Carolyn M. Dushkin v. State of Alaska

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NOTICE
Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CAROLYN M. DUSHKIN,
Appellant,
V.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14251 Trial Court No. 3SP-23-00001 CR
MEMORANDUM OPINION
No. 7218 -October 7, 2026
Appeal from the District Court, Third Judicial District, Sand Point, Kari McCrea, Judge.
Appearances: Mary Bullis, under contract with the Public Defender Agency, and Terrence Haas, Public Defender, Anchorage, for the Appellant. Seneca Theno Freitag, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges. Judge HARBISON.
Following a jury trial, Carolyn M. Dushkin was convicted of driving under the influence (DUI) in violation of AS 28.35.030(a)(2). At trial, the State introduced evidence to prove that Dushkin took a chemical test within four hours of operating a motor vehicle, and the test revealed that Dushkin's breath alcohol concentration was 0.201 (i.e., over the legal limit of 0.08 grams of alcohol per 210 liters of the person's

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breath).1 The responding police officer testified at trial that the police station had a video
camera in the area where Dushkin’s field sobriety testing and DUI processing were
conducted. However, because the video recording was not extracted from the security
system within seven days, it was recorded over, making it unavailable.
After the State rested its case, Dushkin moved for a Thorne instruction
which would tell the jury to presume that the video recording contained evidence
favorable to Dushkin.2 Dushkin argued that the video recording was “critically
material” to her case and that the police had failed to preserve it. The district court
declined to give the requested instruction.
Dushkin challenges this order on appeal, and for the reasons we explain
in this opinion, we affirm the district court’s order.
Background facts and proceedings
At around 11:30 p.m. on November 8, 2022, King Cove Police Sergeant
Daniel Stephen Cochran observed Dushkin’s black pickup truck sitting perpendicular
to the road on an embankment between the road and the water. The truck’s engine was
running and its lights were on. The truck was facing backward and was high-centered
on top of large boulders.
As Cochran approached the truck, he observed that Dushkin was sitting in
the driver’s seat and the keys were in the ignition. The window was down, and he could
smell a strong odor of alcohol coming from inside the vehicle. Cochran later testified
that Dushkin was slurring her speech and appeared “pretty distraught.” He accordingly
asked Dushkin to take standard field sobriety tests. However, because it was dark and
1 AS 28.35.030(a)(2).
2 Thorne v. State, Dep’t of Pub. Safety, 774 P.2d 1326, 1330-32 (Alaska 1989).

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there were hazardous road conditions, Cochran transported Dushkin to the police station
before conducting the field sobriety tests.
After Dushkin failed the horizontal gaze nystagmus test and the walk and
turn test at the police station, Cochran arrested her for DUI. Dushkin subsequently
submitted to a DataMaster breath test, which revealed that her breath alcohol
concentration was 0.201 percent. Cochran recorded both the field sobriety testing and
the DUI processing on his audio recorder.
The State prosecuted Dushkin under only one subsection of the DUI
statute: AS 28.35.030(a)(2).3 Specifically, the State alleged that Dushkin took a
chemical test within four hours of operating a motor vehicle and that the test revealed
that Dushkin’s breath alcohol concentration was 0.08 grams or more of alcohol per 210
liters of breath.4
Cochran was the sole witness at trial, and he testified to the facts set out
above. Cochran further testified that there was a security system in the police station
that captured video images but not audio. When asked on cross-examination whether
there was a security video recording of Dushkin’s testing and arrest, Cochran
acknowledged that the police station had a security video camera in the area where
Dushkin’s field sobriety tests and DUI processing were conducted. He explained,
however, that if a video recording is not extracted from the security system, it is
automatically recorded over on a seven-day loop. Cochran stated that he was unable to
extract the video from the security system, and although he asked all of the other
3 AS 28.35.030(a)(2) (“A person commits the crime of driving while under the
influence of an alcoholic beverage . . . if the person operates or drives a motor vehicle . . .
and if, as determined by a chemical test taken within four hours after the alleged operating
or driving . . . there is 0.08 grams or more of alcohol per 210 liters of the person’s breath.”).
4 Id.

