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THE COURT OF APPEALS OF THE STATE OF ALASKA
TED FEE, )
) Court of Appeals No. A-3868
Appellant, ) Trial Court No. 3PA-S90-1446CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1200 - February 7, 1992]
______________________________)
Appeal from the District Court of the State
of Alaska, Third Judicial District, Palmer,
Peter G. Ashman, Judge.
Appearances: Cynthia Drinkwater, Assistant
Public Defender, Palmer, and John B. Salemi,
Public Defender, Anchorage, for Appellant.
William L. Estelle, Assistant District
Attorney, Steven H. Morrissett, District
Attorney, Palmer, and Douglas B. Baily,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Ted Fee was convicted upon his plea of no contest of
the charge of refusing to submit to a chemical test of his
breath. AS 28.35.032(f). He reserved his right to appeal the
district court's denial of his motion to suppress the evidence of
his alleged refusal to take the Intoximeter test. See Oveson v.
Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978); Cooksey v. State,
524 P.2d 1251 (Alaska 1974).
Fee was arrested for driving while intoxicated (DWI),
AS 28.35.030, by Alaska State Trooper William McKillop. McKillop
took Fee to the Palmer trooper station, where he asked Fee to
submit to a breath test of his blood alcohol level on the
Intoximeter machine.
At his request, Fee was given the opportunity to
telephone his attorney in Fairbanks. Following Fee's phone call
to his attorney, McKillop read Fee the implied consent notice,
informing him of his legal obligation to submit to a chemical
test of his breath. Fee stated that he was willing to take the
test if his attorney came to the station and advised him in
person to do so, but that he would not take the test without
having his attorney present. McKillop took this response to be a
refusal to take the test.
Fee argues that all evidence of his alleged refusal to
take the Intoximeter test should have been suppressed under the
rule of Graham v. State, 633 P.2d 211 (Alaska 1981). In Graham,
the supreme court held that:
[W]here an arrested person refuses to submit
to a breathalyzer test, the administering
officer must inquire into the nature of the
refusal and, if it appears that the refusal
is based on a confusion about a person's
rights, the officer must clearly advise that
person that the rights contained in the
Miranda warning do not apply to the
breathalyzer examination.
633 P.2d at 215 (applying Miranda v. Arizona, 384 U.S. 436
(1966)). The Graham rule applies only in those cases in which
the arrestee has been advised by an officer of his or her Miranda
rights prior to being asked to submit to chemical testing. Lively
v. State, 804 P.2d 66, 69 (Alaska App. 1991). McKillop read Fee
his Miranda rights while transporting him to the trooper station.
The state appears to concede that the Graham rule
applies in this case. The state argues only that Fee has not
sustained his burden of showing that he was in fact confused by,
and failed to appreciate the distinction between his Miranda
right to decline to answer any questions without having an
attorney present and the requirement that he decide without the
presence of his attorney whether to submit to Intoximeter
testing.
The state's apparent concession that the Graham rule
controls here is well founded. Although Graham was an adminis-
trative appeal of a civil driver's license revocation by the
Department of Public Safety, we see no reason not to extend the
rule announced in that case to cases involving criminal charges
for refusal to submit to chemical testing. The Graham rule arose
out of the supreme court's concern that in cases in which Miranda
warnings had been read, "the arrested person may be misled into
believing that he or she either has a right to have counsel
present before deciding whether to take the test, or can refuse
to submit to the test without suffering the threatened
consequences of that refusal." 633 P.2d at 215. The danger of
confusion engendered by the Miranda warnings is even more
compelling when the refusal leads to criminal charges than when
the sanction is an administrative driver's license revocation. A
person who refuses to submit to chemical testing because of
confusion caused by the arresting officer's advisement of his or
her Miranda rights cannot be held criminally liable for that
refusal.
The state points out that even when it has been
established that the defendant was read the Miranda rights before
being asked to submit to a breath test, the defendant has the
burden of showing that he or she was in fact confused about those
rights. Graham, 633 P.2d at 215. The state argues that Fee has
failed to sustain this burden. We disagree.
The DWI processing videotape played at the hearing on
Fee's motion to suppress clearly indicates that Fee presented
sufficient evidence to show that Fee was in fact confused about
his rights. In response to the reading of the implied consent
form and the trooper's requests that he take the Intoximeter
test, Fee stated repeatedly that he was willing to take the test
upon his attorney's advice and that he wanted only to wait until
his attorney arrived at the station. Fee twice asserted that it
was his "right" to wait for his attorney before deciding whether
to take the test. Trooper McKillop did not respond directly to
the first of these assertions. The second time Fee said, "I'm
not going to do it until my attorney is present . . . that's my
right," McKillop responded, "No, it is not your right, sir."
