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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

BELINDA DANICE NELSON, 

Court of Appeals Nos. A-13008 & A-13014 

Appellant/Cross-Appellee, Trial Court No. 1KE-17-00024 CR 

v. 

O P I N I O N 

STATE OF ALASKA, 

Appellee/Cross-Appellant. No. 2721 — February 18, 2022 

Appeal from the District Court, First Judicial District, 

Ketchikan, Kevin G. Miller, Judge. 

Appearances: Emily L. Jura, Assistant Public Defender, and 

Samantha Cherot, Public Defender, Anchorage, for the 

Appellant/Cross-Appellee. Michal Stryszak, Assistant Attorney 

General, Office of Criminal Appeals, Anchorage, and Kevin G. 

Clarkson, Attorney General, Juneau, for the Appellee/CrossAppellant. 

Before: Allard, Chief Judge, and Wollenberg and Harbison, 

Judges. 

Judge WOLLENBERG. 

Belinda Danice Nelson was charged with driving under the influence and 

refusal to submit to a chemical test after she drove her car into a ditch in Metlakatla. At 

her bench trial, Nelson argued that the government violated her right to due process by 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

failing to advise her of her right to an independent chemical test. She further argued that, 

as a result of this violation, the district court was required to presume that an independent 

test would have revealed either no alcohol or a low level of alcohol in her blood. 

The State did not dispute, and the court agreed, that Nelson’s right to due 

process was violated by the failure to advise her of her right to an independent chemical 

test. But the court concluded that the proper remedy for this violation was to presume 

only that the result of the test would have been below .08 percent. The court ultimately 

found Nelson guilty of driving under the influence, but acquitted her of refusal to submit 

to a chemical test. 

Nelson now appeals her conviction, primarily challenging the district 

court’s ruling regarding the applicable presumption. 

For the reasons we explain in this opinion, we agree that the presumption 

adopted by the district court was insufficiently favorable to Nelson, and we reverse her 

conviction for driving under the influence. 

Factual and procedural background 

In the fall of 2016, Nelson crashed her car into a ditch in Metlakatla. 

Metlakatla Police Chief Bruce Janes responded to the scene. Upon arrival, Janes 

observed Nelson unsuccessfully attempting to drive her car out of the ditch. According 

to Janes, Nelson was uncooperative, initially refused to get out of her car, and later 

refused to perform field sobriety tests. He also testified that her breath smelled of 

alcohol, and she staggered when she tried to walk. 

Janes arrested Nelson for driving under the influence. 

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At the police station, Janes asked Nelson if she would submit to a breath 

test, but Nelson remained silent. Janes did not notify Nelson of her right to an 

independent chemical test.1 No breath or blood test was ever conducted. 

Nelson was charged with driving under the influence under 

AS 28.35.030(a)(1).2

 Under this portion of the statute, the government is not required 

to prove that the defendant’s blood or breath alcohol content was at a particular level as 

determined by a chemical test. Instead, the government must prove that the defendant 

was “actually impaired” by the consumption of alcohol (or a controlled substance).3 In 

this type of case, however, evidence of a defendant’s blood or breath alcohol content as 

determined by a chemical test may be relevant to determining whether the defendant was 

impaired.4 

Nelson waived her right to a jury trial, and her case proceeded to a bench 

trial. Nelson testified in her own defense. She testified that she had been having car 

problems, which contributed to her driving into the ditch. She denied drinking any 

1 See AS 28.35.033(e) (codifying right to independent chemical test); Gundersen v. 

Anchorage, 792 P.2d 673, 676-77 (Alaska 1990) (holding that the Alaska due process clause 

requires that a defendant accused of driving under the influence be given an opportunity to 

challenge the reliability of the police-administered breath test, and that notice of the right to 

obtain an independent chemical test, and assistance in obtaining that test, satisfies that right). 

2 Nelson was also charged with refusal to submit to a chemical test under 

AS 28.35.032(a). The trial court acquitted her of that charge, finding that there was a 

reasonable doubt as to whether Nelson knowingly refused to submit to the test. 

