Copelin v. State

the arcane intricacies of court adds to not to Elson’s rationale does This Miller, indi- penalizes Elson search seizure resistance.1 Unlike nonviolent of the correct ignorance for their to harm the officer viduals attempt did not assertions. rea- their mistaken way express than what was more otherwise resist objection to indicate his sonably necessary vio- encourage that we cannot recognize I grabbed After Elson to the search. officers; however, lent resistance to Elson’s wrist, placed officer officer’s for cooperation adequate incentives Elson did top patrol car. hands on indi- already present because are further, attempt try not to resist subject penalties to criminal viduals way jeopardize or in escape, See interfering with an arrest. resisting It public. of the officer or sаfety incentive, it seems 11.56.700. Given placed Elson’s unlikely actions highly incentive unnecessary to add additional physical apprehension the officer resistance, matter how no that non-verbal harm.2 exhibited, inoffensively can be used as evi- was physical resistance Elson’s nonviolent guilt. dence more than assertion of his mistaken all other join disposition I court’s to be that he had a not belief hearing. in the petition issues If verbal his assertion had been searched. as evi- it would have been admissible Thus, guilt. Maj. op.

dence of at 1199. being for his failure penalized

Elson is as- physical verbal

distinguish between Such a distinction

sertions nonconsent. Elson unfair in this case. categorically his express verbally

had no the officer refusal to be searched because COPELIN, Appellant, Charles G. Elson did not ask whether would consent Instead, indi- being searched. Elson’s first Alaska, Appellee. STATE of that he was searched cation into began put his hand officer MILLER, Ray Aрpellant, Joe circum- pocket. Elson’s Given stressful stances, react- Elson cannot be faulted for to this rapid in a and reflexive manner ANCHORAGE, Municipal It person. intrusion on is unreasonable Appellee. Corporation, situa- expect pause, Elson to assess the Nos. 5708. tion, it less detri- and realize that would be Supreme Alaska. speak run to out rather Court long mental in out, reach at least to reach toward 18, 1983. Feb. touch but not the officer. court’s' states that individuals opinion ignorance not be “for their penalized should sei- arcane intricacies search by allowing mistaken assertions

zure law rights to be

perceived fourth amendment

used as guilt.” Maj. evidence of allowing per-

By non-verbal assertions guilt, rights

ceived to be used evidence could ex- re- I note a verbal refusal 1. Because this case involves a nonviolent search, pressed place officer in would a tone that to a I do not discuss whether sistance physical apprehension great immediate be ad- violent resistance would evidence guilt. harm. missible to establish Lewis, Westerburg Stanley Daniel Birch, Horton, Bittner, Monroe, Pestinger & Anderson, Anchorage, appellant Cope- lin. one’s ‍​‌‌​​​​‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​​‌​​​‌​‍refusals submit judge may consider M.

Jeffrey Feldman and James D. Gil- sentencing pro- tests in more, Feldman, Anchorage, Gilmore and to such Miller. appellant ceedings. Gen., An- Atty. Sheley, H. Asst. Elizabeth per We have concluded Gen., Ju- Condon, Atty. L. chorage, Wilson a motor vehi operating is arrested for son Alaska. neau, appellee State for state or local drunken cle in violation Prosecutor, Municipal Berry, David G. ordinances, driving requests and contact An- Berns, Municipal Atty., D. Theodore 12.25.150(b) and Alaska attorney, AS Anchorage. appellee for chorage, the arrestee 5(b) require that Criminal Rule C.J., RABINOWITZ, BURKE, and Before to do a be afforded reasonable COMPTON, CONNOR, and MATTHEWS decide whether required so before JJ. test. breathalyzer a or not to submit Where, here, arrestee is denied that as OPINION evi subsequently obtained opportunity,

CONNOR, Justice. and accord suppressed, dence must be eases, and these two cases. separate Copelin ingly In Charles G. reverse violating Ray Joe Miller were convicted prohi- municipal driving state and drunken FACTS by were upheld bitions. These convictions Cope- G. September On Charles granted Copelin We Appeals.1 Court vehi- operating lin was a motor arrested for order petitions hearing2 and for in Miller’s under the influence of intoxicat- cle while police may refuse

