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Selig v. State (9/14/2012) ap-2374

Selig v. State (9/14/2012) ap-2374


        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: 

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                                                            Court of Appeals No. A-10777 

                                Appellant,                  Trial Court No. 4FA-09-578 Cr 


                                                                    O    P  I  N  I  O  N 


                                Appellee.                 No. 2374     -   September 14, 2012 

                Appeal     from   the   District  Court,   Fourth    Judicial   District, 

                Fairbanks, Jane F. Kauvar, Judge. 

                Appearances:       Jason   A.   Gazewood,     Gazewood      &   Weiner, 

                Fairbanks,   for   the  Appellant.   William     A.  Spiers,  Assistant 

                District   Attorney,    Fairbanks,   and   John   J.  Burns,   Attorney 

                General, Juneau, for the Appellee. 

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


                MANNHEIMER, Judge. 

                Leigh F. Selig was arrested for driving under the influence, after he caused 

a four-vehicle collision.     Selig was taken to the trooper station, where he was asked to 

submit to a breath test.     The breath test showed that Selig had a blood alcohol level of 

.181 percent, over twice the legal limit.  Selig then exercised his right to an independent 

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blood test.   This second test yielded essentially the same result:   according to the blood 

test, Selig's blood alcohol level was .182 percent. 

                 After Selig was formally charged with driving under the influence, he asked 

the district court to suppress the results of both the breath test and the blood test, as well 

as all other evidence gathered during his DUI processing, on the basis that the troopers 

did not make an audio recording of the DUI processing. 

                 Selig noted that in Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985), 

the Alaska Supreme Court held that the police are required to record every custodial 

interrogation that occurs at a police station (or any other place of detention) if recording 

is feasible.   Selig argued that the Stephan rule should be expanded to cover any DUI 

processing at a police station, even if the police do not interrogate the arrestee during the 

processing.     He contended that, without a recording of the DUI processing, "it [was] 

impossible   for   Mr.   Selig   or   his   counsel   to   determine   what   happened       [during   the] 

processing" - thus leaving open the possibility that the trooper did not properly advise 

Selig of his right to consult an attorney, or did not properly explain Selig's right to an 

independent blood test. 

                 District   Court   Judge   Jane   F.   Kauvar   held   a   hearing   to   investigate   this 

matter.  Based on the evidence presented at that hearing (in particular, evidence that the 

trooper's audio recorder was malfunctioning in the days preceding Selig's arrest), Judge 

Kauvar concluded that the trooper's failure to record his interactions with Selig at the 

trooper station was perhaps understandable, but not necessarily excusable.                     However, 

Judge Kauvar found that the trooper had not violated the Stephan rule - because, even 

though the DUI processing was not recorded, the trooper did not interrogate Selig during 

the DUI processing. 

                 (The   judge   also   noted   that,   in   any   event,   Selig   had   not   filed   a   motion 

seeking suppression of any statements he made during the DUI processing.) 

                                                   - 2 -                                              2374

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                 With respect to Selig's contention that a recording of the DUI processing 

would show whether the trooper waited the mandated 15-minute observation period 

before administering the breath test, Judge Kauvar pointed out that the length of the DUI 

processing could be determined by comparing the trooper's time of arrival at the station 

(which   was   recorded in the dispatch log notes) and the time of the breath test itself 

(which is recorded by the Datamaster machine).               Judge Kauvar also noted that Selig's 

attorney   had   not   questioned   the   trooper   about   this   issue   (i.e.,   the   adequacy   of   the 

observation period) when the trooper testified at the evidentiary hearing.  Finally, Judge 

Kauvar noted that Selig's attorney had not affirmatively argued that the observation 

period in Selig's case was inadequate. 

                 With respect to Selig's contention that the trooper might not have advised 

him of his right to consult an attorney before deciding whether to take the breath test, 

Selig took the stand at the evidentiary hearing and testified that he had no memory of any 

conversation with the trooper about his right to call an attorney for advice during the 

DUI processing. Judge Kauvar concluded that Selig had no memory of any conversation 

on this topic because there had probably been no such conversation. 

