McCormick v. Municipality of Anchorage, No. A-6557.

CourtCourt of Appeals of Alaska
Writing for the CourtMANNHEIMER.
PartiesJohn McCORMICK, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Docket NumberNo. A-6557.
Decision Date10 March 2000

999 P.2d 155

John McCORMICK, Appellant,
v.
MUNICIPALITY OF ANCHORAGE, Appellee

No. A-6557.

Court of Appeals of Alaska.

March 10, 2000.

Rehearing Denied June 2, 2000.


999 P.2d 157
Frederick T. Slone, Kasmar and Slone, Anchorage, for Appellant

Benjamin O. Walters, Jr., Deputy Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney, Anchorage, for Appellee.

Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.

OPINION

As Modified on Rehearing

MANNHEIMER, Judge.

John McCormick was involved in a motor vehicle accident. When the police arrived on the scene, an officer asked McCormick to perform field sobriety tests. McCormick agreed to perform a horizontal gaze nystagmus test, and the results from all six segments of the test indicated that McCormick was under the influence of alcohol. The officer next asked McCormick to perform two other tests: the turn-and-walk test, and the stand-on-one-leg test. McCormick refused to perform these tests. The officer then arrested McCormick for driving under the influence.

At McCormick's trial, the Municipality introduced evidence that McCormick had refused to perform the latter two field sobriety tests. In this appeal, McCormick contends that the Municipality should not have been allowed to introduce evidence of, or comment on, McCormick's refusal to perform these two field sobriety tests.

At the police station, McCormick submitted to a breath test. He then exercised his right to obtain an independent blood test at a local hospital. Hospital personnel drew two vials of McCormick's blood. Soon thereafter, McCormick's attorney contacted the hospital and directed them to send both vials to a laboratory in Colorado. The Municipality was not notified of this action.

Some months later, thinking that the blood sample was still at the hospital, the Municipality obtained a search warrant for the blood sample, contacted the hospital, and discovered that the blood had been sent away at the defense attorney's direction. The Municipality then applied to the district court for an order directing the defense attorney to surrender any unused blood to the Municipality for testing. The district court issued this order. A portion of the blood was sent to the Municipality; when tested, this blood yielded a result of .125 percent alcohol. This test result was introduced at McCormick's trial.

On appeal, McCormick contends that the district court should not have ordered McCormick's attorney to surrender the remaining blood. McCormick argues that the Alaska Constitution bars a court from ordering a DWI defendant to produce a portion of the blood drawn during an independent test; he contends that any such order impermissibly burdens the defendant's due process right to an independent test. McCormick also contends that, because the blood in question was in the possession of his attorney or his attorney's agents (the laboratory in Colorado), the district court's order infringed McCormick's attorney-client privilege.

In addition, McCormick contends that the district court improperly prohibited him from arguing to the jury that they should distrust the government's blood-test results because McCormick's blood sample might have been mishandled or improperly preserved by the Colorado laboratory.

Finally, McCormick challenges one aspect of his sentence: the forfeiture of his vehicle.

999 P.2d 158
For the reasons explained here, we reject all of McCormick's contentions and we affirm his conviction

Can the government introduce evidence of, and comment on, a motorist's refusal to perform field sobriety tests after the motorist is validly stopped on suspicion of driving while intoxicated?

As described above, McCormick refused to perform two of the field sobriety tests requested by the police officer. Before trial, McCormick asked the district court to exclude all evidence of his refusal to perform these two tests and to prohibit the government from commenting on McCormick's refusal. The district court denied this request.

On appeal, McCormick renews his argument that the Municipality should not have been allowed to mention his refusal to perform the two field sobriety tests. McCormick advances three theories as to why this evidence was inadmissible.

McCormick first argues that the Alaska Legislature did not intend for the government to be able to use evidence of a motorist's refusal to consent to field sobriety tests. He points out that, in AS 28.35.032(e), the legislature has expressly allowed the government to use evidence of a motorist's refusal to submit to a breath test.1 McCormick argues that the lack of any similar statute concerning field sobriety tests means that the legislature did not intend for the government to be able to use evidence of a motorist's refusal to perform field sobriety tests.

