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THE COURT OF APPEALS OF THE STATE OF ALASKA
GARY L. LAU, )
) Court of Appeals No. A-5301
Appellant, ) Trial Court No. 3KN-S93-
1187CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1413 - June 9, 1995]
________________________________)
Appeal from the District Court, Third
Judicial District, Kenai, Lynn H.
Christensen, Magistrate.
Appearances: Peter F. Mysing, Kenai, for
Appellant. Cynthia M. Hora, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
The district court, sitting without a jury, convicted
Gary L. Lau of driving while intoxicated and fourth-degree
misconduct involving weapons (possessing a firearm inside a
vehicle while intoxicated), both class A misdemeanors. AS
28.35.030; AS 11.61.210(a)(1). Lau appeals, contending that
District Court Magistrate Lynn H. Christensen should have
suppressed the evidence of his breath-alcohol level. We agree
and remand.
Just after midnight on the morning of July 28, 1993,
Soldotna Police Officer Larry Davis was on patrol and saw a pick-
up truck leave a parking lot and enter the highway without its
headlights on. An oncoming car flashed its lights to signal that
the driver of the truck should turn his headlights on, but the
driver did not do so. Davis followed the truck, and when he
observed the truck weaving from side to side, he turned on his
video camera and recorded the truck's erratic driving, including
crossing the center line of the road. Officer Davis pulled the
truck over and noticed that its driver, Lau, smelled of alcohol
and appeared to be intoxicated. At that point, Davis
administered field sobriety tests to Lau. These observations and
tests were captured on video tape and were subsequently admitted
in evidence and played at trial. Davis concluded that Lau was
intoxicated and arrested him. While searching Lau's truck, Davis
found a revolver under the driver's seat. After being arrested,
Lau was transported to the Wildwood Pretrial Facility, where he
submitted to breath testing on the Intoximeter 3000; his breath-
alcohol level was measured at 0.201.
Before trial, Lau moved to suppress evidence of the
Intoximeter result. Lau argued that the state had interfered
with his right to an independent test because another officer had
dissuaded him from taking an independent test after Lau had
already told Officer Davis that he wanted to have a blood test
performed. At an evidentiary hearing on the motion to suppress,
Davis testified that, after he had read aloud the "Notice of
Right to Independent Test" form, Lau had indicated on the form
that he chose to have blood drawn for a test at his own expense.
Officer Davis testified that Sergeant James Wood, a uniformed
corrections officer, was also present at the pretrial facility to
observe Lau, who was being argumentative and potentially
combative. Davis then escorted Lau to the booking area, where
Lau could make telephone calls and arrangements for an
independent test, and left him there with Wood while Davis
completed paperwork in another part of the room. When Davis
returned, Lau stated that he preferred instead to have a blood
test at the state's expense; Davis therefore arranged to summon a
nurse to draw Lau's blood. Davis again left Lau essentially
alone with Wood and resumed his paperwork for the minute or so
that it took the nurse to arrive. But when the nurse arrived,
Lau changed his mind again, telling Davis that he did not want a
blood test. Davis testified that he had not observed anyone do
anything that would have interfered with Lau's opportunity to
obtain a blood test, especially after the nurse was present and
the necessary equipment was ready to draw blood.
Sergeant Wood testified at the hearing that he was
acquainted with Lau and had bowled with him for three years.
Wood recalled that when Davis had left him alone with Lau in the
booking area, Lau had kept asking whether he should undergo an
independent blood test and that Wood had told him that the state
could use the results of a blood test, which were more accurate
than the results of a breath test, against him. However, Wood
denied encouraging or discouraging a blood test. Wood testified
that he believed that Lau had been asking him for advice in the
capacity of a friend and not as a uniformed officer. On cross-
examination, Wood conceded that Lau had later telephoned Wood at
work and thanked Wood for being a friend and helping Lau when Lau
had been arrested. Wood then listened to a tape recording that
Lau had made of that telephone conversation and acknowledged that
it was accurate. On the tape, Wood accepted Lau's thanks for
telling him not to take the blood test with the comment "what are
friends for" and remarked that a blood test "would have killed
you," telling Lau, "you can't beat it."1
Lau testified that he had wanted to take a blood test
when Davis had read him the notice of his right to an independent
test but that Wood had shaken his head, mouthed the word "no,"
and made a hand gesture behind Davis' back while all three were
still in the Intoximeter room. Lau was confused by this behavior
and continued to state he wanted an independent test, but when
Wood and Lau got the opportunity to converse while Davis was
away, Wood told Lau that the blood test would "nail you." When
the nurse arrived and was ready to draw blood, Wood again shook
his head and made a hand gesture; at that time, Lau was convinced
he should not have a blood test and announced he no longer wanted
one. Lau testified that he would have taken the blood test had
it not been for Wood's actions.
Although Magistrate Christensen found that Wood had
directly discouraged Lau from taking an independent blood test,
he denied Lau's motion to suppress. Magistrate Christensen
recognized that if the police dissuade a driver from taking an
independent test, that conduct might amount to impermissible
interference with the driver's right to have an independent test.
Nevertheless, the magistrate found that Wood had been acting as
Lau's friend and not in any capacity as an agent for the police
or the state. The magistrate concluded that Lau's breath test
result should not be suppressed because the state and the police
had acted properly and had not authorized or known about Wood's
advice to Lau.
A driver who has been arrested for driving while
intoxicated has the right to an independent chemical test to
check the accuracy of the police-administered breath test. If
the state interferes with the driver's right to an independent
test, the result of the breath test must be suppressed. Ward v.
State, 758 P.2d 87, 89-91 (Alaska 1988). 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. Gundersen v. State, 762 P.2d 104, 108-10 (Alaska App.
