Zsupnik v. State

agent may prop- transfer such The escrow ZSUPNIK, Petitioner, providing peace officer with

erty by Nani substituting acknowledgment written place judg- judgment creditor in the Alaska, Respondent. STATE of obligors purposes ment debtor-escrow account obli- payments of future No. S-3360. gees.14 Supreme Court Alaska.

IV. CONCLUSIONS. April Anchorage The First National Bank of possessed property judgment debt- describing levy

ors at the time of a writ property

such was made. Per AS 09.35.- 09.35.070, 09.40.040 and Civil 89(l )(5),15

Rule the bank should have trans- judgment

ferred the debtors’ interest peace

named escrow accounts to the officer

executing the writ. The bank is now liable promissory

for the value of both the note deposits placed in accounts any levied served, in an amount not writ

exceeding portion the still unsatisfied remand, judgment. On von Gemmin- discovery

gen shall be accorded of the con- accounts, deposits

tents of the levied made levy,

to those accounts since the date of the in the levied Finstad’s interests

accounts at the time the writ of execution

was served.16

REVERSED and REMANDED for

proceedings opinion. consistent this

MATTHEWS, C.J., participating. not any property of defendant liable to at- the writ. Id. P.2d at 402. The Weir court had beyond rely upon the amount admitted in his had been tachment did not the fact that writs statement, any purchaser assign- amount if a statement is or in served on the land and seller’s furnished, judgment may be entered well. ee as against garnishee for the value of such Gemmingen may judg- 14. von choose to sell money. property ment, At time before property at auction. AS 09.35.150. garnishee may discharged transferring liability by delivering, paying or 89(1)(5) provides: 15. Civil Rule property peace officer. Against Judgment If it shall Garnishee. Steenmeyer, supra; garnishee, note 9 see also be found that the at the time of 16. See III-A, notice, 1225, quoted part above. attachment and P.2d at service of the writ of (Nani) Zsupnik was arrested for DWI in arrest, Upon repeatedly she re- Valdez. quested opportunity to contact her Although she intended to ask her uncle. finding an uncle for assistance attor- ney, Zsupnik purpose did not make her police, directly known to the nor did she request opportunity an to contact an at- torney. Zsupnik that she told would not be allowed to call her uncle completed process until she had Zsupnik the Intoximeter test. test, proceeded to take the re- which vealed a score in excess of the limit. Zsupnik, 772 P.2d at 1098. Zsupnik,

