dissenting in part.
I disagree with Part III.A of the court’s decision. The court there holds that “the Due Process Clause of the Alaska Constitution entitles a DWI arrestee to an independent chemical test even if that person refuses to take the statutorily prescribed breath test.” Op. at 1277. In my view, the Due Process Clause confers no such right.
This is a DWI case, but it appears to me that the result the court reaches here has much broader implications. Absent legitimate public safety concerns, police may not prevent an accused from gathering exculpatory evidence, and consequently may not prevent a DWI accused from arranging to be independently tested while still in custody.1 The court, however, goes further. At a minimum it requires police to transport unreleased DWI accuseds in a timely fashion to a place where their blood can be drawn for independent testing.2 In effect, police must now actively help the accused gather potentially exculpatory evidence.
Our prior decisions do not require or forecast this result. The cases most prominently cited by this court, Gundersen v. Municipality of Anchorage, 792 P.2d 673 (Alaska 1990), and Lauderdale v. State, 548 P.2d 376 (Alaska 1976), are readily distinguishable and do not hint at the existence of the right conferred today. Those cases expressly state that the primary purpose of the independent test is to allow an arrestee the opportunity to challenge the state’s blood or breathalyzer test results submitted into evidence. Gundersen, 792 P.2d at 676; Lauderdale, 548 P.2d at 381-82. Due process requires that this opportunity be provided to arrestees to rebut that evidence. In Lauderdale, this court held that
Lauderdale is asking for the opportunity to test the reliability or credibility of the re-*1282suits of the breathalyzer test- A denial of the right to make such analysis, that is to say, to “cross-examine” the results of the test, would be reversible error without any need for a showing of prejudice. It would be a denial of a right to a fair trial, and a fair trial is essential to affording an accused due process of law.
548 P.2d at 381. In Gundersen, we held that
Since a defendant must provide the state with potentially incriminating evidence at the risk of criminal penalties, we hold that due process requires that the defendant be given an opportunity to challenge the reliability of that evidence in the simplest and most effective' way possible, that is, an independent test.
792 P.2d at 676.
In Gundersen, the accused submitted to a breath test which incriminated him. The sample was not preserved. This court found a due process right to an independent test in that context, holding that
We agree with the court of appeals that if the police choose not to preserve a breath sample, due process requires that they give clear and express notice of a defendant’s right to an independent test and offer assistance in obtaining one in order to introduce police-administered test results at trial.
792 P.2d at 677.
As the court of appeals correctly observed when it affirmed Snyder’s conviction:
The general rule ... is that the state has no duty to collect evidence; its duty of preservation applies only to evidence that has actually been gathered.
Under the due process clause of the Alaska Constitution, a limited exception to the general rule applies to the extent that the state is required to gather and preserve evidence affording DWI arrestees a reasonable opportunity to challenge the result of a breath test obtained pursuant to the implied consent statutes. By definition, however, this exception to the general rule attaches only after an arrestee submits to a breath test.
Snyder v. State, 879 P.2d 1025, 1028 (Alaska App.1994) (citations omitted).
Thus, these cases have read due process to require police to assist an accused in obtaining an independent blood test, not because due process accords the accused a right to a blood test, but because due process requires that the accused have an opportunity to rebut the breath test administered by police. These cases do not require the result reached here, which creates a due process right to an independent blood test even if the accused refuses the police breath test.
The result the court now reaches cannot logically be limited to blood samples of DWI arrestees, but has much greater implications given its reliance on a theory that police must gather “inherently evanescent” evidence which potentially exculpates persons accused of “serious crimes such as DWI.” Op. at 1278, 1279. The court cites two well-founded propositions:
It is a fundamental tenet of due process of law that a person accused of a crime has a right to attempt to obtain exculpatory evidence. And it is well established that law enforcement has a duty to preserve and disclose material evidence, the dereliction of which can deprive the accused of due process.
Op. at 1277. But equally well-founded is the general proposition that the state normally has no obligation to aid a suspect in gathering potentially exculpatory evidence, as the court expressly recognizes.3 Op. at 1277-*12831278. DWI evidence is not unique. Nothing logically sets it apart from other types of evidence,4 much of which may rapidly degrade until it is no longer probative of innocence. Its value may be lost before the accused is released or can make efforts to preserve it. “Evanescent” alcohol levels bear not only upon guilt in DWTs, but upon other issues, such as diminished capacity, in other crimes more serious than DWI. Other chemicals in an arrestee’s blood can be equally ephemeral, and testing potentially just as exculpatory. Crime scene evidence may be lost if not promptly preserved; it is always potentially exculpatory. Even for misdemeanors, the consequences of failing to discover and preserve exculpatory evidence may be severe. Contrary to the court’s assertion, there is nothing unique about the “evidentia-ry circumstances attendant to DWI arrests.” Op. at 1278. ■
Fairness and justice do not require the result reached here. It is one thing to impose a duty to aid in independent testing if the prosecution has access to highly-persuasive breath testing results. The most effective way to dispute such results is through independent testing. But because Snyder refused to give a breath sample, there are no police test results. Further, the record does not reveal that Snyder was precluded from arranging an independent blood test to be conducted while he was still in custody.
