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Velarde v. State (7/2/2015) ap-2461

Velarde v. State (7/2/2015) ap-2461

                                                       NOTICE
  

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                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



TERRY VELARDE,  

                                                                       Court of Appeals No. A-11356  

                                      Appellant,                      Trial Court No. 3PA-11-435 CR  



                            v.  

                                                                                   O P I N I O N  

STATE OF ALASKA,  



                                      Appellee.                            No. 2461 - July 2, 2015  



                   Appeal from the Superior Court, Third Judicial District, Palmer,   

                   Vanessa White, Judge.  



                   Appearances:    Margi  Mock,  under  contract  with  the  Public  

                   Defender   Agency,   and   Quinlan   Steiner,   Public   Defender,  

                   Anchorage, for the Appellant.  Donald Soderstrom, Assistant  

                   Attorney General, Office of Criminal Appeals, Anchorage, and  

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

                                

                   Appellee.  



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

                   Judges.  



                   Judge KOSSLER, writing for the Court.
  

                   Chief Judge MANNHEIMER, concurring.
  



                   Terry Velarde was convicted of felony driving under the influence, driving  



with a suspended license, failure to stop at the direction of a peace officer, and resisting  

                                                                                      



arrest.  On appeal, Velarde raises two claims.  


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

                    First, Velarde argues that the superior court should have suppressed his  



breath test result based on trooper interference with his right to an independent chemical  

                                                                       



test.  Specifically, he claims that the trooper interfered with his right to an independent  



test when the trooper only told him he could have a blood test, not that he could obtain  

                                          



a chemical test other than a blood test.  Because we conclude that the trooper did not  

                                                                                                       



interfere with Velarde's right to an independent chemical test when he offered Velarde  

                                                                                         



a blood test, we affirm the superior court's denial of his motion to suppress.  



                    Second, Velarde argues that there was insufficient evidence for the jury to  

                                                                                                                     



find that he used  force  to resist arrest.  Because we conclude that the evidence was  

                            



sufficient for a jury to find that Velarde actively fought the troopers' effort to arrest him,  

                                                                                    



we affirm his conviction for resisting arrest.  



          Facts  



                    According  to  the  trial  testimony,  while  responding  to  a  report  of  an  



underage drinking party at a home in the Mat-Su area in February 2011, Alaska State  

                                                                 



Troopers contacted Terry Velarde, who had arrived to pick up his son from the party.  

                                                               



As  Velarde  arrived  at  the  home,  his  vehicle  was  moving  too  fast  for  the  slippery  



conditions and slid in the driveway.  Alaska State Trooper Anthony Stariha contacted  

                                   



Velarde and noticed that he had an odor of alcohol, slurred speech, and bloodshot eyes.  

                                                                               



He also noticed that Velarde had trouble standing.  Stariha told Velarde to remain at the  

                                             



scene while he helped break up the party; instead, Velarde drove away.  Alaska State  



Trooper  Sergeant  Jacob  Covey  tried  to  stop  Velarde  after  observing  him  drive  

                              



approximately ten miles per hour over the speed  limit.  Despite places to pull over,  

                                                                              



Velarde continued to drive until he pulled into a gas station off the Parks Highway.  



                    Velarde got out of his vehicle and went into the bathroom at the gas station,  

                                                                  



locking himself inside.  The station clerk provided a key, and the troopers unlocked the  

                                      



                                                              - 2 -                                                          2461
  


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

bathroom door and tried to handcuff Velarde, but he struggled with them.  It took several  

                                                                           



troopers to get Velarde handcuffed and under control.  



                    The troopers transported Velarde to a station for DUI processing.  Velarde's  



breath test result showed a blood-alcohol level of .173 percent.  Trooper Stariha read  



Velarde  a  notice  of  his  right  to  an  independent  chemical  test.    Velarde  at  first  was  

                                                        



interested in an independent test, but after asking several questions about it, he decided  

                                                                                        



not to get one.  



                    The  State  charged  Velarde  with  felony  DUI,  driving  with  a  suspended  



license  (DWLS),  failure  to  stop  at  the  direction  of  an  officer,  and  resisting  arrest.  