1988), reh'g denied, 769 P.2d 436, 439-40 (Alaska App. 1989),
aff'd on other grounds, 792 P.2d 673 (Alaska 1990).
In this case, Magistrate Christensen found that Wood
had actively talked Lau out of taking the independent breath test
that Lau had earlier decided to take. This finding is not
clearly erroneous. In People v. Underwood, 396 N.W.2d 443 (Mich.
App. 1986), arresting officers talked the defendant out of the
blood test he had demanded by telling him that a blood test was
silly and stupid, would show a higher alcohol level than the
breath test had, and would not prevent the defendant from going
to jail. Based on these facts, the court in Underwood concluded
that the police had deprived the defendant of an opportunity to
obtain an independent test. Id. at 444.
Magistrate Christensen also found that Wood was not
acting in the capacity of a police officer but instead as a
friend. The magistrate specifically found that Davis, the
arresting officer, had properly informed Lau of his right to an
independent test and had neither actively interfered with Lau's
right to decide nor known of Wood's advice that Lau refuse the
blood test. Magistrate Christensen concluded that applying an
exclusionary rule because of Wood's conduct in this case would
not be appropriate because the state's police and prosecutorial
agencies had engaged in no misconduct that warranted deterrence.
The magistrate apparently relied on the fact that Wood had no
"enforcement or prosecutorial responsibilities."
On these facts, we conclude that Wood's conduct must be
attributed to the state. Wood was an on-duty, uniformed
corrections officer guarding Lau as part of his duties at the pre-
trial facility. While Lau was in Wood's sole custody, Wood
actively dissuaded Lau from seeking a blood test. This conduct
cannot be distinguished on the ground that Wood was a corrections
officer rather than a police officer. Whether an arresting
police officer or a jail guard, a government officer having
custody of an arrested driver cannot attempt to dissuade the
driver from exercising the right to an independent blood test.
See Underwood, 396 N.W.2d at 444.
Even if Wood acted in good faith -- that is, even if
Wood was subjectively motivated by friendship for Lau and by his
belief that Lau's interests would be best served if Lau declined
a blood test -- the fact remains that Wood dissuaded Lau from
exercising his rights. Wood was in a position to do this solely
because he was a government officer having custody of Lau; thus,
his actions must be attributed to the state.
We further conclude that suppressing Lau's breath test
result is the proper remedy for Wood's conduct. In Ward, the
supreme court held that exclusion of evidence was the appropriate
remedy for state interference with the right to an independent
test both to deter "future illegal police conduct" and to protect
the "particular[ly] importan[t]" right of a defendant driver to
challenge the result of the police-administered breath test. 758
P.2d at 90-91 (citations omitted). In the context of searches
and seizures, this court has held that the exclusionary rule and
its "police deterrence" rationale apply to the on-duty actions of
state agents and employees even when their specific functions are
not directly related to the enforcement of the law. Lowry v.
State, 707 P.2d 280, 286-87 (Alaska App. 1985). In Lowry, a
private security guard hired by the coroner's office to watch the
defendant's house took a book from the defendant's closet, opened
it, and found handwritten notes that incriminated the defendant.
707 P.2d at 282-83. This court quoted New Jersey v. T.L.O., 469
U.S. 325, 335 (1985), in which the United States Supreme Court
stated that the Fourth Amendment restrained "governmental action"
generally and not merely "operations conducted by the police."
Lowry, 707 P.2d at 285-86. This court concluded that exclusion
of the handwritten notes was the appropriate remedy:
[The guard] clearly either knew or
should have known that his authority to be
present in the Lowry residence derived from a
state agency, the Coroner's Office, and was
limited in scope. The impermissible nature
of [the guard]'s conduct cannot be
characterized as merely technical; nor is
this the type of non-deterrable conduct that
plainly falls outside the purposes of the
exclusionary rule.
Id. at 287.
In this case, the deterent policy of the exclusionary
rule similarly applies to the conduct of state corrections
officers guarding arrested drivers. In addition, Lau's ability
to present a defense at trial was diminished by the denial of a
chance to directly attack the accuracy of the breath test result.
See Ward, 758 P.2d at 91. The breath test result should
therefore have been suppressed.2
The state argues that any error in admitting the breath
test result was harmless. However, Magistrate Christensen was
the sole factfinder in a non-jury court trial. The trial court
is in a better position than this court to reconsider the trial
evidence and determine whether that evidence, absent the
suppressed breath test result, proves Lau's guilt beyond a
reasonable doubt. We therefore remand to the district court for
its further consideration. We do not retain jurisdiction of this
case.
We REMAND.
_______________________________
1 The pertinent portion of the recorded telephone
conversation was as follows:
LAU: Hey, you know, I wanted to thank you for
all the things you did.
WOOD: Oh, okay.
LAU: And hey, especially not, telling me not
to take that blood test.
WOOD: Oh, you bet. You know, what are friends for?
LAU: Because, well, that thing might have
hurt me.
WOOD: Oh, that would have killed you, man.
LAU: It would?
WOOD: I'm telling you.
LAU: Yeah, well, I'm glad you were there to
help me and tell me not, not to do it.
WOOD: I've seen too many of them that think they're
being smart but they're, and it will bite
them
in the ass.
LAU: What's that? To have a blood test.
It'll give them a higher reading?
WOOD: Well, a higher reading, and you can't beat
it.
LAU: You can't beat it, huh?
WOOD: And whatever results you get back, cops will
get a copy of it and use it against you in
court.
LAU: Yeah. Okay, well, I appreciate it.
WOOD: You know, you can beat the other shit, but
you can't beat that.
LAU: Yeah. Yeah. Well, I appreciate you
telling me not to do it.
WOOD: No problem with that.
2 Given our holding, we need not address Lau's alternate
argument for suppressing his breath test result.
