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NOTICE
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Pacific Reporter. Readers are encouraged to bring typographical or other formal
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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 GROSSMAN JR.,
Court of Appeals No. A-10980
Appellant, Trial Court No. 3KN-09-1870 Cr
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2370 - September 7, 2012
Appeal from the District Court, Third Judicial District, Kenai,
Sharon A. S. Illsley, Judge.
Appearances: Kenneth W. Cole, Kenai, for the Appellant.
Mary A. Gilson, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Under the Alaska Supreme Court's decision in Copelin v. State, 659 P.2d
1206, 1212-14 (Alaska 1983), a person arrested for driving under the influence has the
right to attempt to contact and consult an attorney before deciding whether to submit to
a breath test. This appeal presents the question of whether a DUI arrestee has the right,
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under Copelin, to interrupt the administration of the breath test - not the 15-minute pre-
testing observation period, but rather the actual testing process itself - to try to
telephone an attorney. For the reasons explained here, we hold that a person's right to
consult an attorney under Copelin does not include the right to interrupt the actual
administration of the breath test.
Underlying facts
The defendant in this case, Richard Grossman Jr., was arrested for driving
under the influence, and he was taken to a police station for a breath test. The arresting
officer told Grossman at the start of the 15-minute observation period that he was free
to use the telephone, but Grossman made no attempt to contact anyone.
After the 15-minute observation period was over, the officer began to
administer the breath test to Grossman. Although Grossman ostensibly agreed to take
the test, he would not close his lips around the air tube, and the testing machine reported
that it had not received an adequate sample of Grossman's breath to run the test. The
officer told Grossman that it appeared Grossman was purposely trying to avoid giving
a breath sample.
After Grossman twice failed to provide an adequate breath sample, the
officer read the "implied consent" warning to Grossman - apprising Grossman (1) that
he was legally required to take the breath test, and (2) that the officer intended to charge
Grossman with the additional crime of breath test refusal unless Grossman provided an
adequate breath sample on his next attempt.
At this point, Grossman announced that he wanted to consult an attorney.
The officer replied that he would not allow Grossman to interrupt the administration of
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the breath test, but the officer assured Grossman that he would be given the opportunity
to try to contact an attorney after the testing procedure was finished.
Grossman then blew a third time into the machine, but again he failed to
provide an adequate breath sample. As a result, Grossman was charged with both DUI
and breath test refusal.
(The officer then informed Grossman of his right to an independent blood
test, but Grossman declined the blood test.)
Grossman's claim on appeal
In this appeal, Grossman argues that the officer violated his rights under
Copelin when the officer refused to interrupt the administration of the breath test to let
Grossman try to contact an attorney. But the Copelin decision itself declares that an
arrestee's right to contact an attorney is "limited [to a] reasonable time and opportunity",
659 P.2d at 1211-12, and that the arresting officer is not required to allow an arrestee to
exercise this right in a manner that "interfere[s] with the prompt and purposeful
investigation of the case". Id . at 1212 n. 14. This is because the alcohol in a DUI
arrestee's blood will normally be dissipating with the passage of time, and the
government has an important interest in obtaining reliable evidence of the arrestee's
blood alcohol level. Id. at 1211.
The Copelin decision states that an arrestee's request to try to contact an
attorney during the mandatory 15-minute observation period is reasonable, since "no
additional delay is incurred by acceding to a request to contact an attorney during that
time." Id. at 1211. But requests made after the observation period is completed must be
evaluated under the particular facts of the case. Copelin explains that the reasonableness
of such requests "will depend on [such] circumstances ... as the amount of time between
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the stop and the [arrestee's] transportation to the station, when the request is made, and
how much time is needed to set up the [breath] test." Id. at 1212.
Moreover, Copelin makes it clear that the police are not required to put the
testing process on hold while the arrestee attempts to contact an attorney: "If [an]
attorney cannot be contacted within a reasonable time[,] the [arrestee] must decide
without the advice of counsel ... whether to take the [breath] test." Ibid.
The question, then, is whether a request to try to contact an attorney is
"unreasonable", for purposes of Copelin, if the request is made after the observation
period is completed and the officer is in the middle of the testing process. We believe
that the supreme court answered this question in Saltz v. Department of Public Safety,
942 P.2d 1151 (Alaska 1997).
The defendant in Saltz was arrested for DUI after he drove his vehicle into
a ditch, and he was transported to the trooper station for a breath test. 1 Upon his arrival,
Saltz asked to speak to an attorney. 2 The arresting trooper provided Saltz with a
telephone and a copy of the Yellow Pages opened to the "attorneys" section, but Saltz
told the trooper that he was unable to read the directory listings without his glasses. 3
The trooper responded that he was not permitted to do more than offer Saltz a telephone,
the Yellow Pages, and the opportunity to speak with an attorney in private (if Saltz was
successful in contacting one). 4
Saltz then asked the trooper if he could borrow a pair of glasses, or if the
trooper could wait to administer the breath test until someone could retrieve Saltz's