                 Judge     Kauvar     noted    that  Alaska     law   does    not   require    officers   to 

affirmatively advise DUI arrestees of their right to consult an attorney before deciding 

whether to take the breath test.       Rather, the officer's duty is only to honor an arrestee's 

request to contact an attorney if the arrestee makes this request. 1   And Judge Kauvar 

concluded that Selig would have remembered if he had affirmatively asked the trooper 

    1   See Annas v. State , 726 P.2d 552, 560 (Alaska App. 1986); Van Wormer v. State, 699 

P.2d 895, 897-98 (Alaska App. 1985), overruled on other grounds by Zsupnik v. State , 789 

P.2d    357   (Alaska   1990)   (a  DUI   arrestee   must   request   the   opportunity   to   consult   with 

counsel); Anchorage v. Erickson , 690 P.2d 20, 21 (Alaska App. 1984) (a defendant forfeits 

the right to consult an attorney before taking the breath test if the defendant does not request 

the opportunity to speak with an attorney prior to taking or refusing the breath test). 

                                                   - 3 -                                              2374

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

for an opportunity to call an attorney, and the trooper had refused.  In other words, Judge 

Kauvar found that Selig had not affirmatively requested the opportunity to contact an 

attorney before taking the breath test. 

                 With   respect to   whether   Selig   was   properly   advised   of his   right   to   an 

independent blood test (to check the results of the breath test), Judge Kauvar noted that 

even though Selig apparently declined the test at first, he ultimately did exercise his right 

to an independent blood test.          (This blood test showed that Selig had a blood alcohol 

level of .182 percent - essentially the same as Selig's breath test result of .181 percent.) 

                 Based on these findings, Judge Kauvar denied Selig's suppression motion. 

She ruled that Alaska law does not require the police to record DUI processings (unless 

custodial interrogation takes place), and she alternatively ruled that, in any event, Selig 

had failed to show how he might have been prejudiced by the lack of a recording. 

                 The lack of a recording came up again at Selig's trial.                Selig's attorney 

asked the trial judge to instruct the jury that, because the trooper failed to record his 

interactions with Selig during the DUI processing, the jury should presume that all of the 

information that would have been on the recording - presumably, all the events of the 

DUI processing, and all statements made during that processing - would support Selig's 

claim   that   he   was   not   guilty.  The   trial   judge   declined   to   give   this   proposed   jury 


                 In this appeal, Selig renews his argument that all of the evidence obtained 

during his DUI processing should be suppressed because the troopers failed to record the 

DUI processing.       Alternatively, Selig argues that he should be granted a new trial, and 

that the jurors at this new trial should be instructed to presume that all the unrecorded 

events of the DUI processing would support Selig's innocence. 

                                                   - 4 -                                              2374

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

         The trooper's failure to record the DUI processing 

                 In  Stephan   v.   State,   711   P.2d   1156,   1159   (Alaska   1985),   the   Alaska 

Supreme Court held that the due process clause of our state constitution requires the 

police to make an audio recording, whenever feasible, of all custodial interrogations that 

occur in a place of detention (for example, police stations).                 Selig asks this Court to 

extend     the  Stephan    recording      requirement      so  that   it  governs    not   only   custodial 

interrogations conducted at a police station but also all DUI processings, even when no 

interrogation occurs during the processing. 

                 Obviously, many DUI processings do involve some amount of custodial 

interrogation, and that aspect of the processing is already covered by the Stephan rule. 

But Selig asks us to extend Stephan to all aspects of the DUI processing, including the 

interaction   leading   up   to   the   arrestee's   decision   whether   to   take   the   breath   test,   the 

interaction preceding the arrestee's decision whether to request an independent blood 

test, and all other non-interrogation aspects of the officer's interaction with the arrestee. 

                 In   his  brief  to  this  Court,    Selig   argues   that   a  recording    of  the   DUI 

processing is needed to verify various aspects of the police's dealings with the arrestee 

-   in   particular,   to   determine   (1)   whether   the   police   properly   advised   the   arrestee 

concerning the breath test, (2) whether the police honored any request the arrestee might 

have made to consult an attorney before deciding whether to take the breath test, and 

(3) whether the police properly advised the arrestee concerning the arrestee's right to an 

independent blood test. 