to review whether liquor in violation state law. AS driving for request of one who arrested 16, 1979, Joe Mil- April Ray 28.35.030.3 On while to consult an intoxicated vehi- operating ler was for a motor a arrested whether to submit deciding before .10 cle his blood alcohol level exceeded issue, A raised while test. second a municipal a ordi- only Copelin, percent, is whether in violation in case (Alaska App. upon Copelin im- condition that the defendant be 635 P.2d 492 1981); Anchorage, Disp. period prisoned Miller Summ. No. no than minimum for less 5, 1981). (Alaska App., section, may provided punish- November in this nor provided be ment for in this section reduced Appellate 302(a)(1). and Rule AS 22.07.030 addition, opera- under AS 11.05.150. in accordance tor’s license shall revoked 28.35.030, Copelin 3. Former AS under which 28.15.210(c). person with addition AS charged, reads as follows: undertake, under this shall convicted statute “Driving intoxi- while under the influence of court, specified by pro- term who, person cating liquor drugs, (a) A or gram rehabilitation intoxicating of alcohol education or under li- while quor, depressant, the influence of court, after consideration of hallucinogenic which the or stimulant (b) drugs drugs compiled sec- under this as defined in information tion, narcotic 17.12.150(3) 17.10.230(13) operates appropriate. finds automobile, motorcycle (b) Except prohibited by or drives an or other federal law or conviction, state, upon regulation, provider pro- motor vehicle in the every of treatment $1,000, punishable by a fine of not more than grams persons under to which are ordered by imprisonment more one for not (a) supply the shall Alaska of this section year, impose a and the court shall both regarding system court information imprisonment not minimum sentence persons those and treatment of condition days. Upon a less than three consecutive may require by supreme rule. court as the years subsequent conviction within five сompiled under this subsection Information section, the court conviction under this may only be used is confidential and impris- impose shall a minimum sentence of sentencing person under convicted court in (a) days. onment of not less than 10 consecutive officer of the of this may The execution not be sus- of sentence report presentence preparing pended may probation parole grant- nor sentencing of the court use provided imprisonment until the ed minimum (a) this under section.” convicted served, nor in this section has been suspended, except imposition of sentence be Anchorage, nance Alaska Code Municipal suppress the of his breathalyzer results (1978).4 9.28.030 produced conflicting These motions results superior the district and courts and even- Following Copelin their traffic both stops made tually way their of Ap- Court custody and Miller were taken into peals.6 The Court of Appeals affirmed the transported headquar- enforcement Miller, Copelin ters. Both convictions both Copelin and Miller were asked hold- to submit to breathalyzer examinations and ing that there was no error in the failure to responded express- both request by suppress Copelin’s videotape, no error in the ing a desire to their attorneys contact first. failure to suppress Miller’s Permission was denied. Both results, considering error in Cope- Miller they were told that did have the lin’s past refusals to submit to breathalyzer to contact counsel they until after tests imposing sentence. decided whether to take the test.5 Copelin did not take the RIGHT STATUTORY not perform requested did field sobrie- n Copelin they and Miller contend that had tests, ty and was videotaped throughout a statutory right of accеss to counsel which this refusal. Miller breathalyz- did take the by was violated enforcement officers’ Following arraign- er test. respective their ments, Copelin of requests speak moved to denial their with suppress the video- their tape of his actions and Miller moved to attorneys. agree. We ANCHORAGE, by jury. jury very 4. Former ALASKA MUNICI- heard the did see (1978), hostile, PAL CODE 9.28.030 under Mil- angry, Copelin which and frustrated as he charged, ler was reads as follows: speak repeatedly attorney asked to with his “Driving greater repeatedly or with blood alco- and the officer told him he could 0.10% 15, 1979, hol. jury On not. November returned any person A. It shall be unlawful for guilty. Copelin’s considering a verdict of After operate, physical or drive be in actual control refusals to submit examina- automobile, motorcycle of ‍​‌‌​​​​‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​​‌​​​‌​‍an or other motor separate (including tions on three occasions municipality vehicle at such time as present Copelin by one) was sentenced the dis- by weight there or more of alcohol Copelin appealed superior 0.10% trict court. blood, milligrams in his or 100 or more of judgment court where the district court’s per blood, alcohol grams of milliliters his or 0.10 sentence affirmed on 1980. were June An per more alcohol liters his court, appeal was filed in this and the matter breath. Appeals. was transferred to the Court of provi- B. To be considered valid under the MILLER analysis sions this a chemical 21, 1979, plea On June Miller entered person’s per- breath shall have been charge nolo contendere to the .10 plaint, of the com- according approved by formed to methods and, preserving litigate if Department the Alaska of Health and Social necessary, appeal, pre- the issues raised in his Services. If it is at established trial pursuant suppress Cooksey v. trial motion to analysis performed chemical according of breath was (Alaska 1974). August 524 P.2d 1251 On techniques, methods and stan- 13, 1979, granted the district court Miller’s mo- training by approved dards the Alaska suppress, plea, tion set aside his and dis- Department, Services, of Health and Social Municipality missed the case. The of Anchor- presumption there is a that the test results age petitioned superior then review are valid and further foundation introduc- granting the district court’s order the motion to unnecessary.” tion of the evidence is 28, 1979, suppress. superior On November permitted anyone was not to contact court, court reversed the order of the district nearly until seven hours after his Miller arrest. imposition and remanded the case for told, attorney you was “You can an call 6, 1980, November the nolo sentence. On con- Breathalyzer.” blow in the reinstated, plea judgment tendere was of con- entered, viction was and Miller was sentenced. 6. COPELIN superior appealed to Miller then court. Be- 29, 1979, Copelin’s On October motion was already had been cause issue considered granted partially as the district court ordered upon Municipality’s petition that court portion some sections of the audio of the video- review, proceedings further were transferred to tape during Interrogation playback. turned off Appeals. the Court of Cope- the officer in violation of Miranda and lin’s “refusal” to take the breath test were attorney, with his or her privately forth the suit rights 12.25.150 sets (b) of prisoner attorney, after arrest. Subsection but with contact provides: that statute ar- purpose friend for the relative or legal ranging representation.” bail or arrest, prison- “Immediately after telephone er have shall Id. at 710 n. attorney with his otherwise communicate However, nothing in the lan- there friend, any attor- relative or suggests any guage of the statute which in the ney practice law entitled to at type nature of commu- limitations on the shall, request Alaska courts of have nication which arrestee prisoner relative friends fact, following arrest. prisoner, have to immediate- Eben, noted: this court (Emphasis ly arrested.” visit caution that the extent deemed “[W]e added). circumstances, appropriate light clear language this statute should adminis- law enforcement officials ar- every unambiguous mandates 12.25.150(b) in a manner which ter AS restee or other- permit prisoner will to communicate imme- wise communicate with his relative, or attorney, with his privacy diately.7 This mandate viewed friend.” important war- legislature sufficiently By recommending private commu- will- Id. penalties rant and civil for its criminal feasible, ful or nication be allowed where negligent violations.8 implicitly recognized oppor- that interpretation of Relying on this court’s to and communicate with an tunity consult 12.25.150(b) in AS Eben legal advice was attorney and to receive (Alaska 1979), Appeals the Court of stat- contemplated purpose also a found and Miller’s invocation Eben, To Eben language that to be ute.10 the extent that in misplaced.9 statute stated: sole 12.25.- purpose indicates that 150(b) an in the is to aid arrestee attain- with 12.25.150(b)] is not concerned “[AS legal representation, it is

