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McCormick v. Municipality of Anchorage (3/10/00) ap-1667
McCormick v. Municipality of Anchorage (3/10/00) ap-1667
NOTICE
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opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN McCORMICK, )
) Court of Appeals No. A-6557
Appellant, ) Trial Court No. 3AN-96-1024 Cr
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, ) as modified on rehearing
)
Appellee. ) [No. 1667 March 10, 2000]
)
Appeal from the District Court, Third Judicial
District, Anchorage, John R. Lohff, Judge.
Appearances: Frederick T. Slone, Kasmar and
Slone, Anchorage, for Appellant. Benjamin O.
Walters, Jr., Deputy Municipal Prosecutor, and Mary K. Hughes,
Municipal Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
John McCormick was involved in a motor vehicle accident.
When the police arrived on the scene, an officer asked McCormick to
perform field sobriety tests. McCormick agreed to perform a
horizontal gaze nystagmus test, and the results from all six
segments of the test indicated that McCormick was under the
influence of alcohol. The officer next asked McCormick to perform
two other tests: the turn-and-walk test, and the stand-on-one-leg
test. McCormick refused to perform these tests. The officer then
arrested McCormick for driving under the influence.
At McCormick's trial, the Municipality introduced evidence
that McCormick had refused to perform the latter two field sobriety
tests. In this appeal, McCormick contends that the Municipality
should not have been allowed to introduce evidence of, or comment
on, McCormick's refusal to perform these two field sobriety tests.
At the police station, McCormick submitted to a breath
test. He then exercised his right to obtain an independent blood
test at a local hospital. Hospital personnel drew two vials of
McCormick's blood. Soon thereafter, McCormick's attorney contacted
the hospital and directed them to send both vials to a laboratory
in Colorado. The Municipality was not notified of this action.
Some months later, thinking that the blood sample was
still at the hospital, the Municipality obtained a search warrant
for the blood sample, contacted the hospital, and discovered that
the blood had been sent away at the defense attorney's direction.
The Municipality then applied to the district court for an order
directing the defense attorney to surrender any unused blood to the
Municipality for testing. The district court issued this order.
A portion of the blood was sent to the Municipality; when tested,
this blood yielded a result of .125 percent alcohol. This test
result was introduced at McCormick's trial.
On appeal, McCormick contends that the district court
should not have ordered McCormick's attorney to surrender the
remaining blood. McCormick argues that the Alaska Constitution bars
a court from ordering a DWI defendant to produce a portion of the
blood drawn during an independent test; he contends that any such
order impermissibly burdens the defendant's due process right to an
independent test. McCormick also contends that, because the blood
in question was in the possession of his attorney or his attorney's
agents (the laboratory in Colorado), the district court's order
infringed McCormick's attorney-client privilege.
In addition, McCormick contends that the district court
improperly prohibited him from arguing to the jury that they should
distrust the government's blood-test results because McCormick's
blood sample might have been mishandled or improperly preserved by
the Colorado laboratory.
Finally, McCormick challenges one aspect of his sentence:
the forfeiture of his vehicle.
For the reasons explained here, we reject all of
McCormick's contentions and we affirm his conviction.
Can the government introduce evidence of, and comment on, a
motorist's refusal to perform field sobriety tests after the
motorist is validly stopped on suspicion of driving while
intoxicated?
As described above, McCormick refused to perform two of
the field sobriety tests requested by the police officer. Before
trial, McCormick asked the district court to exclude all evidence
of his refusal to perform these two tests and to prohibit the
government from commenting on McCormick's refusal. The district
court denied this request.
On appeal, McCormick renews his argument that the
Municipality should not have been allowed to mention his refusal to
perform the two field sobriety tests. McCormick advances three
theories as to why this evidence was inadmissible.
McCormick first argues that the Alaska Legislature did not
intend for the government to be able to use evidence of a motorist's
refusal to consent to field sobriety tests. He points out that, in
AS 28.35.032(e), the legislature has expressly allowed the
government to use evidence of a motorist's refusal to submit to a
breath test. [Fn. 1] McCormick argues that the lack of any similar
statute concerning field sobriety tests means that the legislature
did not intend for the government to be able to use evidence of a
motorist's refusal to perform field sobriety tests.
We do not interpret AS 28.35.032(e) as impliedly limiting
the government's ability to introduce evidence of a motorist's
refusal to take field sobriety tests. Rather, this statute was
enacted in order to make sure that the government could introduce
evidence of a motorist's refusal to submit to a breath test.
AS 28.35.032(e) was apparently passed in response to the
Alaska Supreme Court's decision in Puller v. Anchorage. [Fn. 2]
In Puller, the supreme court interpreted a former version of AS
28.35.032 that did not expressly state that a motorist's refusal to
take a breath test could be used as evidence against them. The
court held that, in the absence of an express provision allowing the
government to use evidence of a motorist's refusal, the court would
presume that the legislature intended to bar the government from
using this evidence. [Fn. 3] Two years later, the legislature
enacted AS 28.35.032(e). [Fn. 4]
Both Puller and AS 28.35.032(e) are based on the premise
that a motorist's refusal to submit to the statutorily mandated
breath test is a peculiar kind of evidence that should be treated
differently for policy reasons. The government exerts unusual
coercion on motorists to submit to the breath test, so unusual
procedural safeguards should be satisfied before the government is
allowed to use evidence of a motorist's refusal to take the test.
But this policy is itself atypical. Ordinarily, the government does
not need statutory authorization to introduce circumstantial
evidence of a person's intoxication.
Both the Puller court and the legislature (when it enacted
AS 28.35.032(e) in response to the Puller decision) treated breath-
test refusal as sui generis as a special type of evidence unto
itself. Once the supreme court decided Puller, it is hardly
surprising that the legislature perceived the need to enact a
special statute to authorize the use of this type of evidence. But
the enactment of this statute does not imply that the legislature
intended to bar evidence that an arrested motorist declined to
cooperate with investigative efforts in some other way.
