Barbara Bergitt Rascon v. State of Alaska

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
BARBARA BERGITT RASCON,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14198
Trial Court No. 3AN-22-04031 CR
MEMORANDUM OPINION
No. 7212 — August 12, 2026
Appeal 	from 	the 	Superior 	Court, 	Third 	Judicial 	District,
Anchorage, Andrew Peterson, Judge.
Appearances: 	McKenzie 	Smith, 	NewfoundLaw, 	under
contract with the Public Defender Agency, and Terrence Haas,
Public 	Defender, 	Anchorage, 	for 	the 	Appellant. 	Heather
Stenson, 	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.
Barbara Bergitt Rascon was convicted, after a jury trial, of felony
operating under the influence and felony refusal to submit to a chemical test. 1 After the
1 	AS 28.35.030(n) and AS 28.35.032(p), respectively.

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jury returned guilty verdicts in the first phase of her bifurcated trial, Rascon waived her
right to a jury on the second phase and stipulated that she had two prior qualifying
convictions.2 Rascon now appeals both convictions, raising four claims.
Rascon first argues that the superior court erroneously denied her motion
to suppress evidence after her statutory right to contact an attorney was violated because
the arresting officers did not allow Rascon to immediately call an attorney when she
requested to do so after being asked to provide a breath sample. Second, Rascon argues
that the prosecutor did not lay a sufficient foundation establishing the chain of custody
for her blood sample (which was obtained after she refused to provide a breath sample)
and that the court accordingly erred in admitting the blood test result. Third, Rascon
argues there was insufficient evidence to establish that she operated the vehicle. Lastly,
Rascon argues that the court erred in accepting her waiver of her right to a jury trial on
the element of whether she had two or more qualifying prior offenses.
For the reasons explained in this decision, we affirm the judgment of the
superior court.
Background facts
In May 2022, a Walmart security guard heard a vehicle repeatedly
honking, and he located the vehicle in the first row of the store’s parking lot. The
security guard then watched a woman — later identified as Rascon — step out of the
driver’s door of the vehicle, remove her pants, urinate, and return to the driver’s seat.
Based on this behavior, the security guard believed that Rascon was intoxicated. When
2 	See Ostlund v. State, 51 P.3d 938, 941 (Alaska App. 2002) (explaining the two
phases of a bifurcated felony operating under the influence trial: (1) a determination of
whether the operating under the influence occurred and (2) a determination of whether the
defendant has two or more prior qualifying convictions (citing Ross v. State, 950 P.2d 587,
591-92 (Alaska App. 1997))).

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the guard saw the vehicle’s lights come on, he became concerned that Rascon was about
to drive off. He then called 911 to report his concerns.
Police officers responded to the scene and found Rascon in the driver’s
seat of a vehicle with the engine running. The officers noted that Rascon had bloodshot,
watery eyes, difficulty maintaining her balance, and slurred speech. She also smelled
of alcohol. The officers ultimately arrested her for operating under the influence and
took her to jail to conduct standard breath alcohol testing using a DataMaster.
At the jail, the officers first conducted a fifteen-minute observation period.
Near the end of the observation period, they started the DataMaster’s self-check
sequence and informed Rascon that she would be asked to provide a breath sample after
the checks were complete.
After the fifteen-minute observation period, the officers asked Rascon to
provide a breath sample by blowing into a tube on the DataMaster. But Rascon did not
blow into the tube; she instead told the officers that a rib injury prevented her from
being able to do so.
Officers then read Rascon the implied consent warning, informing her that
she would be charged with refusal to submit to a chemical test if she did not provide a
breath sample. After this, the officers reinitiated the DataMaster’s self-check sequence
and informed Rascon that she would be asked to provide a breath sample when it was
done.
Approximately three minutes later (i.e., twenty-two minutes after the
observation period began and twenty-five minutes into processing as a whole), officers
again asked Rascon to provide a breath sample by blowing into the tube. In response,
Rascon asked, “Can I have a . . . lawyer?” The officer replied, “You can have one, yeah,
but I still need you to provide a breath sample, okay? You are legally . . . required to
provide a breath sample.” The officer then urged Rascon to blow into the tube,
informing her that if she did not, the next step would be seeking a warrant for a blood
sample.

