Opinion
Court of Appeals No. A-10242.
January 27, 2010.
Appeal from the District Court, Third Judicial District, Anchorage, Brian K. Clark, Judge, Trial Court No. 3AN-07-12673 CR.
Robert John, Fairbanks, for the Appellant. Hanley Rebecca Smith, Assistant Municipal Prosecutor, and James N. Reeves, Municipal Attorney, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jay E. Scanlon was convicted of misdemeanor operating while under the influence. On appeal, he claims that police violated his right to an independent chemical test, that his breath test was an invalid search incident to arrest, and that the municipal ordinance is unconstitutional for a number of reasons. As explained here, we uphold the decisions of the district court and affirm Scanlon's convictions. Facts and proceedings
Anchorage Municipal Code (AMC) 9.28.020.
On November 10, 2007, at 3:46 a.m., Anchorage police arrested Scanlon for operating under the influence. Officer Travis Davison began the DataMaster breath test processing approximately one hour later. The breath test showed that Scanlon's blood alcohol content was .139 percent.
Before trial, Scanlon filed a motion asking to suppress the results of the DataMaster test. He made the same claims that he raises in this appeal. He argued that he had not validly waived his right to an independent test because he did not understand the right. Alternatively, he argued that even if he understood his right to an independent test, Officer Davison interfered with his exercise of that right by intimating that he did not "need" the test. He also argued that the breath test was not a valid search incident to arrest because it was not administered "roughly contemporaneous" to the arrest.
Scanlon also filed a motion to dismiss, arguing that the municipal ordinance he was convicted of violating was unconstitutional based on the same claims that were raised, and rejected, in Valentine v. State.
155 P.3d 331 (Alaska App. 2007), rev'd, 215 P.3d 319 (Alaska 2009).
Judge Clark held an evidentiary hearing to resolve Scanlon's claims. Both Officer Davison and Scanlon testified. After the hearing, Judge Clark issued a written order denying Scanlon's motions. Scanlon was later convicted at a bench trial based on stipulated facts. This appealed followed.
Scanlon understood his right to an independent test and Officer Davison did not interfere with Scanlon's right to the test
Scanlon makes two claims regarding the right to an independent chemical test. First, he asserts that he did not validly waive his right to an independent test because he did not understand the right. Second, he asserts that even if he understood the right, Officer Davison interfered with his exercise of that right.
The record shows that after the DataMaster test was completed, Davison read Scanlon the notice of his right to an independent chemical test. Because Scanlon had questions that suggested he might be confused about his options, Davison explained that the independent test was not required, but that Scanlon could choose to have the test to get independent evidence of his level of intoxication, which could be used to prove or disprove the accuracy of the DataMaster test result. As Davison explained the purpose of the independent test, Scanlon repeatedly said "okay" or "all right." Scanlon ultimately said that he did not want an independent test.
After the evidentiary hearing, Judge Clark rejected Scanlon's claim that he did not understand the right to an independent test. Judge Clark observed that a waiver of the right to an independent test is sufficient if a defendant is notified of the right to the test, is aware that he was arrested for drunk driving, and generally understands that the purpose of the test is to obtain evidence of his blood alcohol level. He concluded after listening to the audio tape of Scanlon's DataMaster processing that Scanlon's waiver of the independent test was valid under this standard.
See Gundersen v. Anchorage, 792 P.2d 673, 677 (Alaska 1990), Zemljich v. Anchorage, 151 P.3d 471, 475 (Alaska App. 2006).
On appeal, Scanlon asserts that it was "[not] evident that [he] generally understood the right [to an independent test]." He contends that Judge Clark's findings were clearly erroneous because "[t]he fact that [Scanlon] asked so many questions of Officer Davison demonstrates that he did not understand the constitutional right to an independent test."
We conclude that the record supports Judge Clark's decision. Scanlon conceded in his motion to suppress that Davison informed him of his right to an independent test. And, as Judge Clark found, the audio recording of Scanlon's processing shows that he "understood that he was under arrest for OUI, and . . . that the purpose of the [independent chemical test] was to obtain independent evidence of [his] blood for testing the alcohol content." In short, Scanlon had the information he needed to knowingly and intelligently waive his right to an independent test.
