Opinion
Court of Appeals No. A-13222 No. 6914
12-16-2020
KEVIN J. JOHNSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Bradly A. Carlson, Law Office of Bradly A. Carlson, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ryan T. Bravo, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3KN-17-00676 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Kenai, Margaret L. Murphy, Judge. Appearances: Bradly A. Carlson, Law Office of Bradly A. Carlson, LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Ryan T. Bravo, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
Kevin J. Johnson was charged with driving under the influence (DUI), refusal to submit to a chemical test, and fourth-degree weapons misconduct. Prior to trial, Johnson filed a motion to suppress, arguing that the police officer who contacted him lacked reasonable suspicion to administer field sobriety tests, lacked probable cause to arrest Johnson for DUI, and provided misinformation about Johnson's obligation to submit to a chemical test of his breath. After an evidentiary hearing, the trial court denied the motion. Following a jury trial, Johnson was acquitted of DUI and the weapons misconduct offense, but convicted of refusal.
AS 28.35.030(a)(1), AS 28.35.032(a), and AS 11.61.210(a)(1), respectively.
Johnson also argued that the officer interfered with his right to an independent test; he does not renew this argument on appeal.
AS 28.35.032(a).
On appeal, Johnson renews the three claims he raised in the trial court relating to his motion to suppress. He also raises an additional claim for the first time on appeal — that he was "effectively denied" the right to consult with an attorney before being asked to submit to a breath test.
We conclude that the circumstances surrounding the officer's contact with Johnson — which included a report from a Taco Bell employee who believed Johnson was intoxicated, Johnson's admissions to driving after consuming alcohol, and Johnson's initial underreporting of the amount of alcohol he had consumed — established reasonable suspicion to administer field sobriety tests. We further conclude that this information, coupled with Johnson's failure of three field sobriety tests, established probable cause to arrest him for DUI. We also reject Johnson's claim that the officer misinformed him about his obligation to provide a breath sample, and we conclude that Johnson has not established any violation of his right to counsel, let alone one that rises to the level of plain error.
We therefore reject Johnson's claims of error and affirm his convictions.
Background facts and procedural history
In June 2017, at 1:30 a.m., a Taco Bell employee called 911 to report her suspicions that a driver at the Taco Bell drive-through was intoxicated by either drugs or alcohol. The employee reported that the driver made "vulgar sexual noises" when placing an order, and she described the driver as leaving "really fast" and driving "like crazy" after she informed him that she was calling 911.
This information was relayed to a Soldotna police officer, who located the vehicle in a nearby parking lot. The driver, Johnson, initially denied drinking, but then told the officer that he had had one beer about an hour earlier. After Johnson's passenger reminded him of a second beer, Johnson admitted drinking "a beer and a half." During this conversation, the officer noted that Johnson smelled of alcohol.
The officer asked Johnson to perform field sobriety tests, three of which Johnson subsequently failed, although he passed the alphabet and counting tests. At this point, the officer arrested Johnson for DUI and transported him to the Soldotna police station.
Upon arrival at the police station, Johnson announced that he was going to refuse all further tests. When the officer started to read Johnson the implied consent warning, Johnson declared, "I don't understand what you're saying. Without a lawyer present, I don't understand any of it." In response, the officer offered Johnson a phone and a phone book and adjusted Johnson's handcuffs to make it easier for him to use the phone. Johnson made multiple phone calls, but was unable to reach anyone by the end of the fifteen-minute observation period. After reading Johnson the implied consent warning, including the advisement that "[n]either your right to speak with an attorney nor your right to remain silent gives you the right to refuse or delay a chemical test," the officer asked Johnson to provide a breath sample. Johnson refused to give a sample, stating that he "[did not] have a lawyer and [did not] know [his] rights."
The jury convicted Johnson of refusal to submit to a chemical test, but acquitted him of the remaining charges.
Why we conclude that reasonable suspicion supported the request for field sobriety tests
Johnson first argues that the officer lacked reasonable suspicion to ask him to submit to field sobriety tests. "An officer has a reasonable suspicion if the totality of the circumstances indicates that there is a substantial possibility that conduct giving rise to a public danger has occurred, is occurring, or is about to occur." Reasonable suspicion requires "specific and articulable facts," i.e., "something more than an inchoate and unparticularized suspicion or hunch."
