Paul A. Clark


Section 28.90.020 of the Alaska Statutes provides that in prosecutions for drunk driving, "if an offense described under this title requires that a chemical test of a person's breath produce a particular result, and the chemical test is administered by a properly calibrated instrument approved by the Department of Public Safety, the result described by statute is not affected by the instrument's working tolerance." This provision appears to prohibit the defense from calling into question the accuracy of a breath test by introducing evidence of uncertainty inherent in the testing procedure. The statute is problematic because due process requires that defendants be permitted to challenge the evidence presented against them. Moreover, there is a strong argument that basing conviction on a single breath sample that is within a known margin of error is a per se violation of due process, as it bases guilt or innocence on a purely fortuitous result. This Article examines the issues with Alaska's statute and proposes using multiple breath tests as a simple, cost-effective solution to this potential abuse of due process.

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