Zsupnik v. StateZsupnik v. State
- Reporters:
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- Before:
- Matthews
Lead Opinion
OPINION
COMPTON, Justice.This is a review of the decision of the court of appeals in Zsupnik v. State, 772 P.2d 1098 (Alaska App.1989). It presents the issue of whether breath test evidence taken from a person arrested for DWI should be excluded when that person has been denied a request to contact a relative with the intent to obtain legal representation before administration of the breath test.
C
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts are simple and not in dispute. The court of appeals summarized them as follows:
(Nani) Zsupnik was arrested for DWI in Valdez. Upon arrest, she repeatedly requested the opportunity to contact her uncle. Although she intended to ask her uncle for assistance in finding an attorney, Zsupnik did not make her purpose known to the police, nor did she directly request an opportunity to contact an attorney. The police told Zsupnik that she would not be allowed to call her uncle until she had completed the process of taking the Intoximeter test. Zsupnik proceeded to take the test, which revealed a score in excess of the legal limit.
Zsupnik, 772 P.2d at 1098.
Facts from the record show that Zsupnik, then age 21, made four separate requests to telephone her uncle. All were denied. Zsupnik’s fourth request was specific: she wanted to call her uncle to ask for advice as to “what to do.”
Prior to trial, Zsupnik moved to suppress the results of her breath test, asserting a violation of
Zsupnik argued on appeal that both the plain language of
Although the literal provisions of AS 12.-25.150(b) andAlaska Criminal Rule 5(b) do not distinguish between attorneys, relatives and friends, the Supreme Court’s decision in Copelin was expressly limited to calls made for the purpose of consulting with counsel. In deciding to read the language ofAS 12.25.150(b) andAlaska Criminal Rule 5(b) as requiring an opportunity to call counsel before administration of a breath test, the Copelin court carefully weighed the state’s interest in promptly obtaining valuable evidence against the substantial individual interestin consulting with an attorney before deciding whether to submit to a breath test. Concluding that the right to consult with counsel was of compelling and overriding significance under the circumstances, the court required that the individual right be given priority over the police interest in obtaining prompt test results.
In cases where DWI arrestees are interested in calling a friend or a relative, rather than an attorney, however, there appears to be no equally compelling interest to tip the balance away from allowing the police to complete the routine DWI arrest process, except to the extent that the arrestee’s purpose in calling a friend or relative is to secure counsel . . . [When] this purpose is adequately communicated to the police, an immediate call must be allowed.... [However, when] no reason is given by a DWI ar-restee for a request to contact a friend or relative, the police may defer the request until [after the breath analysis].
Id. at 1099 (citations omitted).
We reverse.
II. DISCUSSION
A. THE COURT OP APPEALS ERRED IN DECIDING THAT ZSUPNIK’S AS 12.25.150(b) RIGHTS HAD NOT BEEN VIOLATED.
The question before the court is one of statutory interpretation. We thus determine the matter freshly. E.g., State v. Patterson, 740 P.2d 944, 946 n. 7 (Alaska 1987). In doing so, we adopt the rule of law which is most persuasive in light of precedent, policy and reason. Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).
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.
Zsupnik contends that the meaning of
The statute, however, is unambiguous. “Immediately after an arrest, a prisoner shall have the right to telephone or otherwise communicate with . . . any relative or friend....” In interpreting a statute, this court looks first to its language. Ward v. State, 758 P.2d 87, 90 n. 5 (Alaska 1988). “Where a statute’s meaning appears clear and unambiguous . . . the party asserting a different meaning bears a correspondingly heavy burden of demonstrating contrary legislative intent.” Id. The immediacy requirement of
In the present case, no such showing can be made. The legislative history of
The state nonetheless argues that the rationale underlying Copelin was solely to permit an arrestee to have access to legal advice in order to make an informed decision between taking the breath test and running the risk of a DWI conviction, or refusing the test and suffering numerous legal penalties. See Copelin, 659 P.2d at 1213 n. 17. The state further argues that the only thing Zsupnik’s uncle could have done was to give her moral support and help her make bail, which it contends ought to wait until after the breath test. The state’s argument both ignores the obvious and misunderstands Copelin.