Facts from the record show that age separate requests then made four her uncle. All were denied. Zsupnik’s request specific: fourth was she wanted to call her uncle to ask for advice as to “what to do.” trial, Zsupnik suppress Prior to moved to Bixby, William Law Offices of William test, asserting the results of her breath Valdez, Bixby, petitioner. for 12.25.150(b). Zsupnik violation of at Bacon, Gen., Atty. Robert D. Asst. Office superior 1098. The court denied her mo- Sp. Appeals, Prosecutions and Anchor- tion, and the results of test were intro- age, Gen., Douglas Baily, Atty. B. Ju- Zsupnik duced at trial. Id. at 1099. was neau, respondent. convicted. Id. Zsupnik argued appeal both MATTHEWS, C.J., Before 12.20.150(b), plain language of AS as well WITZ, BURKE, RABINO COMPTON and as our decision in MOORE, JJ. (Alaska 1983), denied, P.2d 1206 cert. U.S. 105 S.Ct. 83 L.Ed.2d 357 OPINION (1984), suspects mandate that al DWI attorneys lowed to call either or relatives COMPTON, Justice. being subjected analysis. before to a breath This is a review of the decision of the Zsupnik appeals court of appeals court of rejected Zsupnik’s argument, reasoning: (Alaska App.1989). presents P.2d 1098 It Although provisions the literal 12.- the issue of whether breath test evidence 25.150(b) 5(b) and Alaska Criminal Rule person taken arrested for DWI distinguish attorneys, do not between rel- person should be excluded when has friends, Supreme atives and Court’s request been denied a to contact a relative expressly in Copelin decision limited legal representa- with the intent to obtain to calls made for the of consult- tion before administration the breath deciding with counsel. In to read the test. language of AS and Alaska C 5(b) requiring oppor- Criminal Rule I. FACTUAL AND PROCEDURAL tunity to call counsel administra- before BACKGROUND test, tion of a breath simple dispute. carefully weighed The facts are and not in the state’s interest in The court promptly obtaining summarized them as valuable evidence against follows: the substantial individual interest friend, attorney and any before relative attorney consulting practice entitled to any to a breath at law to submit deciding whether shall, to con- Concluding that the courts of Alaska test. compelling was of relative friends counsel sult with right the circum- overriding significance prisoner, under the to immedi- have stances, required the indi- ately person the visit the arrested. the given priority over right be vidual meaning Zsupnik contends the obtaining prompt test police interest 12.25.150(b) plain. The con is state of AS results. 12.25.150(b)does that AS not differ cedes in- DWI are where arrestees cases its attor on face between calls to entiate relative, calling a friend or a terested in In those or friends. neys and to relatives however, there an rather than stead, argues the that the rationale state in- equally compelling no appears to be support articulated al- away tip terest the balance to immediacy requirement of interpreting the routine lowing police complete to the the 12.25.150(b) pre-test require to commu AS extent except to the process, DWI arrest non-lawyer. a nication with calling a purpose in that the arrestee’s statute, however, unambiguous. is The counsel ... friend is to secure or relative arrest, prisoner “Immediately an a after com- adequately is this [When] telephone other- right have the or shall police, an immediate to the municated any ... relative or communicate with wise [However, call allowed.... must be statute, a interpreting friend....” given by a DWI ar- reason is no when] language. v. court looks first to its Ward friend or request a to contact a restee for (Alaska 1988). n. 5 90 request relative, may defer meaning appears clear “Where a statute’s analysis]. until the breath [after party asserting a unambiguous ... and omitted). (citations Id. 1099 correspondingly a meaning bears different We reverse. contrary demonstrating heavy burden immediacy The re- intent.” Id. legislative II. DISCUSSION 12.25.150(b) example is an quirement AS APPEALS A. THE COURT OP unambiguous statute. a clear and of such THAT IN ERRED DECIDING (“immediate- 1211 P.2d at 659 12.25.150(b) AS ZSUPNIK’S that). im- same just Since this ly” means HAD BEEN VIO- NOT RIGHTS here, the requirement is at issue mediacy LATED. to show that is on the state burden is one before the court a distinction between question legislature The intended non-attorneys. deter interpretation. We thus statutory attorneys and freshly. E.g., mine matter State case, showing can present no such In the (Alaska Patterson, 7 946 n. legislative history of be made. so, 1987). the rule of doing adopt 12.25.150(b) support It does not is clear. light of persuasive in law which is most (b) is intended Subsection the state’s case. Ha, and reason. precedent, policy Guin right “to his prisoner a call both give the (Alaska 1284 n. P.2d 6 591 House lawyer.” and relatives a rights of added). legisla- sets forth Journal preva- arrest:1 prisoners after the then expressly disapproved ture only allowing prisoner practice arrest, prisoner