Opinion
Court of Appeals No. A-8702.
August 17, 2005.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge. Trial Court No. 3PA-02-0686 CR.
Quinlan Steiner, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Thomas M. Beattie of felony driving while under the influence, felony refusal to submit to a chemical test, and misdemeanor driving with a suspended license. Beattie argues that the superior court should have suppressed the evidence against him because the state troopers violated his statutory right to contact an attorney before deciding whether to take a breath test. He also argues that the court erred by refusing to instruct the jury that it could not find that he was "operating" a motor vehicle unless it found that he had "actual, physical possession" of the ignition key. We reject these claims and affirm Beattie's convictions. The superior court did not clearly err in finding that Beattie was offered, but declined, the opportunity to call his attorney before refusing to take the breath test. The court also did not err in rejecting Beattie's proposed jury instruction, because that instruction misstated the law.
AS 28.35.030(a)(1) AS 28.35.030(n).
AS 28.35.032(a) AS 28.35.032(p).
AS 28.15.291(a).
Facts and proceedings
At about 10:15 p.m. on April 6, 2002, three off-duty wildlife protection troopers observed a Chevy Blazer being driven erratically. When the troopers first spotted the Blazer, it was stopped at a stoplight straddling the white line between the left and right southbound lanes on the Parks Highway. When the light changed, the Blazer drove up on to the cement median between the southbound and northbound lanes. The driver then overcorrected, swerving over the centerline between the southbound lanes. The troopers pulled up behind the Blazer, got the license plate number, and phoned it in to state trooper dispatch. The dispatcher told them that the Wasilla Police Department would respond. However, when the Wasilla police did respond, they pulled over the wrong vehicle, so the troopers continued to follow the Blazer. The Blazer turned left off the Parks Highway and out of sight for a short period of time, but the troopers were able to follow its fresh tracks to Quiet Circle and into the parking lot of Beattie's apartment complex. The troopers pulled up behind the Blazer and saw Beattie sitting in the driver's seat. No one else was in the vehicle. As the troopers approached the Blazer, Beattie shut off the engine and headlights. The troopers identified themselves, and removed Beattie's keys from the ignition. Because the stop was outside Wasilla city limits, Alaska State Trooper Nathan Bucknall ultimately took over the investigation, arresting Beattie for driving while under the influence and for driving with a suspended license. Beattie later refused to take a breath test, and was charged with refusal to submit to a chemical test.
Before trial, Beattie moved to suppress the evidence against him, arguing that Trooper Bucknall had violated his statutory right to contact an attorney. Superior Court Judge Beverly W. Cutler denied the motion, finding that Trooper Bucknall had offered Beattie an opportunity to contact his attorney before he decided whether to take the breath test, and Beattie chose not to call his attorney.
At trial, Beattie testified that he did not drive the Blazer that night. He said he was outside smoking a cigarette when his girlfriend's son, Matthew Theodore, drove up, parked the Blazer, and walked off, leaving the keys in the ignition. Beattie said when the troopers showed up, he was standing next to the Blazer. Theodore corroborated this version of events, testifying that he had driven the Blazer to the apartment complex that night and had seen Beattie standing outside in the parking lot. Theodore also testified that on the Parks Highway he accidently drove the Blazer onto the median because he was adjusting the driver's seat, which had slipped back so that his feet could not reach the pedals. Furthermore, Michael Heffle, a friend of Beattie's, testified that he was with Beattie all day, that he drove Beattie home at about 9:45 p.m., and that Beattie was too drunk to drive on his own.
After hearing this testimony, the jury convicted Beattie of all charges. Because Beattie had three prior convictions within the past five years, he was convicted of felony driving while under the influence and felony refusal. Beattie appeals his convictions.
Why Beattie's Copelin right to contact an attorney was not violated
Beattie argues that he was denied his right to contact an attorney before deciding whether to submit to a breath test. He claims that he asked to call his attorney while at the trooper post, and that Trooper Bucknall agreed to let him call his attorney and offered to place a call for him, but then did not make the call or assist him in making the call.
