Davidson v. State, A-13341

CourtCourt of Appeals of Alaska
Writing for the CourtWOLLENBERG, JUDGE
PartiesAUSTIN KLEIN DAVIDSON, Appellant, v. STATE OF ALASKA, Appellee.
Decision Date04 May 2022
Docket NumberA-13341

AUSTIN KLEIN DAVIDSON, Appellant,
v.

STATE OF ALASKA, Appellee.

No. A-13341

Court of Appeals of Alaska

May 4, 2022


UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the District Court, Third Judicial District No. 3UN-16-00030 CR, Unalaska, Patricia P. Douglass and Una Gandbhir, Judges.

George W.P. Madeira Jr., Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.

MEMORANDUM DECISION

WOLLENBERG, JUDGE

1

Austin Klein Davidson was charged with driving under the influence and refusal to submit to a chemical test.[1] Prior to trial, Davidson filed a motion to suppress evidence of his refusal to provide a breath sample, arguing that the police violated his statutory right to contact an attorney.[2] The court denied Davidson's motion, and the case proceeded to trial. A jury found Davidson guilty of both counts.

On appeal, Davidson argues that the court erred in denying his motion to suppress and that this Court should reverse both of his convictions. The State concedes that the court erred in denying Davidson's motion, and agrees that this error requires reversal of his refusal conviction. But the State argues that the evidence of Davidson's refusal was harmless as to his driving under the influence conviction and urges us to affirm that conviction.

Having reviewed the record, we conclude that the State's concession of error is well-founded.[3] We further conclude that the district court's error in denying Davidson's motion to suppress requires reversal of both his conviction for refusal to submit to a chemical test and his conviction for driving under the influence. We therefore reverse the district court's judgment.

Underlying facts and proceedings

In February 2016, a bouncer reported seeing two intoxicated individuals leave a bar in Unalaska in a white pick-up truck. An officer with the Unalaska Department of Public Safety located the truck and followed it into the parking lot of a

2

second bar. When the officer approached the vehicle, he identified the driver as Austin Davidson. The officer detected an odor of alcohol and noticed that Davidson's speech was slurred. Davidson admitted to consuming three beers prior to driving. The officer then asked Davidson to perform standardized field sobriety tests and, after concluding that Davidson had failed the tests, the officer arrested him for driving under the influence and transported him to the police station for DataMaster processing.

At the station, the officer informed Davidson of the fifteen-minute observation period required before submission of a breath sample, and began to read him the implied consent warning as required by AS 28.35.032(a). However, the officer did not read the form verbatim, instead telling Davidson, "You're being asked to submit to a chemical test of your breath - blood to measure the alcohol content in your breath and blood - and/or blood - submit to a chemical test of your blood or urine to determine the presence of controlled substance in your blood and urine." The officer further stated that "basically, refusal to submit to a breath test is another crime. You'll - the type of test you'll be getting is a breath. You - if you want, you can pay for a blood test or we can pay for a blood test at a - at your request."

In response, Davidson, referring to the DataMaster machine, asked whether "that machine there [does] the blood test?" The officer responded, "[N]o, we get a qualified nurse to come in and do that."

At that point, Davidson asked to contact an attorney: "Is there any way I can talk to a lawyer before doing anything here on any of this?" The officer responded, "[T]here's fifteen minutes to sit here to - to do whatever you got to do. You got to call somebody, you can call and talk to somebody and ask."

When the officer asked if Davidson had his attorney's phone number, Davidson replied that it was on his cell phone, which the police had confiscated. Davidson asked to call that number, and the officer initially suggested that the cell phone

3

could be retrieved from the patrol car. However, a correctional officer intervened, and Davidson was ultimately told that he could only use the station phone.

The officers also told Davidson that, in order to use the station phone, he would need to either use a long-distance calling card or call a local number. Davidson said that he did not have a calling card, and he asked if there were any local lawyers in Unalaska whom he could call. The officer responded, "We don't have any - [I] can't think of anybody on the island."