                 In addition, Selig argues that a recording is needed to verify that the police 

observed the arrestee for the mandated 15 minutes before administering the breath test. 

                 Any or all of these issues may be important, and may be actively disputed, 

in a prosecution for DUI or breath-test refusal.   And when there is a dispute concerning 

                                                   - 5 -                                               2374

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

these issues, the availability of an audio or video recording of the DUI processing would 

generally aid the fact-finder (whether judge or jury) in resolving the dispute.                 But this, 

by itself, is not a sufficient basis for extending the Stephan rule to DUI processings - 

i.e., for holding that the due process clause of the Alaska Constitution requires the police 

to record DUI processings whenever feasible. 

                Traditionally, in our legal system, factual disputes are resolved by having 

the parties present their witnesses, and then having the opposing parties subject those 

witnesses     to  cross-examination        and   other   forms    of  impeachment.        The   Stephan 

requirement that conversations and events be recorded, as an advance precaution against 

potential factual disputes in the future, is a departure from this traditional rule. 

                As    we    noted   in Shindle     v.  State,  the   special   recording    requirement 

announced in Stephan was the result of "a careful balancing of competing interests". 2 

Our supreme court imposed the recording requirement, and the concomitant rule that 

unrecorded statements would normally be suppressed, because the court perceived "a 

systemic problem" arising from the fact that law enforcement agencies and lower courts 

had repeatedly failed to give due regard to the supreme court's admonitions concerning 

the need to record custodial interviews.           Stephan, 711 P.2d at 1163. 3         That is, police 

agencies and courts had repeatedly failed to give due regard to "[t]he need to insure that 

the   voluntariness   of   a   [suspect's]   confession   can   be   confirmed   by   reference   to   an 

accurate and complete record".  Id. at 1160. 

                As we noted in Shindle, the purpose of the Stephan rule was not to have the 

police record all aspects of their investigative efforts whenever feasible.                 Rather, the 

Stephan rule had a more narrow focus: "assuring that confessions are voluntarily made": 

    2   731 P.2d 582, 585 (Alaska App. 1987). 

    3   Referring to Mallott v. State , 608 P.2d 737 (Alaska 1980). 

                                                  - 6 -                                               2374 

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

                 While     the   court   in Stephan      did   not   expressly     limit  the 

                 [recording] rule ... to cases involving the voluntariness of a 

                 confession,   the   court's   discussion   makes   it   clear   that   the 

                 court's primary concern was with the problem of involuntary 

                 confessions       and    ...  related   fifth  and    sixth   amendment 


Shindle, 731 P.2d at 584. 

                 As our Shindle decision explains, the Stephan court focused on the problem 

of   involuntary      confessions     because,     unlike    violations    of  the   Fourth    Amendment, 

violations of the Fifth and Sixth Amendments may result in involuntary confessions, and 

the introduction of an involuntary confession will undermine the integrity of the verdict 

at trial.   In contrast, "[c]laims based solely on ... violations of fourth amendment rights 

do   not   call   into   question   the   accuracy   of   the   ...   verdict   ...   [or]   the   integrity   of   the 

fact[-]finding process."       Shindle, 731 P.2d at 585. 

                 See Moreau   v.   State ,   588   P.2d   275,   279-80   (Alaska   1978),   where   the 

supreme court relied on this same rationale when holding that search and seizure claims 

ordinarily can not be raised for the first time on appeal, even if the trial court record 

clearly reveals a ground for suppression of the evidence. The supreme court reached this 

result because, even when evidence is obtained in violation of the Fourth Amendment, 

the   evidence   remains   reliable,   and   thus   Fourth   Amendment   errors   do   not   affect   the 

fundamental fairness of the fact-finding process. 

                 (See also Elson v. State , 633 P.2d 292, 300 (Alaska App. 1981), where this 

Court held that, in most circumstances, evidence obtained in violation of the Fourth 

Amendment   can   be   offered   at   sentencing   -   again,   because   the   evidence   remains 

reliable, even though it was unlawfully obtained.) 

