McCRACKEN v. STATE

SINGLETON, Judge, with whom BRYNER, Chief Judge, joins, concurring.

I agree fully with the court's disposition of this case. I believe additional comments are necessary, however, to respond to the arguments in McCracken's brief and particularly to certain of his contentions during oral argument.

All of McCracken's arguments depend upon a single legal proposition: a defendant's consent, in a constitutional sense, is necessary as a matter of law to validate the search of his lungs and the seizure of his breath pursuant to a breathalyzer examination. In other words, McCracken reasons, he has a constitutional right to refuse a breathalyzer examination. He then derives two arguments from this proposition. First, he contends that the only constitutional justification for a breathalyzer examination is "implied consent", the proposition that a person's privilege to drive on the public highways is conditioned on his agreement to thereafter consent to a breathalyzer examination if he is stopped for drunk driving. McCracken points out that "implied consent" is not true consent in a constitutional sense because it is the product of coercion, in this case the threat of imprisonment and loss of the privilege to drive. Second, McCracken contends that the state may not constitutionally condition the grant of a privilege or right, such as the right to operate a motor vehicle on the highways, on the prospective surrender or relinquishment of a constitutional right, such as the right to be free of illegal searches and seizures. In his view, the statute penalizing refusal to submit to a breathalyzer test is therefore unconstitutional.

The answer to McCracken's argument is that a defendant has no constitutional right to refuse to submit to a breathalyzer examination. See Copelin v. State, 659 P.2d 1206, 1212-13 (Alaska 1983); Graham v. State, 633 P.2d 211, 214 (Alaska 1981); Palmer v. State, 604 P.2d 1106, 1110 (Alaska 1979); Coleman v. State, 658 P.2d 1364, 1365-66 (Alaska App. 1983). See also Jensen v. State, 667 P.2d 188, 190 (Alaska App. 1983). Thus, it is incorrect to contend that a defendant's consent is a prerequisite to the validity of a breathalyzer examination. Moreover, so-called implied consent is a pure legal fiction whereby courts imply a consent to search which was never in fact given. See 2 W. LaFave, Search and Seizure § 8.2(1) at 676-77 (1978); 3 W. LaFave, Id. § 10.2(c) at 219-21, § 10.2(g) at 111-15 (1978 Supp. 1984). As LaFave suggests, conceptual difficulties in the implied consent doctrine could best be avoided by simply asking whether searches allegedly based on implied consent meet the reasonableness requirement of the fourth amendment. Id. at § 8.2(1). The justification for requiring a breathalyzer examination and sanctioning a refusal to submit to such an examination is that the examination is a search incident to an arrest. Burnett v. Anchorage, 678 P.2d 1364, 1366. (Alaska App. 1984). A defendant's consent is therefore not necessary to justify the search.

McCracken makes three objections to this analysis, which he elaborated on during oral argument. First, he contends that, when the Alaska Supreme Court stated that there was no constitutional right to resist a breathalyzer examination, it was referring to the fifth amendment, not the fourth amendment. The Alaska Supreme Court, he continues, has never considered the fourth amendment implications of a breathalyzer examination. In contrast, McCracken notes that in Burnett v. Anchorage, 678 P.2d 1364 (Alaska App. 1984), and in Svedlund v. Anchorage, 671 P.2d 378 (Alaska App. 1983), this court recognized the fourth amendment implications of a breathalyzer examination. Consequently, McCracken argues that he does have a constitutional right to refuse to submit to a breathalyzer examination although that right is subject to certain recognized exceptions just like all fourth amendment rights. We addressed McCracken's argument in our decision in Burnett. In his concurring opinion, Chief Judge Bryner pointed out that the offer of a breathalyzer examination necessary to trigger a prosecution for refusal under AMC 9.28.022(c) can only be made after a valid arrest based upon probable cause to believe that the person has been driving under the influence of alcohol. Thus, a person validly arrested will always be searched incident to that arrest and will never have a fourth amendment right to resist. Burnett, 678 P.2d at 1371.

