Alaska Statutes
Alaska Stat. § 28.35.033 (2026)
Presumptions and chemical analysis of breath or blood
✓ current as of July 2026
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Sec. 28.35.033. Presumptions and chemical analysis of breath or blood.
(a) Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while 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, the amount of alcohol in the person's blood or breath at the time alleged shall give rise to the following presumptions:
(1) If there was 0.04 percent or less by weight of alcohol in the person's blood, or 40 milligrams or less of alcohol per 100 milliliters of the person's blood, or 0.04 grams or less of alcohol per 210 liters of the person's breath, it shall be presumed that the person was not under the influence of an alcoholic beverage.
(2) If there was in excess of 0.04 percent but less than 0.08 percent by weight of alcohol in the person's blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of the person's blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of the person's breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage.
(3) If there was 0.08 percent or more by weight of alcohol in the person's blood, or 80 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.08 grams or more of alcohol per 210 liters of the person's breath, it shall be presumed that the person was under the influence of an alcoholic beverage.
(b) For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood.
(c) Except as provided in AS 28.35.030(s), the provisions of (a) of this section 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.
(d) To be considered valid under the provisions of this section the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the Department of Public Safety. The Department of Public Safety is authorized to approve satisfactory techniques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.
(e) The person tested may have a physician, or a qualified technician, chemist, registered or advanced practice 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. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. 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.
(f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or the person's attorney.
(a) Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while 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, the amount of alcohol in the person's blood or breath at the time alleged shall give rise to the following presumptions:
(1) If there was 0.04 percent or less by weight of alcohol in the person's blood, or 40 milligrams or less of alcohol per 100 milliliters of the person's blood, or 0.04 grams or less of alcohol per 210 liters of the person's breath, it shall be presumed that the person was not under the influence of an alcoholic beverage.
(2) If there was in excess of 0.04 percent but less than 0.08 percent by weight of alcohol in the person's blood, or in excess of 40 but less than 80 milligrams of alcohol per 100 milliliters of the person's blood, or in excess of 0.04 grams but less than 0.08 grams of alcohol per 210 liters of the person's breath, that fact does not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but that fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage.
(3) If there was 0.08 percent or more by weight of alcohol in the person's blood, or 80 milligrams or more of alcohol per 100 milliliters of the person's blood, or 0.08 grams or more of alcohol per 210 liters of the person's breath, it shall be presumed that the person was under the influence of an alcoholic beverage.
(b) For purposes of this chapter, percent by weight of alcohol in the blood shall be based upon milligrams of alcohol per 100 milliliters of blood.
(c) Except as provided in AS 28.35.030(s), the provisions of (a) of this section 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.
(d) To be considered valid under the provisions of this section the chemical analysis of the person's breath or blood shall have been performed according to methods approved by the Department of Public Safety. The Department of Public Safety is authorized to approve satisfactory techniques, methods, and standards of training necessary to ascertain the qualifications of individuals to conduct the analysis. If it is established at trial that a chemical analysis of breath or blood was performed according to approved methods by a person trained according to techniques, methods, and standards of training approved by the Department of Public Safety, there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.
(e) The person tested may have a physician, or a qualified technician, chemist, registered or advanced practice 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. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable to do so, is likewise admissible in evidence. 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.
(f) Upon the request of the person who submits to a chemical test at the request of a law enforcement officer, full information concerning the test, including the results of it, shall be made available to the person or the person's attorney.
Notes of Decisions
Cited in 75
cases (4 in the last 5 years), 1974–2025 · leading case: Simpson v. Mun. of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981).
Simpson v. Mun. of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981). “Additionally, under AS 28.35.033, presumptions were created and made applicable to the results of breathalyzer tests obtained by implied consent.”
Russell v. Mun. of Anchorage, 706 P.2d 687 (Alaska Ct. App. 1985). “Nor does any statute purport to limit prosecution access to the results of independent blood tests performed pursuant to AS 28.35.033(c). Thus, Pena and Geber are inapplicable to this case.”
Oveson v. Mun. of Anchorage, 574 P.2d 801 (Alaska 1978). “AS 28.35.033(d) provides: “(d) To be considered valid under the provisions of this section the chemical analysis of the person’s breath shall have been performed according to methods approved by the Department of Health and Social Services.”
