      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

DANIEL V. DENNIS,                              )
                                               )        Supreme Court No. S-14989
                      Appellant,               )
                                               )        Superior Court No. 4FA-11-02914 CI
      v.                                       )
                                               )        OPINION
STATE OF ALASKA,                               )
DEPARTMENT OF                                  )
ADMINISTRATION, DIVISION                       )        No. 6878 – March 21, 2014
OF MOTOR VEHICLES,                             )
                                               )
                      Appellee.                )
                                               )

              Appeal from the Superior Court of the State of Alaska,
              Fourth Judicial District, Fairbanks, Michael A. MacDonald,
              Judge.

              Appearances: Kenneth L. Covell, Fairbanks, for Appellant.
              Andy Harrington, Assistant Attorney General, Fairbanks, and
              Michael C. Geraghty, Attorney General, Juneau, for
              Appellee.

              Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
              Bolger, Justices.

              BOLGER, Justice.

I.    INTRODUCTION
              A motorist was arrested for driving under the influence of alcohol and
submitted to a breath test that indicated his breath alcohol concentration was over the
legal limit. The motorist challenged the revocation of his driver’s license at a hearing
before the Division of Motor Vehicles, arguing that the breath test instrument’s
calibration was not properly verified. The hearing officer concluded that the scientific
director of the Department of Public Safety followed the controlling regulation by
providing for this verification to be performed automatically. The superior court agreed
with the hearing officer and we affirm.
II.   FACTS AND PROCEEDINGS
             Daniel Van Dennis was arrested for driving under the influence of alcohol
and submitted to a chemical test, which showed that his breath alcohol concentration was
over the legal limit. Dennis received a notice of the revocation of his driver’s license,
and he requested a hearing to contest the revocation. Before the hearing, Dennis filed
a motion to suppress the breath test result, arguing that the verification report for the
instrument’s calibration did not comply with the controlling regulation.
             The verification report at issue was signed by the Scientific Director of the
State Breath Alcohol Program, stating:
             (1) I am a Forensic Scientist IV for the State of Alaska
             Scientific Crime Detection Laboratory.

             (2) The Alaska Scientific Crime Detection Laboratory is an
             entity within the Department of Public Safety.

             (3) I am the Scientific Director of the State Breath Alcohol
             Program.

             (4) In that capacity, I am responsible for overseeing the
             Breath Alcohol Program, which includes assuring that
             instruments are calibrated and maintaining program records.

             (5) The above is a true and accurate verification of
             calibration, which is performed by the instrument’s software,
             as specified by the State Breath Alcohol Program.

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             Verification of calibration is a regularly conducted and
             regularly recorded activity of the state breath alcohol
             program.

             (6) The referenced instrument is certified for evidentiary use
             in the State of Alaska.
             The hearing officer found that the verification had been properly performed
by the scientific director or her designee. The hearing officer denied Dennis’s motion
to suppress the breath test and affirmed the license revocation. Dennis appealed to the
superior court, which affirmed the hearing officer’s decision.
III.   STANDARD OF REVIEW
             Alaska Statute 28.15.166(m) “provides that the court may reverse the
department’s determination if the court finds that the department misinterpreted the law,
acted in an arbitrary and capricious manner, or made a [factual] determination
unsupported by the evidence in the record.”1 “Where the superior court acts as an
intermediate court of appeals, we independently review the hearing officer’s decision.”2
IV.    DISCUSSION
             Dennis’s sole argument in this appeal is that the result of his breath test
should not have been admitted against him because the verification of the instrument’s
calibration was performed by the instrument’s software. He relies on 13 Alaska
Administrative Code (AAC) 63.100(c), which provides:
             At intervals not to exceed 60 days, the accuracy of the
             calibration of a breath test instrument must be verified. The
             verification of calibration must be performed by the scientific
             director or by a qualified person designated by the scientific


       1
            Alvarez v. State, 249 P.3d 286, 290-91 (Alaska 2011) (citation and internal
quotation marks omitted).
       2
             Id. at 291 (citation and internal quotation marks omitted).

