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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES G. NATHAN, )
) Court of Appeals No. A-6635
Appellant, ) Trial Court No. 3AN-96-9443 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1579 - March 27, 1998]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Stephanie Rhoades, Judge.
Appearances: Richard D. Kibby, Anchorage, for
Appellant. Benjamin O. Walters, Jr., Assistant Municipal
Prosecutor, and Mary K. Hughes, Municipal Attorney, Anchorage, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
James G. Nathan appeals his conviction for driving while
intoxicated, Anchorage Municipal Ordinance 9.28.020. After Nathan
was arrested for DWI, he submitted to a breath test (which showed
his blood-alcohol level to be .134 percent), and he declined the
offer of an independent blood test. However, Nathan contends that
the breath test result should be suppressed because, when he gave
up his right to an independent blood test, he did not really
understand his right to such a test.
Nathan is deaf, and has been since birth. In the trial
court, Nathan asserted that, because of his deafness, he was unable
to communicate well with the officer who administered the breath
test and who explained Nathan's right to an independent blood test.
Nathan contended that, because of this difficulty in communication,
he was unable to follow the officer's explanation of his right to
an independent test. Even though Nathan signed the waiver-of-test
form, Nathan stated that he signed the form to please the officer,
without understanding what he was relinquishing.
District Court Judge Stephanie Rhoades held a hearing into
Nathan's allegations. At this hearing, Nathan testified that his
primary language was American Sign Language; he asserted that he was
unable to communicate effectively in English, whether oral or
written. Nathan's description of his linguistic ability was
corroborated by the testimony of his high school teacher, who
declared that, at the time Nathan graduated from high school, his
ability to read was perhaps at a third-grade level. Nathan's
teacher testified that Nathan had a limited ability to read lips.
With regard to his understanding of the right to an
independent blood test, Nathan testified that he did not understand
this right. Nathan declared that, even though he read the
consent/waiver form and eventually signed the waiver of his right
to an independent test, he did not understand the word "independent"
as it was used on the form, and he did not understand what he was
giving up when he signed the waiver. However, Nathan conceded on
cross-examination that he understood, and could have written,
phrases such as "Let me use the phone" or "I do not understand".
Both the officer who arrested Nathan (Derek Hsieh) and the
officer who administered the breath test to Nathan (Joe Caswell)
testified that Nathan was obviously deaf, and that he remained mute
throughout their contacts with him. Caswell, in particular,
testified that he was fully aware that Nathan could neither speak
nor hear. However, both Hsieh and Caswell also testified that
Nathan seemed to understand what they said to him: he followed
their directions and otherwise responded appropriately to their
remarks and questions. When Caswell asked Nathan (in writing) if
he could read and write English, Nathan nodded affirmatively without
hesitation. Nathan in fact began to write out a statement
concerning the events leading up to his arrest. The ensuing
interview between Caswell and Nathan was conducted with pen and
paper.
Officer Caswell's testimony was corroborated by the record
of Nathan's first appearance and bail hearing in front of Magistrate
Roy V. Williams. At that hearing, Magistrate Williams communicated
with Nathan by passing written notes back and forth. Following this
exchange of written communications, the magistrate was apparently
satisfied that Nathan understood the proceedings and, in
particular, his obligation to appear in court at the time stated in
his bail release form because the magistrate released Nathan on
his own recognizance after Nathan signed an acknowledgement of the
conditions of his release.
After hearing this conflicting testimony, and after
listening to the tape of Nathan's first appearance in front of
Magistrate Williams, Judge Rhoades concluded that Nathan, despite
his disability, had understood his right to an independent test and
had knowingly waived that right. Judge Rhoades concluded, based on
Nathan's apparent understanding of Officer Hsieh's communications
at the scene, that Nathan "must have been reading Officer Hsieh's
lips[;] ... the defendant [described] what was being explained to
him [by Officer Hsieh] in his own testimony." With regard to the
more important issue of Nathan's communications with, and under-
standing of, Officer Caswell, Judge Rhoades concluded that Nathan
had sufficiently understood the officer to acquire an understanding
of his right to an independent test.
[Regarding Nathan's] contact with Officer
Caswell, ... the defendant began to write a statement. ...
[W]hile [this statement] was not grammatically focused, nonetheless
it was a coherent, cohesive, cogent statement of what was going on
with this accident[.] ... Officer Caswell actually stopped
[Nathan's work on this statement] and directed him toward the
information that they had to deal with in terms of the processing
for driving while intoxicated. It appears that Officer Caswell then
wrote out notes to the defendant, and Officer Caswell testified that
the defendant appeared to be nodding his head "yes" ... as they were
going along. [Nathan facially appeared] to understand what was
going on. He was given copies of the forms to read along. Officer
Caswell ... did appear to be sensitive to the fact that the
defendant was not capable of hearing or speaking, and did undertake
to try to make sure that the defendant understood what was going on
and understood the forms and understood his rights.