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employees at the department available at the time for assistance, no one was able to
extract the video.5 Thus, the video recording was not available at the time of trial.
During his testimony, Cochran acknowledged that, at the time of his DUI
investigation of Dushkin, he was also investigating whether Dushkin was the victim of
an assault. Dushkin had reported being “choked” earlier that evening, but Cochran was
unable to interview the primary suspect. After he arrested Dushkin for DUI, Cochran
took a photo of Dushkin’s face which showed that she had a black eye; he testified that
Dushkin also had a swollen face, bruises on her arms, and several marks on her neck
and body. The photo of Dushkin’s face was admitted at trial.
Dushkin’s defense was that she had been the victim of an assault that
evening, as corroborated by her injuries, and that the injuries from the assault — not
intoxication — caused her poor performance on the field sobriety tests and made her
incapable of operating a motor vehicle. According to Dushkin, Cochran did not
appropriately investigate the assault and failed to follow certain procedures for the DUI
investigation (including not asking Dushkin whether she had consumed medication,
caffeine, or nicotine; not asking her if she had any leg injuries; not sitting and watching
Dushkin for fifteen minutes; and not filing his report until two months after the
incident), creating a reasonable doubt as to her guilt.
Prior to the case being submitted to the jury, Dushkin’s attorney asked the
district court to give the jury what is known as a Thorne instruction — an instruction
telling the jury that the State lost or destroyed evidence, and it should presume that the
missing evidence would have been favorable to Dushkin.6 The defense attorney argued
that the security video was “potentially relevant to an issue of central importance”
because the video recording would show “how accurately the standard field sobriety
5 Cochran testified that the security system was actually two systems made by
different providers (Night Owl and Swann) that were compatible with each other.
6 Thorne, 774 P.2d at 1330-32.

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tests were performed, [and] what [Dushkin’s] physical appearance was at the time of
these field sobriety tests[.]”7
The State responded that it charged Dushkin under the subsection of the
DUI statute that required proof of Dushkin’s breath alcohol concentration rather than
proof that Dushkin was under the influence of alcohol.8 The State noted that it presented
evidence that Dushkin operated a motor vehicle and that, approximately two hours later,
a chemical test revealed that her breath alcohol concentration was 0.201 percent. Thus,
the State argued that neither a video recording showing Dushkin’s injuries nor a video
recording showing her performance on the field sobriety tests would contain
exculpatory evidence. It instead argued that, even if the State had failed to preserve
relevant evidence, all four of the Putnam/Thorne factors — which are used to determine
whether a defendant is entitled to a sanction for the State’s failure to preserve evidence
— weighed against Dushkin.9 Finally, the State agreed with the district court’s finding
that the police never extracted the evidence that was on the security camera, and as a
result, the police had no duty of preservation under Thorne — and thus no jury
instruction was warranted.
7 See id.
8 Compare AS 28.35.030(a)(2) (“as determined by a chemical test taken within four
hours after the alleged operating or driving . . . there is 0.08 grams or more of alcohol per
210 liters of the person’s breath”), with AS 28.35.030(a)(1) (“while under the influence of
an alcoholic beverage”).
9 Thorne, 774 P.2d at 1330-32; Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980).
At trial, the State cited to Riney v. State in support of this argument. Riney v. State,
935 P.2d 828, 839-40 (Alaska App. 1997) (concluding that the trial court did not abuse its
discretion in denying a jury instruction providing that a missing tape of an interview should
be presumed to contain additional evidence favorable to the defendant after evaluating the
factors laid out in Thorne and Putnam).

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The district court declined to give a Thorne instruction. The jury
ultimately found Dushkin guilty of DUI as charged under AS 28.35.030(a)(2). This
appeal followed.
Why we affirm the district court’s order denying Dushkin’s requested jury
instruction
On appeal, Dushkin renews her argument that, because the police failed
to preserve the security video of her field sobriety tests and DUI processing, the jury
should have been instructed to view the video evidence in her favor. Dushkin further
claims that the district court’s failure to give the jury such an instruction requires us to
reverse her conviction.
As support for her claim, Dushkin cites the Alaska Supreme Court’s
opinion in Thorne v. State.10 There, the supreme court reversed an administrative
decision revoking Thorne’s driver’s license after he was arrested for driving while
intoxicated.11 The supreme court held that Thorne’s due process rights at the revocation
hearing were violated by the State’s failure to preserve certain material evidence that
had been collected by law enforcement.12 The supreme court then addressed the
appropriate sanction to be imposed for the violation, articulating several factors to be
considered in determining the proper sanction.13 After evaluating these factors in the
context of Thorne’s case, the supreme court determined that it was appropriate to
10 Thorne, 774 P.2d at 1330-32.
11 Id. at 1334.
12 Id. at 1330-32.
13 Id. at 1332.

