Svedlund v. Municipality of Anchorage, 7581

• Decision Date: 28 October 1983
• Docket Number: No. 7581,7581
• Citation: 671 P.2d 378
• Parties: Lee G. SVEDLUND, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
• Court: Alaska Court of Appeals

Page 378

671 P.2d 378

Lee G. SVEDLUND, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.

No. 7581.

Court of Appeals of Alaska.

Oct. 28, 1983.

Larry Cohn, Birch, Horton, Bittner, Pestinger & Anderson, Anchorage, for appellant.

Dennis P. Cummings, Asst. Mun. Prosecutor, Allen M. Bailey, Mun. Prosecutor, and Jerry Wertzbaugher, Mun. Atty., Anchorage, for appellee.

OPINION

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

SINGLETON, Judge.

On November 1, 1982, Lee G. Svedlund was arrested for driving while intoxicated, AMC 9.28.020(A), refusal to submit to a breathalyzer, AMC 9.28.022(C), ¹ and resisting an officer, AMC 8.05.530(a). Svedlund was read a standard implied consent warning informing him that sanctions, including loss of his driver's license, could be imposed for refusing to submit to a breathalyzer. In addition, he was informed that refusal to submit to a breathalyzer was a misdemeanor. Svedlund was not advised of his Miranda rights, nor was he given an opportunity to contact an attorney. Svedlund refused to submit to a breathalyzer. Svedlund was acquitted of DWI and the resisting charge was dismissed. He was convicted of refusal to submit to a breathalyzer. Svedlund raises several constitutional questions on appeal. We affirm.

I. ADVISING DWI SUSPECT OF MIRANDA RIGHTS

Svedlund contends that he should have been advised of his Miranda rights prior to being requested to submit to a breathalyzer. Certain warnings ² must be given to a suspect who is in custody ³ and is interrogated ⁴ to secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966). "In the context of an arrest for driving while intoxicated, a police inquiry of whether the suspect will take a blood-alcohol test is not an interrogation within the meaning of Miranda." South Dakota v. Neville, 459 U.S. 553, ---- n. 15, 103 S.Ct. 916, 923 n. 15, 74 L.Ed.2d 748, 759 n. 15 (1983). See also Johnson v. State, 662 P.2d 981, 987 (Alaska App.1983) (police request that suspect submit to combing for pubic hair did not constitute interrogation); Coleman v. State, 658 P.2d 1364, 1365-66 (Alaska App.1983) (since there is no constitutional right to refuse to take the breathalyzer examination, the refusal cannot be protected by the privilege against self-incrimination).

If Svedlund made statements or answered questions at the time he was asked to submit to a breathalyzer, then those questions and answers might have constituted an interrogation. No such comments or questions were alleged in this case. We therefore hold that Svedlund's constitutional rights were not violated by not informing him of his Miranda rights prior to asking him to take the breathalyzer exam. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 308 (1980) (police words or actions "normally attendant to arrest and custody" do not constitute interrogation); Palmer v. State, 604 P.2d 1106, 1109 (Alaska 1979) (Miranda warnings not required prior to administering sobriety tests).

II. CONSTITUTIONAL RIGHT TO COUNSEL

In Copelin v. State, 659 P.2d 1206 (Alaska 1983), the Alaska Supreme Court held that a person suspected of driving while intoxicated had a statutory right to contact an attorney before deciding whether or not to submit to a breathalyzer test if (1) he requested an opportunity to contact an attorney, and (2) granting the request would not involve a delay long enough to impair test results. Id. at 1211-12. In this case, Svedlund alleges that he was not afforded an opportunity to contact an attorney and the municipality concedes this point. However, the record does not show that Svedlund ever requested an opportunity to contact counsel. Cf. Graham v. State, 633 P.2d 211, 214 (Alaska 1981) (there is no right to have counsel present before being required to take a breathalyzer).

Svedlund argues that there is a constitutional right to contact an attorney prior to deciding whether or not to submit to a breathalyzer which is independent of any statutory right. This issue was not addressed in Copelin. In Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979), the court held that police have no duty to advise a suspect of any constitutional right to have counsel present while performing field sobriety tests. However, in Blue v. State, 558 P.2d 636 (Alaska 1977), the court stated that there was a right to have counsel present at a pre-indictment lineup "unless exigent circumstances exist so that providing counsel would unduly interfere with a prompt and purposeful investigation." Id. at 642 (footnote omitted). The Geber court distinguished Blue by pointing out that field sobriety tests are indicators of the degree of impairment existing at the time of the suspected offense, and thus they must be performed as soon thereafter as possible. 592 P.2d at 1192. The reason for requesting a breathalyzer is the same as that for requesting field sobriety tests: to preserve evidence of intoxication.

