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Moses v State (10/05/2001) ap-1767
Moses v State (10/05/2001) ap-1767
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
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JONATHAN MOSES, )
) Court of Appeals No. A-7708
Appellant, ) Trial Court No. 4FA-S99-1352 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1767 - October 5, 2001]
)
Appeal from the District Court, Fourth Judicial
District, Fairbanks, Jane F. Kauvar, Judge.
Appearances: Robert John, Fairbanks, for
Appellant. Alicia D. Porter, Assistant District Attorney, Harry
Davis, District Attorney, Fairbanks, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Following a jury trial, Jonathan Moses was convicted for
driving while intoxicated (DWI) and refusing to submit to a chemical
test (refusal). [Fn. 1] On appeal, Moses contends that District
Court Judge Jane F. Kauvar erred when she found that Moses was
provided the right to make a telephone call prior to deciding
whether to submit to a breath test, that an administrative decision
at Moses's license revocation hearing did not collaterally estop the
state from proving that Moses was provided the right to make a
telephone call, that the state troopers were not required to
videotape Moses's refusal to take the breath test, and that Moses
validly waived his right to an independent chemical test. For the
reasons below, we affirm Moses's convictions.
Facts and Proceedings
On May 15, 1999, at approximately three in the morning,
Alaska State Trooper Patrick S. Johnson stopped a vehicle that was
repeatedly leaving its lane of travel and crossing the right fog
line on Chena Hot Springs Road near Fairbanks. Johnson contacted the
driver, Moses, to determine whether he was driving while intoxicated
. Upon contact, Johnson smelled a strong odor of alcohol coming
from Moses's breath and person, and saw that Moses had bloodshot,
watery eyes, slurred speech, and a swaying stance.
Johnson had Moses perform some field sobriety tests.
Moses failed the horizontal gaze nystagmus test, only partially
completed the walk-and-turn and the one-leg- stand tests, and
refused to do any other tests. Moses submitted to a portable breath
test, and his breath alcohol content was .190 percent. Johnson also
found alcohol in Moses's vehicle, and Moses admitted that he had
consumed alcohol that evening.
After arresting Moses for DWI, Johnson allowed Moses to
call his wife from the scene of the traffic stop. The call lasted
approximately one minute. Johnson then transported Moses to the
station for an Intoximeter test.
After they arrived at the station, Moses again asked to
make a phone call. Johnson asked if Moses wanted to call his wife
or a public defender, and Moses said that he wanted to call his
wife. During this conversation, Johnson inquired whether Moses was
going to have his wife call a public defender. While the transcript
indicates that Moses's response is "indiscernible," the record as
a whole shows that Moses indicated that he wanted to call his wife
to discuss arranging bail. Moses gave no indication at the station
that he wanted his wife to call an attorney.
When they returned to the Intoximeter, Johnson asked Moses
if he wanted to call a public defender. Moses said no, and the DWI
processing proceeded. When the Intoximeter 3000 was ready, Moses
refused to provide a breath sample. The DWI processing at the
station, including the refusal, was audiotaped but was not
videotaped. After Moses refused, he was advised of his right to an
independent chemical test. He signed the notice of this right,
indicating that he did not want the independent test.
Subsequently, Moses moved to suppress the evidence. Among
other things, Moses argued that Johnson, by not allowing him a
second call to his wife while at the station, had violated AS
12.25.150(b) and Zsupnik v. State. [Fn. 2] He also argued that a
Division of Motor Vehicles (DMV) hearing officer's decision
rescinding Moses's license revocation because of Johnson's failure
to allow this call collaterally estopped the state from asserting
that Johnson had complied with AS 12.25.150(b). Finally, Moses
sought suppression on the grounds that the refusal was not
videotaped, and that his waiver of the independent test was not
valid.
Following an evidentiary hearing, Judge Kauvar found that
Johnson had complied with AS 12.25.150(b) when he allowed Moses to
telephone Moses's wife while still in the field. Although Judge
Kauvar ruled that a second call was not required upon Moses's
arrival at the police station, she also found that Johnson had
offered Moses the opportunity to contact an attorney at the station.