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remand the case for rehearing with directions to the hearing officer to presume that the
missing evidence would have been favorable to Thorne.14
The State responds that the holding in Thorne is inapposite. It points out
that it generally has no duty to collect evidence and that the duty to preserve evidence
applies only to evidence that has actually been gathered.15 The State argues that, because
the police never extracted the video from the police station security camera, the police
did not “collect” the video evidence, and thus they had no duty to preserve it. Dushkin
disagrees, arguing that the State “collected” the evidence when the police department
itself created the recording.
The State relies heavily on Selig v. State as support for its argument.16 In
Selig v. State, the police failed to record Selig’s DUI processing, and Selig asked the
court to instruct the jury that any recording would have been favorable to him,
consistent with Thorne.17 The trial court denied this request, and we affirmed,
concluding that the police were under no obligation to record the processing and that
their failure to make a recording meant that they never “collected” a video recording.18
Because the evidence was never collected, the police had no duty to preserve it, and
Selig was not entitled to an instruction based on a failure to preserve evidence.19
14 Id.
15 See Selig v. State, 286 P.3d 767, 772 (Alaska App. 2012) (citing Snyder v. State,
879 P.2d 1025, 1028 (Alaska App. 1994), rev’d on other grounds, 930 P.2d 1274 (Alaska
1996)).
16 Id.
17 Id. at 767, 772.
18 Id. at 772.
19 Id.

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But the facts of Selig are not similar to the facts of this case. Here, the
police apparently did record both the DUI processing and the field sobriety testing.
They made this recording using a security video camera that was in their possession
and control, and they maintained possession and control of the camera and its recording
at all relevant times, including when the system recorded over itself. Additionally, the
police recognized the evidentiary value of the recording and made some effort to extract
it from the system. We accordingly do not find the State’s reliance on Selig to be
convincing.
Even if the police had a duty to preserve the video recording in this case
and then violated that duty, that would not mean that Dushkin would automatically be
entitled to the relief she requests. Both the Alaska Supreme Court and this Court have
held that, when the State violates its duty to disclose material evidence due to its loss
or destruction of the evidence, the trial court should conduct a case-specific analysis in
determining the appropriate sanction.20 The supreme court explained that the trial court
“must carefully examine the circumstances surrounding the state’s violation of its duty
of preservation.”21 The court must then weigh “the degree of culpability involved on
the part of the state, the importance of the evidence which has been lost, and the
evidence of guilt which is adduced at trial.”22
Dushkin primarily argues that the video evidence was “important” and
“material” to her defense. According to Dushkin, the missing security video would have
allowed the jury to see what she looked like at the time of her arrest, and thus would
have supported her argument that her conduct was due to injuries from a “prior choking
or other event, as opposed to impairment.” Dushkin also contends that the missing video
20 See, e.g., Putnam v. State, 629 P.2d 35, 43 (Alaska 1980); State v. Ward, 17 P.3d 87,
89-90 (Alaska App. 2001).
21 Putnam, 629 P.2d at 43.
22 Id. (internal citations omitted).