See State v. Spencer, 367 P.3d 1176, 1177-78 (Alaska App. 2016) ("In Alaska, the police are entitled to administer field sobriety tests whenever they have reasonable suspicion to believe a motorist is driving under the influence.").
Beltz v. State, 221 P.3d 328, 337 (Alaska 2009) (emphasis in original) (citations and internal quotes omitted).
State v. Miller, 207 P.3d 541, 544 (Alaska 2009) (citations omitted).
Here, we agree with the trial court that the circumstances established reasonable suspicion to ask Johnson to perform field sobriety tests. The officer was responding to a citizen's report of a possibly intoxicated driver engaging in strange behavior at a Taco Bell drive-through at 1:30 a.m. When the officer contacted Johnson, the encounter did not dispel the suspicions raised by the 911 call. Instead, the officer noted that Johnson smelled of alcohol, and Johnson admitted to driving after drinking one and a half beers. The trial court also found that Johnson's attempt to convince the officer that his behavior at Taco Bell was a justifiable and amusing reaction to the employee "being rude as hell," indicated "perhaps a lack of good judgment, or perhaps some impaired judgment" — even more so than the employee's original account of Johnson's behavior.
See Haag v. State, 117 P.3d 775, 779 (Alaska App. 2005) (explaining that "brevity" for purposes of investigative stops "depends, in part," on what police learn during an encounter; while police may no longer detain a potential suspect once their suspicion is dispelled, the length of detention may be increased if the initial investigation raises further suspicion).
We agree with the trial court that this information amounted to more than an "inchoate and unparticularized suspicion or hunch," and provided sufficient justification for the administration of field sobriety tests.
See Miller, 207 P.3d at 544; see also Romo v. Anchorage, 697 P.2d 1065, 1069 (Alaska App. 1985) (upholding the trial court's finding of reasonable suspicion to request field sobriety tests based on an odor of alcohol and an admission to drinking, even though the officer had not witnessed any visibly impaired driving over a period of several blocks).
Why we conclude that probable cause supported Johnson's arrest for DUI
Johnson also challenges the trial court's conclusion that the officer had probable cause to arrest him for DUI. "Probable cause for an arrest exists when the officer is aware of facts and circumstances, based on reasonably trustworthy information, that are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed."
Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
Johnson argues that the officer incorrectly administered or scored all three of the field sobriety tests that Johnson subsequently failed, and therefore the trial court erred in relying upon Johnson's failing performance to support a finding of probable cause.
On appeal, we must accept the lower court's findings of fact, absent clear error. The trial court agreed with Johnson that the officer incorrectly scored one of the points on the walk-and-turn test, but that even with this error, Johnson had still failed that test, as well as the one-leg-stand and horizontal gaze nystagmus tests. Both the officer's testimony and the video evidence support these findings. We conclude that Johnson has not established clear error.
Id.
We apply our independent judgment to the question of whether probable cause arises from these facts, and we conclude that the facts set out above are sufficient to establish probable cause.
Id.
Johnson analogizes his case to Saucier v. State, a case where we concluded that minor driving errors, an admission to having a couple of beers, and a refusal to perform field sobriety tests, did not establish probable cause. But Johnson had signs of intoxication that were absent in Saucier, including an immediately apparent odor of alcohol, an independent assessment by a citizen caller who believed Johnson was impaired, and Johnson's admitted unusual behavior at the Taco Bell drive-through. And unlike Saucier, Johnson failed three field sobriety tests.
Id. at 485-86.
See Shobe v. State, 2014 WL 2999197, at *1-2 (Alaska App. July 2, 2014) (unpublished) (concluding that probable cause existed for a DUI arrest in part because the defendant tried to order a rum and Coke at a Kentucky Fried Chicken drive-through).
See Saucier, 869 P.2d at 486 ("[Appellant's] unwillingness to perform sobriety tests, if at all probative of intoxication, is far less so than the attempt and failure of such tests.").
We therefore agree with the trial court that the facts known by the officer established probable cause to arrest Johnson for DUI.
Why we reject Johnson's claim that he was not properly advised of his obligation to provide a breath sample
Johnson next argues that the trial court erred in denying his motion to suppress because the officer "misinformed" Johnson about his obligation to provide a breath sample, and that this misinformation violated Johnson's due process rights. But Johnson has not identified any inaccurate information provided by the officer, or the omission of any necessary information from the implied consent advisement. Rather, the essence of Johnson's claim is that the officer failed to dispel Johnson's stated confusion about his obligation to provide a breath sample in light of the fact that Johnson was not successful in contacting an attorney prior to administration of the breath test.
