Opinion
No. A-9388.
January 24, 2007.
Appeal from the District Court, Fourth Judicial District, Galena, Winston S. Burbank, Judge, Court of Appeals No. A-9388, Trial Court No. 4GA-04-119 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Charlotte M. Gowan was driving a four-wheeler down a trail on the side of a road in Galena. Galena Police Chief Daniel M. Bennett, who was sitting inside his police car partially blocking the trail, briefly flashed his overhead lights to make sure Gowan could see him. Gowan stopped about thirty to fifty yards away. Chief Bennett turned on the dome light inside his car and motioned Gowan to pass him. When she did not respond, he got out of his car and told Gowan she could pass. Gowan still did not respond, so Chief Bennett approached her. Chief Bennett discovered that Gowan was intoxicated and arrested her for driving while under the influence.
Gowan argues that the stop was an illegal investigatory stop. But Chief Bennett did not stop Gowan until after approaching the four-wheeler and observing signs of intoxication. Gowan also argues that she was denied her right to an independent test because she did not understand the right. We find that the trial court did not clearly err in finding that Gowan knowingly and intelligently waived her right to an independent test. We therefore affirm Gowan's conviction.
Facts and proceedings
At approximately 3:00 a.m. on July 31, 2004, Galena Police Chief Michael Bennett was parked on the shoulder of a road, partially blocking a four-wheeler trail, when he saw a four-wheeler approximately one hundred yards away coming toward him on the trail. His head lights and tail lights were on, and he was not blocking the main part of the trail. However, it was dark out, and Chief Bennett was worried the four-wheeler might not see him and hit his car. Chief Bennett flashed his emergency lights for " a couple of seconds" to make sure Gowan knew he was there.
Gowan slowed down and eventually stopped her four-wheeler approximately thirty to fifty yards from Chief Bennett. Chief Bennett turned on the dome light inside his car and motioned for Gowan to continue past him, but Gowan did not respond. Chief Bennett then exited his vehicle and yelled to Gowan that she could continue on the path. Her response indicated that she was intoxicated or confused, so he approached her on foot. When he contacted Gowan, Chief Bennett noticed that Gowan had an odor of alcohol, slurred speech, and bloodshot, watery eyes. Chief Bennett conducted field sobriety tests, which Gowan failed. He then arrested Gowan for driving while under the influence.
At the police station, Chief Bennett began the fifteen-minute observation period. He advised Gowan of her Miranda rights and read her a form that explained implied consent — that is, the form that explained her legal obligation to consent to a breath test to establish her level of intoxication. Chief Bennett referred to the implied consent form as "legal mumbo-jumbo" and told Gowan that if, as she claimed, she had done nothing wrong, it was in her best interest to submit to the test. Gowan eventually submitted to the DataMaster test, which revealed a blood alcohol content of .093 percent.
See Miranda v. Arizona, 384 U.S. 436, 448-55, 86 S. Ct. 1602, 1614-17, 16 L. Ed. 2d 694 (1966).
Chief Bennett then read Gowan a form explaining her right to an independent blood test. Chief Bennett repeatedly explained this right and the various options available to Gowan, but Gowan would not say whether she wished to have an independent blood test. Eventually, Chief Bennett said that he was going to mark on the form that Gowan was refusing to decide. Gowan agreed that she was refusing to decide. Gowan moved to suppress the evidence, arguing the officer did not have reasonable suspicion for the stop. She also moved to suppress the DataMaster result, arguing that Chief Bennett violated her right to an independent test by giving her contradictory and confusing advice about her legal rights.
The court denied the motions in a written order. It held that Gowan was not initially subjected to an investigative stop requiring reasonable suspicion because, after Chief Bennett activated his emergency lights, his " subsequent actions and conduct vitiate[d] what could possibly be interpreted as a show of force or authority." And it refused to suppress the DataMaster result because Gowan " seemingly understood everything that was explained to her by Chief Bennett" and did not meet her burden to show that she was confused. A jury convicted Gowan of driving while under the influence. Gowan now appeals the denials of her suppression motions.
AS 28.35.030(a).
Gowan's claim that Chief Bennett illegally stopped her
Gowan argues that Chief Bennett made an illegal investigatory stop by flashing his emergency lights without reasonable suspicion. The trial court found that the initial encounter in this case was not a stop and, therefore, did not require reasonable suspicion.
In order to make an investigative stop, an officer must have reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. In determining whether an officer's actions amount to an investigative stop,
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
we disregard both the subjective intentions of the police officer and the subjective perceptions of the person with whom the officer is dealing. Instead, the question is how a reasonable person, innocent of wrongdoing, would have perceived the officer's actions. A seizure occurs when a police officer engages in "a show of official authority such that a reasonable person would have believed that he [or she] was not free to leave."
Rogers-Dwight v. State, 899 P.2d 1389, 1390 (Alaska App. 1995) (quoting Florida v. Royer, 460 U.S. 491, 502, 103 S. Ct. 1319, 1326, 75 L. Ed. 2d 229 (1983)).
We have noted that "police action which one would not expect if the encounter was between two private citizens — boxing the car in, approaching it on all sides by many officers, or use of flashing lights as a show of authority — will likely convert the event into a Fourth Amendment seizure."
Rogers-Dwight, 899 P.2d at 391 (quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2(h), at 416-17 (2d ed. 1987)).
Here, Chief Bennett flashed his emergency lights for "a couple of seconds" when the four-wheeler was approaching him from one hundred yards or more away. A reasonable person might have found this confusing. Although Chief Bennett only flashed his lights for a few seconds and was one hundred yards in front of her, private citizens do not have emergency lights on their vehicles. Under these circumstances, a reasonable person might have thought there was an emergency ahead or that she was otherwise expected to stop or turn around. However, at that point, the encounter remained ambiguous and was not a clear stop.
