Arakawa wants Intoxilyzer
test thrown out

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By Debra Barayuga
dbarayuga@starbulletin.com

Retired policeman Clyde Arakawa has asked that the results of an Intoxilyzer test given seven hours after he was involved in a fatal traffic collision be suppressed because it was conducted without a warrant or his consent.

Arakawa faces trial for manslaughter in the January 2000 death of 19-year-old Dana Ambrose just before midnight Oct. 7. She died of injuries from the collision.

Arakawa refused to submit to a breath test to determine the level of alcohol in his system when he was brought to the main police cellblock about 2:05 a.m. and signed the "implied consent" forms acknowledging his refusal.

He was given two Intoxilyzer tests -- one at 7 a.m. and another at 11 a.m. -- to determine whether he was sober and coherent enough to speak to investigators. The 7 a.m. test -- seven hours after the crash -- yielded a blood alcohol level of 0.06 percent. The legal blood alcohol limit is 0.08 percent.

Michael Ostendorp, Arakawa's attorney, argued that the results of the 7 a.m. test should not be admissible because police tricked him into believing the results could not be used against him and violated his right to be free from unreasonable searches.

Ostendorp also argued that police failed to follow proper procedures in administering the test by not observing Arakawa for a 15-minute period prior and feeding him a meal before he took the test.

Officer John Gabriel, who administered the test, said yesterday that he told Arakawa that the results would not affect his case in any way.

Gabriel said he believed he was administering the Intoxilyzer to determine whether Arakawa was coherent and could answer questions, and believed that those results have never been used against a defendant.

City Prosecutor Peter Carlisle argued that the state law, amended in 1981, prohibits drivers involved in collisions causing injury or death from refusing to be tested. Since Arakawa had no statutory right to refuse the tests, he did not need to give consent, and Gabriel's statements did not affect the admissibility of the results, he said.

Toxicologist Clifford Wong testified that based on the results of the 7 a.m. test, he calculated Arakawa's blood level, taking into consideration alcohol absorption over time, at 0.165 percent as of midnight. Using another method, Wong used the number of drinks Arakawa claimed he had that night and took into account his body weight in concluding his alcohol level at 0.162 percent.

Because the results were very close, Wong found that the meal did not significantly affect the results. The test results would still have been accurate even if Arakawa had eaten food because the alcohol he consumed seven hours earlier would have been gone from his stomach and absorbed into his system by then, Wong said.

Circuit Judge Karen Ahn is expected to rule at a later date.