Opinion
Court of Appeals No. A-9539.
January 31, 2007.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Winston S. Burbank, Judge, Trial Court No. 4FA-04-3551CR.
Robert John, Law Office of Robert John, Fairbanks, for the Appellant. Matthew C. Christian, Assistant District Attorney, and Jeffrey A. O'Bryant, District Attorney, Fairbanks, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
The police arrested Lauri Campbell for driving while under the influence. Campbell argues that the district court should have suppressed the DataMaster breathalyzer test result for a variety of reasons: she did not knowingly and intelligently waive her right to an independent blood test, the officer interfered with her right to an independent test, the officer failed to record her waiver of her right to an independent test, she received inadequate notice of her right to an independent test, the form she signed waiving her right to an independent test was misplaced, and she was denied her constitutional right to counsel before deciding whether to request an independent test. We conclude that the district court was not clearly erroneous in finding that Campbell understood her right to an independent test and in finding that the officer did not interfere with her right. The decision whether to take an independent test is not a phase of prosecution that requires the assistance of counsel. Campbell's other claims are without merit. We therefore affirm Campbell's conviction.
AS 28.35.030(a).
Facts and proceedings
On October 5, 2004, at approximately 10:11 p.m., Fairbanks International Airport Police Officer Sean W. Martines observed a red Mazda pull out of Pike's Way onto Airport Way in Fairbanks. The vehicle turned south and drove about 100 feet in an oncoming lane of traffic, requiring an oncoming vehicle to swerve onto the shoulder to avoid a collision.
Officer Martines stopped the vehicle. When he contacted the driver, Campbell, Officer Martines noted that she had bloodshot, watery eyes and that there was an odor of alcohol coming from the vehicle. Officer Martines administered field sobriety tests. Campbell failed the horizontal gaze nystagmus and walk-and-turn tests but passed the one-leg-stand test. Officer Martines arrested Campbell for driving while under the influence and took her to the airport police station for a DataMaster breath test. The test was administered at 11:09 p.m. and showed that Campbell had a 0.128 percent blood alcohol level — well above the legal limit of .08 percent blood alcohol level.
AS 28.35.030(a)(2).
Campbell moved to suppress the DataMaster results for three reasons. First, she claimed she was intimidated and confused about her right to an independent test and, therefore, did not knowingly waive the right. Second, she argued that Officer Martines interfered with her right to an independent test. And, third, she argued that the test result should be suppressed because Officer Martines did not tape-record all of the DUI processing.
District Court Judge Winston S. Burbank found that the tape recording of Campbell's DUI processing indicated Campbell was asking relevant questions and that "[t]here is no evidence on the tape recording indicating that Campbell was confused or was so intimidated that she was afraid to ask questions about the independent test or request that she be allowed to take one." Judge Burbank found that Campbell knowingly and intelligently waived her right to an independent test and denied the motion. Judge Burbank also found that the tape recording contained the discussion of Campbell's right to an independent test.
Campbell next moved to suppress the DataMaster result because she was denied the right to counsel before deciding whether to obtain an independent blood test. Judge Burbank found that Campbell did not invoke her statutory right to counsel and that there is no constitutional right to counsel when deciding whether to obtain an independent test.
Babb v. Anchorage, 813 P.2d 312, 313 (Alaska App. 1991).
After a bench trial on stipulated facts, Judge Burbank found Campbell guilty of driving while under the influence. Campbell appeals.
Discussion
Why the court was not clearly erroneous in finding that Campbell knowingly and intelligently waived her right to an independent blood test
A driver arrested for driving while under the influence has a due process right under the Alaska Constitution to a reasonable opportunity to challenge the accuracy of a police-administered breath test. One way for the police to satisfy due process is to comply with AS 28.35.033(e), the statute establishing the right to an independent test of the driver's blood alcohol level, by, in part, giving the defendant "clear and express notice" of this statutory right.
Gundersen v. Anchorage, 792 P.2d 673, 675-76 (Alaska 1990); Crim v. Anchorage, 903 P.2d 586, 587-88 (Alaska App. 1995) (citing Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995)).
Gundersen, 792 P.2d at 676-77.
A driver may relinquish this right only by a knowing and intelligent waiver of the right. This requires "a basic understanding of the right to an independent test," which is determined based on the "totality of the circumstances," including whether the driver was notified of the right to an independent test, was aware that he or she was arrested for driving while under the influence, and generally understood that the purpose of the independent test was to obtain evidence of his or her blood alcohol level.
Id. at 677.
Ahtuangaruak v. State, 820 P.2d 310, 311 (Alaska App. 1991).
Crim, 903 P.2d at 588.
See Moses v. State, 32 P.3d 1079, 1084 (Alaska App. 2001); Crim, 903 P.2d at 588.
Here, Judge Burbank found that "[t]here is no evidence on the tape recording indicating that Campbell was confused or was so intimidated that she wasafraid to ask questions about the independent test or request that she be allowed to take one." We review this factual finding for clear error. A factual finding is clearly erroneous if, after reviewing the record, we are left "with a definite and firm conviction . . . that a mistake has been made, even though there may be evidence to support [the trial court's] finding."