Gundersen v. Mun. of Anchorage, 792 P.2d 673 (Alaska 1990). “033(e) which establishes a defendant's right to an independent test would be one permissible alternative to preserving breath samples: [7] We believe that effective compliance with AS 28.35.033(e) would constitute an acceptable alternative to routine preservation of breath…”
Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007). “To understand the significance of this, one must look to AS 28.35.033(a), a related statute which the legislature left unchanged in 2004.”
Doyle v. State, 633 P.2d 306 (Alaska Ct. App. 1981). “He also argues that the district court improperly instructed the jury concerning the breathalyzer presumption created by AS 28.35.033. I. ILLEGAL ENTRY Doyle argues initially that the separate entries of Troopers Laughman and Denni-son into his home were warrantless searches not…”
Keel v. State, 609 P.2d 555 (Alaska 1980). “[3] AS 28.35.033(a) reads: Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating a motor vehicle under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the…”
Mun. of Anchorage v. Serrano, 649 P.2d 256 (Alaska Ct. App. 1982). “In this regard, we would specifically note the provisions of AS 28.35.033(e), which expressly permit people who have taken a breathalyzer examination to have a separate chemical test performed by someone of their own choosing.”
Snyder v. State, 930 P.2d 1274 (Alaska 1996). “See *1280 AS 28.35.033 (establishing presumptions regarding intoxication on the basis of blood alcohol content).”
State v. Kerr, 712 P.2d 400 (Alaska Ct. App. 1985). “The state has petitioned for review of an order suppressing Intoximeter results in forty-four cases of driving while intoxicated, AS 28.35.033. We find that we must remand these cases to the district court.”
Erickson v. Mun. of Anchorage, 662 P.2d 963 (Alaska Ct. App. 1983). “10 percent or greater gives rise to a presumption that the defendant was under the influence "at the time of the alleged offense," which is precisely what AS 28.35.033 contemplates. That provision reads, in pertinent part: .”
Gundersen v. Mun. of Anchorage, 762 P.2d 104 (Alaska Ct. App. 1988). “023(E), and its *108 identical counterpart under state law, AS 28.35.033(e), which permit an individual arrested for driving while intoxicated, after having submitted to an Intoximeter test, to choose any qualified person to administer an independent chemical test.”
— Alaska Stat. § 28.35.033(3) — 2 cases
Lauderdale v. State, 548 P.2d 376 (Alaska 1976).
State v. Andrews, 84 P.3d 441 (Alaska Ct. App. 2004).
— Alaska Stat. § 28.35.033(a) — 11 cases
Simpson v. Mun. of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981). “Additionally, under AS 28.35.033, presumptions were created and made applicable to the results of breathalyzer tests obtained by implied consent.”
Keel v. State, 609 P.2d 555 (Alaska 1980). “[3] AS 28.35.033(a) reads: Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating a motor vehicle under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the…”
Dresnek v. State, 697 P.2d 1059 (Alaska Ct. App. 1985).
Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007). “To understand the significance of this, one must look to AS 28.35.033(a), a related statute which the legislature left unchanged in 2004.”
Morris v. State, Dep't of Admin., Div. of Motor Vehs., 186 P.3d 575 (Alaska 2008).
— Alaska Stat. § 28.35.033(a)(1) — 7 cases
Snyder v. State, 930 P.2d 1274 (Alaska 1996). “See *1280 AS 28.35.033 (establishing presumptions regarding intoxication on the basis of blood alcohol content).”
Copelin v. State, 659 P.2d 1206 (Alaska 1983).
Snyder v. State, Dep't of Pub. Saf., Div. of Motor Vehs., 31 P.3d 770 (Alaska 2001).
Simpson v. Mun. of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981). “Additionally, under AS 28.35.033, presumptions were created and made applicable to the results of breathalyzer tests obtained by implied consent.”
Moberg v. Mun. of Anchorage, 152 P.3d 1170 (Alaska Ct. App. 2007).
— Alaska Stat. § 28.35.033(a)(2) — 2 cases
Moberg v. Mun. of Anchorage, 152 P.3d 1170 (Alaska Ct. App. 2007).
Joshua William Converse v. State of Alaska, 567 P.3d 74 (Alaska Ct. App. 2025).