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              director. A written report of the verification of calibration
              shall be made by the person who performed that
              verification.[3]
To implement this regulation, the Department of Public Safety has adopted a Breath
Alcohol Procedure Manual, which details the procedure for this verification:
              Per 13 AAC 63.100 the accuracy of the calibration of the
              breath test instruments must be verified at least every 60
              days. The documentation of this accuracy check is the
              verification of calibration report. The accuracy check
              performed for the verification of calibration report consists of
              a diagnostic check and five tests of the external dry gas
              ethanol standard. The verification of calibration procedure is
              incorporated into the instrument software under the direction
              of the scientific director. A verification of calibration is
              initiated by the instrument software in intervals of less than
              60 days . . . .[4]
              In the past, these verifications were initiated manually. Now, they are
initiated by the instrument’s software. The manual provides that “[a]t the completion of
a successful verification of calibration the instrument stores a copy of the written report
to memory.” Next, the instrument’s memory is “uploaded to a crime lab computer. . . .
The completed verification of calibration report is printed from the uploaded file and
technically reviewed by the members of the breath test section,” and the report is then
“signed and notarized by the scientific director.”
              The verification report certifies that the scientific director is “responsible
for overseeing the Breath Alcohol Program, which includes assuring that the instruments


       3
              13 AAC 63.100(c) (2013).
       4
              Dennis argues briefly in his reply brief that the breath alcohol procedure
manual “is not in the Administrative Record and ought not be relied on at all.” However,
the hearing officer took official notice of the manual, and Dennis did not raise any
objection at that time.

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are calibrated and maintaining program records.” In that capacity, the scientific director
ensures that the proper verification procedure is incorporated into the instrument
software. Technical review of the verification reports “is performed by a qualified
member of the breath alcohol section prior to the report being reviewed and signed by
the scientific director.” The technical review includes several components, which are
repeated by the scientific director.5 Once the scientific director signs the verification
report, the “report certifies the instrument for continued evidentiary use in the State of
Alaska.”
              We presume that the scientific director properly discharged the duties
outlined in the breath alcohol procedure manual.6 This presumption and the facts
certified in the verification report support the hearing officer’s conclusion that the
scientific director performed this verification.
              Dennis relies on Keel v. State,7 where we held that a breath test result was
inadmissible because the applicable regulation required the instrument to be calibrated
by a certified “instructor,”8 and the state had “failed to prove that the last calibration of


       5
              These components include verification that the external dry gas ethanol
standard cylinder lot number and expiration date are included in the list of approved
cylinders kept at the crime lab; that the five external standard results fall within +/- 0.005
of the target value, adjusted for barometric pressure; that the standard deviation of the
five external standard results is equal to or less than 0.0030; that each component of the
diagnostic check reads “passed”; and that there are no status messages.
       6
               See Wallace v. State, 933 P.2d 1157, 1162 (Alaska 1997)(“Where no
evidence indicating otherwise is produced, the presumption of regularity supports the
official acts of public officers, and courts presume that they have properly discharged
their official duties.” (citation omitted)).
       7
              609 P.2d 555 (Alaska 1980).
       8
              Id. at 558.

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the instrument prior to [the appellant’s] test was done by an instructor as defined by the
regulations.”9 Dennis argues that this case is controlled by Keel because, in both cases,
“the wrong individual performed the test.”
              However, Keel is distinguishable because, there, the regulation required an
“instructor” to calibrate the machine, and we concluded that this requirement had not
been satisfied.10 Here, by contrast, there is no issue about the qualifications of the
scientific director or the personnel she designates to assist her with the verification
report. We conclude that the procedures detailed in the manual support the hearing
officer’s finding that the verification in this case was performed by the scientific director.
              When the superior court reviewed the hearing officer’s decision in this case,
the judge concluded that “[v]erification of calibration is performed by [the scientific
director] to the extent that, by program[m]ing the software, she is causing verification
of calibration to be automatically initiated at regular intervals and she is causing the test
results to be automatically sent to her. This complies with 13 AAC 63.100.” We agree
with the superior court’s reasoning. We thus conclude that the verification procedure
described in this record complies with the controlling regulation.
V.     CONCLUSION
              For the foregoing reasons, we AFFIRM the superior court’s decision to
uphold the decision of the Division of Motor Vehicles.




       9
              Id.
       10
              Id. at 558-59

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