McCracken makes two other objections to an analysis of breathalyzer examinations predicated on a search incident to an arrest, though he concedes that theoretically a breathalyzer examination could be justified on this ground. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood test of suspected drunk driver valid as search incident to arrest). McCracken contends that the theory is flawed when applied to breathalyzer examinations because of substantial factual differences between a breathalyzer examination utilizing the intoximeter 3000 and a typical blood test. A blood test, he reasons, could be administered by a physician or other trained person without the cooperation of the suspect by simply restraining the suspect, inserting a hypodermic needle into the suspect's vein, and obtaining a blood sample. However, McCracken contends, a breath test on an intoximeter 3000 is entirely different because the subject's cooperation is necessary to perform the test. Consequently, McCracken reasons, a defendant will always have the ability, both as a matter of physiology and physics, to consciously defeat the test by failing to provide a satisfactory breath sample.

McCracken's argument confuses a legal concept, "consent", with a factual concept, "cooperation" or "assent". The two are substantially different. Consent in the constitutional sense is only required where the defendant has a legal right to refuse. As we have seen, a legally arrested defendant has no constitutional right to refuse a breathalyzer examination. True, he may fail to cooperate or give his assent to a breath test as a matter of fact, but failure to cooperate does not create a legal right where it would otherwise not exist. For example, a person's right to the security of his home depends, in part, on the cooperation of burglars in respecting that right; a person's right to the integrity of his automobile depends, in part, on a thief respecting that right; a person's right to the integrity of his or her person depends, in part, upon murderers and rapists respecting that right. Similarly, a police officer's right to a breathalyzer examination from a legally arrested driver depends, in part, upon the driver's cooperation in taking the test. However, a burglar's failure to cooperate does not give him a right to commit burglary; a thief's failure to cooperate does not give him a right to steal; a rapist's failure to cooperate does not give him a right to rape; a murderer's failure to cooperate does not give him a right to kill. By the same token, a drunk driver's failure to cooperate in furnishing a breath sample does not give him a legal right to withhold breathalyzer evidence. In all these cases, the state may legitimately impose a sanction for a defendant's failure to cooperate. See Burnett v. Anchorage, 678 P.2d at 1371-72 (Bryner, C.J., concurring).

McCracken's next objection is that even if the constitution does not require consent in a legal sense, the applicable statute does. He relies upon AS 28.35.032(a), which provides in pertinent part:

If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test of his breath as provided in AS 28.35.031, after being advised by the officer that his refusal will . . . result in the suspension, denial or revocation of his license, . . . a chemical test shall not be given. [Emphasis added.]

McCracken's reliance on this section is misplaced. The legislature did not establish a legal right to refuse a test. It clearly did not intend to immunize a refusal from sanction or otherwise protect noncooperation. If it did, it would not have criminalized such a refusal and expressly made the refusal admissible in evidence against the defendant. What the legislature wished to avoid was a physical confrontation between the officer and an intoxicated defendant. Hence, the legislature permitted but did not condone refusal, and imposed sanctions for refusal in the form of criminal penalties and adverse evidentiary comment. There is no statutory right to refuse a breathalyzer examination in Alaska. See Pena v. State, 684 P.2d 864, 867 n. 6 (Alaska 1984) (implied consent statute creates a "power" not a "right" to refuse testing but the consequence of exercising that power is a statutory penalty for refusal).

McCracken's final contention is that even if his consent in a constitutional sense is not required to validate a breathalyzer test, there may be other situations in which his consent would be necessary to validate a warrantless search, such as a search of his house for drugs. To penalize his refusal to take the breathalyzer test might chill the readiness with which he and others similarly situated would resist other arguably unlawful searches. Relying on Elson v. State, 659 P.2d 1195, 1198 (Alaska 1983), McCracken argues that AS 28.35.032(a) must be struck down in order to protect the exercise of fourth amendment rights in unrelated situations. McCracken concedes that the supreme court expressly reserved the precise issue of adverse comment on a refusal to furnish breathalyzer evidence in Elson but contends that the court thoroughly foreshadowed the answer it would give when the issue was squarely before it.

McCracken's argument is without merit. As we discussed in Burnett v. Anchorage, 678 P.2d at 1369, in Elson the court was dealing with a rule of evidence, not a statutory crime. While the state cannot enact a law which clearly violates the fourth amendment, enforcement of this statute does not violate any fourth amendment right. Since a valid arrest is always a condition precedent to a legally required breathalyzer examination, the fourth amendment will never be violated by such an examination if properly conducted. Speculation about the psychological effect of our holding on potential defendants faced with truly unrelated searches and seizures cannot justify invalidation of a statute enacted by the legislature.