In Graham v. State, the Alaska Supreme Court explained that, when a person is arrested for driving or operating under the influence, "care must be taken to [e]nsure that the arrested person is not misled about his or her rights, or the absence thereof, under the implied consent statute." A person arrested for operating a motor vehicle while under the influence of intoxicating liquor has no constitutional or statutory right to refuse to submit to a chemical test, nor do they have the right to have counsel present before being required to take the test.
Graham v. State, 633 P.2d 211, 214 (Alaska 1981).
Palmer v. State, 604 P.2d 1106, 1110 (Alaska 1979).
Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979).
That said, because operating a motor vehicle while intoxicated is a criminal offense, Miranda warnings are often given shortly after the alleged offender is taken into custody. This can be a source of confusion. Miranda warnings contain an advisement that an arrested person has the right to remain silent and the right to have counsel present, and that anything said may be used against the person. The implied consent warning, on the other hand, informs the arrestee that there is no right to refuse to take the chemical test and that such refusal can result in revocation of the offender's operator's license. As a result, an arrested person may be misled into believing that they either have a right to have counsel present before deciding whether to take the test, or that they can refuse to submit to the test without suffering the consequences of that refusal.
Because of this risk of confusion, in Graham v. State the supreme court held that when an arrestee expresses confusion about whether their Miranda rights conflict with the obligation to submit to a chemical test, an officer is required to respond with a clear advisement that a reasonable person would understand. But a court will exclude evidence of the arrestee's failure to submit to the test only when a defendant is actually subjectively confused.
See Graham, 633 P.2d at 215 (citing State Dep't of Highways v. Beckey, 192 N.W. 2d 441, 445 (Minn. 1971)).
Id.; see also Snyder v. State, Dep't of Pub. Safety, Div. of Motor Vehicles, 31 P.3d 770, 777 (Alaska 2001).
Here, the officer clearly and unequivocally advised Johnson that "[n]either your right to speak with an attorney nor your right to remain silent gives you the right to refuse or delay a chemical test." Johnson claims that, even after hearing this advisement, he continued to remain confused about whether he was legally required to provide a breath sample. But the trial court found, based on the totality of Johnson's conduct and statements, that Johnson was "very clear in understanding what he was doing" when he refused to provide a breath sample, and that Johnson's statements to the contrary were simply attempts to feign confusion after declaring that he intended to refuse all further tests.
See Saltz v. State, Dep't of Pub. Safety, Driver Improvement Bureau, 942 P.2d 1151, 1153 (Alaska 1997) (recognizing that the right to contact an attorney does not entitle the defendant to any delay other than the fifteen-minute observation period already required prior to administration of a breath test).
To prevail on his motion to suppress, Johnson bore the burden of establishing that he was in fact confused about his rights when he refused to submit to the chemical test. The trial court's finding that Johnson failed to meet this burden is supported by the record and is not clearly erroneous.
Graham, 633 P.2d at 215.
See State v. Miller, 207 P.3d 541, 543 (Alaska 2009).
Why we reject Johnson's claim that the officer violated his right to counsel
Finally, Johnson argues that the officer "effectively denied" Johnson a reasonable opportunity to consult with an attorney prior to administration of the breath test. As the State points out, Johnson did not raise this claim in the trial court and therefore must establish plain error.
See AS 12.25.150(b); Copelin v. State, 659 P.2d 1206, 1215 (Alaska 1983) (holding that when a person arrested for DUI asks to consult with an attorney, the arrestee must be given an opportunity to attempt to contact an attorney prior to being required to decide whether to submit to a breath test).
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
The record shows that the officer accommodated Johnson's request for an attorney by providing Johnson access to a phone and a phone book and allowing Johnson to make multiple phone calls during the fifteen-minute observation period. The supreme court has previously found no violation of the right to counsel under similar circumstances. We therefore conclude that Johnson has not established any violation of his right to counsel, much less one that rises to the level of plain error.
See Saltz, 942 P.2d at 1154 (concluding that a trooper did not violate the defendant's right to speak with an attorney, where the trooper provided the defendant with a phone and a phone book and allowed him to make phone calls during the fifteen-minute observation period despite defendant's claims he could not read without his glasses). --------
Conclusion
The judgment of the district court is AFFIRMED.