See Zemljich, 151 P.3d at 476.
Scanlon also claims that Davison interfered with his right to an independent test when he told him he did not "need [the test]." At the evidentiary hearing, Scanlon testified that he interpreted Davison's statement to mean that there was no reason for him to get the test.
In Lau v. State, we explained that the question of whether police interfered with a motorist's decision to obtain an independent test is one of fact. When a motorist asserts that he interpreted the officer's comments or conduct to mean that there was no need to obtain an independent test, the trial court must determine, based on the totality of the circumstances, if the motorist's interpretation was reasonable.
896 P.2d 825 (Alaska App. 1995).
Id. at 828 ("The question of whether the state actively interfered with the right to an independent test is a factual one of whether, under the totality of the circumstances, state conduct prevented the driver from obtaining an independent test that the driver would otherwise have obtained.").
See Hernandez v. State, 28 P.3d 315, 318-19 (Alaska App. 2001).
Judge Clark heard Scanlon and Davison testify at the evidentiary hearing, and he listened to the electronic recording of their conversation about the right to an independent test "several times." He found based on this record that Davison's "brief use of the word `need' could not have been reasonably construed as any kind of advice, given the context in which it was used, and Officer Davison did not interfere in any way with Scanlon's opportunity to take an [independent test]." In other words, Judge Clark agreed with the State's position that when Davison told Scanlon he did not "need" to take the independent test, he was telling Scanlon that, unlike the breath test, the independent test was not required by law. The record supports Judge Clark's finding. Accordingly, we find no error in Judge Clark's conclusion that Davison did not interfere with Scanlon's right to an independent chemical test.
The breath test was a valid search incident to arrest because it was conducted roughly contemporaneous with the arrest
Scanlon contends that the breath test was not a valid search incident to arrest because too much time passed between the time he was arrested for operating while intoxicated and the time that the DataMaster test was administered.
We have held that a breath test constitutes a search. There is no fixed outer limit for the amount of time that may pass between an arrest and a valid search incident to that arrest. However, the search must be conducted "roughly contemporaneous" with the arrest, and any delay must be due to the necessity of the situation. Judge Clark found that the delay of approximately one hour from the time of Scanlon's arrest to the start of the DataMaster processing was reasonable.
See State v. Grier, 791 P.2d 627, 630 (Alaska App. 1990) (citing Burnett v. Anchorage, 634 F. Supp. 1029, 1035-37 (D. Alaska 1986), aff'd, 806 F.2d 1447 (9th Cir. 1986) and Leslie v. State, 711 P.2d 575, 576-77 (Alaska App. 1986)).
United States v. McLaughlin, 170 F.3d 889, 892 (9th Cir. 1999); cf. United States v. Edwards, 415 U.S. 800, 801, 804-05, 94 S. Ct. 1234, 1236, 1237-38, 39 L. Ed. 2d 771 (1974) (search of clothing incident to arrest valid even though ten hours had elapsed because police could not provide prisoner with other clothing until business hours the following day); United States v. Caruso, 358 F.2d 184, 185 (2nd Cir. 1966) (search of clothing incident to arrest valid even though six hours had elapsed because defendant and clothing were continuously in custody from the moment of arrest); Lemon v. State, 514 P.2d 1151, 1158 (Alaska 1973) (delay between arrest and search of clothing reasonable where it was due to the necessity of procuring other clothing for the defendant).
State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001); Lemon, 514 P.2d at 1158.
Most of this delay occurred because the DataMaster at the police substation where Davison first took Scanlon was in use and would not soon be available. Davison decided to transport Scanlon to the jail about nine blocks away, only to find, after completing the fifteen-minute observation period, that the jail's DataMaster was not functioning properly. Davison transported Scanlon back to the substation, and, as soon as the DataMaster machine became available, returned to the processing room and again observed Scanlon for the required fifteen minutes before administering the breath test. There was also an approximate twenty minute delay before Davison left the scene of the traffic stop, because Davison helped arrange for a tow truck for Scanlon's vehicle and for transportation for Scanlon's passenger.