We do not interpret AS 28.35.032(e) as impliedly limiting the government's ability to introduce evidence of a motorist's refusal to take field sobriety tests. Rather, this statute was enacted in order to make sure that the government could introduce evidence of a motorist's refusal to submit to a breath test.

AS 28.35.032(e) was apparently passed in response to the Alaska Supreme Court's decision in Puller v. Anchorage.2 In Puller, the supreme court interpreted a former version of AS 28.35.032 that did not expressly state that a motorist's refusal to take a breath test could be used as evidence against them. The court held that, in the absence of an express provision allowing the government to use evidence of a motorist's refusal, the court would presume that the legislature intended to bar the government from using this evidence.3 Two years later, the legislature enacted AS 28.35.032(e).4

Both Puller and AS 28.35.032(e) are based on the premise that a motorist's refusal to submit to the statutorily mandated breath test is a peculiar kind of evidence that should be treated differently for policy reasons. The government exerts unusual coercion on motorists to submit to the breath test, so unusual procedural safeguards should be satisfied before the government is allowed to use evidence of a motorist's refusal to take the test. But this policy is itself atypical. Ordinarily, the government does not need statutory authorization to introduce circumstantial evidence of a person's intoxication.

Both the Puller court and the legislature (when it enacted AS 28.35.032(e) in response to the Puller decision) treated breath-test refusal as sui generis—as a special type of evidence unto itself. Once the supreme court decided Puller, it is hardly surprising that the legislature perceived the need to enact a special statute to authorize the use of this type of evidence. But the enactment of this statute does not imply that the legislature intended to bar evidence that an arrested motorist declined to cooperate with investigative efforts in some other way.

For this reason, we conclude that AS 28.35.032(e) should not be read as broadly as McCormick suggests. This statute does not prohibit the government from introducing evidence

999 P.2d 159
of a motorist's refusal to perform field sobriety tests.5

McCormick next asserts that he was exercising his right against self-incrimination under the Alaska Constitution6 when he refused to perform the two field sobriety tests. McCormick contends that the Municipality should have been barred from introducing evidence of his refusal to take the tests because this evidence constituted an adverse comment on his invocation of the right not to incriminate himself.

Although McCormick's argument is purportedly based on our state constitution, he fails to cite Alaska case law. Instead, he cites three Oregon cases construing the Oregon Constitution.7 But even Oregon has rejected the claim that the right against self-incrimination protects a motorist from performing non-testimonial field sobriety tests— that is, tests which involve only demonstrations of physical coordination and ability to concentrate.8 The majority of states agree with this conclusion.9

The Alaska Supreme Court has held that field sobriety tests are typically non-testimonial. In Palmer v. State10, the defendant (who had been arrested for DWI) argued that the government should not have been allowed to introduce a videotape made at the police station. This videotape showed the defendant taking a breath test and performing various field sobriety tests.11 On appeal, the defendant contended that the videotape of the sobriety tests should have been suppressed because he was never advised of his Miranda rights.12 The supreme court rejected this contention, declaring that "[t]he fifth amendment offers no protection against compulsion to take the sort of tests administered to [the defendant] in this case."13

It is possible to argue that, even though the taking of field sobriety tests is non-testimonial, a motorist's refusal to take the tests should be deemed a testimonial communication that is protected by the privilege against self-incrimination. But courts from other states have consistently rejected this contention. These courts hold that a defendant's refusal to take field sobriety tests is not testimonial; rather, the refusal (whether verbal or non-verbal) is conduct from which one may draw an incriminatory inference.14

McCormick provides no authority suggesting that the self-incrimination clause of the Alaska Constitution should be construed any differently. Accordingly, we hold that Article I, Section 9 of the Alaska Constitution does not bar the government from introducing evidence of a motorist's refusal to perform non-testimonial field sobriety tests.

Finally, McCormick argues that field sobriety tests constitute a "search" for purposes of the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Alaska Constitution. He contends

999 P.2d 160
that, because field sobriety tests are a "search", a motorist necessarily possesses a constitutional right...

