Wester v. State, 2159

CourtSupreme Court of Alaska (US)
Writing for the CourtBefore RABINOWITZ; BOOCHEVER
Citation528 P.2d 1179
PartiesWilliam C. WESTER, Appellant, v. STATE of Alaska, Appellee.
Docket NumberNo. 2159,2159
Decision Date06 December 1974

Page 1179

528 P.2d 1179
William C. WESTER, Appellant,
STATE of Alaska, Appellee.
No. 2159.
Supreme Court of Alaska.
Dec. 6, 1974.

Hal R. Horton, Anchorage, for appellant.

Stephen G. Dunning, Asst. Dist. Atty., Joseph Balfe, Dist. Atty., Anchorage, Norman Gorsuch, Atty. Gen., Juneau, for appellee.




Based on the manner in which evidence of a breathalyzer test was presented and the sufficiency of that evidence, Wester here challenges his conviction for driving

Page 1180

while under the influence of an intoxicating beverage. He was operating a motor vehicle in a parking lot between Fifth and Sixth Avenues at Fairbanks Street in Anchorage shortly after midnight on April 27, 1972. In an apparent attempt to free the automobile from loose gravel, appellant was rocking it back and forth.

The rocking was observed by Officer John P. Wojciechowski who investigated and found Wester had a strong odor of intoxicating beverage on his breath, glassy eyes and seemed to stumble as he emerged from the vehicle.

After field sobriety tests (finger-to-nose and balance-on-one-foot) were administered, Wester was arrested and charged under AS 28.35.030 for operating a motor vehicle while under the influence of intoxicating beverage. Subsequent to the arrest, he was taken to the police station and a breathalyzer test was given.

The test is well described by the Washington Supreme Court in State v. Baker 1 as follows:

The breathalyzer is a machine designed to measure the amount of alcohol in the alveolar breath and is based upon the principle that the ratio between the amount of alcohol in the blood and the amount in the alveolar breath from the lungs is a constant 2100 to 1. In other words, the machine analyzes a sample of breath to determine the alcoholic content of the blood. . . .

To operate the machine, the subject blows into the machine through a mouthpiece until he has emptied his lungs in one breath. The machine is so designed that it traps only the last 52 1/2 cubic centimeters of air that has been blown into it. This air is then forced, by weight of a piston, through a test ampoule containing a solution of sulphuric acid and potassium dichromate. This test solution has a yellow hue to it. As the breath sample bubbles through the test solution, the sulphuric acid extracts the alcohol, if any, therefrom, and the potassium dichromate then changes the alcohol to acetic acid, thereby causing the solution to lose some of its original yellow color. The greater the alcoholic content of the breath sample, the greater will be the loss in color of the test solution. By causing a light to pass through the test ampoule and through a standard ampoule containing the same chemical solution as the test ampoule (but through which no breath sample has passed), the amount of the change in color can be measured by photoelectric cells which are connected to a galvanometer. By balancing the galvanometer, a reading can be obtained from a gauge which has been calibrated in terms of percentage of alcohol in the blood.

The jury trial in the District Court, Third Judicial District, resulted in a verdict of guilty as charged. Final sentencing and judgment were entered on May 24, 1973. Appeal was filed and the superior court affirmed on February 1, 1974. Wester thereafter filed a timely appeal to this court, focusing upon three essential steps in maintaining that the breathalyzer test results were inadmissible: (1) the proper calibration of the breathalyzer machine, (2) the certification of the ampules, and (3) the proper administration of the test.



Lt. Duley, who conducted the breathalyzer test of Wester, appeared as a witness for the state, but the state did not produce as witnesses the individuals who calibrated the machine and who tested sample ampules. Wester urges that personal testimony regarding the calibration and the certification of ampules is needed to establish the foundational basis for admission into evidence of the breathalyzer results. The highly technical nature of the data, he contends, necessitates personal testimony. Here Dr. C. D. King, the laboratory technician

Page 1181

at the Department of Public Safety, had examined ten ampules bearing the same lot number as that of the ampule used in Wester's examination and certified as to their accuracy. Officer Kohlhase had performed the calibration tests on the particular breathalyzer machine used here. According to Kohlhase's certificate, the calibration tests indicated no deviation from the normal.