implementing right an to con- ment bail or arrestee’s $500, paralleled by party aggrieved This is the sum of recover- 7. statute Alaska Criminal 5(b): jurisdiction.” competent Rule in able a court “Rights of to Prisoner Communicate in and The Eben was arrested 9. defendant Attorney Immediately after or Other Person. charge. homicide At the booked on a double arrest, prisoner right his shall station, rights, after advised his telephone com- to or otherwise to forthwith sign he would any the defendant told that his and rel- municate with both telephoned rights Any form after he had at entitled waiver ative or friend. Alaska, practice girlfriend. to at the in in the courts of The officers remained the room request any prisoner during telephone of either or relative conversation the defendant’s right prisoner, incriminating or friend of the shall have the defendant utter and heard the prisoner private." visit forthwith to rejected the This court defend- statements. added). (Emphasis during argument ant’s that statements made an under AS the exercise of arrestee’s 12.25.150 continues: 12.25.150(b) “telephone com- or otherwise “(c) any for officer It shall unlawful friends, counsel should be municate” with custody having person so of a arrested matter of law. excluded as a grant pris- willfully neglect or refuse rights provided by oner A this section. Relating to The ABA Standards Criminal misdemeanor, of this violation section is Justice, provide: 2.1 and, Defense Function conviction, § upon punish- the offender is $100, by able a fine of than not more guarantee by “Every jurisdiction stat- should imprisonment days, not more court the accused ute or rule of by both. prompt communica- require effective liability (d) the criminal In addition to lawyer should tion with a (c) prison- having of this an officer telephone access reasonable custody attor- er in who to allow an refuses purpose.” provided for facilities be (Emphasis ney applica- prisoner propеr to visit the added). pay tion is made therefor shall forfeit and pur- hold that requiring disavowed. We that one intended such assistance following an pose 12.25.150(b) provide driving of AS is to arrest for while pri- intoxicated and arrestee sobriety with the obtain le- to field tests would interfere gal acquisition advice. with the relevant evidence.12 Id. at 1192. We are impor- mindful We legisla- now must determine what tant interest obtaining state reliable evi- ture intended when it “the gave arrestee dence an arrestee’s blood alcohol level or otherwise communi- the fact alcohol concentration will cate with his attorney” “immediately after dissipate passage with the of time. an arrest” in the context of a driving while (DWI) under the influence However, arrest. procedure the proper by which state and the municipality argue given examinations are to be to consult an attorney “immediately” means in Alaska set forth 7 Alaska Admin. sobriety requires tests are Code 30.020 subject administered. the test They argue operator that since the evidence observed the test which least immediately these tests are 15 minutes designed dissipates prior testing to detect quickly, subject it assure that does not vomit impracticable, would be unrea- sonable, place anything might in his mouth which contrary to the intent implied invalidate the test result. a minimum prior consent statute11 to allow con- Since sultation. a 15 minute wait before disagree. necessary We “Immediately” just administering means that. This evi- ad- “destruction of acceding argument delay dence” ditional incurred preclude does not the lim- request attorney during ited to contact an statutory right of access to counsel that time.13 Copelin and Miller are seeking. Geber, Anchorage contact and