Nathan v. Anchorage, 955 P.2d 528, 531 (Alaska App. 1998) (citing Cockerham v. State, 933 P.2d 537, 539 n. 9 (Alaska 1997)).
Id. (brackets in original).
Officer Martines testified that Campbell was able to follow instructions, listened closely, was coherent, and asked pointed questions throughout the DUI processing. He testified that he read Campbell a form that explained her right to an independent test and that she signed the form. When Officer Martines asked Campbell if she understood the form, "she shook her head and said, `yes.'" When he asked if she wanted an independent test, she said, "no." Officer Martines's testimony is supported by the tape of the DUI processing, on which Campbell asks pointed questions, seems to understand what is going on, and, although it is difficult to hear, appears to waive her right to an independent test.
Campbell testified that she could not recall this discussion or waiving her right and that she did not understand the right, how long the test would take, or where it would take place. However, she admitted to asking a variety of questions throughout the DUI processing.
We can find no reason to reverse the district court's finding that Campbell knowingly and intelligently waived her right to an independent test. Both Officer Martines's testimony and the tape of the DUI processing show that Campbell was notified of her right to an independent test and that she waived that right. Campbell was coherent throughout the processing and seemed to understand what was happening. She was aware that she was arrested for driving while under the influence. And she has not alleged that she did not waive her right or that she did not understand that the purpose of the independent test was to obtain evidence of her blood alcohol level.
See Moses, 32 P.3d at 1084; Crim, 903 P.2d at 588; Ahtuangaruak, 820 P.2d at 311.
Campbell appears to have had a basic understanding of her right to an independent test. Judge Burbank was not clearly erroneous in finding that Campbell knowingly and intelligently waived her right to an independent test.
See Crim, 903 P.2d at 588-89.
Why the court was not clearly erroneous in finding that Officer Martines did not interfere with Campbell's right to an independent test
Campbell also argues that the DataMaster result should be suppressed because Officer Martines interfered with her right to an independent test by intimidating her, pressuring her, and accusing her of lying. If the State interferes with the driver's right to an independent test, the breath test result must be suppressed. It is a factual question whether, under the totality of the circumstances, state conduct prevented the driver from obtaining an independent test that the driver otherwise would have obtained. Here, Judge Burbank found that "[t]here is no evidence on the tape recording indicating that Campbell was . . . so intimidated that she was afraid to ask questions about the independent test or request that she be allowed to take one." We review this factual finding for clear error.
Ward v. State, 758 P.2d 87, 89-91 (Alaska 1988).
Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995).
Nathan, 955 P.2d at 531.
Here, the alleged intimidation consisted of Officer Martines playing the theme song to the television show "COPS" while he was transporting Campbell to the police station and asking her what she thought of the song. And the alleged pressure consisted of Officer Martines stating:
I'll tell you what, because you gave me the sob story and everything else, you've lied to me several times already, you told me that everybody paid your way up here, not that you, you just told me that you paid yourself up here, so I'm kind of getting tired of this. This is costing a lot of time that I need to write my report and take you down to jail. All right? I will let you have one more time. But I already have enough to charge you with another crime. Do you understand that? Okay?
Officer Martines testified that he made this comment because Campbell was stalling and refusing to properly blow into the DataMaster.
Even if the "COPS" song and Officer Martines's words and action could be construed as amounting to pressure and intimidation, there is no evidence that they affected or influenced Campbell's decision-making. As noted above, Campbell seemed coherent and asked pointed questions throughout her DUI processing. In fact, immediately before Officer Martines explained to Campbell her right to an independent test, Campbell asked him detailed questions about the impact of a DUI on her insurance rates. It does not appear that Officer Martines prevented Campbell from obtaining an independent test that she otherwise would have obtained. Judge Burbank's finding that Campbell was not so intimidated that she was denied her right to an independent test was not clearly erroneous.
See Crim, 903 P.2d at 587-88.
Id.
Why Judge Burbank did not err in refusing to suppress the DataMaster result due to Officer Martines's failure to tape-record the entire DUI processing
Campbell argues that the district court should have suppressed the DataMaster result because Officer Martines did not tape-record the entire DUI processing and her waiver of her right to an independent test is not evident on the tape. The due process clause of the Alaska Constitution requires police to record custodial interrogations that occur in a place of detention, including the giving of the accused's Miranda warnings.
Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694 (1966).
Stephan v. State, 711 P.2d 1156, 1162-63 (Alaska 1985).
It is true that at some point between the time Campbell failed the DataMaster test for the second time and the time Officer Martines informed Campbell of her right to an independent test, the tape ran out. When Officer Martines realized that the tape had run out, he started a new tape.
However, in this case, there was no custodial interrogation. Nor does Campbell allege that the missing portions of the tape involved custodial interrogations. Instead, she claims that the tape does not include her waiver of her right to an independent test. But this does not appear to be true. Officer Martines testified that the tape is difficult to hear because he and Campbell were sitting approximately six feet from the tape recorder and because he was between Campbell and the recorder with his back to the recorder. However, he identified the portions of the tape where he told Campbell about her right to an independent test and where Campbell waived her right to the independent test. And, although the tape is very difficult to understand, it appears to contain the entire discussion of the right to an independent test and Campbell's waiver of that right.
