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Yang v. State (02/11/2005) ap-1969
Yang v. State (02/11/2005) ap-1969
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
IL SEUNG YANG, )
) Court of Appeals No.
A-8516
Appellant, )
Trial Court No. 2KB-02-446 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1969 February 11, 2005]
)
Appeal from the District Court, Second Judi
cial District, Kotzebue, Richard H. Erlich,
Judge.
Appearances: Deborah Burlinksi, Anchorage,
for the Appellant. Windy O. East, Assistant
District Attorney, Kotzebue, and Gregg D.
Renkes, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Il Seung Yang appeals his conviction for refusing to
submit to a breath test following his arrest for driving while
intoxicated.1 Yang argues that his proficiency in English was so
poor that he did not understand the offer of the breath test or
his legal obligation to take the test. He argues in the
alternative that the police failed to adequately advise him of
the consequences of refusing the breath test.
Yang also challenges the trial judges decision to allow
the State to rebut these contentions by presenting evidence that
Yang had taken the breath test on a prior occasion. And Yang
argues that the prosecutor made statements to the jury implying
that Yang had a prior conviction for driving while intoxicated,
and that the trial judge should therefore have declared a
mistrial.
Finally, Yang argues that the sentencing judge
misconstrued the record when he concluded that Yang had engaged
in bad driving in this case, and when he used this purported bad
driving to justify an increase in the length of Yangs drivers
license suspension.
For the reasons explained here, we reject all of Yangs
contentions and we affirm his conviction and his sentence.
Underlying facts
Early on the morning of June 23, 2002, two
off-duty corrections officers went to the Kotzebue
police station and reported that they had seen an Asian
male driving a Toyota pickup truck very fast on Airport
Way. According to the corrections officers, the pickup
truck was weaving across the road, and they suspected
that the driver might be intoxicated.
While they were in the police station making
their report, the corrections officers happened to see
the same pickup truck speed by the police station.
Shortly afterward, the officers located this pickup
truck parked in front of a hotel, and they radioed the
trucks location to the police.
Kotzebue Police Officer Peter Steen contacted
the trucks owner, Yang, in the lobby of the hotel.
Yang confirmed that the truck was his, and he
acknowledged that he had been driving the truck. Yang
smelled of alcoholic beverages; he swayed as he stood,
and he had red, watery eyes. Yang agreed to perform
field sobriety tests; at the conclusion of these tests,
Steen arrested him for driving while intoxicated.2
Yang was initially cooperative, but after he
was transported to the Kotzebue jail for a breath test,
he became less so. At the jail, Steen read Yang the
implied consent form warning Yang that, if he refused
to take the breath test, he would be charged with a
crime and would lose his drivers license, and also
warning Yang that his refusal to take the test could be
used against him in other proceedings. Yang responded,
I dont care, and he refused to take the test.
Based on these events, Yang was charged with
driving while intoxicated and breath test refusal.
Following a jury trial, Yang was acquitted of driving
while intoxicated, but he was convicted of refusing to
submit to the breath test.
The trial judges ruling that the State could introduce
evidence of a prior occasion when Yang took the breath
test
Yangs defense to the breath test refusal
charge was that his command of English was so poor that
he had not understood Officer Steens request to take
the test or the warnings concerning the consequences of
refusing the test.
Yang took the stand at his trial and
testified (through an interpreter) that, because of his
poor comprehension of English, he had not understood
that he had been arrested for driving while
intoxicated, nor had he understood that he would be
charged with another crime for refusing to take a
breath test. Yang asserted that he had not understood
what Officer Steen said to him at the police station
that, in particular, he did not know the meanings of
the words charge and refusal. Yang testified that he
did not understand that he was entitled to an
independent test, nor that he would be charged with a
separate crime if he did not take the breath test.
Following this testimony, the trial judge
(Superior Court Judge Richard H. Erlich, sitting in the
district court) permitted the prosecutor to cross-
examine Yang regarding the fact that he had submitted
to a breath test on a prior occasion.
(Apparently, Yangs prior experience with the
breath test arose from Yangs 1999 prosecution and
conviction for driving while intoxicated. Judge Erlich
allowed the prosecutor to question Yang about the prior
breath test, but he forbade the prosecutor from
mentioning Yangs prior DWI conviction.)
On appeal, Yang argues that the State failed
to establish that the circumstances surrounding the
prior breath test were similar to the circumstances of
the present case, and that Judge Erlich therefore
abused his discretion by allowing this cross-
examination. In particular, Yang contends that the
State failed to make an offer of proof concerning (1)
whether Yang took the test or refused it on that prior
occasion, (2) how the prior breath test was
administered, (3) whether the breath test was
administered at a police station or at the scene, and
(4) whether Yang had a translator on that prior
occasion.