(Alaska 1979), we weighed benefits of consult with is not counsel an absolute one (which assistance of counsel against possibility might delay involve a long enough Implied pro- requested 11. The Alaska Consent Statute to afford it access counsel after part: vides in and a failure to advise or warn defendant of See, Craft, Implied rights. e.g., People per- “Sec. 28 28.35.031. A N.Y.2d consent. 566, operates 274, (N.Y. son who or drives a motor 321 vehicle in N.Y.S.2d 270 N.E.2d 297 given 1971). Secondly, state shall considered to have while we held in Geber that consent to a chemical test or tests of his right attorney present is there no to have an purpose determining breath for the tests, the sobriety the field we did not hold that lawfully alcoholic content of his if blood ar- merely right is there no to contact or communi arising rested for an offense out of acts al- deciding cate with before whether or counsel leged per- to have been committed while the jurisdictions, not to submit such test. Other operating driving son was a motor vehicle statutory right finding while a constitutional or intoxicating while under the influence of li- attorney phone, to consult an have held that quor. The test or tests shall be administered right the arrestee does not have the to demand at the direction a law enforcement officer attorney physical presence taking of the before grounds who has reasonable to believe that Deimeke, breathalyzer Spradling v. a test. 528 operating driving a motor 759, (Mo.1975); 765 Price v. North S.W.2d Carolina vehicle in this state while under the influence Vehicles, N.C.App. 698, pt. 36 De of Motor intoxicating liquor.” 518, (N.C.1978); McNulty 245 S.E.2d 521-22 341, 798, Curry, directly 42 St.2d 328 N.E.2d 803 Geber does not Ohio control this case. (Ohio 1975). argued Geber Geber with neither the stat one dealt defendаnts requiring unsuccess- fully perform utory right that before her to cer- nor to counsel the administration of tests, sobriety breathalyzer tain field should have a test. informed her that she attorney present had to have an pres- if she could obtain his period 13.While 15 minutes is minimum period ence within a reasonable of time. While longer delay, period have arrestee will a duty we held that the have no to advise a attorney in which to contact his where the time suspect any right counsel, we did not hold operator yet ready test is not to administer the police may requests specific that the refuse the any greater impose Such rule test. does to contact counsel were in- made in the delay testing other than that which is inher- recognized stant cases. Other courts process. ent in the test administration there is vast difference a flat refusal betwеen rather, results), but, present being required counsel before testing impair Geber, 592 Anchorage v. take the test. opportu- ‍​‌‌​​​​‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​​‌​​​‌​‍one reasonable time and limited 1187, 1979). (Alaska Since implied P.2d reconciled with the nity that can be refusal, also no we have there is consent statutes.14 necessary it inform the held that is not it is municipality argues that he or she can refuse person arrested Miller would have been not clear whether render test re- order attorney any spe able to contact his within State, 604 Palmer v. sults admissible. out that period. points cific time The state 1110.” peri Alaska does not statute establish omitted). (footnote Id. at 214 breathalyzer during of time which the od present prosecuting authorities in the guide administered to the court in must be upon language case have seized limit. of these prescribing a time Both “no to refuse” to take therе is will valid. Reasonableness observations are argue that breathalyzer test to there each depend on circumstances of advice of an issue as to which the between such as the amount time of the accused’s station, might help preserve stop transportation and the further, in- step rights. goes The state made, how much request it ethical sisting that cannot conceive of up If the time needed to set the test. which a de- lawful criminal assistance a rea attorney cannot be contacted within could render for a client fense with suspect sonable time the must decide driving is asked to counsel, arrested for drunk who out the to take advice of whether breathalyzer take a test.15 As both and Miller denied any were misperceive what arguments These they whatsoever contact their attorneys, right to refuse.” There is mеant “no statutory were rights. denied their for deter may be no to refuse municipality The state and the next con- level in constitu mining blood alcohol “no right tend that since there is to refuse” California, tional sense. Schmerber v. See tests, any right to take 1826, 1836, 86 S.Ct. U.S. an attorney meaningless consult would be And, (1966). may be no L.Ed.2d 908 there accused. Graham v. sense, in to refuse in (Alaska 1981), P.2d 211 we stated: legal will suffer arrestee adverse law, suspension “Under the form of consequences Alaska in most 28.- jurisdictions, one arrested license. operating revocation his driver’s However, motor influence the statute does not de vehicle while under the 35.032. power has to refuse intoxicating liquor prive no constitution- accused suspect al or submit if the refuses statutory refuse to submit test: State, test, analy to a to a no chemical breathalyzer test. Palmer v. submit breath blood, 1106, breath, (Alаska 1979); may 604 P.2d Wirz of his or urine be sis State, Geber, 227, 1978). (Alaska v. 592 P.2d 1187 given. Anchorage 1979) 28.35.032).16 (Alaska (interpreting Nor does she have to have he or the AS permitted proof government 14. The is on refusal and his re- burden the be reconsider light information. Wirz show that accused an fusal of that demanded unreason- State, (Alaska thereby 1978). able amount of time and interfered 577 P.2d 227 “prompt purposeful investigation” with the recently legislature AS 16.The has amended Blue v. of the case. section, by adding (Alaska 1977). 28.35 a new AS 28.35.035. (a) of this Under subsection new Although injury may physical 15. be an arrestee without arrestee who causes death counsel, warning by person longer ability advise of he is a has entitled to another police. required testing in- refuse blood or breath. chemical may form the he con- arrestee has the The tests be administered without refuse; however, refuse, (b) be of the new if he doеs he must sent arrestee. Subsection consequences flowing provides un- advised of from his where the section arrestee Therefore, deliberately law has given make is a meaningful binding one that person the arrested a choice between two will in subsequent proceedings. affect him very important different alternatives and potential Where the chemical testing pro- sanctions. The driver weigh arrested must cedures are not unreasonably delayed, a should, upon evaluate number different factors. driver request, have the bene- may He only vaguely aware of some of counsel, fit of the advice of his own these and need not be all of statutory right informed of whom he has a to communi- police.17 them cate. Given conclusive nature of the pro- evidence which the accused is asked to The decision as to whether to comply vide, point may this decisive be the only- with an arresting request officer’s a to take occasion when this sobriety simple Clearly, is not a one. use. an attorney’s stage advice at this would not lawful, only ethical and but helpful. The prosecuting finally argue authorities The choice which an individual driver must statutory right to commu- refusal, incapable days subsequent conscious otherwise tive unless the conviction implied opera- conviction, consent of AS 28.35.031 year previous remains within one tive, police may and the conduct chemical test- twenty which case the minimum sentence is ing of breath or Such blood. an arrestee would days. addition, consecutive con- testing. have no effective choice to refuse victed of this misdemeanor must in a enroll holding program in this that an individual of alcohol education or rehabilita- attorney prior has the appropriate. tion that the court finds AS deciding test, breathalyzer whether to take the 28.35.032(g). is restricted to those cases in may which the arres- prosecuted 5. The driver still be tee, 28.35, under AS is still left with the choice driving convicted, under the influence and refusing breathalyzer to take the despite breathalyzer his refusal to take test. The driver’s refusal to submit 17. Among possible ramifications under test, breathalyzer as well as other field present (effective January 1983): test, sobriety will be admissible evidence A. If the driver refuses to take the breatha- proceeding civil or criminal under the revised lyzer test: 28.35.032(e). statute. AS given 1. A chemical test cannot be unless Refusing breathalyzer may 6. to submit to a the arrest results from an accident that caus- driver, against hinder the state’s case but it physical injury person. es death to another may deprivе exculpatory also the driver of 28.35.035(a). AS evidence. privi- 2. The driver’s license or nonresident suspen- 7. A driver who receives refusal lege suspended to drive will be revoked or can sion obtain a limited license institut- months, (3) 28.35.032(b), three if: separate ing demonstrating civil action and arresting a. officer had reasonable requisite hardship. to the court AS 28.35.- grounds oper- to believe the driver had been ating a motor vehicle while under the influ- 8. There be serious collateral conse- ence; if quences suspension, involving to a driv- one’s b. the driver refused submit after ing record, premiums insurance and even em- suspension advised this would result ployment. license; revocation of his if B. If the driver takes the test: fairly c. the driver was informed of the ANCHORAGE, 1. Under ALASKA MUNIC- accuracy expertise nature and IPAL CODE operator, § 9.28.020 B.2 and revised etcetera. 28.35.030(2), reading above .10 is con- If the driver who refuses has been con- proof driving clusive while driving intoxicated. victed of while intoxicated re- hand, On the low read- suspen- fusal to to a submit breath test the (1) year. can establish innocence under AS 28.35.- sion or revocation will be for one ANCHORAGE, 033(a)(1) 28.35.032(d). ALASKA MU- A.l. NICIPAL CODE 9.28.023 4. Refusal to submit to the chemical test of person A who submits a breath is a A class misdemeanor. AS 28.35.- may 032(f). qualified person a of own test choosing have his Conviction for a refusal carries mini- imprisonment a mum sentence of administer chemical test in addi- of not less And, upon 72 tion to the chemical test administered at the consecutive hours. a sub- sequent years a conviction direction of law enforcement officer. AS within five 28.35.033(e). requirement such a a is conviction of conviction for driv- There no any right. while intoxicated in other the driver be advised of this Palmer v. state, State, 1979). (Alaska the minimum sentencе ten consecu- 604 P.2d 1106 1214 a,t (Alaska Sundberg, v. 611 P.2d 44 attorney pre-deci- State

