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Grossman v. State (9/7/2012) ap-2370

Grossman v. State (9/7/2012) ap-2370

                                               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 



RICHARD GROSSMAN JR., 

                                                            Court of Appeals No. A-10980 

                                Appellant,                 Trial Court No. 3KN-09-1870 Cr 



                        v. 

                                                                   O    P  I  N  I  O  N 

STATE OF ALASKA, 



                                Appellee.                  No. 2370    -   September 7, 2012 



                Appeal from the District Court, Third Judicial District, Kenai, 

                Sharon A. S. Illsley, Judge. 



                Appearances:      Kenneth     W.  Cole,   Kenai,   for  the  Appellant. 

                Mary A. Gilson, Assistant Attorney General, Office of Special 

                Prosecutions     and  Appeals,    Anchorage,     and  John   J.  Burns, 

                Attorney General, Juneau, for the Appellee. 



                Before:    Coats,   Chief   Judge,   and  Mannheimer      and   Bolger, 

                Judges. 



                MANNHEIMER, Judge. 



                Under the Alaska Supreme Court's decision in Copelin v. State, 659 P.2d 



1206, 1212-14 (Alaska 1983), a person arrested for driving under the influence has the 



right to attempt to contact and consult an attorney before deciding whether to submit to 



a breath test.  This appeal presents the question of whether a DUI arrestee has the right, 


----------------------- Page 2-----------------------

under Copelin, to interrupt the administration of the breath test - not the 15-minute pre- 



testing   observation   period,   but   rather   the   actual   testing   process   itself   -   to   try   to 



telephone an attorney.       For the reasons explained here, we hold that a person's right to 



consult   an   attorney   under  Copelin  does   not include   the right to   interrupt the   actual 



administration of the breath test. 



         Underlying facts 



                 The defendant in this case, Richard Grossman Jr., was arrested for driving 



under the influence, and he was taken to a police station for a breath test.  The arresting 



officer told Grossman at the start of the 15-minute observation period that he was free 



to use the telephone, but Grossman made no attempt to contact anyone. 



                 After   the   15-minute   observation   period   was   over,   the   officer   began   to 



administer the breath test to Grossman.            Although Grossman ostensibly agreed to take 



the test, he would not close his lips around the air tube, and the testing machine reported 



that it had not received an adequate sample of Grossman's breath to run the test.  The 



officer told Grossman that it appeared Grossman was purposely trying to avoid giving 



a breath sample. 



                 After Grossman twice failed to provide an adequate breath sample, the 



officer read the "implied consent" warning to Grossman - apprising Grossman (1) that 



he was legally required to take the breath test, and (2) that the officer intended to charge 



Grossman with the additional crime of breath test refusal unless Grossman provided an 



adequate breath sample on his next attempt. 



                 At this point, Grossman announced that he wanted to consult an attorney. 



The officer replied that he would not allow Grossman to interrupt the administration of 



                                                   - 2 -                                              2370
 


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

the breath test, but the officer assured Grossman that he would be given the opportunity 



to try to contact an attorney after the testing procedure was finished. 



               Grossman then blew a third time into the machine, but again he failed to 



provide an adequate breath sample.  As a result, Grossman was charged with both DUI 



and breath test refusal. 



               (The officer then informed Grossman of his right to an independent blood 



test, but Grossman declined the blood test.) 



        Grossman's claim on appeal 



               In this appeal, Grossman argues that the officer violated his rights under 



Copelin when the officer refused to interrupt the administration of the breath test to let 



Grossman try to contact an attorney.         But the Copelin decision itself declares that an 



arrestee's right to contact an attorney is "limited [to a] reasonable time and opportunity", 



659 P.2d at 1211-12, and that the arresting officer is not required to allow an arrestee to 



exercise    this  right   in  a  manner  that   "interfere[s]  with  the  prompt   and  purposeful 



investigation of the case".      Id . at 1212 n. 14.    This is because the alcohol in a DUI 



arrestee's    blood   will  normally    be  dissipating   with   the  passage   of  time,  and   the 



government has an important interest in obtaining reliable evidence of the arrestee's 



blood alcohol level.  Id. at 1211. 



               The Copelin decision states that an arrestee's request to try to contact an 



attorney during the mandatory 15-minute observation period is reasonable, since "no 



additional delay is incurred by acceding to a request to contact an attorney during that 



time."  Id. at 1211.  But requests made after the observation period is completed must be 



evaluated under the particular facts of the case.  Copelin explains that the reasonableness 



of such requests "will depend on [such] circumstances ... as the amount of time between 



                                               - 3 -                                          2370
 


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

the stop and the [arrestee's] transportation to the station, when the request is made, and 



how much time is needed to set up the [breath] test."               Id. at 1212. 



                 Moreover, Copelin makes it clear that the police are not required to put the 



testing   process   on   hold   while   the   arrestee   attempts   to   contact   an   attorney:  "If   [an] 



attorney   cannot   be   contacted   within   a   reasonable   time[,]   the   [arrestee]   must   decide 



without the advice of counsel ... whether to take the [breath] test."                Ibid. 



