Graham v. State, 4092

• Decision Date: 04 September 1981
• Docket Number: No. 4092,4092
• Citation: 633 P.2d 211
• Parties: Marjorie GRAHAM, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 211

633 P.2d 211

Marjorie GRAHAM, Appellant, v. STATE of Alaska, Appellee.

No. 4092.

Supreme Court of Alaska.

Sept. 4, 1981.

Gerald W. Markham, Kodiak, for appellant.

Richard J. Ray, Asst. Dist. Atty., William L. Mackey, Dist. Atty., Kodiak, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

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

OPINION

BURKE, Justice.

In this appeal a motorist questions the Department of Public Safety's summary revocation of her driver's license, based upon her refusal to submit to a breathalyzer examination, following her arrest for operating a motor vehicle while under the influence of intoxicating liquor.

Marjorie Graham, the appellant, was arrested in Kodiak at approximately 2:30 a. m. on August 6, 1977. She was advised of her Miranda ¹ rights and transported to the Kodiak Police Station. There she was asked to perform a breathalyzer test. She refused to perform the test, despite repeated warnings by the arresting officer that such refusal would result in the revocation of her driver's license. ² On September 6, 1977, Graham received a notice from the Department informing her that her driver's license was revoked for a period of ninety days, effective September 11, 1977. Graham, pursuant to AS 28.35.032(b) and (c) ³ and 28.35.034, ⁴ initiated a proceeding in the district court to rescind the Department's action. Graham also applied for an order staying the revocation of her license, pending the outcome of the hearing in the district court. On September 16, her application for stay was denied. Thereafter, on September 29, the district court modified the Department's revocation of Graham's license. After finding "that extenuating circumstances exist and that a revocation of defendant's license would create an extreme hardship," the court ordered: "MARJORIE GRAHAM'S operator's license ... is hereby limited until December 10, 1977, allowing defendant to drive from her house to her place of employment only." ⁵ On appeal to the superior court, the district court's ruling was affirmed. This appeal followed.

I

Before proceeding to the main issues in this case, we note that, since the ninety day revocation period has run, there is, at least superficially, a question of mootness. We are satisfied, however, that the issues raised are entitled to review.

We reach this conclusion for two reasons. First, the collateral consequences of a driver's license revocation may be substantial. Such a revocation can result in higher insurance rates, adverse employment consequences and other serious results. Second, this case involves a matter "of grave public concern and is recurrent but is capable of evading review." Doe v. State, 487 P.2d 47, 53 (Alaska 1971).

II

Graham first contends that she was not clearly informed of the differing rights that she had under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Alaska's implied consent statute, AS 28.35.031-.034, respectively. The crux of her argument is that after first being advised that she was not required to answer any questions, she was then asked if she would take the breathalyzer test, leaving her confused as to whether she had the right, under Miranda, to refuse either to submit to the test or answer the question. As a result, she refused to answer and her refusal to answer was deemed a refusal to take the test. In addition to her argument that she was confused about her rights, Graham claims that she never actually refused to take the test, that all she did was remain silent.

The constitutionality of the implied consent statute is not in dispute. Such laws are in effect in all fifty states and their validity has long been established. See Rossell v. City and County of Honolulu, 59 Haw. 173, 579 P.2d 663, 668 (1978). AS 28.35.031, is typical of these statutes:

A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of his breath for the purpose of determining the alcoholic content of his blood if lawfully arrested for an offense arising out of acts alleged to have been committed while under the influence of intoxicating liquor.

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 render the test results admissible. Palmer v. State, 604 P.2d at 1110. ⁶ Thus, the question presented in this appeal is whether the police have an affirmative duty to explain to the person arrested that the Miranda warning does not apply to a request that he or she submit to a breathalyzer test.

Operating a motor vehicle while intoxicated is a criminal offense, entitling the person arrested to the rights specified in Miranda. As was done in this case, Miranda warnings will undoubtedly be given in many cases, shortly after the alleged offender is taken into custody. Therefore, care must be taken to insure that the arrested person is not misled about his or her rights, or the absence thereof, under the implied consent statute.

That such confusion is possible is clearly shown by comparing the Miranda warning with the implied consent warning. The former advises the person arrested that he or she has the right to remain silent, the right to have counsel present, and that anything said may be used against the person. The implied consent warning, on the other hand, informs the person arrested that there is no right to refuse to take the breathalyzer test and that such refusal can result in revocation of the offender's operator's license. ⁷ There is always the danger therefore, that the arrested person may be misled into believing that he or she either has a right to have counsel present before deciding whether to take the test, or can refuse to submit to the test without suffering the threatened consequences of that refusal.

In State Department of Highways v. Beckey, 291 Minn. 483, 192 N.W.2d 441 (1971), the Minnesota Supreme Court stated:

Where the responses of the arrested person upon being requested to submit to a chemical test indicate that he is asserting a right which he has just been told he is free to assert, it is incumbent upon the officer to make clear that he has no constitutional right to consult an attorney before deciding whether he will submit to a test but merely that, at the time the request was made, he has a right to choose between permitting the test or refusing the test at the risk of the revocation of his driver's license.

192 P.2d at 445. We agree with this statement and hold that where an arrested person refuses to submit to a breathalyzer test, the administering officer must inquire into the nature of the refusal and, if it appears that the refusal is based on a confusion about a person's rights, the officer must clearly advise that person that the rights contained in the Miranda warning do not apply to the breathalyzer examination.

The defendant motorist, however, has the burden of showing that he or she was in fact confused. State v. Severino, 56 Haw. 378, 537 P.2d 1187, 1190 (1975). In the instant case, Graham's claim is not supported by the evidence. The events that occurred at the Kodiak Police Station were videotaped. See Palmer v. State, 604 P.2d 1106, 1107-09 (Alaska 1979). We have reviewed the videotape recording and conclude that the arresting officer clearly and repeatedly advised Graham of the consequences of her refusal to submit to the test, and of the fact that she had no right to refuse under Miranda. We further conclude that Graham's conduct, in fact, amounted to a refusal to take the test. Thus, we think there is no basis for her argument that she was confused, or her secondary argument that she never actually refused to take the test.

III

Graham's remaining contention is that the district court erred in denying her motion to stay the revocation of her license until the hearing could be held on her application to rescind the Department's action.

Graham first argues that she was entitled to a stay under the provisions of former AS 28.05.074 and 28.05.076. ⁸ "Unless otherwise specifically provided," those sections provide for an administrative hearing prior to revocation of a driver's license, unless immediate revocation "is necessary for the protection of the health, safety or welfare of the public." AS 28.05.076 also provides for an appeal to the district court to rescind the Department's action, and states that the decision of the Department "is stayed and does not take effect during the pendency of an appeal." AS 28.05.076(b).

The state correctly argues that neither of these statutes is applicable to a license revocation based on a refusal to perform a breathalyzer test.

As already noted, the requirements of AS 28.05.074 and 28.05.076 apply only where not "otherwise specifically provided." AS 28.35.032(b) requires immediate revocation of a driver's license, upon receipt of the required documentation of the refusal, without a prior hearing. The same notice that informs the driver of his or her right to initiate a proceeding in the district court must also contain notice that the person's "privilege to operate a motor vehicle is revoked or suspended." AS 28.35.032(b) (emphasis added). Thus, we believe, AS 28.35.032(b) specifically provides for revocation of a license without prior notice and an opportunity to be heard. AS 28.05.074 and 28.05.076, therefore, do not apply.

The second part of Graham's...