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NOTICE
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opinion is published in the Pacific Reporter. Readers
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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
| RICHARD A. MATTOX, | ) |
| ) Court of Appeals No. A-9949 | |
| Appellant, | ) Trial Court No. 3KN-06-1774 CR |
| ) | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Appellee. | ) |
| ) No. 2180 August 22, 2008 | |
Appeal from the
Superior Court, Third Judicial District,
Kenai, Harold M. Brown, Judge.
Appearances: Linda K. Wilson, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Richard A. Mattox was convicted of felony refusal to
submit to a chemical test.1 He asks this court to reverse his
conviction, arguing that there was insufficient evidence that he
understood he was required to submit to a breath test to support
his conviction for refusal. Having reviewed the record, we
conclude there was enough evidence for a fair-minded juror to
find that Mattox knew or should have known of his legal duty to
submit to a breath test.
Mattox also argues that his right to due process was
violated in two ways: first, because the officer who arrested him
for driving while under the influence did not explain that he
would be charged with a crime if he refused to submit to a breath
test, even if he offered a blood test as an alternative; and,
second, because the superior court did not instruct the jury that
the officer had a duty to explain this to him. We reject both
claims. Mattox never argued in superior court that the officer
violated his due process rights, so he has not preserved this
claim. And to the extent Mattox preserved his attack on the
superior courts jury instructions, we find no error. We
therefore affirm Mattoxs conviction.
Facts and proceedings
Just before noon on September 4, 2006, Kenai Police
Officer Jay Sjogren was dispatched to a residence to investigate
the report of an assault. Dispatch told Officer Sjogren that the
suspect had driven away in a green minivan. As Officer Sjogren
responded to the report, he saw a green minivan pull into a
nearby driveway. Officer Sjogren saw the driver, later
identified as Mattox, get out of the van and stumble and stagger
to the front door. Officer Sjogren approached Mattox and tried
to speak with him, but Mattox ignored him. As Mattox walked by,
Officer Sjogren noticed he smelled of alcohol.
After interviewing the man who reported the assault,
Officer Sjogren decided to focus his investigation on Mattox
because he believed Mattox had been driving while under the
influence. Officer Sjogren asked Mattox to perform field
sobriety tests, but Mattox refused. Officer Sjogren then
arrested Mattox and transported him to Wildwood Pretrial Facility
for a breath test. During the observation period preceding the
breath test, Officer Sjogren read Mattox the implied consent
warning informing him that he was being asked to submit to a
chemical test of his breath and telling him that if he refused to
take the test he would be charged with a crime. Mattox refused
to sign the implied consent form. He also refused to submit to
a breath test. Officer Sjogren gave Mattox several opportunities
to change his mind, but Mattox stated very clearly that he would
not provide a breath sample. He did, however, say, Take my
blood. Just take my blood. Officer Sjogren did not respond to
this statement because he planned to read Mattox the form
advising him of his right to an independent chemical test. After
Officer Sjogren read the form, Mattox declined the offer of an
independent test.
Mattox was charged with felony driving while under the
influence,2 felony refusal to submit to a chemical test,3 and
driving while license revoked.4 In a jury trial before Superior
Court Judge Harold M. Brown, Mattox was convicted of all three
offenses. He appeals his conviction for refusal to submit to a
chemical test.
There was sufficient evidence to convict Mattox of
refusal
Mattox argues that his refusal conviction was
supported by insufficient evidence that he understood his legal
duty to submit to a breath test.
In ruling on a claim that there was insufficient
evidence to support a conviction, we must view all the evidence
and the inferences from that evidence in the light most favorable
to the jurys verdict.5 The question is whether, viewing the
evidence in this light, there was enough relevant evidence for a
fair-minded juror exercising reasonable judgment to find that the
State met its burden of proving guilt beyond a reasonable doubt.6
At trial, Officer Sjogren testified that he saw Mattox
pull a green minivan into a driveway, get out of the van, and
stagger and stumble to the front door of the residence. When
Officer Sjogren contacted Mattox, he observed that Mattox smelled
of alcohol. Mattox refused to perform field sobriety tests.
Officer Sjogren then arrested him and transported him to jail for
a breath test. At the jail, Officer Sjogren read Mattox the
implied consent warning informing him of his legal duty to submit
to a breath test. That warning provided in part:
You are under arrest for Operating or
Driving a Motor Vehicle Under the Influence
(DUI). You are being asked to submit to a
chemical test of your breath to measure the
alcoholic content. Refusal to submit to a
chemical test can be either a class A
Misdemeanor or a class C Felony.