In Copelin v. State, our supreme court held that if a person arrested for driving while intoxicated asks to contact an attorney, AS 12.25.150(b) and Alaska Criminal Rule 5(b) require that the arrestee be afforded a reasonable opportunity to do so before being required to decide whether to submit to a breath test. If the police do not allow the arrestee that opportunity, evidence of the arrestee's breath test result, or his refusal to take the breath test, must be suppressed. This statutory right is not an absolute one, "but, rather, a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes." Thus, the right to consult counsel does not require a delay beyond the standard fifteen-minute observation period already required before administration of the breath test. Moreover, law enforcement officers have no affirmative duty to inform arrestees of the right to contact an attorney; the duty of law enforcement is to not "unreasonably interfere" with attempts to contact counsel.
659 P.2d 1206 (Alaska 1983).
Id. at 1208.
Id. at 1215.
Id. at 1211-12 (footnote omitted).
Saltz v. State, Dep't of Public Safety, 942 P.2d 1151, 1153 (Alaska 1997); Copelin, 659 P.2d at 1211 n. 13.
Copelin, 659 P.2d at 1215; Anderson v. State, 713 P.2d 1220, 1221 (Alaska App. 1986).
At the evidentiary hearing in this case, Trooper Bucknall testified that he was "just getting ready" to initiate the DataMaster when Beattie said he wanted to talk to his lawyer, Verne Rupright. Trooper Bucknall testified that, ten or fifteen seconds after that, Beattie "closed his eyes, and then looked back up and said that he spoke to his lawyer, and his lawyer said not to take the DataMaster."
Beattie then refused to take the breath test, and Trooper Bucknall read him the notice of his right to an independent chemical test. At that point, Trooper Bucknall testified that Beattie said "he wanted [his attorney] Verne Rupright right there then, and I offered him to use the phone, and he just started ranting and raving again and never used the phone." Trooper Bucknall testified that he told Beattie he was welcome to call his attorney, and that he did nothing to prevent Beattie from placing a call. But he also acknowledged that he told Beattie he would place the call for him, but never did so because he did not believe he had that duty.
Following this testimony, Judge Cutler listened to the audio tape of this contact. After listening to the tape, Judge Cutler was "left with the overwhelming conclusion that clearly this defendant was offered the chance to call his attorney before the final refusal of the Breathalyzer test, and he clearly chose not to do that."
After carefully reviewing the audio tape, we uphold Judge Cutler's findings. Judge Cutler could reasonably find, based on this evidence, that Trooper Bucknall told Beattie before he refused the breath test that he was welcome to call his attorney. Beattie declined that offer, indicating that he had already spoken with his attorney and that his attorney told him not to take the test.
Judge Cutler could also properly find that when Beattie later demanded that Trooper Bucknall call his attorney, it was not for advice on whether to take the breath test, which Beattie had already unequivocally refused to take. Instead, Judge Cutler could reasonably conclude that Beattie demanded to speak with his attorney because he believed Trooper Bucknall had no right to arrest him for drunk driving because Trooper Bucknall had not seen him drive. This conclusion is supported by a discussion that took place after Trooper Bucknall read Beattie the notice of his right to an independent chemical test (twice), and after Beattie told Trooper Bucknall that he understood that right:
Beattie suggests, for the first time in his reply brief, that he might have been seeking his lawyer's advice on whether to get an independent chemical test. We do not address this claim, because it was not raised in the superior court and was first argued on appeal in Beattie's reply brief. See Hurst v. Victoria Park Subdivision Addition No. 1 Homeowners' Ass'n, 59 P.3d 275, 279 n. 16 (Alaska 2002).
Beattie: You did not see me drive so you can screw yourself.
Trooper Bucknall: So do you wish an independent test?
Beattie: I want a lawyer right now.
Trooper Bucknall: Okay, well do you know your lawyer's number?
Beattie: Call Verne Rupright right now.
Trooper Bucknall: Well as soon as I finish writing this I will call him.
Beattie: You will call him right now. I don't have to take this bullshit. I didn't do anything. You did not see me drive so therefore you cannot convict me for nothing.
