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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                      Court of Appeals No. A-11865
                            Petitioner,              Trial Court No. 2NO-13-590 CR

                     v.
                                                               OPINION
DAVID EVANS,

                            Respondent.               No. 2515 — September 2, 2016


              Petition for Review from the District Court, Second Judicial
              District, Nome, Brooke Alowa, Magistrate Judge.

              Appearances: Kenneth M. Rosenstein, Assistant Attorney
              General, Office of Criminal Appeals, Anchorage, and Michael
              C. Geraghty, Attorney General, Juneau, for the Petitioner.
              Myron Angstman, Angstman Law Office, Bethel, for the
              Respondent.

              Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
              Superior Court Judge. *

              Judge ALLARD.


              David Evans was arrested for driving under the influence. When Evans
refused to take a breath test, the police obtained a search warrant to draw a sample of his


   *
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
blood. A test of that sample showed that Evans had a blood-alcohol level of .094
percent, which is over the legal limit of .08.1
              Evans was subsequently charged with both driving under the influence and
refusal to submit to a breath test. He first moved to dismiss the refusal charge, arguing
that he could not be subject to the penalties for breath-test refusal under Alaska’s implied
consent statutory scheme when the police had obtained the same evidence through the
warrant process and were pursuing a prosecution for driving under the influence based
on that evidence. The district court denied this motion.
              Evans then moved to suppress the results of the blood test, arguing that
Alaska law did not authorize the courts to issue search warrants for non-consensual
blood draws in cases where only alcohol was suspected and the defendant had already
refused to submit to a breath test. The district court agreed with this argument and
suppressed the results of the blood test. The State petitioned for review.
              This petition requires us to construe the legislature’s 2001 amendment to
Alaska Statute 28.35.031, Alaska’s implied consent statute. For the reasons explained
in this opinion, we conclude that the statute, as amended, authorizes courts to issue
search warrants in these circumstances. Accordingly, we reverse the district court’s
ruling suppressing the evidence of Evans’s blood test result and remand this case for
further proceedings consistent with this decision.
              We emphasize that our holding is limited to the issues directly before us.
Evans has not cross-petitioned us to review the trial court’s earlier ruling on his motion




   1
       AS 28.35.030(a)(2).

                                           –2–                                        2515

to dismiss the refusal charge. We therefore express no opinion as to the merits of that
decision.2


       Why we conclude that Alaska law does not prohibit courts from issuing
       warrants for chemical tests of a person’s blood even in cases where the
       person has refused to submit to a breath test and could potentially be
       prosecuted for the separate crime of breath-test refusal
              In Alaska, a motorist lawfully arrested for driving under the influence must
submit to a requested breath test upon receiving the proper legal advisements or face
prosecution for refusal to submit to a chemical test.3 The question presented in Evans’s
case is whether, in the event a motorist refuses to take a breath test, the police may
nevertheless obtain a search warrant to compel the motorist to submit to some other
chemical test (generally a blood test) for the purpose of establishing the motorist’s blood-
alcohol level.
              The Alaska Statutes do not directly answer this question.                 Under
AS 28.35.031(a), any person who drives a motor vehicle and is lawfully arrested for
driving under the influence “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 a motorist refuses to submit to this breath test after being
advised of the legal consequences of that refusal, AS 28.35.032(a) provides that “a
chemical test may not be given, except as provided by AS 28.35.035.” (Emphasis



   2
        Cf. AS 28.35.035(c) (permitting the police to administer a non-consensual chemical
test to a person lawfully arrested for DUI who is involved in an injury accident and who
refuses to submit to a breath test but also providing that if the non-consensual chemical test
is administered “that person is not subject to the penalties for refusal to submit to a chemical
test provided by AS 28.35.032”).
   3
       AS 28.35.031; AS 28.35.032.

