Zehrung v. State
573 P.2d 858
Alaska
1978
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Timothy ZEHRUNG, Appellant, v. STATE of Alaska, Appellee.

No. 2823.

Supreme Court of Alaska.

Jan. 27, 1978.

OPINION ON REHEARING Jan. 27, 1978.

573 P.2d 858

of life, however, and particularly in an offense involving driving while under the influence of alcohol, major considerations are the goals of deterrence of other members of the community and community condemnation of the offender and the offense so as to reaffirm societal norms and to maintain respect for those norms.5

In

we affirmed a sentence of ten years with five suspended for the crime of manslaughter where the defendant, while intoxicated, drove at excessive speed and to the left of the centerline, killing the driver of a motorcycle. On similar facts, we affirmed a sentence of eight years in
,
, saying:

Recent statistics indicate that thousands of innocent people are killed or seriously injured nationwide each year by automobile drivers who take to the road in spite of the fact that they are highly intoxicated. Unlike many crimes, the victim has no way of protecting himself. While vehicular homicide does not require a criminal intent, the fact that a loss of life is involved compels us to consider it among the most serious offenses. The unique nature of the offense mandates that the trial court, in fashioning a sentence, place heavy emphasis on societal condemnation of the conduct and the need to protect society.6

See also

.

Our review of the record fails to persuade us that the superior court was clearly mistaken. Such being the case, we must affirm that court‘s judgment.

;
.7

AFFIRMED.

Sue Ellen Tatter, Barbara J. Miracle, Asst. Public Defenders, and Brian Shortell, Public Defender, Anchorage, for appellant.

Glen C. Anderson and Ivan Lawner, Asst. Dist. Attys., Anchorage, Dean J. Guaneli, Asst. Atty. Gen., Daniel W. Hickey, Deputy Atty. Gen., and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION ON REHEARING

Before BOOCHEVER, C. J., RABINOWITZ, CONNOR and BURKE, JJ., and DIMOND, J. Pro Tem.

PER CURIAM.

In our principal decision in this case, we held that one who is arrested and brought to jail for a minor offense for which bail has already been set in a bail schedule should be given a reasonable opportunity to post bail before being booked and searched.1 In its petition for rehearing, the state contends that this holding is overly broad and should be narrowed.2 Specifically, the state alleges that, while that holding may be feasible for large institutions such as in Anchorage, Juneau and Fairbanks, which have adequate holding cells in an unsecured area of the facility, the smaller state institutions have no such holding capacity. The state contends that in the smaller jails, it may be necessary to hold prisoners in the security area along with all other prisoners, presenting a problem of introduction of contraband substances. In some communities, it is alleged that as a result of the opinion, a single patrolman would be required to watch the prisoner, rather than returning to his duties, while awaiting someone to come to the jail to post bail; or the prisoner would have to be placed in a cell with other prisoners.

It may well be that exigencies may arise warranting a more thorough search for contraband under unusual circumstances. It is impossible to rule on the myriad of conceivable circumstances. The rule set forth in our original opinion in

should normally be followed unless exigencies demand a different course of action. Whether circumstances justify a variance will depend on the particular facts involved and must be determined in an adversary proceeding3 on a case-by-case basis.

Our opinion is modified to the extent indicated herein.4

MATTHEWS, J., not participating.

BURKE, Justice, dissenting.

I respectfully dissent. In my opinion our original holding in this case was overly broad. Specifically, I now disagree with the view that one in the position of Zehrung “should be allowed a reasonable opportunity to attempt to raise bail before being subjected to the remand and booking procedures and the incident inventory search.”

.1

While I still adhere to the basic holding, that when the accused in such cases is able to post the required bail he should be released, and that beyond that point there is no justification for an inventory search,2 I think it is unreasonable to require jail personnel to delay the ordinary booking process, and incident inventory search, in order to allow the prisoner time to “get in touch with a relative, an employer, a friend, or an attorney, who could come to the stationhouse” to post bail.

Thus, I would modify the opinion in this case and hold as follows:

  1. Where the prisoner is able to post the required bail he should be immediately released; provided, however, that detention for such additional time as may be reasonably necessary to allow him to be fingerprinted and photographed would be allowed.3
  2. If the prisoner is not able to post bail the ordinary booking process and remand should proceed without delay.
  3. If during that process, or thereafter, the defendant becomes able to post the required bail he should be immediately released, subject to the limitation expressed in paragraph 1.

Notes

1
Our original opinion authorized a search for weapons and evidence of the particular crime for which the person was arrested. This holding, of course, is specifically limited to cases where the accused is arrested for a petty offense, for which bail has been set by the adoption of a bail schedule.
2
In oral argument on the petition, the state‘s attorney said that the state did not criticize the basic holdings of the court. The right to conduct an “inventory” search should not be confused with the right to search for weapons. Under our first opinion I think it is clear that jail personnel are entitled to make an immediate and thorough search for weapons, or any item that could be used as a weapon, whenever a prisoner is delivered into their custody. See
. On that issue I have no quarrel with the majority. I would note, however, that a search for weapons, if it is to serve its purpose, cannot be limited to a search for large items such as a knife or a gun. A razor blade can be an equally dangerous weapon when held at the throat of a hostage.
3
Counsel for Zehrung indicated that he has no interest in whether the Zehrung rule is restricted under varying situations. Accordingly, a remand would not only involve hypothetical situations but would be nonadversary. The majority did not pass on the latter issue. My own view is that we should. As I stated at the time of our original decision:
I . . . believe that there can be some limitation on the right to ‘immediate release’ after posting bail. Specifically, I would hold that detention for such time as may be reasonably necessary to allow the authorities to fingerprint and photograph the accused is allowable. Otherwise, there may be no record from which his identity can later be determined with certainty.
(concurring opinion).
4
The right to fingerprint and photograph a prisoner was not raised in either the original appeal or the petition for rehearing. We therefore do not pass on those issues.
5
554 P.2d at 455 [footnote omitted].
6
549 P.2d at 1184.
7
By this opinion, we are not implying that a judge may not give more weight to rehabilitation. We cannot see, however, that in this instance, the trial court was clearly mistaken in its balancing of the interests involved.