Anchorage v. Serrano

In Anchorage v. Serrano, 649 P.2d 256 (Alaska App. 1982) the Court acknowledged that motorists who are arrested for driving while intoxicated and who submit to the breath test mandated by AS 28.35.031 have a constitutional right to be afforded a reasonable opportunity to challenge the government's breath test result. The Court held that the government could honor this right either by preserving a second breath sample for later independent testing, or by offering the motorist a contemporaneous opportunity to take an independent blood test. Because of the decision in Serrano, this constitutional right to independently test the government's breath test result was firmly established in 1982. In Anchorage v. Serrano, the Court was asked to determine whether, under the logic of Lauderdale, the State should be required to preserve a breath sample so that a person charged with driving while intoxicated could have the breath sample independently examined to challenge the result of a State administered breath test. The Court concluded that "due process ... requires the prosecution to make reasonable efforts to preserve a breath sample in those cases in which they wish to admit the result of a breath test." But we concluded that the State was not limited to preserving a breath sample to allow the defendant to challenge a breath test result. The Court pointed out that the State could "take other steps" to allow a defendant to determine the accuracy of the breath test. The Court suggested that the defendant could be informed of his right to secure an independent test and, if he requested an independent test, could be allowed or assisted to obtain that test. (Id. at 258 n.5.)