— Alaska Stat. § 28.35.033(a)(3) — 16 cases
Simpson v. Mun. of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981). “Additionally, under AS 28.35.033, presumptions were created and made applicable to the results of breathalyzer tests obtained by implied consent.”
Reeves v. State, 599 P.2d 727 (Alaska 1979).
Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007). “To understand the significance of this, one must look to AS 28.35.033(a), a related statute which the legislature left unchanged in 2004.”
Palmer v. State, 604 P.2d 1106 (Alaska 1979).
Wren v. State, 577 P.2d 235 (Alaska 1978).
— Alaska Stat. § 28.35.033(a)(8) — 1 case
Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007). “To understand the significance of this, one must look to AS 28.35.033(a), a related statute which the legislature left unchanged in 2004.”
— Alaska Stat. § 28.35.033(a2)(8) — 1 case
Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007). “To understand the significance of this, one must look to AS 28.35.033(a), a related statute which the legislature left unchanged in 2004.”
— Alaska Stat. § 28.35.033(c) — 9 cases
Simpson v. Mun. of Anchorage, 635 P.2d 1197 (Alaska Ct. App. 1981). “Additionally, under AS 28.35.033, presumptions were created and made applicable to the results of breathalyzer tests obtained by implied consent.”
Valentine v. State, 155 P.3d 331 (Alaska Ct. App. 2007). “To understand the significance of this, one must look to AS 28.35.033(a), a related statute which the legislature left unchanged in 2004.”
Russell v. Mun. of Anchorage, 706 P.2d 687 (Alaska Ct. App. 1985). “Nor does any statute purport to limit prosecution access to the results of independent blood tests performed pursuant to AS 28.35.033(c). Thus, Pena and Geber are inapplicable to this case.”
Layland v. State, 535 P.2d 1043 (Alaska 1975).
Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).
— Alaska Stat. § 28.35.033(d) — 23 cases
Oveson v. Mun. of Anchorage, 574 P.2d 801 (Alaska 1978). “AS 28.35.033(d) provides: “(d) To be considered valid under the provisions of this section the chemical analysis of the person’s breath shall have been performed according to methods approved by the Department of Health and Social Services.”
Keel v. State, 609 P.2d 555 (Alaska 1980). “[3] AS 28.35.033(a) reads: Upon the trial of a civil or criminal action or proceeding arising out of acts alleged to have been committed by a person while operating a motor vehicle under the influence of intoxicating liquor, the amount of alcohol in the person's blood at the…”
Wester v. State, 528 P.2d 1179 (Alaska 1974).
Gilbreath v. Mun. of Anchorage, 773 P.2d 218 (Alaska Ct. App. 1989).
Abyo v. State, 166 P.3d 55 (Alaska Ct. App. 2007).
— Alaska Stat. § 28.35.033(e) — 23 cases
Russell v. Mun. of Anchorage, 706 P.2d 687 (Alaska Ct. App. 1985). “Nor does any statute purport to limit prosecution access to the results of independent blood tests performed pursuant to AS 28.35.033(c). Thus, Pena and Geber are inapplicable to this case.”
Gundersen v. Mun. of Anchorage, 792 P.2d 673 (Alaska 1990). “033(e) which establishes a defendant's right to an independent test would be one permissible alternative to preserving breath samples: [7] We believe that effective compliance with AS 28.35.033(e) would constitute an acceptable alternative to routine preservation of breath…”
Mun. of Anchorage v. Serrano, 649 P.2d 256 (Alaska Ct. App. 1982). “In this regard, we would specifically note the provisions of AS 28.35.033(e), which expressly permit people who have taken a breathalyzer examination to have a separate chemical test performed by someone of their own choosing.”
Gundersen v. Mun. of Anchorage, 762 P.2d 104 (Alaska Ct. App. 1988). “023(E), and its *108 identical counterpart under state law, AS 28.35.033(e), which permit an individual arrested for driving while intoxicated, after having submitted to an Intoximeter test, to choose any qualified person to administer an independent chemical test.”
State v. Kerr, 712 P.2d 400 (Alaska Ct. App. 1985). “The state has petitioned for review of an order suppressing Intoximeter results in forty-four cases of driving while intoxicated, AS 28.35.033. We find that we must remand these cases to the district court.”
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