Opinion
Court of Appeals No. A-11192 No. 6081
08-13-2014
JOHN K. BOTSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Brent R. Cole, Law Offices of Marston & Cole, P.C., Anchorage, for the Appellant. Seneca A. Theno, 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-10-11042 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Brian Clark, Judge. Appearances: Brent R. Cole, Law Offices of Marston & Cole, P.C., Anchorage, for the Appellant. Seneca A. Theno, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. Senior Judge COATS, writing for the Court.
Judge MANNHEIMER, dissenting.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
On September 30, 2010, John K. Botson was stopped for driving the wrong way on a one-way street. During the stop, Botson exhibited signs of intoxication, and he was ultimately convicted under the Anchorage Municipal Code of operating under the influence. At Botson's trial, the Municipality introduced evidence of his breath test result, which showed a blood alcohol level of .141 percent — well over the legal limit of .08 percent.
Anchorage Municipal Code (AMC) 9.28.020.A.
Botson argues that the district court should have suppressed the evidence of his breath test result because the police did not strictly comply with the procedures governing administration of the test. He also argues that his right to an independent chemical test was violated. Lastly, he argues that the Municipality violated its duty to disclose information related to his breath test. Botson argues that each of these violations required suppression of his breath test result. For the reasons explained below, we find no merit to Botson's claims. We therefore uphold the district court's decisions denying Botson's motions to suppress.
Background
A defendant who is arrested for operating under the influence is required to provide a sample of his breath for testing to determine the level of alcohol in his blood. During the administration of this breath test, the Datamaster conducts several quality assurance tests. One of these self-checks involves testing a sample of gas, called "alco," that has a known level of alcohol. The theory is that if the test result of the alco gas is the same, or almost the same, as the known value of the gas, the instrument is functioning properly. This test is called an "external standard" test, and it is conducted twice — both before and after a breath sample is taken from the suspect.
During the administration of Botson's breath test, the second external standard test — the test of the alco sample conducted after the Datamaster reported Botson's breath test result — resulted in a "standard out of range" message at the bottom of the datamaster printout. The officer conducting the test did not notice this message, and he completed the breath test processing.
After Botson was charged with operating under the influence, he filed two motions to suppress the evidence of his breath test result. In those motions, Botson argued that the error in the administration of his breath test, and the officer's failure to inform him of that error, invalidated his test result and his waiver of his right to an independent test. He also argued that the Municipality violated its duty of disclosure by failing to inform him of the error message.
At an evidentiary hearing, Anchorage Police Officer Nelson Price, the officer who conducted the breath test, testified that he did not notice the message at the time of Botson's test. But he said he subsequently listened to the audio recording of Botson's breath test processing and concluded that he had prematurely closed the valve on the alco bottle, resulting in an inadequate supply of alco gas going to the Datamaster for the final external standard check.
The Municipality's expert, Colleen O'Bryant, confirmed from her review of the audio record that Price had turned the alco bottle off prematurely, and she said this oversight would account for the "standard out of range" message. O'Bryant testified that other evidence showed that the Datamaster was functioning properly at the time of Botson's breath test: the calibration of the instrument was verified before and after Botson's breath test, and the alco test that immediately preceded Botson's test reported an accurate reading. O'Bryant concluded that the Datamaster had accurately analyzed Botson's breath sample.
Botson's expert, retired Anchorage Police Officer Donald Mann, testified that based on his review of Botson's breath test processing, the Datamaster was not functioning correctly at the time of Botson's test.
District Court Judge Brian Clark denied Botson's motions to suppress. Based on stipulated facts, Botson was then convicted at a bench trial of operating under the influence. He appeals.
Why we conclude that the Municipality's failure to strictly comply with its breath test procedures did not undermine the validity of Botson's breath test result
To introduce the result of a breath test in a prosecution for operating under the influence, it is not necessary for the government to show absolute compliance with breath test procedures — substantial compliance is sufficient. Once the evidence is admitted, "the defendant may present evidence questioning the validity of the test and may argue to the jury that the breath test result deserves little weight."
See, e.g., Williams v. State, 884 P.2d 167, 174-75 (Alaska App. 1994).
Id. at 175 (citations omitted).
