Alaska: Comment on refusal of an alternative DUI test is tantamount to a comment on exercise of a constitutional right in refusing consent

Alaska holds that a prosecutor’s comment that the defendant refused a second test is tantamount to a comment on the defendant’s right to refuse consent. Bluel v. State, 153 P.3d 982 (Alaska 2007):

In our view, the dilemma faced by the defendants in Elson, Padgett, and Bargas was functionally and legally indistinguishable from the dilemma Bluel faced here. As the state acknowledges, once Bluel submitted to the DataMaster test, Alaska’s implied consent law entitled him to an independent test; under the law he could opt to arrange a test of his own choosing, ask for help in obtaining a test, or choose no test at all. In offering to help Bluel obtain an independent test, the state’s standard “Notice of Right to an Independent Test” form expressly told him that if he did choose to have an independent test, the state could seek to obtain the evidence and use it against him. The state does not seem to dispute that the independent test would have required a physical intrusion sufficient to qualify as a search. Nor does the state dispute that the implied consent law required the state to honor Bluel’s choice; in other words, that the law precluded the state from compelling Bluel to submit to another blood-alcohol test.

In terms of its practical consequences, then, Bluel’s refusal to accept the state’s offer to arrange an independent test is indistinguishable from a refusal to consent to a search. Moreover, the provisions of Alaska’s implied consent laws that give Bluel the right to choose whether to obtain an independent test reflect the same “carefully balanced” consideration of policy interests that would have precluded Bluel from being ordered to submit to another test.

Finally, the statutory right to an independent test implicates concerns for fundamental fairness rooted in the due process right to effectively analyze and challenge the reliability of the state’s compelled breath-test evidence. We have described this due process right as one that is “closely analogous, if not equivalent, to” the right of cross-examination, since it affords the defendant the opportunity to “bring out facts which will tend to discredit” the results of the mandatory test. n38 Just as a decision to bypass the opportunity for cross-examination creates no inference of guilt, a decision to bypass an independent test also cannot properly be seen as a “badge of guilt.”

For all of these reasons, even if evidence of Bluel’s right to refuse testing might not have directly violated any constitutional rights, we conclude that this evidence exposed him to essentially the same risk of unfair prejudice as commenting on his assertion of the constitutional right to refuse an unreasonable search. Thus, Bluel is entitled to a commensurate level of protection from such evidence; that is, he is entitled to insist that his exercise of the right to refuse independent testing not be chilled by the state’s use of his refusal as a “badge of guilt.”

Ordering a defendant from a vehicle so a consent search could occur is not unreasonable. State v. Boles, 952 So. 2d 586 (Fla. App. 4th Dist. 2007):

When a driver is lawfully stopped for a traffic violation, once the purpose of the initial stop and detention has been satisfied, absent a reasonable, articulable suspicion of illegal activity, the officer no longer has a legal basis to continue to detain the motorist. State v. Breed, 917 So. 2d 206, 208 (Fla. 5th DCA 2005). However, “[d]uring a valid traffic stop, or even if a valid traffic stop has had its lawful function completed and turns into a citizen encounter, there is no reason a law enforcement officer cannot ask for consent to search.” State v. Cromatie, 668 So. 2d 1075, 1077 (Fla. 2d DCA 1996). If a driver freely and voluntarily consents to a search of himself or the vehicle, the detention may continue, see State v. Johns, 920 So. 2d 1156, 1158 (Fla. 2d DCA 2006), and narcotics seized incident to that search will generally be shielded from suppression. State v. Kindle, 782 So. 2d 971, 973 (Fla. 5th DCA 2001).

Here, Boles agreed to the search of his vehicle. He contends, however, that the officer did not ask nor did he consent to his removal from his vehicle. We reject this reasoning. Instead, we conclude that the consent to search the vehicle necessarily includes the removal of any persons in the vehicle in order to facilitate the search. Of course, because the search is consensual, the person who has consented may withdraw his consent and refuse to exit the vehicle.