Yang also argues that, even if the evidence
was admissible, it was more prejudicial than probative
and should therefore have been excluded under Evidence
Rule 403.
Here is the disputed cross-examination:
Prosecutor: Mr. Yang, you ... testified
that you didnt understand [the] term refusal,
isnt that right?
Mr. Yang: Yes.
Prosecutor: [But] this isnt the first
time that you heard that term, [is] it?
Mr. Yang: Its first time.
Prosecutor: You were never asked to
take a breath test prior to this incident?
Interpreter: He doesnt remember.
Prosecutor: Okay, Mr. Yang, isnt it
true that, back in 1999, in Anchorage, you
were asked to submit to a breath test by the
Anchorage Police Department?
Interpreter: He doesnt remember whole
lot, but what he remembers was the police
[were] telling showing him how to blow the
machine, so he just follow and done that.
Prosecutor: Okay. So he did provide a
breath sample at that time?
Interpreter: He didnt know [that] that
was a breath test.
Yang relies on our decision in
Calapp v. State3 to support his claim that
evidence of his prior breath test should have
been excluded. The defendant in Calapp was
prosecuted for second-degree theft after he
took possession of stolen jewelry and
participated in selling the jewelry at a pawn
shop.4 The major dispute at Calapps trial
was not whether the jewelry was stolen, but
whether Calapp had recklessly disregarded the
fact that it was stolen.
To rebut Calapps claim that his
receipt and pawning of the stolen jewelry was
the result of a mistake or accident, the
trial judge allowed the State to present
evidence that Calapp had previously been
convicted of theft and forgery.5 This Court
held (by a two to one vote) that this
evidence should not have been admitted
because the State failed to establish that
the earlier incidents were relevant to
assessing Calapps knowledge that the jewelry
was stolen.
Yang relies on language in Judge
Coatss lead opinion in Calapp, in which Judge
Coats suggested that the test for
admissibility of a defendants prior acts to
prove knowledge is whether those acts bear a
relevant factual similarity to the
[currently] charged offense.6 But no other
member of the Court joined this statement of
law.
Judge Bryner dissented from the
Courts decision; he concluded that Calapps
prior convictions were relevant even in the
absence of proof that they arose from
factually similar circumstances.7 And Judge
Mannheimer, in his concurring opinion,
expressly agreed with Judge Bryner that, [t]o
the extent that [Judge Coatss] opinion could
be read to require strict factual similarity
of offenses when the issue is the defendants
knowledge, ... this would be a misstatement
of the law.8 According to the concurring
opinion, the question is not the factual
similarity of the acts, but whether one could
reasonably infer, from the defendants
participation in the prior acts, that the
defendant possessed knowledge pertinent to
the present case.9
Judge Erlich could reasonably
conclude that this test was satisfied in
Yangs case. Yang testified that he did not
understand what the police were asking him to
do when they offered him the breath test at
the police station, nor did he understand
that he would be charged with a separate
crime if he refused to take the test. To
rebut this testimony, the State was entitled
to show that Yang had taken a breath test
once before. Yangs prior experience was
relevant because it tended to show that Yang
was familiar with the breath test and that he
did understand what Officer Steen was asking
him to do.10
Judge Erlich could also properly
conclude that this evidence was not unduly
prejudicial. As explained above, Judge
Erlich allowed the State to question Yang
about the prior breath test, but he did not
allow the State to elicit the fact that Yangs
prior experience with the breath test arose
out of a prosecution and conviction for
driving while intoxicated. Moreover, as can
be seen from the quoted excerpt of the trial,
Yang was permitted to testify (in answer to
the prosecutors questions) that he had not
understood the significance of the breath
test any better on that prior occasion.
Judge Erlich instructed the jurors
that they were to consider Yangs testimony
about the prior breath test only as it
relate[d] to his knowledge and understanding.
And the prosecutor, in final argument,
referred only briefly to this evidence.
Finally, we note that the jury acquitted Yang
of driving while intoxicated a strong
indication that the jurors were not swayed by
any possible suggestion that Yang was a
repeat DWI offender.
For these reasons, we conclude that
Judge Erlich did not abuse his discretion
when he allowed the prosecutor to cross-
examine Yang concerning the prior episode in
which Yang took a breath test.