For this reason, we conclude that AS 28.35.032(e) should
not be read as broadly as McCormick suggests. This statute does not
prohibit the government from introducing evidence of a motorist's
refusal to perform field sobriety tests. [Fn. 5]
McCormick next asserts that he was exercising his right
against self-incrimination under the Alaska Constitution [Fn. 6]
when he refused to perform the two field sobriety tests. McCormick
contends that the Municipality should have been barred from
introducing evidence of his refusal to take the tests because this
evidence constituted an adverse comment on his invocation of the
right not to incriminate himself.
Although McCormick's argument is purportedly based on our
state constitution, he fails to cite Alaska case law. Instead, he
cites three Oregon cases construing the Oregon Constitution. [Fn.
7] But even Oregon has rejected the claim that the right against
self-incrimination protects a motorist from performing non-
testimonial field sobriety tests that is, tests which involve only
demonstrations of physical coordination and ability to concentrate.
[Fn. 8] The majority of states agree with this conclusion. [Fn.
9]
The Alaska Supreme Court has held that field sobriety
tests are typically non-testimonial. In Palmer v. State [Fn. 10],
the defendant (who had been arrested for DWI) argued that the
government should not have been allowed to introduce a videotape
made at the police station. This videotape showed the defendant
taking a breath test and performing various field sobriety tests.
[Fn. 11] On appeal, the defendant contended that the videotape of
the sobriety tests should have been suppressed because he was never
advised of his Miranda rights. [Fn. 12] The supreme court rejected
this contention, declaring that "[t]he fifth amendment offers no
protection against compulsion to take the sort of tests administered
to [the defendant] in this case." [Fn. 13]
It is possible to argue that, even though the taking of
field sobriety tests is non-testimonial, a motorist's refusal to
take the tests should be deemed a testimonial communication that is
protected by the privilege against self-incrimination. But courts
from other states have consistently rejected this contention. These
courts hold that a defendant's refusal to take field sobriety tests
is not testimonial; rather, the refusal (whether verbal or non-
verbal) is conduct from which one may draw an incriminatory
inference. [Fn. 14]
McCormick provides no authority suggesting that the self-
incrimination clause of the Alaska Constitution should be construed
any differently. Accordingly, we hold that Article I, Section 9 of
the Alaska Constitution does not bar the government from introducing
evidence of a motorist's refusal to perform non-testimonial field
sobriety tests.
Finally, McCormick argues that field sobriety tests
constitute a "search" for purposes of the Fourth Amendment to the
United States Constitution and Article I, Section 14 of the Alaska
Constitution. He contends that, because field sobriety tests are
a "search", a motorist necessarily possesses a constitutional right
to refuse to cooperate in this search, and the constitution
therefore bars any comment on a motorist's assertion of this right
of refusal.
McCormick provides scant legal authority to support his
assertion that field sobriety tests are a "search". He cites two
cases from Oregon, but these were decided under the Oregon
Constitution. [Fn. 15] He also cites one decision of this court
holding that a breath test is a "search" for constitutional purposes.
[Fn. 16]
Our own research shows that several state courts (in
addition to Oregon) have held that field sobriety tests are
"searches". [Fn. 17] But, with two exceptions [Fn. 18], all of
these states treat field sobriety tests as a form of Terry stop.
[Fn. 19] Under this view, a police officer does not need probable
cause before asking a motorist to perform field sobriety tests.
Rather, the officer can conduct field sobriety tests based on a
reasonable suspicion that the motorist is driving while intoxicated.
[Fn. 20]
In McCormick's case, it is fairly clear that by the time
the officer asked McCormick to perform the turn-and-walk test and
the stand-on-one-leg test, the officer had reasonable suspicion to
believe that McCormick was driving while intoxicated. McCormick
does not argue to the contrary. Indeed, because McCormick was
arrested just after he refused to perform these two field sobriety
tests, and because McCormick does not contest the legality of his
arrest, McCormick implicitly concedes that the officer already had
probable cause to arrest him when the officer asked McCormick to
perform these two field sobriety tests. Thus, even if we accepted
McCormick's premise that field sobriety tests are a "search" for
constitutional purposes, the circumstances of McCormick's case
justified the officer in conducting this search.
But in McCormick's case, the search was not "conducted"
or, at least, it was not conducted to completion. McCormick
refused to perform the two physical coordination tests. We are not
faced with the issue of whether the results of the tests are
admissible. Rather, we are asked to decide whether the Municipality
could introduce evidence of McCormick's refusal to take the two
tests.
Although there is some disagreement among the states on
this issue, most courts hold that a motorist has no constitutional
right to refuse field sobriety tests as long as the requested field
sobriety tests are non-testimonial (that is, the motorist is not
required to supply verbal information but is merely required to
demonstrate physical coordination and ability to concentrate), and
as long as the officer's request for field sobriety tests is
supported by the requisite reasonable suspicion (or, in Oregon and
Colorado, by the requisite probable cause). [Fn. 21] In reaching
this conclusion, courts generally rely on the rule that a lawfully-
arrested suspect has no constitutional right to withhold blood and
tissue samples or to refuse to demonstrate the physical
characteristics of their body. [Fn. 22]
McCormick does not dispute any of this; indeed, his brief
does not discuss any of this. Instead, he asserts that it does not
matter if he was legally obliged to perform the field sobriety
tests. McCormick relies on Elson v. State for the proposition that
the government can not rely on evidence of a defendant's refusal to
consent to a search, regardless of whether the search is legal or
illegal. [Fn. 23] In Elson, the supreme court ruled that, even when
a search is ultimately shown to be legal, the government should not
be allowed to rely on evidence that the defendant refused to consent
to the search. The court reasoned that if evidence of the
defendant's non-cooperation were allowed, this might "inhibit
individuals from exercising the right to refuse consent to some
future illegal search". [Fn. 24]
But in Srala v. Anchorage [Fn. 25] this court held that
Elson did not apply to a case very similar to McCormick's. The
defendant in Srala was arrested for driving while intoxicated and
later refused to allow a blood test. At trial, the government
introduced evidence of the defendant's refusal. On appeal, the
defendant argued that introduction of this evidence was barred by
Elson, but this court ruled that Elson was distinguishable from
Srala's case:
The present case is readily distinguishable
from Elson. In contrast to Elson, a person legally arrested for
driving while intoxicated does not have a fourth amendment right to
refuse a breath or blood test. The only fourth amendment right such
a person has is the right to be free of arrest on less than probable
cause. [citations omitted] Consequently, [the government's]
comment on the refusal of an offered blood test does not chill the
exercise of fourth amendment rights. Srala was lawfully under
arrest for DWI and had no constitutional right to refuse a search
incident to his arrest aimed at establishing his blood alcohol
level. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826,
16 L.Ed.2d 908 (1966). To the extent that Srala had a right to
refuse a blood test, ... that right was a limited statutory right.