W e have previously explained that if a breath test is conducted in compliance with the applicable municipal ordinance or statutes, then it is a "reasonable search under the constitution because it is incident to arrest." In this case, the arrest and search were part of a continuous, uninterrupted course of events that were integral to the custodial process involved in a lawful OUI arrest. Judge Clark found that Davison acted in good faith and took reasonable steps to administer the DataMaster in a timely manner. He concluded that, under the circumstances, the search was roughly contemporaneous to the arrest, and that the delay in the breath test was due to the necessity of the situation. The record supports Judge Clark's ruling.
See Burnett v. Anchorage, 678 P.2d 1364, 1368 (Alaska App. 1984) (when a breath test "is conducted in compliance with AMC 9.28.022 or AS 28.35.031 — 032, we are satisfied that it is a reasonable search under the constitution because it is incident to arrest").
Scanlon argues that Davison improperly delayed the test by beginning to fill out paperwork while waiting for a tow truck instead of driving immediately to the substation to begin the test. But paperwork is a required part of an OUI investigation, and Davison testified that police officers often initiate this paperwork in the field rather than at the testing site to avoid delaying other officers and arrestees at the jail.
We conclude that Judge Clark did not err when he found that the breath test was a valid search incident to arrest under the circumstances.
Scanlon is not entitled to any relief under the Supreme Court's decision in Valentine
As already explained, Scanlon filed a second motion in the district court seeking to dismiss the case based on the claims of error that had been raised in Valentine. Judge Clark "confirmed with Scanlon's attorney that there were no issues presented in this case other than those [already] presented to the Alaska Court of Appeals, and there was no argument to distinguish this case from the holding in Valentine." Based on this, Judge Clark did not further analyze the issues, but denied the motion to dismiss based upon our holding in Valentine.
The claims that Scanlon adopted from Valentine are: (1) the municipality's drunk driving ordinance is unconstitutionally vague and violates due process by failing to provide a reasonable standard to guide persons in their conduct; (2) the ordinance is overbroad and denied him substantive due process; (3) the ordinance imposes criminal liability without proof of mens rea; (4) the ordinance creates impermissible presumptions; (5) the ordinance violated his constitutional right to an independent chemical test; and (6) the ordinance denies accused motorists equal protection under the law.
At the time Scanlon filed his motion to dismiss, the petition for hearing in Valentine was pending in the supreme court. While Scanlon's case was pending in this court, the supreme court issued its opinion. Initially, when granting the petition for hearing, the supreme court had agreed to review all of the issues that we had resolved; but ultimately the supreme court found that it had — with one exception — improvidently granted review on Valentine's claims of error.
Valentine v. State, 215 P.3d 319 (Alaska 2009).
Id. at 322 n. 8.
The only issue the supreme court addressed was whether the state statute violated due process by excluding "delayed absorption" evidence in a prosecution under AS 28.35.030(a)(1) that relies on a chemical test result. The supreme court ruled that exclusion of delayed absorption evidence under these circumstances violated the motorist's right to due process. But unlike the state statutes, the municipal operating under the influence ordinance has no provision excluding delayed absorption evidence when a motorist is prosecuted under an "under the influence" theory. Consequently, the supreme court's decision in Valentine does not apply to Scanlon's case.
Id. at 322.
Id. at 327.
AMC 9.28.020.B.1.
Because the supreme court did not disturb our resolution of the remaining issues raised in Valentine, and because Scanlon has not advanced any reasons why we should reverse the decision, Valentine disposes of Scanlon's final claims of error. In Erickson v. State, we explained that
950 P.2d 580 (Alaska App. 1997).
Under the doctrine of stare decisis, a litigant who asks an appellate court to 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 demonstrate that more good than harm would result from a departure from precedent.
Id. at 587 (internal quotation marks and citations omitted).
Scanlon has not met this burden.
Conclusion
The district court's judgment is AFFIRMED.