The prosecutors remarks that purportedly required a
mistrial
Yang further contends that, when the
prosecutor cross-examined him about the earlier
breath test, the prosecutor violated the trial
judges protective order by adverting to Yangs
prior conviction for driving while intoxicated.
The issue arose when the parties were
debating whether the prosecutor could elicit
testimony about Yangs earlier breath test. At
that same time, Judge Erlich granted the
prosecutor permission to question Yang about
earlier occasions in which Yang had used a
translator in court to show that Yang was aware
that he could ask for a translator if he had
trouble understanding someones English. (It
appears that Yang did not ask for a translator
when he was arraigned on the charges in the
present case. The prosecutor wanted to cross-
examine Yang on this point, to suggest that Yangs
English proficiency was not as bad as Yang
claimed.)
The prosecutors cross-examination about Yangs
prior use of interpreters prompted Yangs attorney
to request a mistrial. Here is the disputed
portion of that cross-examination:
Prosecutor: Mr. Yang, you do speak some
English, isnt that right?
Interpreter: Some. He put the words
together. He make yeah. Taking a guess
[at] what they are saying.
Prosecutor: But ... youre telling us
that you dont understand difficult legal
concepts, for example?
Mr. Yang: Yes.
Prosecutor: Mr. Yang, do you remember
coming to court [on] the day that you were
arrested on this DWI?
Interpreter: Yes, he remember.
Prosecutor: You didnt request a
translator at that time, did you?
Interpreter: He ...
Defense Attorney: Your Honor, could we
approach?
[Bench Conference:]
Defense Attorney: You know, I think it
needs to be made clear to him when [the
prosecutor] is talking about, or when he was
arrested on this DWI, is what [the
prosecutor] is thinking about.
Prosecutor: I said on this one.
Defense Attorney: I dont I didnt hear
that, and I dont think [Mr. Yang] understood
that. ...
Prosecutor: Ill be [Ill] make it more
specific, but ...
Defense Attorney: The date ...
Prosecutor: .... thats why ...
[indiscernible simultaneous speech]
The Court: Okay.
[End of Bench Conference]
Prosecutor: Mr. Yang, do you remember
coming to court after you were arrested on
June 23, 2002, on this DWI?
Interpreter: Yes, he does.
Prosecutor: You didnt ask for a
translator during your arraignment, did you?
Mr. Yang: Nobody ever mention ...
Interpreter: [The prosecutor] wasnt
mentioning anything about translating; thats
what he was saying.
Prosecutor: You knew you could have a
translator in court with you, though, didnt
you, if you didnt understand?
Interpreter: He didnt know that was is
regulation, [is] a choose that he had or not.
He didnt know at that time.
Prosecutor: Mr. Yang, you had been to
court before June 23, 2002, hadnt you?
Mr. Yang: Yes.
Interpreter: Yes.
Prosecutor: And while you were [in]
court those times, you had a translator with
you, didnt you?
Defense Attorney: Objection, Your
Honor.
The Court: Approach [the bench].
[Bench Conference:]
Defense Attorney: ... What does [the
prosecutor] mean by that? I mean, when is
[the prosecutor] talking about?
Prosecutor: ... [Im] talking about
[prior] criminal cases. Im leaving it
general so that ...
The Court: [to the defense attorney]
Its your choice.
Defense Attorney: What choice do I
have?
Prosecutor: I said Im leaving [the
reference] general so [that] the jury doesnt
hear that [Mr. Yang] went to court
specifically on criminal cases.
Defense Attorney: Okay; okay. [But] my
assertion is that [the prosecutors question]
is leading ... .
Prosecutor: Well, this is cross-
examination.
The Court: This is cross-examination.
So ... the objection is overruled. We, too,
desire to keep [the reference] general.
[End of Bench Conference]
The defense attorney made no motion
for a mistrial at this point. Instead, Yangs
testimony continued. During Yangs redirect
examination, he testified that he was
currently involved in a court case with his
landlord, and that his wife had been acting
as his interpreter in that proceeding.
When the parties returned to court
the following day, Yangs attorney asked Judge
Erlich to declare a mistrial. As the ground
for this mistrial, the defense attorney
asserted that, upon reflection, she had come
to the conclusion that the prosecutors
reference to this DWI was a clear reference
to Yangs prior DWI conviction. Judge Erlich
denied the requested mistrial.