[citations omitted] Evidence of his refusal thus did not amount to
an impermissible comment on the exercise of a constitutional right.
Srala, 765 P.2d at 105. [Fn. 26]
We applied similar reasoning in Svedlund v. Anchorage [Fn.
27], where we upheld the constitutionality of a municipal ordinance
making it a crime for a person lawfully arrested for DWI to refuse
to take a breath test. We concluded that this law did not violate
a motorist's Fourth Amendment rights because the breath test is a
search incident to arrest and thus, if the motorist is lawfully
arrested, the motorist has no Fourth Amendment right to assert. [Fn.
28]
Using Srala, Burnett, and Svedlund as guides, even if
field sobriety tests are a "search", it appears that McCormick's only
Fourth Amendment right was the right not to be asked to perform
field sobriety tests unless the surrounding circumstances had
already given the officer a reasonable suspicion that McCormick was
driving while intoxicated. And if McCormick had no constitutional
right to refuse to perform the field sobriety tests, then the
constitution did not bar the government from introducing evidence
that McCormick refused the tests. The admission of this evidence
would not chill the future assertion of constitutional rights,
because no constitutional right is at issue.
We admit that this issue is complex and that the
resolution we have indicated here may not be entirely free from
doubt. But we conclude that we need not resolve this issue in
McCormick's case. As we indicated before, McCormick's briefing of
this question is extremely terse. He devotes precisely one
paragraph to this entire search and seizure issue. And although he
cites Elson, he does not mention Srala, Burnett, or Svedlund.
Given the complexity of this issue, we find that
McCormick's briefing is inadequate to allow meaningful review.
Accordingly, we deem the issue waived. [Fn. 29]
In addition to his constitutional challenge, McCormick
also argues that evidence of his refusal to take the two field
sobriety tests should have been excluded under Evidence Rule 403
because it was more prejudicial than probative. McCormick contends
that this evidence was unfairly prejudicial because "[t]here was a
real danger that the jury [might conclude] that McCormick's refusal
to perform balance tests indicated that he was intoxicated."
This asserted "unfair prejudice" is, in fact, the proper
probative value of the evidence. McCormick's refusal to perform the
balance tests does not directly tend to prove his intoxication, but
it does tend to prove McCormick's belief that he would be unable to
satisfactorily perform the tests. From McCormick's refusal to take
the two field sobriety tests, the jury could reasonably infer that
McCormick believed he was under the influence of intoxicants.
This inference was not "prejudicial" for purposes of
Evidence Rule 403. To the extent that McCormick's refusal to
perform the field sobriety tests suggests that McCormick was
conscious of his own intoxication, this evidence does not "[tend]
to suggest decision on an improper basis". [Fn. 30] Rather, this
inference was a proper subject for the jury's consideration.
For all of the above reasons, we hold the admission of
evidence that McCormick refused to perform the final two field
sobriety tests does not require reversal of McCormick's conviction.
Did the district court violate McCormick's right to due process
when the court ordered McCormick to turn over a portion of
McCormick's blood sample to the Municipality so that the
Municipality could test the blood for alcohol content?
Shortly after McCormick's arrest, his blood was drawn at
an Anchorage hospital. Several months later, the Municipality
obtained a search warrant to test McCormick's blood sample. The
Municipality served this warrant on the hospital, only to discover
that McCormick's attorney had earlier directed the hospital to send
the entire blood sample to a laboratory in Colorado. At the
Municipality's request, the district court ordered McCormick to
relinquish any unused portion of the blood sample to the
Municipality. The Municipality tested the blood and introduced the
test result at McCormick's trial. On appeal, McCormick argues that
the district court violated his right to due process when the court
ordered him to relinquish the blood to the Municipality.
McCormick's argument is premised on two legal principles.
First, motorists arrested for DWI have a due process right to have
a sample of their blood preserved so that this blood will later be
available as a potential means of rebutting the government's
evidence that the motorist was intoxicated or had a blood-alcohol
level of .10 percent or greater. [Fn. 31] Second, unless the
motorist chooses to have blood drawn, the government has no
authority to draw blood from them. [Fn. 32]
Based on these principles of law, McCormick argues that
motorists who choose to have a sample of their blood drawn should
not have to face the possibility that the government will later
obtain and test a portion of this blood sample. McCormick contends
that motorists will be deterred from exercising their due process
right to have a sample of their blood preserved if they know that
this blood may one day become available to the government.
According to McCormick, if courts are allowed to issue subpoenas and
search warrants for the blood, this will "have a severe chilling
effect on the exercise of [a motorist's] constitutional due process
rights".
McCormick's argument is answered by this court's decisions
in Cunningham v. State [Fn. 33] and Birch v. State [Fn. 34].
