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Saltz v. Alaska Dept. of Public Safety (8/1/97), 942 P 2d 1151
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
EDWIN SALTZ, )
) Supreme Court No. S-7357
Appellant, )
) Superior Court No.
v. ) 3KN-95-91 CI
)
STATE OF ALASKA, DEPARTMENT ) O P I N I O N
OF PUBLIC SAFETY, DRIVER )
IMPROVEMENT BUREAU, ) [No. 4860 - August
1, 1997]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Peter F. Mysing, Kenai, for
Appellant. Cameron M. Leonard, Assistant
Attorney General, Fairbanks, and Bruce M.
Botelho, Attorney General, Juneau, for
Appellee.
Before: Compton, Chief Justice, Matthews,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
Edwin Saltz appeals from the revocation of his
driver's license under AS 28.15.165 for driving while
intoxicated. He argues that a state trooper's failure to read
the "attorneys"section of the Yellow Pages to him when he did
not have his reading glasses violated his right to a reasonable
opportunity to consult with counsel before deciding whether to
submit to a breathalyzer test. The superior court rejected his
argument and upheld the revocation of his license. We affirm.
II. FACTS AND PROCEEDINGS
On October 14, 1994, Edwin Saltz drove his truck into a
ditch. Alaska State Trooper Frank Lavin arrived at the scene,
interviewed two witnesses, and spoke with Saltz. According to
Trooper Lavin's testimony, Saltz's breath smelled strongly of
alcohol, his eyes were bloodshot and watery, and he had trouble
balancing. Trooper Lavin also testified that Saltz's speech was
slurred and at times incoherent. Saltz admitted to Trooper Lavin
that he had consumed three drinks within the last two hours and
agreed to perform field sobriety tests. Saltz failed those
tests, and Trooper Lavin arrested him for driving while
intoxicated. Trooper Lavin transported Saltz to the Wildwood
Pretrial Facility to administer a chemical test of his breath to
determine his blood alcohol level. Saltz's glasses remained in
his pickup at the scene of the accident.
After they arrived at the station, Trooper Lavin
advised Saltz of his Miranda rights, including his right to
counsel. Saltz asked to speak to an attorney. Trooper Lavin
provided Saltz with a telephone and a copy of the Yellow Pages
opened to the "attorneys"section. Saltz told Trooper Lavin that
he could not read the listings without his glasses. Trooper
Lavin responded that he was not permitted to do more than offer
Saltz the Yellow Pages, a telephone, and the opportunity to speak
with an attorney in private. Saltz asked if he could borrow
glasses or if Trooper Lavin could wait to conduct the breath test
until Saltz's pickup arrived with his glasses. Trooper Lavin
replied that he had no glasses and that Saltz could use his own
glasses if they came in time, but that he would not delay the
breath test. After this exchange, Saltz sat beside the phone but
did not attempt to use it.
Following the mandatory fifteen-minute waiting period,
Trooper Lavin administered the breath test without objection from
Saltz. The test produced a reading of 0.16%. Saltz elected to
have an independent blood test at his own expense at a nearby
hospital. That test produced a reading of 0.175%. Based on the
result of the breathalyzer test, the Division of Motor Vehicles
revoked Saltz's driving license under AS 28.15.165.1 Because
Saltz had prior convictions for driving while intoxicated in 1986
and 1988, the revocation was effective for three years. Saltz
requested administrative review of the revocation.
An evidentiary hearing took place in December 1994
before Department of Public Safety Hearing Officer Joy Gifford.
The hearing officer heard the testimony of Trooper Lavin. With
regard to the conversation concerning the attempt by Saltz to
call an attorney, Trooper Lavin testified on cross-examination:
In my training and experience and what I've
been told by senior Troopers is, you are not
allowed C I'm not allowed to offer C I can
offer a phone book, I can offer privacy while
the person's talking, I turn off my tape
recorder. He can C I make C They can call
anybody. I don't restrict my phone call
privileges of my customer strictly to lawyers
or attorneys, so I felt that if he couldn't
read the Yellow Pages, that he would be
perhaps resourceful enough to call his wife,
a relative, call Information, the Public
Defender's Office, make other arrangements.