1 Saltz, 942 P.2d at 1151.
2 Id. at 1152.
3 Ibid.
4 Ibid.
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glasses from his vehicle (which was still at the scene of the accident). 5 The trooper told
Saltz that he had no glasses to give him, and that he would not delay the breath test. The
trooper said that Saltz could use his own glasses, but only if they arrived in time. 6 After
this exchange, Saltz sat beside the telephone, but he did not attempt to use it. 7
The trooper waited for the 15-minute observation period, and then he
administered the breath test to Saltz. 8 Based on the result of that test, and the
corroborating result of an ensuing blood test, the Division of Motor Vehicles revoked
Saltz's driver's license. 9
On appeal, Saltz argued that the trooper violated his rights under Copelin
by failing to provide a pair of reading glasses or (alternatively) reading the Yellow Pages
aloud to Saltz, or at least giving Saltz the telephone number of the Alaska Public
Defender Agency, or suggesting that Saltz call a relative or friend who might then assist
him in locating an attorney. Saltz, 942 P.2d at 1152-53.
The supreme court rejected Saltz's Copelin claim on two bases. First, the
supreme court concluded that "[the trooper's] reluctance to help Saltz, while perhaps
overly cautious, was far from the 'flat refusal to afford access to counsel after it is
requested' that the exclusionary rule of Copelin was designed to discourage." Id. at
1154. Second, the supreme court declared that the right to contact counsel announced
in Copelin "did not require any delay other than the fifteen-minute observation period
already required prior to administration of the test." Id. at 1153.
5 Ibid.
6 Ibid.
7 Ibid .
8 Ibid.
9 Ibid.
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This second basis for the decision in Saltz causes us to reject Grossman's
claim of Copelin error. Upon his arrival at the station, Grossman was offered a telephone
and the opportunity to call whomever he wished. Grossman made no attempt to contact
anyone - and, in particular, Grossman never expressed a desire to contact an attorney
- until (1) after the trooper had completed the mandatory 15-minute observation period
and (2) the trooper was actively engaged in administering the breath test.
Because of the government's substantial interest in obtaining a reliable
reading of a DUI arrestee's blood alcohol level, and because the arrestee's blood alcohol
level is normally falling with the passage of time, Copelin itself declares that an officer
is not required to honor an arrestee's request to try to contact an attorney if the arrestee's
request "interfere[s] with the prompt and purposeful investigation of the case". Copelin,
659 P.2d at 1212 n. 14. And Saltz declares that Copelin does not require "any delay
other than the fifteen-minute observation period already required prior to administration
of the test." Saltz, 942 P.2d at 1153.
Combining these two precepts, we conclude that, because Grossman was
given the opportunity to contact an attorney throughout the 15-minute observation period
that preceded the breath test, Copelin did not give Grossman the right to wait until the
observation period was concluded and then interrupt the actual administration of the
breath test. Conceivably, if the trooper had not begun to administer the breath test
immediately upon the expiration of the observation period, it might still have been
"reasonable" (under Copelin) for Grossman to request the opportunity to try to contact
an attorney at that time. We do not decide that issue. But we hold that after the trooper
began to actively administer the breath test to Grossman, Grossman had no right under
Copelin to interrupt the testing procedure. The trooper correctly told Grossman that he
would have to wait until after the testing procedure was concluded before trying to
contact an attorney.
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It is true, as Grossman points out, that he had a difficult choice to make
when, in the middle of the testing, the trooper accused him of purposely failing to
provide an adequate breath sample, and when the trooper announced that he intended to
charge Grossman with the additional crime of breath test refusal unless Grossman's next
breath sample was adequate. But the fact that Grossman faced a difficult choice does not
mean that he had the right to interrupt the testing procedure to try to contact an attorney.
As the supreme court noted in Copelin, "[if an] attorney cannot be
contacted within a reasonable time[,] the [arrestee] must decide without the advice of
counsel ... whether to take the [breath] test." 659 P.2d at 1212. Grossman's case is
different from the situation presented in Copelin, in that Grossman was not trying to
decide whether to take the breath test. Grossman had already agreed to take the breath
test (at least ostensibly). Instead, the choice Grossman faced was whether to persist in
attempting to circumvent the test by purposely providing an inadequate breath sample.
(Grossman was ultimately found guilty of breath test refusal based on this conduct.)
But the principle is the same: because Grossman did not ask to call an
attorney until after a reasonable time for trying to contact an attorney had expired, he was
obliged to make this decision without the advice of counsel.
Conclusion
The judgement of the district court is AFFIRMED.
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