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Pletcher v. State (11/21/2014) ap-2435

Pletcher v. State (11/21/2014) ap-2435

                                                     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 @ akcourts.us
  



                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JOHN W. PLETCHER IV,  

                                                                    Court of Appeals No. A-11492  

                                    Appellant,                   Trial Court No. 3AN-09-14153 CR  



                           v.  

                                                                             O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                    Appellee.                      No. 2435 - November 21, 2014  



                  Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                  Anchorage, Michael L. Wolverton, Judge.  



                  Appearances:    Allen  F.  Clendaniel  and  Carolyn  Y.  Heyman- 

                  Layne, Sedor, Wendlandt, Evans & Filippi, Anchorage, for the  

                                                                            

                  Appellant.  Mary A. Gilson, Assistant Attorney General, Office  

                                                                    

                  of Special Prosecutions and Appeals, Anchorage, and Michael  

                                                                                    

                  C. Geraghty, Attorney General, Juneau, for the Appellee.  



                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                                     

                  District Court Judge. *  

                                                



                  Judge MANNHEIMER.  



                  The  defendant  in  this  case  was  a  former  patient  at  an  alcohol  abuse  



treatment center.  One morning he returned to the treatment center, and he was visibly  

                                                                                                       



     *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

intoxicated.  When staff members asked him if he had been drinking, the defendant drove  

                                                                         



off in his motor vehicle.   



                    The clinical director of the treatment center called the police to report that  

                                                       



an intoxicated driver had just left the premises.  The director gave the police a description  

                                                 



of  the  vehicle,  but  she  did  not  identify  the  driver,  nor  did  she  explain  the  driver's  

           



relationship to the treatment center.  



                    This phone call led to a traffic stop - and, ultimately, to the defendant's  



conviction for driving under the influence.  



                    In this appeal, the defendant argues that when the director made the phone  

                                                



call to the police, she violated federal law that protects the privacy of patients receiving  

                                                                                  



drug and alcohol treatment.  The defendant then argues that the remedy for this purported  

                                                                                                        



violation of federal law should be suppression of all the evidence against him.  



                    For the reasons explained in this opinion, we conclude that the director did  



not violate federal law when she called the police, and we further conclude that the  

                                                              



ensuing investigation and prosecution of the defendant for driving under the influence  

                                                                                                    



was consistent with federal law.  



          Underlying facts  



                    On the morning of December 10, 2009, John W. Pletcher IV drove to the  

                                                                                                                         



Clitheroe  Center  located  at  Point  Woronzof,  near  the  Anchorage  airport.    This  is  a  



residential substance abuse treatment facility run by the Salvation Army.   



                    Pletcher was known to the staff at Clitheroe because he had recently been  

                                                                        



a residential patient there.  However, at the time of this incident, Pletcher had transferred  

                                                       



to an outpatient program at a Salvation Army halfway house.  



                                                            - 2 -                                                        2435
  


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

                   Pletcher showed signs of being intoxicated. When the staff asked him if he    



had been drinking, Pletcher ran outside into the parking lot.  Two Clitheroe employees  



followed Pletcher outside, and they heard a car start up.  One of these employees, Robert  



Marx, took note of Pletcher's vehicle as it drove off  - a red and white Land Rover with  



Alaska license plate DNK 265.  Using a walkie-talkie, Marx relayed this information to  

                                                                                                



the clinical director of Clitheroe, Brie David.  



                   Ms.  David  then  called  the  Anchorage  airport  police  (the  closest  police  



agency)  to  report  a  suspected  drunk  driver.    David  identified  herself  as  a  Clitheroe  



employee, she explained that an intoxicated driver had just left the Clitheroe premises,  

                                                                              



and she gave the description of the vehicle.  But David did not identify Pletcher as the  

                                                              



driver, nor did she reveal that the driver had been a Clitheroe patient.  