nicate with one’s 1980), the exclusion- in- elected not stage legislative we sion would thwart (forc- of 12.25.080 ary rule to a violation AS consent statute. underlying implied tent statute). that the noting While jurisdic- arrest growing a ible The courts in number rule exclusionai'y of the primary purpose recognize at least a limited tions by po- illegal of future conduct deterrence making with counsel prior communicate lice, we concluded that other deterrents also testing. decision to to chemical submit exclusionary might adoption of render many of the cases cited in the briefs While society’s interests in unnecessary, given rule significant distinguished can be on statuto- prevention apprehension and the crime differences, see v. 577 P.2d ry Wirz Id. Given those trial of at 52. offenders. 227, (Alaska 1978), cases 230 n. 12 some history a considerations and absence predecision right have found a communi- by police offi- in arrests of excessive force upon state statutes cate with counsel based cers, imposition we concluded 12.25.150(b) similar or court rules to AS exclusionary rule for violations 5(b). Rule These cases similar to Criminal at achieve would best forcible arrest statute between these inconsistency have found marginal a effect. only deterrent implied court rules and consent statutes and The prosecuting statutes.18 authorities we reach the Sundberg analysis Under failed to cite and we have failed 12.- regard with to AS opposite conclusion any find case denies limited Sundberg distinguished 25.150(b). to counsel if a statute similar a “con- arrest situation from forcible 5(b) exists. 12.25.150(b) Criminal Rule involving] ... ventional search and seizure

