Opinion
Court of Appeals No. A-9232.
March 15, 2006.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge. Trial Court No. 4FA-04-4218 Cr.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
Kelly J. Lawson, 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
Kenneth O. Ely appeals his conviction for driving under the influence. Following Ely's arrest, he was asked to submit to a breath test. Ely told the officer that he wanted to contact a lawyer before deciding whether to take the test. The officer supplied Ely with a telephone and a phone directory, and Ely did in fact make one telephone call — although the record does not disclose who Ely called. A few minutes later, the officer insisted that Ely decide whether to take the breath test. Although Ely continued to assert that he wanted to contact an attorney, he took the test.
The test result showed that Ely's blood alcohol content was above the limit specified in AS 28.35.030(a)(2), and he was charged with driving under the influence.
In the district court, Ely filed a motion seeking suppression of the breath test; he argued that the arresting officer had unlawfully impeded his efforts to contact an attorney. Following an evidentiary hearing, the district court denied Ely's suppression motion. Ely then entered a Cooksey plea of no contest, preserving his right to renew his suppression argument on appeal.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
For the reasons explained here, we agree with the district court that the arresting officer did not unlawfully infringe Ely's right to contact an attorney. We therefore affirm Ely's conviction.
Underlying facts
Ely was arrested by North Pole Police Officer Billy Bellant. After Officer Bellant and Ely arrived at the police station, Bellant started the fifteen-minute observation period that proceeds administration of the breath test. At the beginning of this observation period, Bellant told Ely that a telephone and phone book were available if Ely wanted to make a phone call during the observation period. Bellant also invited Ely to ask any questions he might have.
Ely asked a number of questions. In response to these questions, Bellant explained the breath test procedure, and what would happen if Ely's blood alcohol level was above the legal limit. Bellant also explained that Ely would face the additional charge of refusal to submit to a chemical test if Ely declined to take the breath test. At this point, Ely indicated that he might wish to contact an attorney. Here is the exchange between Ely and Bellant, as recorded on tape at the police station:
Ely: Do you guys have lawyers that I can call?
Bellant: If you want to call a lawyer, I can move the [hand]cuffs around to the front [of your body] for you. There's a phone book there, and you can call anybody you want to.
Ely: [Do] you have anybody who would be up now? [Ely was arrested at two o'clock in the morning.]
Bellant: We don't have somebody on standby, no. But you can call anybody you want.
Ely: How about the D.A.?
Bellant: Like I said, there's a phone book; I can give you a phone book. We don't have their home [phone] numbers or anything like that.
Ely: It's two o'clock on . . . [a] Sunday morning.
Bellant: Like I said, you can call anybody you want. [But] I can't give you any advice on who to call, or who not to call, or anything like that.
Ely: Who can I call and get ahold of [at this hour]?
Bellant: I don't know. Like I said, I can't give you any advice on who to call, who not to call, or if you should or shouldn't call. . . . That's up to you. You can try to call anybody you want. [Do] you want me to move the handcuffs around [to] the front so you can . . .?
Ely: Sure.
Bellant: Stand up for me.
At this point, Bellant explained to Ely how to use the station telephone. Following this explanation, Bellant told Ely, "[The] phone's all yours."
A few moments later, a dial tone can be heard on the tape, indicating that Ely picked up the telephone receiver. At the evidentiary hearing, Bellant testified that he believed Ely attempted to make a call. But if Ely did in fact dial a number, the phone call went unanswered — because the tape shows that Ely did not engage in conversation with anyone.
Ely then asked Bellant what would happen if he could not reach a lawyer but if he still wanted to wait to talk to a lawyer before doing anything:
Ely: Now, if I can't get ahold of a lawyer, and I want to wait and talk to a lawyer before I do anything, . . .
Bellant: Well, there are some things that are required by law, . . . whether or not you talk to a lawyer, . . . and [the] breath test is one of them. And I can read you a form . . . about that, okay? Other than [the breath test], [if there are] any questions you . . . don't want to answer [before speaking to a lawyer], that's totally up to you.
Ely: I know [that I don't have to] answer questions.
But [if] there are certain [other] things I can and can't do, I don't know all the state laws . . .
Bellant: Right.
Ely: It's just [that] I don't want to do something and jeopardize myself more before I talk to a lawyer and actually know my rights of what I can and can't do.
Bellant: Hold on one sec . . .
Ely: I would really like to talk to a lawyer before I do anything at all.