On appeal, Yang renews his argument
that the prosecutors references to this DWI
constituted clear violations of Judge Erlichs
order not to mention Yangs prior DWI
conviction. But as can be seen from the
above-quoted excerpt, the record simply does
not support Yangs contention. Judge Erlich
could properly conclude that when the
prosecutor asked Yang about coming to court
on this DWI, the prosecutors questions were
exactly what they appeared to be: inquiries
about Yangs failure to ask for a translator
when he appeared for his arraignment in the
case currently being litigated. There was no
reference to Yangs prior DWI conviction.
Yang also argues on appeal that
Judge Erlich should have granted a mistrial
because the prosecutor refer[red] to [Mr.
Yangs] attendance ... at prior court hearings
over [defense] counsels objection. But Yangs
attorney did not ask for a mistrial based on
the prosecutors reference to other court
hearings. As can be seen from the above-
quoted excerpt, the defense attorneys only
objection to the prosecutors question was
that the question was leading. Judge Erlich
properly overruled this objection, since the
prosecutor was engaging in cross-examination.
Moreover, the prosecutor never
specified what these prior court hearings
involved. The only other court proceedings
that the jury heard about were the
proceedings involving Yang and his landlord.
Given this record, we reject Yangs implied
contention that Judge Erlich was obliged to
declare a mistrial sua sponte.
The elements of the offense of breath test refusal
Yang argues that his trial jury was
misinstructed on the elements of breath test refusal.
Judge Erlich instructed the jury that the
elements of this offense were (1) that Yang was
arrested for the offense of driving while intoxicated,
(2) that Yang was fairly advised that the refusal to
submit to [the breath test] was a crime, and (3) that
Yang did knowingly refuse to submit to [the breath
test]. In a separate jury instruction, Judge Erlich
told the jury that, in this context, to knowingly
refuse the breath test meant to refuse the test with a
fair understanding of the consequences [as to] the
misdemeanor charge that would result from the refusal.
Yang contends that Judge Erlichs instructions
omitted one essential element of breath test refusal:
he asserts that this offense requires proof that the
motorist was advised that their refusal to submit to
the breath test might be used against them in a civil,
criminal, or other proceeding.
Yangs argument derives from the wording of
AS 28.35.032(a). The pertinent portion of this statute
reads:
If a person under arrest for operating a
motor vehicle ... while under the influence
of an alcoholic beverage, inhalant, or
controlled substance refuses the request of a
law enforcement officer to submit to a
chemical test authorized under ...
AS 28.35.031(a), or if a person involved in a
motor vehicle accident that causes death or
serious physical injury to another person
refuses the request of a law enforcement
officer to submit to a chemical test
authorized under ... AS 28.35.031(g), after
being advised by the officer that the refusal
will result in the denial or revocation of
the drivers license, privilege to drive, or
privilege to obtain a license, that the
refusal may be used against the person 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 ... while under the influence
of an alcoholic beverage, inhalant, or
controlled substance, and that the refusal is
a crime, a chemical test may not be given,
except as provided by AS 28.35.035.
As can be seen, this statute seemingly requires the arrested
motorist to be warned of three things: (1) that the
refusal [of the breath test] will result in the denial
or revocation of [their] drivers license, privilege to
drive, or privilege to obtain a license, (2) that the
refusal [of the test] may be used against [them] in a
civil or criminal action or proceeding arising out of
[their] operating a motor vehicle ... while intoxicated
of an alcoholic beverage, inhalant, or controlled
substance, and (3) that the refusal [of the test] is a
crime.
Yang infers that the three warnings listed in the
statute are each essential elements of the offense.
Indeed, the current Alaska pattern jury instruction on
the offense of breath test refusal Criminal Pattern
Instruction No. 28.35.032(a) #1 (revised 2003)
embodies Yangs viewpoint. This pattern instruction
lists the giving of the three statutory warnings as an
element of the crime.11
However, this interpretation of the statute is wrong.
As we explain here, the one essential warning the
warning that is an element of the offense is the
warning that the defendant is legally obligated to take
the test.
Although this warning might be communicated in various
ways, the third of the warnings listed in AS 28.35.032(a) that
refusal to take the test is itself a crime is sufficient to
satisfy this requirement. The other two warnings listed in the
statute may be a necessary foundation if the State intends to use
a motorists refusal for other purposes (such as circumstantial
evidence of guilt in a prosecution for driving while under the
influence, or as a basis for administrative revocation of the
motorists drivers license), but those warnings are not essential
to proving that the motorist committed the offense of breath test
refusal.