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24 practice notes
  • State v. Mecham, No. 69613–1–I.
    • United States
    • Court of Appeals of Washington
    • June 23, 2014
    ...701 N.E.2d 314 (1998); Columbus v. Anderson, 74 Ohio App.3d 768, 771–72, 600 N.E.2d 712 (1991); see also McCormick v. Mun. of Anchorage, 999 P.2d 155, 160 (Alaska Ct.App.2000). 6.See also Neville, 459 U.S. at 566, 103 S.Ct. 916 (holding that due process is not violated when the government c......
  • Mitchell v. State, S17A0459
    • United States
    • Supreme Court of Georgia
    • June 26, 2017
    ...See Blasi, supra, 167 Md. App. at 511, 893 A.2d 1152 ; Hulse, supra, 289 Mont. at 37, 961 P.2d 75; McCormick v. Municipality of Anchorage, 999 P.2d 155, 160 (Alaska App. 2000) ; State v. Ferreira, 133 Idaho 474, 480-481 (II) (A), 988 P.2d 700 (Idaho App. 1999) ; State v. Taylor, 648 So.2d 7......
  • State v. Mattson, No. 23257.
    • United States
    • Supreme Court of South Dakota
    • June 8, 2005
    ...not precluded from offering evidence of a defendant's refusal to take such non-testimonial tests. McCormick v. Municipality of Anchorage, 999 P.2d 155, 159 (Alaska [¶ 40.] Defendant also cites several cases to support his proposition that a refusal to take a non-testimonial physical evidenc......
  • Blasi v. State, No. 2633, Sept. Term, 2004.
    • United States
    • Court of Special Appeals of Maryland
    • March 2, 2006
    ...prerequisite for the administration of field sobriety tests by a police officer. See McCormick v. Municipality of Anchorage, 999 P.2d 155, 160 (Alaska Ct.App.2000); State v. Lamme, 19 Conn.App. 594, 563 A.2d 1372, 1375 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990); State v. Taylor, 648 ......
  • Request a trial to view additional results
24 cases
  • State v. Mecham, No. 69613–1–I.
    • United States
    • Court of Appeals of Washington
    • June 23, 2014
    ...701 N.E.2d 314 (1998); Columbus v. Anderson, 74 Ohio App.3d 768, 771–72, 600 N.E.2d 712 (1991); see also McCormick v. Mun. of Anchorage, 999 P.2d 155, 160 (Alaska Ct.App.2000). 6.See also Neville, 459 U.S. at 566, 103 S.Ct. 916 (holding that due process is not violated when the government c......
  • Mitchell v. State, S17A0459
    • United States
    • Supreme Court of Georgia
    • June 26, 2017
    ...See Blasi, supra, 167 Md. App. at 511, 893 A.2d 1152 ; Hulse, supra, 289 Mont. at 37, 961 P.2d 75; McCormick v. Municipality of Anchorage, 999 P.2d 155, 160 (Alaska App. 2000) ; State v. Ferreira, 133 Idaho 474, 480-481 (II) (A), 988 P.2d 700 (Idaho App. 1999) ; State v. Taylor, 648 So.2d 7......
  • State v. Mattson, No. 23257.
    • United States
    • Supreme Court of South Dakota
    • June 8, 2005
    ...not precluded from offering evidence of a defendant's refusal to take such non-testimonial tests. McCormick v. Municipality of Anchorage, 999 P.2d 155, 159 (Alaska [¶ 40.] Defendant also cites several cases to support his proposition that a refusal to take a non-testimonial physical evidenc......
  • Blasi v. State, No. 2633, Sept. Term, 2004.
    • United States
    • Court of Special Appeals of Maryland
    • March 2, 2006
    ...prerequisite for the administration of field sobriety tests by a police officer. See McCormick v. Municipality of Anchorage, 999 P.2d 155, 160 (Alaska Ct.App.2000); State v. Lamme, 19 Conn.App. 594, 563 A.2d 1372, 1375 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990); State v. Taylor, 648 ......
  • Request a trial to view additional results

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