Judge Kauvar also ruled that the state was not collaterally estopped
by the decision at the license revocation hearing, that Moses's
refusal did not have to be videotaped, and that Moses's waiver of
the independent test was valid.
After a jury trial, Moses was convicted of DWI and
refusal. This appeal follows.
Did the police comply with AS 12.25.150(b) and Zsupnik?
Moses first contends that Johnson violated AS 12.25.150(b)
[Fn. 3] and Zsupnik because he did not allow Moses to call his wife
at the police station. Relying on Wardlow v. State, [Fn. 4] Moses
argues that AS 12.25.150(b) is not triggered until a DWI arrestee
is transported to a police station for DWI processing, and that any
prior contact cannot satisfy AS 12.25.150(b). Moses, however,
misapplies our decision in Wardlow. While we concluded that "an
arrestee's statutory right to 'immediate' communication with
attorneys, relatives, and friends normally does not attach until the
arrestee is brought to a place of detention," [Fn. 5] we did not hold
that a communication whether in person or by telephone completed
after an arrest but before arrival at a place of detention could not
satisfy AS 12.25.150(b).
In this case, Moses was allowed to contact his wife
immediately after his arrest, while still in the field. Moses was
able to tell his wife that he had been stopped, the location of the
stop, that he had been or was being arrested for DWI, that he was
being transported to a police station, and that she would have to
retrieve their vehicle. According to the testimony of Moses and his
wife, Moses also was able to discuss a considerable number of
details about the stop Moses told his wife that he thought Johnson
was tailgating, that Moses had moved to the right onto the shoulder
of the road in an effort to have Johnson pass him, and that when
Moses finally pulled onto an adjacent bike path, Johnson stopped
behind him and then turned on his vehicle's emergency lights.
Additionally, Johnson testified that he heard Moses and his wife
discuss bail. And while Moses claims that the call lasted no more
than one minute, Johnson said he allowed Moses as much time as he
needed.
Although Moses also argues that the phone call was not
completed because of a bad connection, the record does not support
this argument. Moses relies on Johnson's testimony that he thought
that Moses might have had a bad connection, or that Moses was having
trouble with the phone. But Moses and his wife did not testify that
there was a bad connection or that other technical problems had
interfered with their conversation.
We find that the record supports Judge Kauvar's findings
that Moses, after his arrest for DWI and prior to taking the breath
test, had an opportunity to make a phone call to his wife.
Accordingly, we conclude that there was no violation of AS
12.25.150(b) or Zsupnik.
In addition, Moses by asserting that he wanted his wife
to call an attorney suggests there was a violation of Copelin v.
State. [Fn. 6] Copelin provides that when a DWI arrestee asks to
consult a lawyer, "the arrestee [shall] be afforded the right to do
so before being required to decide whether to submit to a
breathalyzer test." [Fn. 7] But Copelin premised this right on
AS 12.25.150(b), and we have just held that Moses's call to his wife
satisfied this statute. Moreover, as set out above, the record
demonstrates that Moses wanted to make the second call to his wife
to arrange bail, not to contact an attorney. Finally, even if Moses
were entitled to an additional call to contact an attorney, he was
given that opportunity while at the police station and declined it.
Therefore, Copelin was not violated.
Was the state collaterally estopped?
Moses next contends that the state was collaterally
estopped from asserting that it had complied with AS 12.25.150(b)
because Moses already had received a favorable decision on this
issue from a DMV hearing officer. Although collateral estoppel
applies in criminal proceedings, [Fn. 8] it does not under the
circumstances of this case.
The issue at Moses's DMV hearing was whether Moses's
license should be revoked because he had refused to submit to a
breath test. Moses challenged the revocation on the "grounds [that
there was] no valid basis for stop and contact [and] no probable
cause for [the] arrest." He did not, however, challenge the action
on the ground that AS 12.25.150(b) had been violated. During the
DMV hearing, while Moses was cross-examining Johnson, the hearing
officer became aware that an audiotape had been made and that it
established that Johnson had not allowed Moses to call his wife
while he was at the station.
