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Wing v. State (1/13/2012) ap-2341

Wing v. State (1/13/2012) ap-2341

                                               NOTICE 
        The text of this opinion can be corrected before the opinion is published in thePacific 
        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 

KAREN EVERTS WING,                               ) 
                                                 )         Court of Appeals No. A-10803 
                            Appellant,           )        Trial Court No.     4FA-09-353 CR 
                                                 ) 
             v.                                  ) 
                                                 )                O P I N I O N 
STATE OF ALASKA,                                 ) 
                                                 ) 
                            Appellee.            ) 
                                                 )           No. 2341 - January 13, 2012 

                Appeal     from    the  District   Court,   Fourth   Judicial   District, 
                Fairbanks, Raymond M.         Funk, Judge. 

                Appearances: Robert John, Law Office of Robert John and Jason 
                Beatty,    Beatty's   Law,    LLC,    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. 

                BOLGER, Judge. 

                Karen Everts Wing was convicted of driving under the influence of alcohol. 

She argues the police prohibited her from accessing her cell phone, denying her the 

opportunity to talk with her attorney. Wing also argues that she did not knowingly and 

voluntarily waive her right to an independent chemical test. And she claims that she was 

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unconstitutionally forced to commit a crime when she had to choose between providing 

a breath sample and refusing to submit to the breath test. Finally, she argues the breath 

test was not a valid search incident to an arrest. For the reasons explained here, we reject 

Wing's arguments and affirm her conviction. 

       Background 

              After stopping Wing for several traffic offenses, Fairbanks Police Sergeant 

Gary Yamamoto arrested Wing for DUI and took her to the Fairbanks Police Department 

to administer a breath test and complete the DUI processing. 

              After Wing submitted to the breath test, Sgt. Yamamoto played a video 

explaining her right to an independent chemical test. The video informed Wing that she 

could speak with an attorney or medical personnel if she did not understand her rights. 

After watching this video, Wing could not decide whether she wanted to exercise her right 

to an independent chemical test. Sgt. Yamamoto offered to play the video for her again, 

which she declined. 

              Sgt. Yamamoto went over the independent chemical test form with Wing, 

discussed her options, and asked her if she wanted to make any phone calls. She said she 

wanted to make a phone call and said her cell phone was in her pocket. Sgt. Yamamoto 

indicated the police had a phone she could use. After Sgt. Yamamoto offered Wing the 

station phone, Wing made no further reference to her cell phone. Instead, she gave him 

a phone number, he dialed it, and she spoke to a co-worker for approximately five minutes. 

              When Wing still would not decide whether to obtain an independent test, 

Sgt. Yamamoto ultimately concluded Wing was refusing to decide whether to get an 

independent chemical test and terminated the processing. He told her that if she changed 

her mind between the station and the jail and wanted an independent chemical test to let 

him know. But Wing never requested an independent test. 

                                            - 2 -                                       2341
 

----------------------- Page 3-----------------------

                Wing filed a motion to suppress the breath test result, arguing that she did 

not understand her right to an independent chemical test and that Sgt. Yamamoto denied 

her the right to call an attorney. At an evidentiary hearing, Wing testified that she wanted 

to use the cell phone in her pocket to retrieve her attorney's phone number, and that she 

would have called her attorney if she had been allowed to retrieve her phone. But she 

admitted she did not ask to make any phone calls other than the one she placed. 

                District Court Judge Raymond M. Funk found that Wing understood her 

right to an independent chemical test. He also found that Wing did not ask to make another 

phone call and that she did not ask to look up a number on her cell phone. Judge Funk 

concluded there was no basis to suppress the evidence from her breath test. 

                Wing filed a second motion to suppress, claiming her right to due process 

was violated because she was forced to choose between committing the crime of DUI by 

submitting to the breath test or committing the crime of refusing to take the breath test. 

She also argued the breath test was not a proper search incident to arrest. The court also 

denied this motion. 