                   Because the content of Ms. David's conversation with the police dispatcher  

                                                



plays such a prominent role in Pletcher's argument on appeal, we include a transcription  

                                                                                      

of that conversation in this footnote. 1  

                                                       



     1   Police Dispatcher :  Airport dispatch. 
 



         Ms. David :  Oh, hi.  This is Brie David with Clitheroe.
  

         Dispatcher :  Uh-huh. 
 

         David :  And we had a person come out here today that has been drinking.
  

         Dispatcher :  Uh-huh.
  

         David :  And he just left in his vehicle. 
 

         Dispatcher :  Uh-huh. 
 

         David :  He's in a red and white Land Rover.
  

         Dispatcher :  Hold on.  Can I put you on hold one second?
  

         David :  Yes.
  

         Dispatcher :  (background conversation)  Okay, go ahead.
  

         David :      He's  in  a  red  and  white  Land  Rover,  and  the  license  plate  number  is
  

     DNK 265.
  

         Dispatcher :  How long ago did he leave?
  

         David :  (to an unidentified person on her end)  How long ago did he leave? 
 

          Unidentified Speaker:  (indiscernible)
  

         David :  (to the dispatcher)  He's just going down the road.  
 

                                                                                                      (continued...)  



                                                         - 3 -                                                    2435
  


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

                     Airport police officers responded to this call.   They located a Land Rover  



coming from the direction of Point Woronzof, and they observed that this Land Rover       



had no front license plate, so they performed a traffic stop.  (State law requires that a     

car's license plates be displayed at both the front and the rear. 2 )  



                     When  the  police  asked  the  driver  for  his  operator's  license,  the  driver  



produced  a  license  that  identified  him  as  John  W.  Pletcher.    Pletcher  was  the  sole  



occupant of the Land Rover.  There was an empty bottle of vodka underneath a blanket  



on the passenger seat.  



                     Pletcher's eyes were bloodshot, and his speech was noticeably slurred.  He  

                                                                                   



performed poorly on the horizontal gaze nystagmus test and one other field sobriety test,  

                                  



and he stated that he "could not" perform a third field sobriety test.  The police then  



arrested Pletcher for driving under the influence.  A subsequent breath test showed that  

                                                                                                    



Pletcher's blood alcohol content was .180 percent (more than twice the legal limit).  



     1	   (...continued)
  



          Dispatcher :  And tell me your name really quickly. 
 

          David :  [gives and spells her name] 
 

          Dispatcher :  Call - call-back number?
  

          David :  [gives her number] 
 

          Dispatcher :  We'll get somebody on it. 
 

          David :  Thank you. 
 

          Dispatcher :  Okay.  Bye. 
 

          David :  Bye.  
 



     2    See AS 28.10.161(a) (the State of Alaska issues two license plates to all passenger  



cars), and AS 28.10.171(a) (when two license plates are issued to a vehicle, one must be   

attached in front and the other in the rear).  



                                                               - 4 -	                                                          2435
  


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

                   Because Pletcher had two prior convictions for driving under the influence  



within the preceding ten years, the State took Pletcher's case to the grand jury, seeking  

                                                                                         

an indictment for felony driving under the influence. 3  

                                                                                



                                                                    

                   Both Marx and David testified at the grand jury.  Neither of them identified  



Pletcher during their testimony, nor did they mention the fact that Pletcher had received  



treatment at Clitheroe.  Instead, they described their contact with "an individual" on the  



Clitheroe premises - an individual who was noticeably intoxicated, and who left the  

                                                                                    



premises in his motor vehicle.   



                   (During his testimony, Robert Marx mentioned the fact that the individual  

                                                                



in  question  "was  known  to  us",  and  Marx  implied  that  he  personally  had  had  prior  



contacts  with  this  individual.    But  Marx  never  identified  the  context  in  which  this  

                                                                        



"individual" was known to him or the other people at Clitheroe.)   



                   The  testimony  identifying  Pletcher  as  the  driver  of  the  vehicle  (and  



confirming his intoxication) was given by a police officer who participated in the traffic  

                                                              



stop.  



                   The grand jury indicted Pletcher for felony driving under the influence.  