                 The question, then, is whether a request to try to contact an   attorney is 



"unreasonable", for purposes of Copelin, if the request is made after the observation 



period is completed and the officer is in the middle of the testing process.                   We believe 



that the supreme court answered this question in Saltz v. Department of Public Safety, 



942 P.2d 1151 (Alaska 1997). 



                 The defendant in Saltz was arrested for DUI after he drove his vehicle into 

a ditch, and he was transported to the trooper station for a breath test. 1             Upon his arrival, 



Saltz   asked   to   speak   to   an   attorney. 2  The   arresting   trooper   provided   Saltz   with   a 



telephone and a copy of the Yellow Pages opened to the "attorneys" section, but Saltz 

told the trooper that he was unable to read the directory listings without his glasses. 3 



The trooper responded that he was not permitted to do more than offer Saltz a telephone, 



the Yellow Pages, and the opportunity to speak with an attorney in private (if Saltz was 

successful in contacting one). 4 



                 Saltz then asked the trooper if he could borrow a pair of glasses, or if the 



trooper could wait to administer the breath test until someone could retrieve Saltz's 



    1   Saltz, 942 P.2d at 1151. 



    2   Id. at 1152. 



    3   Ibid. 



    4   Ibid. 



                                                   - 4 -                                                 2370 


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

glasses from his vehicle (which was still at the scene of the accident). 5                  The trooper told 



Saltz that he had no glasses to give him, and that he would not delay the breath test.  The 

trooper said that Saltz could use his own glasses, but only if they arrived in time. 6                    After 



this exchange, Saltz sat beside the telephone, but he did not attempt to use it. 7 



                  The   trooper   waited   for   the   15-minute   observation   period,   and   then   he 

administered        the  breath    test  to  Saltz. 8   Based      on   the  result   of  that   test,  and   the 



corroborating result of an ensuing blood test, the Division of Motor Vehicles revoked 

Saltz's driver's license. 9 



                  On appeal, Saltz argued that the trooper violated his rights under Copelin 



by failing to provide a pair of reading glasses or (alternatively) reading the Yellow Pages 



aloud   to   Saltz,   or   at   least   giving   Saltz   the   telephone   number   of   the   Alaska   Public 



Defender Agency, or suggesting that Saltz call a relative or friend who might then assist 



him in locating an attorney.          Saltz, 942 P.2d at 1152-53. 



                  The supreme court rejected Saltz's Copelin claim on two bases.  First, the 



supreme court concluded that "[the trooper's] reluctance to help Saltz, while perhaps 



overly   cautious,   was   far   from   the   'flat   refusal   to   afford   access   to   counsel   after   it   is 



requested' that the exclusionary rule of  Copelin was designed to discourage."                            Id. at 



1154.    Second, the supreme court declared that the right to contact counsel announced 



in Copelin "did not require any delay other than the fifteen-minute observation period 



already required prior to administration of the test."  Id. at 1153. 



    5    Ibid. 



    6    Ibid. 



    7    Ibid . 



    8    Ibid. 



    9    Ibid. 



                                                      - 5 -                                                2370
 


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

               This second basis for the decision in Saltz causes us to reject Grossman's 



claim of Copelin error. Upon his arrival at the station, Grossman was offered a telephone 



and the opportunity to call whomever he wished.   Grossman made no attempt to contact 



anyone - and, in particular, Grossman never expressed a desire to contact an attorney 



- until (1) after the trooper had completed the mandatory 15-minute observation period 



and (2) the trooper was actively engaged in administering the breath test. 



               Because of the government's   substantial interest in obtaining a reliable 



reading of a DUI arrestee's blood alcohol level, and because the arrestee's blood alcohol 



level is normally falling with the passage of time, Copelin itself declares that an officer 



is not required to honor an arrestee's request to try to contact an attorney if the arrestee's 



request "interfere[s] with the prompt and purposeful investigation of the case".  Copelin, 



659 P.2d at 1212 n. 14.     And Saltz declares that  Copelin does not require "any delay 



other than the fifteen-minute observation period already required prior to administration 



of the test." Saltz, 942 P.2d at 1153. 



               Combining these two precepts, we conclude that, because Grossman was 



given the opportunity to contact an attorney throughout the 15-minute observation period 



that preceded the breath test, Copelin did not give Grossman the right to wait until the 



observation period was concluded and then interrupt the actual administration of the 



breath   test. Conceivably, if the trooper had not begun to administer the breath test 



immediately   upon   the expiration   of the observation   period, it might still have   been 



"reasonable" (under Copelin) for Grossman to request the opportunity to try to contact 



an attorney at that time.  We do not decide that issue.  But we hold that after the trooper 



began to actively administer the breath test to Grossman, Grossman had no right under 



Copelin to interrupt the testing procedure.  The trooper correctly told Grossman that he 



would have to wait until after the testing procedure was concluded before trying to 



contact an attorney. 



                                             - 6 -                                        2370
 


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

                It is true, as Grossman points out, that he had a difficult choice to make 



when,   in   the   middle   of   the   testing,   the   trooper   accused   him   of   purposely   failing   to 



provide an adequate breath sample, and when the trooper announced that he intended to 



charge Grossman with the additional crime of breath test refusal unless Grossman's next 



breath sample was adequate. But the fact that Grossman faced a difficult choice does not 



mean that he had the right to interrupt the testing procedure to try to contact an attorney. 



                As    the  supreme     court  noted    in Copelin,     "[if  an]  attorney   cannot    be 



contacted within a reasonable time[,] the [arrestee] must decide without the advice of 



counsel ... whether to take the [breath] test."          659 P.2d at 1212.       Grossman's case is 



different from the situation presented in  Copelin, in that Grossman was not trying to 



decide whether to take the breath test.  Grossman had already agreed to take the breath 



test (at least ostensibly).    Instead, the choice Grossman faced was whether to persist in 



attempting to circumvent the test by purposely providing an inadequate breath sample. 



(Grossman was ultimately found guilty of breath test refusal based on this conduct.) 



                But the principle is the same:        because Grossman did not ask to call an 



attorney until after a reasonable time for trying to contact an attorney had expired, he was 



obliged to make this decision without the advice of counsel. 



        Conclusion 



                The judgement of the district court is AFFIRMED. 



                                                 - 7 -                                             2370
 

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