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Zemljich v. Municipality of Anchorage (11/24/2006) ap-2073

Zemljich v. Municipality of Anchorage (11/24/2006) ap-2073

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts.

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ANTHONY F. ZEMLJICH, )
) Court of Appeals No. A-9364
Appellant, ) Trial Court No. 3AN-04-8546 CR
)
v. ) O P I N I O N
)
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) No. 2073 - November 24, 2006
)
          Appeal  from the District Court,  Third  Judi
          cial  District, Anchorage, Sigurd  E.  Murphy
          and Brian K. Clark, Judges.

          Appearances: Stephanie Patel, Law  Office  of
          Dan  Allan,  Anchorage,  for  the  Appellant.
          Rachel  Plumlee and Amy K. Doogan,  Assistant
          Municipal   Prosecutors,  and  Frederick   H.
          Boness,  Municipal Attorney,  Anchorage,  for
          the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS, Chief Judge.

          A police officer contacted Anthony F. Zemljich after he
observed Zemljich in his vehicle talking to a young girl who  was
on  the  ground in a fetal position crying.  As a result of  this
contact,  Zemljich was convicted of driving under the  influence.
Zemljich  argues that the trial court erred in finding  that  the
officer  had  reasonable suspicion to stop him.  He  also  argues
that the trial court erred in ruling that he waived his right  to
an independent chemical test.  We affirm Zemljichs conviction.

          Facts and proceedings
          On   August  29,  2004,  at  approximately  7:12  p.m.,
Anchorage  Police  Officer  John  Daily  was  driving  south   on
Fairbanks  Street  toward  Northern  Lights  Boulevard.   As   he
approached the intersection, he saw Zemljich start to back out of
the  Office  Lounge  Bar  parking lot.  Both  cars  stopped,  but
eventually Officer Daily pulled past Zemljichs car and stopped at
Northern  Lights Boulevard so he could turn right  onto  Northern
Lights  Boulevard.   As  he was waiting  for  traffic  to  clear,
Officer  Daily  looked in his rearview mirror  and  saw  Zemljich
drive  north  on Fairbanks Street and turn into the alley  behind
the Office Lounge.
          After  a fair amount of time waiting for an opening  in
traffic,   Officer  Daily  turned  right  onto  Northern   Lights
Boulevard.  As he passed the Office Lounge, he saw Zemljichs  car
stopped in an alley on the west side of the building, next  to  a
young  girl.  The girl was on the ground in a fetal position  and
appeared to be crying.  Officer Daily thought Zemljich was trying
to pick up the girl or had done something to upset her.
          Officer  Daily  turned into a parking lot  and  circled
back  to Zemljich and the girl. When Officer Daily was within  75
to  100  feet  of Zemljich, Zemljich pulled his car  forward  and
attempted to turn onto Northern Lights.  However, the traffic was
too  heavy  for  Zemljich to pull out.  Officer Daily  pulled  up
behind Zemljich, turned on his overhead lights, and hit his siren
twice.   He  got  out  of  his  car and  started  walking  toward
Zemljich.   At  that point, Zemljich began to pull into  traffic.
Officer Daily yelled at him, and Zemljich stopped and backed  up,
almost hitting Officer Dailys car.
          Officer Daily made contact with Zemljich, obtained  his
identification, and told him to stay where he was.   During  this
contact,  he  saw Zemljich put a breath mint in  his  mouth.   He
observed  that Zemljich had bloodshot eyes, droopy  eyelids,  and
smelled  strongly  of alcohol. And he noticed that  Zemljich  was
slurring   his   speech,  fumbling,  and  moving   in   a   slow,
uncoordinated manner.
          Officer  Daily then talked to the girl.  The girl  said
she  was  crying because she had just had a fight with  her  best
friend,  not because of Zemljich.  Officer Daily told her  to  go
home.  He then arrested Zemljich for driving under the influence.
          While he was processing Zemljich for driving under  the
influence, Officer Daily read Zemljich a form about his right  to
an independent chemical test.  Zemljich and the officer discussed
Zemljichs right to an independent test both before and after  the
officer administered a breath test, which showed Zemljich  had  a
blood  alcohol level of .227 percent.  Zemljich could not  decide
what to do.  Finally, he and the officer agreed that his decision
was indecision.
          Before  trial, Zemljich filed a motion to suppress  all
the  evidence obtained as a result of this stop, arguing that the
officer lacked reasonable suspicion for the stop. District  Court
Judge  Sigurd  E. Murphy denied the motion after  an  evidentiary
hearing.            Zemljich then filed a motion to suppress  the
breath test result on the ground that he did not waive his  right
to  an  independent test.  District Court Judge  Brian  K.  Clark
denied   the   motion,  finding  that  Zemljich   knowingly   and
intelligently waived his right to a test because he simply  could
not decide whether to exercise that right.
          On  July  19,  2005,   after a  bench  trial  based  on
stipulated  facts, Judge Clark found Zemljich guilty  of  driving
under the influence.  Zemljich appeals.