At the end of the fifteen-minute observation period, Davidson refused to provide a breath sample. When Davidson complained that he had not been given an opportunity to contact an attorney, the officer responded that they that had given him "every opportunity to do [so]," but that he did not have a local phone number to contact.[4]

Davidson was subsequently charged with driving under the influence and refusal to submit to a chemical test.

Before trial, Davidson moved to suppress evidence of his refusal, arguing that he was denied his right under AS 12.25.150(b) and Alaska Criminal Rule 5(b) to contact an attorney prior to submitting to the breath test. The parties stipulated that the court could decide the motion based on the pleadings and exhibits alone.

Superior Court Judge Patricia P. Douglass denied Davidson's motion to suppress. The court found that Davidson had not explicitly invoked his right to contact an attorney and that, in any event, Davidson was afforded a reasonable opportunity to contact his attorney.

4

The case proceeded to a jury trial before Superior Court Judge Una Gandbhir. At trial, the State played a video recording of the field sobriety tests and an audio recording of Davidson's interaction with the officer at the police station (where he refused the breath test). The State also introduced the implied consent form as an exhibit. Davidson's father, who was a passenger in the truck the night Davidson was arrested, testified for the defense. He explained that Davidson had suffered a head injury from a prior motorcycle accident that had impacted his balance, equilibrium, and speech.

After the State rested, Davidson moved for a judgment of acquittal on the refusal charge. He argued that the State had presented insufficient evidence that he knowingly refused the test because the officer had failed to adequately clarify his legal obligation to submit to it. The court reserved ruling on the motion until after the verdicts.

The jury found Davidson guilty of both driving under the influence and refusal to submit to a chemical test. The court ultimately denied Davidson's motion for a judgment of acquittal.

This appeal followed.

Why we conclude that the district court erred in denying Davidson's motion to suppress evidence of his refusal

As we have explained, the district court denied Davidson's motion to suppress on two grounds: (1) Davidson had not explicitly invoked his right to contact an attorney, and (2) Davidson was afforded a reasonable opportunity to contact his attorney despite his failure to invoke that right. On appeal, Davidson argues, and the State concedes, that both of these rulings were incorrect. We conclude that the State's concession is well-founded.

5

Under AS 12.25.150(b) and Alaska Criminal Rule 5(b), an arrestee has the right to call their attorney upon arrival at a place of detention.[5] In Copelin v. State, the Alaska Supreme Court held that, in the context of arrests for driving under the influence, an arrestee must be afforded a reasonable opportunity to communicate with an attorney before being required to decide whether or not to submit to a breath test.[6]

At the same time, the right to speak 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."[7] The police are therefore not required to tell arrestees that they have a right to speak with counsel prior to administration of the breath test, nor remind arrestees to use this right once it attaches.[8] But if an arrestee affirmatively requests the opportunity to contact an attorney after the right has attached, the police must provide the arrestee with a reasonable opportunity to do so before requiring the arrestee to decide whether or not to submit to a breath test.[9]

6

We first address the district court's finding that Davidson did not explicitly ask to speak with an attorney prior to deciding whether or not to submit to a breath test. The record demonstrates that this finding is clearly erroneous. Davidson expressly asked the arresting officer, "Is there any way I can talk to a lawyer before doing anything here on any of this?" This was an affirmative request to speak with an attorney.

In denying Davidson's motion to suppress, the court compared Davidson's question to the defendant's question in Clark v. State: "Do I get my one phone call?"[10]In Clark, we affirmed, as not clearly erroneous, the district court's finding that the defendant's statement was "a comment on her general right to make a phone call rather than a request to make a phone call prior to taking the breath test under Copelin."[11] We noted that, after the trooper responded in the affirmative about the defendant's right to make a phone call, the defendant said nothing else about making a phone call before taking the breath test.[12]

The situation in Clark is markedly distinct from this case. Here, as we noted, Davidson specifically asked to speak with a lawyer before providing a breath sample. He then inquired about how to contact...

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