Opinion
Court of Appeals No. A-10555.
July 27, 2011.
Appeal from the District Court, First Judicial District, Juneau, Keith B. Levy, Judge, Trial Court No. lJU-09-176 CR.
Stuart A. Hallam, pro se, Juneau.
Robyn Carlisle, Assistant City Attorney, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Order
On consideration of the Petition for Rehearing, filed on 6/16/2011, IT IS ORDERED.
1. The Petition for Rehearing is GRANTED.
2. Memorandum Opinion and Judgment No. 5708, issued on June 1, 2011, is WITHDRAWN.
3. Memorandum Opinion and Judgment No. 5722, is issued on this date in its place. The text at page 5 of the court's Memorandum Opinion and Judgment has been modified.
Entered by direction of the court.
A jury convicted Stuart A. Hallam of driving under the influence in violation of Juneau City and Borough Code 72.10.010. Hallam appeals his conviction. He argues the trial court erred in refusing to suppress the result of his breath test on the ground that the Juneau police failed to comply with state regulations governing the administration of breath tests. Hallam claims he burped or regurgitated prior to submitting to the breath test and the police officer should have restarted the fifteen-minute observation period. He argues the police should have made an audio recording of the fifteen-minute observation period. Hallam also urges this court to reject the substantial compliance standard this court has previously applied to the breath test regulations and instead require strict compliance with the foundational requirements for admissibility of breath test results. We affirm Hallam's conviction.
Facts and proceedings
On February 22, 2009, Juneau Police Officer Tonya James stopped Hallam for driving on the wrong side of the road and almost hitting her marked patrol vehicle and another car. As a result of this contact, Officer James arrested Hallam for driving under the influence. Officer James made an audio recording of her contact with Hallam.
At the police station, before the administration of the breath test, Hallam used the bathroom and asked to call his attorney. To provide Hallam with some privacy during his conversation with his attorney, Officer James turned the audio recording off. She turned the recorder back on once Hallam was finished talking with his attorney. Shortly before the breath test, Hallam made a sound, and Officer James asked him, "Was that gas?" Hallam provided a breath sample, which showed his breath alcohol content was .201 percent.
At trial, Hallam's attorney moved to suppress the breath test result. He argued that the sound Hallam made shortly before the breath test was a belch or regurgitation, and that the officer should have restarted the fifteen-minute observation period. He also argued the foundational requirements for the breath test were not met because the officer did not record the entire fifteen-minute observation period because she turned the recorder off during Hallam's conversation with his attorney.
District Court Judge Keith B. Levy rejected Hallam's arguments. He ruled the prosecution had established the foundational requirements for admission of the breath test result. He pointed out that Hallam could cross-examine the officer on any purported flaws in the observation period. Judge Levy accepted the officer's testimony that Hallam did not burp or regurgitate during the fifteen-minute observation period. He also ruled that even if audio or video recording were required by law, the officer substantially complied with that requirement by continuing to personally observe Hallam while he was talking with his attorney, despite the fact she had turned the recorder off.
Hallam appeals.
Judge Levy did not err in concluding the prosecution met the foundational requirements for admission of the breath test result
Department of Public Safety regulations require the breath test observation period to be restarted if a suspect regurgitates during the fifteen minutes immediately preceding the breath test. During trial, Hallam's attorney objected to admission of the breath test result, claiming Hallam burped or regurgitated during the observation period, and therefore the prosecution did not establish the foundational requirements. Outside the presence of the jury, the court held a hearing, giving the prosecution the opportunity to establish the foundational requirements of the breath test result. The prosecution presented the testimony of Officer James, who testified Hallam did not regurgitate but rather passed gas shortly before he gave a breath sample. She testified that had he burped, she would have restarted the observation period to address the concern of regurgitation. Hallam did not present any evidence that regurgitation occurred during this time. In the absence of any contrary evidence, Judge Levy accepted the officer's testimony that Hallam did not regurgitate during the fifteen minutes preceding the breath test.
The following procedure must be used to obtain and analyze a breath sample on a breath test instrument:
(1) observe the person to be tested for at least 15 minutes immediately before testing, to ensure that the person does not regurgitate or place anything in his or her mouth during that period[.]
