Farrell v. Municipality of Anchorage, A-165
| Decision Date | 22 June 1984 |
| Docket Number | No. A-165,A-165 |
| Parties | Kevin FARRELL, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee. |
| Court | Alaska Court of Appeals |
James T. Robinson and David W. Carney, Smith, Robinson & Gruening, Anchorage, for appellant.
James Ottinger, Asst. Mun. Atty., Allen M. Bailey, Mun. Prosecutor, and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee.
Before BRYNER, C.J., SINGLETON, J., and FULD, District Court Judge. *
After a jury trial, Kevin Farrell was convicted of driving while intoxicated (DWI), in violation of AMC 9.28.020(A). He appeals, contending that the district court erred in denying his pretrial motion to suppress evidence that the police obtained on the night of his arrest. We conclude that Farrell was not given a reasonable opportunity to contact his attorney, and therefore reverse.
Farrell was arrested for DWI at about 1:00 a.m. on January 29, 1983, and he was taken to the Anchorage police station for a breathalyzer test. At the station, Farrell was placed in the custody of Officers Lyons and Long. At approximately 2:00 a.m., Farrell asked for permission to call his attorney, James Robinson. He was allowed to make the call. During Farrell's conversation with Robinson, however, Officer Long stood next to Farrell and took notes. Farrell asked to be allowed to speak privately with Robinson, but Officer Long refused. When Robinson learned that the police were listening to Farrell's conversation, he asked Farrell to put Officer Long on the line. Robinson asked Long to allow him to speak privately with his client. Long again refused.
Robinson told Farrell that he would come to the police station immediately. Farrell hung up the telephone and told the officers that his attorney was coming. He requested to speak with his attorney before taking the breathalyzer. The officers refused Farrell's request. Farrell was immediately placed in front of a video camera, and the officers attempted to have him perform sobriety tests. Farrell repeatedly requested to talk to his attorney, and his requests were repeatedly refused. Ultimately, Farrell agreed to perform sobriety tests on video, but he refused to take the breathalyzer without first seeing his attorney.
Farrell's attorney apparently arrived at the Anchorage police station while Farrell was being videotaped. He asked to speak with Farrell but was denied permission. When Robinson arrived at the station, Farrell had been on videotape for approximately ten or fifteen minutes and had not yet refused to take the breathalyzer. More than ten minutes elapsed between Robinson's arrival and completion of the videotape.
Farrell was originally charged with both DWI and refusal to take the breathalyzer test. Prior to trial, Farrell moved to suppress all evidence obtained after police denied him the opportunity to speak privately with Robinson. District Court Judge John D. Mason granted Farrell's suppression motion with respect to the charge of refusal to take the breathalyzer but denied it with respect to the DWI charge. 1 During trial the jury viewed the videotape of Farrell and heard evidence of Farrell's refusal to take the breathalyzer.
Farrell argues that this evidence should have been suppressed because he was not afforded a reasonable opportunity to consult privately with his attorney. AS 12.25.150(b) 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.
Criminal Rule 5(b) is substantially similar to AS 12.25.150(b), but specifically provides for a "private" visit.
In Copelin v. State, 659 P.2d 1206 (Alaska 1983), the Alaska Supreme Court held that AS 12.25.150(b) and Criminal Rule 5(b) require that, upon request, persons arrested for DWI must be given a reasonable opportunity to contact an attorney before taking the breathalyzer examination:
[W]hen 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 ....
Copelin also makes it clear that, in order to comply with the statutory mandate of AS 12.25.150(b), police must make a reasonable effort to accomodate an arrestee's right to consult privately with counsel once a call has been made. Copelin states:
[T]here is nothing in the language of the statute [AS 12.25.150(b) ] 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."
[Eben v. State, 599 P.2d 700, 710 n. 27.] 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.
Copelin, 659 P.2d at 1210 (footnote omitted).
Certainly, the police cannot guarantee privacy in all circumstances. The degree of privacy a person should be given to communicate with counsel must be determined by balancing the individual's statutory right in consulting privately with counsel against society's strong interest in obtaining important evidence. Copelin recognizes that the statutory right to contact and consult counsel is a limited one, which must not interfere with the taking of an accurate and timely breathalyzer test. Copelin, 659 P.2d at 1211-12. Specifically, Copelin attaches paramount importance to the breathalyzer operator's need to maintain continuous observation of the arrestee for at least twenty minutes prior to the administration of the breathalyzer test. See Alaska Administrative Code § 30.020(b)(2). Moreover, in determining the extent of privacy that is reasonable in a given case, consideration should be given to the confidentiality of the attorney-client communications, and not to the separation of the arrestee from the arresting officers. Thus, while the statutory right to...
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