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Rascon again did not blow into the tube, and the DataMaster timed out
without Rascon providing a sample. After this, Rascon continued to decline to blow
into the tube, leading officers to seek a search warrant for a sample of her blood.
While officers were securing the warrant, Rascon asked to make a phone
call to her boyfriend. The officers immediately allowed this. They placed the call for
Rascon, and after she provided an incorrect phone number for her boyfriend, they
placed a second call for her. Rascon spoke with her boyfriend on speaker phone for
approximately thirteen minutes. During this conversation, Rascon stated that her key
had been in the vehicle.
The officers eventually obtained and executed a search warrant for
Rascon’s blood. Later chemical testing showed that Rascon had a blood alcohol content
of .224 grams of alcohol per 100 milliliters of blood at the time of the blood draw.
Rascon was charged with felony operating under the influence and felony refusal to
submit to a chemical test.
Relevant proceedings
Prior to trial, Rascon moved to suppress all evidence collected by the State
after she asked to call an attorney, claiming that the officers violated her statutory right
to immediately contact a lawyer after her arrest. The superior court denied this motion,
ruling that Rascon’s request to immediately contact a lawyer was unreasonable. The
superior court based this ruling on its findings that Rascon did not request a lawyer
during the roughly twenty-five minutes preceding the breath test (when a request would
not have interfered with the testing procedures), and that her request occurred while the
officers were actively trying to administer a breath test, meaning that allowing her to
call a lawyer would have interfered with the testing process.
The case proceeded to trial. At trial, the State presented testimony from
the Walmart security guard, who testified about Rascon’s actions in the parking lot and
why he called 911. The State also presented testimony from the responding officers,

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including the officer who executed the search warrant for Rascon’s blood. This officer
testified about Rascon’s conduct during the breath testing procedures, the search
warrant obtained to collect a sample of Rascon’s blood, and the general procedure of
sending blood samples to the Alaska Scientific Crime Detection Laboratory (crime lab)
for testing.
A forensic scientist for the crime lab testified about the testing performed
on Rascon’s blood sample. When the scientist was asked how she knew that the blood
she tested was Rascon’s, the scientist explained the various processes in place at the
crime lab that are used for tracking items received by the laboratory. The scientist
described the use of multiple, redundant forms of identification to ensure that the
analysts could be confident that the items they were testing were what they were
purported to be.
Rascon objected to the admission of the scientist’s laboratory report.3
Rascon argued that no foundation had been laid showing how the blood sample got
from her to the crime lab. The court conditionally admitted the report but asked the
parties to submit written briefing on the question.
The State then introduced the laboratory report, which stated that the
blood sample was “collected from Barbara Rascon” and contained blood with an
alcohol content of .224 grams of alcohol per 100 milliliters of blood. The scientist
testified that the blood sample had been identified as belonging to Rascon by a label
affixed to that sample container stating that the sample was collected from “Barbara
Rascon” at a specified date and time.
Rascon objected orally and subsequently provided a written objection,
arguing that the evidence was inadmissible under Alaska Evidence Rule 901 because
the State had not presented sufficient evidence that Rascon’s blood sample was the
3 	At this point, the State had not yet moved to admit the reports.

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sample that the forensic scientist had tested. She also argued that the State had not
established that the blood sample had not been tampered with.4
The court overruled this objection, finding that there was sufficient
evidence to meet Evidence Rule 901’s requirements.
At the close of the State’s evidence, Rascon moved for a judgment of
acquittal on both counts, arguing that insufficient evidence had been presented to
establish that she was “operating” her vehicle, that the blood sample was not sufficiently
reliable to prove intoxication, and that the State had not proven her refusal charge
beyond a reasonable doubt. The superior court denied this motion.
Rascon then testified in her own defense. Rascon stated that her sister was
driving both of them around in Rascon’s vehicle, that they went to Walmart together,
and that her sister left Rascon and the vehicle in the Walmart parking lot after they had
an argument. According to Rascon, she decided to wait in the vehicle for her boyfriend
to pick her up. On cross-examination, Rascon stated — contrary to what she said during
processing — that she did not think that the key was in the vehicle during this time.
While the jury was deliberating after the first phase of trial, the court asked
Rascon if she planned to stipulate to her prior convictions for the second phase of trial
4 	Alaska Evidence Rule 901 provides, in relevant part:
The requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims, except . . . :
(a) Whenever the prosecution in a criminal trial offers (1) real evidence
which is of such a nature as not to be readily identifiable, or as to be
susceptible to adulteration, contamination, modification, tampering, or other
changes in form attributable to accident, carelessness, error or fraud, or
(2) testimony describing real evidence of the type set forth in (1) if the
information on which the description is based was acquired while the
evidence was in the custody or control of the prosecution, the prosecution
must first demonstrate as a matter of reasonable certainty that the evidence
is at the time of trial or was at the time it was observed properly identified
and free of the possible taints identified by this paragraph.