The defendant in Cunningham was arrested for driving while
intoxicated. After he submitted to a breath test, he was informed
that he had a right to an independent blood test. Cunningham
exercised this right; he was transported to a hospital, where his
blood was drawn and stored. Later, the State of Alaska obtained a
search warrant for this blood; a state laboratory technician tested
the blood for alcohol content, and the test result was used against
Cunningham at his trial. [Fn. 35]
On appeal, Cunningham argued that when a motorist
exercises the right to an independent blood test, the resulting
blood sample should be used only for the motorist's benefit and the
State should not be able to obtain access to the blood. We rejected
this argument. We noted that a motorist's right to an "independent"
blood test does not mean that the resulting blood sample is
privileged; rather, it means that the motorist is entitled to have
the sample tested by people and methods that are not subject to
government manipulation. [Fn. 36] We further noted that, although
Alaska statutes forbid the government from obtaining a blood sample
from a non-consenting motorist, no statute bars the government from
using court process to obtain and test the blood sample of a
motorist who does consent to a blood test. [Fn. 37]
In Birch, the facts were similar to Cunningham except that
the arrested motorist consulted an attorney before deciding to have
a blood sample drawn and preserved. On appeal, Birch argued that
the resulting blood sample was protected by the attorney-client
privilege, but we rejected this argument. We held that, although
the attorney-client privilege would protect the results of any
defense-initiated testing of the blood sample, the sample itself was
not privileged. Thus, if the court issued a search warrant for the
blood, the government could seize a portion of the sample, test it,
and use the results against the motorist. [Fn. 38]
McCormick's case is different from Cunningham and Birch
in one respect. McCormick's blood sample was not in the hands of a
hospital or other third party; rather, it was being held by a
laboratory hired by McCormick's attorney. But in Morrell v. State,
the Alaska Supreme Court held that a defense attorney has no
privilege to take delivery of physical evidence from third parties
and then withhold the physical evidence from the government. [Fn.
39] Based on this court's decisions in Cunningham and Birch, and
based on the supreme court's decision in Morrell, we hold that the
district court acted lawfully when it ordered McCormick's attorney
to surrender the unused portion of the blood sample so that the
blood could be tested by the Municipality.
Did the district court violate McCormick's right to due process
when the court prohibited McCormick's attorney from arguing to the
jury that the government's blood sample might have been tainted, or
its alcohol content altered, while the blood was in the possession
and control of McCormick's agents?
As explained above, shortly after McCormick's arrest, his
blood was drawn at an Anchorage hospital. A few days later, at the
direction of McCormick's attorney (and unbeknownst to the
Municipality), the blood was shipped to a laboratory in Colorado so
that it could be tested by defense experts. Several months later,
when the Municipality discovered that the blood was gone, the
Municipality applied for a court order directing the defense
attorney to return the blood to Anchorage so that it could be tested
by the Municipality. At McCormick's trial, the Municipality
introduced the result of this second blood test. That blood test
showed McCormick's blood contained .125 percent alcohol.
As the parties were preparing for opening statements at
McCormick's trial, the defense attorney asked the trial judge to
preclude the Municipality from introducing evidence of this blood
test. McCormick's attorney argued that, because the blood had been
in the possession of the Colorado laboratory for several months, the
Municipality could not establish a proper chain of custody for this
evidence. The defense objection was based on Alaska Evidence Rule
901(a). This rule states that "[w]henever the prosecution in a
criminal case offers ... [physical] evidence which is of such a
nature ... as to be susceptible to adulteration, contamination,
modification, ... or other changes in form attributable to accident,
carelessness, error or fraud", the prosecution must, as a
foundational matter, "demonstrate [to a] reasonable certainty that
the evidence is ... free of [these] possible taints".
Defense Attorney: I would move to ... to
exclude evidence related to the blood on the assumption that the
prosecution is not going to be able to provide any kind of evidence
with respect to the chain of custody of the blood once it [was sent
to Colorado] until it was returned to [Anchorage], and to ensure ...
[the] integrity [of the] blood sample. ... Our position would be
that [the blood evidence] simply shouldn't come in because the
prosecution is going to be unable to link the chain of custody
[during this] time [.]
Now, the court could either do one of two
things, I suppose. [The court could rule] that since [the blood]
was sent out [of state] at the request of the defense, ... perhaps
that should excuse the prosecution from establishing the integrity
of the sample between the time that it left [Anchorage] and the time
that it was returned 10 months later. Or, the court could preclude
the prosecution from seeking to admit it. But I just wanted to get
a ruling on [this issue] now, because if the court is inclined not
to allow the blood [evidence] ... based on that [chain of custody]
issue alone, ... then ... I'd ask for an order precluding the
prosecution from even talking about the blood in [their] opening
[statement].
The real issue here is just whether or not
the [blood] test evidence [will] be admissible over [our] objection
[based on] the lack of chain of custody.
The trial judge ruled that, given the facts of the case
particularly, the fact that the blood had been sent to Colorado
at the behest of McCormick's attorney and had been stored there in
the custody of a laboratory hired by the defense attorney the
Municipality would be excused from establishing the integrity of the
blood sample during the months it was in the custody of the
defendant's agents.
The Court: I find [that the blood
evidence] will be [admissible]. I find [that] it should be. ...
I find that, because the only entity that would be able to address
the issue of [the integrity of the blood sample] is [under] the
control of [the defense attorney] and Mr. McCormick, [the
government] does not have to address the issues of chain of custody
with respect to the time [the blood sample] left the [Anchorage
hospital] lab and the time it came back to the lab. ... They
should not be put in the position of having to necessarily fill that
link of the chain, because it wasn't a chain link that they put in
place in the first place.
This issue came up again when the defense attorney was
delivering his summation to the jury. During his summation,
McCormick's attorney attempted to cast doubt on the validity of the
Municipality's blood test by pointing out that the jury had heard
no evidence concerning the methods used to preserve the blood during
its transportation and its months of storage and handling in
Colorado. The municipal prosecutor immediately objected:
Defense Attorney: Now, the blood test.
What we have is a situation where Mr. McCormick had his blood drawn
willingly. He was requested to do so, and he did it. And the blood
was shipped out of state. We don't know what it was [.] ... [It
has been] stipulated that it's the same blood that came back, but
we do not know what happened to the blood while it was gone.