                                                                                                            



Velarde  moved  to  suppress  his  breath  test  result,  in  part  arguing  that  the  trooper  

                                                                                      



interfered with his right to an independent chemical test.  After an evidentiary hearing,  

                                                                                                 



Superior Court Judge Vanessa White denied his motion, finding that the trooper offered  

                                                                                                  



to  help  Velarde  obtain  a  blood  test  but  that  Velarde  had  waived  his  right  to  an  

                                                                          



independent test.  



                    On the morning of trial, Velarde pleaded guilty to DWLS, and the jury  



subsequently convicted him of the other charges.  Velarde appeals his felony DUI and  

                                                                              



his resisting arrest convictions.  



          The  trooper  did  not  interfere  with  Velarde's  right  to  an  independent  

                                                                                             

          chemical test  



                    During Velarde's DUI processing, Trooper Stariha read Velarde a form  



giving him notice of his right to an independent chemical test.  During this reading, they  

                                             



had the following exchange:  



                              Stariha:  You have four choices here:  "[I] do not wish  

                                              

                    an  independent  chemical  test;"  second  choice,  "I  want  a  

                    blood draw - a blood sample drawn at the government's  

                                                                                     

                    expense;" third choice is, "I want a chemical test at my own  

                                                             

                    expense  to  be  administered  at  the  location;"  third  [sic]  is,  

                                                                     



                                                              - 3 -                                                          2461
  


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

                   "refuse to decide or sign."  Which one of those would you  

                   like?  



                             Velarde:    (indiscernible)  get  bailed  out  right  now,  

                                                                        

                   that's all.  



                            Stariha:  Well, I'm asking you, do you want a blood  

                                                                    

                   test?  "I do not wish an independent test," that's one; "I want  

                                                                       

                   a blood sample drawn at the government's expense," that's  

                   two;  "I  want  a  chemical  test  at  my  own  expense  to  be  

                                                                           

                   administered," that's three; or, "[I] refuse to decide or sign."  



                             Velarde:  Oh, so how long does it take to get one [for]  

                                                                             

                   myself?  



                            Stariha:  I don't know.  Do you want - that's what  

                   this is asking.  Do you want a bl - independent test?  



                             Velarde:  I - I can possibly get one, yeah.  



                            Stariha:  Do you want one?  



                             Velarde:  Yes.  



                            Stariha:  You want an independent test?  



                             Velarde:   Yeah,  so  -  so  how's  that  -  how's  that  

                                           

                   work, though?  



                            Stariha:  Well, if you want an independent test, we'll  

                                                                        

                   transport you to Mat-Su Regional Medical Center and we'll  

                                           

                   get a blood draw.  



                             Velarde:  Oh.  No, I'm not going to get stabbed.  



                            Stariha:  You - so you don't want a blood test?  



                             Velarde:  No, I don't want to get stabbed by nobody.  

                                                  

                   No.
  



                            Stariha:  All right.
  



                   After the State charged him, Velarde filed a suppression motion, claiming  

                                                                                  



that the trooper interfered with his right to an independent chemical test by not clarifying  

                                                                                                     



whether Velarde wanted an independent test other than a blood test.  



                                                          - 4 -                                                     2461
  


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

                     Relying on AS 28.35.033(e), Judge White ruled that the two options for an            



independent chemical test were a breath test or a blood test.  Because the trooper had  



offered to transport Velarde to the hospital for a blood test, Judge White found that the  

                                                                               



government had complied with its duty to offer an independent chemical test and that  



Velarde had voluntarily waived his right to the test.  