Whether a test is taken or rejected, a defendant in McCracken's position is entitled to challenge his arrest at trial before evidence of the test or refusal to take it could be used against him. If his challenge to the arrest is sustained, all adverse evidence will be suppressed. Only if it is denied will prosecution proceed. He is thus in a more favorable position than most of those faced with a legislative "preferred response" to a threat to a constitutional right.

A recent law review article by Professor Peter Weston and Attorney Stewart Mandell is helpful in understanding our rejection of McCracken's challenge to the statute. See Weston Mandell, To Talk, to Balk Or to Lie: The Emerging Fifth Amendment Doctrine of the Preferred Response, 19 Amer.Crim.L.Rev. 521 (1982). While Weston and Mandell address the fifth amendment, their analysis is equally applicable to the assertion of fourth amendment rights. They reason that a legislature may constitutionally sanction one means of exercising a constitutional right so long as it permits alternate means that will fully vindicate the right. The discussion is illustrated by the plight of a witness called to testify in a proceeding in which he might incriminate himself. He has essentially three choices in the words of the authors: to talk (to testify); to balk (to invoke the privilege of self-incrimination); or to lie. If the witness talks, he forfeits his fifth amendment rights. If he lies, he can be punished for perjury. The preferred response, therefore, is to invoke the privilege against self-incrimination and refuse to answer questions. Id. at 522-32. The authors note that the constitution protects an individual against compelled self-incrimination, which only comes into play after the state has acted wrongly by seeking to compel a person to become a witness against himself. They therefore ask rhetorically, "[w]hy should a person bear the burden of responding correctly to a choice he should never have to face?" Id. at 523. Their answer follows:

The answer lies in the relationship between the substance of an individual's fifth amendment claims and the procedure by which he asserts such claims. An individual is constitutionally entitled to be free from state compulsion to incriminate himself. The state, however, has legitimate interests in requiring individuals to assert constitutional claims — including claims under the privilege of self-incrimination — by procedures that minimize the resulting burden on the state. The state's ability to prescribe procedural responses depends on: (1) whether the state prescribes a particular procedure for the assertion of fifth amendment claims, and (2) whether the procedure suffices to safeguard the fifth amendment interests of the individual. If the state prescribes such a procedure, and if the procedure is constitutional, it can require an individual to comply with the procedure or to forfeit his fifth amendment claim.

The same analysis has even greater force in this case. The defendant wishing to assert his fourth amendment rights has two possible responses. He can refuse the breathalyzer test or he can take it. In either case, he may challenge the test thereafter. The state has clearly opted for the second response. The real question is therefore whether the procedure established by the state suffices to safeguard the fourth amendment interests of the defendant. As we have seen, the only fourth amendment interest is the defendant's right to be protected against arrest on less than probable cause. If he is properly arrested, he has no further fourth amendment right to refuse the breathalyzer examination. It appears clear that requiring him to take the test and later challenge the legality of his arrest at trial adequately protects the defendant's fourth amendment rights while meeting the state's legitimate need to gather evidence.

The preferred response serves the state's interests. First, an immediate test preserves the evidence, since breathalyzer evidence dissipates within a matter of hours. Second, the properly administered breathalyzer examination provides substantial evidence of intoxication, serving the substantial state interest in identifying drunk drivers. Third, the breathalyzer examination will be of value whether it inculpates or exculpates the defendant. If the defendant is exculpated, the matter is at an end and the defendant may go on his way. If the defendant is inculpated, he is removed from the road and appropriate sanctions will be forthcoming.

The preferred response also adequately protects fourth amendment rights. If the defendant was illegally arrested, he may prevent adverse consequences whether or not he takes the test. He is in a particularly advantageous position if he takes the examination, despite an unlawful arrest: if the result is favorable, he may then rely on the evidence and use it at trial to exculpate himself; if it is unfavorable, he may ensure that it will be suppressed at trial. See Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969) (fingerprints obtained as a result of illegal detention suppressed). In summary, whether or not the defendant takes the breathalyzer test, his actions cannot be used against him as proof of intoxication or as a basis for restricting his license until he has had an opportunity to challenge the legality of his arrest. It is only if his challenge is rejected that adverse consequences follow his taking the test.