                The court held a bench trial based on stipulated facts and found Wing guilty 

of DUI. 

        Discussion 

                The record supports the district court's conclusion that Wing 
                knowingly and intelligently waived her right to an independent 
                chemical test. 

                A DUI arrestee's "waiver of the right to an independent test 'is valid only 
if it is knowingly and intelligently made.'"1 A defendant's waiver of her right to an 

independent   chemical   test   is   valid   where   the   defendant   understands   her   right   to   an 

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

v. Anchorage, 792 P.2d 673, 677 (Alaska 1990)). 
                                                 - 3 -                                              2341 

----------------------- Page 4-----------------------

independent test but is uncertain about whether exercising the right would benefit her.2 

Wing argues she did not understand the purpose of the independent test and that she was 

not allowed to talk to her attorney, who could have explained the test. 

                 At the evidentiary hearing, Wing testified that she did not understand the 

independent   test.   She   conceded   she   understood   that   she   had   the   option   to   have   an 

independent chemical test. But she asserted that she did not understand the purpose of 

having her blood drawn. 

                 Judge Funk clarified Wing's position through a series of questions. He asked 

her,   "So   [your   question   was]   the   strategic   question   of   whether   it   would   be   to   your 

advantage in your arrest, [was that] what that was?" Wing answered, "Yes." Judge Funk 

then went on, "And anything beyond a strategic advantage? Because obviously, the police 

can't explain to you whether it's strategically to your advantage or not. It's not their role. 

Anything beyond that, that you didn't understand?" Wing replied, "No. I just didn't 

understand why I would want to have that done and ... how it [would] benefit me." 

                 Based on Wing's testimony, Judge Funk found that she understood her right 

to an independent chemical test and merely did not know if getting a blood test would 

be advantageous to her defense. The record supports these findings. 

                 The police did not violate Wing's right to contact an attorney. 

                 Wing claims her constitutional and statutory rights to contact her attorney 

were violated because the officer did not allow her to access her attorney's phone number 

        2   See Crim v. Anchorage, 903 P.2d 586, 588-89 (Alaska App. 1995) (defendant's 

waiver valid even though he did not know the result of his breath test at the time he declined 
a   blood   test   and   therefore   could   not   fully   assess   the  advantages   and  disadvantages   of 
obtaining a blood test); Moses v. State, 32 P.3d 1079, 1083-84 (Alaska App. 2001) (rejecting 
claim that defendant's waiver was not knowing and intelligent where defendant understood 
the right to an independent test but was confused about whether an independent test would 
benefit him). 
                                                   - 4 -                                                2341 

----------------------- Page 5-----------------------

from her cell phone. She argues the trial court erred in finding that the officer did not 

interfere with her right to counsel under the Alaska Constitution and AS 12.25.150(b). 

                 In Svedlund v. Anchorage, we decided that the administration of a mandatory 

breath test in a DUI investigation is not a critical stage at which an arrestee has the 

                                                     3 
constitutional right to contact an attorney.  In Babb v. Anchorage, we decided that the 

arrestee's decision on whether to request an independent chemical test is not a critical 

                                                                       4 
stage at which the constitutional right to counsel attaches.  Wing does not cite or discuss 

these cases or any other law on this issue. We conclude that Wing's constitutional right 

to counsel was not implicated during the DUI processing. 

                 Under AS 12.25.150(b), however, an arrestee must be afforded a reasonable 

opportunity to consult with an attorney before being required to decide whether to submit 
to a breath test.5  An arrestee must affirmatively ask to consult with counsel to exercise 

this right.6 Whether a given inquiry constitutes a request to speak to an attorney is a 

question of fact the trial court assesses based on the totality of the arrestee's words.7 

                 In this case, Judge Funk found that Wing merely commented that her cell 

phone was in her pocket, and then, "she said nothing further [about it]." He further found 

        3    671 P.2d 378, 382 (Alaska App. 1983). 

        4    813 P.2d 312, 313 (Alaska App. 1991). 