Following a jury trial, Pletcher was convicted of this offense.  



         A description of Pletcher's claim on appeal  



                   Pletcher argues that his prosecution for driving under the influence was  



based on information that was divulged by Clitheroe in violation of federal law.  



                   Clitheroe  is  a  drug  and  alcohol  treatment  facility  that  receives  federal  

                                                  



funding; as a consequence, Clitheroe is governed by the confidentiality provisions of 42  

                                                          



     3    AS 28.35.030(n).  



                                                           - 5 -                                                      2435
  


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

U.S.C.   290dd-2(a) and the supporting regulations enacted pursuant to 42 U.S.C.                                              



290dd-2(g).  



                      This federal law protects the privacy of patient information - all records  

                                                                      

relating   to   the   patient's   "identity,   diagnosis,   prognosis,   or   treatment". 4  

                                                                                                                                      More  



specifically,  290dd-2(c) provides that, absent a court order, "no [treatment] record ...  



may  be  used  to  initiate  or  substantiate  any  criminal  charges  against  a  patient  or  to  



conduct any investigation of a patient."  See also 42 C.F.R.  2.12(a)(2) and 2.12(d).  



                      Pletcher  claims  that  the  telephone  call  from  Brie  David  to  the  police  

                                                                                          



dispatcher  violated  this  federal  law  because  it  amounted  to  a  disclosure  of  "patient  



identifying information" without Pletcher's consent.  



                      In   particular,   Pletcher   argues   that   Ms.   David   disclosed   protected  



information when (1) she identified herself as a Clitheroe employee; (2) she told the  

                      



dispatcher that an unnamed intoxicated person had come to Clitheroe; and (3) she gave  

                                                                                               



the dispatcher a description of this person's motor vehicle.  



                      Based  on  this  assertion  that  the  telephone  call  to  the  police  dispatcher  



violated federal law, Pletcher then argues that the traffic stop, and his ensuing arrest for  

                                                                                             



driving under the influence, violated federal law as well - because these investigative  

                                                                                                                 



actions were triggered by the phone call.  



                      And relying on this same argument, Pletcher claims that his indictment by  

                                                                                                                   



the grand jury, and his later trial in the superior court, violated federal law - both  



because the grand jury and the trial jury heard evidence that was generated by the initial  

                                                                                                          



telephone call, and because the two juries heard the testimony of Clitheroe employees  

                                               



Marx and David.  



      4    42 U.S.C.  290dd-2(a).  



                                                                   - 6 -                                                              2435
  


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

          Why we conclude that the telephone call to the police dispatcher did not  

         violate federal law  



                  As we have already explained, when Ms. David called the police dispatcher  



to report the intoxicated driver, she did not identify Pletcher by name, nor did she say  



that the intoxicated visitor to Clitheroe was a patient or former patient.  In fact, the record  



in this case contained no information identifying Pletcher as a Clitheroe patient until  

                                                                                                      



Pletcher's  attorney  offered  this  information  in  support  of  his  motion  to  dismiss  the  



indictment  (on  the  theory  that  federal  law  prohibited  the  State  from  prosecuting  



Pletcher).  



                  Nonetheless, Pletcher claims that the phone call to the police dispatcher  



violated  federal  law.    In  his  brief  to  this  Court,  Pletcher  repeatedly  characterizes  



Ms. David's conversation with the dispatcher as the disclosure of protected "patient  



identifying  information" - which he defines as "any and all information that could  

                 



reasonably be used to identify an individual ... as [a] substance abuse patient".  



                  But the federal regulations contain a substantially narrower definition of  



"patient identifying information".  As defined in 42 C.F.R.  2.11, this phrase means "the  



name, address, social security number, fingerprints, photograph, or similar information  

                                                                                             



by which the identity of a patient can be determined with reasonable accuracy and speed  



either directly or by reference to other publicly available information."  