Absolutely no ...
Prosecutor: I object to this, Your Honor
...
The Court: Sustained.
McCormick's attorney offered no counter-argument at the
time. However, after the parties completed their summations to the
jury, the defense attorney responded to the court's ruling:
Defense Attorney: [An] issue, Your Honor,
[that] I wanted to bring up is there was an objection during my
closing [argument], when I was attempting to argue that nobody knows
what happened to this ... blood while it was at the lab out of
state.
The Court: Yes.
Defense Attorney: And my understanding of
your prior rulings on this issue is that you were going to instruct
the jury that ... [the] blood sample that was sent out of the state
was the same sample that came back ... to [Anchorage]. But ... I
did not understand there to be any preclusion from arguing as to
what may or may not have happened to that sample in the interim.
The Court: ... [I]n my view, there was a
preclusion as to ... what was done to [the blood] at the lab [in
Colorado]. ... [The prosecutor] requested [that], if [the
integrity of the blood sample was going to be disputed], then we'd
need to get into the issue of your sending it out [of state], that
you sent out two samples instead of one, that the lab was [of your
choosing] if there was some problem with what the lab did, it's
because it was a lab that you selected, [whether] you ... selected
a good lab or a bad lab. All of those sorts of issues were
precluded by basically saying that this is the same sample that came
back [to Anchorage], and we're not going to discuss what happened
[to the blood] when it ... went out, or ... what happened [when] it
was out of state. So, ... in my view, ... there was a preclusion
of discussion of those issues. And maybe that wasn't as clear as
it should have been, but that was ... part and parcel of [my
ruling] all of that ball of wax.
Defense Attorney: Okay. All right.
I didn't understand that to be the case.
That's why I started arguing to that effect.
The Court: All right.
On appeal, McCormick argues that the trial judge's ruling
denied him due process of law. McCormick contends that, because the
Municipality relied on the result of the Anchorage blood test,
McCormick was entitled to attack that test result by pointing out,
first, that the blood sample was tested many months after it was
drawn from McCormick's body, and second, that the Municipality
failed to present evidence concerning the precautions (if any) that
were taken to ensure the chemical integrity of the blood sample
during this time.
From the portions of the record quoted above, it is clear
that McCormick did not preserve this issue in the district court.
At the beginning of trial, McCormick's attorney attempted to exclude
the blood evidence, arguing that the Municipality would be unable
to prove that the blood sample had not become tainted or altered
during the many months that it was in the hands of the defense
attorney's agents (the Colorado laboratory). But the trial judge
excused the Municipality from establishing the integrity of the
blood sample during the months that it was in Colorado. The judge
noted that the break in the chain of custody was caused by
McCormick, and that the blood was held in the custody of the
defendant's agents. McCormick has not challenged this ruling on
appeal.
At the end of trial, the defense attorney attempted to use
this ruling against the government by asking the jury to view the
Municipality's blood-test evidence with suspicion because the
Municipality had introduced no evidence to establish the integrity
of the blood while it was stored in Colorado. The trial judge
sustained the prosecutor's objection to this argument. When
McCormick's attorney later asserted that his argument had been
proper, the trial judge responded that the defense attorney's
argument was precluded by the earlier chain-of-custody ruling.
Hearing this, the defense attorney did not disagree with the trial
judge, nor did he seek reconsideration of that prior ruling. He
merely stated, "Okay. All right. I didn't understand that to be
the case."
In other words, McCormick's attorney never told the trial
judge that he believed the judge's ruling was wrong, nor did he
assert that the judge had imposed an unconstitutional restriction
on McCormick's argument to the jury. McCormick thus failed to
preserve an objection to the trial judge's ruling regarding the
scope of his argument. [Fn. 40] This being so, McCormick can
prevail on appeal only if he demonstrates that the trial judge's
ruling was plain error. [Fn. 41]
We find no plain error here. The trial judge ruled at the
beginning of McCormick's trial that the Municipality would be
excused from establishing the integrity of the blood sample during
its transportation to and from Colorado and during the many months
that it was stored there by a laboratory working under contract for
the defense attorney. In reliance on this ruling, the Municipality
did not introduce evidence pertaining to the shipment, storage, and
testing of the blood sample during its Colorado sojourn. Then, in
final argument, the defense attorney tried to take unfair advantage
of this ruling by arguing to the jury that they should view the
government's evidence with suspicion because the government made no
attempt to account for the integrity of the blood sample while it
was in Colorado.
We are not saying that McCormick had no right to question
whether the blood sample might have become tainted while it was in
the hands of his own agents. But McCormick chose not to litigate
this issue. Instead, he accepted the trial judge's ruling that the
government was excused from establishing the integrity of the sample
during those months. McCormick implicitly concedes that the ruling
was correct or, at least, that it was a proper exercise of the
judge's discretion. Under these circumstances, the trial judge did
not violate McCormick's right to procedural fairness when he
precluded McCormick from attacking the sufficiency of the
government's proof on this issue during final argument.
Does the mandatory forfeiture provision of AMC
sec. 9.28.020(C)(5) violate state law?
At McCormick's sentencing, the district court ordered
forfeiture of the motor vehicle he drove while intoxicated. This
forfeiture was ordered pursuant to AMC sec. 9.28.020(C)(5)(b), an
ordinance that governs sentencing for the municipal crime of driving
while intoxicated. This ordinance declares that if a defendant has
previously been convicted of driving while intoxicated (or breath-
test refusal) within the preceding ten years [Fn. 42], and if the
defendant has any interest in the vehicle that was used in the
commission of the offense, the court shall order forfeiture of the
defendant's interest in the vehicle.
McCormick claims that this provision of municipal law
violates the Alaska Constitution. He points out that, when a
defendant is convicted of DWI under state law, the sentencing court
has the power to order forfeiture of the defendant's vehicle only
if the defendant has previously been convicted two or more times.
