Opinion
Court of Appeals No. A-11256 No. 6122
12-03-2014
RICHARD RISSER HOSTETTER JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Craig C. Sparks, Assistant District Attorney, Kenai, and Michael C. Geraghty, 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. Trial Court No. 3HO-11-254 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Homer, Charles T. Huguelet, Judge. Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Craig C. Sparks, Assistant District Attorney, Kenai, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge HANLEY.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Richard Risser Hostetter Jr. was convicted of misdemeanor refusal to submit to a chemical test and of driving without a valid license. On appeal, he contends that the district court should have suppressed evidence of his breath test refusal because the police denied him his rights under Copelin v. State by failing to give him a reasonable opportunity to contact an attorney before deciding whether to submit to the breath test. More specifically, Hostetter argues that the district court erred when it found that the police cured their initial Copelin violation by later offering Hostetter the opportunity to contact an attorney. For the reasons explained in this decision, we affirm the ruling of the district court.
See Copelin v. State, 659 P.2d 1206, 1211-12 (Alaska 1983).
Facts and proceedings
On May 20, 2011, Kenai Police Officer Casey Hershberger stopped Hostetter because he entered the roadway from a parking lot without stopping. The officer also saw that Hostetter's vehicle's license plate did not display a current registration tag. Once contacted, Hostetter displayed signs of intoxication: he had an odor of alcohol, slurred speech, poor dexterity, bloodshot and watery eyes, and he wobbled and swayed when he stood.
Hostetter refused to perform field sobriety tests. The officer then arrested Hostetter for driving under the influence and for not having a valid driver's license.
The officer transported Hostetter to the Anchor Point State Trooper Post to administer a DataMaster breath test. During the fifteen-minute waiting period, the officer read the "implied consent" notification to Hostetter, informing him that he was legally obligated to take the breath test.
As part of their discussion, Hostetter asked the officer, "[W]hat happened to '[y]ou do not have to do anything unless you're represented by a rep — by a legal representative?'" Hostetter also asked the officer, "[A]re you telling me that I need to [provide a breath sample] without consulting a lawyer?" The officer did not consider either of these questions to be a request to contact an attorney, so the officer proceeded to prepare the breath test.
When the DataMaster was ready, Hostetter declined to provide a breath sample. After the DataMaster timed out, the officer declared that Hostetter had refused to take the test. Hostetter responded that he had not refused but that he would not do anything "until a lawyer got here."
At this point, the officer told Hostetter that had he asked earlier to contact an attorney, the officer would have given him that chance. The officer then offered Hostetter the opportunity to contact an attorney and then provide a breath sample. But Hostetter declined this offer:
Hostetter: And for the record, I did not refuse to provide a breath sample; I refused to do anything until a lawyer got here.
. . . .
Officer: Okay. If you [had] said you'd wanted to talk to a lawyer, we could have arranged for one; but that still doesn't give you the right to refuse this test, even if you talk to an attorney.
Hostetter: Okay.
. . . .
Officer: Do you want to call a lawyer and then provide a breath sample?
Hostetter: Is there going to be a lawyer available [at] this time of the night?
Officer: I don't know. I'm — you'd have to ...
Hostetter: I don't know either.
Officer: You'd have to find — So do you want to try, and do you want me to give you a phone book and you try and call one, or ...
Hostetter: No, it's fine.
Based on these events, the State charged Hostetter with driving under the influence, breath test refusal, and failing to have a valid driver's license.
On the second day of Hostetter's trial, his attorney asserted a Copelin violation based on the events we have just described. The defense attorney explained that she had not realized, until she heard the evidence on the first day of trial, that the officer had not provided Hostetter an opportunity to contact an attorney until the officer had already filled out the paperwork showing that Hostetter had refused to provide a breath sample.
Despite the provisions of Alaska Criminal Rule 12(b)(3) and (e) (which require all suppression motions to be made before trial), the trial judge allowed Hostetter to litigate this issue, and the judge held an evidentiary hearing to investigate this matter.
After the hearing, the judge found that the officer violated Copelin by not giving Hostetter the opportunity to try to contact an attorney after Hostetter asked, "[a]re you telling me that I need to take this [breath] test without talking to a lawyer?" But the judge also found that the officer cured this Copelin violation when, after Hostetter's wishes were clarified, the officer expressly offered Hostetter the opportunity to contact an attorney.
At the conclusion of the trial, Hostetter was convicted of breath test refusal and failing to have a valid driver's license. He was acquitted of the DUI charge.
The Copelin rule
Under the Alaska Supreme Court's decision in Copelin v. State, a person arrested for driving under the influence has the statutory right to attempt to contact and consult an attorney before deciding whether to submit to a breath test. But Copelin imposes on police only a limited duty to assist detainees in locating an attorney before taking a breath test. Primarily, Copelin requires that the police not unreasonably interfere with a DUI arrestee's attempts to consult with counsel. Generally, if the police do interfere, then the remedy is suppression of the breath test result or suppression of evidence of the arrestee's breath test refusal.
See AS 12.25.150(b); see also Alaska R. Crim. P. 5(b).
Saltz v. State, 942 P.2d 1151, 1154 (Alaska 1997).
Anderson v. State, 713 P.2d 1220, 1221 (Alaska App. 1986) (citation omitted).
The district court properly found that the officer cured the Copelin violation
As we explained above, the district court found that the arresting officer violated Copelin before the breath test by not offering Hostetter the opportunity to try to contact an attorney after Hostetter asked, "[A]re you telling me that I need to [provide a breath sample] without consulting a lawyer?" But the district court also found that the officer cured this violation because, after Hostetter expressly told the officer that he had declined to take the breath test because he had not had the opportunity to talk to a lawyer, the officer offered to let Hostetter try to contact an attorney.
Hostetter contends on appeal that he did not know that this offer to contact an attorney was the officer telling him that he could avoid the refusal charge by first contacting the attorney and then taking a subsequent breath test.
Hostetter did not present this factual argument to the trial judge. During litigation of this issue in the district court, Hostetter did not dispute the fact that, based on what the officer told him, he understood that he would get a new opportunity to take the breath test after consulting an attorney.
Because this issue was not preserved in the trial court, Hostetter must now show that the trial judge committed plain error. This Court will "review unpreserved claims for plain error and reverse the trial court where there was obvious and prejudicial error below affecting substantial rights that did not result from intelligent waiver or a tactical decision not to object."
Johnson v. State, 328 P.3d 77, 82 (Alaska 2014) (internal quotation marks omitted) (citing Adams v. State, 261 P.3d 758, 764 (Alaska 2011)).
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But here we find no error because the trial judge's factual finding on Hostetter's subjective understanding of the situation was a reasonable interpretation of the evidentiary record. The trial judge could reasonably conclude, based on the officer's statements during the breath test processing and based on Hostetter's testimony at the evidentiary hearing, that Hostetter knew that if he provided a sample after contacting an attorney, he would not be charged with breath test refusal.
Hostetter also asserts that he understood the officer to be saying that Hostetter would get a chance to contact an attorney only if he agreed to take the breath test. But again, this assertion was not presented to the trial court. And, again, the evidentiary record amply supports the opposite conclusion. The district court could reasonably find that Hostetter understood that, after contacting an attorney, he would then either have to take the breath test or be charged with breath test refusal.
Conclusion
We AFFIRM the judgment of the district court.