                  Of the information that Ms. David gave to the police dispatcher, the only  

                                                                                   



portion that arguably falls within this definition is the license plate number of Pletcher's  

            



vehicle (under the theory that this plate number would lead to "other publicly available  

                                                                                      



information" - i.e., Pletcher's vehicle registration - that would reveal his identity).  



                  But even assuming that Pletcher's license plate number was the kind of  



information  covered  by  the  phrase  "patient  identifying  information",  this  does  not  



necessarily mean that Ms. David's disclosure of this information was prohibited.   



                                                        - 7 -                                                   2435
  


----------------------- Page 8-----------------------

                   Federal law forbids the disclosure of "patient identifying information" only  

                                                                    



if that information is derived from "[r]ecords [of a federally assisted agency] maintained  

                            



in connection with the performance of any program or activity relating to substance  



abuse ... treatment [or] rehabilitation".  42 U.S.C.  290dd-2(a).   



                   We  acknowledge  that  the  pertinent  federal  regulation  contains  a  broad  



definition  of  "records".    42  C.F.R.    2.11  declares  that  "records"  means  "any  

                                             



information, whether recorded or not, relating to a patient received or acquired by a  



federally assisted alcohol or drug [treatment] program."   



                   But  this  definition  must  be  understood  in  the  context  of  the  governing  



statute, 42 U.S.C.  290dd-2(a).  As we have explained, that statute declares that the  



guarantee of confidentiality applies to records that are related to the facility's treatment  

                                                        



or  rehabilitation  of  alcohol  abusers  -  records  "maintained  in  connection  with  the  



performance of any program or activity relating to substance abuse ... treatment [or]  



rehabilitation".   



                   According to the evidence in this case, the information about Pletcher's  



license  plate  number  did  not  come  from  Clitheroe's  treatment  records  pertaining  to  

                                                                               



Pletcher  -  i.e.,  it  did  not  come  from  records  maintained  in  connection  with  "the  



performance of any [treatment or rehabilitative] program or activity" involving Pletcher.  



Rather, this information came from Robert Marx's observation of Pletcher's vehicle as  

                                                                                                



Pletcher was preparing to drive away from the Clitheroe parking lot.  (Marx relayed this  



information  to  Brie  David  via  walkie-talkie,  and  Ms.  David  then  provided  this  



information to the police dispatcher.)  Seemingly, then, the information that Ms. David  

                                                       



provided to the police dispatcher was not protected.   



                   But Pletcher argues that the prohibition on disclosure is broader than this.  

                                                       



He relies specifically on 42 C.F.R.  2.12 and 2.13 for the proposition that federal law  

                                                                                                       



                                                           - 8 -                                                     2435
  


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

prohibits disclosure of "any and all information that could reasonably be used to identify  



an individual" as a drug or alcohol treatment patient.  



                    One of the regulations Pletcher cites, 42 C.F.R.  2.13, contains restrictions  



on  what  a  treatment  facility  can  and  can  not  say  when  responding  to  a  request  for  

                                                                                                        



verification that a particular identified person is (or has been) a patient at that facility.  



But that is not the issue here.  



                    The other regulation, 42 C.F.R.  2.12, is more pertinent, because 42 C.F.R.  

                                                                                                                   



 2.12(a)(1) contains a more general prohibition on disclosure of patient identifying  

                                             



information.  But this prohibition does not cover "any and all information that could  



reasonably be used to identify an individual", as Pletcher suggests.  Rather,  2.12(a)(1)  

                                                                                    



makes  it  illegal  to  disclose  information  only  if  that  information  meets  both  of  the  

                                                                          



following two criteria:   



                      

                             (i)  [the  information  would]  identify  a  patient  as  an  

                    alcohol or drug abuser either directly, [or] by reference to  

                    other publicly available information, or through verification  

                                                                           

                    of such an identification by another person; and  

                                                                                            



                             (ii)  [the  information  is]  drug  ...  or  ...  alcohol  abuse  

                    information obtained by a federally assisted ... program ... for  

                                                           

                    the  purpose  of  treating  alcohol  or  drug  abuse,  making  a  

                    diagnosis  for  that  treatment,  or  making  a  referral  for  that  

                    treatment.  