Finally, Campbell has not shown how the evidence might have aided her. She did not dispute that she waived her right to an independent test. And she testified that the missing parts of the tape would have shown that she was asking questions and trying to cooperate with Officer Martines. If anything, this would support Judge Burbank's finding that Campbell made a knowing and intelligent waiver of her right to an independent test. Judge Burbank did not err in refusing to suppress the DataMaster test.
Suiter v. State, 785 P.2d at 28, 31 (Alaska App. 1989).
Why we find that Officer Martines gave Campbell adequate notice of her right to an independent test
Campbell also argues that the DataMaster result should be suppressed because the forms that explained her right to an independent test were inadequate and because the form that she allegedly signed is missing. However, she did not raise either of these claims below.
Normally, we only review claims that were not raised in the trial court for plain error. "A plain error is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice."
Winkler v. State, 580 P.2d 1167, 1173 (Alaska 1978) (citing Alaska R. Crim. P. 47(b)).
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985), superseded by statute on other grounds, AS 11.81.900(b)(52) (now AS 11.81.900(b)(58)), as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
Campbell claims that the form was inadequate because it "does not actually inform the person that she must decide whether to obtain an independent test. Instead, the form tells the accused that she must decide whether she wants transportation" (emphasis in original). Campbell apparently objects to the following statement:
At this time you must decide whether or not you want transportation in order to take an independent test. If you refuse to decide, or do not wish such a test, or you are shortly released from custody, you will not be provided with transportation.
However, the form begins by stating that "[y]ou have a right to an independent test of your level of intoxication . . . [i]f you wish to have an independent chemical test . . . you will be transported to the test free of charge." And it concludes with a list of choices: "(1) I do not want an idependent [sic] test, (2) I want a blood sample atState expense, or (3) I want a chemical test at My [sic] own expense to be administered at" (emphasis in original). The form adequately explains the right to an independent test. Judge Burbank did not commit plain error.
Campbell also claims that the district court should have suppressed the DataMaster test due to the loss of the form that she allegedly signed to waive her right to an independent test. However, when the State fails to preserve evidence, "the issue is whether it would have been favorable to the accused." Here, there was no dispute that Campbell waived her right to an independent test. Officer Martines testified that heread Campbell a form that explained her right to an independent test and that she signed the form. Campbell did not directly challenge this testimony. She only testified that she did not recall signing the form. Judge Burbank did not commit plain error.
Thorne v. Dept. of Pub. Safety, 774 P.2d 1326, 1330 (Alaska 1989).
Why the court did not err in finding that Campbell did not have a constitutional right to counsel
Campbell's final argument is that the district court erred in finding that Officer Martines did not violate her right to counsel. She argues that she had a constitutional right to counsel before deciding whether to obtain an independent test.
Article 1, section 11 of the Alaska Constitution provides that "[i]n all criminal prosecutions . . . the accused is entitled to . . . have the assistance of counsel for his defense." However, we have held that this only applies to "those who stand accused in `criminal proceedings'" where there is "commencement of a specified adversarial proceeding" that "trigger[s] the right to counsel." In Babb v. Anchorage, we held that "[t]he independent blood-alcohol test is . . . not a critical stage at which the constitutional right to counsel attaches."
Thiel v. State, 762 P.2d 478, 482 (Alaska App. 1988) (quoting Alaska Const. art. 1, § 11); see also State v. Garrison, 128 P.3d 741, 744-45 (Alaska App. 2006).
813 P.2d 312 (Alaska App. 1991).
Id. at 313.
Campbell claims that, in Babb, we did not balance the need for prompt investigation against a suspect's right to a fair trial. And she argues that Babb is no longer good law because the Alaska Supreme Court subsequently held in Snyder v. State that "the opportunity to obtain evidence of blood alcohol content is a reasonably necessary safeguard, essential to the adequate protection of the accused's right to a fair trial."
See Blue v. State, 558 P.2d 636, 641-42 (Alaska 1977); see also Svedlund v. Anchorage, 671 P.2d 378, 382 (Alaska App. 1983) (concluding "that the breathalyzer exam is not a `critical stage' at which the constitution requires counsel's presence")
930 P.2d 1274 (Alaska 1996).
Id. at 1279.
But the supreme court's decision in Snyder does not address the right to counsel. It addresses the right to an independent test under the due process clause of the Alaska Constitution. The fact that the opportunity to obtain an independent test is guaranteed by due process does not make it a stage of prosecution, let alone a stage at which "counsel's absence might derogate from [the accused's] right to a fair trial."
Id.
Svedlund, 671 P.2d at 382 (quoting People v. Craft, 270 N.E.2d 297, 299 (N.Y. 1971)).
Campbell has not presented any reason to depart from the rule announced in Babb. The decision to request an independent blood test is not a critical stage of prosecution. Campbell did not have a constitutional right to counsel before waiving her right to an independent test.
Babb, 813 P.2d at 313.
Conclusion
Campbell's conviction is AFFIRMED.
.