          Discussion
          Did the officer have reasonable suspicion for the stop?

          Whether an officer has reasonable suspicion to make  an
investigative stop is a mixed question of fact and law.1  We view
the  evidence  in  the light most favorable to the  trial  courts
ruling  and  overturn the trial courts factual findings  only  if
they  are  clearly erroneous.2  We independently  review  whether
those facts justify reasonable suspicion for the stop.3
          Police are authorized to perform an investigative  stop
when  they have reasonable suspicion that imminent public  danger
exists  or that serious harm to persons or property has  recently
occurred.4   A reasonable suspicion is one that has some  factual
foundation in the totality of the circumstances observed  by  the
officer  in  light of the officers knowledge.5  Relevant  factors
include  the extent of danger threatened by a potential crime  or
the  seriousness of harm resulting from a crime that has  already
been committed, the imminence of the threat or the recentness  of
the crime, the strength of the officers reasonable suspicion, the
opportunity  for  additional investigation, the intrusiveness  of
the  stop,  and  deliberately furtive actions or  flight  at  the
approach   of  strangers  or  law  enforcement  officers.6    The
fundamental  question  is  whether a prompt  investigation  [was]
required ... as a matter of practical necessity.7
          In  this case, the court found that the officer  had  a
reasonable suspicion that Zemljich was committing what  would  be
the  first act of enticing a child in for pedophil[ic]  or  other
criminal purposes or, in the alternative, that Zemljich  had  hit
the child with his car and was leaving the scene of the accident.
Both  scenarios  involve  a serious harm,  one  that  either  was
occurring  or  had  recently occurred.8  And both  scenarios  are
supported  by  the circumstances observed by the  officer.9    In
addition,  the  court  found that when Zemljich  pulled  his  car
forward, the officer could reasonably suspect that he was  trying
to  leave  the scene of a felony.   Zemljichs imminent  departure
added  to  the  officers  reasonable suspicion  and  limited  the
          officers opportunity for additional investigation.  And the stop
was  not  excessively intrusive  the officer only asked  Zemljich
for his identification and told him to stay where he was until he
talked to the girl.
          Under  the  totality  of  the circumstances,  a  prompt
investigation  [was]  required  ...  as  a  matter  of  practical
necessity.10   We  conclude  that Officer  Daily  had  reasonable
suspicion to make the stop.

          Did Zemljich waive his right to an independent test?
          Zemljich next argues that he did not waive his right to
an  independent  test. A driver arrested for  driving  under  the
influence  has a due process right under the Alaska  Constitution
to a reasonable opportunity to challenge the accuracy of a police-
administered breath test.11  One way for the police to satisfy due
process  is  to  effectively  comply with  AS  28.35.033(e),  the
statute  establishing  the right to an independent  test  of  the
drivers  alcohol  level, by, in part, giving the defendant  clear
and express notice of this statutory right.12
          A  driver  may relinquish this right only by a  knowing
and  intelligent  waiver of the right.13  This requires  a  basic
understanding  of  the right to an independent test,14  which  is
satisfied  if  the  driver  is  notified  of  the  right  to   an
independent  test,  is  aware that he or  she  was  arrested  for
driving  under the influence, and generally understands that  the
purpose of the independent test is to obtain evidence of  his  or
her blood alcohol level.15  However, it does not require that the
driver   be  able  to  assess[]  the  potential  advantages   and
disadvantages of availing himself of the right to an  independent
test.16

