Opinion
Court of Appeals No. A-12104 No. 6279
01-27-2016
SAMUEL LEE VEST, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Michael H. T. Graper, Denali Law Group, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-14-389 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Brian K. Clark and Douglas Kossler, Judges. Appearances: Michael H. T. Graper, Denali Law Group, Anchorage, for the Appellant. Sarah E. Stanley, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Samuel Lee Vest appeals his conviction for driving under the influence. Vest's conviction rested primarily on evidence that, following his arrest, his blood alcohol level was .149 percent.
The police obtained this test result, not from a breath test, but rather from a direct analysis of Vest's blood.
Following his arrest, Vest was taken directly to a hospital for treatment of injuries, and the police were told that Vest would not be released from treatment until after the expiration of the four-hour window specified in the breath testing ordinance (Anchorage Municipal Code 09.28.020.B.2). The police therefore sought (and obtained) a warrant authorizing them to seize samples of Vest's blood. The police drew three vials of Vest's blood. The police sent two of these vials for testing, and they preserved the third vial for future testing.
In the district court, Vest sought suppression of the blood test result on two grounds. First, Vest argued that the blood test result should be suppressed because the police failed to inform him of his right to an independent blood test. Second, Vest argued that AS 28.35.031, as interpreted in Sosa v. State, 4 P.3d 951 (Alaska 2000), prohibited the police from seeking — and the district court from issuing — a warrant to draw his blood. The district court denied Vest's suppression motion, and he was then convicted at a bench trial.
Vest renews his two arguments in this appeal.
With regard to Vest's claim that the police acted unlawfully when they failed to inform him of his right to an independent blood test, we note that the right to an independent blood test is designed to allow a defendant to challenge (or at least verify) the government-administered breath test. See Gundersen v. Anchorage, 792 P.2d 673, 677-78 (Alaska 1990).
Here, in contrast, the police drew and tested Vest's blood, and they preserved a sample of his blood for possible later testing. In other words, the police followed a procedure that allowed Vest to have experts of his choosing retest his blood if he wished. Vest's right to an independent test was therefore honored.
Vest's remaining claim is that AS 28.35.031, as interpreted in Sosa, prohibited the district court from issuing a warrant authorizing the police to draw Vest's blood.
Sosa held that, except in the limited circumstances described in AS 28.35.031, a breath test is the sole method by which the government can obtain evidence of a motorist's blood alcohol level. But as the Municipality points out in its brief, the legislature amended AS 28.35.031 in response to Sosa by adding a new subsection (h) to the statute. Subsection (h) reads: "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 [statute]."
Sosa, 4 P.3d at 953-54. --------
The Municipality argues that the legislature, through this post-Sosa amendment of the statute, essentially abrogated the holding in Sosa. Vest did not address subsection (h) of the statute in his opening brief, and he elected not to file a reply brief. Vest therefore offers no answer to the Municipality's argument that Sosa is no longer good law. To the extent that one might argue otherwise, Vest has waived that argument by failing to offer any briefing on the issue.
(We note that this issue is currently before us in another case, State v. Evans, File No. A-11865.)
For all these reasons, the judgement of the district court is AFFIRMED.