In assessing whether the government has substantially complied with breath test procedures, "the crucial concern is that the breathalyzer test be performed in a manner that assures accuracy according to the statutorily approved methods." There is no substantial compliance with breath test procedures if the government's failure to strictly comply appreciably affected the accuracy of the test.
State v. Swenson, 259 P.3d 485, 486-87 (Alaska App. 2011) (quoting Oveson v. Anchorage, 574 P.2d 801, 805 (Alaska 1978)).
Swenson, 259 P.3d at 487.
Here, Judge Clark found that the Datamaster reported a "standard out of range" message because Officer Price closed the alco bottle prematurely during the self-check that followed the instrument's analysis of Botson's breath sample. The judge found that the instrument was functioning properly at the time of Botson's test and that Price's deviation from normal testing procedures did "not seriously call the accuracy of the Datamaster into question."
Botson does not challenge these factual findings. Instead, he argues that the court erred as a matter of law by applying the doctrine of substantial compliance. He argues that, any time the Datamaster fails to complete its diagnostic testing sequence, strict compliance with breath test procedures is required.
Botson has not persuaded us that we should adopt an exception to the doctrine of substantial compliance in his case. As we just explained, the crucial issue in determining whether there has been substantial compliance is whether the government's departure from normal procedures affected the reliability of the breath test. Judge Clark concluded, after hearing expert testimony from both sides, that the error in the administration of the final alco test cast no serious doubt on the reliability of Botson's breath test. Botson has not challenged that factual finding, and it is supported by the record. We therefore uphold the district court's conclusion that the error in the administration of the second alco test did not invalidate Botson's breath test result.
Why we conclude that Botson's right to an independent chemical test was not violated
Under the Alaska Constitution, a person arrested for operating under the influence has a due process right to challenge the accuracy of the police-administered breath test. The police normally satisfy this due process requirement by affording the arrestee "clear and express notice" of the right to an independent chemical test of his blood alcohol level. An arrestee may relinquish that right — but only with a knowing and voluntary waiver.
Lau v. State, 896 P.2d 825, 828 (Alaska App.1995).
Gundersen v. Anchorage, 792 P.2d 673, 676-77 (Alaska 1990) (quoting Anchorage v. Serrano, 649 P.2d 256, 258 n.5 (Alaska App.1982)); see also AS 28.35.033(e).
Crim v. Anchorage, 903 P.2d 586, 588 (Alaska App. 1995).
Botson argues on two bases that he was deprived of his due process right to an independent test: First, he argues that when Officer Price told him the Datamaster performed self-tests to ensure its accuracy — but then did not tell him that the instrument reported an error message during one of these self-checks — Price effectively interfered with his right to an independent test. Second, he argues that his waiver of the right to an independent test was not knowing and intelligent because he did not know that the Datamaster had reported an error message during the administration of his test.
Price did not interfere with Botson's right to an independent test
A defendant is entitled to suppression of a breath test result if the police actively interfere with the right to an independent test. In assessing whether the police have actively interfered with this right, courts look to "whether, under the totality of the circumstances, state conduct prevented the driver from obtaining an independent test that the driver would otherwise have obtained." If the defendant asserts that an officer's comment or conduct discouraged him from obtaining an independent test, the trial court must determine if the arrestee's interpretation of that comment or conduct was reasonable.
Gundersen v. Anchorage, 769 P.2d 436, 438 (Alaska App. 1989).
Lau, 896 P.2d at 828 (citation omitted).
See Hernandez v. State, 28 P.3d 315, 318-19 (Alaska App. 2001).
A primary factor in this analysis is the officer's explanation to the defendant of the right to an independent test. But a court should also consider other circumstances that might support an inference that, but for the police action, the defendant would have obtained the independent test.
Gundersen, 769 P.2d at 439-40.
Botson relies on two circumstances to argue that Price interfered with his right to an independent test. He points out that Price informed him before administering the breath test that the Datamaster would conduct diagnostic tests to ensure that it was functioning properly. In addition, he notes that after he provided a breath sample, Price told him his blood alcohol level was .141 percent — but did not tell him about the "standard out of range" message on the Datamaster printout following the breath test. In the district court, Botson claimed in an affidavit that, had he known of this error message, he would have requested an independent chemical test.
