Summary
holding that the State was not required to demonstrate compliance with 13 AAC 63.100, regarding initial certification and calibration of newly acquired breath testing instruments, in order to establish foundational admissibility of breath test result
Summary of this case from Brink v. StateOpinion
Court of Appeals No. A-8884.
September 20, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood and Randy M. Olsen, Judges. 4FA-02-1543 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Charles W. Westby was convicted of felony driving while under the influence, driving with a revoked license, and second-degree failure to stop at the direction of a peace officer. He was sentenced to a presumptive 3-year term for his felony offense and an additional 2 months to serve on each of his misdemeanor offenses.
AS 28.35.030(a), (n).
AS 28.15.291(a)(1).
AS 28.35.182(b).
Westby raises several claims on appeal. First, he argues that his stop was illegal and that the superior court should have suppressed the evidence against him. Second, he argues that the court should have dismissed his indictment and excluded his breath test result at trial because the State failed to show it had followed the required procedures for ensuring the accuracy of the breath test. Third, he argues that the court was clearly mistaken in imposing his misdemeanor sentences consecutively. Fourth, he argues that the felony driving while under the influence statute violates the ex post facto clauses of the state and federal constitutions. For the following reasons, we reject these claims and affirm Westby's conviction and sentence.
U.S. Const. art. I, § 10; Alaska Const. art. I, § 15.
Facts and proceedings
On May 18, 2002, Fairbanks Police Officer Kurt G. Lockwood was heading to work in an unmarked vehicle, traveling at the speed limit of 55 miles per hour, when he spotted a gray Subaru pass him on the right-hand side at an "excessive speed." Officer Lockwood estimated that the Subaru was traveling 65 miles per hour.
Officer Lockwood observed the Subaru stop abruptly at a red light. The car in front of the Subaru made a legal right-hand turn at the red light and the Subaru followed, without stopping or signaling. Officer Lockwood then observed the Subaru accelerate to about 55 miles per hour in a 40 mile-per-hour zone. After the Subaru merged right without signaling, Officer Lockwood activated his emergency lights.
The Subaru's driver and passenger turned and looked at Officer Lockwood but the vehicle did not pull over. Instead, the driver made such a wide turn onto a side street, again without signaling, that he drove in the oncoming lane for about twenty yards. At that point, Officer Lockwood activated his siren in addition to his emergency lights. The Subaru turned again, this time without stopping at a stop sign. Eventually the Subaru came to a stop in a trailer park. Officer Lockwood contacted the driver, Westby, in the trailer park. The contact resulted in Westby being charged with four driving offenses, including felony driving while under the influence.
Before trial, Westby filed a motion to suppress, arguing that his stop was illegal. At an evidentiary hearing on that motion, Officer Lockwood testified to the facts recounted above. Westby provided a different version of events. He testified that he passed a white Jeep Cherokee that was traveling below the speed limit, at about 40 miles per hour. He said the Jeep then tailgated him and he thought the driver was "some kind of road raging guy." Westby said he did not realize the Jeep was being driven by a police officer until the officer contacted him at the trailer park. Westby denied committing any traffic violations. He said he is careful not to speed or commit other traffic infractions because he does not have a valid driver's license.
Superior Court Judge Mark I. Wood found Officer Lockwood's testimony more credible and denied Westby's motion to suppress.
Westby then moved to dismiss the indictment, arguing that it was flawed because the State had not presented the grand jury with any evidence to show that his breath test had been performed according to methods approved by the Department of Public Safety. Judge Wood denied that motion without comment.
During trial, Westby asked the court to exclude the result of his breath test because the State had not presented any evidence that a qualified person had verified the calibration of the breath test machine when it was first certified for use by the state, as required by 13 AAC 63.100(a)-(b). Judge Wood concluded that the certified documents offered by the State — which showed that the calibration of the machine had been verified within a month before and after Westby's test — provided adequate foundation for admission of the breath test result.
A jury convicted Westby of driving while under the influence, driving with a revoked license, and second-degree failure to stop at the direction of a peace officer. (The State dismissed the charge of failure to stop for a stop sign.) Superior Court Judge Randy M. Olsen sentenced Westby to a 3-year presumptive term on the felony drunk driving charge, and to consecutive terms of 2 months to serve on each of the misdemeanor charges. At the sentencing hearing, Judge Olsen rejected Westby's pro se claim that the felony drunk driving statute violates the ex post facto clause.
Westby, through his attorney, appeals his conviction and sentence. He has also filed a pro se brief renewing his claim that the felony drunk driving law violates the ex post facto clause.
