Opinion
Court of Appeals No. A-9539.
April 25, 2007.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Winston S. Burbank, Judge, Trial Court No. 4FA-04-3551CR.
Robert John, Law Office of Robert John, Fairbanks, for the Appellant.
Matthew C. Christian, Assistant District Attorney, and Jeffrey A. O'Bryant, District Attorney, Fairbanks, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
The police arrested Lauri Campbell for driving while under the influence. Campbell argues that the district court should have suppressed her DataMaster breathalyzer test result for a variety of reasons: she did not knowingly and intelligently waive her right to an independent blood test, the officer interfered with her right to an independent test, the officer failed to record her waiver of her right to an independent test, she received inadequate notice of her right to an independent test, the form she signed waiving her right to an independent test was misplaced, and she was denied her constitutional right to counsel before deciding whether to request an independent test. We conclude that the district court did not err in finding that Campbell understood her right to an independent test and in finding that the officer did not interfere with her right. The decision whether to take an independent test is not a phase of prosecution that requires the assistance of counsel. Campbell's other claims are also without merit. We therefore affirm Campbell's conviction.
AS 28.35.030(a).
Facts and proceedings
On October 5, 2004, at approximately 10:11 p.m., Fairbanks International Airport Police Officer Sean W. Martines observed a red Mazda pull out of Pike's Way onto Airport Way in Fairbanks. The vehicle turned south and drove about 100 feet in an oncoming lane of traffic, requiring an oncoming vehicle to swerve onto the shoulder to avoid a collision.
Officer Martines stopped the vehicle. When he contacted the driver, Campbell, Officer Martines noted that she had bloodshot, watery eyes and that there was an odor of alcohol coming from the vehicle. Officer Martines administered field sobriety tests. Campbell failed the horizontal gaze nystagmus and walk-and-turn tests but passed the one-leg-stand test. Officer Martines arrested Campbell for driving while under the influence and took her to the airport police station for a DataMaster breath test. The test was administered at 11:09 p.m. and showed that Campbell had a 0.128 percent blood alcohol level — well above the legal limit of .08 percent.
See AS 28.35.030(a)(2).
Campbell moved to suppress the DataMaster result for three reasons. First, she claimed she was intimidated and confused about her right to an independent test and, therefore, did not knowingly waive the right. Second, she argued that Officer Martines interfered with her right to an independent test. And, third, she argued that the test result should be suppressed because Officer Martines did not tape-record all of the DUI processing.
District Court Judge Winston S. Burbank found that the tape recording of Campbell's DUI processing indicated that Campbell was asking relevant questions and that "[t]here is no evidence on the tape recording indicating that Campbell was confused or was so intimidated that she was afraid to ask questions about the independent test or request that she be allowed to take one." Judge Burbank found that Campbell knowingly and intelligently waived her right to an independent test and denied the motion to suppress. Judge Burbank also found that the tape recording contained the discussion of Campbell's right to an independent test.
Campbell next moved to suppress the DataMaster result because she was denied the right to counsel before deciding whether to obtain an independent blood test. Judge Burbank found that Campbell did not invoke her statutory right to counsel and that there is no constitutional right to counsel when deciding whether to obtain an independent test.
After a bench trial on stipulated facts, Judge Burbank found Campbell guilty of driving while under the influence. Campbell appeals. Discussion Why the court did not err in finding that Campbell knowingly and intelligently waived her right to an independent blood test
A driver arrested for driving while under the influence has a due process right under the Alaska Constitution to a reasonable opportunity to challenge the accuracy of a police-administered breath test. One way for the police to satisfy due process is to comply with AS 28.35.033(e), the statute establishing the right to an independent test of the driver's blood alcohol level, by, in part, giving the defendant "clear and express notice" of this statutory right.
Gundersen v. Anchorage, 792 P.2d 673, 675-76 (Alaska 1990); Crim v. Anchorage, 903 P.2d 586, 587-88 (Alaska App. 1995) (citing Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995)).
Gundersen, 792 P.2d at 676-77.
A driver may relinquish this right only by a knowing and intelligent waiver. This requires "a basic understanding of the right to an independent test," which is determined based on the "totality of the circumstances," including whether the driver was notified of the right to an independent test, was aware that he or she was arrested for driving while under the influence, and generally understood that the purpose of the independent test was to obtain evidence of his or her blood alcohol level.
Id. at 677.
Ahtuangaruak v. State, 820 P.2d 310, 311 (Alaska App. 1991).
Crim, 903 P.2d at 588.
Moses v. State, 32 P.3d 1079, 1084 (Alaska App. 2001); Crim, 903 P.2d at 588.
