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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STEVEN A. MANGIAPANE, )
) Court of Appeals No. A-6888
Appellant, ) Trial Court No. 3AN-97-1117 Cr
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1627 - March 19, 1999]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Peter G. Ashman and
Gregory J. Motyka, Judges.
Appearances: William Dennie Cook, Eagle
River, for Appellant. Carmen E. ClarkWeeks,
Assistant Municipal Prosecutor, and Mary K.
Hughes, Municipal Attorney, Anchorage, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Steven A. Mangiapane appeals his conviction for driving
while intoxicated.1 He contends that the police denied him a fair
opportunity to consult privately with an attorney before deciding
whether to take an Intoximeter test. Mangiapane also contends that
the trial judge should have instructed his jury that Intoximeters,
even when functioning properly, can yield results that vary as much
as .01 percent from a person's true blood- or breath-alcohol level.
For the reasons explained here, we reject both of Mangiapane's
arguments and we affirm his conviction.
Shortly after Mangiapane was arrested, he was taken to
the Anchorage Police Department's Fifth Avenue substation for a
breath test. While the police waited for the expiration of the 15-
minute observation period mandated by 13 AAC 63.040(a)(1),
Mangiapane asked to make a telephone call. Officer John
Richtarcsik brought a telephone to Mangiapane but, under department
policy, the officer did not release Mangiapane from his handcuffs.
Instead, the officer gave Mangiapane the choice of having the
telephone receiver propped between his ear and his shoulder or,
instead, using the speaker feature of the telephone. Mangiapane
chose the speaker phone.
Mangiapane called an attorney. While Mangiapane was on
the phone, Richtarcsik backed away ten or fifteen feet and he
turned off his tape recorder. Richtarcsik testified that he wished
to give Mangiapane as much privacy as possible, consistent with
continuing the observation period required by the breath test
regulation.
After speaking with the attorney, Mangiapane decided that
he would take the breath test. Mangiapane's breath test result was
.112 percent blood alcohol. Mangiapane also exercised his right to
an independent blood test. His blood was drawn approximately 40
minutes later, and the result was .10 percent blood alcohol.
Before trial, Mangiapane asked the district court to
suppress the result of the Intoximeter test. Mangiapane claimed
that, because Officer Richtarcsik remained within ten to fifteen
feet of him during the telephone call, the officer had denied
Mangiapane a fair opportunity to consult with the attorney before
deciding whether to take the breath test.
District Court Judge Gregory J. Motyka held a hearing to
resolve this issue. Officer Richtarcsik was the sole witness at
this hearing; we have already summarized his testimony. Based on
Richtarcsik's testimony, Judge Motyka concluded that the police had
not intruded improperly into Mangiapane's conversation with his
attorney. The judge therefore denied Mangiapane's request to
suppress the Intoximeter result.
In a series of cases2, this court has held that "[e]ven
though police officers have a duty to maintain custodial
observation of [an arrestee] before administration of the breath
test, [the arrestee] must be given a reasonable opportunity to hold
a private conversation with his or her attorney."3 But an
arrestee's right to confer with counsel "is not violated merely
because the arresting officer maintains physical proximity to the
[arrestee]".4 This court has suppressed Intoximeter results only
when, in addition to maintaining physical proximity, "the police
engaged in additional intrusive measures, intrusions that convinced
[arrestees] that the officers were intent on overhearing and
reporting [the arrestees'] conversations with their attorneys."5
In the present case, Officer Richtarcsik maintained
observation of Mangiapane but he did not engage in additional
intrusive conduct to deter Mangiapane from conferring with his
attorney or intrude into the privacy of the attorney-client
conversation. We agree with Judge Motyka that the officer's
actions did not violate Mangiapane's right to confer with counsel.
