Summary
affirming denial of motion to suppress breath test result based on violation of AS 12.25.150(b) partly because defendant did not testify, so there was no evidence in the record showing that the defendant felt his conversation with his father, an attorney, was affected to any appreciable degree
Summary of this case from Stanley v. StateOpinion
Court of Appeals No. A-9946.
April 29, 2009.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-05-1206 CR.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Christopher Batchelor challenges his conviction for felony driving while under the influence. He contends that the superior court should have suppressed his breath test result because the police did not make reasonable efforts to assure him privacy during a phone call to his attorney before the breath test. For the reasons explained here, we affirm the judgment of the superior court.
AS 28.35.030(n).
Facts and proceedings
Early on the morning of September 25, 2005, Juneau Police Officer Sarah Hieb arrested Batchelor for driving while under the influence and transported him to the police station for a breath test. At the station, Officer Hieb told Batchelor he could make any phone calls he wanted. Batchelor told Hieb he wanted to call his father. He said his father was a lawyer and that if he could "get in contact with my dad, he can help." He also told Hieb that before he took the breath test he wanted to "speak to my lawyer first." Hieb told Batchelor he could make any calls he wanted during the fifteen minute observation period before his breath test. Hieb also told Batchelor to let her know if he contacted an attorney so she could turn off the tape recorder.
Batchelor called his father but he did not ask Officer Hieb to turn off the tape recorder. He did ask Hieb, "so, is there any way to have privacy . . . or is that against the rules?" Hieb told Batchelor that she had "to stay here" — that is, she had to stay in the room with him. Batchelor continued to talk with his father. Batchelor and his father involved Hieb in their phone conversation. They asked Hieb questions concerning Batchelor's performance on the field sobriety tests, the possibility of bail, the penalties for felony DUI, the next day's arraignment, the possibility that Batchelor would be treated more leniently if he was cooperative, the other charges he was facing (reckless endangerment), where his car had been taken and where the keys were, and the length of his vehicle's impoundment.
Eventually, Hieb told Batchelor he had to conclude his phone call because it was time for him to take the breath test. She told him that he would have an opportunity to call his father again after the DUI processing.
Batchelor's breath test showed a blood alcohol level of .139 percent. Because Batchelor had two qualifying prior DUI convictions, he was charged with felony DUI. He was also charged with four counts of reckless endangerment and one count of driving with a revoked license. Batchelor pled guilty to the license offense and the State dismissed the reckless endangerment charges.
AS 11.41.250.
AS 28.15.291(a)(1).
Prior to trial on the felony DUI charge, Batchelor moved to suppress his breath test result. He contended that Officer Hieb violated his right to consult privately with his attorney before deciding whether to submit to the breath test.
At the hearing on this motion, Officer Hieb testified that she did not know Batchelor was speaking with an attorney. She said she would have turned the tape recorder off if Batchelor had told her he was speaking with an attorney. She added that even if she had turned the recorder off, she would have remained in the room with Batchelor for the fifteen-minute observation period. Although Hieb conceded that the room had a door with a window, she did not testify that she could observe Batchelor adequately if she closed the door and watched him through the window.
Batchelor did not testify at the hearing, but his father did. Batchelor's father testified his son was told he could not talk privately. He testified he told his son that the conversation would be recorded and that he should be careful about what he said. He testified he had wanted to know all the facts about his son's circumstances, but that getting that information was a "laborious process" because he had to ask a lot of questions. He testified he would have liked to talk longer, but that Hieb told his son to end the phone call to complete the DUI processing.
Batchelor's father testified that his son told him he was not sure how much alcohol he had consumed that evening, but that he thought he had stayed "within his limits." He said that knowing the police were in the room with his son had some impact on his ability to provide legal advice. But he also said he obtained enough information to advise his son to take the breath test. Ultimately, Batchelor followed this advice and took the breath test.
After the hearing, Superior Court Judge Patricia A. Collins denied the motion to suppress the breath test result. She found that Batchelor had not shown that his conversation with his attorney had been "affected to any appreciable degree" by Officer Hieb's conduct. The jury found Batchelor guilty of DUI.
Hieb did not interfere with Batchelor's right to consult an attorney
Batchelor claims that Officer Hieb interfered with his Copelin right to consult privately with his attorney before deciding whether to take the breath test. He asserts that he was entitled to suppression of his breath test result because Hieb did not make reasonable efforts to assure him privacy during his phone call with his attorney. In particular, Batchelor asserts that Hieb interfered by standing close to him during the phone call, recording his side of the conversation, and making him terminate the call when it was time to take the breath test.
See Copelin v. State, 659 P.2d 1206, 1215 (Alaska 1983) ("[W]hen a person is arrested for operating a motor vehicle while intoxicated and asks to consult a lawyer, AS 12.25.150(b) and Criminal Rule 5(b) mandate that the arrestee be afforded the right to do so before being required to decide whether to submit to a breathalyzer test.")
Alaska Statute 12.25.150(b) provides that "[i]mmediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with the prisoner's attorney and any relative or friend[.]" In Copelin, the Alaska Supreme Court recognized that, in the context of DUI processing, this right is "a limited one of reasonable time and opportunity." The police must make "reasonable efforts" to assure that a DUI arrestee has privacy when the arrestee exercises the statutory right to communicate with an attorney before deciding whether to submit to a breath test.