          Judge Clark found that Zemljich understood his right to
an  independent  test  and simply could  not  decide  whether  to
exercise  that right.  We review this factual finding  for  clear
error.17
          The officer began by reading Zemljich the notice of his
right  to an independent breath test.  Zemljich asked the officer
for  advice on whether to get an independent test and whether  it
would  make  a difference.   He also expressed concern  that  the
independent test might be used against him.  Among other  things,
Zemljich said:  It doesnt matter either way, does it?; Whats  the
difference  ... between you and I as human beings?; I  dont  know
what ... to do; Does it make a difference?; If I do this, it will
be  against me, right?; I dont know; How do I know which  one  is
the right one?.
          When  Zemljich  asked the officer what  he  should  do,
Officer  Daily  told Zemljich that he could not  give  him  legal
advice  and  could  not make the decision for him.   However,  he
explained  that  basically, if you dont think  that  [the  breath
test]  is going to be correct, that the reading on this is  going
to accurate, you can get your own test done to see what your test
shows.  When  Zemljich asked him if getting an  independent  test
          would make a difference, Officer Daily stated, This is an
independent test if you want one  if you dont think this  [breath
test]  machine  is accurate, or if you just want  an  independent
test.   When Zemljich asked if the independent test would be used
against him, the officer said the city could ask the court for  a
search warrant to get a copy of the results, so, yes, in that way
it  could  be used against you.  In the end, Zemljich  could  not
decide  whether to exercise the right and agreed with the officer
that his decision was indecision.
          Zemljich  argues  that  he  would  have  requested   an
independent test if he knew the test could have been used for his
benefit.    However,  he  was  notified  of  the  right   to   an
independent test, was aware that he had been arrested for driving
under the influence, and generally understood that the purpose of
the  independent test was to obtain evidence of his blood alcohol
level.18  He was only undecided on whether or not it would be  to
his  advantage to exercise the right.  As noted above, the driver
does not have to be able to assess[] the potential advantages and
disadvantages of availing himself of the right to an  independent
test.19    We  conclude that Judge Clark did not clearly  err  in
finding  that  Zemljich understood his right  to  an  independent
test.20
          Zemljich also argues that, because he could not  decide
whether  he  wanted  to  seek  an  independent  test,  he   never
affirmatively waived his right to the independent test.
          Zemljich points out that, in prior decisions,  we  have
declared  that the government cannot rely on an arrested  drivers
breath  test result unless (1) the government provides the driver
with  an  independent test or (2) the government shows  that  the
driver  knowingly  and  intelligently  waived  the  right  to  an
independent test.  A driver may relinquish the right to challenge
the  breath test [through the means of an independent test],  but
only by a knowing and voluntary waiver of that right.21
          Thus, in Ahtuangaruak v. State,22 we recognized that an
arrested  drivers decision to decline an independent  test  could
not  be  considered a knowing and intelligent waiver of this  due
process right if the driver, due to extreme intoxication  or  any
other  reason,  failed  to acquire a basic understanding  of  the
right to an independent test.23
          Zemljichs case, however, presents a different aspect of
the waiver problem.  The trial court found that Zemljich did,  in
fact,  understand  his  right to an independent  test,  and  that
Zemljich  understood the potential consequences   both  favorable
and  unfavorable   of obtaining an independent  test.   Thus,  if
Zemljich  had expressly declined the independent test,  his  case
would look like the facts of Crim v. Anchorage24  a case in which
we   held  that  the  driver  validly  waived  the  right  to  an
independent test.25
          The  problem in the present case is that Zemljich could
not make up his mind whether to ask for an independent test.   He
neither  expressly  requested an independent test  nor  expressly
declined  one.   Rather,  he  was unable  to  decide  whether  an
          independent test would advance his interests, so he told the
officer that his decision was indecision.
          In  many  instances, a defendants inability  to  decide
will  not  constitute  a  knowing and  intelligent  waiver  of  a
constitutional right.  For example, if a defendant cannot  decide
whether  to  waive  the right to counsel, or the  right  to  jury
trial, there will be no waiver.26
          But as we explained in Knix v. State,27 the rule of  no
waiver  in  these situations is simply a reflection of  the  fact
that, in such circumstances, the law provides a default answer to
the  problem  posed  by  the defendants  indecision.28    If  the
defendant will not waive the right to counsel, the defendant will
have  counsel;  similarly, if the defendant will  not  waive  the
right to jury trial, the case will be tried to a jury.  Knix,  on
the  other  hand, involved a situation where the law provided  no
default  solution:   the  defendants in  Knix  could  not  decide
whether  to  testify at trial or to remain silent (i.e.,  refrain
from taking the stand).29
          This was a problem because, in LaVigne v. State,30  the
Alaska Supreme Court declared that trial judges should not  allow
the  defense case in a criminal trial to end until the  defendant
had  either  taken the stand or voluntarily waived the  right  to
testify.31   The defendants in Knix refused to choose whether  to
testify,  so  the  trial  judge declared  that  the  trial  would
continue without the defendants testimony.32