Discussion
Did the trial court err in denying Westby's motion to suppress?
As noted earlier, at the evidentiary hearing on Westby's motion to suppress, Officer Lockwood testified that he had observed Westby commit multiple traffic violations, namely speeding, failing to signal, failing to stop at a stop sign, and failing to stop his vehicle at the direction of a peace officer. Westby denied that he had committed any traffic violations. Judge Wood found Officer Lockwood more credible, and concluded that the stop was justified.
Westby argues that Judge Wood had no objective basis to find Officer Lockwood's testimony more credible because there was no electronic recording of the stop. He asserts that the judge must have believed Officer Lockwood's testimony over his testimony simply because Lockwood was a police officer and Westby was a criminal defendant facing a felony charge.
This claim finds no support in the record. Judge Wood believed Westby's testimony that he did not know the Jeep following him was being driven by a police officer. But for several reasons that he articulated in the record, Judge Wood found Officer Lockwood's testimony that Westby had committed several traffic violations more credible than Westby's testimony that he had committed no violations. First, Judge Wood found that Officer Lockwood had no motive to fabricate. Second, he found it likely — given that Officer Lockwood was close to being late for work — that Officer Lockwood was driving at about the 55 mile-per-hour speed limit when he observed Westby speeding by, rather than 40 miles per hour as Westby had claimed. Third, he found that Westby had a motive to lie because he was facing a presumptive sentence for felony driving while under the influence. Fourth, he found Westby's testimony less credible because Westby testified largely in terms of habit, using phrases such as "I always drive" and "I always do," instead of testifying about the incident in question. Westby has not challenged these factual findings, and they provide an adequate basis for Judge Wood's credibility ruling. We therefore find no merit to Westby's claim that Judge Wood clearly erred by finding Officer Lockwood more credible.
Is Westby entitled to dismissal of the indictment?
Under AS 28.35.033(d), if the State establishes at trial that a breath test has been performed according to methods approved by the Department of Public Safety, "there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary." Westby argues that Judge Wood should have dismissed the indictment because the State failed to present evidence to the grand jury showing that his breath test was performed according to methods approved by the Department.
Westby did not designate the transcript of the grand jury proceedings as part of the record on appeal. Without a transcript, we cannot verify Westby's version of what occurred in the grand jury room or independently evaluate what effect the error, if any, had on the grand jury's decision. We therefore conclude that Westby has waived this claim. Was the breath test result improperly admitted at trial?
See Bertilson v. State, 64 P.3d 180, 185 (Alaska App. 2003).
Westby argues that his breath test result was improperly admitted at trial because the State did not present evidence that the Department of Public Safety verified the calibration of the breath test machine when it was first certified for use by the state.
Under 13 AAC 63.100, the scientific director of the state's breath and blood alcohol testing program, or a qualified person designated by the director, must (1) verify that a new breath test instrument is properly calibrated, and, if it is, certify the instrument for use in the state; (2) verify the accuracy of the calibration at intervals not to exceed sixty days; and (3) maintain a record of each verification of calibration of each instrument certified for use in the state.
Westby argues that his breath test result should have been suppressed because the State failed to offer evidence to show that it had complied with (1) — that is, it failed to present evidence that the Department of Public Safety had verified the calibration of the breath test instrument when it was first certified for use in the state. But this evidence was not necessary to establish a foundation for admission of the breath test result. Proof that the instrument's calibration had or had not been verified when the state first certified the machine, perhaps years earlier, had little relevance to the accuracy of the instrument on the date of Westby's breath test.
See Wester v. State, 528 P.2d 1179, 1183 (Alaska 1974) (holding that the rules of evidence govern the method of proving that a breath test instrument has been calibrated in accordance with approved methods).
Westby's breath test was performed on May 18, 2002. At trial, the State offered certified documents to show that the calibration of the instrument had been verified by a qualified person on May 3, 2002, and again on June 19, 2002 — well within the statutory requirement that the machine's calibration be verified at intervals not to exceed sixty days. Westby offered no evidence to suggest that the machine was not working properly during this period. We therefore conclude that Judge Wood properly rejected Westby's challenge to this evidence.
Was the court clearly mistaken in imposing consecutive sentences?
At sentencing, the State advocated 6-month consecutive terms for each of Westby's two misdemeanor offenses (driving with a revoked license and second-degree failure to stop at the direction of a peace officer). The court sentenced Westby to 2 months to serve for each of those offenses and imposed those terms consecutively to the presumptive term for felony driving while under the influence.