In Copelin, we unanimously held that “one intended purpose of
7 AAC § 30.020 requires that the arres-tee be observed by the Intoximeter operator for at least 20 minutes immediately prior to testing to assure that the arrestee does not regurgitate or place anything inside his mouth which might invalidate the breath test result. While being “mindful of the important state interest in obtaining reliable evidence,” we reasoned that no additional delay is incurred by allowing the arrestee to make a phone call during that time. Copelin at 1211. Copelin makes clear that the arrestee has no right to unreasonably delay in contacting someone so as to impair breath testing. Id. at 1212 n. 14; cf. Blue v. State, 558 P.2d 636, 642 (Alaska 1977) (the burden is on the state to show that an accused demanded an unreasonable amount of time and thereby interfered with the “prompt and purposeful investigation” of the case).
The rationale underlying Copelin is thus not as the court of appeals interpreted it. A “balancing test” was not employed to create a right to a pre-test phone call from whole cloth. We simply applied a plain and unambiguous statute which created the right. We then held, consistent with our method of applying unambiguous statutes, that no sufficient policy reason appeared to place a strained meaning on its language. Copelin at 1210-11. “Immediately” means just that — immediately. Similarly, the “right” of a prisoner to “immediately . . . telephone . . . any friend or relative” needs no interpretation. No balancing is required, or appropriate.2
Upon re-examination, we conclude that there is no sound policy reason to depart from the plain and unambiguous language of
Zsupnik was denied her right to telephone access during the 20 minute period after her arrival at the station. A reasonable time could not have elapsed.3 Zsup-nik’s rights under
B. THE APPROPRIATE REMEDY FOR THE VIOLATION OF ZSUP-NIK’S AS 12.25.150(b) RIGHTS IS EXCLUSION OF THE BREATH TEST RESULTS.
It is settled that the remedy for violations of
In Copelin, we reasoned that the refusal of a telephone call after the arrestee is in custody at a station involves an intentional act in a situation where an officer can calmly reflect on his action before taking it. Copelin at 1214-15.6 See also Prideaux v. State Dep’t of Public Safety, 310 Minn. 405, 247 N.W.2d 385, 395 (1976) (using similar rationale and applying the exclusionary rule to violations of a similar statute).
Since Copelin, the propriety of the exclusionary rule in breath test cases has been twice unanimously extended and reaffirmed. Whisenhunt v. Dep’t of Public Safety, 746 P.2d 1298 (Alaska 1987) (Matthews, J.) (unanimous decision excluding the breathalyzer results in a civil license revocation hearing for an
The state contends, for the first time at oral argument, that application of the exclusionary rule to this case would not serve to deter future police misconduct, because the police may have acted in reliance on the court of appeals decision in Van Wormer v. State, 699 P.2d 895, 898 (Alaska App.1985). In Van Wormer, the court of appeals adopted a “totality of the circumstances” approach to determining whether a prisoner “requested an opportunity” to call an attorney. Van Wormer, 699 P.2d at 898. Its opinion emphasized that it is “only where the totality of the arrestee’s words constitute a request, express or im
While police reliance on Van Wormer is plausible, we nonetheless conclude that application of the exclusionary rule is appropriate. First, reliance on Van Wormer is a slender reed on which to lean, due to its inconsistencies with Copelin and its progeny, as well as with the stark clarity of
In urging us to overrule Copelin and its progeny, two other contentions merit brief mention. The state contends that
Plainly, Zsupnik was in custody to answer for the commission of a crime when she arrived at the police station for the purpose of being given a breath test. Copelin v. State, 676 P.2d 608, 609 (Alaska App.1984) (on remand from Copelin); Goss v. State, 390 P.2d 220, 224 (Alaska 1964); Ward at 88 (court assumes that a DWI suspect taken to the station and detained for the 20 minute waiting period is under arrest). See generally Howard v. State, 664 P.2d 603, 607-11 (Alaska App.1983). Compare Greenawalt v. Municipality of Anchorage, 692 P.2d 983 (Alaska App.1985) (court, in finding suspect not yet arrested, stressed that suspect opted to take a blood sobriety test at the scene instead of going to the station house and having it done).