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if she was found guilty. The court informed Rascon that she had a constitutional right
to trial by jury on all elements of the alleged offense, including the right to have a jury
determine whether she had previously been convicted of qualifying offenses. Then the
court described what the second phase of the jury trial would entail, including referring
to the first phase of Rascon’s own trial that she had just witnessed. Rascon asked for
time to consider her options, and the court recessed so Rascon could consult with her
attorney.
After the jury returned guilty verdicts for the first phase, the superior court
again addressed Rascon about whether she intended to exercise her right to have a jury
determine whether she had previously been convicted of qualifying offenses. At the
request of Rascon’s counsel, the court again gave Rascon time to consult with her
attorney on this issue. After another recess, Rascon informed the court that she intended
to waive her right to a jury trial and stipulate to her prior convictions.
The court then engaged in a colloquy with Rascon to ensure that her
waiver was knowing, intelligent, and voluntary. This colloquy included reviewing the
right to a jury trial by referencing aspects of the trial Rascon had just been through, such
as requiring the State to present evidence, conducting cross examination, having the
right to present her own witnesses and evidence, and having the right to testify, if she
desired. The court also confirmed that Rascon’s judgment was not affected by alcohol,
drugs, medication, lack of sleep, stress, or anything else, and that she was clear-headed.
After confirming there were no external forces influencing Rascon’s stipulation, the
court accepted the stipulation and found it was freely and voluntarily given. The court
nevertheless asked the State to present certified copies of the judgments from Rascon’s
prior convictions. After the State did so, the court found that there was a basis to support
Rascon’s stipulation. The court entered a judgment convicting Rascon of felony
operating under the influence and felony refusal to submit to a chemical test.
This appeal followed.

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The superior court did not erroneously admit evidence collected after
Rascon’s arrest because her right to contact an attorney was not violated
Rascon first argues that the superior court erred in denying her motion to
suppress evidence collected after her arrest. This motion alleged that the arresting
officers violated her right to contact an attorney under AS 12.25.150(b), Alaska
Criminal Rule 5(b), and Copelin v. State.5
Under AS 12.25.150(b) and Rule 5(b), every arrestee has the right to
immediately telephone or otherwise communicate with an attorney. In Copelin, the
Alaska Supreme Court held that, in the context of arrests for driving under the influence,
AS 12.25.150(b) and Rule 5(b) require that an arrestee be afforded a reasonable
opportunity to communicate with an attorney before being required to decide whether
or not to submit to a breath test.6 Thus, “[w]here the important chemical testing
procedures are not unreasonably delayed, the driver should, upon request, have the
benefit of the advice of [their] own counsel, with whom [they have] a statutory right to
communicate.”7
Copelin also held that the right to contact an attorney after arrest “is not
an absolute one . . . , but, rather, a limited one of reasonable time and opportunity” and
that this right cannot be used to “interfere[] with the ‘prompt and purposeful
investigation’ of the case,” including testing an arrestee’s breath to determine their
blood alcohol content.8 Determining whether the timing is reasonable depends “on the
circumstances of each case, such as the amount of time between the stop and the
5 	Copelin v. State, 659 P.2d 1206, 1208, 1211-12 (Alaska 1983).
6 	Id. at 1208.
7 	Id. at 1213.
8 	Id. at 1211-12 & n.14 (quoting Blue v. State, 558 P.2d 636, 642 (Alaska 1977)).

