NCJ Number
116926
Journal
Alaska Law Review Volume: 5 Issue: 2 Dated: (December 1988) Pages: 263-292
Date Published
1988
Length
30 pages
Annotation
This article critiques court decisions pertinent to Burnett v. Municipality of Anchorage (1986), which challenged an Alaska law that makes it a separate misdemeanor to refuse to submit to a chemical test when lawfully under arrest for drunk driving, with penalties identical to an intoxicated driving charge.
Abstract
In petitions for postconviction relief, defendants asserted that requiring submission to a breath test could not be justified either as a search incident to arrest or as a consensual search. The U.S. District Court denied relief, reasoning that the law is valid both as a search incident to arrest and as a consent search. The Ninth Circuit Court affirmed the district court's holding that the law is valid as a search incident to arrest, but it neither relied on nor discussed the district court's consent-search rationale. In disagreeing with the court's ruling, this article relies on Schmerber v. California to show that, to be valid, chemical test searches must be justified by 'exigent circumstances.' The article also argues that because of the coercive and involuntary nature of the tests, the holding on consent searches was wrongly decided. 150 footnotes.