The record supports Judge Levy's decision. The only evidence before Judge Levy at the time he ruled on whether the officer met the foundational requirements was the recording and Officer James's testimony that Hallam had passed gas during the observation period. Hallam has therefore not shown Judge Levy's ruling was clearly erroneous.
See Beltz v. State, 221 P.3d 328, 332 (Alaska 2009) ("A finding of fact is clearly erroneous if a review of the record leaves us with a definite and firm conviction that a mistake has been made.").
As a side note, Hallam uses the words "burp," "belch," and "regurgitate" interchangeably. The Alaska Administrative Code requires the officer to "observe the person to be tested for at least 15 minutes immediately before testing, to ensure that the person does not regurgitate or place anything in his or her mouth during that period." "Regurgitate" means "to bring (partly digested food) from the stomach back to the mouth." On the other hand, "belch" and "burp" mean "to expel gas through the mouth from the stomach. " As a legal matter, the assertion that Hallam burped or belched during the processing observation period might not be a sufficient basis on which to challenge the admissibility of the breath test result. But we do not need to resolve this issue because Judge Levy found Hallam did not burp. Admission of the breath test was not precluded by the fact that the officer turned off the recorder while Hallam spoke with his attorney
Webster's New World College Dictionary, p. 1207-08 (4th ed. 2007).
Webster's New World College Dictionary, p. 132, 197 (4th ed. 2007).
See 13 AAC 63.040(a)(1).
Officer James made an audio recording during her contact with Hallam, including the observation period prior to administration of the breath test. During the fifteen-minute observation period, Hallam placed a call to his attorney. To provide Hallam with some privacy during his conversation with his attorney, Officer James turned off the recorder. She restarted the audio recording when Hallam finished talking with his attorney.
See Farrell v. Anchorage, 682 P.2d 1128, 1130 (Alaska App. 1984) (when an arrestee exercises the right to contact an attorney before deciding whether to submit to a breath test, the police must make reasonable efforts to assure privacy during that call).
Hallam argues Judge Levy erred in finding the prosecutor established the foundational requirements for admitting the breath test result because the police did not record the entire fifteen-minute observation period. Hallam relies on the Department of Public Safety manual as authority for his argument that the police are required to audio or video record the entire observation period. The Department of Public Safety manual does instruct officers to record the fifteen-minute observation period, but we do not view this provision of the manual as an administrative interpretation of the statutory foundation for the admissibility of breath test results. Our primary reason for reaching this conclusion is that recording the observation period appears to have no relationship to the accuracy of the test.
See Allen v. State, Dept. of Health Social Services, Div. of Public Assistance, 203 P.3d 1155, 1165 (Alaska 2009).
See Wither v. Commercial Fisheries Entry Comm'n, 187 P.3d 460, 465 (Alaska 2008) (quoting Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154, 161 (Alaska 1982)) ("When the interpretation of a statute or other question of law implicates `agency expertise as to complex matters or as to the formulation of fundamental policy,' [we] defer to the agency's interpretation so long as it has a `reasonable basis' in the law."); see also Alaska Public Interest Research Group v. State, 167 P.3d 27, 43 (Alaska 2007) (courts exercise independent judgment when there is a question of law that does not involve agency expertise).
For the breath test result to be admissible, the police must conform with the foundational requirements mandated in AS 28.35.033(d) and the Alaska Administrative Code. The police may be required to meet additional standards, such as those in a manufacturer's manual, if the additional requirements are necessary to assure valid and reliable breath tests.
13 AAC 63.
See Thayer v. Anchorage, 686 P.2d 721, 726-28 (Alaska 1984).
Hallam does not cite any legal authority holding that the police are required to record the entire fifteen-minute observation period as a foundational requirement for the breath test result to be admissible at trial. And he did not present any evidence that making an audio or visual recording was necessary to ensure the accuracy of the breath test. Hallam has therefore not shown Judge Levy erred by admitting the breath test result despite the fact the officer turned off the recorder while Hallam was talking with his attorney.
