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             IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TERRY VELARDE,
                                                      Court of Appeals No. A-11356
                            Appellant,                Trial Court No. 3PA-11-435 CR

                     v.
                                                               OPINION
S TATE OF ALASKA,

                            Appellee.                    No. 2461 — July 2, 2015


              Appeal from the Superior Court, Third Judicial District, Palmer,
              Vanessa White, Judge.

              Appearances: Margi Mock, under contract with the Public
              Defender Agency, and Quinlan Steiner, Public Defender,
              Anchorage, for the Appellant. Donald Soderstrom, Assistant
              Attorney General, Office of Criminal Appeals, Anchorage, and
              Michael C. Geraghty, Attorney General, Juneau, for the
              Appellee.

              Before: Mannheimer, Chief Judge, and Allard and Kossler,
              Judges.

              Judge KOSSLER, writing for the Court.

              Chief Judge MANNHEIMER, concurring.



              Terry Velarde was convicted of felony driving under the influence, driving
with a suspended license, failure to stop at the direction of a peace officer, and resisting
arrest. On appeal, Velarde raises two claims.
               First, Velarde argues that the superior court should have suppressed his
breath test result based on trooper interference with his right to an independent chemical
test. Specifically, he claims that the trooper interfered with his right to an independent
test when the trooper only told him he could have a blood test, not that he could obtain
a chemical test other than a blood test. Because we conclude that the trooper did not
interfere with Velarde’s right to an independent chemical test when he offered Velarde
a blood test, we affirm the superior court’s denial of his motion to suppress.
               Second, Velarde argues that there was insufficient evidence for the jury to
find that he used force to resist arrest. Because we conclude that the evidence was
sufficient for a jury to find that Velarde actively fought the troopers’ effort to arrest him,
we affirm his conviction for resisting arrest.


       Facts
               According to the trial testimony, while responding to a report of an
underage drinking party at a home in the Mat-Su area in February 2011, Alaska State
Troopers contacted Terry Velarde, who had arrived to pick up his son from the party.
As Velarde arrived at the home, his vehicle was moving too fast for the slippery
conditions and slid in the driveway. Alaska State Trooper Anthony Stariha contacted
Velarde and noticed that he had an odor of alcohol, slurred speech, and bloodshot eyes.
He also noticed that Velarde had trouble standing. Stariha told Velarde to remain at the
scene while he helped break up the party; instead, Velarde drove away. Alaska State
Trooper Sergeant Jacob Covey tried to stop Velarde after observing him drive
approximately ten miles per hour over the speed limit. Despite places to pull over,
Velarde continued to drive until he pulled into a gas station off the Parks Highway.
               Velarde got out of his vehicle and went into the bathroom at the gas station,
locking himself inside. The station clerk provided a key, and the troopers unlocked the


                                            –2–                                          2461

bathroom door and tried to handcuff Velarde, but he struggled with them. It took several
troopers to get Velarde handcuffed and under control.
              The troopers transported Velarde to a station for DUI processing. Velarde’s
breath test result showed a blood-alcohol level of .173 percent. Trooper Stariha read
Velarde a notice of his right to an independent chemical test. Velarde at first was
interested in an independent test, but after asking several questions about it, he decided
not to get one.
              The State charged Velarde with felony DUI, driving with a suspended
license (DWLS), failure to stop at the direction of an officer, and resisting arrest.
Velarde moved to suppress his breath test result, in part arguing that the trooper
interfered with his right to an independent chemical test. After an evidentiary hearing,
Superior Court Judge Vanessa White denied his motion, finding that the trooper offered
to help Velarde obtain a blood test but that Velarde had waived his right to an
independent test.
              On the morning of trial, Velarde pleaded guilty to DWLS, and the jury
subsequently convicted him of the other charges. Velarde appeals his felony DUI and
his resisting arrest convictions.