... [T]he most compelling [evidence] here
[is] that the defendant, though ... he does clearly have a basic
understanding of English, and does have a basic ability to write
English, and was presented with a pen and paper, did not write down,
at any time during the DWI processing, that he did not understand[,
nor did he] request to have additional information or an interpreter
or some other form of understanding the information. And I guess
what's important to me about that is that, without dealing with a
defendant who is unfamiliar with these resources, apparently the
defendant did study the driver's license booklet, which all drivers
have to study in order to take the written test, he did take a
written test, apparently using, according to his own testimony, the
assistance of an interpreter. And, so it's not like he doesn't have
familiarity with the fact that in circumstances where he doesn't
understand something, he needs to request an interpreter. He has
done that before, when he wanted to take advantage of the privilege
to drive. ... The defendant knows how to get the use of resources
when he wants to obtain a privilege, but in this case he didn't ask
for [interpretative assistance]. And I find that significant.
Because now it's a little too convenient [for Nathan] to come in
after the fact and say that he didn't understand. ...
Judge Rhoades cited Nathan's later communications with
Magistrate Williams as further corroboration of Nathan's level of
understanding:
[Regarding Nathan's] contact with the
magistrate, ... the magistrate's [duty] here was to make sure that
the defendant understood his obligation to return to court.
Apparently their communication was effective enough that the
magistrate had no concerns about that, [because the magistrate]
released him [on] his own recognizance, and the defendant testified
[that] he understood when he was to return.
From all of this evidence, Judge Rhoades concluded that
Nathan had possessed a basic understanding of his right to an
independent blood test, and that Nathan knowingly and intelligently
waived his right to an independent test:
So, all in all, it would appear to me that
the defendant's ability to read and write while they may be still
wholly at a fourth-grade level even now, twenty-three years after
school that he nonetheless, through life experience, his
workplace, the fact that he is a licensed driver, the fact that he
does manage to exist and live in a world where deaf people, frankly,
are not accommodated many times, tells me that he most likely
understood, at least to the extent that he needed to understand,
that he had a right to an independent test and the other rights that
were explained to him on the documents[.] ... [I] find that he was
adequately advised and he knowingly, intelligently waived his right
to an independent test.
On appeal, Nathan attacks Judge Rhoades's finding that he
understood his right to an independent test. See Ahtuangaruak v.
State, 820 P.2d 310, 311-12 (Alaska App. 1991) (a DWI arrestee's
purported waiver of the right to an independent test is invalid "if
the arrestee, because of ... a language barrier, or [for] any other
reason, fails to acquire a basic understanding of the right to an
independent test"). On this issue of historical fact, we must
affirm the trial judge's ruling unless it is shown to be clearly
erroneous. Cockerham v. State, 933 P.2d 537, 539 n.9 (Alaska 1997).
A finding of fact is "clearly erroneous" if, after review
of the record, an appellate court is left "with a definite and firm
conviction ... that a mistake has been made, even though there may
be evidence to support the [trial court's] finding." Cockerham,
supra. Having reviewed the evidence presented to the district
court, we conclude that Judge Rhoades's finding is not clearly
erroneous.
As Nathan points out in his brief, the evidence was
obviously contradictory on the issue of whether Nathan understood
what Officer Caswell told him about his right to an independent
test. At the hearing, Nathan presented evidence that, if believed,
would support a finding that he did not understand his right to an
independent test. Moreover, Nathan pointed out that there were
reasons to distrust the accuracy of the government witnesses'
testimony. However, as Judge Rhoades explained in her decision
(quoted above), there were also reasons to distrust the accuracy of
Nathan's testimony.
In the end, it was Judge Rhoades's task to assess the
credibility of the various witnesses' testimony and to resolve the
central issue of fact: did Nathan acquire a basic understanding of
his right to an independent test? Anthony v. State, 521 P.2d 486,
492 (Alaska 1974); Long v. State, 772 P.2d 1099, 1101 (Alaska App.
1989). The judge resolved this issue against Nathan, and the record
provides substantial support for her conclusion. While reasonable
people might perhaps draw differing conclusions from the evidence
presented at the hearing, we can not say that Judge Rhoades's
conclusion is clearly erroneous.
Nathan argues in the alternative that, even if he
knowingly waived his right to an independent test, his breath test
result should nevertheless be suppressed because the police failed
to take reasonable steps to accommodate his hearing and speech
disability. Nathan asserts that the police violated the Americans
with Disabilities Act, 42 U.S.C. sec. 12101 et seq., by failing to
provide him with an American Sign Language interpreter or to utilize
some alternative method to facilitate communication.