Refusal to submit to a chemical test may be
used against you in a civil or criminal
action or proceeding arising out of an act
alleged to have been committed while
operating the motor vehicle. Refusal to
Submit to a Chemical Test is a crime that
is separate from the crime of Driving Under the
Influence.
Mattox would not sign the implied consent form. He also refused
to submit to a breath test, even though Officer Sjogren gave him
several opportunities to comply.
A recording of this contact was played to the jury.
On the recording, in addition to the implied consent warning
recounted above, Officer Sjogren stated: The type of test you are
requested to take is a breath test. He also said: Im asking you
to take a breath test. You dont have to, thats your right.
Mattox at first would not answer, but eventually he said: No, no,
no. I will not do that. I will not. ... Take my blood. Just
take my blood. After concluding that Mattox had refused the
breath test, Officer Sjogren advised him of his right to an
independent chemical test of his blood. When he advised Mattox
of this right, he reiterated: You are refusing a breath test,
right? Mattox did not answer, but instead complained that
Officer Sjogren had arrested him on the porch, on private
property. Officer Sjogren eventually concluded that Mattox had
also refused the offer of an independent chemical test.
Mattox argues that this evidence was insufficient to
convict him of refusal because he said to Officer Sjogren, Take
my blood. Just take my blood. But the jury heard evidence that
Mattox refused to perform field sobriety tests, refused to sign
the implied consent form, refused several times to submit to a
breath test, and refused the opportunity for an independent
chemical test. Given this evidence, a fair-minded juror could
reasonably conclude that Mattoxs statement take my blood did not
demonstrate he was confused about his legal duty to submit to a
breath test, but rather was evidence of his continued
obstreperousness. We conclude that there was sufficient evidence
to support Mattoxs conviction for refusal to submit to a chemical
test.
Mattox did not preserve his claim that Officer Sjogren
violated his due
process rights
Mattox argues that his due process rights were
violated because Officer Sjogren did not give him adequate notice
that he would be charged with refusal if he refused to take a
breath test, even if he offered to take a blood test instead.
In superior court, Mattox did not argue, in a pretrial
motion or during trial, that his due process rights had been
violated by Officer Sjogrens conduct, and the superior court did
not rule on this issue. Mattox instead elected to argue to the
jury that he should be acquitted of refusal because his statement
take my blood was an offer to submit to a chemical test. Because
Mattox never argued in superior court that his due process rights
were violated, he did not preserve this claim for appeal.7
Nor has Mattox shown (or even argued) that the
superior court committed plain error by failing to find a due
process violation sua sponte. This court will not find plain
error unless the error affects a substantive right and is
obviously prejudicial.8 The jury was instructed that it could
not convict Mattox unless he knew or should have known that he
had a legal duty to submit to a breath test.9 Thus, the jury
must have found that Mattox had enough notice of his legal duty
to submit to a breath test to be convicted of refusal, even
though Officer Sjogren did not explain to Mattox that he could
not satisfy this legal duty by offering to submit to a blood
test.
The court did not err in instructing the jury
Mattox next challenges the superior courts responses
to several questions the jury posed during deliberations.
The jurys first question read:
Does the law state that a blood test can be
given instead of a
breath test?
The court responded:
The law does not give the defendant an
option. The law requires submission to a
test of the persons breath by an approved[,]
certified testing device. The law permits
the defendant to request an independent
blood test.
The court also addressed another, related jury question:
[In] Instruction #6 [listing the elements of
refusal], the term Chemical Test of Breath
is not used in [elements] #5, 6, & 7. Can
we get you to clarify if [the] chemical test
[language used in elements #5, 6, & 7] means
Chemical Test of Breath?
The court instructed the jury that the references to a chemical
test in the jury instruction means chemical test of breath.
Mattox argues that the statute defining the crime of
refusal permits a blood test to be offered in lieu of a breath
test and that the courts responses to these jury questions were
wrong. But we rejected this claim in Hamilton v. Anchorage.10
Hamilton argued that his refusal conviction should be dismissed
because even if he wilfully refused to take a breath test, his
offer to take a blood test cured that refusal.11 In rejecting
that claim, this court explained that the municipal ordinance
Hamilton had been charged with violating obliged him to take a
breath test, as opposed to some other chemical test.12 This
court noted that the state refusal statute, AS 28.35.032(f), was
identical in relevant respects.13 This court went on to rule, in
line with other courts that had considered this issue, that the
due process clause does not confer on motorists the right to
control or dictate the form of chemical testing.14
Mattox distinguishes his case from Hamilton, arguing
that the relevant statutory language has changed. At the time of
Hamiltons offense, the refusal statute, AS 28.35.032(f), made it
a crime to [refuse] to submit to the chemical test of breath
authorized by ... AS 28.35.031(a), the implied consent statute.15
The current provision, which was in effect at the time of Mattoxs
offense, makes it a crime to [refuse] to submit to a chemical
test authorized by ... AS 28.35.031(a) or (g).16 Thus, Mattox is
correct that the legislature dropped the express reference to
breath from the refusal statute.