The trial court admitted into evidence certified documents including the two authenticated copies of the testing certificates under the official records exception to the hearsay rule. The reliability and trustworthiness of official documents and also the desire to keep officials from having to testify personally in every instance have generally been established as the policies underlying this hearsay exception. 2 In its ruling, the trial court relied on Alaska R.Civ.P. 44(b). 3

Wester maintains that the reliability of the breathalyzer or ampules may not be established by certified documents. In supporting his contention that the proper working order of the machine and chemical mixture of the ampules require very strict proof, Wester cites early cases 4 which evinced an apparent skepticism toward the use of an unfamiliar and technical device. 5 The reliability of the breathalyzer has enjoyed increasing acceptance, 6 however, and chapter 30 of title 7 of the Alaska Administrative Code authorizes and approves the use of the breathalyzer in this state. The Alaska Legislature, furthermore, has specified the foundational facts necessary for the admissibility of a chemical analysis of breath in AS 28.35.033(d). 7 The statute, however, does not specify the method of proof of the foundational facts, which is controlled by the applicable rules of evidence. In this case, Alaska R.Civ.P.

Page 1182

44(b) affords a method of proving the calibration of the breathalyzer machine and the certification of the ampules.

Defense counsel 7A could have inspected the official records in question prior to trial, and if she wished to challenge their accuracy, she could have taken the deposition of the calibrator and the chemist or called them as witnesses at the trial. She probably could also have obtained samples of ampules bearing the same lot number and have had them tested by her own expert. 8

Wester contends that AS 28.35.033(d) demands rigid compliance with the methods of breathalyzer examination approved by the Department of Health and Social Services. To buttress his claim of the necessity of strict proof of foundational facts, appellant adverts to Estes v. State. 9 In that case it was held that a letter written to the police department by the Chief of the Bureau of Identification and Records-stating that the examination of the defendant's blood showed an alcohol content indicating intoxication-and certification of the report by the Assistant Chief of the Bureau of Identification and Records of the Department of Public Safety was inadmissible into evidence over a hearsay objection. It has been argued, however, 10 that Estes is illustrative of the mid-1950's cases in which scientific data was viewed askance by the courts and subjected to rigorous demands of proof. The increasing reliance upon and the increasing reliability of scientific devices deflate the status of cases such as Estes, 11 insofar as laboratory findings of fact are concerned. The opinion expressed in the Estes report as to the defendant's intoxication, however, was not a finding of fact justifying the admissibility of official records, and to that extent we would agree with the result in that case. The distinction as to the type of record admissible under Rule 44(b) is illustrated by our decision in Menard v. Acevedo, 418 P.2d 766 (Alaska 1966). In that ruling we held as inadmissible into evidence, in a civil action arising out of a motor vehicle accident, the written report made by an investigating state police officer concerning the accident. That case falls squarely in the mainstream of decisions which have held investigation and accident reports inadmissible. In Menard we relied on a statutory proscription 12 bolstered by the general policy that accident reports are often colored by an officer's exercise of judgment and discretion, and many times incorporate opinions and conclusions which may be gathered from random second-hand sources. 13 The documents of King and Kohlhase, however, are clearly not subject to these objections.

More pertinent to the admissibility of the authenticated copies of the certified documents of King and Kohlhase than the cases cited by Wester is the decision of the Oregon Supreme Court in State v.

Page 1183

Woodward 14 wherein the sole assignment of error on appeal to the Oregon Supreme Court was the admission into evidence of a certified copy of an official record of the Oregon State Board of Health. The objection was based upon hearsay grounds, but the court held the evidence admissible as showing the state's compliance with applicable regulations in regard to the administration of the alcohol breath testing equipment there employed. 15

The decision was echoed in State v. Coffman 16 wherein the court viewed Woodward as holding that:

(A) certificate that a certain breathalyzer machine had been tested and found accurate could be received in evidence as an exception to the hearsay rule. 17

Over a hearsay objection that the particular ampule used did not...

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