Although Judge Cutler did not specifically address this post-refusal demand for counsel, she implicitly ruled that this later request did not entitle Beattie to have the evidence of his intoxication and refusal suppressed. We uphold that ruling. Even assuming, for the sake of argument only, that Trooper Bucknall violated Beattie's right to contact his attorney by telling him he would call his attorney and then not doing so, none of the evidence Beattie sought to have excluded was tainted by that violation. We therefore affirm Judge Cutler's denial of Beattie's motion to suppress.
See Zsupnik v. State, 789 P.2d 357, 361 (Alaska 1990); Winfrey v. State, 78 P.3d 725, 729 (Alaska App. 2003).
Why we conclude that the court did not err by refusing to instruct the jury that the State had to prove that Beattie had "actual, physical possession" of the ignition key
Beattie next claims that Judge Cutler erred by not instructing the jury that it could only find that he was "operating" a motor vehicle if it found that he had "actual, physical possession" of the ignition key.
Under AS 28.35.030(a), a person commits the crime of driving while under the influence if the person "operates or drives" a motor vehicle while under the influence. Although "operates" is not defined, in Jacobson v. State the Alaska Supreme Court equated "operating" with "actual physical control" of the vehicle. The court adopted the Montana Supreme Court's description of "actual physical control": "[A]s long as one were physically or bodily able to assert dominion, in the sense of movement, then he has as much control over [the vehicle] as he would if he were actually driving." This definition "recognizes the potential ability to drive; that is, a person's dominion over the car." It also recognizes as a matter of policy that "[a]n intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public" even if the vehicle is motionless when the person is apprehended.
551 P.2d 935 (Alaska 1976).
Id. at 938.
Id. at 935, 938 (quoting State v. Ruona, 321 P.2d 615, 618 (Mont. 1958)).
State, Dept. of Public Safety, Div. of Motor Vehicles v. Conley, 754 P.2d 232, 235 (Alaska 1988).
Jacobson, 551 P.2d at 938 (quoting State v. Webb, 274 P.2d 338, 340 (Ariz. 1954)).
In State, Department of Public Safety, v. Conley, our supreme court clarified that a defendant who was sitting in the driver's seat and trying to put the key in the ignition was in "actual physical control" of the vehicle even though the engine was not running because she was "physically capable of starting the engine and causing the vehicle to move." Furthermore, a finding of "actual physical control" does not require that the person sitting in the driver's seat make an active effort to operate the vehicle. In Kingsley v. State, we explained that a person's attempt to start a vehicle "may furnish convincing proof that the person is in actual physical control of the vehicle," but such a finding is not required to prove that the defendant was "operating." Thus Kingsley, who was sitting in the driver's seat with his ignition key in his pocket, was in actual, physical control of his vehicle even though it was stuck in a snow bank and he made no effort to start the engine.
Id. at 236.
11 P.3d 1001 (Alaska App. 2000).
Id. at 1003.
Id.
In this case, Beattie asked the court to instruct the jury that it could not find that he was "operating" the motor vehicle unless it found that he had "actual, physical possession" of the ignition key. He argues that because the defendant in Conley was trying to put the key in the ignition, and because the defendant in Kingsley had the ignition key in his pocket, "actual, physical possession" of the ignition key is a necessary element of "operating" a motor vehicle. But Beattie offers no rationale for distinguishing a case in which the defendant is sitting in the driver's seat with the keys in his hand or pocket from a case in which the keys are in the ignition or on the floorboard. In each case, the defendant is "physically or bodily able to assert dominion, in the sense of movement" over the motor vehicle. As noted earlier, a running engine, possession of the ignition key, or an active attempt to start the engine are all factors to consider in determining whether a person is in "actual physical control" of a vehicle, but they are not necessary factors. We conclude that Judge Cutler did not err in rejecting Beattie's proposed jury instruction defining "operating" because that instruction misstated the law.
Conley, 754 P.2d at 235 (quoting Jacobson, 551 P.2d at 938 (quoting Ruona, 321 P.2d at 618)).
Conclusion
Beattie's convictions are AFFIRMED.