Here, Judge Burbank found that "[t]here is no evidence on the tape recording indicating that Campbell was confused or was so intimidated that she was afraid to ask questions about the independent test or request that she be allowed to take one." We review this factual finding for clear error. A factual finding is clearly erroneous if, after reviewing the record, we are left "with a definite and firm conviction . . . that a mistake has been made, even though there may be evidence to support [the trial court's] finding."
See Nathan v. Anchorage, 955 P.2d 528, 531 (Alaska App. 1998) (citing Cockerham v. State, 933 P.2d 537, 539 n. 9 (Alaska 1997)).
Id. (brackets in original).
Officer Martines testified that Campbell was able to follow instructions, listened closely, was coherent, and asked pointed questions throughout the DUI processing. He testified that he read Campbell a form that explained her right to an independent test and that she signed the form. When Officer Martines asked Campbell if she understood the form, "she shook her head and said, `yes.'" When he asked if she wanted an independent test, she said, "no." Officer Martines's testimony is supported by the tape of the DUI processing, which indicates that Campbell asked pointed questions, seemed to understand what was going on, and, although it is difficult to hear, appeared to waive her right to an independent test.
Campbell testified that she did not recall this discussion or waiving her right to an independent test and that she did not understand the right, how long the test would take, or where it would take place. However, she admitted to asking a variety of questions throughout the DUI processing.
Given this record, we find no reason to reverse the district court's ruling that Campbell knowingly and intelligently waived her right to an independent test. Both Officer Martines's testimony and the tape of the DUI processing support the district court's finding that Campbell was notified of her right to an independent test and that she waived that right. Campbell was coherent throughout the processing and seemed to understand what was happening. She was aware that she was arrested for driving while under the influence. And she appears to have had a basic understanding of her right to an independent test. Judge Burbank therefore did not err in ruling that Campbell knowingly and intelligently waived her right to an independent test. Why the court did not clearly err in finding that Officer Martines did not interfere with Campbell's right to an independent test
See Moses, 32 P.3d at 1084; Crim, 903 P.2d at 588; Ahtuangaruak, 820 P.2d at 311.
See Crim, 903 P.2d at 588-89.
Campbell also argues that the DataMaster result should be suppressed because Officer Martines interfered with her right to an independent test by intimidating her, pressuring her, and accusing her of lying.
If the State interferes with the driver's right to an independent test, the breath test result must be suppressed. It is a factual question whether, under the totality of the circumstances, state conduct prevented the driver from obtaining an independent test that the driver otherwise would have obtained. Here, Judge Burbank found that "[t]here is no evidence on the tape recording indicating that Campbell was . . . so intimidated that she was afraid to ask questions about the independent test or request that she be allowed to take one." We review this factual finding for clear error.
Ward v. State, 758 P.2d 87, 89-91 (Alaska 1988).
Lau, 896 P.2d at 828.
See Nathan, 955 P.2d at 531.
Here, the alleged intimidation consisted of Officer Martines playing the theme song to the television show "COPS" while he was transporting Campbell to the police station and asking her what she thought of the song. And the alleged pressure consisted of Officer Martines stating:
I'll tell you what, because you gave me the sob story and everything else, you've lied to me several times already, you told me that everybody paid your way up here, not that you, you just told me that you paid yourself up here, so I'm kind of getting tired of this. This is costing a lot of time that I need to write my report and take you down to jail. All right? I will let you have one more time. But I already have enough to charge you with another crime. Do you understand that? Okay?
Officer Martines testified that he made this comment because Campbell was stalling and refusing to properly blow into the DataMaster.
Even if the "COPS" song and Officer Martines's words and action could be construed as amounting to pressure and intimidation, there is no persuasive evidence that they affected or influenced Campbell's decision-making. As noted above, Campbell seemed coherent and asked pointed questions throughout her DUI processing. In fact, immediately before Officer Martines explained to Campbell her right to an independent test, Campbell asked him detailed questions about the impact of a DUI on her insurance rates. It does not appear that Officer Martines prevented Campbell from obtaining an independent test that she otherwise would have obtained. Judge Burbank's finding that Campbell was not so intimidated that she was denied her right to an independent test was therefore not clearly erroneous. Why Judge Burbank did not err in refusing to suppress the DataMaster result due to Officer Martines's failure to tape-record the entire DUI processing Campbell argues that the district court should have suppressed the DataMaster breath test result because Officer Martines did not tape-record the entire DUI processing and because her waiver of her right to an independent test is not evident on the tape. The due process clause of the Alaska Constitution requires police to record custodial interrogations that occur in a place of detention, including the giving of the accused's Miranda warnings.
