Municipality of Anchorage v. Ray

• Decision Date: 18 June 1993
• Docket Number: No. A-4067,A-4067
• Citation: 854 P.2d 740
• Parties: MUNICIPALITY OF ANCHORAGE, Petitioner, v. Jeffrey L. RAY, Respondent.
• Court: Alaska Court of Appeals

Page 740

854 P.2d 740

MUNICIPALITY OF ANCHORAGE, Petitioner, v. Jeffrey L. RAY, Respondent.

No. A-4067.

Court of Appeals of Alaska.

June 18, 1993.

Richard R. Felton, Asst. Mun. Prosecutor, and Richard L. McVeigh, Mun. Atty., Anchorage, for petitioner.

Frederick T. Slone, Kasmar & Slone, Anchorage, for respondent.

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

OPINION

MANNHEIMER, Judge.

On February 9, 1991, Jeffrey L. Ray was involved in a motor vehicle accident in which a pedestrian was injured. When the police arrived, they asked Ray if he would be willing to have his blood drawn and tested for alcohol content; Ray refused. The police then took Ray into custody transported him to a hospital, and had medical personnel draw a sample of his blood without his consent. When Ray's blood was tested, it was found to contain .133 percent alcohol, over the legal limit.

Ray was charged with driving while intoxicated under the Anchorage Municipal Code, § 9.28.020. In a pre-trial motion, Ray asked the district court to suppress the results of the blood test. Ray argued that the police were obligated to ask him to submit to a breath test first, and were empowered to draw his blood only if he refused the breath test. The district court agreed with Ray and suppressed the blood test results. We granted the Municipality's petition to review the district court's ruling. We now reverse the decision of the district court.

In deciding Ray's case, we will be interpreting a trio of state statutes: AS 28.35.031(a), AS 28.35.032(a), and AS 28.35.035. At first blush, this may seem incongruous, since Ray was prosecuted under the Anchorage Municipal Code, not Title 28 of the Alaska statutes. The parties apparently litigated this case in district court on the basis of the state statutes; in fact, the appellate brief filed by the Municipality of Anchorage does not even mention the Anchorage Municipal Code. Ray's brief recognizes the distinction between state law and municipal law; nevertheless, he urges this court to treat the municipal ordinances as equivalent to the corresponding state statutes. We do so for two reasons. First, as Ray notes, the ordinances--AMC 9.28.021, AMC 9.28.022(A), and AMC 9.28.025--are quite similar to the three state statutes, although there are some differences in wording. Second, state law prohibits municipalities from promulgating traffic laws that diverge from state law. AS 28.01.010(a). Thus, we presume that the drafters of the municipal ordinances intended that the ordinances be interpreted in the same manner as the corresponding statutes.

Construction of AS 28.35.035(a)

Alaska has enacted an "implied consent" law, AS 28.35.031(a), which declares that anyone who drives a motor vehicle in the state has impliedly consented to have the police administer a breath test to determine the motorist's blood alcohol content if the motorist has been lawfully arrested for an offense committed while the motorist was driving while intoxicated. However, the authority granted to the police by this statute is conditioned by a sibling statute, AS 28.35.032(a). In 1979, that statute read:

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 [AS 28.35.031(a) ], ... a chemical test shall not be given.

(Quoted in Anchorage v. Geber, 592 P.2d 1187, 1190 (Alaska 1979)) In Geber, the Alaska Supreme Court held that if the arrested motorist refused to submit to a breath test, the police could not make the motorist submit to a blood test or any other chemical test. After exhaustively reviewing the legislative history of the 1979 versions of AS 28.35.031 and .032, the court concluded that the language "a chemical test shall not be given" was intended by the legislature to mean that no chemical test of any kind was to be given. Id. at 1191. Under Geber, if an arrested motorist declined to submit to the breath test mandated in section 031(a), that was the end of the matter.