                      On appeal, Velarde argues that Judge White erred in refusing to suppress  

                                                                                                            



his breath test result.  Velarde contends the trooper violated Velarde's constitutional and  



statutory rights to an independent chemical test when, in response to Velarde's question  



about what a chemical test entailed, the trooper only explained the process for obtaining  

                                     



a blood test.  Velarde argues that the trooper's response to his questions was incomplete  

                                                                                          



because the trooper did not explain that Velarde could obtain any chemical test of his  



choosing, not just a blood test.  Velarde asserts that he would have obtained a chemical  

                                                                                    



test that did not involve needles had the trooper explained all of his options.  In support  



of his argument, Velarde relies on the language of AS 28.35.033(e) and other related  



            1 

statutes                                                                            

              and an Alaska Supreme Court case giving a broad interpretation to the phrase  

"a chemical test" in one of the implied consent statutes.2  



                                                                                                           

                     Velarde's argument is premised on the assertion that he had the right to an  



independent chemical test other than a blood test.  



                      The right of an individual arrested for driving under the influence to have  

                                                                                                                 



an independent chemical test arises from two different sources.  The Alaska Constitution  

                          

provides  for  the  constitutional  right  to  an  independent  test,3  

                                                                                                        and  AS  28.35.033(e)  



provides for the statutory right to an independent test.  We first will address Velarde's  



      1    See AS 28.33.031(a)(2); AS 28.35.031(g).  



     2     See Anchorage v. Geber, 592 P.2d 1187, 1191 (Alaska 1979).  



     3     See Snyder v. State, 930  P.2d 1274, 1278-79 (Alaska 1996); Anchorage v. Serrano ,  



649 P.2d 256, 259 (Alaska 1982).  



                                                                  - 5 -                                                             2461
  


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

claim that the trooper violated his constitutional right to an independent test, and then   



address Velarde's argument as it relates to the statutory right to an independent test.  



                   The Alaska Supreme Court has held that the government's offer of a blood  



test - without the option of another type of chemical test - satisfies the constitutional  

                                                                                        



                                                     4  

right to an independent chemical test.  

                                                                                               

                                                        Thus, Velarde's claim that the trooper interfered  



                                   

with his constitutional right to an independent chemical test by giving him solely the  



option of a blood test has been squarely rejected by the Alaska Supreme Court.  



                   Velarde's claim that the trooper interfered with his statutory right to an  



independent chemical test under AS 28.35.033(e) likewise fails.  



                   Prior to 2002, AS 28.35.033(e) stated, in relevant part:  



                             The person tested may have a physician, or a qualified  

                                               

                   technician,  chemist,  registered  nurse,  or  other  qualified  

                   person of the person's own choosing administer a chemical  

                   test in addition to the test administered at the direction of a  

                                                                                                    

                   law enforcement officer.  



But in 2002, the legislature amended this statute to include the following language at the  

                                                                                                                      



end of the subsection:  



                   The person who administers the chemical test shall clearly  

                   and expressly inform the person tested of that person's right  

                                                         

                   to an independent test described under this subsection, and,  

                   if the person being tested requests an independent test, the  

                   department shall make reasonable and good-faith efforts to  

                   assist the person being tested in contacting a person qualified  

                                                     

                   to  perform  an  independent  chemical  test  of  the  person's  

                   breath or blood.  



                   The legislature added the above language in response to the supreme court's  



decision in Gundersen v. Anchorage, 792 P.2d 673 (Alaska 1990).  As discussed above,  

                                                                    



Gundersen held that the constitutional right to an independent chemical test is satisfied  

                                                                



     4    See Gundersen v. Anchorage, 792 P.2d 673, 677-78 (Alaska 1990).  



                                                           - 6 -                                                      2461
  


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

by the offer of a blood test at government expense.                                  The Gundersen court also held that  



compliance  with  the  statutory  right  to  an  independent  chemical  test  will  fulfill  the  



constitutional right if the government clearly informs the defendant of his statutory right  

                                                                                              



to an independent test and makes reasonable efforts to help the defendant obtain access  

                                                                                                  



to a person  qualified to perform an independent test, provided such a test is in fact  

                     

available.5  



                                                                                                                                      6  

                                                                                                           

                      In response to Gundersen, the legislature modified AS 28.35.033(e).                                                 As  



explained above, the statute now provides that the government must advise a person  



arrested for DUI or refusal of his right to obtain an independent chemical test of his  

                                                          



breath or blood and must assist the defendant in obtaining such a test.  The legislative  



history of this amendment shows that the legislature intended to codify the supreme  

court's holding in  Gundersen.7  

                                                     As mentioned above, the supreme court held that the  



offer  of  a  blood  test  without  other  options  fulfills  the  constitutional  right  to  an  



independent  test.    When  the  legislature  amended  AS  28.35.033(e),  the  legislature  

                                                                                                                      



permitted the government to offer either an independent breath test or an independent  

                                                 



blood test.  



