Wing v. State
2012 Alas. App. LEXIS 8
Alaska Ct. App.2012Background
- Wing was arrested for DUI after Fairbanks police observed multiple traffic violations.
- She was taken to the police department to administer a breath test and process the DUI.
- A video explained the right to an independent chemical test after the breath test; Wing could not decide on invoking it.
- Wing stated she wanted to make a phone call and said her cell phone was in her pocket; the officer provided a station phone.
- Wing spoke with a coworker for about five minutes and did not request to contact an attorney or look up her attorney’s number.
- Wing filed motions to suppress the breath test; the district court denied; she was convicted after a bench trial on stipulated facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Knowingly intelligent waiver of independent test | Wing lacked understanding of the test’s purpose | Wing understood the right but unsure of benefits | Waiver knowingly intelligent; Wing understood the right but not benefits |
| Right to counsel during DUI processing | Officer denied access to attorney via cell phone | No invocation of right to counsel occurred | Right to counsel not implicated; no affirmative request by Wing |
| Breath test as valid search incident to arrest under either DUI theory | Breath test only valid for the underlying theory (a)(1) | Test could search for evidence of either theory | Breath test valid search incident to arrest under either theory |
| Constitutional dilemma of Hobson-like choice | Force to choose between DUI by test or refusal | Statute simply provides testing requirement; no coercive choice | Not unconstitutional to require breath test; test lawful for both theories |
Key Cases Cited
- Ahtuangaruak v. State, 820 P.2d 310 (Alaska App. 1991) (quoting Gundersen; propósito of waiver considerations)
- Crim v. Anchorage, 903 P.2d 586 (Alaska App. 1995) (waiver validity when right to independent test discussed)
- Moses v. State, 32 P.3d 1079 (Alaska App. 2001) (knowing and intelligent waiver where benefits of test uncertain)
- Svedlund v. State, 671 P.2d 382 (Alaska App. 1983) (arrest processing not a critical stage for counsel right unless invoked)
- Anchorage v. Erickson, 690 P.2d 20 (Alaska App. 1984) (comment not affirmative request to consult counsel; Erickson guidance on invocation)
- Van Wormer v. State, 699 P.2d 895 (Alaska App. 1985) (arrestee must request consultation with counsel; not automatic)