Trooper Lavin also testified, in response to the contention on
cross-examination that by simply reading the Yellow Pages he had
not "recommended anybody,"that
in one sense I haven't recommended anybody;
yet I didn't finish the attorney section.
Okay, so now if it comes up that he disagreed
with that attorney and found his reading
glasses and found another attorney, I feel
that it would come back to me as, well, you
read these, yes, I chose this one, but you
didn't read all of them, so rather than --
avoid that conflict, I leave it up to their
resources. It is a learning experience,
perhaps, on my future D.W.I.s, I can say, if
you have a problem reading, you can always
call the Public Defender, that's an option,
here's the 1-800 number; you can call your
wife or friend also, but in a situation like
that, it's been advised to me by senior
Troopers and by people with experience that
you don't steer them in any way
(indiscernible) so no, I didn't offer any
more than the Yellow Pages. I didn't offer
to help him read, interpret or whatever.
After listening to the testimony and the tape of the conversation
between Saltz and Trooper Lavin prior to the breath test, the
hearing officer upheld the revocation of Saltz's license. On
appeal to the superior court, Judge Charles K. Cranston affirmed
the hearing officer's decision. Saltz appeals.
III. DISCUSSION2
Saltz argues that Trooper Lavin violated his right to a
reasonable opportunity to consult with counsel before deciding
whether to submit to a breathalyzer test and that this violation
requires the exclusion of the result of that test under Copelin
v. State, 659 P.2d 1206 (Alaska 1983), and Whisenhunt v. State,
Department of Public Safety, 746 P.2d 1298 (Alaska 1987). Saltz
contends that Trooper Lavin violated this right by failing to
read the yellow pages to him when Trooper Lavin knew that Saltz
could not do so because he did not have his glasses. He also
argues that Trooper Lavin should have informed him of the option
of calling the public defender, offered him the number of the
public defender, or suggested that he call a relative or friend
for assistance in locating counsel.
The Alaska Department of Public Safety (State) argues
that the statutory right to consult an attorney prior to taking a
breathalyzer test does not place an affirmative duty on police
officers to assist an arrestee in trying to locate an attorney.
The State maintains that Trooper Lavin complied with Saltz's
rights when he provided Saltz with a "telephone and a phone
book."
In Copelin, we held that
when a person is arrested for operating a
motor vehicle in violation of state or local
drunken driving ordinances, and requests to
contact an attorney, AS 12.25.150(b)[3] and
Alaska Criminal Rule 5(b) require that the
arrestee be afforded a reasonable opportunity
to do so before being required to decide
whether or not to submit to a breathalyzer
test.
Copelin, 659 P.2d at 1208. We further held that a failure by the
police to allow an arrestee such an opportunity required the
suppression of the "subsequent evidence, whether in the form of
the test results or the refusal to submit to [the test]." Id. at
1215. In Whisenhunt, we extended this rule and exclusionary
remedy to civil license revocation proceedings such as the one at
issue in this case. 746 P.2d at 1299.
The statutory right delineated in Copelin is "not an
absolute one (which might involve a delay long enough to impair
testing results), but, rather, a limited one of reasonable time
and opportunity that can be reconciled with the implied consent
statutes."4 Copelin, 659 P.2d at 1211-12 (footnote omitted). As
we explained,
[r]easonableness will depend on the
circumstances of each case, such as the
amount of time between the stop and the
transportation to the station, when the
request is made, and how much time is needed
to set up the test. If the attorney cannot
be contacted within a reasonable time the
suspect must decide without the advice of
counsel, whether to take the breathalyzer
test.
Id. at 1212. We specifically stated that the right did not
require any delay other than the fifteen-minute observation
period already required prior to administration of the test. Id.
at 1211. Thus, the statutory right to counsel under Copelin is
more restricted than the constitutional right to counsel
established by the U.S. Supreme Court in Miranda v. Arizona, 384
U.S 436 (1966). See Graham v. State, 633 P.2d 211, 215 (Alaska
1981) (holding that an officer administering a breath test has a
duty to "inquire into the nature of the refusal [to take a breath
test] and, if it appears that the refusal is based on a confusion
about a person's rights, the officer must clearly advise that
person that the rights contained in the Miranda warning do not
apply to the breathalyzer examination").