The state also contends that under Copelin an attorney is rarely, if ever, able to advise a client of reasons not to take the breath test without running afoul of DR 7-102(A)(7) of the Code of Professional Responsibility. The state then urges us to reconsider Copelin because it is “based on a defendant’s right to ask a lawyer whether or not he should commit a criminal offense,” creating ethical problems for attorneys. This argument lacks merit.
The Alaska Bar Association has recognized that the “Catch-22” of AS 28.35.-032(f)7 does not create inevitable ethical problems for attorneys advising DWI ar-
DR 7-102(A)(7) provides: “In his representation of a client, a lawyer shall not . . . counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” The state’s argument is based on the premise that a lawyer is too often tempted by the Copelin pre-test phone call to advise his client to commit a misdemean- or rather than take a breath test, thereby perhaps violating DR 7-102(A)(7). There is nothing improper about explaining the alternatives (take the breath test or risk prosecution under
Additionally, we recognized in Copelin that “the decision as to whether to comply with an arresting officer‘s request to take a breath test is not a simple one. Clearly, an attorney’s advice at this stage would not only be ethical and lawful, but helpful.” Copelin at 1213 (emphasis added).
III. CONCLUSION
The judgment of the court of appeals is REVERSED with directions to REMAND the case to the district court for proceedings consistent with this opinion.
Notes
. Similarly,
Immediately after his arrest, the prisoner shall have the right to forthwith telephone or otherwise communicate with both the attorney and any relative or friends. Any attorney at law entitled to practice in the courts of Alaska, at the request of either the prisoner or any relative or friend of the prisoner, shall have the right forthwith to visit the prisoner in private.
. We reaffirmed this rationale as the basis for Copelin in Whisenhunt v. Dep‘t of Public Safety, 746 P.2d 1298, 1299 (Alaska 1987) (Matthews, J.) (“Our concern that the accused be treated fairly, together with the language of the statute and the rule, led us to recognize that right.“). See also id. at 1299 n. 5 (“We emphasize the fact that the right recognized in Copelin is a statutory right, 659 P.2d at 1206.“) (emphasis added).
. What constitutes a reasonable time will vary with the facts of each case. In a DWI case, however, because the state must wait 20 minutes as a matter of law, this time is per se reasonable. We do not reach the issue of what is a reasonable time for other alleged criminal violations.
. Because the state concedes that Zsupnik’s purpose in seeking to call her uncle was to obtain a lawyer, we need not reach the issue of whether the refusal of calls by an arrestee for purposes other than obtaining attorney assistance requires the exclusion of evidence.
.
(c) It shall be unlawful for an officer hav-_ ing custody of a person so arrested to wilfully refuse or neglect to grant the prisoner the rights provided by this section. A violation of this section is a misdemeanor, and, upon conviction, the offender is punishable by a fine of not more than $100, or by imprisonment for not more than 30 days, or by both.
. The dissent in Copelin centered on the notion that Copelin for the first time made it clear to the police that violation of
.
Dissenting Opinion
with whom RABINO WITZ, Justice, joins, dissenting.
I agree that Zsupnik was denied her right to telephone access under AS 12.25.-150(b). That statute unambiguously provides persons arrested with the right to communicate with an attorney, relative or friend “immediately” after arrest, making no distinction between attorneys and non-attorneys. However, I do not agree that exclusion of the breath test is an appropriate remedy.
The exclusionary remedy is not expressly provided for by statute, nor is it compelled by legislative history.1 It is a judicially created remedy first announced in Copelin v. State, 659 P.2d 1206, 1214 (Alaska 1983). In Copelin, we applied the “Sundberg analysis”, Id. at 1214, which is a method for determining whether to apply a “judicially created exclusionary rule” in the absence of a legislative directive. See State v. Sundberg, 611 P.2d 44, 50-51 (Alaska 1980).