lent Immediately after only attorney. Id. call phone oth- right one shall have history clear its are the statute and prisoner’s Both erwise communicate with 5(b) practice in the courts provides: at law entitled Similarly, R.Crim.P. Alaska Alaska, prisoner or either the at the arrest, prisoner Immediately his the telephone prisoner, shall any friend of relative or right to forthwith shall have the to visit the forthwith have the attor- with both otherwise communicate private. Any ney relative or friends. impair testing. at 1212 so as to breath Id. be drawn be- that distinctions are 14; attorneys. P.2d to relatives and n. Blue v. tween calls cf. 1977)(the is the state to burden argues that nonetheless The state an unrea- show that an accused demanded underlying solely rationale thereby time and inter- sonable amount of to have access to permit an arrestee “prompt purposeful in- fered with informed deci- in order to make an advice case). vestigation” of the the breath test sion between conviction, running the risk of a DWI underlying Copelin thus The rationale refusing suffering numerous the test interpreted not as the court of it. Copelin, 659 P.2d at legal penalties. See “balancing employed to A test” was not argues that 1213 n. 17. The state further right pre-test phone to a call from create Zsupnik’s uncle could have only thing simply applied plain We and whole cloth. give support her moral and done was to unambiguous statute which created the bail, ought make which it contends help her held, right. then consistent with our We until after the breath test. to wait statutes, applying unambiguous method of argument ignores the obvious state’s both appeared policy that no sufficient reason to Copelin. and misunderstands place meaning language. a strained on its unanimously held that Copelin, we “Immediately” at 1210-11. means Copelin 12.25.150(b) purpose “one intended of AS is just immediately. Similarly, that — opportunity provide to an arrestee with the “immediately “right” of a ... legal Copelin, to obtain advice.” 659 P.2d telephone ... friend or relative” needs noted, however, that this at 1211. We also interpretation. balancing No is re- no purpose. is not the sole Id. at 1210-11. quired, appropriate.2 purpose, Copelin alluded to in and Another re-examination, conclude that Upon fully more in Eben v. 599 discussed policy depart reason to there is no sound (Alaska 1979), right P.2d 700 is “the plain unambiguous language from the contact an relative or friend for 12.25.150(b). Talking a friend or of AS arranging bail time” will relative within this “reasonable Eben, representation.” 599 P.2d at 710 n. dissipate any than talk- more evidence added). (emphasis 27 We believe the stat- same “rea- to an within this serve, others, among intended to ute is time.” the state notes in its sonable As goal preventing suspects broad brief, being legislative held “a conversation cannot af- incommunicado. supports proposition. history of the air in the fect the alcohol content lungs.” At the end of a “rea- defendant’s requires 7 AAC 30.020 that the arres- § time,” police may insist that sonable opera- tee be observed the Intoximeter proceed, regardless test of who the breath immediately tor for at least 20 minutes Copelin at the arrestee wants to talk to. prior testing to assure that the arrestee 1212. Reasonableness varies with the regurgitate place anything in- case, each such as the amount of facts of might invalidate the side his mouth which stop transporta- time between the being breath test result. While “mindful station, when the tion to important obtaining of the state interest in made, much time is needed to set and how evidence,” we reasoned that no ad- reliable up the test device. Id. To restate the delay by allowing ditional is incurred obvious, however, necessarily give this will phone during arrestee to make a call at least the 20 minute manda- Copelin time. makes arrestee right tory delay period no after arrival at the sta- clear that the arrestee has 1211 n. is no unreasonably delay contacting someone tion. id. at 13. The state rule, recognize right."). led See also 2. We reaffirmed this rationale as the basis for us Dep't Safety, (“We v. emphasize Whisenhunt Public the fact that the id. at 1299 n. 5 (Matthews, 1987) J.) 746 P.2d ("Our right recognized statutory right, is a fairly, concern that the accused be treated 1206.") added). at together language with the of the statute and the propriety rela- of the exclu if calls a Since the arrestee prejudiced more sionary rule in breath test cases has been attorney during the 20 tive instead of unanimously re twice extended period. minute Dep’t Public Whisenhunt affirmed. tele- was denied (Alaska 1987) (Mat Safety, period 20 minute phone during the access J.) thews, (unanimous excluding decision A reason- her arrival the station. a civil breathalyzer results in license elapsed.3 Zsup- have able time could not 12.25.150(b) hearing for an AS revocation 12.25.150(b) have under AS rights nik’s violation); P.2d Ward violated. therefore been (Alaska 1988) (Rabinowitz, J.) (police refus get a