                                                    - 7 -                                                2374

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

                 Criminal litigation certainly presents many important factual disputes apart 

from the voluntariness of an arrested suspect's statements to the police.  But the Stephan 

rule focuses on the particular problem of the voluntariness of statements made during 

custodial   interrogation   (and   only   if   the   custodial   interrogation   occurs   in   a   place   of 

detention). Stephan 's due process rationale is not applicable to situations where reliable 

evidence   is   obtained   unlawfully   -   through   Fourth   Amendment   violations   or   other 

questionable methods. 

                 Because   of   the   narrow   focus   of   the  Stephan   decision,   this   Court   has 

repeatedly declined to extend the recording requirement to other situations, even though 

an audio or video recording might be of significant aid in resolving factual disputes, and 

even though such a recording might have been feasible.  In Resecker v. State , 721 P.2d 

650, 653 n. 1 (Alaska App. 1986), and more recently in State v. Amend, 250 P.3d 541, 

545 (Alaska App. 2011), we declined to extend the Stephan recording rule to crime scene 

interrogations, even if recording equipment is available. In Swanson v. Juneau, 784 P.2d 

678,   681   (Alaska   App.   1989),   we   declined   to   require   the   police   to   videotape   field 

sobriety tests, even if videotaping is feasible.             And in Shindle, 731 P.2d at 585, we 

declined to require the police to record in-the-field Fourth Amendment waivers. 

                 As a general matter, we have declined to extend Stephan to "[require] the 

police to record or photograph all investigative procedures, even though there may be 

a disagreement about what happened." Amend , 250 P.3d at 545.   We have instead relied 

on   the   traditional   precept   that   "[a   defendant's]   right   to   due   process   is   sufficiently 

protected by [the defendant's] right to confront and cross-examine [the police] at trial[,] 

and to offer any evidence that would impeach or contradict [their] testimony."  Ibid. 

                 With one exception (which we address in the next paragraph), there is no 

dispute concerning the reliability of the evidence that Selig seeks to suppress in the 

present appeal - to wit, the result of his breath test and the result of his independent 

                                                   - 8 -                                               2374

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

blood test.  Selig argues that, at least potentially, the police might have failed to properly 

advise him concerning the breath test, or might have failed to honor his request to consult 

an   attorney   before   deciding   whether   to   take   the   breath   test,   or   might   have   failed   to 

properly advise him concerning his right to an independent blood test.  But none of these 

potential problems affects the reliability of the resulting evidence. 

                 Selig    does   argue   that   a   recording  is   needed   to  verify   that   the  police 

observed an arrestee for the mandated 15 minutes before administering the breath test. 

The failure of the police to abide by the 15-minute observation period could potentially 

put the accuracy of the test result in doubt.           But as Judge Kauvar observed when she 

denied Selig's suppression motion, the times recorded in the police dispatch log, coupled 

with    the  time   recorded     by  the   Datamaster,   will   normally      provide    an   independent 

verification of the time elapsed between a person's arrest, their arrival at the police 

station, and the administration of the breath test. 

                 We also note that we have upheld observation periods that commenced in 

the field following a defendant's arrest, before the defendant arrived at the station. 4 

Thus, even if we imposed a requirement that DUI processings had to be recorded once 

the arrestee arrived at the station, such recordings would not necessarily answer the 

question of whether the pre-testing observation period was sufficient. 

                 Perhaps more importantly, even though we have seen individual cases that 

raised doubts concerning the types of factual issues that Selig discusses in his brief, we 

have not seen the kind of systemic problems that led the supreme court to adopt the 

recording requirement in Stephan .  Because the Stephan rule "reflects a careful balancing 

of competing interests", we have held that expansion of that rule "[should] be undertaken 

cautiously, and only if the need for [the] expansion is demonstrated by experience with 

    4   See Gilbreath v. Anchorage, 773 P.2d 218, 221-22 (Alaska App. 1989). 

                                                   - 9 -                                                2374 

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

the current rule." 5   Selig does not assert that the police have been systematically ignoring 

the rights of DUI arrestees, and the facts of his case do not suggest this sort of endemic 


                For these reasons, we hold that the police are not required to record the 

non-interrogative aspects of DUI processing. 

