Selig v. State

• Decision Date: 14 September 2012
• Docket Number: No. A–10777.,A–10777.
• Citation: Selig v. State, 286 P.3d 767 (Alaska App. 2012)
• Parties: Leigh F. SELIG, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

286 P.3d 767

Leigh F. SELIG, Appellant,

v.STATE of Alaska, Appellee.

No. A–10777.

Court of Appeals of Alaska.

Sept. 14, 2012.

Jason A. Gazewood, Gazewood & Weiner, Fairbanks, for the Appellant.

William A. Spiers, Assistant District Attorney, Fairbanks, and John J. Burns, Attorney General, Juneau, for the Appellee.

Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

MANNHEIMER, Judge.

Leigh F. Selig was arrested for driving under the influence, after he caused a four-vehicle collision.Selig was taken to the trooper station, where he was asked to submit to a breath test.The breath test showed that Selig had a blood alcohol level of .181 percent, over twice the legal limit.Selig then exercised his right to an independent blood test.This second test yielded essentially the same result: according to the blood test, Selig's blood alcohol level was .182 percent.

After Selig was formally charged with driving under the influence, he asked the district court to suppress the results of both the breath test and the blood test, as well as all other evidence gathered during his DUI processing, on the basis that the troopers did not make an audio recording of the DUI processing.

Selig noted that in Stephan v. State,711 P.2d 1156, 1159(Alaska1985), the Alaska Supreme Court held that the police are required to record every custodial interrogation that occurs at a police station (or any other place of detention) if recording is feasible.Selig argued that the Stephan rule should be expanded to cover any DUI processing at a police station, even if the police do not interrogate the arrestee during the processing.He contended that, without a recording of the DUI processing, “it [was] impossible for Mr. Selig or his counsel to determine what happened [during the] processing”—thus leaving open the possibility that the trooper did not properly advise Selig of his right to consult an attorney, or did not properly explain Selig's right to an independent blood test.

District Court Judge Jane F. Kauvar held a hearing to investigate this matter.Based on the evidence presented at that hearing (in particular, evidence that the trooper's audio recorder was malfunctioning in the days preceding Selig's arrest), Judge Kauvar concluded that the trooper's failure to record his interactions with Selig at the trooper station was perhaps understandable, but not necessarily excusable.However, Judge Kauvar found that the trooper had not violated the Stephan rule—because, even though the DUI processing was not recorded, the trooper did not interrogate Selig during the DUI processing.

(The judge also noted that, in any event, Selig had not filed a motion seeking suppression of any statements he made during the DUI processing.)

With respect to Selig's contention that a recording of the DUI processing would show whether the trooper waited the mandated 15–minute observation period before administering the breath test, Judge Kauvar pointed out that the length of the DUI processing could be determined by comparing the trooper's time of arrival at the station (which was recorded in the dispatch log notes) and the time of the breath test itself (which is recorded by the Datamaster machine).Judge Kauvar also noted that Selig's attorney had not questioned the trooper about this issue ( i.e., the adequacy of the observation period) when the trooper testified at the evidentiary hearing.Finally, Judge Kauvar noted that Selig's attorney had not affirmatively argued that the observation period in Selig's case was inadequate.

With respect to Selig's contention that the trooper might not have advised him of his right to consult an attorney before deciding whether to take the breath test, Selig took the stand at the evidentiary hearing and testified that he had no memory of any conversation with the trooper about his right to call an attorney for advice during the DUI processing.Judge Kauvar concluded that Selig had no memory of any conversation on this topic because there had probably been no such conversation.

Judge Kauvar noted that Alaska law does not require officers to affirmatively advise DUI arrestees of their right to consult an attorney before deciding whether to take the breath test.Rather, the officer's duty is only to honor an arrestee's request to contact an attorney if the arrestee makes this request.¹And Judge Kauvar concluded that Selig would have remembered if he had affirmatively asked the trooper for an opportunity to call an attorney, and the trooper had refused.In other words, Judge Kauvar found that Selig had not affirmatively requested the opportunity to contact an attorney before taking the breath test.