        5    Copelin v. State, 659 P.2d 1206, 1208 (Alaska 1983). 

        6    See   Annas   v.   State,   726   P.2d   552,   560   (Alaska   App.   1986)   ("Annas   ...   never 

requested an opportunity to consult an attorney before taking the breath test. Consequently, 
he was not denied any of his rights under  Copelin."); Van Wormer v. State, 699 P.2d 895, 
897-98 (Alaska App. 1985), overruled on other grounds by Zsupnik v. State, 789 P.2d 357 
(Alaska 1990) (arrestee must request consultation with counsel);Anchorage v. Erickson , 690 
P.2d 20, 21 (Alaska App. 1984) (a defendant forfeits any rights under Copelin if he does not 
request counsel prior to taking or refusing the breath test); Svedlund, 671 P.2d at 382 (same). 

        7    Van Wormer, 699 P.2d at 898. 

                                                    - 5 -                                                2341 

----------------------- Page 6-----------------------

that Wing "did not state that she wanted to make another phone call, nor did she say that 

she wanted to look on her cell phone for [her attorney's] number." The judge concluded 

that she did not invoke her right to consult with an attorney. 

                 Wing argues that Judge Funk's findings are clearly erroneous, but his rulings 

are supported by the record. Sgt. Yamamoto testified that Wing never asked to use her 

cell phone or indicated she wanted to look up a number on it. And Wing did not ask to 

make   another   phone   call   after   she   talked   to   her   co-worker.   In   her   testimony,   Wing 

admitted that she never asked to make another call. 

                 In Anchorage v. Erickson , the defendant was being driven to the police 

station for a breath test, and he asked the officer "whether he was in trouble and whether 
he might need an attorney."8 Erickson admitted on cross-examination that he had not 

                                                9 
actually asked to contact an attorney.  This court upheld the trial court's finding that 
Erickson's comment was not an affirmative request to speak with an attorney.10 

                 Given our decision in Erickson, it is clear that Wing did not invoke her right 

to call an attorney when she stated that her cell phone was in her pocket. Wing willingly 

used the police station phone to call her co-worker and then she made no further request 

to access a number on her phone, make another call, or to talk with an attorney. Judge 

Funk reasonably rejected Wing's claim that she was denied the opportunity to contact 

an attorney. 

        8    690 P.2d at 21. 

        9   Id. 

         10 Id. at 22. 

                                                   - 6 -                                                 2341 

----------------------- Page 7-----------------------

                 The requirement that a DUI arrestee submit to a breath test 
                does not raise an unconstitutional dilemma. 

                As   defined   in   AS   28.35.030(a),   the   offense   of   driving   while   under   the 

influence may be prosecuted under either or both of two theories. Subsection (a)(1) of 

the statute defines the "under the influence" theory - the theory that the motorist was 

under the influence of intoxicants at the time of driving. Subsection (a)(2) defines the 

"blood alcohol level" theory - the theory that the motorist had a blood alcohol level of 

.08 percent or higher, as shown by a chemical test administered within four hours of 
driving.11 

                Wing argues that when a motorist is arrested for driving under the influence 

under the second theory (the "blood alcohol level" theory), it is unconstitutional to require 

the motorist to submit to a breath test - even though all motorists arrested for DUI are 

required by AS 28.35.032 to submit to the test. 

                Wing analogizes the motorist's situation to the unconstitutional predicament 

described in Gudmundson v. State, where hunters who shot game illegally were faced with 

committing an additional crime, no matter what they chose to do next: If they left the game 

where it was, they would violate the law that required them to salvage the meat; and if 

they took the meat with them, they would violate the law prohibiting the transporting of 
illegally taken game.12 Wing contends that a motorist charged under subsection (a)(2) of 

the DUI statute faces the same sort of Hobson's choice. 