       The trooper did not interfere with Velarde’s right to an independent
       chemical test
              During Velarde’s DUI processing, Trooper Stariha read Velarde a form
giving him notice of his right to an independent chemical test. During this reading, they
had the following exchange:
                    Stariha: You have four choices here: “[I] do not wish
              an independent chemical test;” second choice, “I want a
              blood draw — a blood sample drawn at the government’s
              expense;” third choice is, “I want a chemical test at my own
              expense to be administered at the location;” third [sic] is,

                                          –3–                                        2461

              “refuse to decide or sign.” Which one of those would you
              like?
                     Velarde: (indiscernible) get bailed out right now,
              that’s all.
                     Stariha: Well, I’m asking you, do you want a blood
              test? “I do not wish an independent test,” that’s one; “I want
              a blood sample drawn at the government’s expense,” that’s
              two; “I want a chemical test at my own expense to be
              administered,” that’s three; or, “[I] refuse to decide or sign.”
                    Velarde: Oh, so how long does it take to get one [for]
              myself?
                      Stariha: I don’t know. Do you want — that’s what
              this is asking. Do you want a bl — independent test?
                     Velarde: I — I can possibly get one, yeah.
                     Stariha: Do you want one?
                     Velarde: Yes.
                     Stariha: You want an independent test?
                    Velarde: Yeah, so — so how’s that — how’s that
              work, though?
                     Stariha: Well, if you want an independent test, we’ll
              transport you to Mat-Su Regional Medical Center and we’ll
              get a blood draw.
                     Velarde: Oh. No, I’m not going to get stabbed.
                     Stariha: You — so you don’t want a blood test?
                     Velarde: No, I don’t want to get stabbed by nobody.
              No.

                     Stariha: All right.

              After the State charged him, Velarde filed a suppression motion, claiming
that the trooper interfered with his right to an independent chemical test by not clarifying
whether Velarde wanted an independent test other than a blood test.

                                            –4–                                        2461

             Relying on AS 28.35.033(e), Judge White ruled that the two options for an
independent chemical test were a breath test or a blood test. Because the trooper had
offered to transport Velarde to the hospital for a blood test, Judge White found that the
government had complied with its duty to offer an independent chemical test and that
Velarde had voluntarily waived his right to the test.
             On appeal, Velarde argues that Judge White erred in refusing to suppress
his breath test result. Velarde contends the trooper violated Velarde’s constitutional and
statutory rights to an independent chemical test when, in response to Velarde’s question
about what a chemical test entailed, the trooper only explained the process for obtaining
a blood test. Velarde argues that the trooper’s response to his questions was incomplete
because the trooper did not explain that Velarde could obtain any chemical test of his
choosing, not just a blood test. Velarde asserts that he would have obtained a chemical
test that did not involve needles had the trooper explained all of his options. In support
of his argument, Velarde relies on the language of AS 28.35.033(e) and other related
statutes1 and an Alaska Supreme Court case giving a broad interpretation to the phrase
“a chemical test” in one of the implied consent statutes.2
             Velarde’s argument is premised on the assertion that he had the right to an
independent chemical test other than a blood test.
             The right of an individual arrested for driving under the influence to have
an independent chemical test arises from two different sources. The Alaska Constitution
provides for the constitutional right to an independent test,3 and AS 28.35.033(e)
provides for the statutory right to an independent test. We first will address Velarde’s


   1
       See AS 28.33.031(a)(2); AS 28.35.031(g).
   2
       See Anchorage v. Geber, 592 P.2d 1187, 1191 (Alaska 1979).
   3
      See Snyder v. State, 930 P.2d 1274, 1278-79 (Alaska 1996); Anchorage v. Serrano,
649 P.2d 256, 259 (Alaska 1982).