The district court ruled that this irregularity did not undermine Botson's decision not to obtain an independent test. The court determined that Officer Price's statement that the Datamaster performed self-checks was made at the beginning of the breath test processing, approximately nineteen minutes before Price advised Botson of his right to an independent test. The court found that the statement was brief and focused on the procedure Price would follow in administering the test, and that no reasonable person would have interpreted it as discouragement or advice about seeking an independent test. The judge concluded that Price had not interfered with Botson's exercise of his right to an independent test.
The judge's factual findings are supported by the record. At the beginning of Price's description of the breath test procedure, Price briefly mentioned that the Datamaster would perform self-checks. The officer did not focus on the self-checks or suggest that this procedure should bear on Botson's decision whether to obtain an independent test. Then, some nineteen minutes passed before Botson was advised of his right to an independent test. We agree with the trial judge that Botson failed to establish, on these facts, that Price's conduct interfered with his right to an independent test.
Botson knowingly and intelligently waived his right to an independent test
Botson next argues that he did not knowingly and intelligently waive his right to an independent test because Officer Price did not inform him of the Datamaster's error message. He argues that, without this information suggesting that the instrument might have malfunctioned, he could not make a meaningful decision about whether to obtain an independent chemical test to check the accuracy of the police-administered test.
We have previously held that an arrestee cannot knowingly and intelligently waive the right to an independent test if he does not have a "basic understanding" of the right to an independent test. An arrestee acquires a "basic understanding" of that right if he is "notified of the right to an independent test, is aware that he or she was arrested for driving under the influence, and generally understands that the purpose of the independent test is to obtain evidence of his or her blood alcohol level."
Crim, 903 P.2d at 588 (quoting Ahtuangaruak v. State, 820 P.2d 310, 311 (Alaska App. 1991)).
Zemljich v. Anchorage, 151 P.3d 471, 475 (Alaska App. 2006); see also Crim, 903 P.2d at 588-89.
In Ahtuangaruak v. State, we held that the defendant did not knowingly and intelligently waive his right to an independent test, and was therefore entitled to suppression of his breath test result, because his limited comprehension of English prevented him from understanding the officer's explanation of the right to an independent test. But we have reached a different result in cases in which the arrestee had a basic understanding of the right to an independent test but was not informed of all the factors that might have influenced his decision whether to obtain the test. For instance, in Crim v. Anchorage, we held that the defendant validly waived his right to an independent test even though, at the time of his waiver, he did not know the result of his breath test and could not fully assess "the potential advantages and disadvantages of availing himself of the right to an independent test." Similarly, we have rejected the claim that an arrestee cannot validly waive the right to an independent test if he does not understand that the test result might be advantageous to his defense.
Ahtuangaruak, 820 P.2d at 311.
Moses v. State, 32 P.3d 1079, 1083-84 (Alaska App. 2001); Crim, 903 P.2d at 588.
Crim, 903 P.2d at 588.
Wing v. State, 268 P.3d 1105, 1108 (Alaska App. 2012); Zemljich, 151 P.3d at 476; Moses, 32 P.3d at 1084.
Botson does not dispute that he understood the significance of the breath test and the importance of the opportunity to have an independent test of his blood alcohol level. Rather, his claim is that he could not assess the potential advantages and disadvantages of obtaining an independent test because he did not know that, after he submitted his breath sample, the Datamaster reported an error message. We conclude that Botson's case is governed by Crim: because Botson had a basic understanding of his right to an independent test and of the purpose of the test, he knowingly and intelligently waived his right to the test.
To hold otherwise would undermine the doctrine of substantial compliance. As we explained earlier, to introduce evidence of a defendant's breath test result, the government must establish, as a foundational matter, that it substantially complied with procedures governing administration of the breath test. In determining whether the government substantially complied, "the crucial concern is that the breathalyzer test be performed in a manner that assures accuracy according to the statutorily approved methods."
Oveson v. Anchorage, 574 P.2d 801, 805 (Alaska 1978).
