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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ANTHONY F. ZEMLJICH, | ) |
| ) Court of Appeals No. A-9364 | |
| Appellant, | ) Trial Court No. 3AN-04-8546 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Appellee. | ) No. 2073 - November 24, 2006 |
| ) | |
Appeal from the District Court, Third Judi
cial District, Anchorage, Sigurd E. Murphy
and Brian K. Clark, Judges.
Appearances: Stephanie Patel, Law Office of
Dan Allan, Anchorage, for the Appellant.
Rachel Plumlee and Amy K. Doogan, Assistant
Municipal Prosecutors, and Frederick H.
Boness, Municipal Attorney, Anchorage, for
the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A police officer contacted Anthony F. Zemljich after he
observed Zemljich in his vehicle talking to a young girl who was
on the ground in a fetal position crying. As a result of this
contact, Zemljich was convicted of driving under the influence.
Zemljich argues that the trial court erred in finding that the
officer had reasonable suspicion to stop him. He also argues
that the trial court erred in ruling that he waived his right to
an independent chemical test. We affirm Zemljichs conviction.
Facts and proceedings
On August 29, 2004, at approximately 7:12 p.m.,
Anchorage Police Officer John Daily was driving south on
Fairbanks Street toward Northern Lights Boulevard. As he
approached the intersection, he saw Zemljich start to back out of
the Office Lounge Bar parking lot. Both cars stopped, but
eventually Officer Daily pulled past Zemljichs car and stopped at
Northern Lights Boulevard so he could turn right onto Northern
Lights Boulevard. As he was waiting for traffic to clear,
Officer Daily looked in his rearview mirror and saw Zemljich
drive north on Fairbanks Street and turn into the alley behind
the Office Lounge.
After a fair amount of time waiting for an opening in
traffic, Officer Daily turned right onto Northern Lights
Boulevard. As he passed the Office Lounge, he saw Zemljichs car
stopped in an alley on the west side of the building, next to a
young girl. The girl was on the ground in a fetal position and
appeared to be crying. Officer Daily thought Zemljich was trying
to pick up the girl or had done something to upset her.
Officer Daily turned into a parking lot and circled
back to Zemljich and the girl. When Officer Daily was within 75
to 100 feet of Zemljich, Zemljich pulled his car forward and
attempted to turn onto Northern Lights. However, the traffic was
too heavy for Zemljich to pull out. Officer Daily pulled up
behind Zemljich, turned on his overhead lights, and hit his siren
twice. He got out of his car and started walking toward
Zemljich. At that point, Zemljich began to pull into traffic.
Officer Daily yelled at him, and Zemljich stopped and backed up,
almost hitting Officer Dailys car.
Officer Daily made contact with Zemljich, obtained his
identification, and told him to stay where he was. During this
contact, he saw Zemljich put a breath mint in his mouth. He
observed that Zemljich had bloodshot eyes, droopy eyelids, and
smelled strongly of alcohol. And he noticed that Zemljich was
slurring his speech, fumbling, and moving in a slow,
uncoordinated manner.
Officer Daily then talked to the girl. The girl said
she was crying because she had just had a fight with her best
friend, not because of Zemljich. Officer Daily told her to go
home. He then arrested Zemljich for driving under the influence.
While he was processing Zemljich for driving under the
influence, Officer Daily read Zemljich a form about his right to
an independent chemical test. Zemljich and the officer discussed
Zemljichs right to an independent test both before and after the
officer administered a breath test, which showed Zemljich had a
blood alcohol level of .227 percent. Zemljich could not decide
what to do. Finally, he and the officer agreed that his decision
was indecision.
Before trial, Zemljich filed a motion to suppress all
the evidence obtained as a result of this stop, arguing that the
officer lacked reasonable suspicion for the stop. District Court
Judge Sigurd E. Murphy denied the motion after an evidentiary
hearing. Zemljich then filed a motion to suppress the
breath test result on the ground that he did not waive his right
to an independent test. District Court Judge Brian K. Clark
denied the motion, finding that Zemljich knowingly and
intelligently waived his right to a test because he simply could
not decide whether to exercise that right.
On July 19, 2005, after a bench trial based on
stipulated facts, Judge Clark found Zemljich guilty of driving
under the influence. Zemljich appeals.
Discussion
Did the officer have reasonable suspicion for the stop?