                                          –5–                                        2461

claim that the trooper violated his constitutional right to an independent test, and then
address Velarde’s argument as it relates to the statutory right to an independent test.
             The Alaska Supreme Court has held that the government’s offer of a blood
test — without the option of another type of chemical test — satisfies the constitutional
right to an independent chemical test.4 Thus, Velarde’s claim that the trooper interfered
with his constitutional right to an independent chemical test by giving him solely the
option of a blood test has been squarely rejected by the Alaska Supreme Court.
             Velarde’s claim that the trooper interfered with his statutory right to an
independent chemical test under AS 28.35.033(e) likewise fails.
             Prior to 2002, AS 28.35.033(e) stated, in relevant part:
                     The person tested 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.
But in 2002, the legislature amended this statute to include the following language at the
end of the subsection:
             The person who administers the chemical test shall clearly
             and expressly inform the person tested of that person’s right
             to an independent test described under this subsection, and,
             if the person being tested requests an independent test, the
             department shall make reasonable and good-faith efforts to
             assist the person being tested in contacting a person qualified
             to perform an independent chemical test of the person’s
             breath or blood.
             The legislature added the above language in response to the supreme court’s
decision in Gundersen v. Anchorage, 792 P.2d 673 (Alaska 1990). As discussed above,
Gundersen held that the constitutional right to an independent chemical test is satisfied


   4
       See Gundersen v. Anchorage, 792 P.2d 673, 677-78 (Alaska 1990).

                                          –6–                                        2461

by the offer of a blood test at government expense. The Gundersen court also held that
compliance with the statutory right to an independent chemical test will fulfill the
constitutional right if the government clearly informs the defendant of his statutory right
to an independent test and makes reasonable efforts to help the defendant obtain access
to a person qualified to perform an independent test, provided such a test is in fact
available.5
               In response to Gundersen, the legislature modified AS 28.35.033(e).6 As
explained above, the statute now provides that the government must advise a person
arrested for DUI or refusal of his right to obtain an independent chemical test of his
breath or blood and must assist the defendant in obtaining such a test. The legislative
history of this amendment shows that the legislature intended to codify the supreme
court’s holding in Gundersen.7 As mentioned above, the supreme court held that the
offer of a blood test without other options fulfills the constitutional right to an
independent test. When the legislature amended AS 28.35.033(e), the legislature
permitted the government to offer either an independent breath test or an independent
blood test.
               Here, the trooper explained that Velarde had the right to obtain a blood test
and that the trooper was willing to transport Velarde to the local hospital to obtain that
test.   By offering Velarde an independent blood test, the trooper complied with




    5
        Id. at 676-77.
    6
      See House Judiciary Committee Files, Final Report of the DUI Prevention Task Force,
Municipality of Anchorage, at 7 (2000).
    7
     Id.; Minutes of House Transportation Committee, H.B. 4, testimony of Rep. Norman
Rokeberg, after log no. 2170 (Feb. 22, 2001); Finance Committee Files, Rep. Norman
Rokeberg, Work Draft Q Sectional Analysis, at 5 (2002).

                                            –7–                                        2461

AS 28.35.033(e) and did not interfere with Velarde’s exercise of his statutory right to an
independent test.
                We affirm Judge White’s denial of Velarde’s motion to suppress his breath
test result.


        Sufficient evidence supports Velarde’s conviction for resisting arrest
                A person commits the crime of resisting arrest under AS 11.56.700(a)(1)
if the person uses force to resist an arrest by a police officer, with the intent of preventing
the arrest.8 For the purposes of Velarde’s case, “force” is defined as “any bodily impact
... or the threat of imminent bodily impact.”9 Velarde contends that the evidence was
insufficient to support the conclusion that he used force to resist his arrest and that the
superior court should have granted his motion for a judgment of acquittal on the charge.
                In interpreting the resisting arrest statute, we have required proof of more
than “passive resistance” or “mere non-submission to an arrest.”10 We have upheld
convictions for resisting arrest where the defendant has directed force at an officer with
the intent of preventing the arrest or actively struggled against the officer’s efforts to
arrest him.11


   8
        AS 11.56.700(a)(1) (“A person commits the crime of resisting or interfering with
arrest if, knowing that a peace officer is making an arrest, with the intent of preventing the
officer from making the arrest, the person resists personal arrest ... by ... force[.]”).
   9
        AS 11.81.900(b)(27) (“‘[F]orce’ means any bodily impact, restraint, or confinement
or the threat of imminent bodily impact, restraint, or confinement, ‘force’ includes deadly and
nondeadly force[.]”).
   10
       See Fallon v. State, 221 P.3d 1016, 1021 (Alaska App. 2010); Eide v. State, 168 P.3d
499, 503 (Alaska App. 2007) (Mannheimer, J., concurring).
   11
      Id.; Alexie v. State, 2013 WL 1315034, at *2 (Alaska App. Apr. 3, 2013)
(unpublished).