3 See Comeau v. State, 758 P.2d 108, 110 (Alaska App. 1988); Anderson v. Anchorage, 

645 P.2d 205, 212 (Alaska App. 1982). 

4 See AS 28.35.033(a) (establishing presumptions for whether a vehicle operator was 

under the influence based on specific ranges of chemical test results); see also Anderson, 645 

P.2d at 212 (discussing former version of statute). 

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alcohol that day. She also testified that Janes became combative with her before she had 

the opportunity to cooperate. 

After the State rested its case, Nelson’s attorney argued that Janes’s failure 

to advise Nelson of her right to an independent test violated her right to due process 

under the Alaska Constitution. Citing the Alaska Supreme Court’s decision in Snyder 

v. State, Nelson’s attorney asked the court to presume that the result of an independent 

test, had one been conducted, would have been favorable to Nelson.5 More specifically, 

Nelson’s attorney asked the court to presume that an independent test would have 

revealed that Nelson “had no alcohol in her system or, at the very least, that it was so low 

that she was not impaired by it.” 

The State did not dispute that Nelson’s due process rights were violated. 

But the State did challenge Nelson’s proposed remedy. The State argued that it was 

sufficient for the court to presume that an independent test would have revealed a blood 

alcohol level below .08 percent. 

The district court concluded that a due process violation had occurred but 

agreed with the State as to the appropriate remedy. In particular, the court stated that it 

was “assuming that, had Ms. Nelson submitted to a test, it would have been below .08,” 

but that it was “not presuming that it was .000.” 

The court ultimately found Nelson guilty of driving under the influence. 

The court acknowledged that Nelson had testified that she had not had anything to drink 

and that the accident had been caused by mechanical problems. But the court found that 

See Snyder v. State (Snyder I), 930 P.2d 1274, 1278-79 (Alaska 1996) (holding that 

the police must afford the defendant an opportunity to obtain an independent test, even when 

the defendant refuses to take the statutorily prescribed test, and that the remedy for violating 

this requirement under those circumstances is for the fact-finder to presume that the results 

of an independent test would have been “favorable” to the defendant). 

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Nelson’s testimony was not credible. Instead, the court credited Janes’s testimony (and 

the testimony of an additional witness on the scene) that Nelson smelled of alcohol and 

was unable to stand on her own. 

Why we reject the State’s request to affirm Nelson’s conviction on the 

ground that her due process rights were not violated 

We must first address a preliminary claim that is raised by the State in a 

cross-appeal: that although Snyder generally requires the police to offer an independent 

chemical test to a person arrested for driving under the influence, Nelson’s case falls into 

an exception and therefore no due process violation occurred.6 In particular, relying on 

Janes’s testimony about the unavailability of independent tests in Metlakatla and the 

difficulty of traveling to Ketchikan given the time of Nelson’s arrest relative to the flight 

and ferry transport times, the State contends that obtaining an independent test would 

have been impracticable in this case. The State therefore argues that there was no need 

for a favorable presumption of any kind and that we can affirm Nelson’s conviction on 

this alternate ground. 

It is true that, under Snyder, an independent test is not constitutionally 

required “if obtaining an independent test is impracticable or exceedingly burdensome” 

under the circumstances.7 But the State never argued in the trial court that it would have 

been impracticable or burdensome to obtain an independent test in this case. Indeed, the 

6 The State raises this claim in a cross-appeal, although strictly speaking, a cross-appeal 

as to this issue was unnecessary because the State, as the appellee, may argue for affirmance 

on any ground established by the record. See Millman v. State, 841 P.2d 190, 195 (Alaska 

App. 1992). (We note that a cross-appeal was necessary as to a different claim initially 

raised by the State — that the trial court erred in dismissing the refusal charge — but the 

State did not pursue that issue in its briefing.) 

7 Snyder I, 930 P.2d at 1278. 

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8 

State did not dispute that the failure to offer Nelson an independent test violated her right 

to due process. 