Breath test refusal is a crime of omission. That is,
the gist of the offense is that the defendant failed to do
something that the law requires. In crimes of omission, the
State must prove that the defendant failed to perform the
required act, but the State must also prove that the defendant
was aware of the circumstance that created their legal duty to
act. More specifically, when a defendant is prosecuted for
failing to act, the State must show that the defendant was aware
of the circumstance that triggered the duty to act and that,
being aware of this circumstance, the defendant chose to do
nothing i.e., knowingly refrained from acting.12
An arrested motorists legal obligation to submit to a
chemical test of their breath is not defined in the statute we
have been discussing, AS 28.35.032(a). Rather, this duty is
defined in AS 28.35.031(a), Alaska implied consent law. The
pertinent portion of AS 28.35.031(a) declares that any person who
operates a motor vehicle in this state shall be considered to
have given consent to a chemical test or tests of [their] breath
for the purpose of determining the alcoholic content of [their]
blood or breath if (1) the person has been lawfully arrested for
an offense arising out of acts alleged to have been committed
while the person was operating or driving a motor vehicle ...
while under the influence of an alcoholic beverage, inhalant, or
controlled substance, and (2) [t]he test or tests [are]
administered at the direction of a law enforcement officer who
has probable cause to believe that the person was operating or
driving a motor vehicle ... while under the influence of an
alcoholic beverage, inhalant, or controlled substance.
AS 28.35.031(a) does not itself state that failure to
take the breath test is a crime. Rather, a separate statute, AS
28.35.032(f), declares that it is either a misdemeanor or a
felony (depending on the motorists prior record) [to refuse] to
submit to a chemical test authorized under ... AS 28.35.031(a).
Twice in the past, this Court has examined the
interplay between the warnings listed in AS 28.35.032(a) and the
governments required proof in a breath test refusal prosecution.
Both times, we held that the specific warnings listed in
AS 28.35.032(a) are not elements of the crime of breath test
refusal.
In Svedlund v. Anchorage, 671 P.2d 378 (Alaska App.
1983), a case that was prosecuted under a municipal ordinance
governing breath test refusal, we examined the role of the
warnings listed in AS 28.35.032(a). We drew a distinction
between (1) cases in which a defendant is charged with driving
while intoxicated, and the government wishes to introduce
evidence of the defendants refusal to take the breath test as
circumstantial evidence of the defendants consciousness of guilt,
as opposed to (2) cases in which a defendant is charged with
breath test refusal, and the government wishes to introduce
evidence of the defendants refusal to take the test because that
refusal is the actus reus of the offense.13
With regard to the first category of cases, we followed
our supreme courts decision in Copelin v. State14 and held that,
when the government offers the defendants refusal to take the
breath test as circumstantial evidence in a prosecution for
driving while under the influence (to show the defendants
consciousness of guilt), the warnings listed in AS 28.35.032(a)
establish[] a foundation for admitting [the] refusal evidence.
We explained, By requiring that the arrestee be informed of the
consequences of his refusal[,] the [supreme] court meant to
ensure that the [act of] refusal would in fact support an
inference of guilt.15
But in the second category of cases i.e., when the
defendant is being tried for breath test refusal [the
defendants] refusal to take the test is the offense, not merely
evidence of the offense.16 In such cases, we said, the warnings
required by the [statute] ... constitute a foundation for
admission of the evidence of a defendants refusal [but they] are
not separate elements of the offense to be proved to a jury.17
We then examined what mens rea was required for the
offense of breath test refusal. Noting that the breath test
refusal ordinance did not prescribe a culpable mental state, we
concluded that, at the least, the ordinance required proof of the
motorists negligence i.e., that the motorist knew or reasonably
should have known of their obligation to take the test.18 We
acknowledged that the motorists receipt of the warnings specified
in AS 28.35.032(a) might be relevant to the issue of whether the
motorist acted with negligence (or some higher culpable mental
state).19 But we emphasized that the failure of the police to
adhere to the statutory warnings did not entitle the motorist to
an acquittal:
It is important to understand [that the]
mens rea [of the offense] is not [the
defendants] knowledge of his intoxication or
[the defendants knowledge] of the adverse
consequences he [would] suffer if he
refuse[d] to take the [breath test] ... , but
[rather] his knowledge of the purpose and the
significance of the [breath] test, and his
awareness that he [was] required to take the
test.
Svedlund, 671 P.2d at 385. We explained that evidence that the
defendant received the statutory warnings or other
warnings might be relevant to determining whether the
defendant understood the purpose of the breath test and
the legal obligation to take the test. But,
ultimately, the defendants guilt hinges on the
defendants awareness that the breath test was intended
to produce material evidence of the defendants driving
offense and that the defendant was legally required to
take the test:
It is possible that the [government]
could establish ... that [the defendant] knew
or should have known that the [breath test]
was intended to produce material evidence of
the [driving] offense and that [the
defendant] was legally required to take the
[breath test], without necessarily showing
that the specific penalties for refusal were
mentioned. The adequacy of the warning given
to a DWI suspect of the consequences flowing
from refusal to submit to a [breath test]
should be determined on a case-by-case basis.