See Crim, 903 P.2d at 587-88.
See id.
Stephan v. State, 711 P.2d 1156, 1162-63 (Alaska 1985) (citing Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628, 16 L. Ed. 2d 694 (1966)).
It is true that at some point between the time Campbell failed the DataMaster test for the second time and the time Officer Martines informed Campbell of her right to an independent test, the tape ran out. When Officer Martines realized that the tape had run out, he started a new tape.
However, in this case, there was no custodial interrogation. Nor does Campbell allege that the missing portions of the tape involved custodial interrogation. Instead, she claims that the tape does not demonstrate a waiver of her right to an independent test. But Campbell has not shown that Judge Burbank clearly erred in finding that she waived her right to an independent test. Officer Martines testified that the tape is difficult to hear because he and Campbell were sitting approximately six feet from the tape recorder and because he was between Campbell and the recorder with his back to the recorder. However, he identified the portions of the tape where he told Campbell about her right to an independent test and where Campbell waived her right to the independent test. And, although the tape is very difficult to understand, it appears to contain the entire discussion of the right to an independent test and Campbell's waiver of that right. Finally, Campbell has not shown how the evidence might have aided her. She testified that the missing parts of the tape would have shown that she was asking questions and trying to cooperate with Officer Martines. If anything, this would support Judge Burbank's finding that Campbell made a knowing and intelligent waiver of her right to an independent test. Judge Burbank did not err in refusing to suppress the DataMaster test.
See Suiter v. State, 785 P.2d at 28, 31 (Alaska App. 1989).
Why we conclude that Officer Martines gave Campbell adequate notice of her right to an independent test
Campbell also argues that the DataMaster breath test result should be suppressed because the forms that explained her right to an independent test were inadequate and because the form that she allegedly signed is missing. Her briefing on these points is extremely limited. It appears that Campbell raises four separate claims, allotting one or two cursory sentences to each claim. None of the claims has merit.
First, Campbell argues that the form was defective because it did not inform her that she needed to decide whether to obtain an independent test. However, she did not raise this claim below. Normally, we only review claims that were not raised in the trial court for plain error. "A plain error is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice."
See Winkler v. State, 580 P.2d 1167, 1173 (Alaska 1978) (citing Alaska R. Crim. P. 47(b)).
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985), superseded by statute on other grounds, AS 11.81.900(b)(52) (now AS 11.81.900(b)(58)), as recognized in Braun v. State, 911 P.2d 1075, 1078 (Alaska App. 1996).
Campbell claims that the form was inadequate because it "does not actually inform the person that she must decide whether to obtain an independent test. Instead, the form tells the accused that she must decide whether she wants transportation" (emphasis in original). Campbell apparently objects to the following statement:
At this time you must decide whether or not you want transportation in order to take an independent test. If you refuse to decide, or do not wish such a test, or you are shortly released from custody, you will not be provided with transportation.
However, the form begins by stating that "[y]ou have a right to obtain an independent test of your level of intoxication . . . [i]f you wish to have an independent chemical test at State expense . . . you will be transported to the test free of charge." And it concludes with a list of choices: (1) "I do not want an idependant [sic] test," (2) "I want a blood sample at State expense," or (3) "I want a chemical test atMy [sic] own expense to be administered at ____" (emphasis in original). The form adequately explains the right to an independent test. Judge Burbank did not commit plain error.
Second, Campbell claims that Judge Burbank should have suppressed the DataMaster test because Officer Martines only asked Campbell, "Do you want one [an independent test]?" As noted above, the form offered three options: (1) no independent test, (2) a test at state expense, or (3) a test at Campbell's own expense. By responding negatively to Officer Martines's question whether she wanted "one [an independent test]," Campbell chose the first option: no test. This eliminated any need for Officer Martines to inquire between options two and three: whether she wanted the test to be at state expense or her own expense. We conclude that Judge Burbank did not err in refusing to suppress the DataMaster test on this ground.
Third, Campbell argues that the independent test form is deficient compared to the Airport Police's Miranda rights form, which asks individuals to initial whether they understand their rights. Campbell raised this claim for the first time in her motion for reconsideration, and Judge Burbank did not address the claim in his order on reconsideration. Accordingly, this claim is waived. In addition, Campbell has not cited any case law or explained why this difference between the two forms required Judge Burbank to suppress the DataMaster result. The claim is therefore also waived as inadequately briefed.