As a result, the district court never made any factual findings as to whether 

anindependent test would havebeen impracticableor exceedingly burdensomegiven the 

time and place of Nelson’s arrest. And as an appellate court, we are not authorized to 

make factual findings in the first instance. Given the absence of the factual findings that 

would be necessary to decide this claim, we reject the State’s request to affirmthe court’s 

decision on this alternate ground.8 

Why we agree with Nelson that the presumption adopted by the district 

court was insufficiently favorable 

Onappeal, Nelsonarguesthatthedistrictcourt erred whenit presumed only 

that the result of an independent chemical test would have been below .08 percent. 

Citing Snyder and AS 28.35.033(a), Nelson argues that the court was required to 

presume that the result would have been below .04 percent. 

See Seybert v. Alsworth, 367 P.3d 32, 38-39 (Alaska 2016) (“[W]e will affirm on 

independent grounds not relied on by the superior court only when those grounds are 

established by the record as a matter of law.”); Irby v. Fairbanks Gold Mining, Inc., 203 P.3d 

1138, 1142 (Alaska 2009) (“The principle that [an appellate court] can affirm on alternative 

grounds applies ‘only to issues of law that find support in settled facts’ and ‘does not extend 

to new theories that would normally be resolved by discretionary powers traditionally 

reserved for trial courts — powers relying on case-specific consideration of disputed or 

disputable issues of fact.’” (quoting Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006))); 

Burnett v. State, 264 P.3d 607, 612 (Alaska App. 2011) (noting that an appellee “is entitled 

to argue for affirmance of the district court’s decision on any legal ground revealed by 

undisputed facts in the trial court record”); see also Meidinger v. Koniag, Inc., 31 P.3d 77, 

88 (Alaska 2001) (concluding that the issues raised in the cross-appeal were not preserved 

for review). 

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In Alaska, a person accused of driving under the influence has the 

constitutional and statutory right to an independent chemical test.9 This right is violated 

if the government refuses a defendant’s request for an independent test or if the 

government fails to notify the defendant of their right to an independent test.10 In Snyder 

v. State, the Alaska Supreme Court held that a person has the right to an independent test 

even if the person refuses to take the statutorily prescribed breath test.11 

When the defendant submits to a breath test, but the State violates the 

defendant’s due process right to an independent chemical test, the proper remedy is 

suppression of the breath test.12 But in Snyder, the supreme court stated that when there 

is no test to suppress — as is the case here — suppression is not a meaningful sanction 

for the State’s due process violation.13 Instead, the supreme court held, the appropriate 

remedy is for the fact-finder to presume that the results of an independent test, had one 

been conducted, would have been “favorable” to the defendant.14 

9 AS 28.35.033(e); Gundersen v. Anchorage, 792 P.2d 673, 676-77 (Alaska 1990). 

10 Snyder I, 930 P.2d at 1278; Gundersen, 792 P.2d at 677 (holding that “clear and 

express notice of a defendant’s statutory right to an independent test under these conditions 

satisfies the requirements of due process”). 

11 Snyder I, 930 P.2d at 1278 (“[W]e believe that in the DWI context the accused’s right 

and the state’s duty extend to the opportunity to obtain an independent chemical test, and that 

this opportunity must be made available to the accused whether or not the accused agrees to 

submit to a breath test.”). The independent test, if performed, does not preclude the State 

from charging the defendant with refusal to submit to the statutorily-prescribed breath test. 

Id. at 1277 n.3. 

12 Id. at 1279. 

13 Id. 

14 Id. 

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The issue presented here is whether the presumption adopted by the district 

court in this case — that an independent test would have revealed an amount below .08 

— was sufficiently “favorable” to Nelson. 

The Snyder court did not define with precision what it meant by 

“favorable.” Instead, the court cited to AS 28.35.033 as “establishing presumptions 

regarding intoxication on the basis of blood alcohol content.”15 

Alaska Statute 28.35.033(a) establishes three possible presumptions for 

cases in which there is an admissible chemical test and the State chooses to prosecute the 

defendant under an impairment theory. Subsection (a)(1) provides that if the test reveals 

a blood or breath alcohol level of .04 or lower, “it shall be presumed that the person was 

not under the influence of an alcoholic beverage.” Subsection (a)(2) provides that if the 

test reveals a blood or breath alcohol level of more than .04 but less than .08, there is no 

presumption as to whether the defendant was or was not under the influence of an 

alcoholic beverage. And subsection (a)(3) provides that if the test reveals a blood or 

breath alcohol level of .08 or more, “it shall be presumed that the person was under the 

influence of an alcoholic beverage.” 