al to allow the arrestee to second testing of breath under AS 28.35.- his REMEDY B. THE APPROPRIATE 033(e)). Ward, we reasoned that “the ZSUP- THE VIOLATION OF FOR breathalyzer provides time re test ... IS NIK’S AS RIGHTS flection before action and ... consists of THE BREATH EXCLUSION OF police to intentional efforts obtain RESULTS. TEST evidence,” “application therefore remedy for viola- It is settled that the deter exclusionary rule will serve to future 12.25.150(b) purposes for relat- tions of AS Id., quoting Cope police illegal conduct.” of process is exclusion ed to the defense lin at 1214. Copelin at 1214-15. tainted evidence.4 contends, for the first time at state urges us to reconsider state argument, of ex application oral that the provid- that the criminal sanctions hold clusionary to this would not serve rule case 12.25.150(c)5 in in all ed are exclusive AS misconduct, police because to deter future so. cases. We decline to do have in reliance on the police may the acted that the refusal reasoned decision Van Wormer in appeals court of inis of a call after the arrestee (Alaska App. 898 custody an intentional at a station involves Wormer, ap Van of can act situation where an officer a adopted “totality of the circum peals a taking calmly before it. reflect his action determining to whether approach stances” Copelin at 1214-15.6 also Prideaux opportunity” to prisoner “requested an a Safety, Wormer, Dep’t Public Minn. State P.2d Van attorney. an call of (using opinion emphasized sim- that it is 247 N.W.2d 898. Its exclusionary totality of the arrestee’s applying “only ilar rationale and where im- statute). request, express or a rule to of a similar words constitute violations and, misdemeanor, upon vary con- is a will this section viction, 3. What constitutes a reasonable time case, by punishable of is a fine facts of each case. a DWI offender however, $100, by imprisonment must 20 min- for because the state wait than not more law, per days, by is se utes as a matter of time both. not more than 30 what We do not reach the issue of reasonable. on the notion alleged dissent in centered criminal 6. The is a reasonable time for other it made clear to that for the first time violations. 12.25.150(b) police violation of AS J., (Compton, illegal. Copelin Zsupnik’s pur- at 1217 dissent the state concedes Because 4. suggestions, seeking ing). Contrary pose a to the state’s her uncle was to obtain call 12.25.150(b) lawyer, AS the issue of whether contend that we need not reach dissent did not purposes by calls the refusal of an arrestee for not of sufficient moment violations were obtaining exclusionary re- assistance rule. application other than of the merit quires evidence. argued the exclusion of that the court should Rather the dissent provision of whether the criminal wait see 12.25.150(c) provides possibility 12.25.150(c) provide AS for the deter would sufficient against sanctions for violations of subsection Id. criminal rence future violations. (b) rights: Application rule was thought "premature.” Id. at 1217. then be (c) shall be unlawful for an officer It hav-_ so, viola that should wilfully Even the dissent cautioned person custody of a so arrested to continue, 12.25.150(b) the exclusion neglect grant tions of AS refuse rights appropriate. Id. ary be provided rule would this section. A violation plied, opportunity for to contact counsel it mention. brief The state contends that purpose discussing breathalyz- 12.25.150(b) a for the ambiguous is as to what opportunity to er examination that an con- “arrest,” urges constitutes an us to provided....” sult counsel must be Id. hold complete that DWI arrest is not for The court of then held that a state- purposes of AS until after the to the effect that he ment the arrestee given. breath test is This contention is present” at “wished to have someone frivolous, since the state conceded in its administration the breath test was not a of facts that was under statement request attorney. sufficient Id. arrest when she arrived at the station. agree “totality that a While we Moreover, necessarily rejected it was appropriate circumstances” test is for de- deciding Copelin. Lastly, this contention request speak termining whether a 12.25.160, overlooks AS which ar- defines made, someone is to the extent that Van rest as follows: “Arrest of a suggests that the must Wormer person custody into per- order that the specifically for an it is incon- may son be held to answer for the commis- today and is over- sistent with our decision sion of a crime.” approach ruled. The of Van Wormer Plainly, Zsupnik custody was in to an places high sophisti- premium too on the swer for the commission of a crime when cation of the arrestee: the arrestee retains police she arrived at the station for the statutory rights only if she is able being given a breath test. proper intone the incantation for as- Copelin v. sistance. (on App.1984) Copelin); remand from Goss While reliance on Van Wormer is State, 220, (Alaska 1964); v. 390 P.2d plausible, ap we nonetheless conclude that (court Ward at 88 assumes that a DWI plication exclusionary appro of the rule is suspect taken to the station and detained First, priate. reliance on Van is a Wormer waiting period for the 20 minute is under lean, slender reed on which to due to its arrest). generally Howard v. Copelin proge inconsistencies with and its 603, (Alaska App.1983). 