Bellant: Okay. Hold on one second, okay? [Bellant then asks Ely to confirm his address, and to provide a home phone number.]
Ely: Before I do all this, I want to . . .
Bellant: I still have to enter this information into (inaudible).
Ely: . . . talk to a lawyer before . . .
Bellant: I'm going to read you a form, okay? It's called the Implied Consent Form. [Bellant then reads this form to Ely.]
Ely: [So] if I refuse, it's another charge?
Bellant: That's correct.
At this point, Ely submitted to the breath test. After the test was run, Bellant informed Ely that the result was .138 percent blood alcohol. Soon after Bellant told Ely about the test result, Ely asked, "Can I make a phone call?" Bellant replied, "Sure. Go for it."
There is more conversation between Bellant and Ely recorded on the tape, and Ely, in his brief, relies on this continued conversation. However, when Ely's suppression motion was litigated in the district court, Ely's attorney requested that the evidence be confined to the portion of the tape that we have just quoted. The defense attorney expressly asked the district court not to review the later portion of the conversation. Accordingly, we confine ourselves to the evidence that was presented to the district court.
Officer Bellant testified at the evidentiary hearing, and his testimony supplemented the tape on two pertinent points. First, Bellant confirmed that he had moved Ely's handcuffs to the front of Ely's body, thus allowing Ely to reach the telephone and the phone book. Second, Bellant confirmed that Ely had access to the station telephone during the entire observation period, and could have made as many phone calls as he wanted, up until the time that Bellant required him to decide whether to take the breath test.
Based on this evidence (the taped conversation quoted above, plus Bellant's testimony), District Court Judge Raymond M. Funk concluded that Bellant had not unlawfully impeded Ely from attempting to contact an attorney.
Why we affirm the district court's decision
Under Copelin v. State, 659 P.2d 1206 (Alaska 1983), if a person who is under arrest for driving under the influence asks to contact an attorney, the person must be afforded a reasonable opportunity to do so before the police require them to decide whether to submit to a breath test. However, this right to contact an attorney is a limited right, in that it "[must] be reconciled with the implied consent statutes" which require arrested motorists to submit to a breath test.
659 P.2d at 1208, citing AS 12.25.150(b) and Alaska Criminal Rule 5(b).
Copelin, 659 P.2d at 1211-12 (footnote omitted).
Thus, although a police officer is under a duty not to unreasonably interfere with an arrestee's efforts to contact a lawyer, the arrestee's right to consult an attorney does not require the officer to delay the administration of the breath test beyond the fifteen-minute observation period required by law.
Id. at 1215; Anderson v. State, 713 P.2d 1220, 1221 (Alaska App. 1986).
Saltz v. Department of Public Safety, 942 P.2d 1151, 1153 (Alaska 1997); Copelin, 659 P.2d at 1211 n. 13.
In Ely's case, the record shows that Officer Bellant made a telephone and a phone directory available to Ely as soon as Ely expressed the desire to contact a lawyer. The telephone and the directory were available to Ely throughout the pre-testing observation period.
As we explained above, the tape suggests that Ely may actually have attempted (unsuccessfully) to call an attorney toward the beginning of the observation period. But Ely made no second effort to place a phone call — even though both the telephone and the phone book were within his reach — until after he took the breath test.
(The tape shows that, immediately after Ely took the breath test, he made a telephone call; but this call was apparently not to an attorney.)
Ely points to the portion of the interview just before the breath test was administered, when Ely reiterated his desire to speak to an attorney before doing anything, and Bellant replied, "Hold on one second, okay?" But based on a review of the tape as a whole, Judge Funk could reasonably find that, by this point in the process, Bellant was performing the final administrative steps in preparation for administering the breath test: verifying Ely's address, obtaining his home phone number, and then reading the Implied Consent warning.
Bellant had already unambiguously informed Ely that he had the right to contact an attorney, and Bellant had provided Ely with the tools to make telephone calls. Ely himself articulated the main obstacle to contacting an attorney: it was two o'clock on a Sunday morning. At the end of the observation period, after Bellant finished reading the Implied Consent warning to Ely, Ely did not renew his efforts to contact an attorney, nor did he ask for more time to do so, even though the telephone remained available to him. Rather, Ely simply asked Bellant to confirm that refusal to take the breath test would constitute a separate crime. When Bellant confirmed that this was so, Ely submitted to the test.
In sum, Judge Funk could reasonably conclude that Bellant did not unlawfully impede Ely's efforts to contact an attorney.
Conclusion
The judgement of the district court is AFFIRMED.