On appeal, Nelson argues that, of these three subsections, only the first, 

subsection (a)(1), can be accurately described as adopting a presumption that is 

“favorable” to the defendant. The plain language of the statute supports this position. 

Subsection (a)(1) requires a presumption that the person was not under the influence of 

an alcoholic beverage, whereas subsection (a)(2) requires no presumption, and 

subsection (a)(3) requires a presumption that the person was under the influence of an 

alcoholic beverage. 

15 Id. at 1279-80. 

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Nelson’s position is further supported by the supreme court’s decision in 

Snyder II — a decision addressing the administrative revocation of Snyder’s driver’s 

license based on the same incident that gave rise to Snyder I.

16 In Snyder II, the supreme 

court characterized its holding in Snyder I as follows: “Because the police violated 

Snyder’s right to due process by refusing him an independent blood test, we ordered in 

Snyder I that courts apply a presumption that the blood test results would have been 

favorable to him and thus supported his claim that he was not intoxicated.”17 In support 

of this assertion, the court expressly cited the blood alcohol percentage contained in 

AS 28.35.033(a)(1) — noting that, while a blood alcohol level below .05 percent (a 

number that has now been amended to .04 percent)18 “does not automatically exonerate 

a defendant” of driving under the influence, “it establishes a presumption that a person 

is not under the influence of intoxicating liquor.”19 

Based on this discussion in Snyder II, we conclude that AS 28.35.033(a)(1) 

establishes the favorable presumption required by Snyder I. 

Here, the district court agreed with Nelson that she was entitled to a 

“favorable” presumption, but it only presumed that the result of an independent test 

would have revealed a blood alcohol level below .08 percent. This was insufficiently 

“favorable” because the presumption that the person is not under the influence of 

intoxicating liquor is only triggered when the blood alcohol level is .04 percent or less. 

16 Snyder v. State, Dep’t of Pub. Safety, Div. of Motor Vehicles (Snyder II), 31 P.3d 770 

(Alaska 2001). 

17 Id. at 775. 

18 SLA 2001, ch. 63, § 14. 

19 Snyder II, 31 P.3d at 775 & n.21. 

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The trial court should therefore have presumed that Nelson’s breath test would have 

yielded a result of .04 or less. 

We note, however, that this presumption is rebuttable.20 Even when the 

fact-finder is required to presume that the results of an independent test would have been 

.04 percent or lower, the State may still present evidence to demonstrate that the 

defendant was nonethelessunder theinfluenceofalcohol (either singlyor in combination 

with other qualifying substances), and the fact-finder may still conclude, if the other 

evidence is sufficiently persuasive, that the State has established beyond a reasonable 

doubt that the defendant was under the influence.21 

Thus, because the trial court did not apply a sufficiently “favorable” 

presumption for purposes of the supreme court’s decisions in Snyder I and Snyder II, we 

conclude that Nelson’s conviction must be vacated and her case remanded for a new trial 

in which the proper presumption under AS 28.35.033(a)(1) is applied.22 

Conclusion 

Nelson’sconvictionfordrivingundertheinfluenceisREVERSED, and this 

case is REMANDED for further proceedings consistent with this opinion. 

20 See Anderson v. Anchorage, 645 P.2d 205, 212 (Alaska App. 1982) (construing a prior 

version of AS 28.35.033(a) & (c), which contained nearly identical language, as creating a 

rebuttable presumption). 

21 See AS 28.35.033(c) (providing that the presumptions set out in AS 28.35.033(a) 

“may not be construed to limit the introduction of any other competent evidence bearing 

upon the question of whether the person was or was not under the influence of intoxicating 

liquor”). 

22 Because we are remanding for a new trial, we need not address Nelson’s claim that 

the trial court erred in allowing the investigating officer to offer an opinion as to whether 

Nelson was intoxicated. 

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