          On appeal, the defendants in Knix argued that the trial
court had not properly elicited from them an on-record waiver  of
their   right   to   testify.33    We  held  that,   under   such
circumstances, the law did not require an express waiver.  As  we
explained in Knix:
          
     Most     constitutionally     guaranteed
procedural  rights stand alone,  without  any
constitutionally    guaranteed     equal-but-
opposite  corollary.  For example, a criminal
defendant enjoys the right to be tried  by  a
jury but has no opposing constitutional right
to  be tried before a judge alone ...  .   In
the absence of a clear waiver of the right to
a   trial  by  jury,  the  right  [will]   be
preserved by ordering the defendant to  stand
trial before a jury[.]

     [Even     with    regard     to]     the
constitutionally protected right to  counsel,
whose   corollary   is  the  constitutionally
protected right to self-representation[,] ...
the right to counsel is clearly dominant, and
[the]  right  to self-representation  clearly
subordinate.  A criminal defendant  who  does
     not affirmatively and expressly waive the
right  to  counsel  must proceed  with  legal
representation.  ...

     [But  with  regard  to  the]  right   to
testify  and  its  corollary,  the  right  to
silence  ...  [,  b]oth are  fundamental  and
constitutionally enshrined.  Neither has been
established  as  clearly  dominant  over  the
other;   they   are   equally   vital.    ...
[Moreover,]  the  two  rights  are   mutually
exclusive.  A defendant cannot simultaneously
exercise the right to testify and [the right]
to  remain silent.  The exercise of one right
necessarily entails a relinquishment  of  the
other.


     Given  the  ...  relationship  of  these
corollary  rights, a rule actually  requiring
an  on-record, voluntary waiver of the  right
to  testify  leads  to a profound  conundrum:
what is to be done in the case of a defendant
who is unwilling to knowingly and voluntarily
relinquish either the right to testify or the
right  to remain silent?   There is seemingly
no  default  option.  If a  defendant  stands
mute  in  the  face of a LaVigne  inquiry  or
expresses  continuing  confusion   over   the
courts  explanation of procedural  rights,  a
finding  of voluntary waiver of the right  to
testify might strain law and logic.  Yet  the
trial  court  cannot direct the defendant  to
testify;   nor  would  it  be   a   palatable
alternative  to  abort the trial   a  measure
that  would put the power of mistrial in  the
hands    of    virtually   any   enterprising
defendant.[34]