Whether an officer has reasonable suspicion to make an
investigative stop is a mixed question of fact and law.1 We view
the evidence in the light most favorable to the trial courts
ruling and overturn the trial courts factual findings only if
they are clearly erroneous.2 We independently review whether
those facts justify reasonable suspicion for the stop.3
Police are authorized to perform an investigative stop
when they have reasonable suspicion that imminent public danger
exists or that serious harm to persons or property has recently
occurred.4 A reasonable suspicion is one that has some factual
foundation in the totality of the circumstances observed by the
officer in light of the officers knowledge.5 Relevant factors
include the extent of danger threatened by a potential crime or
the seriousness of harm resulting from a crime that has already
been committed, the imminence of the threat or the recentness of
the crime, the strength of the officers reasonable suspicion, the
opportunity for additional investigation, the intrusiveness of
the stop, and deliberately furtive actions or flight at the
approach of strangers or law enforcement officers.6 The
fundamental question is whether a prompt investigation [was]
required ... as a matter of practical necessity.7
In this case, the court found that the officer had a
reasonable suspicion that Zemljich was committing what would be
the first act of enticing a child in for pedophil[ic] or other
criminal purposes or, in the alternative, that Zemljich had hit
the child with his car and was leaving the scene of the accident.
Both scenarios involve a serious harm, one that either was
occurring or had recently occurred.8 And both scenarios are
supported by the circumstances observed by the officer.9 In
addition, the court found that when Zemljich pulled his car
forward, the officer could reasonably suspect that he was trying
to leave the scene of a felony. Zemljichs imminent departure
added to the officers reasonable suspicion and limited the
officers opportunity for additional investigation. And the stop
was not excessively intrusive the officer only asked Zemljich
for his identification and told him to stay where he was until he
talked to the girl.
Under the totality of the circumstances, a prompt
investigation [was] required ... as a matter of practical
necessity.10 We conclude that Officer Daily had reasonable
suspicion to make the stop.
Did Zemljich waive his right to an independent test?
Zemljich next argues that he did not waive his right to
an independent test. A driver arrested for driving under the
influence has a due process right under the Alaska Constitution
to a reasonable opportunity to challenge the accuracy of a police-
administered breath test.11 One way for the police to satisfy due
process is to effectively comply with AS 28.35.033(e), the
statute establishing the right to an independent test of the
drivers alcohol level, by, in part, giving the defendant clear
and express notice of this statutory right.12
A driver may relinquish this right only by a knowing
and intelligent waiver of the right.13 This requires a basic
understanding of the right to an independent test,14 which is
satisfied if the driver is notified of the right to an
independent test, is aware that he or she was arrested for
driving under the influence, and generally understands that the
purpose of the independent test is to obtain evidence of his or
her blood alcohol level.15 However, it does not require that the
driver be able to assess[] the potential advantages and
disadvantages of availing himself of the right to an independent
test.16
Judge Clark found that Zemljich understood his right to
an independent test and simply could not decide whether to
exercise that right. We review this factual finding for clear
error.17
The officer began by reading Zemljich the notice of his
right to an independent breath test. Zemljich asked the officer
for advice on whether to get an independent test and whether it
would make a difference. He also expressed concern that the
independent test might be used against him. Among other things,
Zemljich said: It doesnt matter either way, does it?; Whats the
difference ... between you and I as human beings?; I dont know
what ... to do; Does it make a difference?; If I do this, it will
be against me, right?; I dont know; How do I know which one is
the right one?.
When Zemljich asked the officer what he should do,
Officer Daily told Zemljich that he could not give him legal
advice and could not make the decision for him. However, he
explained that basically, if you dont think that [the breath
test] is going to be correct, that the reading on this is going
to accurate, you can get your own test done to see what your test
shows. When Zemljich asked him if getting an independent test
would make a difference, Officer Daily stated, This is an
independent test if you want one if you dont think this [breath
test] machine is accurate, or if you just want an independent
test. When Zemljich asked if the independent test would be used
against him, the officer said the city could ask the court for a
search warrant to get a copy of the results, so, yes, in that way
it could be used against you. In the end, Zemljich could not
decide whether to exercise the right and agreed with the officer
that his decision was indecision.
Zemljich argues that he would have requested an
independent test if he knew the test could have been used for his
benefit. However, he was notified of the right to an
independent test, was aware that he had been arrested for driving
under the influence, and generally understood that the purpose of
the independent test was to obtain evidence of his blood alcohol
level.18 He was only undecided on whether or not it would be to
his advantage to exercise the right. As noted above, the driver
does not have to be able to assess[] the potential advantages and
disadvantages of availing himself of the right to an independent
test.19 We conclude that Judge Clark did not clearly err in
finding that Zemljich understood his right to an independent
test.20
Zemljich also argues that, because he could not decide
whether he wanted to seek an independent test, he never
affirmatively waived his right to the independent test.
