Ward v. State, S-2078

• Decision Date: 17 June 1988
• Docket Number: No. S-2078,S-2078
• Citation: 758 P.2d 87
• Parties: Joe Q. WARD, Petitioner, v. STATE of Alaska, Respondent.
• Court: Alaska Supreme Court

Page 87

758 P.2d 87

Joe Q. WARD, Petitioner, v. STATE of Alaska, Respondent.

No. S-2078.

Supreme Court of Alaska.

June 17, 1988.

Thomas A. Flippen, II, Boyko, Davis, & Dennis, Anchorage, for petitioner.

Robert D. Bacon, Asst. Atty. Gen., Anchorage, Grace Berg Schaible, Atty. Gen., Juneau, for respondent.

Before MATTHEWS, C.J., and RABINOWITZ, BURKE, COMPTON and MOORE, JJ.

OPINION

RABINOWITZ, Justice.

This petition for hearing presents two questions. First, did the district court err in denying Ward's motion to suppress the results of his Intoximeter test when State Troopers refused his request to have an independent blood test performed at Alaska Native Medical Center, as provided in AS 28.35.033(e)? Second, was Ward denied his right to a unanimous jury verdict when the district court instructed the jury that it could return a guilty verdict without agreeing upon whether his guilt was established by proof that he drove while under the influence of intoxicating liquor or by proof that his breath alcohol level exceeded .10 grams of alcohol per 210 liters of breath?

I. FACTUAL CONTEXT.

Joe Q. Ward was arrested for driving under the influence of alcohol. He was taken to State Trooper headquarters where he performed certain field sobriety tests and submitted to an Intoximeter test. The Intoximeter showed that Ward had .225 grams of alcohol per 210 liters of breath.

Before Ward took the breath test, he was belching. The arresting trooper warned Ward to stop belching and advised him that if he continued to belch, a charge of refusing the breath test would be filed against him. The trooper then waited twenty minutes--the standard observation period ¹ before administering the Intoximeter test. Ward contends that he continued to belch during that period, but that he was able to mask his belching. ² At the conclusion of the observation period, Ward provided a breath sample for analysis. The sample was captured in a magnesium perchlorate tube and preserved, as required by Municipality of Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982).

Ward, who claims he was surprised by the Intoximeter reading of .225, was then advised of his right to obtain an independent blood test by a person or entity of his choosing. Ward accepted the opportunity, and requested to be taken to Alaska Native Medical Center (ANMC). En route to ANMC, the trooper was instructed by radio not to honor Ward's request because the state did not have a contract for blood testing with ANMC. Ward declined an offer of transportation to Providence or Humana Hospitals, with which the state had contracts. No independent test was conducted to determine the alcohol content of Ward's blood.

II. PROCEDURAL CONTEXT.

Ward made a pretrial motion to suppress the results of the Intoximeter based on the Troopers' violation of AS 28.35.033(e). In support of the motion Ward submitted an affidavit from the Director of Ambulatory Care at ANMC, who stated that qualified personnel had been available at the time of Ward's request to extract a blood sample and to test it for alcohol content. The Director further advised that the test results would have been available in approximately one hour and that ANMC would have provided service to Ward. ³

Ward argued in his motion to suppress the results of the Intoximeter test that such an independent blood test was of critical importance because the breath sample that had been analyzed, and then preserved in the perchlorate tube, had been contaminated by his belching. Ward further contended that only by testing his blood alcohol content could he show that the Intoximeter analysis of his breath alcohol level was artificially high due to belching. The Troopers' prevention of his attempt to obtain a blood test at ANMC, argued Ward, deprived him of his due process right "to conduct an independent test to assure the accuracy of the breathalyzer results." Serrano, 649 P.2d at 258, n. 5.