Accordingly,  we  upheld  the  trial   judges
decision  to  order  the  trial  to   proceed
without the defendants testimony.35
          Zemljichs    case    presents    an
analogous  problem.   Zemljich  had   a   due
process right to demand an independent  test,
but  he  also  had  a right to  refrain  from
consenting to another seizure and analysis of
physical  evidence from his  body.   Zemljich
understood his options, but he was unable  to
decide what to do.
          Because  Zemljich  was  unable   to
decide,  the arresting officer was confronted
          with the same type of conundrum that
confronted  the  trial judge  in  Knix:   the
arrest process had to go forward, even though
Zemljich refused to commit himself to  either
demanding or declining the independent test.
          We  hold  that, in such situations,
the  law  does not require the government  to
obtain  the defendants express waiver of  the
right   to  an  independent  test.    It   is
sufficient  that a defendant be  informed  of
the  right to an independent test,  that  the
defendant understand this right, and that the
defendant    be    provided   a    reasonable
opportunity to obtain an independent test.36
          Here, Zemljich understood his right
to  an  independent test, and he was given  a
reasonable   opportunity  to  exercise   that
right.  He simply could not decide whether to
take    advantage   of   it.    Given   these
circumstances, the government  satisfied  its
duty,  and  Zemljichs breath test result  was
admissible.

          Conclusion
          The  judgment of the district court
is AFFIRMED.











                                        

_______________________________
     1 State v. Garcia, 752 P.2d 478, 480 (Alaska App. 1988).

     2 Id.

     3 Id.

     4  Coleman v. State, 553 P.2d 40, 46 (Alaska 1976);  Garcia,
752 P.2d at 480.

     5 Ozhuwan v. State, 786 P.2d 918, 921 (Alaska App. 1990).

     6  Dimascio v. Anchorage, 813 P.2d 696, 698-99 (Alaska  App.
1991); State v. G.B., 769 P.2d 452, 455-56 (Alaska App. 1989).

     7 G.B., 769 P.2d at 456 (quoting Coleman, 553 P.2d at 46).

     8   See  AS  11.31.110,  AS  11.41.434,  &  AS  12.55.125(c)
(solicitation of first-degree sexual abuse of a minor is a  class
A   felony   with  a  sentencing  range  of  up  to  20   years);
AS 28.35.060(a) & (c) (a driver who leaves the scene of an injury
accident  without  providing assistance  to  injured  persons  is
punishable by up to 10 years of imprisonment and a $10,000 fine).
See  also  Sullivan v. State, 766 P.2d 51, 56  n.5  (Alaska  App.
1988)  (asking a minor to engage in sexual contact may constitute
solicitation).

     9 See Coleman, 553 P.2d at 46.

     10 Id.

     11  Gundersen  v.  Anchorage, 792 P.2d 673,  675-77  (Alaska
1990); Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995).

     12 Gundersen, 792 P.2d at 676-77.

     13 Id. at 677.

     14  Ahtuangaruak  v. State, 820 P.2d 310, 311  (Alaska  App.
1991).

     15  Moses  v. State, 32 P.3d 1079, 1084 (Alaska App.  2001);
Crim v. Anchorage, 903 P.2d 586, 588 (Alaska App. 1995).

     16 Crim, 903 P.2d at 588.  See also Moses, 32 P.3d at 1084.

     17 Crim, 903 P.2d at 588.

     18 See Moses, 32 P.3d at 1084 (citing Crim, 903 P.2d at 588).

     19 Crim, 903 P.2d at 588.  See also Moses, 32 P.3d at 1084.

     20 See Crim, 903 P.2d at 588.

     21 Crim, 903 P.2d at 588 (citing Gunderson v. Anchorage, 792
P.2d 673, 677 (Alaska 1990)).

     22 820 P.2d 310 (Alaska App. 1991).

     23 Id. at 311.

     24 903 P.2d 586 (Alaska App. 1995).

     25 Id. at 588-89.

     26  See  Gladden v. State, 110 P.3d 1006, 1007 (Alaska  App.
2005) (defendant must  unequivocally waive the right to counsel);
McGlauflin  v.  State,  857  P.2d 366,  369  (Alaska  App.  1993)
(defendant must explicitly waive the right to a jury trial).

     27 922 P.2d 913 (Alaska App. 1996).

     28 Id. at 918 n.6.

     29 Id. at 918-19 n.6.

     30 812 P.2d 217 (Alaska 1991).

     31 Id. at 222.

     32 Knix, 922 P.2d at 919.

     33 Id. at 917.

34 Knix, 922 P.2d at 918 n.6.

35 Id. at 919.

36 Gundersen, 792 P.2d at 676 n.6.

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