Opinion
Court of Appeals No. A-9901.
April 8, 2009.
Appeal from the District Court, Third Judicial District, Kenai, David S. Landry, Judge, Trial Court No. 3KN-05-1571 CR.
Daniel Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant. Kelly J. Lawson, Assistant District Attorney, Lance E. Joanis, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Harry G. Bodey challenges his conviction for refusal to submit to a breath test. He contends that the refusal charge should have been dismissed because police did not explain to him that his right to have an attorney present did not give him the right to refuse to submit to the breath test. He also argues that there was insufficient evidence to support the refusal conviction. For the reasons explained here, we affirm the judgment of the district court.
Facts and proceedings
On September 11, 2005, Kenai Police Officer Trevor Miller arrested Bodey for driving under the influence (DUI) and driving without a license. Officer Mitchell Langseth transported Bodey to Wildwood Pretrial Facility for DataMaster processing of a breath sample. As soon as they arrived at the facility, Langseth advised Bodey of his Miranda rights.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Later on, when the fifteen-minute observation period was over and Langseth was ready to administer the DataMaster test, Bodey refused to provide a breath sample; he said that he was exercising his Miranda rights. Bodey said that he wanted a court-appointed attorney and that he was not going to make any decisions about the breath test until "he talked to his court-appointed attorney." Langseth told Bodey that neither the right to speak to an attorney nor the right to remain silent gave him the right to refuse to submit to a breath test. Langseth also told Bodey that an attorney would not be appointed until after the DUI processing. When Bodey persisted in declining the test until he spoke to an attorney, he was charged with refusal. Bodey was also charged with misdemeanor DUI and driving without a license.
AS 28.35.032(a).
AS 28.35.030(a)(1) AS 28.15.011(b), respectively.
Prior to his trial, and relying on Graham v. State, Bodey moved to dismiss the refusal charge on the ground that Langseth had not adequately explained that the Miranda right to speak to a lawyer did not give Bodey the right to refuse to submit to a breath test.
633 P.2d 211, 214-15 (Alaska 1981) (holding that an officer "must clearly advise [a suspect] that the rights contained in the Miranda warning do not apply to the breathalyzer examination").
An evidentiary hearing w as held; the only witness was Langseth. As already described, according to Langseth, Bodey declared that he wanted a court-appointed attorney and that he was not going to make any decisions until "he talked to his court-appointed attorney." In response, Langseth informed Bodey that neither the right to speak to an attorney, nor the right to remain silent, gave him the right to refuse to submit to a breath test. He also told Bodey that he would not get an attorney appointed during the DUI processing.
After the hearing, District Court Judge David S. Landry denied the motion to dismiss the refusal charge. Judge Landry found that Langseth had complied with Graham when he informed Bodey that the right to speak to an attorney did not include the right to refuse to submit to a breath test. Judge Landry also found that Bodey had not shown that he had, in fact, been confused by a potential conflict between his Miranda rights and his obligation to take the breath test.
A jury later convicted Bodey of all three charges. Bodey appeals, challenging only his conviction for refusing the breath test.
Did Officer Langseth comply with Graham?
In Graham, the Alaska Supreme Court held that where an arrested person refuses to submit to a breathalyzer test, the administering officer must inquire into the nature of the refusal and, if it appears that the refusal is based on a confusion about a person's rights, the officer must clearly advise that person that the rights contained in the Miranda warning do not apply to the breathalyzer examination.
Id. at 215.
The supreme court also ruled in Graham that the "defendant motorist . . . has the burden of showing that he or she was in fact confused." The supreme court reiterated this particular ruling in Snyder v. State.
Id.; see also Lively v. State, 804 P.2d 66, 68 (Alaska App. 1991).
31 P.3d 770, 777 (Alaska 2001).
Here, Judge Landry made two findings. He found that Langseth had complied with Graham by advising Bodey that his right to speak to an attorney did not give him the right to refuse the breath test. Judge Landry also found that, based on the evidence presented at the hearing, Bodey had not shown that he was actually confused.
Bodey challenges only the first finding. He argues that Langseth did not comply with Graham because he did not specifically advise Bodey that his Miranda rights did not apply to the request to submit to a breath test. Bodey does not challenge Judge Landry's second finding — that Bodey had not shown that he was in fact confused. If Bodey's refusal was not based on confusion about his rights, then it does not matter whether Langseth's Graham explanation was inadequate. Judge Landry's finding that Bodey had not shown that he was confused about his rights sufficiently supports the judge's conclusion that the processing procedure complied with due process.
Even so, the record supports Judge Landry's finding that Langseth properly advised Bodey under Graham. Bodey argues that his case is controlled by Fee v. State, a case in which we relied on Graham to reverse a refusal conviction because the officer did not clearly advise the defendant that Miranda did not apply to the request that he submit to a breath test. But Fee is distinguishable in two key respects. First, the trial judge in Fee found that the defendant was actually confused about his Miranda rights; here, as already discussed, Judge Landry found that Bodey was not confused, and Bodey has not challenged that finding. Second, after the defendant in Fee asserted that he had the right under Miranda to have his attorney present when deciding whether to take the breath test, the officer did not explicitly inform Fee that, in fact, he did not have that right. In this case, after Bodey declared that he was "not going to make any decisions until he talked to his court-appointed attorney," Langseth explicitly informed Bodey that the right to speak to an attorney did not give him the right to refuse to take the breath test and that an attorney would not be appointed until after the DUI processing. In short, it appears that Langseth complied with Graham when he responded to Bodey's objections.
825 P.2d 464 (Alaska App. 1992).
Id. at 467.
Id. at 466.
Id. at 466-67.
Was there sufficient evidence to support the refusal conviction?
Bodey next contends that there was insufficient evidence to support the refusal conviction. He asserts that to prove that he refused the test, the State had to show that he knew or should have known of his legal obligation to take the test. He argues that the State did not present any evidence that he knew or should have known that he was required to take the test "despite his Miranda right to counsel."
When a defendant challenges the sufficiency of the evidence to support the verdict, the test is whether, viewing the evidence and the reasonable inferences that can be drawn from that evidence in the light most favorable to upholding the verdict, fair-minded people could conclude that the State had proven the elements of the offense beyond a reasonable doubt.
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Eide v. State, 168 P.3d 499, 500-01 (Alaska App. 2007).
In this case, the jury was aware of Bodey's defense — his claim that he was not refusing the breath test, but was instead exercising his Miranda right to consult with an attorney. But the jury also heard evidence that Bodey was advised of his obligations under the implied consent law, and specifically advised that his Miranda right to speak with an attorney did not give him the right to refuse to take the breath test. Viewing this evidence and the reasonable inferences arising from it in the light most favorable to upholding the jury's verdict, fair-minded people could conclude that the State had proven beyond a reasonable doubt that Bodey knew or should have known that he was required to take the breath test.
Conclusion
The district court's judgment is AFFIRMED.