When Fee then said, "Yes, it is, sir," McKillop did not
explicitly inform Fee that he had no right to have his attorney
present when deciding whether to take the test. Fee's apparent
confusion about the interplay between his right to remain silent
and the request that he take the Intoximeter test is further
demonstrated by the following exchanges, all recorded on the
videotape:
McKILLOP: We are not going to wait for
your attorney to get here from
Fairbanks.
FEE:So what do you want me to do, man,
confess?
McKILLOP: No, I want you to decide
whether or not you're going to take the
Intoximeter test.
. . . .
McKILLOP: Well, we're not going to sit
here and wait for your attorney to get
here from Fairbanks.
FEE:So what do you want me to do?
Confess that I killed 255 people?
McKILLOP: No, I want you to tell me
whether or not you're going to take this
Intoximeter.
. . . .
McKILLOP: And, we are not going to wait
for (your attorney).
FEE:And I'm not going to let you use
anything I may or might say against me,
man, in a court of law.
The state argues that Trooper McKillop satisfied
the requirements of the Graham rule by informing Fee that he
would not wait for Fee's attorney to arrive from Fairbanks and
that Fee had to decide on his own whether to take the test.
District Court Judge Peter G. Ashman essentially adopted this
view. Judge Ashman accepted Fee's claim of confusion over his
Miranda rights; in Judge Ashman's view, however, Fee's confusion
over his rights resulted not from the lack of an adequate
explanation by McKillop, but rather from the fact that Fee was
being "sort of oppositional" and did not listen to McKillop's
advice. Finding that McKillop's statements to Fee would have
been sufficient to inform a reasonable person in Fee's shoes that
the test was mandatory, Judge Ashman concluded that McKillop had
substantially complied with Graham.
Judge Ashman erred in concluding that McKillop's
explanation complied with the requirements of Graham. The Graham
rule is triggered when a DWI arrestee who has been given Miranda
warnings refuses to submit to a breath test under circumstances
indicating that the refusal may stem from the arrestee's mistaken
belief that, under Miranda, there is a right to decline the test
or to insist on the presence of counsel. Once triggered, the
Graham rule expressly requires the arresting officer to "clearly
advise [the arrestee] that the rights contained in the Miranda
warning do not apply to the breathalyzer examination." Graham,
633 P.2d at 215. Thus, under Graham, it is not enough for the
officer to advise the arrestee that the breath test is mandatory;
the officer must also specifically explain that, under the law,
the Miranda rights to silence and to the presence of counsel do
not apply to the breath test.1
In Cameron v. Commonwealth, 581 A.2d 689, 690-91 (Pa.
Commw. 1990), the court found that statements similar to the
statements which Trooper McKillop made to Fee were insufficient.
In Cameron, the court was interpreting a decision by the
Pennsylvania Supreme Court in Department of Transportation,
Bureau of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa. 1989), a
case in which the Pennsylvania Supreme Court placed an obligation
on the police to clarify the defendant's rights similar to the
obligation which the Supreme Court of Alaska placed on the police
in Graham. In Cameron, the court stated:
We find that none of the statements of
record made by the Township Police constitute
a qualifying instruction as contemplated by
O'Connell. Absent from all of these state-
ments is a clear communication that the right
to counsel referred to in Miranda warnings is
inapplicable to a breathalyzer test. Telling
an arrestee that a lawyer need not be present
or that consulting with an attorney or anyone
else is not necessary before taking the test
are insufficient instructions. Telling an
arrestee that he must make this decision on
his own is also insufficient. None of these
statements informs an arrestee adequately of
the extent of the right to counsel, nor does
anyone [sic] of them clarify for an arrestee
that the right is inapplicable to chemical
testing for intoxication. Clearly indicating
that the right to counsel does not extend to
a breathalyzer test achieves the O'Connell
court's intent to insure that arrestees who
exhibit confusion over their Miranda rights
are not being misled into making uninformed
and unknowing decisions to take the test.
581 A.2d at 690-91.
Because we find that Fee was not clearly advised that
his Miranda rights did not apply to the request that he submit to
an Intoximeter testing, we REVERSE Fee's conviction for refusal
to submit to a chemical test.2
_______________________________
1. Judge Ashman found that Fee was being
argumentative and that a reasonable person in Fee's position
would have understood that he was required to take the
Intoximeter test. Regardless of the reasonableness of Fee's
confusion, McKillop was obligated to comply with Graham by
specifically advising Fee that his Miranda rights did not apply
to the breath test. We emphasize, however, that a different
issue would be presented if McKillop's explanation to Fee had
complied with Graham, but Fee had nonetheless continued to be
argumentative, and had thus remained confused. Because this
latter issue does not arise under the facts of this case, we do
not address it.
2. Our resolution of this issue makes it unnecessary
for us to consider Fee's argument that the police did not afford
him an opportunity to consult privately over the phone with his
counsel.
