Section 28.35.031. Implied consent.

   (a) A person who operates or drives a motor vehicle in this state or who operates an aircraft as defined in AS 28.35.030(u) or who operates a watercraft as defined in AS 28.35.030(u) shall be considered to have given consent to a chemical test or tests of the person's breath for the purpose of determining the alcoholic content of the person's blood or breath if lawfully arrested for an offense arising out of acts alleged to have been committed while the person was operating or driving a motor vehicle or operating an aircraft or a watercraft while under the influence of an alcoholic beverage, inhalant, or controlled substance or if lawfully arrested under AS 28.35.280 for the offense of minor operating a vehicle after consuming alcohol. The test or tests shall be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle or operating an aircraft or a watercraft in this state while under the influence of an alcoholic beverage, inhalant, or controlled substance or that the person was a minor operating a vehicle after consuming alcohol.
   (b) A person who operates or drives a motor vehicle in this state or who operates an aircraft or watercraft shall be considered to have given consent to a preliminary breath test for the purpose of determining the alcoholic content of the person's blood or breath. A law enforcement officer may administer a preliminary breath test at the scene of the incident if the officer has probable cause to believe that a person's ability to operate a motor vehicle, aircraft, or watercraft is impaired by the ingestion of alcoholic beverages and that the person
        (1) was operating or driving a motor vehicle, aircraft, or watercraft that is involved in an accident;
        (2) committed a moving traffic violation or unlawfully operated an aircraft or watercraft; in this paragraph, "unlawfully" means in violation of any federal, state, or municipal statute, regulation, or ordinance, except for violations that do not provide reason to believe that the operator's ability to operate the aircraft or watercraft was impaired by the ingestion of alcoholic beverages; or
        (3) was operating or driving a motor vehicle in violation of AS 28.35.029(a).
   (c) Before administering a preliminary breath test under (b) of this section, the officer shall advise the person that refusal may be used against the person in a civil or criminal action arising out of the incident and that refusal is an infraction.  If the person refuses to submit to the test, the test shall not be administered.
   (d) The result of the test under (b) of this section may be used by the law enforcement officer to determine whether the driver or operator should be arrested.
   (e) Refusal to submit to a preliminary breath test at the request of a law enforcement officer is an infraction.
   (f) If a driver or operator is arrested, the provisions of (a) of this section apply.  The preliminary breath test authorized in this section is in addition to any tests authorized under (a) of this section.
   (g) A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person's breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person's blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person. The test or tests may be administered at the direction of a law enforcement officer who has probable cause to believe that the person was operating or driving a motor vehicle in this state that was involved in an accident causing death or serious physical injury to another person.
   (h) Nothing in this section shall be construed to restrict searches or seizures under a warrant issued by a judicial officer, in addition to a test permitted under this section.

Authorities

28.15.165;28.15.166;28.15.181;28.35.032;28.35.035;28.35.285

Notes

References

AS 28.15.165 Administrative revocations and disqualifications resulting from chemical sobriety tests and refusals to submit to tests.
AS 28.15.166 Administrative review of revocation.
AS 28.15.181 Court suspensions, revocations, and limitations.
AS 28.35.032 Refusal to submit to chemical test.
AS 28.35.035 Administration of chemical tests without consent.
AS 28.35.285 Minor's refusal to submit to chemical test.

History

(Sec. 1 ch 83 SLA 1969; am Sec. 11 ch 129 SLA 1980; am Sec. 16 ch 117 SLA 1982; am Sec. 16 ch 77 SLA 1983; am Sec. 1 - 4 ch 76 SLA 1985; am Sec. 2 ch 142 SLA 1988; am Sec. 7 ch 55 SLA 1994; am Sec. 8 ch 143 SLA 1996; am Sec. 12 ch 63 SLA 2001; am Sec. 34 - 36 ch 60 SLA 2002)