Municipality of Anchorage v. Serrano, s. 6447

• Decision Date: 06 August 1982
• Docket Number: 6724 and 6725,Nos. 6447,s. 6447
• Citation: 649 P.2d 256
• Parties: MUNICIPALITY OF ANCHORAGE, Petitioner, v. Gilbert SERRANO, Alvin Aspelund, Dennis R. Dean, Thomas F. Criego, David K. Watson, Otis Trammell, and Richard Butler, Respondents. Kay CISNEROS, Kenneth Scollan, and Kenneth Greene, Petitioners, v. STATE of Alaska, Respondent. Beverly BRUNDAGE, Kurt E. Jenkins, James Klemenston, Yong Kim, Charles Olson, and Jeff Jansen, Petitioners, v. STATE of Alaska, Respondent.
• Court: Alaska Court of Appeals

Page 256

649 P.2d 256

MUNICIPALITY OF ANCHORAGE, Petitioner, v. Gilbert SERRANO, Alvin Aspelund, Dennis R. Dean, Thomas F.

Criego, David K. Watson, Otis Trammell, and

Richard Butler, Respondents.

Kay CISNEROS, Kenneth Scollan, and Kenneth Greene, Petitioners, v. STATE of Alaska, Respondent.

Beverly BRUNDAGE, Kurt E. Jenkins, James Klemenston, Yong

Kim, Charles Olson, and Jeff Jansen, Petitioners, v. STATE of Alaska, Respondent.

Nos. 6447, 6724 and 6725.

Court of Appeals of Alaska.

Aug. 6, 1982.

Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for Municipality of Anchorage.

Marc W. June, Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Timothy H. Stearns, Kevin F. McCoy, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for Gilbert Serrano, et al.

Timothy H. Stearns, Anchorage, for Kay Cisneros, et al.

Susan Orlansky, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for Beverly Brundage, et al.

Martha Beckwith, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for State of Alaska.

Before BRYNER, C. J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

Petitioners Kay Cisneros, et al., were arrested for driving while intoxicated under AS 28.35.030. ¹ Pursuant to Alaska's implied consent law, AS 28.35.031, ² each submitted to a breathalyzer test. Respondents Gilbert Serrano, et al., were arrested for driving while intoxicated under AMC 9.28.020. ³ Pursuant to Anchorage's implied consent ordinance, AMC 9.28.021, ⁴ they too submitted to breathalyzer tests. In each case, the test result was 0.10 grams or more of alcohol per 210 liters of breath.

The cases were consolidated before District Court Judge Cutler. A motion was filed to suppress the breathalyzer tests in each of the cases on the grounds that the failure to preserve a breath sample at the time of testing violated the defendants' due process right to confront and cross-examine the evidence against them. Following a lengthy evidentiary hearing, Judge Cutler granted the suppression motion on July 31, 1981. The state and city requested reconsideration and new evidence was presented to the court. On September 25, 1981, Judge Cutler vacated her order suppressing the breathalyzer results, finding that it was not possible for breath samples to have been preserved at the relevant times. A third evidentiary hearing was held and Judge Cutler reinstated her suppression order after having been convinced that breath samples could have been saved. The municipality petitioned for review from this order and we granted the petition for review.

Meanwhile, the State of Alaska petitioned the superior court for review. Judge Carlson reversed Judge Cutler's order, ruling as a matter of law that due process does not require the preservation of breath samples. The issue has now been placed before this court by means of petitions for hearing filed by Kay Cisneros, et al. and Beverly Brundage, et al. We granted the petitions for hearing.

Having considered the issue raised by these consolidated petitions, we conclude that the due process clause of the Alaska Constitution requires the prosecution to make reasonable efforts to preserve a breath sample or to take other steps to allow a defendant to verify the results of the breathalyzer test. ⁵ Alaska Const. art. 1, § 7. Accordingly, we affirm the suppression order of the district court and reverse the order of the superior court.

We believe that the result in the instant case turns on the interpretation of Lauderdale v. State, 548 P.2d 376 (Alaska 1976). In that case the Alaska Supreme Court required that used ampoules from the breathalyzer test be preserved for the defendant's examination. The court held:

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. The district court was correct in suppressing the evidence of the breathalyzer test on due process grounds.

