Copelin v. State, s. 5453

• Citation: 659 P.2d 1206
• Decision Date: 18 February 1983
• Docket Number: Nos. 5453,5708,s. 5453
• Parties: Charles G. COPELIN, Appellant, v. STATE of Alaska, Appellee. Joe Ray MILLER, Appellant, v. ANCHORAGE, a Municipal Corporation, Appellee.
• Court: Supreme Court of Alaska (US)

Page 1206

659 P.2d 1206

Charles G. COPELIN, Appellant, v. STATE of Alaska, Appellee.

Joe Ray MILLER, Appellant, v. ANCHORAGE, a Municipal Corporation, Appellee.

Nos. 5453, 5708.

Supreme Court of Alaska.

Feb. 18, 1983.

Daniel Westerburg and Stanley Lewis, Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Anchorage, for appellant Copelin.

Jeffrey M. Feldman and James D. Gilmore, Gilmore and Feldman, Anchorage, for appellant Miller.

Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, Wilson L. Condon, Atty. Gen., Juneau, for appellee State of Alaska.

David G. Berry, Municipal Prosecutor, Theodore D. Berns, Municipal Atty., Anchorage, for appellee Anchorage.

Before BURKE, C.J., and RABINOWITZ, CONNOR, MATTHEWS and COMPTON, JJ.

OPINION

CONNOR, Justice.

In separate cases, Charles G. Copelin and Joe Ray Miller were convicted of violating state and municipal drunken driving prohibitions. These convictions were upheld by the Court of Appeals. ¹ We granted Copelin and Miller's petitions for hearing ² in order to review whether the police may refuse the request of one who is arrested for driving while intoxicated to consult an attorney before deciding whether to submit to a breathalyzer test. A second issue, raised only in the case of Copelin, is whether a judge may consider one's refusals to submit to such breathalyzer tests in sentencing proceedings.

We have concluded that when a person is arrested for operating a motor vehicle in violation of state or local drunken driving ordinances, and requests to contact an attorney, AS 12.25.150(b) and Alaska Criminal Rule 5(b) require that the arrestee be afforded a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test. Where, as here, the arrestee is denied that opportunity, subsequently obtained evidence must be suppressed, and we accordingly reverse these two cases.

FACTS

On September 16, 1979, Charles G. Copelin was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of state law. AS 28.35.030. ³ On April 16, 1979, Joe Ray Miller was arrested for operating a motor vehicle while his blood alcohol level exceeded .10 percent, in violation of a municipal ordinance Anchorage, Alaska Municipal Code § 9.28.030 (1978). ⁴

Following their traffic stops both Copelin and Miller were taken into custody and transported to law enforcement headquarters. Both Copelin and Miller were asked to submit to breathalyzer examinations and both responded to this request by expressing a desire to contact their attorneys first. Permission was denied. Both Copelin and Miller were told that they did not have the right to contact counsel until after they decided whether to take the test. ⁵

Copelin did not take the breathalyzer test, did not perform requested field sobriety tests, and was videotaped throughout this refusal. Miller did take the breathalyzer test. Following their respective arraignments, Copelin moved to suppress the videotape of his actions and Miller moved to suppress the results of his breathalyzer test. These motions produced conflicting results in the district and superior courts and eventually made their way to the Court of Appeals. ⁶ The Court of Appeals affirmed the convictions of both Copelin and Miller, holding that there was no error in the failure to suppress Copelin's videotape, no error in the failure to suppress Miller's breathalyzer test results, and no error in considering Copelin's past refusals to submit to breathalyzer tests in imposing sentence.

STATUTORY RIGHT

Copelin and Miller contend that they had a statutory right of access to counsel which was violated by law enforcement officers' denial of their requests to speak with their attorneys. We agree.

AS 12.25.150 sets forth the rights of a prisoner after arrest. Subsection (b) of that statute provides:

"Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with his attorney and any relative or friend, and any attorney at law entitled to practice in the courts of Alaska shall, at the request of the prisoner or any relative or friends of the prisoner, have the right to immediately visit the person arrested." (Emphasis added).