A judicially created exclusionary rule does not necessarily apply to all violations of the underlying right. See United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984) [whether the Fourth Amendment exclusionary rule applies “is ‘an issue separate from the question whether the Fourth Amendment rights of the party . . . were violated.’ ”] Instead, whether the exclusionary sanction is appropriate in a given case is “resolved by weighing the costs and benefits” of depriving the state of relevant evidence. Id. at 906-07, 104 S.Ct. at 3411-12.
In Copelin, we identified two benefits obtained by suppression of evidence where the defendant is denied a pre-test phone call to his attorney: (1) deterrence of future illegal police conduct; and (2) prevention of state interference with the defendant’s ability to present a defense at trial. 659 P.2d at 1214-15. These benefits were held to outweigh the state’s interest in obtaining relevant evidence, so long as the attempted communication did not unreasonably interfere with the police investigation. Id. There being no such interference, exclusion was found to be appropriate. Id.
As today’s opinion points out, the first objective (deterrence) is advanced regardless of whether the person who the arres-tee desires to contact is an attorney. However, the second objective (prevention of interference with defense decisions), is advanced, if at all, only minimally if the person to be contacted is not a lawyer and the subject of the desired conversation does
Given the inapplicability of the second purpose, the court of appeals reasoned that the state’s interest in obtaining highly relevant evidence was, on balance, of more weight, and concluded therefore that
The importance of the right to counsel aspect of Copelin should not be underestimated. In the context of tactical defense decisions which must be made in response to in-custody investigatory procedures, the United States Supreme Court has stated that “[t]he ‘guiding hand of counsel’ [is] essential.” Escobedo v. Illinois, 378 U.S. 478, 486, 84 S.Ct. 1758, 1762, 12 L.Ed.2d 977 (1964). Our decision in Copelin cites Escobedo and quotes at length from the Minnesota Supreme Court case of Prideaux v. State Department of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976), to further explain the importance of counsel when making “complicated decision[s]” immediately after arrest. Since the assistance of non-attorneys is not of similar importance, there is not as much to be gained by imposing the exclusionary rule in this context.
Moreover, extension of the rule announced in Copelin to the non-attorney context could be very costly in terms of added loss in law enforcement. Copelin only slightly extended protections that defendants previously had as a result of the United States Supreme Court s decision m Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In Edwards, the court held that under the federal constitution, custodial interrogation of the defendant must cease when the defendant expresses a desire to contact counsel. Id. at 484-85, 101 S.Ct. at 1884-85. Therefore, under Edwards, denial of the defendant’s request for contact with counsel results in exclusion of subsequent statements obtained by further police interrogation. Id. at 485, 101 S.Ct. at 1885.
The exclusionary rule adopted in Copelin merely requires exclusion of other types of evidence, such as breath tests, when the defendant’s request for counsel is denied. Our decision in Copelin should not be understood as taking the novel, and potentially drastic, step of requiring exclusion when the defendant is denied contact with a non-attorney.3 In this regard, it is important to note that
In conclusion, I distinguish this case from Copelin because the benefits to be gained from an exclusionary rule in this type of case are of less weight, and the risks in terms of added loss in law enforcement effectiveness are much greater. For these reasons I would affirm the decision of the court of appeals.
. The statute expressly provides for criminal and civil remedies,
. For example, a call to a layperson to obtain bail may indirectly assist a defendant in presenting her defense. However, a non-attorney is typically incapable of soundly advising the defendant on immediate matters which may prove to be critical defense decisions; whether to submit to a breath test or obtain alternative tests, whether to submit to police interrogation, and so forth.
. I think that today‘s opinion mistakenly attributes significance to the state’s concession that Zsupnik subjectively intended to contact counsel through her uncle. Absent an objectively manifested request for contact with counsel, application of the exclusionary rule is not warranted. Cf. Edwards, 451 U.S. at 484, 101 S.Ct. at 1884-85 (custodial interrogation may continue, and defendant’s responses are admissible at a later trial, unless and until the defendant “expressed] his desire to deal with the police only through counsel” (emphasis added)).