dissenting.
This case raises the issue of whether a defendant's prior DWI conviction from another state qualifies as a "prior conviction" under AS 28.35.030(r)(4) if that other state does not recognize a motorist's right to an independent chemical test of their breath or blood. Simpson has prior DWI convictions from California. California statutory law gives motorists the right to choose a blood test (presumably, an independent chemical test) instead of a breath test: see California Vehicle Code § 23612(a)(2)(A).1 - However, *601the California courts have repeatedly held that this statutory right is not a due process right, and that failure to advise a motorist of their right to choose a blood test does not invalidate the motorist's conviction or require suppression of breath test results.2
In our original decision, State v. Simpson, Alaska App. Opinion No. 1869 (April 25, 2003), we concluded that even when other states do not give motorists the right to an independent test, convictions from these states still qualify as "prior convictions". We acknowledged that a motorist's right to an independent test is a component of the due process of law guaranteed by Article I, Seetion 7 of the Alaska Constitution. See Gundersen v. Anchorage, 792 P.2d 673, 676-77 & n. 6 (Alaska 1990). We further acknowledged that DWI convictions from other states do not qualify as "prior convictions" if those states do not guarantee motorists the right to counsel or the right to trial by jury. See Pananen v. State, 711 P.2d 528 (Alaska App. 1985) (right to counsel), and State v. Peel, 843 P.2d 1249 (Alaska App. 1992) (right to jury trial). Nevertheless, we concluded that the due process right to an independent chemical test is not as fundamental as the due process rights to counsel and trial by Jury. See Simpson, opinion at p. 599.
After considering Simpson's petition for rehearing, I am no longer firmly convinced that this analysis is correct. I also question whether, after our supreme court has declared that a particular right is so fundamental that it is guaranteed by the due process clause, this Court is then authorized to declare that this same right is not as fundamental as other fundamental rights.
For these reasons, I would grant the petition for rehearing and order further briefing on the questions raised in the petition.
. California Vehicle Code § 23612(a)(1)(A) reads:
If the person is lawfully arrested for driving under the influence of an alcoholic beverage, the person has the choice of whether the test shall be of his or her blood or breath, and the officer shall advise the person that he or she has that choice. If the person arrested is either incapable, or states that he or she is incapable, of completing the chosen test, the *601person shall submit to the remaining test. If a blood or breath test, or both, are unavailable, then paragraph (2) of the subdivision (d) applies.
(§ 23612(d)(2) reads: ""If a blood or breath test is not available ..., the person shall submit to the remaining test in order to determine the percent, by weight, of alcohol in the person's blood. If both the blood and breath tests are unavailable, the person shall be deemed to have given his or her consent to chemical testing of his or her urine and shall submit to a urine test.")
. See People v. Superior Court (ex rel. Maria), 13 Cal.Rptr.2d 741, 11 Cal.App.4th 134 (Cal.App. (3rd Dist.) 1992) (a police officer's failure to offer a suspected drunk driver the chemical test of his choice does not require dismissal of the charges); Skinner v. Sillas 130 Cal.Rptr. 91, 58 Cal.App.3d 591 (Cal.App. (2nd Dist.) 1976) (a motorist has no right to be told of all possible chemical tests, so long as he is told of one potential test and he thereafter takes the chemical test of which he was informed); People v. Brannon, 108 Cal.Rptr. 620, 32 Cal.App.3d 971 (Cal.App. (5th Dist.) 1973) (even though the police officer violated the portion of the implied consent statute that requires arresting officers to inform motorists that they have the choice of taking a breath, blood, or urine test, the motorist's choice of tests does not involve any constitutionally protected interest; thus, even though the motorist was offered only a breath test, the failure to advise the motorist of the other choices does not require suppression of the results of the breath test).
See also Nelson v. City of Irvine, 143 F.3d 1196 (9th Cir. 1998), cert. denied 525 U.S. 981, 119 S.Ct. 444, 142 L.Ed.2d 399 (holding that police officers did not violate the Fourth Amendment when they failed to inform suspects arrested for driving under the influence (DUI) of their choice of alcohol tests, pursuant to California's implied consent statute. The court reasoned that suspects do not have to be advised of their Fourth Amendment rights, much less their statutory rights. Therefore, the Fourth Amendment did not require police officers to advise DUI suspects of their right to choose among breath, blood, or urine tests, even though the California statute required that arrestees be informed of these options.)