664 P.2d 607-11 ny, clarity as well as with the stark of AS Compare v. Municipality Greenawalt 12.25.150(b). Second, the conduct of the (Alaska Anchorage, App.1985) 692 P.2d 983 police probably justify here would relief (court, arrested, finding suspect yet not even under ap Van Wormer 's limited suspect opted stressed that take a blood proach. Zsupnik separate made four re sobriety test at the scene going instead access, quests phone for and on the last done). to the having station house and it attempt sought made clear that she advice Third, as to “what to do.” the number of The state also contends that under Zsupnik’s requests times im were refused ever, Copelin rarely, if able Fourth, plies intentional conduct. our com to advise a client of reasons not to take applying mitment to exclusionary rule running breath test without afoul of DR beyond DWI cases has been extended 7-102(A)(7)of the Code of Professional Re itself, Copelin see, Ward, e.g., putting thus sponsibility. urges The state then us to police they on notice that should tread Copelin reconsider it is because “based on carefully under such circumstances. While lawyer a defendant’s to ask a wheth degree police of caution with which the er or not he should commit a criminal of ought proceed dispute was when fense,” Copelin decided, creating problems ethical for attor fairly it cannot be neys. disputable Fifth, argument said to be This lacks merit. now. there is no evidence that the here relied on recog- The Alaska Bar Association has Van Wormer. nized that the “Catch-22” of 28.35.- 032(f)7 urging us to overrule does not create inevitable ethical progeny, problems its two other attorneys advising contentions mer- for DWI ar- 28.35.032(f) 7. AS it a makes class A misdemean- or to refuse to submit to a breath test. exclusionary remedy Opinion expressly is not Alaska Bar Ass’n Ethics restees. statute, provided compelled for nor is it (Opinion). 84-1 by legislative history.1 judicially It is a 7-102(A)(7) provides: repre- “In his DR remedy created first announced client, lawyer a shall not ... sentation of a (Alaska 1983). v. his client in conduct that counsel or assist Copelin, applied “Sundberg we lawyer illegal or fraudu- knows analysis”, Id. at which is a method argument is based on lent.” state’s determining apply “judi- whether to premise lawyer that a is too often cially exclusionary in the created rule” ab- tempted by Copelin pre-test phone call legislative sence of a directive. See State client to a misdemean- to advise his commit Sundberg, 50-51 test, thereby take a or rather than breath 7-102(A)(7). violating DR There is perhaps judicially exclusionary A created rule nothing improper explaining the al- about necessarily apply to all violations (take the test or risk ternatives breath underlying right. of the See United States 28.35.032(f)) prosecution under to a Leon, 897, 906, 468 U.S. 104 S.Ct. allowing her to make an in- client and 3412, 82 L.Ed.2d 677 [whether requires that cit- formed decision. “Justice exclusionary ap- Fourth Amendment rule concerning izens be entitled to advice plies separate ques- “is ‘an issue from the conduct, well as legality prospective rights tion whether the Fourth Amendment prospective consequences of alternative Instead, party ... were violated.’ ”] Opinion at courses of action.” appro- whether the sanction is Additionally, recognized in Copelin priate given in a case is “resolved comply decision as to whether to “the depriv- weighing the costs and benefits” of arresting with an officer's to take state of relevant evidence. Id. at simple Clearly, test is not a one. breath 906-07, 104 at 3411-12. S.Ct. attorney’s stage advice at this would we identified two benefits help- only lawful, be ethical and but by suppression of evidence where obtained added). ful.” at 1213 pre-test phone is denied a the defendant (1) attorney: deterrence of fu- call to his III. CONCLUSION conduct; preven- illegal police and ture with the defen- tion of state interference judgment appeals The of the court of at trial. ability present dant’s a defense with directions to REVERSED REMAND 1214-15. These benefits were 659 P.2d at proceed- the case to the district court for in outweigh the state’s interest held to ings opinion. consistent with this evidence, long so as the obtaining relevant did not unreason- attempted communication MATTHEWS, Justice, with Chief whom police investigation. ably interfere with WITZ, Justice, joins, dissenting. RABINO interference, being such ex- Id. There no appropriate. found to be Id. clusion was agree I that was denied right under 12.25.