Merely informing the suspect that refusal is
a misdemeanor complies with the letter of the
[statute] and does not violate due process as
a matter of law. However, evidence of the
defendants knowledge of the consequences may
be presented to the jury to consider and
weigh to the extent that it is relevant to
the mens rea element of the crime.
Svedlund, 671 P.2d at 385-86.
As noted above, the Svedlund case involved a municipal
ordinance rather than the state statutes that are involved in
Yangs case. However, in Brown v. State, 739 P.2d 182, 184-85
(Alaska App. 1987), we followed Svedlund in construing the
corresponding state statutes. In particular, we stressed in
Brown that our prior decisions establish that the warnings
required by the statute ... are not elements of the offense.20
Fourteen years later, the Alaska Supreme Court ratified
our construction of these statutes in Snyder v. State Division of
Motor Vehicles, 31 P.3d 770 (Alaska 2001):
The crime of [breath test] refusal has two
elements: (1) as mens rea, the defendant
must have known, or should have known, that
the chemical test of breath or blood was
requested as potential evidence in connection
with the investigation of a charge that he or
she was driving while intoxicated, and (2) as
actus reus, the state must show the act of
refusing to submit to the test. Brown, 739
P.2d at 184-85.
Snyder, 31 P.3d at 776 n. 26.
Two caveats are in order.
First, as the Svedlund decision expressly acknowledges,
the parties did not actively litigate the question of the precise
culpable mental state that applies to the mens rea element of
breath test refusal. Svedlund holds only that this culpable
mental state is at least negligence. Brown and Snyder affirmed
the holding in Svedlund, but the litigants in Brown and Snyder
did not argue that a higher culpable mental state recklessly or
knowingly might apply to the defendants awareness that the
breath test was being requested in connection with the DWI
investigation, and that the defendant was legally obligated to
take the test. Thus, this issue potentially remains an open
question.
Second, there is a certain tension between our two
assertions in Svedlund: (1) that the three statutory warnings
are not elements of the crime of breath test refusal, but yet (2)
these warnings remain a necessary evidentiary foundation that the
State must establish before introducing evidence of a defendants
refusal of the breath test in a prosecution for breath test
refusal. If, in fact, the three statutory warnings are
unnecessary to prove the crime, and if the crucial question is
whether the defendant understood that they were legally obligated
to take the test, then it seems incongruous to prohibit the State
from introducing evidence of the defendants refusal to take the
test simply because the defendant did not receive warnings that
are of no consequence to the decision of the case. For this
reason, we are not certain of the continuing vitality of this
portion of Svedlund.
However, Yang does not raise either of these issues.
Rather, he argues only that the three warnings listed in AS
28.35.032(a) are elements of the States proof in a prosecution
for breath test refusal. Svedlund and Brown clearly hold that
these statutory warnings are not elements of the crime. We
therefore reject Yangs attack on the jury instructions.
Yangs motion for a judgement of acquittal
Before trial, Yang asked Judge Erlich to
dismiss the breath test refusal charge. Yang argued
that, in a prosecution for breath test refusal, the
State was obliged to prove that the defendant received
and understood the three warnings listed in
AS 28.35.032(a). He contended that his lack of
proficiency in English prevented him from understanding
the three statutory warnings.
Judge Erlich declined to decide this issue
until he had heard the evidence at trial. (Indeed, it
is unclear whether Alaska law allows a defendant to
seek pre-trial resolution of a criminal case on a
disputed issue of fact.21) At the conclusion of the
States case, Yang raised this issue again, this time in
a motion for a judgement of acquittal on the breath
test refusal charge. Yang conceded that the States
evidence showed that he received the three warnings
listed in AS 28.35.032(a), but Yang again argued that,
due to his lack of proficiency in English, the State
failed to show that he understood these warnings.
As we explained in the preceding section of
this opinion, the three statutory warnings are not
elements of the crime of breath test refusal. Thus, to
prove the breath test refusal charge, the State was not
obliged to prove that Yang understood these warnings.
Rather, the State was obliged to prove that Yang
understood (or reasonably should have understood) the
purpose of the breath test, and that Yang understood
(or reasonably should have understood) that he was
legally required to take the test.