The constitutional right to counsel exists " 'at any stage of the prosecution ... in court or out, where counsel's absence might derogate from [the accused's] right to a fair trial.' " People v. Craft, 28 N.Y.2d 274, 321 N.Y.S.2d 566, 270 N.E.2d 297, 299 (N.Y.1971) (quoting United States v. Wade, 388 U.S. 218, 226-27, 87 S.Ct. 1926, 1931-32, 18 L.Ed.2d 1149, 1157 (1967)). We conclude, in reliance on Geber and Palmer v. State, 604 P.2d 1106, 1108-09 (Alaska 1979), that the breathalyzer exam is not a "critical stage" at which the constitution requires counsel's presence. While a defendant has a statutory right to contact counsel, Svedlund did not properly invoke that right. In any event, there is nothing in the record to show that the police affirmatively interfered with any attempt by Svedlund to obtain counsel. See Johnson v. State, 662 P.2d 981, 988-89 (Alaska App.1983). We therefore reject Svedlund's claim based upon the right to counsel.

III. CONSTITUTIONALITY OF AMC 9.28.022

In Jensen v. State, 667 P.2d 188 (Alaska App.1983), this court was asked to rule on the constitutionality of an Alaska Statute criminalizing refusal to submit to a breathalyzer, AS 28.35.032(f), which was nearly identical to the ordinance being considered here. ⁵ We equated that statute to the statute criminalizing tampering with physical evidence, AS 11.56.610. We held that because there is no right to refuse to submit to a breathalyzer. See AS 28.35.031; AMC 9.28.021 (implied consent), and because refusal to submit effectively conceals evidence of drunk driving, penalizing refusal "serves the legitimate legislative goals of deterring such refusals and insuring that those who refuse gain no benefit by their refusal." Jensen v. State, 667 P.2d at 190. See Coleman v. State, 658 P.2d 1364, 1365 (Alaska 1983).

Svedlund argues that AMC 9.28.022 violates his state and federal constitutional equal protection guarantees. The United States Constitution ensures that no state shall "deny to any person within its jurisdiction the equal protection of the laws," U.S. Const. amend. XIV, § 1; the Alaska Constitution provides: "[a]ll persons are equal and entitled to equal rights, opportunities, and protection under the law." Alaska Const. art. I, § 1. To survive a federal equal protection challenge, the legislature must have a rational basis for choosing the statute as a means of attaining a permissible legislative goal.

The applicable test ... is "whether the classification is reasonable, possesses some rational connection to the measure's legitimate purpose and treats all within the class alike." Under this test, legislation is presumed to be reasonable, and any reasonably conceivable facts justifying the classification will be accepted.

Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d 1255, 1262 (Alaska 1980) (footnotes omitted). Under the more restrictive Alaska test, the court looks to the legislative purpose.

It must be determined that this purpose is legitimate, that it falls within the police power of the state. Examining the means used to accomplish the legislative objectives and the reasons advanced therefore, the court must then determine whether the means chosen substantially further the goals of the enactment. Finally, the state interest in the chosen means must be balanced against the nature of the constitutional right involved.

State v. Erickson, 574 P.2d 1, 12 (Alaska 1978) (footnotes omitted). In essence, then, Alaska courts "apply a single test which is ... flexible and dependent upon the importance of the rights involved. Based on the nature of the right, a greater or lesser burden is placed on the state to show that the classification has a fair and substantial relation to a legitimate governmental objective." Commercial Fisheries Entry Commission v. Apokedak, 606 P.2d at 1264 (footnote omitted).

Svedlund's equal protection argument is similar to the due process argument we rejected in Jensen. Essentially, he argues that there is no connection between his refusal to submit to a breathalyzer test and the public purpose of ridding the highways of drunk drivers. As in Jensen, we find that the nexus between the purpose of the law, i.e., to facilitate investigations of drunken driving by producing usable evidence, is sufficiently related to the means chosen, i.e., sanctioning those who hinder the production of evidence. Thus, the Alaska equal protection test and, a fortiori, the federal test, are satisfied even if those tests are more stringent than the substantive due process test considered in Jensen. We conclude that punishing a refusal to take a breathalyzer test bears a fair and substantial relation to the legitimate governmental objective of gathering evidence of possible drunken driving.

Svedlund also argues that the ordinance violates his privilege against self-incrimination. ⁶ In Coleman v. State, 658 P.2d 1364, 1365 (Alaska App.1983), we held that because there was no right to refuse...