- access out, points today’s opinion the first As 150(b). unambiguously pro- That statute (deterrence) regard objective is advanced persons right vides arrested with the person who the arres- less of whether the communicate relative or with attorney. is an tee desires to contact How arrest, “immediately” making friend ever, objective (prevention of the second attorneys decisions), no distinction and non- between interference with defense is ad However, all, attorneys. agree vanced, minimally per I do not if the only if at lawyer appropri- exclusion of the breath test is an contacted is not a son to be does remedy. subject ate of the desired conversation require expressly provides exclusion of evidence obtained 1. The statute for criminal remedies, 12.25.150(c) (d), of a violation. and civil but as a result Supreme Court s decision m obtaining legal advice.2 United States relate to not Arizona, 477, 101 Edwards v. 451 U.S. of the second inapplicability Given (1981). 1880, 68 L.Ed.2d 378 Ed S.Ct. appeals reasoned that purpose, the court of wards, the court held that under the feder obtaining highly in rele the state’s interest constitution, interrogation custodial al was, balance, of more vant evidence the defendant must cease when defen weight, therefore that AS and concluded expresses to contact counsel. dant a desire Zsupnik v. was not violated. 484-85, at 1884-85. There Id. at 101 S.Ct. 1098, App. fore, Edwards, denial of the defen under struck agree I with the balance request for contact with counsel re dant’s only appeals and take issue subsequent statements sults in exclusion of the fact that the court of police interrogation. obtained further deciding engaged balancing in in whether Id. at 101 S.Ct. than at the the statute was violated rather ques step analysis in next where exclusionary adopted in Copelin rule remedy imposed. shall be tion is what types merely requires exclusion of other tests, evidence, as when the such breath importance to counsel is denied. defendant’s for counsel aspect Copelin should not be underesti in should not be un- Our decision tactical defense mated. the context of novel, potential- as derstood response in decisions which must be made drastic, requiring ly step of exclusion when in-custody investigatory procedures, the contact with a non- the defendant is denied Supreme has stated United States Court important attorney.3 regard, In this it is ‘guiding hand of counsel’ “[t]he [is] 12.25.150(b) applies to all note that AS Illinois, 378 U.S. essential.” Escobedo v. crimes, simply pros- misdemeanor DWI 478, 486, 84 S.Ct. 12 L.Ed.2d Thus, today’s ecutions. decision risks the (1964). cites Our decision of heinous exclusion of reliable evidence quotes length from the Escobedo crimes in situations where there has been Supreme of Pri Minnesota Court case interference with the defen- no serious Department deaux v. Public State ability prepare her defense. dant’s Safety, 310 Minn. 247 N.W.2d 385 (1976), explain importance further conclusion, distinguish I this case making “complicated counsel when deci to be because benefits immediately after arrest. Since sion[s]” gained exclusionary from an rule non-attorneys the assistance of is not of weight, and the type of case are of less importance, similar there is not much to loss in law enforce- risks terms of added gained by imposing For greater. ment effectiveness are much rule this context. I affirm the decision these reasons would appeals. the court of

Moreover, an- extension of the rule non-attorney to the nounced very costly

context could be in terms of

added loss in enforcement. law

only slightly protections that de- extended previously had a result of the

fendants layperson Zsupnik subjectively example, a call intended to contact counsel 2. For to obtain may indirectly assist a defendant through objectively bail mani- uncle. Absent However, presenting counsel, her defense. a non-attor- applica- fested for contact with soundly advising ney typically incapable of tion of the rule is not warranted. may the defendant on immediate matters which Edwards, U.S. at 101 S.Ct. at 1884- Cf. decisions; prove to be critical defense whether continue, (custodial interrogation may to a breath test or obtain alternative to submit responses at a later defendant’s trial, are admissible tests, police interrogation, whether to submit “expressed] unless until the defendant and so forth. only through his desire to deal with the added)). counsel" today's opinion mistakenly attrib- I think that significance utes to the state’s concession that

Case Details

Case Name: Zsupnik v. State

Court Name: Alaska Supreme Court

Date Published: Apr 6, 1990

Citation: 789 P.2d 357

Docket Number: S-3360

Court Abbreviation: Alaska