Id. at 1212.
Farrell v. Anchorage, 682 P.2d 1128, 1130 (Alaska App. 1984) (citing Copelin, 659 P.2d at 1210).
We have consistently held that an arrestee must be given a reasonable opportunity to hold a private conversation with his or her attorney even though police officers have a duty to observe a DUI arrestee before administration of a breath test. But the right to confer with counsel is not violated merely because the arresting officer maintains physical proximity to the arrestee. Rather, we have suppressed breath test results only when, in addition to maintaining physical proximity, the police engaged in additional intrusive measures, intrusions that convinced the arrestees that the police were intent on overhearing and reporting their conversations with their attorneys.
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, 446 (Alaska App. 1995); Reekie v. Anchorage, 803 P.2d 412, 415 (Alaska App. 1990); Anchorage v. Marrs, 694 P.2d 1163, 1165-66 (Alaska App. 1985); Farrell, 682 P.2d at 1130-31.
See Alexander, 15 P.3d at 271; Mangiapane, 974 P.2d at 429; Kiehl, 901 P.2d at 447.
See id.
Here, Batchelor claims that in addition to her close proximity, Hieb was intrusive in two additional ways: she did not turn off the tape recorder when Batchelor began speaking with his father, and she told Batchelor to terminate the phone call when it was time to administer the breath test.
However, the fact that Officer Hieb left the tape recorder running was not an "additional intrusive measure" unless it convinced Batchelor that Hieb was intent on overhearing and reporting his conversation with his attorney. Here, Judge Collins ruled, based on the testimony at the evidentiary hearing, that Batchelor had not shown that he was convinced of this. The record supports this ruling. Hieb told Batchelor to let her know if he contacted an attorney so she could turn the recorder off. Yet Batchelor did not ask Hieb to turn off the recorder, and he did not tell Hieb he was talking to his father as an attorney. Based on these facts, Judge Collins found that Hieb's conduct was not unreasonable. She noted that Batchelor did not ask Hieb to turn the tape recorder off even though he was told he could, which suggested that his conversation with his father was not affected by the fact that the recorder was still running.
Although Batchelor's father testified that getting the information he needed was a laborious process, he also that said he had enough information to advise Batchelor to take the breath test. More importantly, Judge Collins found that because Batchelor did not testify, there was no evidence showing "whether he felt his conversation with his father was affected to any appreciable degree by Officer Hieb's conduct." In other words, because Batchelor did not testify, there was nothing in the record showing that Batchelor thought Hieb was intent on overhearing and reporting his conversation with his attorney. Instead, the record shows that he obtained his father's advice to take the breath test and he followed that advice.
See Alexander, 15 P.3d at 271 ("Alexander did not identify anything other than [the officer's] proximity that made him uneasy. Nor did he claim that he thought that [the officer] was trying to listen to the conversation.").
Batchelor also asserts that Hieb impermissibly intruded on his conversation when she told him he had to end the phone call because it was time to administer the breath test. Batchelor contends that the circumstances in his case are similar to those in Reekie v. Anchorage, where we found that the police interfered with Reekie's right to consult privately with an attorney. Batchelor argues that Officer Hieb, like the police in Reekie, "repeatedly interrupted" his phone conversation.
Reekie, 803 P.2d at 415.
It is true that in Reekie the fact that an officer kept interrupting Reekie's phone conversation with his attorney was one of the factors we cited in finding that the police violated Reekie's right to a private conversation. But in Reekie, nothing in the record showed that these intrusions were necessary. Here, the record shows that Hieb was not constantly interrupting Batchelor's phone call. To the contrary, as already described, Batchelor and his father actively involved Hieb in their phone conversation.
Id. at 414.
Id.
Hieb did interrupt the conversation when she warned Batchelor that his fifteen minutes was up and that it was time to administer the breath test. But as already mentioned, the Copelin right is "a limited one of reasonable time and opportunity." The Copelin right to consult an attorney does not "require any delay other than the fifteen-minute observation period already required prior to the administration of the test." Hieb allowed Batchelor to finish his telephone discussion after she advised him that his time was up. Moreover, Batchelor's father testified that he had enough information to advise Batchelor that he should take the breath test. We conclude that Batchelor has not shown that Hieb's interruption amounted to an impermissible intrusion.
Copelin, 659 P.2d at 1212.
Saltz v. State, Dep't of Public Safety, 942 P.2d 1151, 1153 (Alaska 1997) (citing Copelin, 659 P.2d at 1211).
Batchelor's final assertion is that Hieb's conduct interfered with his right to an independent chemical test. But Judge Collins found that Batchelor's father did not advise Batchelor whether to take an independent blood test for reasons unrelated to the lack of privacy. The record supports this finding.
At the evidentiary hearing, when Batchelor's father was asked why he did not advise his son to get an independent test, he said he was focused on whether his son would pass the breath test and was distracted by discussing "personal stuff" with his son. He could not identify how the lack of privacy prevented him from telling his son to obtain an independent test. And when specifically asked if the lack of privacy compromised his ability to advise his son on whether to take the independent test, he testified that he did not discuss the independent test because he thought his son would do fine on the breath test. We conclude that Batchelor did not show that Hieb interfered with his right to an independent chemical test.
Conclusion
The superior court's judgment is AFFIRMED.