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transportation to the station, when the request is made, and how much time is needed to
set up the test.”9
Here, Rascon first requested an attorney approximately twenty-two
minutes after the beginning of the observation period, after the DataMaster was fully
set up and the officers had asked her to provide a breath sample. Rascon nevertheless
argues that she was not interrupting an active test when she asked to talk to an attorney.
She asserts that, “[f]or active administration [of a breath test] to begin, the arrestee must
. . . be willing and able to participate.” According to Rascon, the fact that she had not
yet decided whether to take the breath test and had neither offered nor attempted to
provide a breath sample, meant that the test was not actively being administered.
But defining the active administration of the test as beginning with an
arrestee’s subjective decision to participate in the breath test — rather than beginning
with objective actions taken by law enforcement — is impractical and contrary to
Copelin. An arrestee’s internal thought process often leaves no external evidence for
officers to evaluate in the moment or for courts to later review. Furthermore, allowing
an arrestee to determine when the testing procedures begin would make it more likely
that the arrestee could use their right to contact counsel as a way to “interfere[] with the
‘prompt and purposeful investigation’ of the case.”10
Here, the superior court found that Rascon requested counsel while the
officers were actively administering the breath test and that honoring her request would
interrupt the testing procedure. These findings are well-supported by the record. Given
that Rascon did not ask to call an attorney until after a reasonable time for trying to
contact an attorney had expired, we conclude that the officer was not required to
9 	Id. at 1212.
10 	Id. at 1212 n.14 (quoting Blue, 558 P.2d at 642).

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immediately honor her request.11 We accordingly affirm the superior court’s denial of
Rascon’s motion to suppress the blood test results on these grounds.
The superior 	court did not err 	in 	concluding 	there 	was 	sufficient
foundation to show the blood test results were from Rascon’s blood
sample
Rascon next argues that the superior court erred in finding that the State
laid a sufficient foundation to establish that the blood test results introduced at trial were
from testing done on her blood sample. This is essentially an attack on the chain-of-
custody and anti-tampering requirements of Alaska Evidence Rule 901.
Under Rule 901(a), the State must demonstrate a “reasonable certainty”
that a defendant’s blood sample was not substituted, modified, or otherwise tampered
with prior to testing. But “Evidence Rule 901 does not require the State to bring forward
every witness who had custody of, or contact with, the physical evidence in question,
nor does it require the State to affirmatively negate every conceivable possibility of
mishandling or tampering.”12 Indeed, “[w]here no evidence indicating otherwise is
produced, the presumption of regularity supports the official acts of public officers, and
courts presume that they have properly discharged their official duties.”13
Here, the superior court correctly concluded that the State introduced
sufficient evidence to satisfy Evidence Rule 901. The State presented testimony from
two witnesses (a police officer and a forensic scientist) about how Rascon’s blood
11 	See Grossman v. State, 285 P.3d 281, 284 (Alaska App. 2012) (“[A]fter the trooper
began to actively administer the breath test to Grossman, Grossman had no right under
Copelin to interrupt the testing procedure.”).
12 	Vann v. State, 229 P.3d 197, 211 (Alaska App. 2010).
13 	Houston-Hult v. State, 843 P.2d 1262, 1266 (Alaska App. 1992) (quoting Gallego
v. United States, 276 F.2d 914, 917 (9th Cir. 1960)); Wright v. State, 501 P.2d 1360, 1372
(Alaska 1972) (quoting Gallego, 276 F.2d at 917); see also Alaska R. Evid. 901 cmt.
para. 3 (adopting ruling in Wright).

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sample was collected, transported, identified, and tested in accordance with their duties
as public officials. The testimony of these witnesses provided a basis for applying the
presumption of regularity. As the superior court found, there was no evidence
suggesting that the sample was tainted or that there was any irregularity in the handling
of the disputed evidence. Thus, although the State could have made a more thorough
presentation 	of 	this 	evidence, 	we 	agree 	with 	the 	superior 	court 	that 	Evidence
Rule 901(a) was satisfied.
Sufficient evidence supported the verdicts
Rascon next argues there was insufficient evidence to support the jury’s
verdicts finding her guilty of operating a motor vehicle while under the influence of
alcohol and refusal to submit to a chemical test.14
During trial, Rascon moved for a judgment of acquittal, arguing that there
was insufficient evidence that she operated the vehicle. The superior court denied this
motion. On appeal, Rascon renews this argument, again challenging the sufficiency of
the evidence that she was “operating” a motor vehicle.
Operating a motor vehicle includes “being in actual physical control of a
vehicle with its motor running.”15 During Rascon’s trial testimony, she admitted that
she had been seated in the driver’s seat of the vehicle when the officers contacted her,
and she did not contest that the vehicle’s engine was running. She also testified that,
although she had said during the OUI processing that the key was in the vehicle, she
was no longer “sure” that this was true.
On appeal, Rascon contends that the vehicle used a push-to-start ignition
mechanism, so although there was evidence that Rascon was sitting in the driver’s seat
14 	AS 28.35.030(n) and AS 28.35.032(p).
15 	Jacobson v. State, 551 P.2d 935, 938 (Alaska 1976).

