A DUI offense can be charged three ways in Alaska:

(1) Driving under the influence, which does not involve a breath test. In this type of case, the evidence consists of the police officer’s observations of you. Typically, the evidence will consist of bloodshot, watery eyes, swayed balance, slurred speech and other signs of physical impairment. The evidence will also consist of bad driving and failure of the NHTSA standardized field sobriety tests: horizontal gaze nystagmus (HGN,) walk and turn, one legged stand, and the optional alphabet and counting tests.

(2) A per se violation, which means a Datamaster (mistakenly referred to as a breathalyzer) result of .08 breath alcohol concentration or greater. Note: Blowing a .08 or above results in a presumption that you are under the influence. A BAC of .04 to .079 is neutral ground, which means that you can be charged with a DUI having that result. If you blow below a .04, you are presumed not to be under the influence.

(3) Refusal to submit. Alaska is nearly unique in making it a crime either to (a) intentionally refuse to blow or (b) fail to blow in such a manner that the police officer believes you are deliberately trying not to give a sample. I call this a ‘constructive refusal.’