[Fn. 43] Moreover, while the sentencing court has the power to
order forfeiture of the defendant's vehicle, forfeiture is not
mandatory. [Fn. 44] Based on these differences in the sentencing
provisions of state and municipal law, McCormick argues that the
municipal forfeiture provision violates the rule that state law
takes precedence over municipal law.
McCormick relies on the Alaska Supreme Court's decision
in Kodiak v. Jackson. [Fn. 45] In Jackson, the supreme court struck
down a provision of a municipal assault statute which required a
mandatory minimum sentence of imprisonment for a person convicted
of assaulting a police officer. The court held that this mandatory
minimum punishment was inconsistent with the power to suspend
sentences of imprisonment given to sentencing judges by state
statute (AS 12.55.080 085). [Fn. 46] McCormick argues that the
rule applied in Jackson likewise calls for invalidation of the
Anchorage forfeiture provision.
However, Jackson itself recognizes that a municipal
ordinance is not necessarily illegal simply because it is
inconsistent with state law. Rather, as Jackson acknowledges, the
true test is whether the municipal ordinance is irreconcilably at
odds with state law, so that enforcement of the municipal provision
defeats the operation of state law. [Fn. 47]
That is not the case here. The Alaska Legislature has
enacted AS 28.35.038, which specifically provides that,
"[n]otwithstanding other provisions of [Title 28], a municipality
may adopt an ordinance providing for the impoundment or forfeiture
of a motor vehicle ... involved in the commission of [DWI or breath-
test refusal]", and that such an ordinance "is not required to be
consistent with [Title 28 of the Alaska Statutes] or regulations
adopted under [that] title". Because the legislature has explicitly
granted municipalities the power to enact forfeiture ordinances that
are inconsistent with the corresponding provisions of state law,
municipalities do not violate state law when they exercise this
power. [Fn. 48]
McCormick presents an alternative argument. He contends
that, even though AS 28.35.038 may authorize municipalities to
impose harsher forfeitures than would be imposed under state law for
the offense of driving while intoxicated, AS 28.35.038 only
authorizes municipalities to ignore the provisions of Title 28 and
the state regulations promulgated under it. The statute says
nothing about authorizing municipalities to ignore the provisions
of Title 12 specifically, the provisions of AS 12.55.080 and 085
that empower sentencing judges to suspend the imposition or the
execution of sentence.
It is true that AS 28.35.038 does not specifically mention
these two provisions of Title 12. However, the statute must be
interpreted in the context of the various DWI and breath-test
refusal statutes contained in AS 28.35. As we recently stated,
The guiding principle of statutory construction
is to ascertain and implement the intent of the legislature. When
a statutory provision is part of a larger framework, even seemingly
unambiguous language must be interpreted in the context of the other
portions of the [whole]. Millman v. State, 841 P.2d 190, 194
(Alaska App. 1992).
Sakeagak v. State, 952 P.2d 278, 284 (Alaska App. 1998).
With regard to the offenses of driving while intoxicated
and refusing to submit to a breath test, the Alaska Legislature has
enacted a series of escalating mandatory minimum punishments (both
imprisonment and fines) for all offenders, even first offenders.
Thus, for these two crimes, the legislature has taken away a
sentencing court's power to suspend imposition of sentence and has
substantially abridged a sentencing court's power to suspend
execution of sentence.
Municipalities are generally authorized under AS 28.01.010
to enact traffic laws consistent with Title 28. Because of this
authorization, a municipality does not violate the sentencing
provisions of AS 12.55.080 085 if it follows the lead of the
Alaska Legislature and enacts mandatory jail sentences and mandatory
fines for the offenses of DWI and breath-test refusal.
We must interpret AS 28.35.038 against this backdrop. Had
the legislature never enacted AS 28.35.038, municipalities would
still be authorized to impose vehicle impoundments and forfeitures
for the offenses of driving while intoxicated and refusing a breath
test, providing these impoundments and forfeitures were consistent
with the corresponding state penalties. By enacting AS 28.35.038,
it appears that the legislature intended to authorize municipalities
to impose impoundments and forfeitures for these two offenses that
are harsher than those that can be imposed under state law.
In his brief to this court, McCormick suggests that the
final sentence of AS 28.35.038 was not intended to authorize
municipalities to impose harsher penalties than the ones provided
under state law. McCormick suggests instead that the purpose of
that final sentence was to authorize municipalities to make
impoundment and forfeiture of vehicles a part of the punishment for
violations of municipal DWI and breath-test refusal laws.
McCormick's interpretation ignores AS 28.01.010, which
authorizes municipalities to enact their own traffic laws, so long
as those laws are consistent with state law. As indicated above,
we believe that even if AS 28.35.038 had never been enacted,
municipalities would have been authorized to enact sentencing
provisions for DWI and breath-test refusal that included
discretionary forfeiture of vehicles.
McCormick's interpretation also overlooks the first
sentence of AS 28.35.038, which declares that municipalities may
adopt ordinances "providing for the impoundment or forfeiture of a
motor vehicle ... involved in the commission of an offense under
AS 28.35.030, 28.35.032, or an ordinance with elements substantially
similar to AS 28.35.030 or 28.35.032." That is, AS 28.35.038 not
only authorizes municipalities to adopt ordinances for the
forfeiture of a vehicle used in violation of a municipal DWI or
breath-test refusal law; the statute also expressly authorizes
municipalities to adopt ordinances for the forfeiture of vehicles
used in violation of the state DWI or breath-test refusal laws.
Given this legislative context, we conclude that the
purpose of the final sentence of AS 28.35.038 is to authorize
municipalities to enact vehicle impoundment and vehicle forfeiture
laws that are harsher than their state-law counterparts. We further
conclude that these harsher penalties can include the mandatory
forfeiture of a vehicle involved in either the offense of driving
while intoxicated or the offense of breath-test refusal. The legis-
lature has enacted mandatory minimum punishments for these two
offenses, thus restricting the courts' authority to suspend sentence
for these two crimes. Given this legislative policy, and given our
conclusion that the final sentence of AS 28.35.038 was intended to
authorize municipalities to impose even more onerous impoundments
and forfeitures, we conclude that the legislature's failure to
specifically mention AS 12.55.080 085 in the wording of AS 28.35.-
038 does not manifest a legislative intent to bar municipalities
from enacting mandatory forfeitures.