                                             –8–                                          2461

                In Fallon v. State, this Court upheld a resisting arrest conviction based on
evidence that
                       Fallon ... struggled against [Trooper] Carson’s efforts
                to arrest him[.] When Carson took Fallon to the back of the
                patrol car, Fallon pushed himself away from the car, so that
                Carson had to take him to the ground. With Fallon in that
                position, Carson still could not handcuff him, because Fallon
                tried to get up and continued to tense his arms against his
                back. Ultimately, it took the help of a passing motorist to get
                Fallon handcuffed and in the patrol car.12
We concluded that Fallon’s conduct “went beyond ‘mere non-submission,’” and we
upheld Fallon’s conviction for resisting arrest by force.13
                In reviewing a sufficiency of the evidence claim, we view the evidence in
the light most favorable to the jury’s verdict.14 We therefore recite the evidence in that
light. The evidence in Velarde’s case is similar to that of Fallon.
                At trial, Sergeant Covey testified that after Velarde finally stopped his truck
at the gas station on the Parks Highway, he followed Velarde into the station, telling him
to stop. Velarde said he was busy and locked himself in the bathroom. When other
troopers arrived, they were able to open the bathroom door, but only with the assistance
of the store clerk. When the troopers pulled Velarde away from the bathroom sink and
tried to put his hands behind his back, Velarde moved his shoulders to keep the troopers
from handcuffing him. Two troopers had to force Velarde’s hands around to his back
to handcuff him. Sergeant Covey then escorted Velarde out of the bathroom and into the
hallway. Because Velarde continued to struggle with him, Sergeant Covey put Velarde



   12
        Fallon, 221 P.3d at 1021.
   13
        Id.
   14
        See Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).

                                             –9–                                          2461

against the hallway wall, facing it. Velarde braced his knees against the wall to push his
body back against Sergeant Covey. Sergeant Covey told Velarde to stop, and he put
Velarde on the floor with a leg sweep to control him. Velarde kept trying to get up from
the floor.
                Trooper Stariha testified that when he arrived, he saw that Sergeant Covey
had Velarde down on the floor and was kneeling on Velarde’s back. He testified Velarde
“was kicking and trying to get back up,” so Trooper Stariha used a leg lock to help get
Velarde under control. Together, the troopers were able to subdue Velarde.
                As mentioned, we must view the foregoing evidence in the light most
favorable to the verdict.15 Viewing the evidence in this manner, we conclude that a fair-
minded juror could reasonably find that Velarde used force directed at the troopers with
the intention of preventing his arrest. Accordingly, we affirm Velarde’s conviction for
this offense.


        Conclusion
                We AFFIRM the judgment of the superior court.




   15
        Id.

                                           – 10 –                                    2461

Judge MANNHEIMER, concurring.



              I write separately to emphasize the question of statutory interpretation that
we are deciding here.
              The statute that governs a DUI arrestee’s right to an independent test,
AS 28.35.033(e), declares that if the arrestee requests an independent test, the police are
required to make reasonable, good-faith efforts “to assist the [arrestee] in contacting a
person qualified to perform an independent chemical test of the [arrestee’s] breath or
blood.” The question is whether the statute contemplates that the police can choose
between offering the arrestee a breath test or a blood test — or whether, instead, the
statute endows the arrestee with the right to choose between these two tests.
              As the lead opinion explains, the supreme court held in Gunderson v.
Anchorage that the police may validly offer the arrestee only one form of independent
test, and the arrestee has no right to demand another form of test. 792 P.2d 673, 677-78
(Alaska 1990). And as the lead opinion further explains, the legislative history of AS
28.35.033(e) shows that this statute was intended to codify the decision in Gunderson.
              We therefore conclude that, when the statute speaks of an independent test
of “breath or blood”, the type of independent test is at the option of the police, not the
arrestee.




                                          – 11 –                                      2461

