Oveson v. Municipality of Anchorage
| Citation | 574 P.2d 801 |
| Decision Date | 03 February 1978 |
| Docket Number | No. 3434,3434 |
| Parties | Walter R. OVESON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. |
| Court | Supreme Court of Alaska (US) |
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.
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
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:
5
The 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), cert. denied, 423 U.S. 836, 96 S.Ct. 60, 46 L.Ed.2d 54 (1975), we held that "substantial compliance" with the 15-minute observation period required in 7 AAC 30.020(2) is a "prima facie showing of the foundational fact necessary to establish admissibility." Wester v. State, supra, at 1184. The testing officer in Wester failed to personally observe the defendant throughout the full 15 minutes preceding the test. However, there was evidence that the arresting officer did keep the defendant under observation, rendering it highly unlikely that the defendant could have ingested anything which would have affected the test readings. In finding that evidence sufficient to validate the test results, we said:
"While we do not wish to undermine the status of the observation period as a necessary foundational fact in the introduction of breathalyzer results, we do conclude that a rigid standard of proof of this foundational fact is unnecessary." (footnote omitted) Wester v. State, supra, at 1184.
That policy is equally applicable to the case at hand.
Oveson does not contend that Audino did not gauge and properly insert the control ampul or that the test results are unreliable. He offers no evidence to show that noncompliance with 7 AAC 30.020(1) affected the test results in any manner. In fact, Oveson could have guaranteed the reliability of the results by retesting the ampuls. The ampuls are preserved and the amount of fluid and the chemical composition of the control ampul are not significantly altered by performance of the test. See Lauderdale v. State, 548 P.2d 376 (Alaska 1976); 2 Erwin, Defense of Drunk Driving Cases, § 22.03 (3rd ed. 1977).
As in Wester, the crucial concern is that the breathalyzer test be performed in a manner that assures accuracy according to the statutorily approved methods. Here the checklist was complete but for one checkmark. All other pertinent data were filled in. There was uncontroverted testimony that the step in question was performed despite the failure to check off the box representing that step. Once the trier of fact believed the evidence that the control ampul was gauged and inserted in the left-hand holder, a proper foundation was laid to find the results valid under AS 28.35.033(d). A clerical error by the test operator ought not to render the results inadmissible without a showing that the validity of the results is tainted. Were we to hold otherwise, we would be inviting a contest to find technical defects, regardless of their impact on the validity of the test results.
We hold that where there has been substantial compliance with the "Breathalyzer Operational Checklist" provision of 7 AAC 30.020(1), and that where the record demonstrates that the test was properly performed, the test results are admissible under AS 28.35.033(d).
AFFIRMED.
1 See Lauderdale v. State, 548 P.2d 376, 378-79 (Alaska 1976), and Wester v. State, 528 P.2d 1179, 1180 (Alaska 1974), both quoting from State v. Baker, 56 Wash.2d 846, 355 P.2d 806, 809 (1960), for a detailed description of the breathalyzer test.
2 The "Breathalyzer Operational Checklist" prepared for Oveson was completed as follows:
76-51673
BREATHALYZER OPERATIONAL CHECK LIST
WALTER R. OVESON 10-21-76
Name of Subject ____________________________ Date_______________
0217 23k 6620
Time (of test)_____ Blood Alcohol 0.____% Ampul Control No.______
SGT. C. AUDINO OFF. MOEN
Operator________________________ Witness _______________________...To continue reading
Request your trial
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State v. Sery
...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
...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 protection, applies a flexible sliding scale more protective of state citizens......
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Fuenning v. Superior Court In and For Maricopa County
...compliance is all that should be required. There is a line of authority to that effect. For instance, in Oveson v. Municipality of Anchorage, 574 P.2d 801 (Alaska 1978), the court ruled that test results were admissible upon a showing of "substantial compliance" with the regulations. Howeve......
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State v. Garcia, 970443-CA
...because failure "casts doubt on the accuracy of the calibration and hence on the reliability of the results"); Oveson v. Municipality of Anchorage, 574 P.2d 801, 805 (Alaska 1978) (noting mere clerical error makes presumption of validity inapplicable but does not require exclusion of test r......