This regulation basically recapitulates the law we have already described.   



                    Subsection (i) of the regulation mirrors the definition of "patient identifying  



information" found in 42 C.F.R.  2.11.  It is limited to information that would identify  

                                                             



someone as an alcohol or substance abuse patient either "directly" or "by reference to  

                                                                                                        



other publicly available information", or through direct verification by someone other  



than the patient.   



                                                            - 9 -                                                       2435
  


----------------------- Page 10-----------------------

                    Subsection (ii) of the regulation mirrors the language of the governing  



statute, 42 U.S.C.  290dd-2(a).  It is limited to information obtained "for the purpose  

                               



of treating [or diagnosing] alcohol or drug abuse".   



                    And 42 C.F.R.  2.12(a)(1) declares that information about a patient is  



protected only if it meets both of these criteria.   



                    Returning  to  the  facts  of  Pletcher's  case,  Ms.  David  told  the  police  



dispatcher that an unidentified intoxicated person had come to visit Clitheroe, that this  

                                                                                              



person had then decided to leave, and that this person was driving a red and white Land  

                                                                                      



Rover with license plate DNK 265. This information did not fall within the first criterion  

                                                                                                              



codified in  2.12(a)(1); that is, it did not identify Pletcher as a drug or alcohol treatment  

                                                                                                       



patient either "directly", or "by reference to other publicly available information", or  

                                      



"through verification of [that] identification by another person".  



                    (Indeed, because the Clitheroe Center at Point Woronzof is a residential  



treatment  facility,  David's  report  suggested  that  this  unnamed  person  was  merely  a  



visitor  and  not  a  patient  in  residence  at  Clitheroe  -  because,  according  to  David's  

                                                              



report, the person had driven to Clitheroe that morning and then had left.)   



                    Moreover, the information that David conveyed to the police dispatcher did  

                                          



not fall within the second criterion of 42 C.F.R.  2.12(a)(1) either.   



                    Under  this  second  criterion,  the  ban  on  disclosure  of  information  that  



identifies  a  person  as  a  drug  or  alcohol  abuse  patient  applies  only  to  "information  



obtained by a federally assisted [drug or alcohol treatment] program ... for the purpose  

                                                



of treating alcohol or drug abuse, making a diagnosis for that treatment, or making a  

                                          



referral for that treatment."  The information that Ms. David conveyed to the police  

                                                                      



dispatcher - the fact that an unnamed person visited Clitheroe that morning, that this  

                                             



person was intoxicated, that he departed in a motor vehicle, and the description of that  



motor vehicle - was not obtained for any of these purposes.  



                                                           - 10 -                                                       2435
  


----------------------- Page 11-----------------------

                  In  sum,  Pletcher's  argument  in  this  appeal  hinges  on  his  assertion  that  



federal law prohibited the Clitheroe employees from disclosing any and all information  

                                                   



which, if investigated, might ultimately lead to Pletcher's identification as someone who  

                                                                               



had received alcohol abuse treatment.  But that is not what 42 U.S.C.  290dd-2(a) says,  

                              



and it is not what 42 C.F.R.  2.12(a)(1) says.   



                  When Ms. David called the police dispatcher, she reported a danger to the  

                                                                                        



public safety that was occurring as she spoke - an intoxicated person was driving a  



motor vehicle away from Clitheroe. But the information Ms. David imparted to the  

                                                     



dispatcher did not come from Clitheroe treatment records, and Ms. David did not identify  



Pletcher as a patient who had received (or was receiving) treatment for alcohol abuse.  



                  We  therefore  conclude  that  federal  law  permitted  the  disclosure  of  the  



information contained in Brie David's telephone call to the police dispatcher.  Thus,  



there was no legal impediment to the police officers' investigation of that information  



- an investigation which led to the traffic stop, the identification of Pletcher as the  

                                                                                                   



driver of the vehicle (when he produced his driver's license), the police observations of  



Pletcher's intoxication, and the ensuing breath test which showed that Pletcher's blood  

                                                                       



alcohol level was .180 percent, substantially over the limit.  