The district court, assuming as true the facts set forth by Ward, denied the motion to suppress. The district court held that "[t]he saving of the defendant's breath by means of a perchloride [sic] tube is sufficient to satisfy the dictates of Cisneros v. State, 649 P.2d 256 (Alaska App. 1982) [companion case to Serrano ]," and "thus there is no constitutional violation." The district court also found that "[t]he facts do demonstrate a violation of AS 28.35.033(4)(e). [sic] However, the remedy for such a violation is not suppression of the evidence." ⁴

The case was tried before Judge Martha Beckwith. The district court denied Ward's request for a jury instruction on unanimity that would have required the jury unanimously to find him guilty of driving under the influence of alcohol in violation of AS 28.35.030(a)(1) or of driving with a blood alcohol level of .10 or more. Rather, the district court instructed the jury: "You must be unanimous in your verdict. You need not be unanimous, however, on which of the two theories the state has proven." Ward was convicted by the jury in a general verdict that found him "guilty as charged in the complaint."

Ward appealed to the court of appeals, which affirmed his conviction. Ward v. State, 733 P.2d 625 (Alaska App.1987). The court of appeals held that Serrano required "breath sample preservation or reasonable efforts to assist in obtaining a blood test, but not both." Id. at 626 (emphasis in original). "Ward's assignment of error regarding the blood test" was thus not a question "of constitutional significance, but one of statutory interpretation." Id. The court "refuse[d] to read ... a requirement into the statute" that the Troopers had an obligation to transport Ward "to a doctor or hospital of his own choice." Id. at 627 (emphasis in original).

The court of appeals also ruled against Ward on the issue of jury unanimity. Relying on State v. James, 698 P.2d 1161, 1165 (Alaska 1985), in which this court held that the jury need "only ... be unanimous in its conclusion that the defendant committed a single offense in the [first-degree assault] statute," the court of appeals found no error in Judge Beckwith's instruction. Ward, 733 P.2d at 627. We granted Ward's petition from both of these affirmances by the court of appeals.

III. DID THE TRIAL COURT ERR IN DENYING WARD'S MOTION TO SUPPRESS THE RESULTS OF HIS INTOXIMETER TEST?

A. Ward's Right to a Blood Test by a Facility of His Own Choice Was Denied.

Alaska Statute 28.35.033(e) states:

The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. ⁵

Therefore, Ward had the right to have a blood test performed by "a ... qualified person of [his] own choosing," i.e., by personnel at ANMC. The only reason given by the Troopers for not taking Ward to ANMC was that the state did not have a contract with ANMC. The state argues on appeal that "the statute does not require the police to provide the driver with free transportation to the chosen facility, nor does it require the police to pay for the second test." See also Ward, 733 P.2d at 627. However, these concerns are not at issue in the instant case. Here the Troopers voluntarily offered to take Ward to the facility of his choice, began to drive him there, and then, en route, decided not to take him to ANMC because of the lack of a contract with the state. Furthermore, ANMC's Director of Ambulatory Care stated in his affidavit that the blood test would have been performed at Ward's request, and he did not dispute Ward's claim that it would have been performed at no cost to Ward or the state.

The statute says nothing about contractual relationships between the state and qualified facilities for blood tests. It states only that the arrestee has the right to an additional test by a person of his or her own choosing. The Troopers denied Ward the right to obtain such a test after they had agreed to transport him to ANMC. This was a violation of Ward's right under AS 28.35.033(e).

B. Because Ward Was Denied the Opportunity to Obtain a Blood Test by the Facility of His Choice the Results of His Breathalyzer Test Must be Excluded.

The applicable statute provides a remedy for a defendant's inability to obtain an independent blood test:

The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence.

AS 28.35.033(e).

The state argues that the statutory remedy is the exclusive one available to Ward. In a case such as the instant one, however, such a remedy is inadequate to protect the interests of the defendant. Thus, we must consider, as we did previously in Copelin v. State, 659 P.2d 1206, 1214 (Alaska 1983), whether "invocation of the exclusionary rule is appropriate ... even though there is no provision for doing so in the statute...." We conclude that where, as here, the police deprive a defendant of his or her statutory right to an independent blood test, the results of the defendant's breath test must be excluded. ⁶

The analysis we employed in Copelin is equally applicable, and equally compelling, here. "The breathalyzer test ... provides time for reflection before action and ... consists of intentional efforts by the police to obtain evidence." Copelin, 659 P.2d at 1214. Because the police in the instant...