In applying the statutory right, the court of appeals
has interpreted Copelin as imposing on police only a limited duty
to assist detainees in locating an attorney before taking a
breathalyzer test. For example, in Anderson v. State, 713 P.2d
1220 (Alaska App. 1986), the court held that the police "have no
duty to inform [arrestees] of the availability of the public
defender agency or a number at which a public defender may be
reached." Id. at 1221. Similarly, in Yancy v. State, 733 P.2d
1058 (Alaska App. 1987), the court ruled that the police complied
with Copelin when an officer, upon a defendant's request for the
telephone number of the public defender, provided the number of a
private attorney who did not answer the defendant's telephone
call.5 Id. at 1060-62. Finally, in Rollefson v. Municipality of
Anchorage, 782 P.2d 305 (Alaska App. 1989), the court of appeals
held that the right was not violated when an officer, after
offering the phone book to a handcuffed defendant, did not also
offer to hold the phone book or turn the pages. Id. at 306-07.
In light of this precedent, we conclude that Trooper
Lavin had no duty to provide more assistance to Saltz under the
circumstances. As the State points out, Saltz "could have
called a friend or relative and asked them either for an
attorney's number, or to call an attorney on his behalf." See
Zsupnik v. State, 789 P.2d 357, 360 (Alaska 1990) (holding that
detainee entitled to call friend or relative as well as counsel).
Saltz could also have requested the number of the public
defender, pointed randomly at a number and asked Trooper Lavin to
read it to him, or even attempted to read the advertisements
himself, some of which feature telephone numbers more than one-
half inch tall. However, Saltz did nothing beyond stating that
he could not read without his glasses, asking if Trooper Lavin
could wait until his glasses arrived, and requesting to borrow
glasses. Indeed, the tape recording of the conversation between
Saltz and Trooper Lavin prior to the breath test reveals that
Saltz never even directly asked Trooper Lavin to read him the
Yellow Pages. Thus, Trooper Lavin's reluctance to help Saltz,
while perhaps overly cautious, was far from the "flat refusal to
afford access to counsel after it is requested" that the
exclusionary rule of Copelin was designed to discourage. See
Copelin, 659 P.2d at 1211 n.12. Therefore, we hold that Trooper
Lavin did not violate Saltz's statutory right to speak with an
attorney prior to deciding whether to submit to the breath test,
and the results of that test were admissible in Saltz's license
revocation proceeding.
IV. CONCLUSION
Accordingly, the decision of the superior court is
AFFIRMED.
_______________________________
1 Under AS 28.15.165 and AS 28.35.030, the department
must revoke a person's license if the test produces a reading of
.10% or greater.
2 AS 28.15.166(m), setting forth the standard applicable
to the superior court's review of a driver's license revocation
by the Department of Public Safety, provides:
The judicial review shall be on the record,
without taking additional testimony. The
court may reverse the department's
determination if the court finds that the
department misinterpreted the law, acted in
an arbitrary and capricious manner, or made a
determination unsupported by the evidence in
the record.
Since we conduct an independent review of the administrative
decision, we apply the same standard. Miller v. Department of
Pub. Safety, 761 P.2d 117, 118 n.2 (Alaska 1988).
3 AS 12.25.150(b) provides:
Immediately after an arrest, a prisoner
shall have the right to telephone or
otherwise communicate with the prisoner's
attorney and any relative or friend, and any
attorney at law entitled to practice in the
courts of Alaska shall, at the request of the
prisoner or any relative or friends of the
prisoner, have the right to immediately visit
the person arrested.
4 The implied consent statute provides: "A person who
operates or drives a motor vehicle in this state . . . shall be
considered to have given consent to a chemical test or tests of
the person's breath for the purpose of determining the alcoholic
content of the person's blood or breath if lawfully arrested for
an offense arising out of acts alleged to have been committed
while the person was operating or driving a motor vehicle . . .
." AS 28.35.031(a).
5 Yancy also involved AS 18.85.110, which requires police
to inform an indigent person charged with a serious crime of
their right to be represented by an attorney at public expense
and to notify the agency or the court that the indigent is not
represented. Yancy, 733 P.2d at 1062. Saltz does not rely on
this statute for any part of his argument.
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