                                             –3–                                         2515

added.) Alaska Statute 28.35.035 provides two circumstances in which the police may
administer a chemical test of breath or blood without the motorist’s consent: (1) if the
motorist was involved in an accident that caused death or physical injury; or (2) if the
motorist is unconscious or otherwise incapable of refusal.4
              In 1979, in Anchorage v. Geber,5 the Alaska Supreme Court construed the
language of AS 28.35.032(a) — “a chemical test may not be given” — to apply to all
chemical tests of both breath and blood. Thus, the Court interpreted the statute to
prohibit the police from administering any chemical test of the person’s breath or blood
without their express consent.6 The supreme court reasoned that, by elevating refusal to
a separate crime and enacting a comprehensive statutory scheme for the state’s implied
consent law, the Alaska legislature had made the breath test the “exclusive method for
obtaining direct evidence of a suspect’s blood alcohol content, absent his or her express
consent to the use of some other form of testing.”7
              Five years later, in Pena v. Anchorage,8 the Alaska Supreme Court held that
this limitation in AS 28.35.032(a) extended even to police-initiated non-consensual
blood draws performed pursuant to a search warrant.9 The supreme court again reasoned
that the implied consent statutory consent scheme was intended to be comprehensive and
the State was permitted to charge a person lawfully arrested for DUI with breath-test



   4
       AS 28.35.035(a), (b).
   5
       592 P.2d 1187 (Alaska 1979).
   6
       Id. at 1191.
   7
       Id. at 1192.
   8
       684 P.2d 864 (Alaska 1984).
   9
       Id. at 867.

                                          –4–                                      2515

refusal if the person refused to submit to a requested breath test but the State was not
permitted to seek a search warrant to obtain the same evidence through other means.10
               Thus, under Geber and Pena, if a person lawfully arrested for driving under
the influence refused to submit to a breath test, the State was entitled to charge that
person with the crime of breath-test refusal and could use evidence of the refusal against
the person in the prosecution for the underlying offense of driving under the influence;
but the State was not entitled to compel the person to comply with a non-consensual
chemical test of their breath or blood — even through the warrant process.
               Justice Compton dissented from the holding in Pena. In Justice Compton’s
view, the implied consent statutory scheme addressed only chemical tests given “at the
direction of a law enforcement officer,” not tests compelled by court order through a
lawfully obtained warrant.11 Justice Compton observed that there was “nothing in the
statutes to indicate that the legislature contemplated restricting searches pursuant to
warrant, which derive from the judicial authority of the court, rather than the power of
an officer to search an individual at the time of arrest.”12
               Six years after Pena, in 2000, the Alaska Supreme Court decided Sosa v.
State.13 Sosa involved a defendant who was arrested for driving under the influence in
a remote location. When the police realized that the local breath-test machine was
malfunctioning, they applied for, and obtained, a search warrant to seize a sample of
Sosa’s blood for chemical testing. Sosa resisted the efforts to draw his blood and was



   10
        Id.
   11
        Id. at 868 (Compton, J., dissenting).
   12
        Id.
   13
        4 P.3d 951 (Alaska 2000).

                                            –5–                                     2515

later charged with, and convicted of, tampering with physical evidence based on that
resistance.14
                The Alaska Supreme Court reversed the tampering conviction in Sosa,
applying the same reasoning it relied on in Geber and Pena and concluding that Sosa
could not be compelled to undergo a non-consensual test of his blood, even pursuant to
a warrant, because a malfunctioning breath-test machine did not fit into the statutory
exceptions created by the legislature in AS 28.35.035.15 The State argued that an
exception should be made for circumstances in which no operable breath-test machine
existed and there was therefore no other means to obtain the necessary evidence and no
possible penalties for breath-test refusal. But the supreme court declined to recognize
such an exception.16
                A year after Sosa was decided, the 2001 Alaska legislature declared its
disagreement with the Alaska Supreme Court’s Geber-Pena-Sosa line of precedent by
adding subsection (h) to AS 28.35.031.17 That subsection provides: “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.”18
                When we interpret the intended scope and meaning of a statutory provision
under Alaska law, we apply a sliding-scale approach to statutory interpretation.19 Under
this approach, the plain language of a statute is significant but does not always control

   14
        Id. at 952.
   15
        Id. at 953-54.
   16
        Id. at 953-54.
   17
        Ch. 63, § 12, SLA 2001.
   18
        AS 28.35.031(h).
   19
        Ward v. State, Dep’t of Pub. Safety, 288 P.3d 94, 98 (Alaska 2012).