But the legislatures reason for dropping this language
does not support Mattoxs claim. The current statute makes it a
crime to refuse a chemical test authorized under either
subsection (a) or (g) of the implied consent statute. The
statute at issue in Hamilton only made it a crime to refuse a
test under subsection (a) (subsection (g) did not exist at that
time).17 Subsection (a) authorizes a breath test of any person
lawfully arrested for driving while under the influence.18
Subsection (g) authorizes a breath and blood test for any person
who is involved in a motor vehicle accident that causes serious
physical injury or death.19 Thus, the statute now makes it a
crime to refuse a breath or blood test, depending on whether
subsection (a) or (g) applies in the circumstances of the case.
Therefore, to the extent that Mattox is arguing that the
legislature dropped the of breath language from the refusal
statute because it wanted to overrule Hamilton and give motorists
the option of providing a blood test instead, that claim is
without merit. The legislature dropped the of breath language
because it added subsection (g) and now, depending on the
circumstances of the case, a defendant may be prosecuted for
refusal to submit to either a breath or blood test, or both.20
Mattox also raises a claim that was not addressed in
Hamilton: that he had a due process right under the facts of his
case to be told before deciding whether to submit to a breath
test that he had no right to elect the type of test. But, as
discussed earlier, Mattox did not argue in superior court that he
had this due process right; nor did he ask Judge Brown to
instruct the jury that Officer Sjogren had a duty to explain that
he would be charged with refusal despite his purported offer of a
blood test.
At trial, during discussion about how to respond to
the jurys questions, Mattox did state that Officer Sjogrens
conduct probably gave rise to a duty to explain to Mattox that he
could not avoid a refusal charge by offering to submit to a blood
test:
Defense counsel: Well, maybe the maybe I
should have raised this earlier and maybe
its still important. And I think it is
still important. Because the point is, once
a person asks a question and says, take my
blood instead, it seems to me theres
probably an obligation to say, Im not going
to do that unless you blow first.
Court: Well, youve made that argument to the jury.
Defense counsel: Right, and the point is,
he didnt refuse. He said, you can take a
chemical test. And, you know, he wasnt
told, you dont have that option, you got to
do breath, you cant do blood. But he said,
take it.
In the above discussion, when the court characterized Mattoxs
argument as an argument for the jury, Mattox did not correct the
court or argue that he was raising a legal issue that is, a due
process claim that he wanted the court to resolve as a matter of
law. Nor did he ask the court to instruct the jury that Officer
Sjogren had a duty to make clear to Mattox that he could not
avoid a refusal charge by submitting to a blood test. Mattox
therefore did not preserve this claim.21 And he has not shown
plain error.22 The jury heard evidence and argument that Officer
Sjogren failed to explain to Mattox that he would be charged with
refusal even if he offered to submit to a blood test instead of a
breath test. The jury nevertheless found that Mattox had enough
notice of his duty to submit to a breath test to be guilty of the
crime of refusal.
Conclusion
We AFFIRM Mattoxs conviction.
_______________________________
1 AS 28.35.030(n).
2 AS 28.35.030(n).
3 AS 28.35.032(p).
4 AS 28.15.291(a)(1).
5 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Brown v.
State, 693 P.2d 324, 329 (Alaska App. 1984).
6 Dorman, 622 P.2d at 453; Collins v. State, 977 P.2d 741,
747 (Alaska App. 1999).
7 See Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002)
(To preserve an issue for appeal, an appellant must obtain an
adverse ruling.).
8 Dorman, 622 P.2d at 457 (citing Alaska R. Crim. P. 47(b)).
9 See Yang v. State, 107 P.3d 302, 309-11 (Alaska App.
2005); Brown v. State, 739 P.2d 182, 184-86 (Alaska App. 1987).
10 878 P.2d 653 (Alaska App. 1994).
11 Id. at 654.
12 Id.
13 Id.
14 Id. at 655.
15 Former AS 28.35.032(f) (pre-August 22, 1994, version).
16 AS 28.35.032(f).
17 See ch. 55, 7, SLA 1994.
18 AS 28.35.031(a).
19 AS 28.35.031(g).
20 See ch. 55, 8-11, SLA 1994.
21 See Mahan, 51 P.3d at 966.
22 See Alaska R. Crim. P. 47(b).
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