Opinion
Court of Appeals No. A-9471.
February 28, 2007
Appeal from the Superior Court, Third Judicial District, Kenai, Dan A. Hensley, Judge. Trial Court No. 3KN-04-1870 CR No. 5179
Appearances: Kenneth W. Cole, Kenai, for the Appellant. John Skidmore, Assistant District Attorney, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Glen P. Moore shot and wounded Marvin Parazoo during an argument. When the police responded to the shooting, they did not arrest Moore, but asked him to go to the police station. The police noticed that Moore had been drinking. Moore went to the station voluntarily, getting a ride to the station from a family member.
After Moore arrived at the station, the police read Moore his Miranda rights and asked him if he would submit to a DataMaster breath alcohol test. Before agreeing, Moore asked to see his attorney before he gave a detailed interview about the case. The police again asked Moore if he would submit to a breath test. Moore executed a Waiver of Search form and Notice of Right to an Independent Test, and submitted to the DataMaster test. The result was a .171 percent breath alcohol content.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The police left Moore in the station lobby where he talked with his family. Later, when Moore returned to the office area, he was arrested. Before trial, Moore moved to suppress the results of the DataMaster test, claiming that he should have been granted access to his lawyer before the police asked him to consent to the breath test. Superior Court Judge Dan A. Hensley denied the motion. At trial, the jury convicted Moore of fourth-degree misconduct involving weapons (possession of a firearm while impaired by alcohol). Moore appeals the denial of his suppression motion. We affirm.
AS 11.61.210(a)(1).
Factual and procedural background
On August 22, 2003, Moore shot Marvin Parazoo in the chest with a .338 rifle after an argument on Funny River Road in Soldotna. When police arrived at the scene, Moore told an officer that Parazoo had assaulted him with a knife before he shot him. The officer noted that Moore had a strong odor of alcohol on his breath and that he had bloodshot, watery eyes and slurred speech. The officer concluded that Moore was impaired by alcohol. The officer asked Moore if he had been drinking alcohol that night, and Moore admitted that he had. The officer then asked Moore to submit to a portable
breath test ("PBT"), and Moore agreed. The test indicated that Moore had a .219 percent breath alcohol content.
The officer then asked Moore if he would come to the trooper post in Soldotna where investigators could talk to him about the shooting, and Moore agreed. Moore had not been arrested, and he got a ride to the station from a family member.
Soon after Moore arrived at the station, the police advised him of his Miranda rights even though he had not been arrested. The police wanted Moore to submit to a DataMaster breath test; they presented him with a Waiver of Search form and a Notice of Right to an Independent Test. Before executing the forms, Moore said he wanted to talk to an attorney before discussing the case in detail.
The police asked Moore to take the DataMaster breath test anyway, even though they knew he had requested to speak with his attorney. They informed Moore that although the text of the Notice of Right to an Independent Test refers to driving while under the influence, he was not being charged with that offense — instead, they were merely using the form to make him aware of his right to an independent test. Moore signed the Waiver of Search form and the Notice of Right to an Independent Test, and submitted to the DataMaster test. The results of the test indicated a breath alcohol content of .171 percent.
Moore went out to the lobby of the station and talked with family members. He had not been arrested and he was not under supervision when he was in the lobby. According to Trooper Dane Gilmore, Moore was "free to leave." Moore returned to the office area on his own. He was eventually arrested.
Parazoo survived the shooting and spent 12 days in the hospital.
The grand jury indicted Moore for first-degree assault for seriously injuring Parazoo and third-degree assault for placing Natalie Hoeldt, Parazoo's sister and a witness to the shooting, in fear of imminent serious physical injury. Moore filed motions to suppress the results of the PBT and DataMaster tests and, for separate reasons, to dismiss the indictment. Judge Hensley held an evidentiary hearing. Moore argued, among other things, that the police violated his Fifth Amendment right to counsel when they asked him to submit to the DataMaster test after he had requested to speak to an attorney. Judge Hensley found that Moore was not in custody for Miranda purposes, that he was aware that he could refuse the DataMaster test, and that he voluntarily submitted to the breath tests. Judge Hensley ruled that the result of the DataMaster test was admissible, holding that a request for counsel does not prohibit a subsequent consent to search for physical evidence. Judge Hensley dismissed the original indictment due to errors committed by the prosecutor before the grand jury, and the State re-indicted M oore on the first-degree assault charge only. A short time later, the State filed an information adding the charge of fourth-degree misconduct involving weapons to this new indictment.
AS 11.41.220(a)(1).
AS 11.41.220(a)(1)(A).
AS 11.61.210(a)(1).
A jury convicted Moore only of the weapons charge and acquitted him of assault. Moore appeals the denial of his motion to suppress.
Discussion
Moore argues that once he informed the police that he wanted to talk to an attorney before giving a formal interview, the police had to allow him to talk with an attorney before asking him to consent to the breath test. Moore cites Copelin v. State as authority for this proposition. In Copelin, the Alaska Supreme Court held that:
659 P.2d 1206 (Alaska 1983).
when a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests 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 or not to submit to a breathalyzer test.
Id. at 1208.
The court further held that if the police fail to honor the request, evidence of the results of a subsequent test or a subsequent refusal to submit to a chemical test must be suppressed.
Id. at 1215.
But Moore had not yet been arrested when he told the police he would not give a formal interview before talking with his attorney. Because Moore was not under arrest, AS 12.25.150(b) did not apply.
Moore argues that his otherwise voluntary consent to the breath test was invalid because of a Fifth Amendment violation. He argues that when he told the police he wanted to talk to his attorney before talking in detail about the case, Miranda and Copelin barred the police from seeking Moore's consent to the breath test. But we held in State v. Garrison that a defendant's Fifth Amendment rights are not implicated when a defendant is not subjected to custodial interrogation. As we noted above, Moore was not in custody when he submitted to the breath test. Furthermore, unless the police are attempting to obtain involuntary statements, even when a defendant is in custody, their efforts to obtain a Fourth Amendment waiver, i.e., a consent to a search, do not constitute interrogation and are not barred by Miranda.
128 P.3d 741 (Alaska App. 2006).
Id. at 747.
See Schneckloth v. Bustam onte, 412 U.S. 218, 232-33, 93 S. Ct. 2041, 2050, 36 L. Ed. 2d 854 (1973); Frink v. State, 597 P.2d 154, 169 (Alaska 1979).
Judge Hensley rejected Moore's argument, ruling that Moore's breath test result was neither Moore's "testimony nor evidence relating to some communicative act" by Moore. We agree with Judge Hensley that Moore's consent to the breath test was not invalidated by his request, when he was not in custody, to speak to his attorney before he talked in further detail about the case.
Conclusion
The judgment of the superior court is AFFIRMED.