                                            –6–                                    2515

its interpretation because “legislative history can sometimes alter a statute’s literal
terms.”20 As a general matter, “the plainer the language of the statute, the more
convincing contrary legislative history must be.”21
              Here, the plain language of subsection (h) indicates that the legislature
intended to remove all of the limitations placed by the Alaska Supreme Court on the
government’s ability to use the search warrant process to investigate and obtain evidence
of driving under the influence.
              The legislative history of subsection (h) supports this interpretation. The
sponsor statement expressly states that the intent of the amendment is to repudiate the
reasoning in Pena and Sosa and to adopt the view expressed in Justice Compton’s
dissent in Pena — that is, to adopt the view that the implied consent statutory scheme
limits the authority of the police to obtain a warrantless chemical test incident to a lawful
arrest for DUI, but it was not intended to restrict the authority of the courts to issue a
warrant to compel blood or other chemical evidence upon a proper showing of probable
cause.22
              This point was also made during a discussion of the proposed 2001
amendment in the House Judiciary Committee.23 Chief Assistant Attorney General Dean
Guaneli of the Department of Law told lawmakers that the courts had construed the
implied consent statutes to preclude the police from administering any chemical test

   20
      Id. (quoting Bartley v. State Dep’t of Admin., Teacher’s Ret. Bd., 110 P.3d 1254, 1258
(Alaska 2005)).
   21
        Id. (quoting Bartley, 110 P.3d at 1258).
   22
       Supplemental Sponsor Statement of Rep. Norman Rokeberg for C.S.H.B. 4, 22d Leg.,
1st Sess. (Feb. 16, 2001) (quoting Pena, 684 P.2d at 868 (Compton, J., dissenting)).
   23
      Minutes of House Judiciary Committee, House Bill 4, testimony of Chief Assistant
Attorney General Dean Guaneli, log no. 1623 (Apr. 3, 2001).

                                            –7–                                        2515

other than a breath test “even pursuant to a warrant.”24 Guaneli stated that subsection (h)
“simply tells the court that it cannot construe the statute in this fashion because it is not
what is intended by the legislature.”25
              Evans argues that the legislature’s intent to overrule Pena and Sosa was
more limited. He claims that the legislature enacted subsection (h) to permit the police
to obtain warrants for blood draws only in cases where a breath test is unavailable or
otherwise inadequate — for example, when no operable breath-test machine is available,
or when there is reason to believe the defendant is under the influence of controlled
substances. Evans further contends that the legislature never intended the courts to issue
search warrants for blood draws in “routine” DUI cases like his, where no controlled
substances are suspected and where his refusal to submit to the breath test resulted in a
criminal prosecution for the crime of breath-test refusal.
              In support of this position, Evans points to various legislative committee
hearings in which proponents of the bill explained that it was needed to fix the problems
created by broken breath-test machines or other situations where the breath test or a
charge of breath-test refusal would be inadequate.26 Evans also points to concerns raised




   24
        Id.
   25
        Id.
   26
        See, e.g., Minutes of House Judiciary Committee, House Bill 4, testimony of Chief
Assistant Attorney General Dean Guaneli, log no. 0424 (Mar. 29, 2001) (explaining that one
motivation for AS 28.35.031(h) was the belief that “when law enforcement officers face the
difficult situation of being unable to collect evidence due to a lack of functioning equipment,
they should have the latitude to get search warrants” (emphasis added)); Minutes of House
Judiciary Committee, House Bill 4, testimony of Chief Assistant Attorney General Dean
Guaneli, log no. 0703 (Mar. 29, 2001) (explaining the police need search warrants in
“situations in which the [breath-test] machines break down”).

                                            –8–                                         2515

by legislators that non-consensual blood draws would become routine in every driving
under the influence case.27
              We acknowledge that many of the committee hearings focused on the rare
circumstances where search warrants were needed because a breath test was unavailable
or otherwise inadequate. But a review of the committee hearings as a whole confirms
that the legislature understood that subsection (h) was intended to return full authority
to the court to issue search warrants in DUI investigations, as appropriate under the
circumstances, and unencumbered by any limitations otherwise caused by the implied
consent statutory scheme.28