When Gowan stopped thirty to fifty yards from him, Chief Bennett attempted to clarify the situation by turning on the dome light inside his car and motioning for Gowan to pass. He further attempted to clarify his intentions by exiting his vehicle and yelling to Gowan that she could continue on the path. Gowan does not claim she was unable to hear Chief Bennett tell her that she could continue on the trail. At this point, a reasonable person would have understood that she was free to leave and either would have turned around or driven past the officer.
Gowan does not argue that Chief Bennett stopped her by approaching her vehicle. And she does not dispute that Chief Bennett had reasonable suspicion to stop her once he contacted her and observed that she had an odor of alcohol, slurred speech, and bloodshot, watery eyes. Accordingly, the court properly denied Gowan's motion to suppress the evidence of the stop.
Gowan's claim that Chief Bennett violated her right to an independent test
Gowan's second argument is that Chief Bennett violated her right to an independent test by confusing her about her legal rights. She claims that Chief Bennett did this by first reading her Miranda rights (advising her that she had the right to remain silent and the right to an attorney) then telling her that it was illegal not to take the DataMaster test, that it was in her best interest to take the test if she had done nothing wrong, and that if she elected to have an independent blood test the blood sample would be retained by the police.
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 effectively comply with AS 28.35.033(e), the statute establishing the right to an independent test of the driver's alcohol level, by, among other things, giving the defendant "clear and express notice" of this statutory right.
Gundersen v. Anchorage, 792 P.2d 673, 676-77 (Alaska 1990); Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995).
Gundersen, 792 P.2d at 677.
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 satisfied if the driver is notified of the right to an independent test, is aware that he or she was arrested for driving while under the influence, and generally understands that the purpose of the independent test is to obtain evidence of his or her blood alcohol content.
Id.
Moses v. State, 32 P.3d 1079, 1084 (Alaska App. 2001) (citing Crim v. Anchorage, 903 P.2d 586, 588 (Alaska App. 1995)).
Here, the trial court found that "Gowan has f ailed to sustain [her] burden of showing that she was in fact confused. Gowan seemingly understood everything that was explained to her by Chief Bennett." W e review this factual finding for clear error.
Nathan v. Anchorage, 955 P.2d 528, 531 (Alaska App. 1998).
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."
Id. (quoting Cockerham v. State, 933 P.2d 537, 539 n. 9 (Alaska 1997)).
When Chief Bennett and Gowan arrived at the police station, Chief Bennett began the fifteen-minute observation period. He let Gowan make a phone call. He then advised Gowan of her Miranda rights. Seven minutes later, Chief Bennett read Gowan a form that explained implied consent. He began by saying, "This has a lot of legal mumbo-jumbo. It's basically saying that if you refuse to blow in that machine, you will be charged with another crime. It's [a class] A misdemeanor to do that, okay?" He then read the implied consent form. Gowan said she understood what he told her but asked why she should take the test. Chief Bennett said that failing to take the test would be an additional crime and that he would still charge her with driving while under the influence based on his observations.
Eventually, Gowan submitted to the DataMaster test, which revealed a blood alcohol content of .093 percent. Chief Bennett then read Gowan a form that explained her right to an independent blood test. Among other things, the form stated that "[t]he Galena Police Department will maintain the sample in evidence to ensure the chain of custody." When Chief Bennett explained her options with regard to the independent test, Gowan repeatedly stated that she did not care whether she obtained an independent test, and she refused Chief Bennett's offer to review the form that explained her right to an independent test. Chief Bennett said, "You don't wan t to decide? I'm just going to write refuse, then, or what? Refuse to decide?" Gowan responded, "I refuse to decide everything because I don' t have to do nothing." Chief Bennett said "okay," and they moved on to other topics.
Gowan argues that she was denied her right to an independent test because Chief Bennett's statements, taken together, confused her about her legal rights. She asserts that she was confused by the Miranda warning, and by Chief Bennett's statements that the implied consent form was "legal mumbo-jumbo," t hat if she had done nothing wrong it was in her best interest to submit to the DataMaster test, and that the police would take possession of the independent blood sample. However, Chief Bennett's statements did not misstate the law; they explained the situation to an uncooperative arrestee in clear and simple language.
Gowan cites Fee v. State, which involved an arrestee who refused to submit to a breath test due to his mistaken belief that, under Miranda, he had a right to decline the test or to insist on the presence of counsel. Under the circumstances at issue in Fee, we held that the officer must clearly advise the arrestee that his or her Miranda rights do not apply to the breathalizer test. However, the record in Gowan's case does not support her claim that she believed obtaining an independent blood test would somehow conflict with her Miranda rights.
825 P.2d 464 (Alaska App. 1992).
Id. at 466-67.
Id. See also Graham v. State, 633 P.2d 211, 215 (Alaska 1981).
As noted above, Chief Bennett repeatedly explained to Gowan her right to an independent test and offered to let Gowan read the form if she was confused. Gowan repeatedly stated that she did not care what happened and she refused to review the form. In the end, she agreed with Chief Bennett that she was refusing to decide whether to take the test.
Gowan was notified of the right to an independent test, was aware that she was arrested for driving while under the influence, and appears to have generally understood that the purpose of the independent test was to preserve evidence of her blood alcohol content. The court was not clearly erroneous in finding that Gowan had a basic understanding of her right to an independent test and that she knowingly and intelligently waived that right. Conclusion
See Moses, 32 P.3d at 1084.
See Gundersen, 792 P.2d at 677; Nathan, 955 P.2d at 531.
Gowan's conviction is AFFIRMED.