                Wing concedes that, for motorists charged under subsection (a)(1) of the 

statute (the "under the influence" theory), the breath test is a lawful search, because the 

test result merely provides evidence tending to prove or disprove the allegation that the 

        11  See Valentine v. State, 215 P.3d 319, 326-27 (Alaska 2009). 

        12  822 P.2d 1328, 1332-33 (Alaska 1991). 

                                                  - 7 -                                               2341 

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motorist was under the influence of intoxicants at the time of driving. But Wing argues 

that the situation is different for motorists charged under subsection (a)(2) of the statute. 

Wing contends that, for those motorists, the breath test result is an element of the crime 

(if the test result is .08 percent or higher). Thus, according to Wing, motorists in this 

situation are confronted with the choice of either refusing the test (which is a separate 

crime) or taking the test and (if the result is .08 percent or higher) committing the act that 

completes the crime of DUI under subsection (a)(2) of the statute. 

                 Wing's argument is based on a misunderstanding of subsection (a)(2). Under 

this clause of the statute, a person commits DUI if they operate a motor vehicle and, "as 

determined by a chemical test taken within four hours after the alleged operating or 
driving, there is .08 percent or more by weight of alcohol in the person's blood."13 

                 Wing interprets this statute to mean that the act of breath testing is itself an 

element of the crime. We disagree. The statute defines the crime as operating a motor 

vehicle and, within four hours of that conduct, having a blood alcohol level of .08 percent 

or higher. The breath test is simply a method of obtaining evidence that the motorist has, 

or does not have, a blood alcohol level above the statutory limit. 

                 For these reasons, we reject Wing's contention that it is unconstitutional to 

require motorists to submit to a breath test if they are being charged under subsection 

(a)(2) of the DUI statute. 

                 The   breath   test   requirement   is   a   valid   search   incident   to 
                 arrest. 

                 Wing also argues that the DUI breath test was a valid search only when it 

was administered for the purpose of obtaining evidence for the "under the influence" 

theory,   the   crime   for   which   she   was   arrested.   Wing   claims   that   the   police   illegally 

         13  AS 28.35.030(a)(2). 

                                                   - 8 -                                                 2341 

----------------------- Page 9-----------------------

administered the breath test to search for evidence of her guilt under the "blood alcohol 

level" theory, without having probable cause to arrest her for that offense. 

               In this case, according to the stipulated facts, Wing drove out of the parking 

lot of a bar, did not stop before entering the roadway, and failed to stop at two stop signs. 

She weaved while driving, almost going into the ditch and then jerking the wheel back 

and crossing the centerline. She admitted drinking two beers at the bar. And, according 

to the complaint, she had a strong odor of alcohol on her breath, bloodshot, watery eyes, 

slurred   speech,   poor  dexterity,  and  poor   balance.  She   performed    poorly  on   the 

standardized field sobriety tests. 

               This evidence gave the police probable cause to believe Wing was guilty 

under either the "under the influence" theory or the "blood alcohol level" theory. Under 

these circumstances, the statutory requirement of a chemical breath test is a valid search 
incident to arrest.14 When the police conduct a search incident to arrest, they may search 

for evidence of any crime for which they have probable cause.15 Regardless of the theory 

of Wing's arrest, the police were authorized to search her for evidence relevant to either 

theory. 

               But even if the police did not have probable cause to believe Wing's blood 

alcohol level was .08 percent or over, the police could administer a breath test as a search 

incident to arrest for driving under the influence. The fact that the breath test may provide 

evidence of DUI under the "blood alcohol level" theory did not prohibit the police from 

conducting the search incident to arrest based on the "under the influence" theory. 

               We conclude that the statutory scheme that requires a DUI arrestee to take 

a chemical breath test is a valid search incident to arrest under either theory of DUI when 

there is independent evidence to charge the arrestee with driving under the influence. 

       14  Svedlund, 671 P.2d at 384.
 

       15  See Baxter v. State, 77 P.3d 19, 26 (Alaska App. 2003).
 

                                            - 9 -                                         2341 

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Conclusion 

       We AFFIRM the district court's judgment. 

                                    -  10 -                                       2341
 
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