Opinion
Court of Appeals No. A-10482.
September 22, 2010.
Appeal from the District Court, Third Judicial District, Anchorage, Alex Swiderski, Judge, Trial Court No. 3AN-08-11090 CR.
David K. Allen, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Mary A. Savage was convicted of driving under the influence. On appeal, Savage argues the court erred by admitting evidence of her breath test result because the court did not require the State to prove the officer checked her mouth before administering the breath test. Savage raises this issue for the first time on appeal, and we find Savage has not established plain error. We therefore affirm Savage's conviction.
AS 28.35.030(a).
Facts and proceedings
Airport Police Officer Joshua Henry contacted Savage at the Point Woronzof Park after it was closed on the night of September 8, 2008. She was in the driver's seat of a car with the motor running. Savage had a strong odor of alcohol, bloodshot, watery eyes, and slightly slurred speech. And she performed poorly on the horizontal gaze nystagmus, walk-and-turn, and one-leg-stand field sobriety tests. About an hour after this contact, Savage submitted to a breath test, which showed her blood alcohol content was .086 percent. About two hours after the contact, she had blood drawn for an independent chemical test, which showed a blood alcohol level of .071 percent. Using retrograde extrapolation, a forensic alcohol testing expert testified that Savage's blood test result was consistent with her breath test result, and that Savage's blood alcohol level would have been approximately .10 percent at the time she operated the vehicle.
After the State presented its case at trial, Savage moved for a judgment of acquittal, arguing the State had not proven her blood alcohol level was .08 percent or higher. District Court Judge Alex Swiderski denied the motion. The jury convicted Savage of DUI. Savage appeals her conviction. Discussion
AS 28.35.030(a)(2) ("A person commits the crime of driving while under the influence . . . if, as determined by a chemical test taken within four hours after the alleged operating or driving, there is 0.08 percent or more by weight of alcohol in the person's blood[.]").
The Alaska Administrative Code establishes procedures that must be followed for presumptive admission of a breath test result in a DUI case, including the requirement the officer administering the testing "must . . . observe the person to be tested for at least 15 minutes immediately before testing, to ensure that the person does not regurgitate or place anything in his or her mouth during that period." Savage argues the trial court should have interpreted this language to require the officer to visually inspect the inside of her mouth to verify she did not regurgitate during the observation period.
See AS 28.35.033(d).
Savage did not raise this argument in the trial court. Claims of error involving evidence that was not objected to at trial are reviewable only for plain error. A plain error is one where the law is so clear that any competent judge or attorney would recognize the error even without objection. To constitute plain error, the error must also result in substantial prejudice to the defendant.
Alaska R. Crim. P. 47(b); Massey v. State, 771 P.2d 448, 452-53 (Alaska App. 1989); Van Hatten v. State, 666 P.2d 1047, 1055-57 (Alaska App. 1983).
Massey, 771 P.2d at 452-53; Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982).
Van Hatten, 666 P.2d at 1055 (citing Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979)).
Savage's claim is that the trial court should have adopted a new interpretation of the regulation. But she does not argue that any competent judge or lawyer would have recognized this new interpretation. Furthermore, she cites no authority to support her argument that 13 AAC 63.040(a) requires a visual inspection of a DUI suspect's mouth.
See Marrone, 653 P.2d at 676 (a claim of plain error fails if reasonable judges could differ as to what the law requires); see also Forster v. State ___ P.3d ___, Op. No. 2278, 2010 WL 2977500 at *11 (Alaska App., July 30, 2010) (judge did not commit plain error by not departing from clear United States Supreme Court precedent and adopting a more stringent test under the Alaska Constitution); Woodbury v. State, 151 P.3d 528, 531 (Alaska App. 2007) (finding no plain error where there was a split of legal authority on the issue); Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005) ("If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails.").
And Savage does not show she was substantially prejudiced by the court's failure to interpret the regulation in the manner she advocates. Alaska law allows breath test evidence to be admitted if the officer substantially complies with the fifteen-minute observation period. In Savage's case, the officer testified he observed Savage for fifteen minutes before administering the Datamaster test. Although the officer testified he did not recall if he checked Savage's mouth, he did not testify that he failed to check it. In addition, the officer testified that Savage did not belch or have anything to eat or drink during the observation period, and Savage offered no evidence that she regurgitated or had anything in her mouth that would have been found by a visual inspection. And the blood test evidence and forensic scientist's testimony showing Savage's alcohol level was over .08 at the time she operated or was in physical control of a vehicle corroborated the Datamaster test result. We conclude the trial court did not commit plain error by failing to adopt a new foundational requirement for the admission of breath test results.
Wester v. State, 528 P.2d 1179, 1184-85 (Alaska 1974); see also Oveson v. Anchorage, 574 P.2d 801, 804-05 (Alaska 1978) (substantial compliance test applied to completion of "Breathalyzer Operational Checklist," where the record showed that the test was properly performed); Williams v. State, 884 P.2d 167, 173-75 (Alaska App. 1994), abrogated on other grounds in State v. Coon, 974 P.2d 386 (Alaska 1999), (affirming trial court ruling that regulation did not require second fifteen-minute observation period after invalid sample and, even if it did, officer substantially complied with the regulation's requirement); Macauly v. State, 734 P.2d 1020, 1026-27 (Alaska App. 1987) (substantial compliance test applied to handling of blood sample); Ahsogaek v. State, 652 P.2d 505, 506 (Alaska App. 1982) (substantial compliance test applied to sixty-day verification of calibration requirement).
See Herter v. State, 715 P.2d 274, 276 (Alaska App. 1986) (defendant failed to allege or establish any potential adverse effect that might have resulted from failure to strictly comply with breath test requirements).
Conclusion
The judgment of the district court is AFFIRMED.