Id. at 381 (footnotes omitted). ⁶

The state and municipality have pointed out that while Lauderdale involved the preservation of evidence already in existence, the instant case poses a situation in which the evidence must first be gathered prior to preservation. We do not believe that Lauderdale can be restricted to merely require the state to preserve existing evidence. ⁷ It appears to us that there are instances when due process can require additional testing or investigation, such as where the additional evidence so obtained is of sufficient materiality and where the cost and effort involved in obtaining it are reasonable. See Mallott v. State, 608 P.2d 737, 743 n.5 (Alaska 1980) (law enforcement agencies advised that as part of their duty to preserve evidence it is incumbent upon them to tape record questioning of the defendant where feasible).

We conclude 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. The evidence presented at the hearings which were held in these cases indicated that a breath sample could be highly material. The evidence presented below established that the operation of the breathalyzer machine is dependent upon the proper performance of critical functions by the operator. A breath sample would help to provide a check on possible operator error and would provide a means of assuring that the breathalyzer mechanical components were not malfunctioning. A breath sample would also provide a means of determining whether the test result was in any way affected by the breathalyzer's inherent inaccuracy. ⁸ By making it an offense to operate a car with a certain level of blood or breath alcohol, the current state statute and the city ordinance both place great emphasis on the breath tests. The ability of the defendant to "cross-examine" these tests is critical to his case and to the integrity of the criminal justice system.

Further, we do not believe that a breath sample preservation requirement would place an undue burden upon law enforcement officials. Although the state and municipality argued that a suitable system for the preservation of samples of defendants' breath could not be accomplished at reasonable cost and with sufficient accuracy, we conclude that the defendants in these cases have shown that the technology does exist to set up a reasonable system for preserving breath samples. We note that Colorado, Arizona, and Vermont require breath samples to be preserved for defendants. Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979); Garcia v. District Court, 197 Colo. 38, 589 P.2d 924 (1979); Vt.Stat.Ann. tit. 23, § 1203(a) (1981). The Garcia court expressly stated that its decision was based in part on a record "replete with evidence that a sample of the defendant's breath could have been preserved inexpensively and expediently." 589 P.2d at 928. It is noteworthy that the two state courts which have ruled against a duty to preserve a breath sample did not conclude that the preservation of breath samples was too expensive or that testing of these samples would be inaccurate. In State v. Young, 228 Kan. 355, 614 P.2d 441, 442 (1980), the court was faced with a stipulation of the parties and a finding by the trial court that there was "no substantial cost to the State of Kansas by way of time or money to make a sample of breath available to the defendant when breath samples are taken for alcohol testing...." The Kansas Supreme Court did not reject this finding but concluded that under the Kansas statutes, preservation of a second breath sample was not required. The court in People v. Miller, 52 Cal.Rptr. 666, 125 Cal.Rptr. 341 (1975), likewise did not conclude that saving a second breath sample was impractical. The court simply ruled that although the prosecution had a duty to preserve evidence which was in existence, it did not have a duty to do additional testing to create additional evidence.

Finally, we note that neither of the judges who considered this question in the cases at bar concluded that imposing a duty of preserving a breath sample would be unreasonably expensive or infeasible. After hearing extensive evidence, District Court Judge Cutler concluded that there are acceptable, inexpensive methods available which could be used to preserve a breath sample for the defendant. Superior Court Judge Carlson reversed Judge Cutler's ruling, but specifically did not reach the question of whether it was economically feasible to preserve a breath sample. ⁹

We have independently reviewed the record of the extensive testimony which was presented below, and conclude that the technology is available to preserve breath samples at reasonable cost. Given the importance of the breath tests in driving while intoxicated cases, we conclude that due process does require the prosecution to make reasonable efforts to preserve a breath sample in those cases in which they wish to admit the results of a breath test.

Our decision in this case should be applied mainly prospectively, since there has been considerable reasonable reliance on the prior standard of law by law enforcement officials. See State v. Glass, 596 P.2d 10, 12 (Alaska 1979); Lauderdale v. State, 548 P.2d at 383; Rutherford v. State, 486 P.2d...