Judge Erlich concluded that, viewing the
evidence in the light most favorable to the State, the
evidence was sufficient to support a reasonable
conclusion that Yang understood these things when he
decided not to take the breath test. We agree.
We note, in particular, that the jury
listened to a recording of the police contact with
Yang. During the field sobriety tests, when Officer
Steen asked Yang to perform a balance test that
required Yang to count, Yang indicated that my problem
is English. Officer Steen explained the test again,
and demonstrated it. Viewed in the light most
favorable to the State, this tape showed that Yang
followed Officer Steens directions in performing the
field sobriety tests, and that Yang responded
appropriately to Officer Steens questions by
identifying himself and his vehicle, by confirming that
he did not wear contact lenses or glasses, by stating
that he had driven from Beach Road, and by denying that
he had been driving recklessly. Morever, when Yang
testified at trial, he conceded that, after he told
Steen that he had difficulty with English, they kind of
communicated smoothly.
It is true that Yang testified that he did
not know the legal meanings of the terms charge and
refusal, and that he did not understand that he would
be charged with another crime if he refused to take the
breath test. The jury also heard testimony from Yang
and another witness that Yangs proficiency in English
was limited, and that Yangs wife handled the more
complicated telephone orders at their restaurant.
But the jury also heard evidence suggesting
that Yang knew English well enough to understand what
Officer Steen was telling him. Yang testified that he
was educated, that he owned his own business, that he
had studied English for three years, and that he had
lived in the United States for six years. Officer
Steen testified that he was able to converse with Yang
in English and that, during the DWI processing, Yangs
answers were responsive to his questions and Yang never
asked for a translator. Steen also testified that he
had spoken with Yang in English on earlier occasions
both during police contacts when Yang was the
complainant, and when Steen was ordering food at Yangs
restaurant.
This evidence, viewed in the light most
favorable to the State, was sufficient to support a
reasonable inference that, when Yang declined to take
the breath test, he understood that he was being asked
to take the test as part of the DWI investigation, and
that he was legally obligated to take the test. Judge
Erlich therefore properly denied Yangs motion for
judgement of acquittal.
Was the jury adequately instructed concerning Yangs
defense?
We now turn to the issue of whether the jury
was adequately instructed concerning Yangs defense to
the breath test refusal charge the defense that his
lack of proficiency in English prevented him from
understanding the purpose of the test and his
obligation to take the test.
This Court has previously held that, in
prosecutions for breath test refusal, the State must
prove that the defendants refusal to take the test
occurred after the defendant was warned of the legal
obligation to take the test that a conviction can not
be founded on proof that the defendant refused to take
the test and was then warned of the legal obligation to
take the test, without being given an opportunity to
reconsider the earlier refusal.22
From this proposition, one can infer that the
warning must be given in a manner reasonably calculated
to communicate the necessary information to the
defendant (i.e., the information concerning the purpose
of the test and the defendants legal duty to take the
test). And when the warning is given in English, a
jury may reasonably consider whether the defendant has
difficulty understanding the English language when the
jury assesses whether the defendants refusal to take
the breath test was accompanied by the required
culpable mental state.23
As explained earlier in this opinion,
Svedlund and Brown hold that this required culpable
mental state is at least negligence. That is, the
State must prove, at a minimum, that a reasonable
person in the defendants position would have understood
the warnings concerning the defendants legal obligation
to take the test (even if the defendant did not
subjectively understand these warnings).
Yangs jury was actually instructed to hold
the State to a higher standard. As we noted earlier,
Judge Erlich instructed the jury that Yang should not
be convicted of breath test refusal unless the jurors
were convinced beyond a reasonable doubt (1) that Yang
was fairly advised that his refusal to submit to the
breath test was a crime, and (2) that Yang acted with a
fair understanding of the [criminal] consequences when
he refused to take the test.
These instructions particularly the
requirement that Yang have a fair understanding of the
... consequences seem to require proof that Yang
subjectively understood his legal obligation to take
the breath test (and not just that a reasonable person
in Yangs position would have understood the
obligation). By inserting this element of subjective
understanding into the instructions, Judge Erlich
apparently required the jury to find that Yang acted
knowingly or at least recklessly regarding his legal
obligation to take the breath test, as these culpable
mental states are defined in AS 11.81.900(a).24 In
this respect, therefore, the jury instructions arguably
required the State to prove more than is required under
Svedlund and Brown.
