State v. Blank

• Decision Date: 30 April 2004
• Docket Number: No. S-9721.,S-9721.
• Citation: 90 P.3d 156
• Parties: STATE of Alaska, Petitioner, v. Laura A. BLANK, Respondent.
• Court: Alaska Supreme Court

90 P.3d 156

STATE of Alaska, Petitioner, v. Laura A. BLANK, Respondent.

No. S-9721.

Supreme Court of Alaska.

April 30, 2004.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Petitioner.

Christine S. Schleuss, Anchorage, for Respondent.

Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

A state trooper conducted a warrantless search of a driver's breath following a fatal accident. Was this potentially a valid exigent circumstances search even though the driver was not arrested substantially contemporaneously with the search? We first hold that an arrest is not a prerequisite to a valid exigent circumstances warrantless breath test. Next, we construe AS 28.35.031(g) as satisfying minimal constitutional requirements for warrantless searches when exigent circumstances exist. We also hold that the trooper had probable cause to arrest the driver for negligent homicide or manslaughter and probable cause to believe that a breath test would produce relevant evidence of those crimes. But because neither the superior court nor the court of appeals reached the issue whether exigent circumstances justified this search, we remand so the superior court can make this determination.

II. FACTS AND PROCEEDINGS

A vehicle driven by Laura Blank fatally struck Pennye McDowell as she walked with a companion on a residential street near Palmer on September 26, 1994.¹ Blank and her two daughters were driving home from her friend's house. Blank did not stop.²

Blank's husband, Greg Blank, arrived at the accident scene while Alaska state troopers were investigating.³ Greg Blank told Trooper Bill Tyler that his wife might have been involved in the accident.⁴ Trooper Tyler and two other officers followed Greg back to the Blank residence.⁵ There, Trooper Tyler interviewed Laura Blank in his patrol car.⁶ Trooper Tyler did not place Blank under arrest.⁷

Blank told Trooper Tyler during the interview that she had consumed two beers at her friend's house before driving home.⁸ Without attempting to obtain a search warrant, Trooper Tyler asked Blank to take a preliminary breath test.⁹ Blank submitted to the test. The test registered a blood-alcohol content of .082%.¹⁰ Blank also agreed to accompany Trooper Tyler to a hospital for a blood test, but she refused consent at the hospital.¹¹ No blood sample was drawn.

The grand jury indicted Blank in December 1994 for manslaughter¹² and leaving the scene of an accident.¹³ The superior court denied Blank's motion to suppress evidence of the preliminary breath test. The superior court held that the test was authorized by AS 28.35.031(g), which provides that "a law enforcement officer who has reasonable grounds to believe that [a] person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person" may administer blood or breath alcohol tests of the person based on the individual's implied consent. Following a mistrial, a jury convicted Blank on both counts of the indictment.¹⁴

Blank appealed, and the court of appeals reversed.¹⁵ It concluded that AS 28.35.031(g) violates the search and seizure provisions of the federal and state constitutions because "the statute allows the officer to administer the test(s) without any individualized suspicion that the driver was impaired, whether by alcohol or drugs, or even any evidence that the driver or operator caused the accident."¹⁶ The court of appeals also ruled that the preliminary breath test did not fall within the exigent circumstances exception to the warrant requirement, because Blank was not placed under arrest, as required by Layland v. State,¹⁷ before or substantially contemporaneously with the search.¹⁸

The State of Alaska filed a petition for hearing with this court, and Blank filed a cross-petition. We denied Blank's cross-petition, but granted the state's petition as to three issues: (1) does AS 28.35.031(g) authorize a reasonable search? (2) can AS 28.35.031(g) be given a saving construction? and (3) was the preliminary breath test administered to Blank justified under the exigent circumstances exception to the warrant requirement?

III. DISCUSSION

We hold that Trooper Tyler's warrantless search of Blank's breath was constitutional if it was a valid exigent circumstances search.¹⁹ First, we agree in Part III.A with the state that Layland should be overruled insofar as it required a substantially contemporaneous arrest to justify an exigent circumstances search of a driver's blood alcohol content.

