Alaska Statutes
Alaska Stat. § 28.35.031 (2026)
Implied consent
✓ current as of July 2026
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Sec. 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(w) or who operates a watercraft as defined in AS 28.35.030(w) 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.
(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(w) or who operates a watercraft as defined in AS 28.35.030(w) 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.
Notes of Decisions
Cited in 84
cases (1 in the last 5 years), 1975–2021 · leading case: State v. Blank, 90 P.3d 156 (Alaska 2004).
State v. Blank, 90 P.3d 156 (Alaska 2004). “[8] AS 28.35.031(a) is similar to "implied consent" statutes that exist in most other states.”
Wirz v. State, 577 P.2d 227 (Alaska 1978). “4 Implied consent is addressed specifically by AS 28.35.031: 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 his breath for the purpose of determining the alcoholic content of his blood if…”
Mun. of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993). “After exhaustively reviewing the legislative history of the 1979 versions of AS 28.35.031 and .032, the court concluded that the language ■ “a chemical test shall not be given” was intended by the legislature to mean that no chemical test of any kind was to be given.”
Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000). “State, [21] we held that a police officer could administer a preliminary breath test under AS 28.35.031(b) only if the officer had probable cause to believe that the driver's ability to operate a motor vehicle was impaired by alcohol.”
State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016). “035(c) (permitting the police to administer a non-consensual chemical test to a person lawfully arrested for DUI who is involved in an injury accident and who refuses to submit to a breath test but also providing that if the non-consensual chemical test is administered "that…”
Leslie v. State, 711 P.2d 575 (Alaska Ct. App. 1986). “Leslie next contends that the portable breath test authorized by AS 28.35.031 constitutes an unreasonable search under the fourth amendment to the United States Constitution.”
Hartman v. State, Dep't of Admin., Div. of Motor Vehs., 152 P.3d 1118 (Alaska 2007). “The applicable statutes, AS 28.35.031(a) and AS 28.15.166(g), do not authorize the state to suspend a motorist's license on the basis of a search that is itself the product of an unlawful arrest.”
Graham v. State, 633 P.2d 211 (Alaska 1981). “AS 28.35.031, is typical of these statutes: 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 his breath for the purpose of determining the alcoholic content of his blood if lawfully arrested…”
Pena v. State, 664 P.2d 169 (Alaska Ct. App. 1983). “The two crucial provisions of this statute for purposes of Pena’s claim are contained in AS 28.35.031 and AS 28.35.-032(a). At the time of Pena’s offense, these provisions stated: AS 28.”
Haynes v. State, Dep't of Pub. Saf., 865 P.2d 753 (Alaska 1993). “See AS 28.35.031 ("A person who operates or drives a motor vehicle in this state .”
State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995). “In each case, the defendant either refused to take the breath test required by AS 28.35.031(a) or else took the test and the test results showed that the defendant's blood-alcohol level was .”
Gundersen v. Mun. of Anchorage, 792 P.2d 673 (Alaska 1990). “[5] AS 28.35.031; AMC 9.28.021. Under AS 28.35.”
Alaska Stat. § 28.35.031(a): 44 cases
State v. Blank, 90 P.3d 156 (Alaska 2004). “[8] AS 28.35.031(a) is similar to "implied consent" statutes that exist in most other states.”
Hartman v. State, Dep't of Admin., Div. of Motor Vehs., 152 P.3d 1118 (Alaska 2007). “The applicable statutes, AS 28.35.031(a) and AS 28.15.166(g), do not authorize the state to suspend a motorist's license on the basis of a search that is itself the product of an unlawful arrest.”
State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995). “In each case, the defendant either refused to take the breath test required by AS 28.35.031(a) or else took the test and the test results showed that the defendant's blood-alcohol level was .”
Mun. of Anchorage v. Ray, 854 P.2d 740 (Alaska Ct. App. 1993). “After exhaustively reviewing the legislative history of the 1979 versions of AS 28.35.031 and .032, the court concluded that the language ■ “a chemical test shall not be given” was intended by the legislature to mean that no chemical test of any kind was to be given.”
Haynes v. State, Dep't of Pub. Saf., 865 P.2d 753 (Alaska 1993). “See AS 28.35.031 ("A person who operates or drives a motor vehicle in this state .”
Alaska Stat. § 28.35.031(b): 6 cases
Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000). “State, [21] we held that a police officer could administer a preliminary breath test under AS 28.35.031(b) only if the officer had probable cause to believe that the driver's ability to operate a motor vehicle was impaired by alcohol.”
Leslie v. State, 711 P.2d 575 (Alaska Ct. App. 1986). “Leslie next contends that the portable breath test authorized by AS 28.35.031 constitutes an unreasonable search under the fourth amendment to the United States Constitution.”
State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016). “035(c) (permitting the police to administer a non-consensual chemical test to a person lawfully arrested for DUI who is involved in an injury accident and who refuses to submit to a breath test but also providing that if the non-consensual chemical test is administered "that…”
Guerre-Chaley v. State, 88 P.3d 539 (Alaska Ct. App. 2004).
Burnett v. Mun. of Anchorage, 634 F. Supp. 1029 (D. Alaska 1986).
Alaska Stat. § 28.35.031(c): 3 cases
State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016). “035(c) (permitting the police to administer a non-consensual chemical test to a person lawfully arrested for DUI who is involved in an injury accident and who refuses to submit to a breath test but also providing that if the non-consensual chemical test is administered "that…”
Leslie v. State, 711 P.2d 575 (Alaska Ct. App. 1986). “Leslie next contends that the portable breath test authorized by AS 28.35.031 constitutes an unreasonable search under the fourth amendment to the United States Constitution.”
Blank v. State, 142 P.3d 1210 (Alaska Ct. App. 2006).
Alaska Stat. § 28.35.031(d): 1 case
Blank v. State, 142 P.3d 1210 (Alaska Ct. App. 2006).
Alaska Stat. § 28.35.031(e): 2 cases
Gundersen v. Mun. of Anchorage, 792 P.2d 673 (Alaska 1990). “[5] AS 28.35.031; AMC 9.28.021. Under AS 28.35.”
Blank v. State, 142 P.3d 1210 (Alaska Ct. App. 2006).
Alaska Stat. § 28.35.031(g): 12 cases
State v. Blank, 90 P.3d 156 (Alaska 2004). “[8] AS 28.35.031(a) is similar to "implied consent" statutes that exist in most other states.”
Blank v. State, 3 P.3d 359 (Alaska Ct. App. 2000). “State, [21] we held that a police officer could administer a preliminary breath test under AS 28.35.031(b) only if the officer had probable cause to believe that the driver's ability to operate a motor vehicle was impaired by alcohol.”
Dale v. State, 209 P.3d 1038 (Alaska Ct. App. 2009).
Hurlburt v. State, 425 P.3d 189 (Alaska Ct. App. 2018).
Sosa v. State, 4 P.3d 951 (Alaska 2000).
Alaska Stat. § 28.35.031(h): 1 case
State v. Evans, 378 P.3d 413 (Alaska Ct. App. 2016). “035(c) (permitting the police to administer a non-consensual chemical test to a person lawfully arrested for DUI who is involved in an injury accident and who refuses to submit to a breath test but also providing that if the non-consensual chemical test is administered "that…”
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