   27
      See, e.g., Minutes of House Judiciary Committee, House Bill 4, statements of Rep.
Ethan Berkowitz, log nos. 0424, 0996, 1696 (Mar. 29, 2001).
   28
         See, e.g., Minutes of House Judiciary Committee, House Bill 4, testimony of Chief
Assistant Attorney General Dean Guaneli, log no. 0703 (Mar. 29, 2001) (explaining that
under AS 28.35.031(h), judges would consider “whether there is probable cause to believe
that a crime has been committed and that there is evidence of that crime that exits such that
the state should be allowed to seize that evidence” and that the factors that would bear on
whether a warrant should issue are “one, are there sufficient grounds to believe that an
individual was driving drunk; two, is there evidence to be obtained; and three, are there other
ways to obtain that evidence”); Minutes of House Judiciary Committee, House Bill 4,
testimony of Chief Assistant Attorney General Dean Guaneli, log no. 0424 (Mar. 29, 2001)
(“[F]or 200 years, search warrants have been the traditional means used in this country to
gather evidence. [AS 28.35.031(h)] requires that an application be presented to the judge
whereby he/she then determines whether a search can occur, and under what conditions ...
[AS 28.35.031(h)] simply allows officers to use the traditional method for gathering
evidence.”); Minutes of House Judiciary Committee, House Bill 4, testimony of Deputy
Director of the Public Defender Agency Blair McCune, log no. 0255 (Mar. 29, 2001)
(opposing AS 28.35.031(h) because it amounted to a rejection of “what the legislature had
said a number of years ago, that the way to punish people who refuse to take a breathalyzer
test is via the refusal statute,” not by authorizing search warrants for their blood); Minutes
of House Judiciary Committee, House Bill 4, statement of Rep. Jeannette James, log no.
1623 (Apr. 3, 2001) (noting that under AS 28.35.031(h), judges would have discretion
whether or not to issue a warrant in each case).

                                            –9–                                         2515

              The other parts of the legislative history also make this legislative intent
clear. As already noted, the sponsor statement expressly states that the purpose of the
amendment was to eliminate the restrictions on search warrants imposed by the Alaska
Supreme Court’s decision in Pena and to “adopt ... the view expressed by Justice
Compton in his dissenting opinion in Pena v. State” — specifically, the view that “[t]here
simply is nothing in the [implied consent and refusal] statutes to indicate that the
legislature contemplated restricting searches pursuant to warrant.”29 The sectional
analysis further confirms this purpose.30
              Evans argues that if the legislature actually intended AS 28.35.031(h) to be
read this broadly, the legislature would have done more than just enact subsection (h),
it would have also amended or altered the statutory language in the refusal statute —
which still provides that if a person lawfully arrested for driving under the influence
refuses to submit to a breath test, after being advised of the legal consequences of that
refusal, “a chemical test may not be given except as provided by AS 28.35.035” (the
exceptions for injury accident and unconscious motorist).31
              The State responds to this argument by claiming that the enactment of
subsection (h) “impliedly repealed” the “no chemical test may be given” language in the
refusal statute.


   29
       Supplemental Sponsor Statement of Rep. Norman Rokeberg for C.S.H.B. 4, 22d Leg.,
1st Sess. (Feb. 16, 2001) (quoting Pena, 684 P.2d at 868 (Compton, J., dissenting)).
   30
       Sectional analysis for C.S.H.B. 4, 22d Leg., 1st Sess. (Feb. 16, 2001) (stating that the
provision that became subsection (h) “provid[es] that the implied consent statute was not
intended to prevent police search warrants”).
   31
        AS 28.35.032(a) (emphasis added). In his opening brief, Evans cites AS 28.35.­
031(c), which contains similar language. But that subsection governs only preliminary breath
tests. Consequently, we have addressed Evans’s argument as if it were directed to AS 28.35.­
032(a).

                                            – 10 –                                      2515

               We disagree that the doctrine of implied repeal is appropriate here.32 “[I]t
is an established principle of statutory construction that all sections of an act are to be
construed together so that all have meaning and no section conflicts with another.”33
Here, contrary to the State’s argument, the two statutory provisions can be harmonized
with one another and are not in direct conflict.
               The retention of the language “a chemical test may not be given” in the
refusal statute is consistent with the legislative intent to adopt the reasoning of Justice
Compton’s dissent in Pena. As already explained, Justice Compton did not see any
conflict between the statutory limitations on law enforcement’s power to administer
warrantless chemical tests pursuant to the implied consent statutory scheme and the
general authority of the courts to issue search warrants for a person’s breath or blood
upon a proper showing of probable cause.34
               Our decision in Pena (which was reversed by the Alaska Supreme Court)
similarly did not see any conflict between the statutory limitations to the police power
to administer chemical tests to persons who have refused to submit to a blood test under
AS 28.35.032(a) and the court’s separate authority to issue search warrants for evidence
of a crime under AS 12.35.020.35 As Chief Judge Alex Bryner explained, “Both
statutory provisions can be given full effect by reading AS 28.35.032(a) to restrict the
use of chemical tests other than a breathalyzer only in situations where the implied