Zemljich points out that, in prior decisions, we have
declared that the government cannot rely on an arrested drivers
breath test result unless (1) the government provides the driver
with an independent test or (2) the government shows that the
driver knowingly and intelligently waived the right to an
independent test. A driver may relinquish the right to challenge
the breath test [through the means of an independent test], but
only by a knowing and voluntary waiver of that right.21
Thus, in Ahtuangaruak v. State,22 we recognized that an
arrested drivers decision to decline an independent test could
not be considered a knowing and intelligent waiver of this due
process right if the driver, due to extreme intoxication or any
other reason, failed to acquire a basic understanding of the
right to an independent test.23
Zemljichs case, however, presents a different aspect of
the waiver problem. The trial court found that Zemljich did, in
fact, understand his right to an independent test, and that
Zemljich understood the potential consequences both favorable
and unfavorable of obtaining an independent test. Thus, if
Zemljich had expressly declined the independent test, his case
would look like the facts of Crim v. Anchorage24 a case in which
we held that the driver validly waived the right to an
independent test.25
The problem in the present case is that Zemljich could
not make up his mind whether to ask for an independent test. He
neither expressly requested an independent test nor expressly
declined one. Rather, he was unable to decide whether an
independent test would advance his interests, so he told the
officer that his decision was indecision.
In many instances, a defendants inability to decide
will not constitute a knowing and intelligent waiver of a
constitutional right. For example, if a defendant cannot decide
whether to waive the right to counsel, or the right to jury
trial, there will be no waiver.26
But as we explained in Knix v. State,27 the rule of no
waiver in these situations is simply a reflection of the fact
that, in such circumstances, the law provides a default answer to
the problem posed by the defendants indecision.28 If the
defendant will not waive the right to counsel, the defendant will
have counsel; similarly, if the defendant will not waive the
right to jury trial, the case will be tried to a jury. Knix, on
the other hand, involved a situation where the law provided no
default solution: the defendants in Knix could not decide
whether to testify at trial or to remain silent (i.e., refrain
from taking the stand).29
This was a problem because, in LaVigne v. State,30 the
Alaska Supreme Court declared that trial judges should not allow
the defense case in a criminal trial to end until the defendant
had either taken the stand or voluntarily waived the right to
testify.31 The defendants in Knix refused to choose whether to
testify, so the trial judge declared that the trial would
continue without the defendants testimony.32
On appeal, the defendants in Knix argued that the trial
court had not properly elicited from them an on-record waiver of
their right to testify.33 We held that, under such
circumstances, the law did not require an express waiver. As we
explained in Knix:
Most constitutionally guaranteed
procedural rights stand alone, without any
constitutionally guaranteed equal-but-
opposite corollary. For example, a criminal
defendant enjoys the right to be tried by a
jury but has no opposing constitutional right
to be tried before a judge alone ... . In
the absence of a clear waiver of the right to
a trial by jury, the right [will] be
preserved by ordering the defendant to stand
trial before a jury[.]
[Even with regard to] the
constitutionally protected right to counsel,
whose corollary is the constitutionally
protected right to self-representation[,] ...
the right to counsel is clearly dominant, and
[the] right to self-representation clearly
subordinate. A criminal defendant who does
not affirmatively and expressly waive the
right to counsel must proceed with legal
representation. ...
[But with regard to the] right to
testify and its corollary, the right to
silence ... [, b]oth are fundamental and
constitutionally enshrined. Neither has been
established as clearly dominant over the
other; they are equally vital. ...
[Moreover,] the two rights are mutually
exclusive. A defendant cannot simultaneously
exercise the right to testify and [the right]
to remain silent. The exercise of one right
necessarily entails a relinquishment of the
other.
Given the ... relationship of these
corollary rights, a rule actually requiring
an on-record, voluntary waiver of the right
to testify leads to a profound conundrum:
what is to be done in the case of a defendant
who is unwilling to knowingly and voluntarily
relinquish either the right to testify or the
right to remain silent? There is seemingly
no default option. If a defendant stands
mute in the face of a LaVigne inquiry or
expresses continuing confusion over the
courts explanation of procedural rights, a
finding of voluntary waiver of the right to
testify might strain law and logic. Yet the
trial court cannot direct the defendant to
testify; nor would it be a palatable
alternative to abort the trial a measure
that would put the power of mistrial in the
hands of virtually any enterprising
defendant.[34]
Accordingly, we upheld the trial judges
decision to order the trial to proceed
without the defendants testimony.35
Zemljichs case presents an
analogous problem. Zemljich had a due
process right to demand an independent test,
but he also had a right to refrain from
consenting to another seizure and analysis of
physical evidence from his body. Zemljich
understood his options, but he was unable to
decide what to do.