The duty the court now imposes creates procedural and practical problems which, assuming they can be surmounted by diligént and exacting police work, illustrate not only why imposing such a duty is a bad idea, but also why the existence of such a right is constitutionally improbable. Snyder demanded an independent test, but if the right now conferred has due process origins, at a minimum police must disclose the right to DWI arrestees; some will be incapable of making an informed decision whether to exercise the right. Presumably, also, the public must pay for an independent test if the arrestee cannot. Transporting arrestees to the place of independent testing will reduce the number of officers available to patrol actively for DWI offenders (or to respond to other reported crimes). I do not agree that the burden that will be imposed on the state (and other non-state law enforcement agencies) will only be “slight,” Op. at 1279, but it also seems probable that collateral disputes will arise about whether the failure to provide independent testing for particular arres-tees is excusable because it was in fact completely infeasible or could be obtained only after extraordinary effort. Assuming for sake of discussion that an arrestee is entitled to independent testing within two or three hours after arrest (keeping in mind that it is in the arrestee’s interest to delay the test as long as possible), one can foresee that due process could require that an arrestee be transported over great distances. If there is no person qualified to draw blood for an independent test in the near vicinity, does due process require that the arrestee be transported to the nearest community by road or air at public expense?
Finally, the court fashions an unwarranted remedy which illustrates why no such right should be conferred. Reasoning that because police did not administer a breath test, there are no police test results to suppress, *1284the court requires the trial court on remand to “presume that the independent blood test Snyder sought, if provided, would have been favorable to him.” Op. at 1280. Thus, Snyder, by refusing to give a breath sample to police, has the best of all worlds: he prevented police from gathering incriminating test results, and he receives a presumption that his independent blood test would have been exculpatory. Snyder’s refusal, consequently, not only deprived the state of incriminating evidence, but generates the equivalent of exculpatory evidence. I am not suggesting that some other remedy, such as dismissal, would be appropriate. Instead, the remedy reveals the fundamental illogic in conferring any such right in the first place.
. A person in Snyder’s position has a right to be independently tested at his expense. In exercising that right, Snyder would have been entitled to make arrangements to be tested while in custody or upon release on bond. Police could not interfere with that effort, apart from satisfying valid police interests, such as completing the process of charging and booking Snyder and maintaining facility security.
. The court apparently would not impose any duty of assistance with respect to an accused who has been released. The right conferred here appears to apply only to accuseds in custody.
. The court states that "[a]t least two other states have concluded that a defendant is entitled to an independent blood test regardless of whether he submits to a police designated test.” Op. at 1279 n. 6. In support of this assertion, the court cites Montano v. Superior Court Pima County, 149 Ariz. 385, 719 P.2d 271, 277 (1986) (holding that an arrestee is entitled to be informed of the right to an independent test when the implied consent law is not invoked), and State v. Swanson, 222 Mont. 357, 722 P.2d 1155, 1157 (1986). Those jurisdictions that have granted the right to an independent test have been extremely cautious in granting that right. The cases explicitly state that no affirmative burden is imposed upon the police to assist the arrestee in obtaining the test; instead, the requirement is only that they not impede an arrestee's efforts to obtain a test. These decisions make it clear that the police have no affirmative duty to assist an accused in obtaining an independent blood test, such as the duty the court would impose here. Montano, *1283719 P.2d at 277 (holding that "[t]he state has no obligation ... to actually gather evidence for a suspect, but in the absence of the implied consent law it must provide suspects a fair chance to gather evidence by informing them of their right to testing”); State v. Peterson, 227 Mont. 418, 739 P.2d 958, 961 (1987) (clarifying rule in Swanson). Furthermore, State v. Miller, 161 Ariz. 468, 778 P.2d 1364, 1366 (App.1989), held that "Montano is limited to its particular facts, and that due process does not require that a suspect be advised of his right to an independent test where the state has invoked the implied consent law." See also State ex rel. Dean v. City Court, 163 Ariz. 510, 789 P.2d 180, 183-84 n. 4 (1990) (noting that ‘‘[f]ailure to inform the defendant of his right to an independent test did not constitute interference with his right to obtain the test, where the defendant was afforded a fair chance to obtain independent evidence” (citing State v. Ramos, 155 Ariz. 153, 745 P.2d 601, 604 (App.1987))); State v. Superior Court, 179 Ariz. 343, 878 P.2d 1381, 1383 (App.1994); State v. Vannoy, 177 Ariz. 206, 866 P.2d 874, 877 (App. 1993).
. In the past, this court has drawn analogies between preserving breath samples and preserving other types of evidence, such as tape recordings of police interrogations. See Stephan v. State, 711 P.2d 1156, 1160 (Alaska 1985).