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Hernandez v State (07/20/2001) ap-1756
Hernandez v State (07/20/2001) ap-1756
NOTICE
The text of this opinion can be corrected before the
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:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM A. HERNANDEZ, )
) Court of Appeals No. A-7366
Appellant, ) Trial Court No. 4FA-98-4027 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1756 July 20, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mark I. Wood, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Nancy R. Simel, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
William A. Hernandez appeals his conviction for driving
while intoxicated. He claims that the police deterred him from
exercising his right to obtain an independent blood test, by leading
him to believe that the result of the blood test would not be
admissible in court. Hernandez argues that, because the police
deterred him from seeking an independent blood test, the superior
court should have suppressed the result of Hernandez's breath test.
Superior Court Judge pro tem Mark I. Wood found that the
officer who arrested Hernandez did, through his conduct, lead
Hernandez to believe that the blood test result would not be
admissible. However, Judge Wood did not expressly state whether
Hernandez's interpretation of the officer's conduct was reasonable
under the circumstances. Because we conclude that the
reasonableness of Hernandez's belief is the factor that determines
whether he is entitled to suppression of the breath test result, we
remand this case to the superior court for a finding on this issue.
Underlying facts and the contentions of the parties
In the early morning of December 24, 1998, Hernandez was
arrested in Fairbanks for driving while intoxicated. After
Hernandez submitted to a breath test, he chose to exercise his right
to obtain an independent blood test at his own expense.
The arresting officer, Jonathan Terland, informed
Hernandez that, because it was the middle of the night, Fairbanks
Memorial Hospital was the only facility available to perform the
blood test. Terland told Hernandez that he would take him to the
hospital, but Hernandez would have to make arrangements for someone
to meet them at the hospital and bring money to pay the testing fee.
Hernandez called his fianc‚e and asked her to bring $500 to
Fairbanks Memorial Hospital to pay for the test. Terland then
transported Hernandez to the hospital.
At the hospital, the receptionist told Hernandez and his
fianc‚e that, although hospital staff would perform the blood test,
the result of the test would not be admissible in court. When
Hernandez asked why the test result would not be admissible, the
receptionist replied that the hospital did not follow all of the
court rules that governed blood evidence. For example, she said,
the hospital did not maintain sufficient records to establish the
"chain of custody" of the blood sample.
The receptionist did not know what she was talking about,
but Hernandez and his fianc‚e did not know this. Understandably
surprised and upset that they were being asked to spend $500 for a
test of dubious value, Hernandez and his fianc‚e turned to Officer
Terland for his response to the receptionist's statements. Terland
gave them a confused look and shrugged his shoulders. Hernandez and
his fianc‚e interpreted the officer's actions as confirmation of the
receptionist's statements.
At this point, Hernandez told Terland that he might as
well take him back to the station. Terland did so.
Hernandez contends that, because of this series of events,
he was effectively denied his right to an independent blood test,
and so his breath test result should have been suppressed. The
State admits that the hospital receptionist's advice was completely
wrong, but the State argues that the receptionist's misinformation
should not be attributed to Officer Terland. The State notes that
the hospital receptionist was an agent of the hospital, not an agent
of the government. The State contends that because the receptionist
did all the talking, Hernandez can not properly claim that he was
misled by government agents about the legal consequences of having
the blood test performed at the hospital. The State further
contends that Terland was not obligated to correct the
misinformation imparted by the receptionist, since she was not a
government agent.
Should the State be held accountable for Hernandez's
erroneous belief concerning the admissibility of the blood test
result?
Under the due process clause of the Alaska Constitution,
a person arrested for driving while intoxicated is entitled to
police assistance in obtaining an independent test to ascertain the
level of alcohol in the arrestee's blood. [Fn.
1] If the State interferes with an arrestee's right to an
independent blood test, the arrestee is entitled to suppression of
their breath test result. [Fn. 2]
We have previously ruled that "interference" is not limited
to physical obstruction of the test, but can also occur when the
police verbally dissuade the arrestee from seeking the test. In Lau
v. State [Fn. 3], a corrections officer who was a friend of Lau's
advised him not to ask for a blood test; the officer warned Lau that
the test result would "nail [him]". [Fn. 4] Based on this advice,
Lau chose not to seek a blood test. We ruled that even if the
officer honestly believed "that Lau's interests would be best served
if he declined a blood test[,] the fact remain[ed] that [the
officer] dissuaded Lau from exercising his rights." [Fn. 5] We
further ruled that the State should be held accountable for the
results of the officer's advice; we noted that "[the officer] was
in a position [to dissuade Lau from taking the test] solely because
he was a government officer having custody of Lau". [Fn. 6]
Turning to the facts of Hernandez's case, it is undisputed
that Hernandez was dissuaded from seeking an independent blood test
because of the false information he received (that the blood test
result would not be admissible in court). The question is whether
the State should be held responsible for this false information.