Applying this doctrine, this Court and the Alaska Supreme Court have repeatedly upheld the admission of breath test results even though the government did not strictly comply with breath test procedures. In Oveson v. Anchorage, the supreme court held that the defendant's breath test result was admissible even though the officer who administered the test failed to mark on his checklist that he had performed all of the steps required to ensure the accuracy of the test. Likewise, in Wester v. State, the supreme court upheld the admission of the defendant's test result despite the testing officer's failure to personally observe the defendant for fifteen minutes before administering the test. And in Herter v. State, we upheld the admission of the defendant's test result even though the officer who administered the test was not properly certified and the calibration of the breath test instrument had not been verified within the required time period.
Id. at 805.
528 P.2d 1179, 1184 (Alaska 1974).
715 P.2d 274, 275-76 (Alaska App. 1986); see also Ahsogaek v. State, 652 P.2d 505, 506 (Alaska App. 1982).
Botson argues that his case is different because the government's failure to strictly comply involved an error affecting the Datamaster's diagnostic testing during administration of the breath test. But we see no reason to treat this circumstance differently than any other departure from breath test procedures that has the potential to affect the accuracy of the defendant's breath test. In each case, the government must show, as a condition for introducing the breath test result into evidence, that the failure to strictly comply had no appreciable effect on the accuracy of the test. The defendant may then argue to the jury that the failure to strictly comply gave it reason to distrust the breath test result.
See Oveson, 574 P.2d at 805; Wester, 528 P.2d at 1184-85; Herter, 715 P.2d at 276.
The test Botson proposes, carried to its logical conclusion, would require the government to show strict compliance rather than substantial compliance with any breath test procedures that govern the actual administration of the breath test. If the government failed to strictly comply with these breath test procedures, the defendant could simply argue that, had he been aware of the failure to comply he would not have waived his right to take the independent test (and would have been willing to run the risk that the independent test would confirm the government test). Even if the government showed substantial compliance — that is, even if the government showed that its failure to strictly comply had no effect on the accuracy of the breath test — the defendant's test result would nevertheless be suppressed under the theory that the defendant had not meaningfully waived his right to an independent test. We decline to adopt such a rule because it would be inconsistent with the supreme court's decisions in Wester and Oveson.
Botson's claim that the results of his breath test should have been suppressed because the Municipality violated AMC 9.28.023.G
Botson also argues that the trial court should have suppressed his breath test result because the Anchorage Municipal Code required Officer Price to disclose "full information concerning the [breath] test," including, he contends, the fact that the Datamaster printout contained a "standard out of range" message.
Anchorage Municipal Code 9.28.023.G states, "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."
Judge Clark ruled that this ordinance only requires the Municipality to disclose information concerning the breath test after a driver is formally charged with operating under the influence, as part of pre-trial discovery.
In the alternative, the judge found that, even if the ordinance required the Municipality to disclose information at the time of the breath test, the Municipality did not violate that duty in this case. The ordinance mandates disclosure only "[u]pon the request of the person who submits to a chemical test." The district court found that Botson never made a request that triggered this disclosure requirement. Botson has not challenged that factual finding on appeal, and the record supports the finding.
Thus, even if we were to conclude that AMC 9.28.023.G applies when an arrestee makes a disclosure request during processing for operating under the influence, the ordinance did not require Officer Price to disclose the Datamaster's "standard out of range" message in this case — because Botson made no request for disclosure.
Furthermore, it does not appear that the ordinance requires this information to be disclosed during the testing procedure. Rather, the ordinance appears to be aimed at facilitating the discovery of information related to a breath test in the event of a criminal charge. But given the trial court's findings, we do not need to resolve that issue at this time.
Conclusion
The judgment of the district court is AFFIRMED. Judge MANNHEIMER, dissenting.
I disagree with my colleagues' resolution of this appeal. For the reasons explained here, I conclude that the police officer who administered the breath test to Botson had a duty to observe the error message that was displayed by the machine during the testing process, and a duty to inform Botson of this potential malfunction. I further conclude that, because the officer did not tell Botson about the error message, Botson was denied information that he needed if he was to make an informed decision whether to exercise his right to an independent blood test.
The type of breath testing machine that the police used in this case actually runs two different chemical analyses every time a breath test is administered. The machine tests the sample of breath collected from the arrestee, but it also performs a test of a different sample of air — a sample drawn from an "alco" bottle, which contains air mixed with a known percentage of alcohol. If this second test yields a result that is consistent with the known percentage of alcohol in the air sample, this provides an immediate, contemporaneous confirmation that the testing mechanism within the machine is working correctly.