The hearing officer asked for a copy of the tape, and the
hearing was continued. After the hearing officer had listened to
the tape, the hearing reconvened. After the hearing restarted, the
hearing officer said based on the tape that "[W]hat we do in this
office is we rescind [the revocation action] if [police] don't
allow [arrestees] to contact a family member and that's what I'm
going to do." Because of the way the issue was raised, the hearing
officer was never told that Johnson had allowed Moses to telephone
his wife before Moses arrived at the station.
(We note that while the hearing officer rescinded the
revocation action, she also ruled on and rejected the contentions
that Moses had raised and had actually litigated: she found that
there was a valid basis for the stop and contact and that probable
cause for the arrest existed.)
The purpose of collateral estoppel is to preclude re-
litigation of decided issues. [Fn. 9] For collateral estoppel to
apply, the issue to be precluded must (among other things) be
identical to that decided in the first action. [Fn. 10] We find
that the issue before the hearing officer (whether Moses's license
should be revoked because he refused to submit to a breath test) was
not identical to the issue before Judge Kauvar (whether AS
12.25.150(b) had been violated).
Moreover, not only do the issues need to be identical, but
our supreme court recently held, relying on the Restatement (Second)
of Judgments, [Fn. 11] that collateral estoppel does not apply
unless the issue sought to be precluded is "actually litigated." [Fn.
12] In In re Adoption of A.F.M., the supreme court stated,
Our cases have adopted this
Restatement standard: "The doctrine of collateral estoppel 'bars
relitigation, even in an action on a different claim, of all issues
of fact or law that were actually litigated and necessarily decided
in [a] prior proceeding.'" And in applying the standard, we have
said that an issue is "actually litigated" when it "is properly raised
by the pleadings or otherwise, is submitted for determination, and
is determined." [Fn. 13]
In A.F.M., the court found that the issue sought to be precluded
(whether a sexual assault had occurred) was not "actually litigated"
in this sense. [Fn. 14] The A.F.M. court held that while
the issue undeniably cropped up in
[the victim's testimony in a prior Washington action] and was
decided by the commissioner, the parties never "properly raised" it,
"by the pleadings or otherwise"; nor did they "submit[][it] for
determination." Because the issue was not "actually litigated," the
Washington court's finding on sexual assault did not preclude . .
. litigating the issue in the Alaska adoption proceeding. [Fn. 15]
Although the issue Moses sought to preclude in his
criminal case "undeniably cropped up" during the testimony in the
earlier proceeding, and formed the basis for the hearing officer's
decision, Moses never "properly raised" the issue by "the pleadings
or otherwise." In reality, the record shows that the DMV hearing
officer rescinded the revocation not as a result of the issues that
were litigated, but on policy grounds based on a misunderstanding
of the facts. In short, the issue that Moses asserted was
collaterally precluded was not actually litigated at the license
revocation hearing.
Accordingly, we conclude that the state was not
collaterally estopped from proving that AS 12.25.150(b) was
satisfied.
Are police required to videotape breath test refusals?
Moses next contends, relying on Suiter v. State, [Fn. 16]
that police are required to videotape breath test refusals. He
argues that videotapes are necessary for a fair trial in refusal
cases. Suiter, however, does not support Moses's contention, nor
have we held that police have a duty to videotape the DWI processing
or the act of refusal. [Fn. 17] Although we noted in Swanson v.
Juneau [Fn. 18] that we were not addressing whether refusals should
be videotaped, we rejected Swanson's general claim that videotaping
the entire DWI processing was required to ensure a fair trial. [Fn.
19] We also ultimately held that the government's decision to
audiotape rather than to videotape the DWI processing was "neither
arbitrary nor unreasonable, and it did not violate Swanson's rights."
[Fn. 20] In Moses's case, the DWI processing, including the
refusal, was audiotaped.
Additionally, one of our reasons in Suiter for rejecting
a claim similar to Moses's was that Suiter had not "indicated in any
concrete way how [a videotape] might have aided him." [Fn. 21] Moses
has not explained "in any concrete way" how a videotape of his
refusal, as opposed to the audiotape, would have aided him.
Accordingly, we conclude that there was no error.
Did Moses waive his right to an independent test?
Lastly, Moses contends that Judge Kauvar erred when she
found that Moses validly waived his right to an independent test.
