Gundersen v. Anchorage
In Foley v. State, 9 P.3d 1038 (Alaska App. 2000), the Court upheld a sentencing judge's finding of "worst offender" under similar circumstances: the defendant's current DWI offense involved dangerous driving but no resulting injuries, and the defendant had a history of seven prior DWI convictions over the preceding fourteen years.
The sentencing judge concluded, based on the defendant's history of prior convictions and failed rehabilitative efforts, that the defendant's rehabilitation was "just not going to happen", and that isolation was the primary sentencing criterion.
The Court concluded that this record supported the sentencing judge's finding of "worst offender", and accordingly we affirmed the defendant's sentence of 5 years' imprisonment.
The supreme court held that, under the due process clause of the Alaska Constitution, a driver arrested for driving under the influence has the right to a reasonable opportunity to challenge the accuracy of a police-administered breath test--either by having the government preserve the breath sample for later re-testing, or by having the government immediately offer the arrested motorist the opportunity for an independent chemical test. Id. at 675-77.
The Gundersen decision prompted the Alaska Legislature to enact AS 28.35.033(e):
"The arrested motorist may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of the person's own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. ... The officer who administers the chemical test shall clearly and expressly inform the motorist of the motorist's right to an independent test described under this subsection, and, if the motorist requests an independent test, the department shall make reasonable and good-faith efforts to assist the motorist in contacting a person qualified to perform an independent chemical test of the motorist's breath or blood."