                      Here, the trooper explained that Velarde had the right to obtain a blood test  

                                                                           



and that the trooper was willing to transport Velarde to the local hospital to obtain that  

                                                                          



test.    By  offering  Velarde  an  independent  blood  test,  the  trooper  complied  with  

                                                                                        



      5    Id.  at 676-77.  



      6    See House Judiciary Committee Files, Final Report of the DUI Prevention Task Force,  



Municipality of Anchorage, at 7 (2000).  



      7    Id. ; Minutes of House Transportation Committee, H.B. 4, testimony of Rep. Norman   



Rokeberg,  after  log  no.  2170  (Feb.  22,  2001);  Finance  Committee   Files,  Rep.  Norman  

Rokeberg, Work Draft Q Sectional Analysis, at 5 (2002).  



                                                                   - 7 -                                                               2461
  


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

AS 28.35.033(e) and did not interfere with Velarde's exercise of his statutory right to an  



independent test.  



                     We affirm Judge White's denial of Velarde's motion to suppress his breath  

                                                               



test result.  



           Sufficient evidence supports Velarde's conviction for resisting arrest  



                     A person commits the crime of resisting arrest under AS 11.56.700(a)(1)  



if the person uses force to resist an arrest by a police officer, with the intent of preventing  

                                                                                                



                8  

the arrest.                                                                                                           

                   For the purposes of Velarde's case, "force" is defined as "any bodily impact  

... or the threat of imminent bodily impact."9  

                                                                          Velarde contends that the evidence was  



insufficient to support the conclusion that he used force to resist his arrest and that the  

                                                                     



superior court should have granted his motion for a judgment of acquittal on the charge.  

                                                                                                       



                     In interpreting the resisting arrest statute, we have required proof of more  

                                                                             

than "passive resistance" or "mere non-submission  to  an  arrest."10  

                                                                                                               We have upheld  



                                         

convictions for resisting arrest where the defendant has directed force at an officer with  



                                                                                                              

the intent of preventing the arrest or actively struggled against the officer's efforts to  

arrest him.11  



     8     AS 11.56.700(a)(1) ("A person commits the crime of resisting or interfering with   



arrest if, knowing that a peace officer is making an arrest, with the intent of preventing the         

officer from making the arrest, the person resists personal arrest ... by ... force[.]").  



     9     AS 11.81.900(b)(27) ("'[F]orce' means any bodily impact, restraint, or confinement   



or the threat of imminent bodily impact, restraint, or confinement, 'force' includes deadly and  

nondeadly force[.]").  



      10   See Fallon v. State, 221 P.3d 1016, 1021 (Alaska App. 2010); Eide v. State                                       , 168 P.3d  



499, 503 (Alaska App. 2007) (Mannheimer, J., concurring).  



      11   Id. ;  Alexie  v.  State ,  2013  WL  1315034,  at  *2  (Alaska  App.  Apr.  3,   2013)  

                                                                                                                             

(unpublished).  



                                                                  - 8 -                                                             2461
  


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

                     In Fallon v. State , this Court upheld a resisting arrest conviction based on           



evidence that  



                               Fallon ... struggled against [Trooper] Carson's efforts  

                                                               

                     to arrest him[.]  When Carson took Fallon to the back of the  

                                                                                                   

                     patrol car, Fallon pushed himself away from the car, so that  

                     Carson had to take him to the ground.  With Fallon in that  

                     position, Carson still could not handcuff him, because Fallon  

                                                                                     

                     tried to get up and continued to tense his arms against his  

                     back.  Ultimately, it took the help of a passing motorist to get  

                                

                     Fallon handcuffed and in the patrol car.12  



We concluded that Fallon's conduct "went beyond 'mere non-submission,'" and we  

upheld Fallon's conviction for resisting arrest by force.13  



                     In reviewing a sufficiency of the evidence claim, we view the evidence in  

                                                                                                                  



                                                                      14  

the light most favorable to the jury's verdict.    We therefore recite the evidence in that  



light.  The evidence in Velarde's case is similar to that of Fallon .  