Exclusionary Rule circumstance relatively static factual is to object where efforts questiоn as deni- remains to whether criminal conduct.” Id. obtain evidence of statutory right requires of a to counsel al test, in the hot contrast to suppression of obtained subsequently felons, provides time for pursuit fleeing argue that evidence. and Miller and, action a tradi- before like reflection exclusionary appro- invocation of the rule is search, consists of intentional efforts tional priate 12.25.150(b) even violations AS evidence. Given police to obtain though is no so in provision doing there factors, we believe that distinguishing these provides the statute and the statute itself exclusionary rule will application of the for civil and criminal sanctions. The state illegal future conduct. serve to deter argues that rule is re- violations, Additionally, type in this served for constitutional violation forci- opposed to a violation ‍​‌‌​​​​‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​​‌​​​‌​‍remedy that since this was not included statute, statute, has effect on the thought by legis- it was not ble arrest present a defense at ability appropriate. lature defendant’s 828, (Ohio 1975) (Statute Vietor, required that State 830-31 03 “[a]fter v. 261 N.W.2d arrest, detention, taking (Statute any (Iowa required peace 1978) into officer delay “permit person, unnecessary person person custody shall without of a ... such call, detention, place permitted after consult, to communicate arrival forthwith facilities family attorney and see a member of his or her choice who at law of his choice.”); practice or an or her his Prideaux in the courts of this state entitled to 405, Dept. Safety, Fitzsimmons, 858, ”); State v. Public Minn. 94 Wash.2d ... State 385, (Minn.1976) (Statute (Wash. 1980), N.W.2d 391-94 aff’g, 93 Wash.2d required 436, 1980) to “admit resident (Wash. officer after vacation of 610 P.2d 893 person 977, re retained or on behalf of the judgment and remand in 449 U.S. consult, strained, desire to (1980). (Court whom he rule S.Ct. 66 L.Ed.2d private place custody.”); interview at required earliest “[a]t Spradling, Gooch v. 523 S.W.2d 865-66 custody shall be who desires counsel (Statute (Mo.App.1975) provid and court rules provided ... access to a ed the “to with counsel or other consult necessary place him in commu other means McNulty times”); persons at all behalf lawyer”). nication with 341, 798, Curry, 42 Ohio St.2d 328 N.E.2d 802-

