The Haines Police Department’s illegal acquisition of blood samples in several DUI cases led to reduced charges for defendants in recent months.
From May until mid-September, police were without a working DataMaster, a machine that tests alcohol content in a person’s breath. In lieu of breath testing, officers began using blood testing to assess alcohol levels during arrests for drunk driving.
According to state law, a person arrested for driving under the influence is required to submit to a breath test; refusal to submit results in an additional charge on top of the DUI. The refusal law, however, does not apply to blood tests.
“The law requires a person to take a breath test when charged with DUI. So knowing that our breath test machine was not functioning, we just substituted blood test for breath test and then realized that the law doesn’t require a blood test. The law requires specifically a breath test,” said police chief Gary Lowe.
Lowe said he doesn’t know how many individuals were misled into believing they were legally required to provide a blood sample.
“There was more than one, and I don’t know how many, that they were told they had to take a blood test or be cited for refusal,” Lowe said.
The CVN found four recent cases reduced from DUI to either reckless driving or reckless endangerment because of “legal issues” related to illegally or questionably obtained blood samples.
Donald Hotch, Jr. drove his car into a pond near 12 Mile Haines Highway on May 25. Hotch allegedly told Sgt. Simon Ford he had been driving home from a downtown bar when he became sleepy and drove off the road. According to the affidavit, Hotch failed a battery of sobriety tests, was arrested, and on the way to jail had several spontaneous outbursts expressing regret at his intoxication. At the station, officers led Hotch to believe he was required to provide a blood sample because their breathalyzer was not working. Hotch complied.
(Lowe this week said police later began asking arrested drivers if they were willing to submit to a blood test. “We told them, ‘You are required to take a breath test. If you don’t take a breath test, you’re subject to refusal.’ And then we told them, ‘Our breath test machine is not functioning, so are you willing to take a blood test?’”)
On Aug. 30, Hotch’s public defender David Seid filed a motion to suppress the blood sample as evidence in Hotch’s case because it was illegally obtained. Seid wrote: “Under the implied consent statute, there is no exception that allows unconsented blood draws if the breath testing machines malfunction. Indeed, the court of appeals explicitly stated there is no implied consent under Alaska law to a blood test when a person is arrested for driving under the influence.”
District Attorney Amy Williams did not oppose the motion to suppress. The court granted the motion on Sept. 5 and suppressed the results of the illegally obtained blood sample. Hotch was subsequently convicted of reckless driving. An alcohol-related weapons charge was thrown out. Court records show the district attorney said the “reduction is for legal reasons” during a Sept. 26 hearing.
On May 28, Francis Adams was charged with DUI and refusal to submit to a chemical test. An affidavit signed by Sgt. Ford said Adams “refused to submit to a chemical test to determine the alcoholic content of her blood.”
On Sept. 26, Adams’ DUI was reduced to reckless driving and her refusal charge was thrown out. Court documents show the district attorney explained the reduction as “another case afflicted by the same legal issues as Mr. Hotch’s case.”
According to docket information from sentencing hearings, DUI charges brought against Blake Mcdonald and James Ritter were reduced because of “legal issues.”
Mcdonald’s attorney David Mallet confirmed the DUI was reduced because of an illegal blood draw conducted Oct. 30, 2011.
In some of the cases, sentences were “roughly equivalent” to what a DUI charge would have garnered. Ritter, convicted of reckless driving, received no jail time, no fine, minimal fees, and a 30-day license revocation. A first offense DUI carries a minimum sentence of three days in jail, $1,500 in fines, a 90-day license revocation, and six months of driving with an ignition interlock device.
Mcdonald ultimately received a reckless endangerment conviction, which carried no jail time and a $500 fine. An open container charge was thrown out.
District Attorney Amy Williams said she would not comment on the matter because of similar on-going cases.
Lowe confirmed the inoperative breathalyzer essentially worked as a loophole all summer for individuals arrested for driving under the influence.
Lowe said a component of the department’s DataMaster CDM - specifically, a gas canister used to monitor accuracy- ran out in May.
Instead of sending HPD a new canister, the state wanted to replace the old DataMaster with a newer model, called the DataMaster DMT. Before using the newer model, however, officers at HPD needed to be properly trained on how to use it.
“The state wouldn’t give us a new (canister) because they were going to replace (the DataMaster). And they couldn’t replace it until we had somebody certified under the new machine and they didn’t have a class available until September to teach that,” Lowe said.
Brandi Barnett, forensic scientist for the State of Alaska Crime Detection Laboratory, would not comment on why HPD was forced to go without an operable model of DataMaster for nearly five months. She referred the CVN to her supervisor Nita Bolz, who has not returned calls.
HPD sent an officer to Anchorage in September to be trained as an instructor in using the new DataMaster.