                     At trial, Sergeant Covey testified that after Velarde finally stopped his truck  

                                                 



at the gas station on the Parks Highway, he followed Velarde into the station, telling him  

                                                                                                       



to stop.  Velarde said he was busy and locked himself in the bathroom.  When other  



troopers arrived, they were able to open the bathroom door, but only with the assistance  



of the store clerk.  When the troopers pulled Velarde away from the bathroom sink and  

     



tried to put his hands behind his back, Velarde moved his shoulders to keep the troopers  

                                                            



from handcuffing him.  Two troopers had to force Velarde's hands around to his back  

                                                                                                                        



to handcuff him. Sergeant Covey then escorted Velarde out of the bathroom and into the  

                                           



hallway.  Because Velarde continued to struggle with him, Sergeant Covey put Velarde  

                                                                             



     12   Fallon , 221 P.3d at 1021.  



     13   Id.  



     14   See Collins v. State, 977 P.2d 741, 747 (Alaska App. 1999).  



                                                                 - 9 -                                                           2461
  


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

against the hallway wall, facing it.  Velarde braced his knees against the wall to push his   



body back against Sergeant Covey.  Sergeant Covey told Velarde to stop, and he put   



Velarde on the floor with a leg sweep to control him.  Velarde kept trying to get up from       



the floor.  



                       Trooper Stariha testified that when he arrived, he saw that Sergeant Covey  

                                                                                                        



had Velarde down on the floor and was kneeling on Velarde's back.  He testified Velarde  

                                                                                                          



"was kicking and trying to get back up," so Trooper Stariha used a leg lock to help get  

                                                       



Velarde under control.  Together, the troopers were able to subdue Velarde.  



                       As  mentioned,  we  must  view  the  foregoing  evidence  in  the  light  most  

favorable to the verdict.15                                   

                                             Viewing the evidence in this manner, we conclude that a fair- 



                                                                                                                                

minded juror could reasonably find that Velarde used force directed at the troopers with  



                                                                                           

the intention of preventing his arrest.  Accordingly, we affirm Velarde's conviction for  



this offense.  



            Conclusion  



                       We AFFIRM the judgment of the superior court.  



      15   Id.  



                                                                      - 10 -                                                                  2461
  


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

Judge MANNHEIMER, concurring.  



                     I write separately to emphasize the question of statutory interpretation that  



we are deciding here.   



                     The  statute  that  governs  a  DUI  arrestee's  right  to  an  independent  test,  

                                                                                                            



AS 28.35.033(e), declares that if the arrestee requests an independent test, the police are  

                                                    



required to make reasonable, good-faith efforts "to assist the [arrestee] in contacting a  

                                                                                  



person qualified to perform an independent chemical test of the [arrestee's] breath or  

                                                                                                                         



blood."  The question is whether the statute contemplates that the police  can choose  

                                                                                                                     



between offering the arrestee a breath test or a blood test - or whether, instead, the  

                                                                                                  



statute endows the arrestee with the right to choose between these two tests.   

                                             



                     As  the  lead  opinion  explains,  the  supreme  court  held  in  Gunderson  v.  

                                                                      



Anchorage that the police may validly offer the arrestee only one form of independent  

                                          



test, and the arrestee has no right to demand another form of test.  792 P.2d 673, 677-78  

                                                                                                      



(Alaska 1990).  And as the lead opinion further explains, the legislative history of AS  

              



28.35.033(e) shows that this statute was intended to codify the decision in Gunderson.  

                                                                



                     We therefore conclude that, when the statute speaks of an independent test  

                                                                           



of "breath or blood", the type of independent test is at the option of the police, not the  

                                                    



arrestee.  



                                                               - 11 -                                                          2461
  

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