With respect to whether Selig was properly advised of his right to an independent blood test (to check the results of the breath test), Judge Kauvar noted that even though Selig apparently declined the test at first, he ultimately did exercise his right to an independent blood test.(This blood test showed that Selig had a blood alcohol level of .182 percent—essentially the same as Selig's breath test result of .181 percent.)

Based on these findings, Judge Kauvar denied Selig's suppression motion.She ruled that Alaska law does not require the police to record DUI processings (unless custodial interrogation takes place), and she alternatively ruled that, in any event, Selig had failed to show how he might have been prejudiced by the lack of a recording.

The lack of a recording came up again at Selig's trial.Selig's attorney asked the trial judge to instruct the jury that, because the trooper failed to record his interactions with Selig during the DUI processing, the jury should presume that all of the information that would have been on the recording—presumably, all the events of the DUI processing, and all statements made during that processing—would support Selig's claim that he was not guilty.The trial judge declined to give this proposed jury instruction.

In this appeal, Selig renews his argument that all of the evidence obtained during his DUI processing should be suppressed because the troopers failed to record the DUI processing.Alternatively, Selig argues that he should be granted a new trial, and that the jurors at this new trial should be instructed to presume that all the unrecorded events of the DUI processing would support Selig's innocence.

The trooper's failure to record the DUI processing

In Stephan v. State,711 P.2d 1156, 1159(Alaska1985), the Alaska Supreme Court held that the due process clause of our state constitution requires the police to make an audio recording, whenever feasible, of all custodial interrogations that occur in a place of detention (for example, police stations).Selig asks this Court to extend the Stephan recording requirement so that it governs not only custodial interrogations conducted at a police station but also all DUI processings, even when no interrogation occurs during the processing.

Obviously, many DUI processings do involve some amount of custodial interrogation, and that aspect of the processing is already covered by the Stephan rule.But Selig asks us to extend Stephan to all aspects of the DUI processing, including the interaction leading up to the arrestee's decision whether to take the breath test, the interaction preceding the arrestee's decision whether to request an independent blood test, and all other non-interrogation aspects of the officer's interaction with the arrestee.

In his brief to this Court, Selig argues that a recording of the DUI processing is needed to verify various aspects of the police's dealings with the arrestee—in particular, to determine (1) whether the police properly advised the arrestee concerning the breath test, (2) whether the police honored any request the arrestee might have made to consult an attorney before deciding whether to take the breath test, and (3) whether the police properly advised the arrestee concerning the arrestee's right to an independent blood test.

In addition, Selig argues that a recording is needed to verify that the police observed the arrestee for the mandated 15 minutes before administering the breath test.

Any or all of these issues may be important, and may be actively disputed, in a prosecution for DUI or breath-test refusal.And when there is a dispute concerning these issues, the availability of an audio or video recording of the DUI processing would generally aid the fact-finder (whether judge or jury) in resolving the dispute.But this, by itself, is not a sufficient basis for extending the Stephan rule to DUI processings— i.e., for holding that the due process clause of the Alaska Constitution requires the police to record DUI processings whenever feasible.

Traditionally, in our legal system, factual disputes are resolved by having the parties present their witnesses, and then having the opposing parties subject those witnesses to cross-examination and other forms of impeachment.The Stephan requirement that conversations and events be recorded, as an advance precaution against potential factual disputes in the future, is a departure from this traditional rule.

As we noted in Shindle v. State, the special recording requirement announced in Stephan was the result of “a careful balancing of competing interests”.²Our supreme court imposed the recording requirement, and the concomitant rule that unrecorded statements would normally be suppressed, because the court perceived “a systemic problem” arising from the fact that law enforcement agencies and lower courts had repeatedly failed to give due regard to the supreme court's admonitions concerning the need to record custodial interviews.Stephan,711 P.2d at 1163.³That is, police agencies and courts had repeatedly failed to give due regard to “[t]he need to insure that the voluntariness of a [suspect's] confession can be confirmed by reference to an accurate and complete record”.Id. at 1160.

As we noted in Shindle,...