We also uphold Judge Motyka's ruling for a second reason:
Mangiapane offered no evidence that Officer Richtarcsik's actions
deterred him from communicating with his attorney. This is a
necessary element of Mangiapane's suppression argument. For
instance, in Kiehl v. State we upheld the admissibility of the
defendant's breath test because, even though the police officer
surreptitiously recorded Kiehl's conversation with his attorney,
"Kiehl remained oblivious [to] the recording" and thus "the
surreptitious recording resulted in no discernible impairment of
Kiehl's consultation with counsel".6
Mangiapane's remaining contention is that District Court
Judge Peter G. Ashman should have instructed the jury that the
Intoximeter machine (even when properly calibrated and functioning
normally) can yield results that vary as much as .01 percent from
the subject's true blood-alcohol level. In Haynes v. Alaska
Department of Public Safety7, the supreme court recognized this
intrinsic margin of error and ruled that defendants must be given
the benefit of this potential error when determining whether they
had driven a motor vehicle with a blood-alcohol level of
.10 percent or greater.8 In essence, the Haynes decision required
the State to introduce an Intoximeter result of .11 percent or
higher in order to prove a defendant guilty of driving while
intoxicated under AS 28.35.030(a)(2) or the equivalent Anchorage
municipal ordinance, AMC 9.28.020(B)(2).
The Alaska Legislature reacted to the Haynes decision by
enacting AS 28.40.060. Under this statute,
if an offense described [in Title 28] requires
that a chemical test of a person's breath
produce a particular result, and [if] the
chemical test is administered by a properly
calibrated instrument approved by the
Department of Public Safety, the result
described by statute is not affected by the
instrument's working tolerance.
The practical effect of this statute is to
modify the definition of driving while
intoxicated under AS 28.35.030(a)(2).
As written, AS 28.35.030(a)(2)
declares that a person is guilty of driving
while intoxicated "if the person operates or
drives a motor vehicle ... when, as determined
by a chemical test taken within four hours
after the alleged offense was committed, there
is 0.10 percent or more by weight of alcohol
in the person's blood ... or when there is
0.10 grams or more of alcohol per 210 liters
of the person's breath". In Haynes, the
supreme court interpreted this language as
meaning that the State had to prove, by means
of a chemical test, that the driver's blood
actually contained at least .10 percent
alcohol by weight, or that the person's breath
actually contained at least .10 grams of
alcohol per 210 liters. The newly enacted
statute rejects this interpretation of the
offense. AS 28.40.060 effectively declares
that a driver violates AS 28.35.030(a)(2) if,
within four hours of driving, the driver is
tested on a properly calibrated, properly
functioning Intoximeter and the driver's test
result is at least .10 percent blood-alcohol
or the equivalent .10 grams of alcohol per 210
liters of breath. The fact that the driver's
true blood-alcohol or breath-alcohol level may
be slightly lower (due to the Intoximeter's
acknowledged margin of error) is no longer
relevant to the driver's guilt under AS
28.35.030(a)(2).
Mangiapane was not charged under AS
28.35.030(a)(2) but rather under the
corresponding Anchorage ordinance, AMC 9.28.-
020(B)(2). But as we noted in Anchorage v.
Ray9, AS 28.01.010(a) "prohibits
municipalities from promulgating traffic laws
that diverge from state law." We therefore
"presume that the drafters of the municipal
ordinances intended that the ordinances be
intepreted in the same manner as the
corresponding statutes."10
For this reason, Judge Ashman
properly declined to instruct the jury
concerning the Intoximeter's inherent margin
of error. This margin of error (the machine's
"working tolerance") had no relevance to the
jury's decision.
We thus conclude that neither of
Mangiapane's appellate claims has merit.
Accordingly, the judgement of the district
court is AFFIRMED.
Footnotes
1 Anchorage Municipal Code 9.28.020(B).
2 See Kiehl v. State, 901 P.2d 445 (Alaska App. 1995); Reekie
v. Anchorage, 803 P.2d 412 (Alaska App. 1990); Anchorage v. Marrs,
694 P.2d 1163 (Alaska App. 1985); Farrell v. Anchorage, 682 P.2d
1128 (Alaska App. 1984).
3 Kiehl, 901 P.2d at 446.
4 Id. at 447.
5 Id.
6 Id., 901 P.2d at 447.
7 865 P.2d 753 (Alaska 1993).
8 See id. at 755-56.
9 854 P.2d 740 (Alaska App. 1993).
10 Id. at 743.
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