McCormick raises two final attacks on the mandatory
forfeiture provision. First, he notes that his vehicle was worth
more than $5000, and that he received a separate fine ($1500 with
$750 suspended). McCormick therefore argues that he was subjected
to a total monetary penalty exceeding the maximum fine for driving
while intoxicated ($5000). We rejected this same argument in
Hillman v. Anchorage. [Fn. 49] In Hillman, we held that a vehicle
forfeiture is not the equivalent of a fine, nor is a vehicle
forfeiture to be combined with a fine for purposes of determining
whether a defendant's fine exceeds the $5000 limit. We reaffirm our
decision in Hillman.
Second, McCormick asserts that forfeiture of a $5000
vehicle is grossly disproportionate to the offense of driving while
intoxicated, and that therefore the forfeiture represents an
"excessive fine" of the kind prohibited by the Eighth Amendment.
[Fn. 50]
In Hillman, we held that forfeiture of a vehicle worth
$8000 did not represent an excessive punishment for a defendant
convicted of his third DWI. We noted that the Ohio courts had
upheld the forfeiture of a vehicle valued at between $23,000 and
$30,000 when the defendant was convicted of his fourth DWI. [Fn.
51] Here, McCormick is a repeat DWI offender who has suffered
forfeiture of a vehicle worth $5000. This forfeiture is not so
"grossly disproportionate" as to run afoul of the Eighth Amendment.
Conclusion
The judgement of the district court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 28.35.032(e) reads: "The refusal of a person to submit to
a chemical test authorized under AS 28.33.031(a) or AS 28.35.031(a)
or (g) is admissible evidence in a civil or criminal action or
proceeding arising out of an act alleged to have been committed by
the person while operating ... a motor vehicle or ... aircraft or
watercraft while intoxicated."
Footnote 2:
574 P.2d 1285 (Alaska 1978).
Footnote 3:
See id. at 1288.
Footnote 4:
SLA 1980, ch. 129, sec. 12.
Footnote 5:
We note that courts from other states have reached this same
conclusion. See, e.g., State v. Wright, 867 P.2d 1214, 1216-17
(N.M. App. 1993), cert. denied, 869 P.2d 820 (N.M. 1994); City of
Seattle v. Stalsbroten, 978 P.2d 1059, 1064 (Wash. 1999).
Footnote 6:
Alaska Constitution, Article I, Section 9.
Footnote 7:
State v. Fish, 893 P.2d 1023 (Or. 1995); State v. Gilmour, 901
P.2d 894 (Or. App. 1995); State v. Green, 684 P.2d 575 (Or. App.
1984).
Footnote 8:
See State v. Nielsen, 936 P.2d 374, 379-380, 382-83 (Or. App.
1997).
Footnote 9:
See State v. Superior Court, 742 P.2d 286, 289 (Ariz. App.
1987); State v. Taylor, 648 So.2d 701, 704 (Fla. 1995); People v.
Roberts, 450 N.E.2d 451, 453-54 (Ill. App. 1983); Commonwealth v.
Blais, 701 N.E.2d 314, 318 (Mass. 1998) ("It is well-settled that
roadside sobriety tests are considered analogous to physical (as
opposed to testimonial) evidence."); State v. Wright, 867 P.2d 1214,
1215-17 (N.M. App. 1994) (listing cases); State v. Hoenscheid, 374
N.W.2d 128, 130 (S.D. 1985); Farmer v. Commonwealth, 404 S.E.2d 371,
373 (Va. App. 1991); City of Seattle v. Stalsbroten, 978 P.2d 1059,
1062 (Wash. 1999); State v. Mallick, 565 N.W.2d 245, 246-48 (Wis.
App. 1997).
Footnote 10:
604 P.2d 1106 (Alaska 1979).
Footnote 11:
Id. at 1107-08.
Footnote 12:
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966).
Footnote 13:
Palmer, 604 P.2d at 1109.
Footnote 14:
See the cases listed in footnote 7, supra.
Footnote 15:
State v. Nagel, 880 P.2d 451, 455 (Or. 1994); State v. Lowe,
926 P.2d 332, 334 (Or. App. 1996).
Footnote 16:
Leslie v. State, 711 P.2d 575, 576-77 (Alaska App. 1986).
Footnote 17:
See State v. Superior Court, 718 P.2d 171, 176 (Ariz. 1986);
People v. Carlson, 677 P.2d 310, 316-17 (Colo. 1984); State v.
Lamme, 563 A.2d 1372, 1374 (Conn. App. 1989), aff'd, 579 A.2d 484
(Conn. 1990); State v. Taylor, 648 So.2d 701, 703 (Fla. 1995); State
v. Golden, 318 S.E.2d 693, 696 (Ga. App. 1984); State v. Wyatt, 687
P.2d 544, 550-54 (Haw. 1984); State v. Ferreira, 988 P.2d 700, 705
(Idaho App. 1999); State v. Stevens, 394 N.W.2d 388, 390-91 (Iowa
1986), cert. denied, 479 U.S. 1057 (1987); State v. Little, 468 A.2d
615, 617 (Me. 1983); Commonwealth v. Blais, 701 N.E.2d 314, 316-17
(Mass. 1998); Hulse v. State, 961 P.2d 75, 86-87 (Mont. 1998); Dixon
v. State, 737 P.2d 1162, 1163-64 (Nev. 1987); People v. Califano,
680 N.Y.S.2d 700, 701 (N.Y. App. 1998); State v. Gray, 552 A.2d
1190, 1193-95 (Vt. 1988).
Footnote 18:
State v. Nagel, 880 P.2d 451 (Oregon 1994), and People v.
Carlson, 677 P.2d 310 (Colorado 1984).
Footnote 19:
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
(1968).