But in Botson's case, the breath testing machine produced an "out of range" error message when it analyzed the "alco" air sample. In other words, the machine reported that its test result for the "alco" air sample was inconsistent with the known percentage of alcohol in that sample.
The police officer negligently failed to notice this error message, and he did not inform Botson of the testing error.
I say "negligently" because it is an officer's duty, when conducting a breath test, to pay attention to the results displayed by the machine, and the government offered no explanation for the officer's failure to see and report this error message, other than inattention.
Following the administration of this breath test, and acting in ignorance of the error message, Botson waived his right to seek an independent blood test.
The primary issue in this appeal is whether the officer's negligent failure to observe the error message, and his consequent failure to inform Botson of this error message, requires this Court to invalidate Botson's waiver of his right to an independent test. Botson claimed in the trial court, and he again claims on appeal, that if he had known about this error message — with its implication that something was wrong, either with the breath test machine itself or with the testing procedure that the officer employed — then he would have exercised his right to seek an independent blood test.
In this Court's lead opinion, my colleagues conclude that the officer's failure to inform Botson of the error message was inconsequential. As my colleagues note, the officer properly apprised Botson of his right to the independent test, and Botson does not claim that he failed to understand the general purpose of the independent test. According to my colleagues, these two factors conclusively establish that Botson validly waived his right to an independent test — and it is irrelevant that the officer failed to apprise Botson of the error message generated by the breath test machine.
I concede that my colleagues' position is consistent with the approach that this Court adopted in Crim v. Anchorage, 903 P.2d 586 (Alaska App. 1995).
In Crim, the police administered a breath test to the defendant, but did not announce the test result to him. The police then asked the defendant to make his decision about the independent blood test without knowing the breath test result. The defendant waived his right to the independent test. Later, however, the defendant sought suppression of the breath test — arguing that, without knowledge of the breath test result, he could not make an informed decision about whether to exercise his right to an independent blood test.
Crim, 903 P.2d at 587.
Id. at 587, 588.
This Court rejected the defendant's argument:
Crim essentially asks us to declare as a matter of law that no DWI arrestee can knowingly and intelligently decline to take an independent blood test before being apprised of the results of the ... breath test. But ... [t]he potential significance of a breath test is hardly the type of subtlety that will be lost on a typical DWI arrestee. Well before the result of a breath test is disclosed, the arrestee will ordinarily understand that [the breath test result] could have potentially devastating consequences and that it will not necessarily be accurate. ...Crim, 903 P.2d at 588. Based on this analysis, this Court concluded that the voluntariness of an arrestee's waiver of the right to take an independent blood test should not hinge on any particular factor, but should instead be assessed under the "totality of the circumstances". Ibid. This Court then continued:
[T]here is nothing in the record suggesting that Crim's lack of knowledge of his own test result impaired his ability to understand the purpose of the [breath] test he had already taken or the nature of his right to an independent chemical test.Crim, 903 P.2d at 588-89.
Crim does not claim to have been misled as to the possibility of failing his breath test. The circumstances of his case provide no basis for concluding that he was incapable of understanding that possibility and its potential significance to his case. To the contrary, even without knowing the actual
result of his test, Crim appeared to understand the gravity of his situation, that he had been arrested for driving while intoxicated, that the police had taken a sample of his breath for a reading of his alcohol level, and the significance of an opportunity to have an independent test of his alcohol level.
The record as a whole establishes that Crim voluntarily declined the offer of an independent blood test. [The trial court] did not err in denying Crim's motion to suppress.
According to this passage from Crim, even though a defendant's waiver of the right to an independent test is judged under the "totality of the circumstances", the surrounding circumstances are relevant only if they affect the answer to one of two questions:
(1) Did something impair the defendant's ability to understand "the purpose of the [breath] test [the defendant] had already taken"? (i.e., to understand that the government was seeking corroborative evidence that the defendant was under the influence, to help secure the defendant's conviction), or
(2) Did something impair the defendant's ability to understand "the nature of [their] right to an independent chemical test"? (i.e., the right to obtain another test to check the accuracy of the police-administered breath test).