Indeed, when the attorneys argued the case to
the jury, both of them focused on the issue of Yangs
subjective understanding of his duty to take the breath
test. During their summations, both the prosecutor and
Yangs defense attorney emphasized that the jurys
decision on the breath test refusal charge [came] down
to whether or not ... Mr. Yang understood English.
We therefore conclude that Yangs jury was
adequately instructed on his defense to the charge of
breath test refusal.
Yangs challenge to Judge Erlichs decision to revoke his
drivers license for 18 months
In his final point on appeal, Yang challenges
one aspect of his sentence for breath test refusal the
revocation of his drivers license. Judge Erlich
revoked Yangs drivers license for 18 months, based on
Yangs poor driving preceding his arrest. Yang asserts
that the record does not support the conclusion that
his driving was bad.
Yang notes that the jury acquitted him of
driving while intoxicated and of the lesser offenses of
reckless driving and negligent driving. He argues that
there was simply too little evidence of bad driving to
support Judge Erlichs finding.
We have examined the record, and we conclude
that Judge Erlichs finding that Yang drove recklessly
is supported by sufficient evidence.
James Rea (a corrections sergeant in
Kotzebue) testified that while he was waiting to turn
onto Airport Way, a Toyota pickup truck driven by an
Asian male drifted so far across the road that it
almost collided with his vehicle. Rea tried to follow
this pickup truck into town, but the truck was being
driven so fast that Rea could not keep up. Later, when
Rea was at the police station reporting this incident,
he heard a vehicle peel out and then he saw the same
Toyota pickup truck racing by in front of the police
department. Yang was later identified as the driver of
this truck.
Given this evidence, Judge Erlich could
reasonably conclude by a preponderance of the
evidence25 that Yang was driving recklessly shortly
before he was arrested and then refused to take the
breath test. Accordingly, we conclude that Judge
Erlich was not clearly mistaken when he revoked Yangs
license for 18 months as part of Yangs sentence for
breath test refusal.
Conclusion
The judgement of the district court is
AFFIRMED.
_______________________________
1 AS 28.35.032(f).
2 AS 28.35.030(a). This offense has since been renamed
driving while under the influence. See SLA 2002, ch. 60
(effective July 1, 2002).
3 959 P.2d 385 (Alaska App. 1998).
4 Id. at 386-87.
5 Id. at 387.
6 Id. at 388.
7 Id. at 391-93.
8 Id. at 389.
9 Id. at 390 (Mannheimer, J., concurring).
10 See Alaska Evidence Rule 401, which defines relevant
evidence as evidence having any tendency to make the
existence of any fact ... of consequence to the
determination of the action more probable or less
probable than it would be without the evidence.
11 According to Pattern Jury Instruction No. 28.35.032(a)
#1, the [government] must prove beyond a reasonable
doubt [that] ... the defendant was advised that refusal
to submit to a chemical test: (a) is a crime; (b) will
result in the denial or revocation of the defendants
[drivers] license or privilege to drive or obtain a
license; and (c) may be used against the defendant in a
civil, criminal, or other proceeding.
12Willis v. State, 57 P.3d 688, 694 (Alaska App. 2002). See
Kimoktoak v. State, 584 P.2d 25, 29-31 (Alaska 1978); Melson v.
Anchorage, 60 P.3d 199, 203 (Alaska App. 2002) (although the
State must prove the defendants awareness of the circumstances,
the State need not prove that the defendant was aware of the
statute or regulation that imposed the legal duty under those
circumstances).
13Svedlund, 671 P.2d at 384-85.
14659 P.2d 1206, 1212 n. 15 (Alaska 1983).
15Svedlund, 671 P.2d at 384.
16Id. at 385 (emphasis added).
17Id.
18Id.
19Id.
20Brown, 739 P.2d at 185.
21See Brown v. State, 739 P.2d 182, 184 n. 2 (Alaska App.
1987); State v. Eluska, 698 P.2d 174, 180 n. 9 (Alaska App.
1985), reversed on other grounds, 724 P.2d 514 (1986).
22See Suiter v. State, 785 P.2d 28, 30-31 (Alaska App. 1989).
23Cf. Ahtuangaruak v. State, 820 P.2d 310, 311 (Alaska App.
1991) (concluding that suppression of the defendants breath
test was warranted because the defendants English was so
poor that he could not make a knowing and intelligent
decision regarding his right to an independent chemical
test).
24See AS 11.81.900(a)(2) (the definition of knowingly) and AS
11.81.900(a)(3) (the definition of recklessly).
25See AS 12.55.025(i); Brakes v. State, 796 P.2d 1368, 1372
(Alaska App. 1990).