        The trial judge's refusal to give Selig's proposed jury instruction dealing 

        with the trooper's failure to record the DUI processing 

                In Thorne v. Department of Public Safety, 774 P.2d 1326, 1330-32 (Alaska 

1985),   the   Alaska   Supreme   Court   addressed   the   question   of   the   proper   remedy   for 

situations where the police destroy evidence that they have gathered during a criminal 


                The defendant in Thorne was arrested for driving under the influence and 

he   was   taken   to   jail,   where   he   was   asked   to   perform   sobriety   tests. 6 The   police 

videotaped Thorne's performance of these sobriety tests, but they erased and re-used the 

videotape after Thorne's criminal case was resolved by a plea. 7                  (Thorne pleaded no 

contest to a reduced charge of negligent driving. 8 )            Thus, the videotape was no longer 

available   when   the   Department   of   Public   Safety   took   administrative   action   against 

Thorne's driver's license. 

    5   Shindle, 731 P.2d at 585. 

    6   Thorne, 774 P.2d at 1327-28. 

    7   Id. at 1328-29. 

    8   Ibid. 

                                                  - 10 -                                               2374 

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

                The   supreme   court   held   that   the   police   violated   Thorne's   right   to   due 

process when they destroyed the videotape before the administrative proceeding was 

resolved. 9   The court then considered the type of remedy that Thorne should receive: 

                        We     now    address    the  appropriate     sanction    for  the 

                state's failure to preserve the videotape.  The state's good or 

                bad faith in failing to preserve the videotape is relevant to 

                determining the appropriate sanction.  We look to the degree 

                of culpability on the part of the state, the importance of the 

                evidence lost, the prejudice suffered by the accused, and the 

                evidence of guilt adduced at the trial or hearing. 

                        We think an appropriate sanction in this case would be 

                to   remand     the  case   back   to  the  [administrative]     hearing 

                officer with directions to presume that the videotape would 

                have been favorable to Thorne. 

Thorne, 774 P.2d 1331 (citations omitted). 

                Selig   argues   that,   because   of   the   trooper's   failure   to  record   his   DUI 

processing, he was entitled to a similar jury instruction at his trial.               But Selig's case 

differs from Thorne in a fundamental way.  Selig's case does not involve police destruc- 

tion of physical evidence.        Rather, it involves a failure to "collect" evidence - that is, 

a failure to make a recording of visual and aural evidence. 

                (Alternatively, one might categorize Selig's case as presenting an instance 

where the police failed to "create" evidence - in the sense that they failed to create a 

recording of the DUI processing.) 

                The general rule is that the State has no duty to collect physical evidence, 

and the State's duty to preserve evidence applies only to physical evidence that has 

    9   Id. at 1330-31. 

                                                 -  11 -                                              2374 

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

actually   been  gathered. 10       Thus,   in   normal   circumstances,   even   though   the   State's 

destruction of previously collected evidence might entitle a criminal defendant to the 

type   of   favorable   jury   instruction   discussed   in  Thorne,   the   State's   failure   to   collect 

evidence would not entitle a defendant to such an instruction. 

                 It follows that Selig's jury instruction claim really hinges on whether the 

trooper   who   arrested   Selig   violated   a   legal   duty   by   failing   to   record   Selig's   DUI 

processing.       We   have   already   addressed   this   issue   in   the   preceding   section   of   this 

opinion, and   we resolved this issue adversely to Selig.                 Accordingly, Selig was not 

entitled to his proposed jury instruction. 


                 The judgement of the district court is AFFIRMED. 

    10  Snyder v. State, 879 P.2d 1025, 1028 (Alaska App. 1994), reversed on other grounds, 

930 P.2d 1274 (Alaska 1996); March v. State , 859 P.2d 714, 716 (Alaska App. 1993). 

                                                   -  12 -                                                2374 

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