The language of this statute is clear and unambiguous and mandates that every arrestee have the right to telephone or otherwise communicate with his attorney immediately. ⁷ This mandate was viewed by the legislature as sufficiently important to warrant criminal and civil penalties for its willful or negligent violations. ⁸

Relying on this court's interpretation of AS 12.25.150(b) in Eben v. State, 599 P.2d 700 (Alaska 1979), the Court of Appeals found Copelin and Miller's invocation of that statute to be misplaced. ⁹ In Eben, we stated:

"[AS 12.25.150(b) ] is not concerned with implementing an arrestee's right to consult privately with his or her attorney, but with right to contact an attorney, relative or friend for the purpose of arranging bail or legal representation."

Id. at 710 n. 27.

However, there is nothing in the language of the statute which suggests any limitations on the type or nature of communication which an arrestee may have with his attorney following arrest. In fact, in Eben, this court noted:

"[W]e caution that to the extent deemed appropriate in light of the circumstances, law enforcement officials should administer AS 12.25.150(b) in a manner which will permit a prisoner to communicate in privacy with his attorney, relative, or friend."

Id. By recommending that private communication be allowed where feasible, this court implicitly recognized that the opportunity to consult and communicate with an attorney and to receive legal advice was also a contemplated purpose of the statute. ¹⁰ To the extent that language in Eben indicates that the sole purpose of AS 12.25.150(b) is to aid an arrestee in the attainment of bail or legal representation, it is disavowed. We hold that one intended purpose of AS 12.25.150(b) is to provide an arrestee with the opportunity to obtain legal advice.

We now must determine what the legislature intended when it gave an arrestee "the right to telephone or otherwise communicate with his attorney" "immediately after an arrest" in the context of a driving while under the influence (DWI) arrest. The state and the municipality argue the right to consult an attorney "immediately" means after any sobriety tests are administered. They argue that since the evidence which these tests are designed to detect dissipates quickly, it would be impracticable, unreasonable, and contrary to the intent of the implied consent statute ¹¹ to allow prior consultation. We disagree. "Immediately" means just that. This "destruction of evidence" argument does not preclude the limited statutory right of access to counsel that Copelin and Miller are seeking.

In Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979), we weighed the benefits of assistance of counsel against the possibility that requiring such assistance following an arrest for driving while intoxicated and prior to field sobriety tests would interfere with the acquisition of relevant evidence. ¹² Id. at 1192. We are mindful of the important state interest in obtaining reliable evidence of an arrestee's blood alcohol level and the fact that alcohol concentration will dissipate with the passage of time.

However, the proper procedure by which breathalyzer examinations are to be given in Alaska as set forth in 7 Alaska Admin. Code § 30.020 requires that the test subject be observed by the test operator for at least 15 minutes immediately prior to testing to assure that the subject does not vomit or place anything in his mouth which might invalidate the test result. Since a minimum of a 15 minute wait is necessary before administering the breathalyzer test, no additional delay is incurred by acceding to a request to contact an attorney during that time. ¹³

The statutory right to contact and consult with counsel is not an absolute one (which might involve a delay long enough to impair testing results), but, rather, a limited one of reasonable time and opportunity that can be reconciled with the implied consent statutes. ¹⁴

The municipality argues that it is not clear whether Miller would have been able to contact his attorney within any specific time period. The state points out that Alaska does not by statute establish a period of time during which the breathalyzer must be administered to guide the court in prescribing a time limit. Both of these observations are valid. Reasonableness will depend on the circumstances of each case, such as the amount of time between the stop and the transportation to the station, when the request is made, and how much time is needed to set up the test. If the attorney cannot be contacted within a reasonable time the suspect must decide without the advice of counsel, whether to take the breathalyzer test. ¹⁵ As both Copelin and Miller were denied any opportunity whatsoever to contact their attorneys, they were denied their statutory rights.

The state and the municipality next contend that since there is "no right to refuse" to take the breathalyzer tests, any right to consult an attorney would be meaningless to the accused. In Graham v. State, 633 P.2d 211 (Alaska 1981), we stated:

"Under Alaska law, as in most other jurisdictions, one arrested for operating a motor vehicle while under the influence of intoxicating liquor has no constitutional or statutory right to refuse to submit to a breathalyzer test. Palmer v. State, 604 P.2d 1106, 1110 (Alaska 1979); Wirz v. State, 577 P.2d 227, 230 (Alaska 1978). Nor does he or she have the right to have counsel present before being required to take the test. Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979). Since there is no right of refusal, we have also held that it is not necessary to inform the person arrested that he or she can refuse the test, in order to...