Westby argues that Judge Olsen was clearly mistaken in not imposing at least some of his sentence for his misdemeanor convictions concurrently with his 3-year presumptive term for felony driving while under the influence. To support this claim, Westby observes that all his offenses arose out of one criminal episode and that the author of his pre-sentence report recommended a 3-year presumptive term.
At the time Westby committed his driving offenses, AS 12.55.025 expressed the legislature's preference for consecutive sentencing. However, the statute gave courts discretion to impose concurrent sentences when sentencing a defendant for two or more crimes if the crimes violated similar societal interests, were part of a single, continuous criminal episode, or there was not a substantial change in the objective of the criminal episode.
Former AS 12.55.025(e), (g) (2002); Mancini v. State, 841 P.2d 184, 186-87 n. 1 (Alaska App. 1992); State v. Andrews, 707 P.2d 900, 902 (Alaska App. 1985).
Former AS 12.55.025(g)(1)-(3) (2002).
Although Westby's offenses were part of a single criminal episode, Judge Olsen could reasonably conclude that the offenses of driving with a revoked license and failing to stop at the direction of a peace officer violated societal interests sufficiently distinct from driving while under the influence to warrant consecutive terms of imprisonment. Judge Olsen therefore was not clearly mistaken in imposing the misdemeanor sentences consecutively to Westby's 3-year presumptive term.
Judge Olsen also was not clearly mistaken in imposing a sentence that exceeded the sentence recommended by the Department of Corrections' pre-sentence report. The Department of Corrections is not required to make recommendations as to the length of sentence and, if it does, those recommendations are not binding on the sentencing court.
See Alaska R. Crim. P. 32.1(b)(1) (directing the Department of Corrections to prepare a presentence report for felony sentencings containing the defendant's criminal history and "any other information about the defendant's characteristics, financial condition, and the circumstances affecting the defendant's behavior that may be helpful in fashioning the defendant's sentence, a victim impact statement, and any other information required by the judge").
The offenses in this case and Westby's criminal history justify a composite sentence in excess of the 3-year presumptive term. Westby has a lengthy criminal history, including four prior convictions for driving while intoxicated and convictions for robbery, fourth-degree misconduct involving a controlled substance, and driving with a revoked license. He was still on probation for a driving while under the influence offense when he committed his current crimes. And after his arrest in this case, while he was on release to a third-party custodian, he fled to Minnesota. Given this record, we conclude that Westby's composite sentence is not clearly mistaken.
See Farmer v. State, 746 P.2d 1300, 1301-02 (Alaska App. 1987).
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
Does the felony driving while under the influence statute violate the ex post facto clause?
In his pro se brief, Westby argues that the felony driving while under the influence statute violates the ex post facto clauses of the state and federal constitutions. He points to language in AS 28.35.030(n) providing that a person convicted of driving while under the influence is guilty of a felony if he has been previously convicted two or more times since January 1, 1996. Westby argues that this provision is unconstitutional because it went into effect in September 2001 but encompassed conduct that occurred before that time ( i.e., since January 1, 1996).
U.S. Const. art. I, § 10; Alaska Const. art. I, § 15.
This issue was resolved by Danks v. State. Danks was convicted of operating a motor vehicle while under the influence and, because he was a third-time offender, his license was revoked for a mandatory 3 years. Danks argued that the 3-year revocation provision in the statute was unconstitutional as an ex post facto law because his first two driving while intoxicated offenses had occurred before the revocation provision was enacted. The Alaska Supreme Court rejected this claim, adopting, as a matter of state law, the reasoning of the United States Supreme Court:
619 P.2d 720 (Alaska 1980).
Id. at 721.
Id. at 722.
[T]he fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed [does not make] the Act invalidly retroactive. . . . The sentence as a fourth offender or habitual criminal is not to be viewed as . . . additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.
Id. (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948)) (citations omitted); see also Carter v. State, 625 P.2d 313, 315 (Alaska App. 1981) (accord).
Id. (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948)) (citations omitted); see also Carter v. State, 625 P.2d 313, 315 (Alaska App. 1981) (accord).
Westby argues that Danks is distinguishable because it involved a license revocation proceeding, not a criminal conviction. But the reasoning in Danks applies equally in Westby's case, and we have previously relied on Danks to uphold a statute that increased a defendant's punishment for a crime based on convictions that were entered before the statute was enacted. Accordingly, we reject Westby's constitutional claim.
See Lemon v. State, 654 P.2d 277, 278 n. 2 (Alaska App. 1982).
Conclusion
Westby's conviction and sentence are AFFIRMED.