Alaska DUI Evidence: Chemical Testing

Perhaps the most significant aspect of an Alaska DUI case are the chemical tests administered by the police upon a suspect's arrest. In Alaska, samples of a DUI suspect's breath, blood, and/or urine may be tested for the presence of alcohol and/or controlled substances. This section explains the three chemical tests used in Alaska. The police have the discretion of which test they may request. There is no right to refuse a chemical test in Alaska, and a refusal is a misdemeanor offense. Test results over .08 and test refusals may also result in an administrative driver's license suspension by the Department of Motor Vehicles. For more information consult the Alaska Penalties and Alaska Driving tabs.

BREATH TESTING

There are two types of breath tests that are conducted in Alaska DUI cases. Preliminary Breath Tests (PBTs) are administered on scene prior to a DUI suspect's arrest. A PBT is a handheld device which measures a person's blood alcohol content (BAC). Refusal to submit to a PBT is an infraction, and such refusal will be admissible in any later criminal court proceeding that may occur as a result of the DUI incident. Evidentiary breath tests are conducted at the police station after a DUI suspect has been taken into custody.

BLOOD AND URINE TESTING

Blood and urine testing is permissible in cases where the police suspect impairment by controlled substances, and in DUI cases that involve serious physical injury or death to another person. Blood samples must be drawn by qualified persons as specified in the applicable Alaska's statutes. The Department of Public Safety has specific rules and methods for blood testing that must be complied with in order for the test to be considered valid. Improper test procedures or preservation and labeling of the sample may affect the test results. Such errors are common grounds for exclusion of the evidence at trial.

ADDITIONAL INDEPENDENT TESTING

Alaska law provides DUI suspects with the right to have a physician or other qualified person of his/her own choosing to administer a breath or blood test in addition to the chemical testing conducted by the police. The police must inform those who are arrested for DUI of their right to an independent test and take reasonable and good-faith efforts to assist the person in obtaining one.

Alaska Implied Consent and DUI Driving Statutes

Sec. 28.35.031. Implied consent.

(a) A person who operates or drives a motor vehicle in this state or who operates an aircraft as defined in AS 28.35.030 (u) or who operates a watercraft as defined in AS 28.35.030 (u) shall be considered to have given consent to a chemical test or tests of the person's breath for the purpose of determining the alcoholic content of the person's blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance or if lawfully arrested under AS 28.35.280 for the offense of minor operating a vehicle after consuming alcohol. The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle or operating an aircraft or a watercraft in this state while under the influence of an alcoholic beverage, inhalant, or controlled substance or that the person was a minor operating a vehicle after consuming alcohol.

(b) A person who operates or drives a motor vehicle in this state or who operates an aircraft or watercraft shall be considered to have given consent to a preliminary breath test for the purpose of determining the alcoholic content of the person's blood or breath. A law enforcement officer may administer a preliminary breath test at the scene of the incident if the officer has probable cause to believe that a person's ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person

(1) was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident;

(2) committed a moving traffic violation or unlawfully operated an aircraft or watercraft; in this paragraph, "unlawfully" means in violation of any federal, state, or municipal statute, regulation, or ordinance, except for violations that do not provide reason to believe that the operator's ability to operate the aircraft or watercraft was impaired by the ingestion of alcoholic beverages; or

(3) was operating or driving a motor vehicle in violation of AS 28.35.029(a).

(c) Before administering a preliminary breath test under (b) of this section, the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is an infraction. If the person refuses to submit to the test, the test shall not be administered.

(d) The result of the test under (b) of this section may be used by the law enforcement officer to determine whether the driver or operator should be arrested.

(e) Refusal to submit to a preliminary breath test at the request of a law enforcement officer is an infraction.

(f) If a driver or operator is arrested, the provisions of (a) of this section apply. The preliminary breath test authorized in this section is in addition to any tests authorized under (a) of this section.

(g) A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person's breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person's blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the 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.

(h) Nothing in this section shall be construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to a test permitted under this section.

Sec. 28.35.033. Presumptions and chemical analysis of breath or blood.

(a) Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, the amount of alcohol in the person's blood or breath at the time alleged shall give rise to the following presumptions:

(1) If there was 0.04 percent or less by weight of alcohol in the person's blood, or 40 milligrams or less of alcohol per 100 milliliters of the person's blood, or 0.04 grams or less of alcohol per 210 liters of the person's breath, it shall be presumed that the person was not under the influence of an alcoholic beverage.

(2) If there was in excess of 0.04 percent but less than 0.08 percent by weight of alcohol in the person's blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of the person's blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of the person's breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage.

(3) If there was 0.08 percent or more by weight of alcohol in the person's blood, or 80 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.08 grams or more of alcohol per 210 liters of the person's breath, it shall be presumed that the person was under the influence of an alcoholic beverage.

(b) For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood.

(c) Except as provided in AS 28.35.030 (s), the provisions of (a) of this section may not be construed to limit the introduction of any other competent evidence bearing upon the question of whether the person was or was not under the influence of intoxicating liquor.

(d) To be considered valid under the provisions of this section the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the Department of Public Safety. The Department of Public Safety 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 or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.

(e) 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 so to do, is likewise admissible in evidence. The person who administers the chemical test shall clearly and expressly inform the person tested of that person's right to an independent test described under this subsection, and, if the person being tested requests an independent test, the department shall make reasonable and good-faith efforts to assist the person being tested in contacting a person qualified to perform an independent chemical test of the person's breath or blood.

(f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or the person's attorney.

Sec. 28.35.035. Administration of chemical tests without consent.

(a) If a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle, aircraft, or watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance, and that arrest results from an accident that causes death or physical injury to another person, a chemical test may be administered without the consent of the person arrested to determine the amount of alcohol in that person's breath or blood or to determine the presence of controlled substances in that person's blood and urine.

(b) A person who is unconscious or otherwise in a condition rendering that person incapable of refusal is considered not to have withdrawn the consent provided under AS 28.33.031 (a) or AS 28.35.031 (a) or (g) and a chemical test may be administered to determine the amount of alcohol in that person's breath or blood or to determine the presence of controlled substances in that person's blood and urine. A person who is unconscious or otherwise incapable of refusal need not be placed under arrest before a chemical test may be administered.

(c) If a chemical test is administered to a person under (a) or (b) of this section, that person is not subject to the penalties for refusal to submit to a chemical test provided by AS 28.35.032.