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could have shown that the foundational requirements for admitting the DataMaster test
results, such as the fifteen-minute observation period, were not met in this case.
According to Dushkin, if the missing video showed that the foundational requirements
for admitting the test were not met, this could have undermined Cochran’s testimony
regarding her performance on the field sobriety tests and also could have undermined
the jury’s belief in the reliability of the DataMaster test results.23
Dushkin also argues that the facts in her case closely mirror those in
Thorne, where the Alaska Supreme Court held that the State’s failure to preserve a video
recording of Thorne’s field sobriety testing violated his right to due process.24 In
Thorne, the supreme court reasoned that, because the video recording could have shown
Thorne performing the field sobriety tests flawlessly, the video recording might have
shown that the arresting officer did not have reasonable grounds to believe Thorne was
driving while intoxicated. The supreme court thus held that the police were required to
both preserve the recording and also make it available to him.25
On appeal, Dushkin argues that the supreme court’s reasoning in Thorne
applies equally to her case. She points out that the missing evidence in her case was a
23 AS 28.35.033(d) provides that, when the analysis of a person’s breath is “performed
according to methods approved by the Department of Public Safety[,]” the results are
presumptively valid. Thus, if the State can show that the regulations for performing a breath
test have been followed, then a sufficient foundation has been established and the breath
test is admissible. But even if the State does not strictly comply with the regulations, it can
still show that it has substantially complied with the regulations in order to establish a
sufficient foundation to admit the breath test. See, e.g., Oveson v. Municipality of
Anchorage, 574 P.2d 801, 804-05 (Alaska 1978); Ahsogaek v. State, 652 P.2d 505, 506
(Alaska App. 1982). Dushkin does not argue that the district court erred in admitting the
DataMaster test results.
24 Thorne v. State, Dep’t of Pub. Safety, 774 P.2d 1326, 1330-31 (Alaska 1989).
25 Id.

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video recording that would show her field sobriety testing, thus mirroring the facts in
Thorne.
But it is important to recognize that Thorne involved a challenge to an
administrative decision to revoke Thorne’s driver’s license after he took a chemical test
which showed that his blood alcohol level was 0.131 percent.26 In evaluating Thorne’s
claim that his due process rights were violated by the State’s failure to preserve the
videotape, the Alaska Supreme Court held that the State’s failure to preserve the video
recording of Thorne’s field sobriety tests violated his due process rights at the
administrative hearing. This was because Thorne’s only meaningful basis for
challenging the revocation of his license was to dispute whether the arresting officer
had reasonable grounds to believe Thorne was driving while intoxicated.27 The supreme
court accordingly held that, if the video recording showed Thorne performing the field
sobriety tests perfectly, it would have undermined the arresting officer’s claim that he
had reasonable grounds to arrest Thorne for DUI.28
Under the DUI statutory scheme that was in effect at the time of Thorne’s
arrest, a defendant could use their performance on their field sobriety test to challenge
both the under-the-influence theory (AS 28.35.030(a)(1)) and also the blood alcohol
theory (AS 28.35.030(a)(2)) of DUI. This is because the blood alcohol theory of DUI
in effect at that time asked whether the defendant’s blood alcohol content at the time
they were driving or operating a motor vehicle was over the legal limit, rather than
whether their blood alcohol content at the time of the test was over the legal limit.29
26 Id. at 1328-29.
27 Id. at 1331.
28 Id.
29 See, e.g., Conrad v. State, 54 P.3d 313, 314-15 (Alaska App. 2002) (concluding that
the “blood alcohol level” theory of DUI requires proof of the defendant’s blood alcohol
level at the time the defendant operated or controlled a motor vehicle, not at the time of the
chemical testing), superseded by statute, ch. 124, §§ 25, 27, SLA 2004, as recognized in

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Thus, under the DUI statute in effect at the time of the Thorne decision, if the defendant
performed field sobriety tests perfectly at a time that was close to when they were
driving or operating the motor vehicle, this might undermine a determination that the
defendant was driving while intoxicated.
After Thorne was decided, the Alaska legislature made two major changes
to AS 28.35.030(a)(2), the subsection of the DUI statute setting out the blood alcohol
theory of DUI.30 First, the legislature amended the statutory subsection to eliminate the
requirement that the State establish the defendant’s blood alcohol level at the time they
operated the motor vehicle. Instead, the amended statute hinged the defendant’s guilt
“on the result of a chemical test properly administered within four hours of driving (if
the test result is attributable to alcohol ingested before or during the operation of a motor
vehicle).”31 In other words, a defendant is guilty of DUI under subsection (a)(2) if the
defendant takes a chemical test within four hours of operating or driving a motor vehicle
and the test shows an alcohol level of 0.08 percent or higher, even if the defendant’s
alcohol level was much lower at the time they operated the vehicle.32
Second, the legislature added a new subsection, AS 28.35.030(s), to the
DUI statute.33 This subsection prohibits a defendant from raising a delayed-absorption
defense to a DUI charge.34 In other words, the subsection prevents the defendant from
Barnebey v. State, Dep’t of Admin., Div. of Motor Vehicles, 473 P.3d 682, 688-89
(Alaska 2020).
30 Ch. 124, §§ 25, 27, SLA 2004.
31 Valentine v. State, 215 P.3d 319, 324 (Alaska 2009) (quoting Valentine v. State,
155 P.3d 331, 339 (Alaska App. 2007)).
32 Id. at 323; but see AS 28.35.030(s) (allowing a defendant to raise the defense of
post-driving drinking).
33 Ch. 124, § 27, SLA 2004.
34 Valentine, 215 P.3d at 324-25.