Because Zemljich was unable to
decide, the arresting officer was confronted
with the same type of conundrum that
confronted the trial judge in Knix: the
arrest process had to go forward, even though
Zemljich refused to commit himself to either
demanding or declining the independent test.
We hold that, in such situations,
the law does not require the government to
obtain the defendants express waiver of the
right to an independent test. It is
sufficient that a defendant be informed of
the right to an independent test, that the
defendant understand this right, and that the
defendant be provided a reasonable
opportunity to obtain an independent test.36
Here, Zemljich understood his right
to an independent test, and he was given a
reasonable opportunity to exercise that
right. He simply could not decide whether to
take advantage of it. Given these
circumstances, the government satisfied its
duty, and Zemljichs breath test result was
admissible.
Conclusion
The judgment of the district court
is AFFIRMED.
_______________________________
1 State v. Garcia, 752 P.2d 478, 480 (Alaska App. 1988).
2 Id.
3 Id.
4 Coleman v. State, 553 P.2d 40, 46 (Alaska 1976); Garcia,
752 P.2d at 480.
5 Ozhuwan v. State, 786 P.2d 918, 921 (Alaska App. 1990).
6 Dimascio v. Anchorage, 813 P.2d 696, 698-99 (Alaska App.
1991); State v. G.B., 769 P.2d 452, 455-56 (Alaska App. 1989).
7 G.B., 769 P.2d at 456 (quoting Coleman, 553 P.2d at 46).
8 See AS 11.31.110, AS 11.41.434, & AS 12.55.125(c)
(solicitation of first-degree sexual abuse of a minor is a class
A felony with a sentencing range of up to 20 years);
AS 28.35.060(a) & (c) (a driver who leaves the scene of an injury
accident without providing assistance to injured persons is
punishable by up to 10 years of imprisonment and a $10,000 fine).
See also Sullivan v. State, 766 P.2d 51, 56 n.5 (Alaska App.
1988) (asking a minor to engage in sexual contact may constitute
solicitation).
9 See Coleman, 553 P.2d at 46.
10 Id.
11 Gundersen v. Anchorage, 792 P.2d 673, 675-77 (Alaska
1990); Lau v. State, 896 P.2d 825, 828 (Alaska App. 1995).
12 Gundersen, 792 P.2d at 676-77.
13 Id. at 677.
14 Ahtuangaruak v. State, 820 P.2d 310, 311 (Alaska App.
1991).
15 Moses v. State, 32 P.3d 1079, 1084 (Alaska App. 2001);
Crim v. Anchorage, 903 P.2d 586, 588 (Alaska App. 1995).
16 Crim, 903 P.2d at 588. See also Moses, 32 P.3d at 1084.
17 Crim, 903 P.2d at 588.
18 See Moses, 32 P.3d at 1084 (citing Crim, 903 P.2d at 588).
19 Crim, 903 P.2d at 588. See also Moses, 32 P.3d at 1084.
20 See Crim, 903 P.2d at 588.
21 Crim, 903 P.2d at 588 (citing Gunderson v. Anchorage, 792
P.2d 673, 677 (Alaska 1990)).
22 820 P.2d 310 (Alaska App. 1991).
23 Id. at 311.
24 903 P.2d 586 (Alaska App. 1995).
25 Id. at 588-89.
26 See Gladden v. State, 110 P.3d 1006, 1007 (Alaska App.
2005) (defendant must unequivocally waive the right to counsel);
McGlauflin v. State, 857 P.2d 366, 369 (Alaska App. 1993)
(defendant must explicitly waive the right to a jury trial).
27 922 P.2d 913 (Alaska App. 1996).
28 Id. at 918 n.6.
29 Id. at 918-19 n.6.
30 812 P.2d 217 (Alaska 1991).
31 Id. at 222.
32 Knix, 922 P.2d at 919.
33 Id. at 917.
34 Knix, 922 P.2d at 918 n.6.
35 Id. at 919.
36 Gundersen, 792 P.2d at 676 n.6.
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