Moreover, the Geber court interpreted AS 28.35.032(a) to bar the police from administering any chemical test other than a breath test, regardless of whether the motorist had affirmatively refused to take the breath test. The issue arose because one of the co-appellants in Geber had not refused to take a breath test until after the police had already drawn a blood sample from her. The court said:

Further comment is perhaps necessary concerning the taking of blood from [the appellant] Willis, since her refusal to take a [breath test] came after the blood sample was extracted from her body. In our view, the fact that she had not yet refused a breath test is of no significance. As we interpret the Implied Consent Statute [AS 28.35.031-032], it was intended to provide an exclusive method for obtaining direct evidence of a suspect's blood alcohol content, absent his or her express consent to the use of some other form of testing.

Geber, 592 P.2d at 1192 (emphasis in the original).

Responding to the Geber decision, the legislature amended AS 28.35.032(a) and enacted AS 28.35.035. Section 032(a) now reads:

If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test under ... AS 28.35.031(a), ... a chemical test may not be given, except as provided by AS 28.35.035.

As 28.35.035(a) provides an exception for intoxicated drivers who have injured or killed someone else:

If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle ... while intoxicated, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person's breath or blood.

This brings us to the issue presented by Ray's case. The Municipality asserts that AS 28.35.035(a) authorizes the police to test an arrested motorist's blood whenever a motor vehicle accident has occurred and someone other than the motorist has been injured in the accident. According to the Municipality, the blood test can be conducted despite the motorist's protest and without regard to whether the motorist has refused a breath test. Ray, on the other hand, asserts that section 035(a) requires the police to first seek the motorist's consent to a breath test, and only if the motorist refuses to submit to a breath test can the police conduct the more intrusive blood test.

Section 035(a) does not specify any requirement that an arrested motorist be offered a breath test first. Moreover, the concluding language of section 035(a) appears to support the Municipality's position: when an arrested motorist's drunk driving has caused injury or death, "a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person's breath or blood." However, Ray argues that these words should not be taken at face value.

Ray points out that in Bass v. Anchorage, 692 P.2d 961, 964-65 (Alaska App.1984), this court recognized that one of the main policies behind Alaska's chemical testing statutes is to prevent physical confrontations between arrestees and police officers. Relying on this policy, this court gave a narrow construction to AS 28.35.035(b), a sibling provision of the statute being litigated in this appeal. ¹

In Bass, the defendant motorist had been injured in the accident; he was conscious, but the police feared that his chest injuries would prevent him from performing a breath test. The police asked the defendant to consent to a blood test instead, but he refused. On appeal, the government argued that section 035(b) allowed a non-consensual blood test whenever there was reason to believe that the motorist, because of injury, was physically incapable of accomplishing a breath test. This court rejected the government's construction of the statute, holding instead that the statutory language "incapable of refusal" meant "incapable of manifesting refusal":

[T]he fact that it was not practical to offer Bass a breathalyzer test does not bring this case within AS 28.35.035(b). [That statute addresses] a narrow class of cases where the defendant is unconscious or otherwise incapable of manifesting his intent to refuse. In these cases[,] the police would be able to take a blood test without the person's contemporaneous consent, but without having to use any violent means to obtain the blood-alcohol test.

Bass, 692 P.2d at 965. However, the court's next two sentences are not as favorable to Ray's position:

We note that the legislature did not say in AS 28.35.035(b) that the police could take a blood alcohol test without consent as it did in AS 28.35.035(a). Rather, the legislature said that "a person who is unconscious or otherwise in a condition incapable of refusal is considered not to have withdrawn the consent provided under AS 28.35.031(a).

Id. (original emphasis in italics; added emphasis underlined). This distinction between the language of sections 035(a) and 035(b) supports the Municipality's argument that the police are authorized to take a blood sample without regard to the motorist's consent, either to the blood test or to a breath test.

Responding to the Municipality's argument that the language of AS 28.35.035(a) does not specify that police are obliged to offer a breath test first, Ray correctly points out that Alaska has rejected a strict "plain meaning" approach to statutory construction; the fact that a statute's wording is apparently clear and unambiguous does not end the search for the legislature's intent. Stephan v. State, 810 P.2d 564, 566 (Alaska App.1991). However, the more clear and unambiguous the wording of the disputed statute, the correspondingly greater burden of persuasion borne by a litigant who contends that the statute does not mean what it appears to say. University of Alaska v....