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of the vehicle with the engine running, this did not mean that Rascon had the key or
could drive the vehicle.
When we review a claim that the evidence presented at a criminal trial is
insufficient to support the defendant’s conviction, we view the evidence, and all
reasonable inferences to be drawn from that evidence, in the light most favorable to
upholding the verdict.16 The evidence is sufficient when, viewed in this manner, it is
“adequate to support a conclusion by a reasonable mind that there was no reasonable
doubt as to [the defendant’s] guilt.”17 Here, the uncontested evidence showed that
Rascon was seated in the driver’s seat with the engine running. Furthermore, the
evidence included an audio recording of Rascon saying that the key was in the vehicle.
We accordingly affirm the superior court’s denial of Rascon’s motion to
dismiss for insufficient evidence.
The superior court did not err in accepting Rascon’s waiver of her right
to a jury trial
Rascon finally argues that her convictions must be reversed because the
superior court’s inquiry into her waiver of her right to a jury trial on the question of
whether she had two or more qualifying prior convictions was deficient.
A defendant can waive their right to a jury trial on an element via a
personal waiver that is knowing, intelligent, and voluntary.18 A trial court has a duty to
personally inquire with a defendant who seeks to waive their right to a jury trial on an
element to ensure that their waiver is knowing, intelligent, and voluntary.19
16 	Johnson v. State, 188 P.3d 700, 702 (Alaska App. 2008).
17 	Martin v. City of Fairbanks, 456 P.2d 462, 465 (Alaska 1969), overruled on other
grounds by Whitton v. State, 479 P.2d 302 (Alaska 1970).
18 	Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978); Alaska R. Crim. P. 23(a).
19 	Walker, 578 P.2d at 1390.

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Rascon argues there were three deficiencies in the superior court’s
inquiry: (1) the court did not distinguish between Rascon’s waiver of her right to a jury
trial and her stipulation to the existence of the prior convictions; (2) the court’s colloquy
failed to inform Rascon that the right to a jury trial requires a unanimous decision
beyond a reasonable doubt; and (3) the court did not explicitly find that Rascon’s waiver
was “knowing and intelligent.” We disagree.
First, while the court’s acceptance of Rascon’s waiver of her right to a
jury trial on one element and her stipulation that the element was met at the same time
was not the best practice, any error was harmless. Rascon does not dispute that she has
two prior qualifying convictions and the superior court was actually shown certified
copies of Rascon’s prior convictions despite her stipulation and waiver. As a result, any
error was harmless.20
Second, the superior court’s failure to explicitly inform Rascon about the
“unanimity” and “beyond a reasonable doubt” requirements in jury trials did not render
Rascon’s waiver unknowing. The purpose of the superior court’s inquiry was to ensure
that Rascon “was provided with enough information to ensure that [s]he knowingly
waived h[er] right to a jury trial.”21 This standard was met even without the court
explicitly telling Rascon about the unanimity requirement and the beyond a reasonable
doubt standard, especially since Rascon had just participated in a full jury trial on the
question of whether she was guilty of operating under the influence and refusal.
20 	See Smith v. State, 2019 WL 856582, at *4-5 (Alaska App. Feb. 20, 2019)
(unpublished) (holding similar error was harmless).
21 	Hedrick v. State, 474 P.3d 4, 8 (Alaska App. 2020); see also id. at 11 (Wollenberg,
J., concurring) (“As Professor LaFave explains in his treatise on criminal procedure,
although courts differ on precisely what a jury trial waiver colloquy should include,
‘detailed explanations about the jury right are generally not necessary.’” (quoting 6 Wayne
R. LaFave et al., Criminal Procedure § 22.1(h), at 44 (4th ed. 2015))).

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Finally, the superior court did not err in failing to make explicit findings
that Rascon’s waiver was knowing and intelligent. Taken as a whole, the superior
court’s colloquy with Rascon shows that the court applied the correct test and that
Rascon’s waiver was knowing, intelligent, and voluntary.
Accordingly, we find no error in the superior court’s acceptance of
Rascon’s waiver of her right to a jury trial and stipulation to her prior convictions.
Conclusion
The judgment of the superior court is AFFIRMED.