Opinion
Court of Appeals No. A-9022.
February 22, 2006.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Trial Court No. 4FA-04-1263 CR.
James H. Cannon, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Diane L. Wendlandt, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Devon E. Brown was convicted, after a jury trial, of misdemeanor driving while under the influence. On appeal, she contends that the district court erred when it denied her motion to suppress evidence of the breath test. She claims that evidence of the breath test should have been suppressed because the state troopers violated her statutory right to contact a friend or relative by not allowing her to talk privately with her mother after she was arrested. For the reason set out below, we affirm the district court's decision.
AS 28.35.030(a).
Facts and proceedings
State troopers stopped Brown for erratic driving. Ultimately, they arrested her for driving while under the influence of alcohol. Before trial, Brown moved to suppress her breath test result. She claimed that the troopers violated her rights under AS 12.25.150(b) by not allowing her to speak privately with her mother at the scene of the traffic stop.
District Court Judge Jane F. Kauvar held an evidentiary hearing to resolve Brown's motion. At the hearing, the troopers testified that they stopped Brown for erratic driving and eventually arrested her for driving while under the influence. They handcuffed her and placed her in the back seat of their vehicle. Brown asked if she could call her mother. The troopers placed the call to Brown's mother to see if she could retrieve Brown's vehicle. Some time later, before Brown was transported to the trooper post for a breath test, Brown's mother and aunt arrived at the scene of the traffic stop.
The troopers allowed Brown's mother to speak to Brown while Brown was in the back of the troopers' vehicle. Brown and her mother spoke to each other through an open window for about five minutes. During this time, one trooper remained within an arm's length of Brown and her mother. Neither Brown nor her mother asked the trooper to move farther away; nor, when they testified, did either claim that the trooper took notes or otherwise indicated that he was listening to their conversation. Brown did not ask to make any other phone calls while at the scene of the traffic stop. At the trooper post, Brown did not ask to call anyone before she submitted to the breath test. After the breath test was complete, Brown asked if she could call her mother.
Judge Kauvar denied Brown's motion to suppress. Judge Kauvar found that the troopers did not violate Brown's right to communicate with a relative. Judge Kauvar ruled that even though a trooper stood nearby, "about an arm's length away," while Brown and her mother spoke, the trooper "did not interfere in their talk." Judge Kauvar also found that Brown, after this contact with her mother, "did not renew her request to speak to her mother until after she blew into the [D]atamaster." Judge Kauvar concluded that Zsupnik v. State and AS 12.25.150(b) were not violated given that Brown had the opportunity to talk to her mother at the scene and made no additional request at the trooper station to make a phone call.
789 P.2d 357 (Alaska 1990).
Discussion The record supports Judge Kauvar's denial of the suppression motion
Brown contends that to comply with AS 12.25.150(b), police must provide arrestees with an opportunity for a "reasonably confidential communication" with a friend or relative. Alaska Statute 12.25.150(b) provides in relevant part that
Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friend of the prisoner, have the right to immediately visit the person arrested.
In Copelin v. State, the Alaska Supreme Court ruled, based on this statute and Alaska Criminal Rule 5(b), that a person arrested for driving while under the influence has a limited right to contact an attorney before deciding whether to submit to a breath test. An arrestee has to invoke this right and cannot unreasonably delay taking the breath test. Although police have no duty to advise arrestees of this right, they cannot unreasonably interfere with the right once invoked. If police interfere with this right, then the evidence of the breath test result or of the arrestee's refusal to submit to the breath test must be suppressed. Later, in Zsupnik, the supreme court ruled that under AS 12.15.150(b) a person arrested for driving while under the influence also has the limited right to contact a relative or friend.
659 P.2d 1206 (Alaska 1983).
Id. at 1208, 1211-12.
Saltz v. State, 942 P.2d 1151, 1153 (Alaska 1997); Copelin, 659 P.2d at 1211-13.
Anderson v. State, 713 P.2d 1220, 1221 (Alaska App. 1986).
Saltz, 942 P.2d at 1153; Copelin, 659 P.2d at 1215.
Here, Brown, while still at the scene of the traffic stop, invoked her right under AS 12.25.150(b) to contact a relative. Although under Wardlow v. State, the troopers were not required to honor this request while still in the field, they allowed Brown to talk to her mother before they took her to the trooper post.
2 P.3d 1238, 1249 (Alaska App. 2000) (police can lawfully delay phone call until they and arrestee arrive at the police station).
Brown acknowledges that she was allowed to speak to her mother. But Brown claims that the troopers violated AS 12.25.150(b) because they did not allow her to communicate confidentially with her mother.
We have ruled that when a person arrested for driving while under the influence telephones an attorney, the police must provide a reasonable amount of privacy to ensure that the arrestee can have a meaningful communication with the attorney when seeking advice about whether to submit to a breath test. This decision was based in large part on the fact that "consideration should be given to confidentiality of . . . attorney-client communications." We have not yet ruled on whether this rule of confidentiality should be extended to encompass communications between an arrestee and a friend or relative. But even if we assume that AS 12.25.150(b) requires the police to allow a reasonably confidential communication with a relative or friend, and not just with an attorney, Judge Kauvar found that the troopers provided Brown with sufficient privacy. This finding is supported by the record and by Alaska case law.
Farrell v. State, 682 P.2d 1128, 1130 (Alaska App. 1984) (citing Copelin, 659 P.2d at 1210).
Id.
The fact that a trooper stood about an arm's length away during Brown's conversation with her mother does not, on its own, mean that AS 12.25.150(b) was violated. We have repeatedly held that an arrestee's right under AS 12.25.150(b) to confer with counsel is not violated merely because the arresting officer maintains physical proximity to the arrestee. We have suppressed breath test results only when, in addition to maintaining physical proximity, the police engaged in additional intrusive measures that impaired the arrestee's consultation with counsel. Nothing in Brown's or her mother's testimony indicated that the trooper engaged in any intrusive measure, other than remaining within an arm's length, that impaired their conversation.
Alexander v. Anchorage, 15 P.3d 269, 271 (Alaska App. 2000); Mangiapane v. Anchorage, 974 P.2d 427, 429 (Alaska App. 1999); Kiehl v. State, 901 P.2d 445, 447 (Alaska App. 1995); Anchorage v. Marrs, 694 P.2d 1163, 1166 (Alaska App. 1985).
Reekie v. Anchorage, 803 P.2d 412, 415 (Alaska App. 1990); Farrell, 682 P.2d at 1131.
Nor is there anything in the record that indicates that the trooper's actions were unreasonable. Brown had been arrested for driving while under the influence of alcohol. She was handcuffed and in the troopers' vehicle when her mother arrived. Although the fifteen-minute observation period for the breath test had not yet started — and did not start until Brown arrived at the trooper post — it was reasonable for the troopers to observe Brown to make sure that she was not given anything to consume between the time that she was stopped and the time that she was tested. Likewise, it was reasonable to ensure that no objects were given to Brown, or taken from her, while she spoke with her mother.
The record supports Judge Kauvar's ruling that the troopers did not interfere with Brown's exercise of her right under AS 12.25.150(b).
Conclusion
The decision of the district court is AFFIRMED.