NOTICE: This opinion is subject to
formal correction before publication in the
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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN SPINKA, )
) Court of Appeals No. A-4609
Appellant, ) Trial Court No. 3KN-S91-1784CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1324 - November 12, 1993]
______________________________)
Appeal from the District Court, Third
Judicial District, Kenai, Lynn H.
Christensen, Magistrate.
Appearances: Robert Merle Cowan, Law
Offices of Cowan & Gerry, Kenai, for
Appellant. Joseph N. Levesque, Assistant
District Attorney, Sharon A. Illsley,
District Attorney, Kenai, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
In this case, John Spinka entered a no contest plea to
the charge of refusing to submit to a breath test, reserving,
pursuant to Cooksey v. State, 524 P.2d 1251 (Alaska 1974), the
right to appeal the district court's denial of his motions to
dismiss the refusal charge and to suppress evidence of his
refusal. Upon Spinka's plea to the refusal charge, the state
dismissed the DWI charge arising from the same incident.
In accepting Spinka's plea, Magistrate Lynn H.
Christensen, in accordance with Oveson v. Anchorage, 574 P.2d
801, 803 n.4 (Alaska 1978), concluded that the issues Spinka
sought to reserve for appeal would be dispositive of the refusal
charge; however, Magistrate Christensen evidently did not
consider whether the issues would also be dispositive of the
companion DWI charge.
In our view, the unique relationship between charges of
DWI and refusal arising from the same incident requires that an
issue be dispositive of both the DWI and refusal charges before
that issue can be considered dispositive under Oveson.1 Because
it appears from the record that the issues Spinka seeks to raise
might not be dispositive of his DWI charge, we dismiss this
appeal and remand this case for reconsideration of the issue by
the district court.
In deciding whether the issues Spinka seeks to reserve
for appeal would be dispositive of the DWI charge, the court
should apply the standard set out in Miles v. State, 825 P.2d 904
(Alaska App. 1992). If the court concludes that the issues are
not dispositive, Spinka should be allowed the opportunity to
withdraw his no contest plea on the refusal charge (and, if he
elects to do so, the state should be allowed the opportunity to
reinstate the DWI charge). If the district court concludes that
the issues are dispositive, it should notify this court of its
decision; upon receiving such notice, this court will reinstate
the appeal.
The appeal is DISMISSED.
_______________________________
1. The record in this case indicates that the dismissal of
Spinka's companion DWI charge was an integral part of the
negotiated disposition pursuant to which Spinka entered his
Cooksey plea. Our opinion applies only to such situations. When
a Cooksey plea agreement on a refusal charge makes no provision
for dismissal of a companion charge of DWI and that charge is
dismissed for unrelated reasons, the issue reserved for appeal
need only be dispositive of the refusal charge.