                  In  his  brief,  Pletcher  makes  a  cursory  argument  that  AS  47.37.210(a)  



(one provision of Alaska's codification of the Uniform Alcoholism and Intoxication  



Treatment Act) guarantees an even greater level of confidentiality than federal law -  



so that even if the phone call to the police dispatcher did not violate federal law, that  



phone call nevertheless violated AS 47.37.210(a).  



                  AS  47.37.210(a)  declares:    "Except  as  required  by  AS  28.35.030(d)  



[a provision relating to persons ordered into treatment as a result of a conviction for  



driving under the influence], the registration and other records of treatment facilities shall  



remain  confidential and are privileged to the patient."  We doubt that this statutory  



                                                        - 11 -                                                   2435
  


----------------------- Page 12-----------------------

protection for treatment records was intended to provide greater privacy protection than   



the federal law we have been discussing.   And to the extent that such an argument might  



                                                                                                                                                 5  

be made, we conclude that Pletcher's briefing is inadequate to preserve this claim.                                                                     



            Why we reject Pletcher's attack on his grand jury indictment  



                       Pletcher  makes  a  related  argument  that  his  grand  jury  indictment  was  



                                                                          

tainted because the grand jury heard the testimony of two Clitheroe employees, Brie  



David and Robert Marx.  



                       Pletcher contends that these two witnesses' testimony about "their specific  

                                                                         



interactions with Mr. Pletcher on Clitheroe's premises" was prohibited by the federal  

                                                                                                                                     



confidentiality  law.    Indeed,  Pletcher  argues  that  the  "mere  presence"  of  these  two  

                                                     



witnesses  violated  federal  law  -  because  the  fact  that  these  witnesses  worked  for  



Clitheroe might conceivably be used as a link to connect Pletcher to his alcohol abuse  



treatment.  For the reasons explained in the preceding section of this opinion, we reject  



these arguments.  



                       Pletcher also asserts that David's and Marx's testimony to the grand jury  

                                                                                                                           



"included direct statements about Mr. Pletcher's treatment", and that these statements  



were "used to obtain [the] indictment".  But Pletcher's brief contains no citations to the  

                                                                                                                          



record to support these assertions, and we are unable to find any portion of the grand jury  



record that supports Pletcher's assertions.   



                       We acknowledge (as we did earlier in this opinion) that even though Robert  



Marx  did  not  identify  Pletcher  as  the  person  he  was  describing  in  his  grand  jury  

                                          



      5     See  Katmailand, Inc. v. Lake and Peninsula Borough                                     , 904 P.2d 397, 402 n. 7 (Alaska     



1995); Petersen v. Mutual Life Ins. Co. of New York                                  , 803 P.2d 406, 410 (Alaska 1990); Wren  

v. State , 577 P.2d 235, 237 n. 2 (Alaska 1978).  



                                                                       - 12 -                                                                  2435
  


----------------------- Page 13-----------------------

testimony, Marx did mention the fact that the individual in question "was known to us",  

                                                       



and Marx implied that he personally had had prior contacts with this individual.  



                   Marx's testimony conceivably raised the inference that the unnamed person  



in question had previously received treatment at Clitheroe.  Later, the grand jury heard  



Officer Robert Bentler testify that, during the traffic stop, the driver of the vehicle was  

                                                              



identified as John Pletcher. The testimony of these two witnesses, in combination, might  

                                                                         



have allowed the grand jurors to infer that Pletcher was a former substance abuse patient  

                                                             



at Clitheroe.   



                   But even if the grand jurors might have inferred that Pletcher was a former  



Clitheroe patient, we conclude that this information had no appreciable effect on the  



grand jurors' decision to indict Pletcher.  