The State relies on the doctrine that the government is
not responsible for the consequences of a defendant's misimpression
or lack of understanding unless that misimpression or lack of
understanding arises from the conduct of government agents. [Fn.
7] According to the State, the hospital receptionist was the sole
source of the bad information that Hernandez relied on. Thus, the
State argues, even though Hernandez's decision to forgo the blood
test may have been unfortunate, that decision can not be laid at the
State's doorstep.
The State's argument overlooks the fact that Officer
Terland convinced Hernandez to go to the hospital for the blood test
by telling Hernandez that the hospital was the only available
facility for performing the test. Because Terland told Hernandez
that the hospital was the only place where Hernandez could exercise
his right to an independent test, one might reasonably conclude that
Terland had an obligation to clarify matters when the hospital
receptionist told Hernandez that the hospital could not or would not
perform the test he needed (i.e., could not or would not perform the
test in a manner that would allow the test result to be admitted as
evidence in a court proceeding).
More importantly, the State's argument that Terland did
nothing to confirm or ratify the receptionist's statements is
seemingly inconsistent with the superior court's findings of fact.
Superior Court Judge pro tem Mark I. Wood found that, when Terland
shrugged his shoulders and made a face, both Hernandez and his
fianc‚e "took the officer's nonverbal response as an affirmation of
what the receptionist said."
True, Officer Terland testified that, when he engaged in
this conduct, he did not subjectively intend to confirm the
receptionist's statements. He told the court that he was surprised
by the receptionist's statements, and he did not know for sure
whether her advice was right or wrong. For this reason, Terland
declared, he did not purposely do anything to demonstrate either
agreement or disagreement with the receptionist's statements.
But although Terland may not have subjectively intended
to confirm the receptionist's false information, Judge Wood
nevertheless concluded that the officer's gesture was "ambiguous".
By labeling the officer's conduct "ambiguous", Judge Wood appears
to have found that Hernandez (and other reasonable persons in his
position) could reasonably have interpreted the officer's conduct
as a confirmation of the receptionist's statements.
As we held in Lau, the officer's good faith is not
determinative of whether the officer's conduct violated Hernandez's
right to due process. Hernandez interpreted the officer's conduct
as a confirmation that the blood test result would not be
admissible. If Hernandez acted reasonably in reaching this
interpretation, then the State should be held accountable for the
consequences of the officer's conduct accountable for the fact
that the officer's conduct was a substantial factor in dissuading
Hernandez from pursuing his right to an independent blood test.
If, on the other hand, Hernandez's interpretation of the
officer's conduct was unreasonable, then we would be left to resolve
a more difficult issue: whether, under the circumstances of this
case, Officer Terland was under an affirmative duty to rebut or at
least question the receptionist's statements.
Because this issue is more difficult, and because we would
not need to resolve this issue if Hernandez's interpretation of the
officer's conduct was reasonable, we conclude that we should remand
Hernandez's case to the superior court. As we explained above,
Judge Wood labeled Terland's conduct "ambiguous"; it thus appears
that Judge Wood may have already found that Hernandez acted
reasonably when he interpreted Terland's conduct as a confirmation
of the receptionist's statements. But Judge Wood did not focus on
this issue as potentially determinative of the litigation, so we
believe that the prudent course lies in remanding this case to him
for an express finding on this question.
Judge Wood should determine whether, under the totality
of the circumstances, Hernandez's interpretation of Terland's
conduct was reasonable. Judge Wood is authorized, but is not
obliged, to receive additional evidence on this issue. The judge
shall transmit his finding(s) to this court within sixty days of the
issuance of this opinion. We will then renew our consideration of
Hernandez's appeal.
Conclusion
This case is REMANDED to the superior court to determine
whether Hernandez's interpretation of Terland's conduct was
reasonable.
We retain jurisdiction of this case.
FOOTNOTES
Footnote 1:
See Snyder v. State, 930 P.2d 1274, 1277 (Alaska 1996);
Gundersen v. Anchorage, 792 P.2d 673, 675-76 (Alaska 1990).
Footnote 2:
See Ward v. State, 758 P.2d 87, 89-91 (Alaska 1988); Lau v.
State, 896 P.2d 825, 828 (Alaska App. 1995).
Footnote 3:
896 P.2d 825 (Alaska App. 1995).
Footnote 4:
Id. at 827.
Footnote 5:
Id. at 828.
Footnote 6:
Id.
Footnote 7:
See Colorado v. Connelly, 479 U.S. 157, 167; 107 S.Ct. 515,
521; 93 L.Ed.2d 473 (1986).