Nathan's claim is based on section 12132 of the Act, which
declares that "no qualified individual with a disability shall, by
reason of such disability, ... be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity". Elaborating on
this statutory provision, one of the regulations promulgated under
the Act, 28 C.F.R. sec. 35.160(b)(1), obligates public entities to
"furnish appropriate auxiliary aids and services where necessary to
afford an individual with a disability an equal opportunity to
participate in, and enjoy the benefits of, a service, program, or
activity conducted by a public entity". The Act's definition of
"auxiliary aids and services" expressly includes "qualified
interpreters or other effective methods of making aurally delivered
materials available to individuals with hearing impairments". See
42 U.S.C. sec. 12102.
Nathan argues that the Anchorage Police Department's
processing of arrestees qualifies as a "service[], program[], or
activit[y] of a public entity" for purposes of section 12132 of the
Act. Based on this premise, Nathan contends that the police were
obliged to furnish him with an interpreter during his DWI processing
(and, in particular, during the explanation of his right to an
independent blood test).
However, even assuming that a police department's
processing of arrestees is a "program" or "service" governed by the
Americans with Disabilities Act, the Act would require the police
department to furnish auxiliary aids and services only "where
necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of" the arrest
processing. (Emphasis added) Moreover, under the statutory
definition of "auxiliary aids and services", an interpreter would
apparently not be required if the police department offered some
"other effective method[]" of communication. Judge Rhoades found
that, despite Nathan's disability, effective communication did in
fact take place between Nathan and the officers, and Nathan did
understand his right to an independent test. The judge's resolution
of these issues of fact constitutes an implicit finding that no
violation of the Americans with Disabilities Act took place.
Further, even assuming that the police violated the Act,
Nathan must still cross another legal hurdle: he must establish
that a violation of the Americans with Disabilities Act will trigger
the exclusionary rule and require suppression of his breath test
result. This is not self-evident.
If Nathan, because of his hearing impairment, had failed
to acquire a basic understanding of his right to an independent
test, then he would be entitled to suppression of his breath test
result. Ahtuangaruak, 820 P.2d at 311-12. But Judge Rhoades found
that Nathan did understand his right to an independent test. Thus,
Nathan's argument for suppression is a novel one. Nathan argues
that even though he did understand his right to an independent test
that is, even though the police department's asserted violation
of the Americans with Disabilities Act did not adversely affect his
understanding of his rights or the voluntariness of his decision to
waive the independent blood test he still is entitled to
suppression of the breath test result. Nathan argues that
suppression of evidence is the only effective way to make the police
obey the mandates of the Act.
In several decisions, the Alaska appellate courts have
addressed the issue of whether suppression of evidence should result
from the government's violation of a statute (as opposed to the
government's violation of a provision of the Constitution). See,
for example, Zsupnik v. State, 789 P.2d 357, 361 (Alaska 1990), Ward
v. State, 758 P.2d 87, 90 (Alaska 1988), Copelin v. State, 659 P.2d
1206, 1214-15 (Alaska 1983), Sundberg v. State, 611 P.2d 44, 50-52
(Alaska 1980), and Harker v. State, 637 P.2d 716, 719-720 (Alaska
App. 1981), aff'd on other grounds, 663 P.2d 932 (Alaska 1983).
Nathan does not discuss (or even cite) any of these cases.
It is true that, broadly speaking, the purpose of the
exclusionary rule is to deter the police from engaging in future
illegal conduct. Violations of the Americans with Disabilities Act
clearly qualify as "illegal conduct". However, when the government
has violated a statute (as opposed to the Constitution), suppression
of evidence has generally been imposed only when the government's
violation of the statute demonstrably prejudiced a defendant's
ability to exercise related constitutional rights or to prepare or
present a defense. For instance, in Sundberg, the police used
excessive force to arrest a fleeing suspect, but the supreme court
refused to suppress the resulting evidence. The court concluded
that other effective means existed to deter future similar
illegality; the court cited "the possibility of ... police
department [disciplinary] proceedings; civil rights actions; and
common law tort suits against the offending officer". Sundberg, 611
P.2d at 51-52.
Similar measures are apparently available to deter and
redress violations of the Americans with Disabilities Act. Given
the existence of these measures, and the absence of any indication
that the police have engaged in persistent, purposeful violations
of the Act, we hold that exclusion of evidence would not be the
remedy even if Nathan could show that the police violated the Act
in his case.
The district court properly denied Nathan's motion to
suppress his breath test result. Accordingly, the judgement of the
district court is AFFIRMED.