Having overruled Layland, we consider in Part III.B whether AS 28.35.031(g), as applied to Blank's warrantless search, should be read to incorporate the constitutional requirements for a valid exigent circumstances search. We have frequently held that this statute provides the exclusive authority for administering a police-initiated chemical sobriety test to obtain evidence of acts allegedly committed by a driver while operating a motor vehicle.²⁰ In other words, a search must satisfy the statute to be valid. We have consequently held that evidence obtained from an unauthorized chemical test should be suppressed, even if the test was otherwise constitutional.²¹ But that does not mean that a search that satisfies the statute also automatically satisfies the constitution. Accordingly, we must consider whether AS 28.35.031(g) may be given a narrowing construction that avoids constitutional problems when a breath test is administered without a search warrant.

Finally, in Part III.C, we remand so the superior court can determine whether exigent circumstances justified the warrantless search of Blank's breath.

A. Schmerber v. California Does Not Require a Contemporaneous Arrest.

In Layland, a state trooper obtained a blood sample without obtaining a search warrant or the driver's consent following an accident in which another person was killed.²² Although the trooper had probable cause to arrest the driver for negligent homicide at the time of the search, he did not.²³ We considered and rejected four exceptions to the warrant requirement that might have justified the warrantless search.²⁴ Regarding the exigent circumstances exception, we interpreted the United States Supreme Court's decision in Schmerber v. California to permit warrantless blood draws only in connection with a substantially contemporaneous arrest.²⁵

The Court held in Schmerber that the warrantless taking of blood from a driver arrested for driving while intoxicated was reasonable because (1) the officer had probable cause to arrest and to believe that a blood alcohol test would produce evidence of the crime; (2) the officer might reasonably have believed he was confronted with an emergency in which the delay necessary to obtain a warrant might result in the destruction of evidence; and (3) the blood draw was performed in a reasonable manner.²⁶ The Schmerber Court concluded that "the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest."²⁷ In Layland, we interpreted Schmerber to require a substantially contemporaneous arrest in addition to the three requirements Schmerber explicitly discussed.

The court of appeals held that Trooper Tyler's search of Blank's breath could not be justified under the exigent circumstances exception because Blank was not placed under arrest before or substantially contemporaneously with the search.²⁸ Although the court of appeals followed Layland, as it was obliged to do, it cited and discussed cases and treatises rejecting the view that Schmerber requires a contemporaneous arrest to justify an exigent circumstances search of a driver's blood-alcohol content.²⁹

It is not necessary for us to recapitulate the court of appeals's helpful presentation of these authorities. Layland attempted to predict the direction of federal law following Schmerber, but we are convinced that subsequent cases have proved our prediction to have been inaccurate. It is sufficient to quote United States v. Chapel, in which the United States Court of Appeals for the Ninth Circuit sitting en banc reversed its own earlier precedent interpreting Schmerber to impose an arrest requirement:

We now know from the Supreme Court's reasoning in a case decided after Harvey that the seizure of blood in Schmerber "fell within the exigent circumstances exception to the warrant requirement." Winston v. Lee, 470 U.S. 753, 759, [105 S.Ct. 1611, 84 L.Ed.2d 662] (1985). Seizures of evidence based on exigent circumstances do not, of course have to be accompanied by an arrest.... Accordingly, an arrest is not essential to support the intrusion in the absence of a warrant, so long as the three explicit Schmerber requirements are met. Thus, the interpretation of Schmerber that formed the basis of our decision in Harvey, though plausible at the time, is no longer sustainable in light of Winston. Harvey's arrest requirement therefore cannot stand.³⁰

We agree with Chapel's reasoning, and overrule Layland to the extent it required an arrest to justify an exigent circumstances search of a driver's blood alcohol content. Trooper Tyler's search of Blank's breath is therefore constitutional if the three explicit Schmerber requirements are satisfied: probable cause, exigent circumstances, and reasonable procedures.

B. We Read AS 28.35.031(g), as It Applies to Laura Blank, To Incorporate the Exigent Circumstances Standard for Warrantless Searches.

The superior court upheld the search of Laura Blank's breath under AS 28.35.031(g). This statute authorizes "a law enforcement officer who has reasonable grounds to believe that [a] person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to...