                   The question of whether an indictment should be invalidated because the  

                                                                             



grand jury heard improper evidence is governed by the test announced in Stern v. State,  



827 P.2d 442 (Alaska App. 1992).  Under that test, a court first asks whether, absent the  



challenged evidence, the other evidence presented to the grand jury was sufficient to  

                                               



justify the indictment. If the remaining evidence was sufficient to justify the indictment,  

                                                                             



then a court asks whether "the probative force of [the] admissible evidence was so weak  



and the unfair prejudice engendered by the improper evidence was so strong that it  



appears likely that the improper evidence was the decisive factor in the grand jury's  



decision to indict."  Id. at 445-46.  



                   Here, Officer Bentler's identification of Pletcher as the driver of the vehicle  



was  based  on  the  information  shown  on  Pletcher's  driver's  license,  not  on  any  

                       



information  contained  in  Clitheroe's  treatment  records.    And  contrary  to  Pletcher's  



argument on appeal, the testimony of Marx and Bentler, even viewed in combination,  

                                                                                           



contained no "direct statements about Mr. Pletcher's treatment".  



                                                          - 13 -                                                     2435
  


----------------------- Page 14-----------------------

                    Nor was any information about Pletcher's alcohol abuse treatment "used  



to obtain [the] indictment".  Pletcher was indicted because the State presented evidence  

                                                                 



that he was visibly impaired when the police stopped his motor vehicle, that a breath test  

                                                                                  



administered within four hours of this traffic stop showed that his blood alcohol content  

                                                           



was .180 percent, and that Pletcher had two prior convictions  for driving under the  



influence within the preceding ten years.   



                     We therefore conclude that, even if the grand jurors might have inferred  



that Pletcher was a former Clitheroe patient, this information had no appreciable effect  

        



on the grand jurors' decision to indict Pletcher, and thus the indictment remains valid.  

                                                                                  



           Why we conclude that the testimony given at Pletcher's trial did not violate  

                                                                  

          federal law  



                     In advance of his trial, Pletcher filed motions asking the superior court to  

                                                 



prohibit the State from introducing any testimony from Clitheroe employees or from any  

                            



of the police officers who responded to Ms. David's phone call to the police dispatcher  

                                                                                                   



- in essence, a preclusion of the State's entire case.   Pletcher argued that all of this  

                                                                                                                            



testimony would, either directly or indirectly, rest on information that was protected by  

                                                                              



42 U.S.C.  290dd-2.  



                     The  superior  court  denied  Pletcher's  motions,  but  the  court  ruled  that,  

                                                                                                            



unless Pletcher opened up these areas of inquiry through his cross-examination of these  



witnesses, no witness would be permitted to testify (1) that Pletcher had been a patient  

                                                                                             



at Clitheroe, or (2) that his demeanor on the day in question deviated from the "normal"  

                         



demeanor that he displayed during his treatment at Clitheroe.  In addition, the superior  

                                                                                                



court expressly limited the police officers' testimony to "recounting the [phone] call they  

                                                                                                        



received  from  ...  Brie  David  describing  the  vehicle,  their  stop  of  [the]  Defendant,  

                                                



                                                              - 14 -                                                          2435
  


----------------------- Page 15-----------------------

administering the field sobriety tests and the results, and administering the breath ... test  



and its result."  



                    On appeal, Pletcher concedes that all of the trial witnesses abided by the  



limitations laid down by the superior court.  Pletcher argues, however, that even this  

                                                            



limited  testimony  was  unlawful.    We  are  about  to  address  Pletcher's  arguments  

                                                                                                   



individually, but they all rest on the same premise:  the erroneous assertion that federal  

                                                                                



law prohibits the disclosure of any and all information that might conceivably be used  

                                                              



as a link to connect Pletcher to his alcohol abuse treatment.   



                    Pletcher argues that when David and Marx identified him as the man who  

                                                                                                                  



visited Clitheroe on the morning in question, this testimony violated federal law because  

                                                                     



it revealed that Pletcher had visited a substance abuse treatment center on at least this one  

                                     



occasion.  For the reasons we have already explained, we reject Pletcher's argument.  