Under the formulation of the law set forth in Crim, it is indeed irrelevant that the officer in Botson's case failed to notice that the breath test machine gave a malfunction warning, and that the officer therefore failed to tell Botson about the apparent malfunction.
In fact, if we carry the reasoning of Crim to its logical conclusion, it would be irrelevant if the officer saw the malfunction warning and actively hid this information from Botson — because the officer's failure to apprise Botson of this information would not affect Botson's understanding of the purpose of the breath test, nor would it affect Botson's understanding of the general nature of his right to an independent blood test.
But even though I joined this Court's decision in Crim in 1995, I now believe that Crim was wrongly decided.
As the Alaska Supreme Court explained in Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976), the due process clause of our state constitution guarantees defendants the opportunity to meaningfully test the reliability of the breath test result. The supreme court likened this to a defendant's right of confrontation — the right to test the credibility of government witnesses through cross-examination. Ibid.
When a court decides whether the government's failure to make pre-trial discovery adversely affected a defendant's choices regarding the right of cross-examination (whether to cross-examine a particular witness, or to what extent), we do not simply ask whether the defendant understood (1) that the government's general purpose in presenting the witness's testimony was to secure the defendant's conviction, and (2) that the general purpose of cross-examination is to test the credibility and accuracy of a witness's testimony.
Instead, we examine the undisclosed information to see whether it likely would have affected the defendant's assessment of whether to exercise the right of cross-examination.
See, e.g., Bostic v. State, 805 P.2d 344, 348 (Alaska 1991); Howe v. State, 589 P.2d 421, 423-24 (Alaska 1979); Stevens v. State, 582 P.2d 621, 626 (Alaska 1978).
We do this because cross-examination is often a calculated risk: there are times when cross-examination will undercut the witness's testimony, but there are other times when it will further bolster the witness's credibility, or even elicit additional damaging information.
Like cross-examination, an independent blood test may help or harm a person arrested for driving under the influence. The blood test may help the arrestee if it undercuts the results of the breath test, but it may instead provide added confirmation that the defendant is under the influence. Thus, demanding the blood test is a risk. And to properly assess this risk, a defendant must know more than simply (1) why the police made the defendant take a breath test, and (2) the general nature of the right to an independent blood test.
This is where the reasoning of the Crim decision goes astray. An arrestee's knowledge of their breath test result is relevant to the arrestee's decision-making process. If, for example, a motorist has had only a moderate amount to drink but the breath test result is quite high, the motorist might well conclude that something went wrong during the testing process, and that it is better to exercise the right to an independent test.
I therefore believe that Crim was wrongly decided. In order to give an arrestee a fair opportunity to decide whether to exercise the right to an independent blood test, the government must be required to apprise the arrestee of the circumstances that would reasonably bear on the arrestee's decision whether to exercise this right.
One such circumstance is whether there has been any observable irregularity in the breath testing process.
In Botson's case, the machine displayed an "out of range" error message when it analyzed the air sample from the "alco" bottle. This, by itself, may not be proof that the machine mis-analyzed the sample of Botson's breath. Indeed, in Botson's case, after all the facts came out, the trial court found (by a preponderance of the evidence) that the breath test machine was functioning properly, and that the error message was a result of the officer's mishandling of the "alco" bottle.
But arrestees like Botson can not wait several months for a trial court to hold a hearing to decide (under a "more likely than not" standard) whether their breath test machine was functioning properly. Arrestees must make their decision about the independent test on the spot. And if the breath test machine displays a visible error message to the officer administering the test, this is clearly a factor that a reasonable person in Botson's position would want to know before deciding whether to ask for an independent test.
Botson was therefore entitled to be apprised of this circumstance before he made his decision.
It is true that the officer in this case did not knowingly keep this information from Botson. Rather, the officer negligently failed to observe the error message. But I would hold that the officer had a duty to observe this error message.
This duty exists because (1) the breath testing machine, and the testing procedure, is wholly in the control of the government, and (2) the testing procedure creates important evidence against the defendant. Indeed, in cases where it is clear that the defendant was driving, the breath test result is often the crucial piece of evidence against the defendant — because a test result of .08 percent or greater is sufficient, standing alone, to support a guilty verdict.
