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MacLeod v State (08/17/2001) ap-1759
MacLeod v State (08/17/2001) ap-1759
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
BRADLEY A. MacLEOD, )
) Court of Appeals No. A-7730
Appellant, ) Trial Court No. 3AN-00-172 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1759 August 17, 2001]
)
Appeal from the District Court, Third Judicial
District, Anchorage, Gregory J. Motyka, Judge.
Appearances: Eugene B. Cyrus, Eagle River, for
Appellant. Leslie N. Dickson, Assistant District Attorney, Susan
Parkes, District Attorney, Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In the early morning of January 1, 2000, Alaska State
Trooper Sergeant Lee Oly arrested eighteen-year-old Bradley A.
MacLeod for driving while intoxicated. MacLeod submitted to a
breath test, which showed that his blood alcohol level was .165
percent.
Because MacLeod was only eighteen years old, Sergeant Oly
telephoned MacLeod's mother, Kim Campbell, and asked her to come to
the trooper station so that MacLeod could be released to her
custody.
Campbell arrived at the station at about the same time
that Oly was telling MacLeod about his right to an independent blood
test. After Oly informed Campbell of the result of her son's breath
test, Campbell asked Oly a series of questions concerning the
independent blood test. Oly initially told Campbell that he could
not give her legal or medical advice about the blood test. But
because Campbell seemed distraught and uncertain as to what to do,
Oly took pity on her. He turned off his tape recorder and, in
confidence, he told Campbell that, in his experience, if a blood
test and a breath test are administered contemporaneously, the blood
test reading will be higher.
After receiving this information from Oly, Campbell
conferred with her son. Based on his mother's advice, MacLeod chose
not to take the blood test.
MacLeod was convicted of DWI at a bench trial. He now
appeals his conviction, arguing that Sergeant Oly unlawfully
dissuaded him from exercising his right to an independent blood
test.
Although Sergeant Oly apparently acted in good faith and
was only trying to help MacLeod, we hold that the officer exceeded
his proper role when he dissuaded MacLeod from exercising an
arrestee's right to an independent blood test. We therefore
conclude that MacLeod's breath test result must be suppressed.
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 chemical 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 an independent 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
Lau's breath test result should be suppressed because the officer
dissuaded Lau from exercising his rights. [Fn. 5] We reached this
conclusion even though it appeared that the officer acted in good
faith i.e., in the honest belief that Lau's interests would be
best served by declining the blood test. [Fn. 6] 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. 7]
In MacLeod's case, the State argues that Sergeant Oly only
informed Campbell of his professional experience with the blood test
and never expressly told Campbell that her son should refuse the
blood test. This argument is unconvincing. Oly's words and conduct
clearly amounted to "advice". When Campbell first asked Oly whether
her son should take the blood test, Oly responded that he was barred
from offering her advice on that topic. He then turned off his tape
recorder and told Campbell, in confidence, that the blood test
reading would likely be higher than the breath test reading. A
reasonable person in Campbell's position would conclude that Oly
"went off-record" in order to give her the kind of advice that he
had just explained he should not give.
We do not accuse Sergeant Oly of dishonesty or of trying
to manipulate MacLeod's choice in order to strengthen the State's
case. The record strongly suggests that Oly was honestly trying to
help Campbell and MacLeod, and that he turned the tape recorder off
because he suspected that his advice to them might be inconsistent
with the aim of obtaining the best evidence against MacLeod.
Further, the record suggests that Oly's advice was accurate. Even
MacLeod's attorney agreed that, in his experience, blood test
readings tend to be higher than breath test readings.
But we reiterate our holding in Lau: a government officer
having custody of a motorist arrested for DWI should not attempt to
dissuade the motorist from invoking their right to an independent
blood test. This prophylactic rule admittedly penalizes even the
well-intentioned advice that Oly gave to Campbell in this case. But
the rule is necessary to prevent mischief in a recurring situation
that is fraught with the potential for governmental overreaching.
MacLeod was convicted at a bench trial. Normally, when
a defendant is tried without a jury and we later conclude that some
of the government's evidence should have been suppressed, we would
vacate the defendant's conviction and direct the trial judge to re-
assess the defendant's guilt or innocence without reference to the
suppressed evidence. But in MacLeod's case, it appears that the
bench trial was a "slow plea" a procedure designed to allow
MacLeod to preserve an appellate issue that was not dispositive for
purposes of Cooksey v. State. [Fn. 8] After the district court
denied MacLeod's suppression motion, not only did MacLeod waive his
right to a jury, but he also agreed to be tried on stipulated facts.
Under these circumstances, we conclude that MacLeod should
be given a choice: either to consent to a second bench trial, or
to rescind his waiver of jury trial and be tried by jury.
MacLeod's conviction for driving while intoxicated is
REVERSED, and this case is remanded to the district court for
further proceedings on the complaint.
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:
See id. at 828.
Footnote 6:
See id.
Footnote 7:
Id.
Footnote 8:
524 P.2d 1251, 1255-57 (Alaska 1974) (allowing a defendant to
plead no contest but at the same time preserve a dispositive issue
for appeal).