   32
       See Allen v. Alaska Oil & Gas Conservation Comm’n, 147 P.3d 664, 668 (Alaska
2006) (explaining doctrine of implied repeal under Alaska statutory construction principles).
   33
       Bullock v. State, Dep’t of Cmty. & Reg’l Affairs, 19 P.3d 1209, 1215 (Alaska 2001)
(quoting In re Hutchison’s Estate, 577 P.2d 1074, 1075 (Alaska 1978)).
   34
         Pena v. State, 684 P.2d 864, 868-69 (Alaska 1984) (Compton, J., dissenting).
   35
         Pena v. State, 664 P.2d 169, 175 (Alaska App. 1983), rev’d, 684 P.2d 864 (Alaska
1984).

                                           – 11 –                                       2515

consent statute is relied on as the exclusive source of authority for subjecting a person
to alcohol testing.”36 In other words, in situations where the police are relying on the
implied consent statutory scheme as their authority for subjecting a person to alcohol
testing, they are prohibited from administering non-consensual chemical tests to persons
who have refused to submit to a breath test except in the circumstances listed in
AS 28.35.035. But there are no such limitations to the court’s authority to issue search
warrants for chemical tests for which probable cause otherwise exists.
               Our harmonized reading of these two statutory provisions is further
bolstered by the legislative discussion surrounding a proposed amendment to
AS 28.35.035 as part of the legislation that added subsection (h) to AS 28.35.031.
               As explained above, AS 28.35.035 authorizes the police to compel a
chemical test without a motorist’s express consent under two circumstances: (1) if the
motorist was involved in an accident that resulted in injury or death; or (2) if the motorist
is unconscious or otherwise incapable of refusal. The sponsors of the 2001 bill proposed
expanding the statutory exceptions listed under AS 28.35.035 to allow the police to
compel a chemical test when “exigent circumstances” precluded the administration of
a breath test.37 This amendment was offered as an alternative way to address the
situation in Sosa, where the breath-test machine was broken.38 Chief Assistant Attorney
General Dean Guaneli explained to the House Judiciary Committee that such an




   36
        Id.
   37
        C.S.H.B. 4, § 45, 22d Leg., 1st Sess. (as introduced, Feb. 28, 2001).
   38
       Supplemental Sponsor Statement of Rep. Norman Rokeberg for C.S.H.B. 4, 22d Leg.,
1st Sess. (Feb. 6, 2001).

                                           – 12 –                                      2515

amendment to AS 28.35.035 “would allow, under exigent circumstances, for a blood
sample to be taken without either the suspect’s consent or a search warrant.”39
              Guaneli indicated, however, that the Department of Law considered this
proposed amendment to be less important than the addition of subsection (h) to
AS 28.35.031, which Guaneli characterized as “the important provision,” in the proposed
legislation. Guaneli also commented that adding a general exception for “exigent
circumstances” to AS 28.35.035 “is more risky, legally, because [the police] would need
to prove that the exigent circumstances exist[ed].”40
              Ultimately, the legislature rejected this proposed expansion of police
authority to compel chemical tests under AS 28.35.035. But the legislative discussion
surrounding this proposed amendment further supports our conclusion that the legislature
understood the distinction between the court’s general authority to issue a search warrant
for a chemical test of a person’s breath or blood and the authority of the police to
administer a warrantless chemical test as part of a search incident to a DUI arrest.
              We accordingly conclude that the district court erred when it interpreted
Alaska’s implied consent law as restricting the court’s authority to issue a search warrant
for a chemical test of a person’s blood upon a proper showing of probable cause. We
therefore reverse the district court’s order suppressing the results of the blood test




   39
      Minutes of House Judiciary Committee, House Bill 4, testimony of Chief Assistant
Attorney General Dean Guaneli, log no. 2201 (Mar. 29, 2001).
   40
       Id.; see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2174 (2016) (holding that the
Fourth Amendment does not permit warrantless blood tests incident to arrests for drunk
driving and any exigent-circumstances exception to warrant requirement is determined on
a case-by-case basis); Missouri v. McNeely, 133 S. Ct. 1552, 1568 (2013) (holding that
metabolization of alcohol in bloodstream does not create per se exigency to justify
warrantless, non-consensual blood testing in all drunk-driving cases).

                                           – 13 –                                      2515

administered in Evans’s case, and we remand this case to the district court for further
proceedings on the criminal complaint against Evans.


      Conclusion
             The decision of the district court is REVERSED.




                                        – 14 –                                   2515