Moses argues that Judge Kauvar found that Moses did not understand
this right, but wrongly concluded that Moses had the duty to call
an attorney to clear up any misunderstanding. Although Judge Kauvar
did indicate that Moses could have called an attorney to discuss the
independent test, the record does not show that she accepted Moses's
claim that he did not understand the test. Nor would the record
support such a finding.
At the evidentiary hearing, Moses conceded that he was
given notice of his right to an independent test; he also gave the
reasons why he declined to get such a test. He testified that:
I told [Trooper Johnson] that I
didn't want to take that blood test. . . . I thought they [were]
trying to get more evidence . . . for them . . . for their case[.]
. . . I didn't think [that the test] would have been in my favor.
That's why I didn't take the blood test. . . . I didn't think it
would have been evidence for me.
This testimony demonstrates that Moses had a sufficient
understanding of the independent blood test; he knew that it was an
opportunity to get evidence of his blood alcohol content. The
reason he declined the independent blood test was that he did not
want to give the troopers evidence of his intoxication (which was
consistent with his earlier decision to refuse to submit to the
required breath test). While Moses now claims that he would have
asked for the test had he known that the test would have resulted
in "evidence for [him]," or have been "in [his] favor," this does not
support his argument that he lacked an understanding of the test.
In Crim v. Anchorage [Fn. 22] we rejected a similar claim.
We concluded that a waiver could be valid even though the arrested
motorist might not be able to "assess[] the potential advantages and
disadvantages of availing himself of the [test];" [Fn. 23] in other
words, a valid waiver did not require that Crim know whether the
independent test results would be favorable or unfavorable. We
concluded that it was sufficient that Crim was notified of the
right, that the record showed that he was aware that he had been
arrested for DWI, and that he generally understood that the purpose
of the independent test was to obtain evidence of his blood alcohol
content.
In Moses's case, he was notified of his right to the test,
and he chose not to obtain an independent test because he "didn't
think . . . it would have been in [his] favor" and because he "didn't
think it would have been evidence for [him]." In short, Moses's
argument, like Crim's, is not that he lacked an understanding of his
right to the independent test, but that he did not know whether the
test results would be favorable to him.
Moses's testimony shows that he was aware that he had been
arrested for DWI and that he was informed of the right to an
independent test. After refusing the mandatory breath test, Moses
did not want to generate evidence that could be used against him.
This shows that Moses made a knowing and intelligent waiver of his
right to obtain an independent chemical test. Accordingly, we find
no error.
Conclusion
The convictions are AFFIRMED.
FOOTNOTES
Footnote 1:
AS 28.35.030(a)(1); AS 28.35.032, respectively.
Footnote 2:
789 P.2d 357 (Alaska 1990).
Footnote 3:
AS 12.25.150(b) provides in part: " Immediately after an arrest,
a prisoner shall have the right to telephone or otherwise
communicate with the prisoner's attorney and any relative or friend."
See also Alaska Criminal Rule 5(b).
Footnote 4:
2 P.3d 1238 (Alaska App. 2000).
Footnote 5:
Id. at 1249-50.
Footnote 6:
659 P.2d 1206 (Alaska 1983).
Footnote 7:
Id. at 1215.
Footnote 8:
See State v. Williams, 855 P.2d 1337, 1342 (Alaska App. 1993).
Footnote 9:
See Snook v. Bowers, 12 P.3d 771, 777 (Alaska 2000).
Footnote 10:
See id.
Footnote 11:
Restatement (Second) of Judgments sec. 27 (1982).
Footnote 12:
In re Adoption of A.F.M., 15 P.3d 258, 268-69 (Alaska 2001).
Footnote 13:
Id. at 268 (citations omitted).
Footnote 14:
See id. at 269.
Footnote 15:
Id.
Footnote 16:
785 P.2d 28 (Alaska App. 1989).
Footnote 17:
Cf. Swanson v. Juneau, 784 P.2d 678, 681 (Alaska App. 1989).
Footnote 18:
784 P.2d 678.
Footnote 19:
See id. at 680 n.2, 681.
Footnote 20:
Id. at 681.
Footnote 21:
Suiter, 785 P.2d at 31.
Footnote 22:
903 P.2d 586 (Alaska App. 1995).
Footnote 23:
Id. at 588.