Hallam also argues due process requires the police to record the entire fifteen-minute observation period. Hallam has not demonstrated that he raised this argument in the trial court. Therefore, he must show Judge Levy committed plain error when he failed to rule that Hallam's due process rights were violated when Officer James turned off the recorder during Hallam's phone call to his attorney.
See Burton v. State, 180 P.3d 964,968 (Alaska App. 2008) (quoting Wolfe v. State, 24 P.3d 1252, 1256 (Alaska App. 2001)) ("A `plain error' is an act or omission that is `manifestly wrong, so wrong that any competent judge or attorney should have recognized the error and corrected it.'").
In Stephan v. State, the Alaska Supreme Court held that the due process clause of the Alaska Constitution requires the police to record custodial interrogations occurring in places of detention. Hallam does not argue the officer interrogated him while the recording was turned off. Rather, he argues Judge Levy should have extended Stephan to require the police to record the fifteen-minute observation period preceding a breath test. He points out inconsistencies in Officer James's testimony and asserts that her faulty memory concerning events that occurred during his processing underscores the importance of recording the observation period. But it is the job of the trial court to judge the credibility of witnesses and to weigh conflicting evidence. We defer to Judge Levy's determination that Officer James's testimony was credible.
711 P.2d 1156 (Alaska 1985).
Mat 1162.
See Zeciri v. State, 779 P.2d 795, 800-01 (Alaska App. 1989); Figueroa v. State, 689 P.2d 512, 513 (Alaska App. 1984) (trial courts have primary responsibility for weighing the credibility of witnesses).
Hallam does not argue that any competent judge would have extended the law in his case to require the police to record the observation period preceding a breath test. And he does not cite any authority for extending the right to due process to require police to record observation periods. Neither this court nor the Alaska Supreme Court has expanded the Stephan rule to encompass DUI processing.
Massey v. State, 111 P.2d 448, 452-53 (Alaska App. 1989); see also Marrone v. State, 653 P.2d 672,676 (Alaska App. 1982) (a claim of plain error fails if reasonable judges could differ as to what the law requires).
Even if we were to extend Stephan to require the government to record the observation period in DUI cases, Hallam would still not be entitled to relief. Relief is unavailable under Stephan "if the unrecorded portion of the interrogation is, by all accounts, innocuous." There is no reason to exclude evidence when no claim of material misconduct has been presented. Hallam did not present any evidence, and he does not argue, that anything occurred while the recorder was turned off that would have affected the accuracy of his test result.
Stephan, 711 P.2d at 1165 (italics omitted).
See Alaska R. Crim. P. 47(a) (errors that do not affect substantial rights shall be disregarded).
For these reasons, we find Hallam has not shown plain error.
Hallam's claim that this court should require strict compliance with the fifteen-minute observation period is moot
Alaska courts have excused a lack of strict compliance with the regulations governing breath testing where there is no evidence the failure to strictly comply with the foundational requirements affected the validity of the breath test result. Hallam argues that strict compliance with applicable regulations should be a prerequisite to admission of breath test results. This claim is moot.
See Wester v. State, 528 P.2d 1179, 1183-84 (Alaska 1974); Williams v. State, 884 P.2d 167, 174 (Alaska App. 1994), abrogated on other grounds in State v. Coon, 91A P.2d 386 (Alaska 1999); see also Herter v. State, 715 P.2d 274, 275-76 (Alaska App. 1986) (rejecting a similar claim that strict compliance with applicable regulations should be a prerequisite to admission of breath test results).
At trial, Hallam's attorney challenged the admissibility of the breath test result on the ground the officer did not closely observe Hallam while he used the restroom during the observation period. He argued the officer's failure to closely observe him while he was in the restroom violated the requirements of 13 AAC 63.040(a)(1). After listening to testimony on this issue, Judge Levy ruled it was a close call but that the officer had substantially complied with the regulation.
Hallam's trial attorney later abandoned this claim when he realized Hallam used the bathroom before the fifteen-minute observation period. Hallam does not raise the bathroom observation issue on appeal. And Hallam has not shown that he was prejudiced in any other way by the State's failure to strictly comply with the regulation. The question of whether this court should require strict compliance with the regulation is therefore moot.
Conclusion
The judgment of the district court is AFFIRMED.