute. 1 On September 10, 1986, Gundersen was arrested for driving while intoxicated in violation of Anchorage Municipal Code ("AMC") 9.28.020. At the police station, Officer David Koch of the Anchorage Police Department administered a chemical test of Gundersen's breath using the Intoximeter 3000 machine. The Intoximeter test registered a reading of .264 grams of alcohol per 210 liters of breath. No sample of Gundersen's breath was taken or preserved. After Gundersen took the Intoximeter test, Koch read him the following "Notice of Right to an Independent Test":

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.

Gundersen told Koch: "I do not want to receive the blood test" and checked the appropriate box on the notice form.

Gundersen moved to suppress the results of the Intoximeter test. The district court denied the motion. At trial, the Intoximeter test result was admitted in evidence. Gundersen was convicted of driving while intoxicated in violation of AMC 9.28.020.

Gundersen appealed the conviction to the court of appeals contending that the trial court erred in refusing to suppress the results of his Intoximeter test. Gundersen argued, in part, that the Intoximeter results should have been suppressed because the form notice that Officer Koch read to him was inadequate to satisfy both his due process right to challenge the Intoximeter results and his statutory right to an independent test under AMC 9.28.023(E). In Gundersen v. Municipality of Anchorage, 762 P.2d 104 (Alaska App.1988), the court of appeals rejected these and other arguments and affirmed Gundersen's conviction. 2 We granted Gundersen's petition for hearing to clarify the source and the scope of a defendant's due process right to challenge the result of a police-administered breath test. Gundersen does not appeal the court of appeals' rejection of his claim that the form notice violated his statutory right to an independent test under AMC 9.28.023(E). We express no opinion on this issue. 3

We first recognized a due process right to challenge the result of a police-administered breath test in Lauderdale v. State, 548 P.2d 376 (Alaska 1976). We held that due process requires that in order to introduce the breath test result, the police must give the defendant a reasonable opportunity to challenge the test result. We concluded that the police denied Lauderdale due process by failing to preserve a sample of his breath for independent testing Lauderdale is asking for the opportunity to test the reliability or credibility of the results of the breathalyzer test. He wishes to do this by a scientific analysis of some of the components of the breathalyzer machine, that is, the ampoules, which we have held may well yield scientifically reliable data bearing on his innocence or guilt of the crime with which he is charged. A denial of the right to make such analysis, that is to say, to "cross-examine" the results of the test, would be reversible error without any need for a showing of prejudice. It would be denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law.

548 P.2d at 381 (footnotes omitted). In holding that due process requires the police to preserve breath samples, we did not indicate whether we were interpreting the due process clause of the fourteenth amendment of the Federal Constitution or the due process clause of the Alaska Constitution.

The constitutional source of the holding is significant in light of the United States Supreme Court's decision in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). In Trombetta, the Court held "that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial." 467 U.S. at 491, 104 S.Ct. at 2535. The Court reasoned that a breath sample failed to meet the standard of constitutional materiality set forth in United States v. Agurs, 427 U.S. 97, 109-19, 96 S.Ct. 2392, 2400-05, 49 L.Ed.2d 342 (1976): "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." 467 U.S. at 489, 104 S.Ct. at 2534. The Court first concluded that "the chances are extremely low that preserved samples would have been exculpatory." Id. The Court considered that the high accuracy of the Intoxilyzer 4 would mean that a preserved breath sample would simply confirm the original test result "[i]n all but a tiny fraction of cases." Id. Second, even assuming that the breath sample was exculpatory, the Court found that there were readily available alternative means of demonstrating innocence. The three ways the Intoxilyzer might malfunction, faulty calibration, extraneous interference with machine measurements, and operator error, all can be proven without resort to breath samples. For example, a defendant may inspect the machine for faulty calibration, introduce evidence of factors interfering with the proper operation of the machine, and cross-examine the police officer who administered the test in order to raise doubts about whether the test was properly administered. 467 U.S. at 490, 104 S.Ct. at 2534-35. At the same time, the Court recognized that "[s]tate courts and legislatures, of course, remain free to adopt more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution." 467 U.S. at 491 n. 12, 104 S.Ct. at 2535 n. 12 (citing Lauderdale v. State, 548 P.2d 376 (Alaska 1976)).

Today, we reaffirm our holding in Lauderdale under the due process clause of the Alaska Constitution. A positive Intoximeter test result is the single most important piece of evidence against a defendant accused of driving while intoxicated. We recognize that the Intoximeter is ordinarily an accurate machine and that there are alternative methods of challenging the test result such as cross-examining the operator and inspecting the machine. However, we do not believe these opportunities to challenge the test result are necessarily sufficient given the state's coercive power to subject a person arrested for driving while intoxicated to the Intoximeter test under the implied consent statute. 5 Since a defendant must provide the state with potentially incriminating evidence at the risk of criminal penalties, we hold that due process requires that the defendant be given an opportunity to challenge the reliability of that evidence in the simplest and most effective way possible, that is, an independent test. 6

Gundersen argues that since the state failed to preserve a breath sample, his Intoximeter test result should have been suppressed. The Municipality counters that its notice and offer of assistance is a constitutionally adequate substitute for preserving breath samples under the court of appeals' decision in Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982). In Serrano, the court addressed the issue whether due process permits the state to introduce Intoximeter evidence if the police did not preserve a sample of the defendant's breath at the time of testing. The court concluded that "due process does require the state and the municipality to take reasonable steps to attempt to preserve breath samples for defendants for their independent analysis or to provide some other alternative check of the breathalyzer results." 649 P.2d at 259 (emphasis added). The court explained that "effective compliance" with AS 28.35.033(e) which establishes a defendant's right to an independent test would be one permissible alternative to preserving breath samples: 7

We believe that effective compliance with AS 28.35.033(e) would constitute an acceptable...

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5 cases
  • Green v. State
    • United States
    • Mississippi Supreme Court
    • 16 Abril 1998
    ...of Mequon v. Hess, 158 Wis.2d 500, 463 N.W.2d 687 (App.1990); Olson v. State, 698 P.2d 107 (Wyo.1985).11 See Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990) (holding that effective compliance consisting of notification of the right to independent testing is a permissible ......
  • Saldana v. State
    • United States
    • Wyoming Supreme Court
    • 28 Enero 1993
    ...Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), in following Lauderdale, 548 P.2d 376, includes Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990) and Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978). The Alaska court, in application of equal p......
  • People v. Pecoraro
    • United States
    • Illinois Supreme Court
    • 6 Febrero 1997
    ...of the due process clause of our state constitution. Ill. Const. 1970, art. I, § 2. Defendant relies on Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990), where, notwithstanding Trombetta, the Supreme Court of Alaska held that in a prosecution for driving while intoxicated,......
  • Johnson v. State ex rel. Wyo. Dep't of Transp.
    • United States
    • Wyoming Supreme Court
    • 22 Octubre 2021
    ... ... thwart Mr. Johnson's attempt to arrange for independent ... testing. See Gundersen v. Municipality of Anchorage, ... 792 P.2d 673, 677 (Alaska 1990) (where State failed to ... ...
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1 books & journal articles
  • Pre-trial preparation
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • 31 Marzo 2022
    ...does not have a constitutional right to preserve a breath sample for confirmatory testing. See Gundersen v. Municipality of Anchorage , 792 P.2d 673 (Alaska 1990) (notifying a drunk driving arrestee of right to independent test is a constitutionally acceptable substitute for sample preserva......

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