Footnote 20:
See Superior Court, 718 P.2d at 176; Lamme, 563 A.2d at 1374;
Taylor, 648 So.2d at 703; Blais, 701 N.E.2d at 317; Hulse, 961 P.2d
at 86-87; County of Dane v. Campshure, 552 N.W.2d 876, 878-79 (Wis.
App. 1996).
Footnote 21:
See Superior Court, 742 P.2d at 288; Taylor, 648 So.2d at 703-
04; Wyatt, 687 P.2d at 549; Blais, 701 N.E.2d at 317; State v.
Wright, 867 P.2d 1214, 1217 (N.M. App. 1993); Stalsbroten, 978 P.2d
at 1062; Campshure, 552 N.W.2d at 878-79.
Footnote 22:
See, e.g., Superior Court, 742 P.2d at 289; State v. Burns, 661
So.2d 842, 849 (Fla. App. 1995); Stalsbroten, 978 P.2d at 1062.
Footnote 23:
659 P.2d 1195, 1199 (Alaska 1983).
Footnote 24:
Id. at 1199.
Footnote 25:
765 P.2d 103 (Alaska App. 1988).
Footnote 26:
See also Burnett v. Anchorage, 678 P.2d 1364, 1369-1370 (Alaska
App. 1984) (rejecting the contention that Elson bars the government
from relying on evidence that a lawfully arrested defendant refused
to take a breath test).
Footnote 27:
671 P.2d 378, 384 (Alaska App. 1983).
Footnote 28:
See id. See also Jensen v. State, 667 P.2d 188 (Alaska App.
1983) (upholding the constitutionality of a nearly identical state
statute).
Footnote 29:
See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d
397, 402 n.7 (Alaska 1995); Wren v. State, 577 P.2d 235, 237 n.2
(Alaska 1978); Kristich v. State, 550 P.2d 796, 804 (Alaska 1976);
Lewis v. State, 469 P.2d 689, 691-92 (Alaska 1970).
Footnote 30:
Commentary to Evidence Rule 403, fifth paragraph.
Footnote 31:
See Snyder v. State, 930 P.2d 1274 (Alaska 1996); Anchorage v.
Serrano, 649 P.2d 256 (Alaska App. 1982).
Footnote 32:
See State v. Pe¤a, 684 P.2d 864 (Alaska 1984). The Pe¤a
decision was later modified by the enactment of AS 28.35.035, but
this statute does not apply to McCormick's case.
Footnote 33:
768 P.2d 634 (Alaska App. 1989).
Footnote 34:
825 P.2d 901 (Alaska App. 1992).
Footnote 35:
Cunningham, 768 P.2d at 634-35.
Footnote 36:
See id. at 636.
Footnote 37:
See id.
Footnote 38:
Birch, 825 P.2d at 902-03.
Footnote 39:
575 P.2d 1200, 1210-11 (Alaska 1978).
Footnote 40:
Hagans, Brown, & Gibbs v. First Nat'l Bank of Anchorage, 783
P.2d 1164, 1166 n.2 (Alaska 1989) ("Issues not properly raised ...
at trial are not properly before this court on appeal."); Wettanen
v. Cowper, 749 P.2d 362, 364 (Alaska 1988).
Footnote 41:
Burford v. State, 515 P.2d 382, 383 (Alaska 1973); Lumbermen's
Mutual Casualty Co. v. Continental Casualty Co., 387 P.2d 104, 109,
111-12 (Alaska 1963).
Footnote 42:
AMC sec. 9.28.020(E)(4) limits relevant convictions to those
within the ten years preceding the date of the present offense.
Footnote 43:
See AS 28.35.036(a).
Footnote 44:
See AS 28.35.036(c).
Footnote 45:
584 P.2d 1130 (Alaska 1978).
Footnote 46:
Id. at 1133.
Footnote 47:
Id. at 1132 (quoting Jefferson v. State, 527 P.2d 37, 43
(Alaska 1974)).
Footnote 48:
For the same reason, the Anchorage forfeiture provision does
not violate AS 28.01.010(a), which states that "[a] municipality may
not enact an ordinance that is inconsistent with the provisions of
this title or the regulations adopted under this title."
Footnote 49:
941 P.2d 211, 217 (Alaska App. 1997).
Footnote 50:
See Alexander v. United States, 509 U.S. 544, 558-59; 113 S.Ct.
2766, 2775-76; 125 L.Ed.2d 441 (1993) (holding that in personam
forfeitures are limited by the Eighth Amendment); Harmelin v.
Michigan, 501 U.S. 957, 996-1005; 111 S.Ct. 2680, 2702-07; 115
L.Ed.2d 836 (1991) (interpreting the Eighth Amendment to forbid only
"extreme sentences that are grossly disproportionate to the crime").
Footnote 51:
Hillman, 941 P.2d at 217. In the Court of Appeals of the State of Alaska
John McCormick, )
) Court of Appeals No. A-06557
Appellant, )
v. ) Order
) Petition for Rehearing
Municipality of Anchorage, )
)
Appellee. ) Date of Order: 3/10/2000
)
Trial Court Case # 3AN-96-01024CR
Before: Coats, Chief Judge, and Mannheimer and Stewart Judges
On consideration of the Petition for Rehearing, filed on
February 7, 2000,
It is Ordered:
1. The Petition for Rehearing is Granted.
2. Opinion No. 1658, issued on January 28, 2000, is Withdrawn
and is superseded by Opinion No. 1667 is issued on this date in its
place.
Entered by direction of the court.
Clerk of the Appellate Courts
Marilyn May
cc: Court of Appeals Judges
Central Staff
Judge Lohff
Trial Court Appeals Clerk
West Publishing for Opinions
Other Publishers
Distribution:
Frederick T Slone
Kasmar & Slone
3003 Minnesota Drive #301
Anchorage AK 99503-3673
Benjamin O Walters Jr
Deputy Municipal
Prosecutor
420 L Street #100
Anchorage AK 99501
