Opinion
Court of Appeals No. A-11441 Trial Court No. 3AN-12-4792 CR No. 6064
06-25-2014
JACOB S. AUBREY, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Michael B. Logue, Gorton & Logue, Anchorage, for the Appellant. Seneca A. Theno, Chief Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
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.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Brian K. Clark, Judge.
Appearances: Michael B. Logue, Gorton & Logue, Anchorage, for the Appellant. Seneca A. Theno, Chief Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Jacob S. Aubrey appeals his conviction for operating a motor vehicle under the influence. The question presented on appeal is whether the police violated Aubrey's right to consult an attorney in connection with the breath test.
Anchorage Municipal Code § 9.28.020.
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The Anchorage police found Aubrey passed out in a van in a gas station parking lot. They arrested him for operating a motor vehicle under the influence, and they took him to a police station for administration of a breath test.
Breath test procedures require the police to observe an arrestee for at least 15 minutes before administering the test. Near the beginning of this 15-minute observation period, shortly after 5:00 a.m., Aubrey asked when he would be able to make a phone call. The officers told him that he could make a phone call right then. Aubrey began to give the officers a telephone number to call, but then he changed his mind and decided he did not want to make a call.
About eight minutes later, Aubrey again told the officers that he would like to make a phone call — but he also said that he did not wish to make this call until 6:30 (i.e., more than an hour in the future).
After the 15-minute observation period was completed, the police attempted to administer the breath test, but Aubrey did not blow steadily into the machine, and the machine reported that this first attempt was "invalid".
When one of the officers commented that Aubrey might have been blowing too hard, Aubrey replied, "Too soft? Too hard?" While the officers discussed this issue, Aubrey declared, "I think I'm gonna talk to my lawyer first ... ; I think so." The officers did not respond to this statement.
Aubrey then argued with officers about having to take the breath test a second time; he contended that he had already given his mandatory breath sample. In the alternative, Aubrey suggested that they run the second breath test on a different machine. The officers agreed to this proposal, and they switched to another processing room.
About seven minutes after the first breath test ended in failure, the officers administered the second breath test to Aubrey (on a second machine), and this time Aubrey gave a valid breath sample.
After the completion of this second breath test, the officers advised Aubrey of his right to an independent chemical test, either at municipal expense or at his own expense, and they asked him what he wanted to do. Aubrey replied, "I'd like to talk to my lawyer before I answer that question." The police then asked Aubrey if he wanted to call anybody. Aubrey responded, "Not at the moment. I told you: 6:30 a.m." One of the officers asked Aubrey when he intended to talk to his lawyer, and Aubrey replied, "After everything is [re]solved. 6:30 a.m."
After Aubrey was formally charged with operating under the influence, he filed a motion to suppress his breath test result, arguing that the police had violated his right to contact an attorney. See Copelin v. State, 659 P.2d 1206, 1208 (Alaska 1983) (holding that a person arrested for driving under the influence has the right under AS 12.25.150(b) to contact an attorney before deciding whether to take the breath test).
In particular, Aubrey argued that the police violated his rights when, in between the two breath tests, Aubrey declared, "I think I'm gonna talk to my lawyer first ... ; I think so," and the officers did not respond.
After holding an evidentiary hearing, the district court denied Aubrey's suppression motion.
Under the Alaska Supreme Court's decision in Copelin v. State, 659 P.2d 1206, 1212-14 (Alaska 1983), a person arrested for driving under the influence has the right to attempt to contact and consult an attorney before deciding whether to submit to a breath test. But the Copelin decision itself declares that an arrestee's right to contact an attorney is "limited [to a] reasonable time and opportunity", 659 P.2d at 1211-12, and that the arresting officer is not required to allow an arrestee to exercise this right in a manner that "interfere[s] with the prompt and purposeful investigation of the case". Id. at 1212 n. 14.
In Grossman v. State, 285 P.3d 281, 284-85 (Alaska App. 2012), this Court held that the right recognized in Copelin — an arrestee's right to contact an attorney before deciding whether to take the breath test — does not include the right to interrupt the actual administration of the breath test.
Like Aubrey, the defendant in Grossman agreed to take the breath test without consulting counsel. Then, after Grossman twice failed to provide an adequate breath sample, the officer administering the test declared that he intended to charge Grossman with knowingly refusing to take the test unless Grossman provided an adequate breath sample on his next attempt. Id. at 282-83. At that point, Grossman announced that he wanted to consult an attorney. The officer replied that he would not allow Grossman to interrupt the administration of the breath test, but the officer assured Grossman that he would be given the opportunity to try to contact an attorney after the testing procedure was finished. Id. at 283.
On appeal, Grossman argued that the officer violated his rights under Copelin when he told Grossman that the phone call would have to wait until the testing process was complete. We rejected this argument and held, instead, that an arrestee's request to call an attorney is "unreasonable" for purposes of Copelin if the request is made after the observation period is completed and the police are actively engaged in the testing process. Id. at 283-84.
In Aubrey's case, the district court denied Aubrey's suppression motion because the court found that the officers would have had to interrupt the testing process to accommodate Aubrey's request for an attorney. Here is the pertinent portion of the district court's ruling:
The Court: Mr. Aubrey was given a reasonable time to contact an attorney. He decided to take the breath test [without consulting an attorney] and, after he started taking the breath test, there was that interruption. And, of course, maybe he wanted to get the advice of an attorney, but at that time the reasonable time period [for contacting an attorney] had expired. I don't think it matters that there was a seven-minute [interval between the two tests], because [the officers] were immediately setting up the next breath test. ... [A]t the time that he made the request[,] ... he had already decided to take the test, and they were in the middle of the testing procedure.
The record supports the district court's finding that the police were actively engaged in the testing process when Aubrey made his remark about talking to his lawyer. Our decision in Grossman therefore governs Aubrey's case.
The judgement of the district court is AFFIRMED.