                    Pletcher also contends that, regardless of the content of their testimony, the  

                                                                               



"mere presence" of the Clitheroe employees as trial witnesses constituted an independent  

                                                                                             



violation of federal law - because the jury might infer, simply from the fact that David  

                                                                                                 



and Marx were Clitheroe employees, that Pletcher had some kind of relationship with the  

                                                               



substance abuse treatment facility.  We reject this contention as well.  



                    Pletcher also asserts that the testimony of Officer Chris Hovila violated  

                                                                                                             



federal law because the officer testified that the call to the police dispatcher came from  

                                                 



someone at Clitheroe.  Pletcher argues that it was unlawful for the officer to reveal this  

                                                            



information because it "linked Mr. Pletcher with a substance abuse treatment facility".  



We reject this argument.    



                    Finally, Pletcher renews his argument that none of these witnesses should  



have been allowed to testify at his trial in  any  fashion, because the entirety of their  

                                                                           



testimony "constituted the illegal use of protected information".  According to Pletcher,  

                                                              



the testimony of  these witnesses was simply the fruit of prior violations of federal law  

                                                                                                                    



                                                             - 15 -                                                          2435
  


----------------------- Page 16-----------------------

-  "the  culmination  of  a  series  of  illegal  disclosures  and  illegal  uses  of  protected  



information".   



                     For the reasons we have already explained, we find no "illegal disclosures"  

                                                                         



and no "illegal uses of protected information" in Pletcher's case.  



           The  State's  argument  that  even  if  42  U.S.C.    290dd-2  was  violated,  

                                                                 

           suppression of evidence is not the remedy  



                     In its brief to this Court, the State argues that even if information used in  



the  investigation  and  prosecution  of  Pletcher's  case  was  disclosed  in  violation  of  



42  U.S.C.    290dd-2  and  its  related  regulations,  Pletcher  would  not  be  entitled  to  



suppression of the resulting evidence.   



                     This  Court  recognized  in  Harker  v.  State ,  637  P.2d  716  (Alaska  App.  



1981), that it is sometimes appropriate to apply the exclusionary rule to violations of a  



statute (as opposed to violations of the constitution), and Harker  sets forth the factors  



that a court should consider when making this assessment.  Under Harker , a court must  

                                                                                                                       



consider (1) whether the statutory requirement or restriction is clear and widely known;  

                                                                           



(2) whether the statute is primarily designed to protect individual rights, as opposed to  



being intended more "for the benefit of the people as a whole";  (3) whether admission  

                                                                      



of evidence obtained in contravention of the statute would require the court to condone  

                    



"dirty  business"; and  (4)  whether  there  is  evidence  that the  police  have  engaged  in  

                                                                                             

widespread or repeated violations of the statute.  Id. at 719. 6  

                                                                                                  



     6     Compare our decision in Berumen v. State                      , 182 P.3d 635, 641-42 (Alaska App. 2008)   



(holding that suppression of evidence was a proper remedy for violations of the "knock and                     

announce" statute that are "neither justified by exigent circumstances nor excused under the                   

'substantial compliance' doctrine") with Nathan v. Anchorage , 955 P.2d 528, 532-33 (Alaska  

App. 1998) (discussing whether suppression of evidence should be the remedy for a violation     

                                                                                                                     (continued...)  



                                                                - 16 -                                                            2435
  


----------------------- Page 17-----------------------

                            But because we conclude that federal law was not violated in Pletcher's   



case, we need not resolve this issue.  



              Conclusion  



                            We conclude that the case against Pletcher was investigated and prosecuted       



in conformity with federal law protecting the confidentiality of alcohol and drug abuse                                                              



treatment records.  Accordingly, the judgement of the superior court is AFFIRMED.  



       6      (...continued)  



                                                                                                     

of the Americans with Disabilities Act).  See also Bell v. State , 668 P.2d 829, 837 (Alaska  

                                                   

App. 1983) (holding that untimely notice of a search warrant's execution did not justify the  

suppression of evidence in the absence of prejudice or bad faith).  



                                                                                    - 17 -                                                                                      2435  

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