1215 Here, deprived trial. the were ing anger being defendants not able to talk with his counsel, of their to and evi- consequent and his verbal abuse gathered dence the to counsel officer) the police would never have oc- has been denied should excluded from curred. Illinois, 478, trial. See Escobedo v. 378 U.S. conclusion, In we find that when a (1964). S.Ct. L.Ed.2d 977 person is for operating arrested a motor deciding to apply exclusionary rule in a vehicle while intoxicated and asks cоn to here, presented situation similar that sult lawyer, 12.25.150(b) and Criminal Minnesota Supreme Court stated: 5(b) Rule mandate that the arrestee be af sanctions should attend violation “[W]hat forded do so before re right? note While we that 481.- quired to decide whether to a submit penalties 10 contains civil and criminal suspect If the is denied against police officer, alone these evidence, that opportunity, subsequent not fully sufficient to the driv- vindicate whether the form of the test results or right. er’s When the driver has been it, the refusal to submit to shall be inadmis coerced making complicated into deci- sible at later criminal trial. This statuto sion without the assistance of counsel re- limited, ry right however, to circumstanc quired by opinion, he should not be es it will unreasonably not hinder the decision, bound by that since he might police investigation. If the arrested have otherwise made it differently. an attorney by unable to reach Therefore, if such a driver elected to take time, otherwise within reasonable test, suppressed. results should be required accused to elect between test, If he elected not to take the he the test it taking refusing without the should not be deemed have unreasona- aid of counsel. As both and Miller Copelin bly it refused and his driver’s license were denied the to contact should not be revoked.” counsel, these cases must be REVERSED.19 Prideaux v. Dept. of Public Safety, State COMPTON, Justice, part. dissenting in

247 N.W.2d at 395. disagree I holding with the court’s that Application of the rule exclusionary subsequent evidence obtained to a refusal requires Miller that coun- suspect allow OMVI contact to. suppressed. however, results be Copelin, 12.25.150(b) sel in violation of AS must be presents a more difficult case. The State result, support еxcluded. of this argues against Copelin evidence Sundberg, court relies on P.2d State suppressed” was “de Copelin facto since re- 44 (Alaska 1980). Sundberg I believe fused to take the portion discussing other Alaska cases the exclu- the videotape having do with his refusal rule sionary support opposite conclusion. jury. However, heard exclusionary Determining whether videotape conclude that the evidence of his balancing remedy appropriate requires requested actions after he speak with his purpose excluding illegally behind suppressed should have been en- tirely. obtained evidence the interest in ad- Had he been allowed consult with those attorney may mitting proceed- reliable evidence in he have elected to take the Sears, ings. breathalyzer, gained exculpatory evi- State Furthermоre, (Alaska 1976) dence. had he granted (applicability been attorney, proceed- consult with his it is remedy probation revocation likely videotaped (his grow- ings). events primary purpose the exclu- deciding 19. As we have concluded that and Mil- whether submit intoxication statutory rights ler’s were violated tests. subsequent evidence obtained to these viola- Our decision to reverse also eliminates suppressed, tions must be we need not consider argument Copelin’s need to address argument that an accused has a constitu- imposing his sentence. district erred prior tional to consult with counsel 1210 statute has misde- illegal convicted under this of future sionary rule deterrence record, up Sundberg, 611 P.2d meanor on faces a fine by police.