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arguing that the results of their post-arrest chemical tests do not accurately reflect their
blood alcohol level at the time they were driving (provided that there is no evidence of
post-driving drinking).35 And although the Alaska Supreme Court subsequently
invalidated AS 28.35.030(s) for prosecutions under AS 28.35.030(a)(1), the statute was
upheld as it relates to prosecutions under AS 28.35.030(a)(2).36
Because of these statutory changes, evidence of a defendant’s sobriety —
such as a favorable performance on field sobriety tests — has only marginal relevance
to defending a prosecution under AS 28.35.030(a)(2). And in this case, Dushkin was
prosecuted only under AS 28.35.030(a)(2).
Given these considerations, we conclude that, in this case, the
Thorne/Putnam factors weighed against imposing Dushkin’s requested sanction.37
Here, the degree of culpability on the part of the State was low. The
evidence presented at trial showed that the video recording was made by a security
camera and was not made for purposes of gathering evidence in Dushkin’s case.
Furthermore, Cochran testified that he was unable to extract the video from the security
system and that the system automatically recorded over the video on a seven-day loop.
He also testified that he did not know how to extract video from the security camera,
that no one within the department at the time was able to extract video from the camera,
and that he did not know who to contact to get training on extracting video from the
35 Id.; see also Lane v. State, __ P.3d __ (Alaska App. 2026), 2026 WL 1902123, at
*6-7 (Alaska App. July 2, 2026) (explaining how a post-driving drinking defense works
under Alaska DUI law).
36 Valentine, 215 P.3d at 324-25.
37 Thorne v. State, Dep’t of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989)
(articulating four factors for consideration of the appropriate sanction: (1) whether the State
acted in good or bad faith, (2) the degree of the State’s culpability, (3) the importance of
the missing evidence, and (4) the prejudice that the defendant suffered on account of the
loss of the evidence).

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camera. Thus, the evidence suggested that Cochran made a good faith effort to extract
the video recording, even though he was not successful in doing so.
Additionally, we reject Dushkin’s arguments that the video was important
to her case and that she was prejudiced by its absence. Dushkin contends that the video
could have furthered her defense in two ways. First, she claims that it could have shown
what she looked like when she was arrested, including her injuries, thereby supporting
her argument that her inability to drive was related to being assaulted and not
impairment. Second, she claims that the video might have shown that the police violated
the breath testing procedures, which could have undermined the State’s evidence that
the breath testing device was functioning properly.
But in this case, Cochran recorded both the field sobriety testing and the
DUI processing on his audio recorder, and the jury saw a photograph of Dushkin’s black
eye and heard Cochran’s testimony about her other injuries. Thus, even if the video
recording had captured Dushkin’s performance on the field sobriety testing or her
appearance at the time of her arrest, the video recording would have been largely
cumulative.
Moreover, the State prosecuted Dushkin only under subsection (a)(2) of
the DUI statute. Thus, the State’s case did not rely on proof that Dushkin was impaired
due to consumption of alcohol. And while evidence of her sobriety might have been of
some marginal relevance if she had challenged the reliability of the DataMaster test
results during the trial, it was of no relevance at all under the circumstances of this case.
Dushkin’s theory of defense was that injuries from an assault, rather than impairment
from alcohol, caused her to be unable to operate the motor vehicle and unable to
successfully complete the field sobriety tests.
The district court did not abuse its discretion in declining to give the
requested instruction.

Conclusion
The judgment of the district court is AFFIRMED.
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7218