Oveson v. Municipality of Anchorage, No. 3434
| Court | Supreme Court of Alaska (US) |
| Writing for the Court | Before BOOCHEVER; CONNOR |
| Citation | 574 P.2d 801 |
| Parties | Walter R. OVESON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. |
| Docket Number | No. 3434 |
| Decision Date | 03 February 1978 |
Page 801
v.
MUNICIPALITY OF ANCHORAGE, Appellee.
Rod Sisson of Abbott, Lynch, Farney & Rodey, Anchorage, for appellant.
Jerry Wertzbaugher, Municipal Prosecutor, and Richard W. Garnett III, Municipal Atty., Anchorage, for appellee.
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
Page 802
OPINION
CONNOR, Justice.
Walter R. Oveson was convicted of operating a motor vehicle while under the influence of intoxicating liquor, in violation of the Anchorage Code of Ordinances, section 9.28.020. He appeals, challenging the admissibility of the results of his breathalyzer examination.
On October 21, 1976, Oveson was involved in an automobile accident with a taxicab at a parking lot in downtown Anchorage. Patrolman S. Moen responded to the accident and observed that Oveson was having difficulty speaking and maintaining his balance. He also noticed a strong odor of liquor about Oveson.
Moen arrested Oveson and transported him to the state jail facility where Sergeant Charles Audino administered a breathalyzer test. 1 Audino prepared a "Breathalyzer Operational Checklist" for the test administration. The checklist is a registry of the steps to be performed in the proper administration of the breathalyzer examination. After each stage is accomplished, the test administrator is to mark a check in the box next to that step. 2
Page 803
Audino checked off all of the steps except step number three which reads "Gauge TEST AMPUL and insert in left-hand holder." This ampul is the control ampul for the examination. Its color remains constant, and is used to compare the color change in the right-hand ampul. It is important to gauge the ampuls because there must be a minimum of three milliliters of solution in each or the resultant reading will be inaccurately high. 3
The breathalyzer test determined Oveson's blood alcohol level to be .23 percent.
Oveson moved to suppress the breathalyzer results for lack of a completed checklist. At the suppression hearing, Audino was qualified as an expert in breathalyzer administration. He testified that when he administered the test to Oveson, he executed all the requisite steps of the checklist, including gauging the test ampul and inserting it in the left-hand holder. The failure to check off the box representing that step was an oversight.
The district court denied Oveson's motion. He then entered a plea of nolo contendere pursuant to an agreement with the municipal attorney which preserved his right to appeal the denial of the suppression motion. 4 The superior court affirmed the conviction.
The sole issue on appeal is whether the failure to complete the "Breathalyzer Operational Checklist" renders the breathalyzer results inadmissible. AS 28.35.033(d) provides:
"(d) To be considered valid under the provisions of this section the chemical analysis of the person's breath shall have been performed according to methods approved by the Department of Health and Social Services. The Department of Health and Social Services is authorized to approve satisfactory techniques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis. If it is established at trial that a chemical analysis of breath was performed according to approved methods by a person trained according to techniques, methods and standards of training approved by the Department of Health and Social Services, there is a presumption that the test results
Page 804
are valid and further foundation for introduction of the evidence is unnecessary." 5The approved methods of administering the breathalyzer, established by the Department of Health and Social Services in accord with AS 28.35.033(d), are set forth in 7 Alaska Administrative Code, section 30.020. 6 Completion of the "Breathalyzer Operational Checklist" is the first of thirteen procedures established for proper test administration. 7 AAC 30.020(1).
Oveson urges that because the language of AS 28.35.033(d) and 7 AAC 30.020 is mandatory, noncompliance of any degree must result in the suppression of the test results. We do not dispute Oveson's contention that completion of the checklist is required under AS 28.35.033(d). We disagree, however, that absolute compliance in completing the checklist is required in order to render the test results valid and admissible in evidence.
The "Breathalyzer Operational Checklist" is a simplified method of establishing the admissibility of the evidence. It furnishes the court with a clear record that all the substantive test procedures were accomplished, thereby minimizing the possibilities of human error and failed memory. This then warrants the AS 28.35.033(d) presumption that the results are valid without any additional showing of foundational facts. If the checklist is not complete, the presumption of validity is inapplicable. But it does not necessarily follow that the test results are, therefore, automatically inadmissible.
In Wester v. State, 528 P.2d 1179 (Alaska 1974),...
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State v. Sery, No. 860333-CA
...of the plea if defendant's arguments in favor of suppression are accepted by the appellate court. See Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978) (approving expressly conditional nolo contendere plea if resolution of reserved issue on appeal is dispositive, ref......
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Saldana v. State, 90-24
...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 protection, applies a flexible sliding scale more protective of state citizens than is aff......
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Quick v. State, s. 3298
...allow introduction of his codefendant's confession would not be dispositive of the entire case. See Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978). This, together with the other considerations that I have mentioned, convinces me that there is no reason to reverse ......
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Reeves v. State, 3161
...case," since Reeves' plea was entered well before the imposition of that additional requirement in Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978). Review of the issue reserved on appeal is thus appropriate under Cooksey v. State, 524 P.2d 1251 (Alaska 1974). See Go......
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State v. Sery, No. 860333-CA
...of the plea if defendant's arguments in favor of suppression are accepted by the appellate court. See Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978) (approving expressly conditional nolo contendere plea if resolution of reserved issue on appeal is dispositive, ref......
-
Saldana v. State, 90-24
...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 protection, applies a flexible sliding scale more protective of state citizens than is aff......
-
Quick v. State, s. 3298
...allow introduction of his codefendant's confession would not be dispositive of the entire case. See Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n. 4 (Alaska 1978). This, together with the other considerations that I have mentioned, convinces me that there is no reason to reverse ......
-
Reeves v. State, 3161
...case," since Reeves' plea was entered well before the imposition of that additional requirement in Oveson v. Municipality of Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978). Review of the issue reserved on appeal is thus appropriate under Cooksey v. State, 524 P.2d 1251 (Alaska 1974). See Go......