conduct thirty omitted). imprisonment up The rationale (footnote at and/or $100 judgment police $500 are aware faces civil days, rule is that if this illegal aggrieved conduct will arrestee. the fruits of their payable trial, police will then the excluded from Second, deterrents potential unlike the such conduct. cease Sundberg, the criminal sanction discussed in require the arrestee to make simply would of potential After the existence noting would be complaint. criminal The state sanctions, police in de- deterrents criminal obligation faith charged good actions, rights partmental proceedings, civil warranted, and, prosecute if investigate Sundberg suits, in we concluded and tort prosecution; a cost such and bear the exclusionary provide would not that an rule pun- degree judge would determine significant exces- additional deterrence to police than an interested ishment rather Id. at 51-52. force In sive arrests. official; not be the department there would case, are present there additional reasons I with civil suits. delays time associated remedy is neces- why exclusionary an not police officer would more believe that a 12.25.150(b). for violations of sary AS criminal likely by potential deterred Sundberg, First, unlike the situation in by jail application record and time than for where there were no built-in sanctions rule, exclusionary judicially created statute, violations of the forcible arrest AS that one of the offi- simply which means forth clearly expressly 12.25.150 sets in a arrests to culminate many cer’s failed against criminal and civil sanctions both Therefore, it is clear conviction. an police deprivation for arrestee’s minimal, that an any, if deterrent effect 12.25.150(c) rights under the statute. AS would have consider- exclusionary remedy provides: already detеrrents ing the civil and criminal It shall be unlawful for officer outweighed by into 12.25.150is far built AS having of a so arrested to custody admitting proba- significant interest wilfully neglect grant any refuse from a gained tive evidence prisoner provided by sec- rights this tion. A of this section is violation Sundberg implies an additional reason for and, misdemeanor, conviction, the upon exclusionary remedy for imposing not not punishable offender fine of statute, violations of excessive force $100, by imprisonment more than for acting are namely, when officers days, more both. good faith: 12.25.150(d)provides: imposition of the view that [W]e liability to the criminal addition particular rule on the (c) having of this an officer clearly the case at bar was un- facts of prisoner custody refuses allow who ... ... the officer warranted [because] prisoner to visit the exist- proceeding in accordance with application is therefor shall proper made directives, the de- ing departmental agrieved pay party forfeit and the neces- gree permissible of force under $500, in a court of sum recoverable phraseology of AS 12.25.- sary proper jurisdiction. competent construed previously not been had Thus, created legislature this court. “telephone otherwise communi- (footnote omitted). 611 P.2d arrest, immediately cate” with counsel quite likely be- this provided 12.25.150(b), deterrence Miller and lieved in faith that authorizing good right by violations of this tak- counsel before had consult prosecution criminal of a officer breathalyzer. Even the willfully refusing neglecting allow Eben on relying right. appeals, arrestee to exercise An officer (Alaska 1979), from, 710 n. 27 understood neutral judicial ‍​‌‌​​​​‌​‌​​​​​​​‌​​​‌‌‌‌‌‌​​‌​‌​‌​​‌​‌‌​​‌​​​‌​‍and detached offi- merely 12.25.150 to bail statute and cer.” 611 P.2d at 52. I believe that therefore believed it not applicable breathalyzer situation is in reality some- context an arrest by a followed where between “traditional search” sit- breathalyzer test administration. pursuit” uation and the “hot circumstance. State, (Alaska App. 635 P.2d 493-94 Although factual situation is likely 1981). Thus, this is not a situation where to be pursuit, as “fluid and confused” as hot police acted blatant of an disregard police officer is going nonetheless individual’s constitutional statutory make an guess, educated without rather, rights; they were in con engaged counsel, help from whether a “reasonable duct that they reasonably was le believed passed time” has may put so he that gal. Only published after this decision is to his suspect point, choice. At this with no police and the become aware an indi that evidence to the I think the contrary, vidual statutory does have limited right to must that assume such a decision will be consult an attorney prior taking a good made in faith law enforcement test does the ra deterrence personnel. operative. tionale become words, application In other the exclu- short, application exclusionary rule at sionary stage premature. this is As rule is illegal intended deter future con- in Sundberg: stated duct. This deterrence is amply provided by think it appropriate caution that [W]e the decision in this which makes it immutable. holding our is not In the clear for the first time that the conduct is history event a of excessive force arrests illegal, criminal im- sanctions shown, is demonstrating existing de- posed legislature by the engag- for officers are illusory, terrents we will not hesitate ing in the illegal conduct. to reexamine the of whether question holding ignores сourt’s two sig- these exclusionary deterrent should be fash- nificant of Sundberg militating factors ioned in the situation evidence where against applying exclusionary remedy as a obtained result of an arrest which is attempts distinguish this case from effectuated excessive force. Sundberg ground on the breatha- “ (footnote omitted). Id. Cf. Elson v. lyzer situation more like a ‘conventional 1195, 1205 1983)(same (Alaska n. 31 search and seizure ... a rela- involving] cautionary given permit instruction tively static factual circumstance where the to be ting illegally seized evidence used in object of police efforts is to evidence obtain ” sentencing Similarly, in the proceedings). of criminal conduct.’ clearly event that delineated (quoting Sundberg, 52). 611 P.2d at Given right to consult with counsel violated in administration of a and that and criminal the future the civil “provides time reflection before action” are shown not deter these vio sanctions search, and that “like traditional con- [it] lations, then this court should not hesitate sists of intentional efforts by evidence,” exclusionary obtain rule. id. the court con- opinion cludes that an is need- remedy I the court’s of all other join disposition ed as an neglects additional deterrent. It hearing. the petition issues in state, however, that Sundberg distin- guished conventional search situations on

the ground that “the fleeing offender —ar- BURKE, Justice, dissenting part. Chief rest ... requires situation often law en- expressed by my I the views dis- share forcement officials to make decisions rapid colleague, Compton. Justice At senting within the framework of fluid confused time, no reason to point factual we have sig- situations which do not permit reflection, nificant obtaining legal penalty provisions believe advice, enforced, of, or the intervention decision will not be vigorously 12.25.150 now of the statute requirements clear. is there reason

have been made Nor will not provisions

to believe that those

effectively deter future violations it can demonstrat-

statute. If and when au- prosecuting

ed that and the shirking responsibility, their

thorities penalty the deterrent effect of not hesitate

provisions illusory, we should my judg- rule.

ment, however, application the court’s unwarranted.

the rule at this time is

Claire STRAND and Alaska State Rights,

Commission for Human

Appellants Cross-Appellees, & SCHOOLS,

PETERSBURG PUBLIC Cross-Appellant.

Appellee &

Nos.

Supreme Court of Alaska.

Feb.

Case Details

Case Name: Copelin v. State

Court Name: Alaska Supreme Court

Date Published: Feb 18, 1983

Citation: 659 P.2d 1206

Docket Number: 5453, 5708

Court Abbreviation: Alaska