Because of this, an officer conducting a breath test must be required to conduct the test correctly. In Botson's case, this duty included watching the machine, and the machine's print-out of the test results, for visible error messages during the testing process.
Compare 13 AAC 63.040 (specifying the procedures for breath testing) and 13 AAC 63.050 (specifying the certification requirements for breath test operators).
Moreover, my colleagues' basis for rejecting Botson's claim does not hinge on the testing officer's lack of willfulness. Instead, my colleagues rely on the Crim test for the proposition that the testing error was irrelevant.
As I explained earlier, under the Crim test, information about the "out of range" error message was simply irrelevant to the validity of Botson's waiver of his right to the independent blood test. Thus, under Crim, Botson's waiver was valid regardless of whether the officer's failure to inform Botson of the error message was willful or only negligent.
But as I also explained earlier, I now believe that Crim was wrongly decided. When, as in Botson's case, the breath testing process yields a manifest error, knowledge of that error is relevant to the arrestee's decision whether to invoke their right to an independent test.
My colleagues also offer a second reason for rejecting Botson's claim: they anticipate that if we grant Botson relief based on the officer's negligent failure to tell him about the error message, this will effectively overturn the doctrine of "substantial compliance" as it applies to breath tests.
Under the doctrine of substantial compliance, even when the police depart in some fashion from proper machine maintenance procedures or proper testing procedures, a breath test result will still be admissible if the government can show that the deviation from procedure did not affect the reliability of the test result.
Oveson v. Anchorage, 574 P.2d 801, 804-05 (Alaska 1978); Wester v. State, 528 P.2d 1179, 1184 (Alaska 1974).
But the issue in Botson's case is not the ultimate reliability of the breath test result. The issue is whether Botson had a fair opportunity to decide whether to exercise his right to an independent blood test.
Moreover, in the cases where we and the supreme court have applied the "substantial compliance" doctrine, the kinds of flaws that we addressed were either (1) flaws which were not immediately apparent from observing the testing process, or (2) flaws which, even if detected and communicated to the arrestee, would not have materially affected the arrestee's decision concerning whether to demand an independent blood test.
State v. Swenson, 259 P.3d 485, 486-88 (Alaska App. 2011) (failure to verify the calibration of the breath test machine at the prescribed 60-day intervals); Herter v. State, 715 P.2d 274, 275-76 (Alaska App. 1986) (same); Ahsogaek v. State, 652 P.2d 505, 506 (Alaska App. 1982) (same); Thayer v. Municipality of Anchorage, 686 P.2d 721, 726-28 (Alaska App. 1984) (failure to conduct radio frequency interference tests when the breath test machine was calibrated).
Oveson v. Anchorage, 574 P.2d at 802-03 (officer's failure to check all of the boxes on a list of testing protocols); Wester v. State, 528 P.2d at 1184 (officer's failure to personally observe the arrestee throughout every minute of the prescribed 15-minute observation period); Williams v. State, 884 P.2d 167, 173-74 (Alaska App. 1994) (officer observed the arrestee for the prescribed 15 minutes, but the breath test was aborted, and the officer waited only an additional 9 minutes before running a second breath test).
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For these reasons, I do not share my colleagues' view that a decision in Botson's favor will mean the end of the substantial compliance doctrine.
To sum up: The approach that this Court adopted in Crim was wrong. For an arrestee to be able to meaningfully choose whether to assert their right to an independent blood test, the arrestee must know more than the general purpose of the breath test and the general purpose of the independent blood test.
Here, the officer administering the breath test to Botson had a duty to observe any error messages displayed by the breath test machine, and a duty to inform Botson of these messages. The officer violated this duty by negligently failing to observe the "out of range" error message that the breath test machine displayed following its test of the "alco" bottle, and by consequently failing to inform Botson of this error message.
This information had substantial importance to Botson's decision whether to demand an independent test. Because Botson lacked this information as a result of the officer's negligence, I would hold that Botson was deprived — by government action — of a fair opportunity to decide whether to exercise his right to an independent test.
For these reasons, I dissent from my colleagues' resolution of this appeal. I would reverse the trial court's decision and suppress the breath test result.