Crim v. Municipality of Anchorage. (9/29/95) ap-1439
NOTICE: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring typographical or other formal errors to
the attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
STEPHEN D. CRIM, )
) Court of Appeals No. A-5507
Appellant, ) Trial Court No. 3AN-M94-
1434CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1439 - September 29,
1995]
________________________________)
Appeal from the District Court, Third
Judicial District, Anchorage, Stephanie
Rhoades and Michael L. Wolverton, Judges.
Appearances: Michael B. Logue, Gorton &
Associates, Anchorage, for Appellant. Carmen
E. ClarkWeeks, Deputy Municipal Prosecutor,
Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
The district court, sitting without a jury, convicted
Stephen D. Crim of driving while intoxicated. Crim appeals,
contending that the court erred by denying his motion to suppress
evidence of his breath test result. We affirm.
On the evening of February 22, 1994, Crim sped through
the gate to Elmendorf Air Force Base without stopping and knocked
over two traffic cones. Anchorage Police Officer Rodney Ryan
arrested Crim for driving while intoxicated and brought him to
the police station for processing. At the station, after the
observation period, Crim submitted to the breath test. Officer
Ryan then read to Crim the notice of right to independent test
while they waited for the intoximeter machine to process the
breath sample. Crim answered without hesitation and apparently
without confusion that he did not want to have an independent
test performed. Several minutes later, Ryan informed Crim that
his breath test result was 0.161.
Crim later moved to suppress his breath test result,
arguing that he had not validly waived his right to an
independent test, because he had not known his breath test result
when Ryan informed him of the right to an independent test.
After conducting an evidentiary hearing and reviewing the tape of
Crim's processing at the police station, District Court Judge
Stephanie Rhoades denied Crim's motion. Judge Rhoades found that
Crim, although "clearly upset and intoxicated," had been "capable
of listening, understanding and appropriately responding to the
many questions put to him by law enforcement. He knew where he
was and what was happening to him." The judge found that Crim
had been informed of his right to an independent test and had
been given "a reasonable opportunity to test the accuracy of the
intoximeter." Judge Rhoades concluded that Crim had knowingly
and voluntarily declined the offer of an independent test,
notwithstanding the fact that he had not yet learned the
intoximeter result. The intoximeter result was introduced in
evidence at Crim's trial, and Crim was convicted. On appeal,
Crim contends that Judge Rhoades erred by not suppressing the
breath test result.
A driver arrested for driving while intoxicated has the
due process right under the Alaska Constitution to a reasonable
opportunity to challenge the accuracy of the police-administered
breath test. Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995).
One way for the police to satisfy the demands of due process is
to "effectively comply" with AS 28.35.033(e), the statute
establishing a right to obtain an independent test of the
driver's alcohol level.1 Effective compliance requires, in part,
that the police give the defendant "clear and express notice" of
this statutory right. Gundersen v. Anchorage, 792 P.2d 673, 676-
77 (Alaska 1990) (quoting Anchorage v. Serrano, 649 P.2d 256, 258
n.5 (Alaska App. 1982)).
A driver may relinquish the right to challenge the
breath test, but only by a knowing and voluntary waiver of that
right. Gundersen, 792 P.2d at 677. If the driver -- due to
intoxication or any other reason -- fails to acquire "a basic
understanding of the right to an independent test," then the
driver's decision to decline the test cannot be considered a
knowing and intelligent waiver. Ahtuangaruak v. State, 820 P.2d
310, 311 (Alaska App. 1991).
In this case, Judge Rhoades specifically found that
Crim had acquired a basic understanding of the right to an
independent test, had been given "a meaningful opportunity to
exercise his right to an independent chemical test," id. at 311,
but had knowingly and voluntarily declined the opportunity.
Judge Rhoades' factual findings are not clearly erroneous. The
evidence presented below established that Ryan fully explained
Crim's right to obtain an independent test; Crim understood the
right and declined to exercise it.
Crim nevertheless argues that, without knowing the
result of his mandatory breath test, he could not have assessed
the potential advantages and disadvantages of availing himself of
the right to an independent test. Crim maintains that, for this
reason, he could not have knowingly and intelligently waived his
right to the independent test. In advancing this argument, Crim
essentially asks us to declare as a matter of law that no DWI
arrestee can knowingly and intelligently decline to take an
independent blood test before being apprised of the results of
the mandatory breath test. But the need for such a rule is far
from apparent.
The potential significance of a breath test is hardly
the type of subtlety that will be lost on a typical DWI arrestee.
Well before the result of a breath test is disclosed, the
arrestee will ordinarily understand that it could have
potentially devastating consequences and that it will not
necessarily be accurate. This holds true for drunk and sober
arrestees alike; if anything, a sober person mistakenly arrested
for DWI will have more reason than an intoxicated arrestee to
fear the consequences of an inaccurate breath test, and more
reason to appreciate the potential benefits of an independent
test.
Thus, in practical terms, a rule categorically
declaring all pre-result waivers involuntary seems both
artificial and uncalled for. As in other situations involving
the relinquishment of legal rights, the totality of the
circumstances should govern the determination of the
voluntariness of a waiver of the opportunity to take an
independent test.
In the present case, the fact that Crim did not yet
know his test result was certainly one factor among many for the
court to consider in determining whether Crim's decision to
decline an independent test was knowing and voluntary.2 However,
there is nothing in the record suggesting that Crim's lack of
knowledge of his own test result impaired his ability to
understand the purpose of the test he had already taken or the
nature of his right to an independent chemical test.
Crim does not claim to have been misled as to the
possibility of failing his breath test. The circumstances of
his case provide no basis for concluding that he was incapable of
understanding that possibility and its potential significance to
his case. To the contrary, even without knowing the actual
result of his test, Crim appeared to understand the gravity of
his situation, that he had been arrested for driving while
intoxicated, that the police had taken a sample of his breath for
a reading of his alcohol level, and the significance of an
opportunity to have an independent test of his alcohol level.3
The record as a whole establishes that Crim voluntarily
declined the offer of an independent blood test. Judge Rhoades
did not err in denying Crim's motion to suppress.
We AFFIRM the conviction.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEPHEN D. CRIM, )
) Court of Appeals No. A-5507
Appellant, )
)
v. ) O R D E R
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. )
______________________________)
Trial Court No. 3AN-M94-1434 Cr.
Before: Bryner, Chief Judge, Coats and Mannheimer, Judges.
IT IS ORDERED:
1. Memorandum Opinion and Judgment No. 3249 issued on
September 20, 1995, is WITHDRAWN.
2. Opinion No. 1439 is issued on this date in its
place.
Entered by direction of the Court at Anchorage, Alaska,
on September 29, 1995.
CLERK OF THE COURT OF APPEALS
_____________________________
JAN HANSEN
_______________________________
1. AS 28.35.033(e) reads in part: "The person tested may have a physician, or
a qualified technician, chemist, registered nurse, or other qualified
person of the person's own choosing administer a chemical test in addition
to the test administered at the direction of a law enforcement officer."
2. It would certainly have been preferable for Ryan to have waited for the
test result before asking Crim if he wanted an independent test. The
record indicates that standard procedure calls for DWI arrestees to be
informed of the right to an independent test only after the result of the
mandatory breath test has been received. On cross-examination, Ryan, a new
officer, acknowledged that he had not followed proper procedure with Crim.
3. Furthermore, Crim does not claim that the police in any way suggested that
his initial decision to decline the independent test was final -- that he
could not reconsider his decision after he learned the result of his breath
test. Yet Crim made no request for, or even inquiry about, an independent
test after the result of his breath test was disclosed.