See Cooper v. District Court, 133 P.3d 692, 715-16 (Alaska App. 2006) (citing Blackburn v. Dep't of Transp. and Pub. Facilities, 103 P.3d 900, 906 (Alaska 2004)) (holding that a court is under no obligation to consider an issue raised for the first time in a motion for reconsideration, and if the trial court does not address the newly raised issue, that issue cannot be pursued on appeal).
See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) (holding that where a point is given only a cursory statement in the argument portion of the brief, the point will not be considered on appeal).
Finally, Campbell claims that the district court should have granted her an evidentiary presumption due to the State's loss of the independent test form. However, Campbell asserts this claim in a single sentence without discussion of authority. When a point is given only a cursory statement in the argument portion of the brief, the point will not be considered on appeal. In addition, when the State destroys evidence, "the issue is whether it would have been favorable to the accused." Here, Officer Martines testified that Campbell signed the form, and Campbell testified that she did not recall whether she signed the form. Campbell has not shown that the evidence would have been favorable to her. Judge Burbank therefore did not err in refusing to grant Campbell an evidentiary presumption.
Id.
Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1330 (Alaska 1989).
Why the court did not err in finding that Campbell did not have a constitutional right to counsel
Campbell's final argument is that the district court erred in finding that Officer Martines did not violate her right to counsel. She argues that she had a constitutional right to counsel before deciding whether to obtain an independent test.
Article 1, section 11 of the Alaska Constitution provides that "[i]n all criminal prosecutions . . . the accused is entitled to . . . have the assistance of counsel for his defense." However, we have held that this only applies to "those who stand accused in `criminal proceedings'" where there is "commencement of a specified adversarial proceeding" that "trigger[s] the right to counsel." In Babb v. Anchorage, we held that "[t]he independent blood-alcohol test is . . . not a critical stage at which the constitutional right to counsel attaches."
Thiel v. State, 762 P.2d 478, 482 (Alaska App. 1988) (quoting Alaska Const. art. 1, § 11); see also State v. Garrison, 128 P.3d 741, 744-45 (Alaska App. 2006).
813 P.2d 312 (Alaska App. 1991).
Id. at 313.
Campbell argues that Babb is no longer good law because the Alaska Supreme Court subsequently held in Snyder v. State that "the opportunity to obtain evidence of blood alcohol content is a reasonably necessary safeguard, essential to the adequate protection of the accused's right to a fair trial." But the supreme court's decision in Snyder does not address the right to counsel. It addresses the right to an independent test under the due process clause of the Alaska Constitution. The fact that the opportunity to obtain an independent test is guaranteed by due process does not make it a stage of prosecution at which "counsel's absence might derogate from [the accused's] right to a fair trial."
930 P.2d 1274 (Alaska 1996).
Id. at 1279.
Id.
Svedlund v. Anchorage, 671 P.2d 378 (Alaska App. 1983) (quoting People v. Craft, 270 N.E.2d 297, 299 (N.Y. 1971)).
Campbell also claims that, in Babb, we did not balance the need for prompt investigation against a suspect's right to a fair trial, as the supreme court did in Blue v. State. In Blue, the supreme court balanced these competing interests and concluded that a suspect has the right to have counsel present at a pre-indictment lineup, "unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation."
558 P.2d 636 (Alaska 1977).
Id. at 641-42.
In Babb, we did not expressly discuss the Blue decision when we ruled that an independent blood alcohol test is not a "critical stage" at which the constitutional right to counsel attaches. Rather, we relied by analogy on our decision in Svedlund v. Anchorage (and our later decision in Romo v. Anchorage ), where we held that an Intoximeter test is not a critical stage of criminal proceedings. In Svedlund, we expressly distinguished the pre-indictment lineup circumstance in Blue, noting that the purpose of the breathalyzer test was to preserve evidence of intoxication, and that a prompt investigation was therefore required. In Babb, we concluded that this same logic applied to an independent blood alcohol test.
647 P.2d 1065 (Alaska App. 1985).
Babb, 813 P.2d at 313 (citing Romo, 697 P.2d at 1071-72 and Svedlund, 671 P.2d at 382).
Svedlund, 671 P.2d at 382.
Campbell has not presented any convincing reason to depart from the rule announced in Babb. The decision whether to request an independent blood test is not a critical stage of prosecution. Campbell therefore did not have a constitutional right to counsel before waiving her right to an independent test.
See Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997) (holding that a litigant seeking to have an appellate court overrule a prior decision "must demonstrate convincing reasons why the existing rule was originally erroneous or is no longer sound because of changed conditions. The litigant must also dem onstrate that m ore good than harm would result from a departure from precedent.").
Babb, 813 P.2d at 313.
Conclusion
Campbell's conviction is AFFIRMED.