MEMORANDUM OPINION
Star page 1*1 Barbara Bergitt Rascon was convicted, after a jury trial, of felony operating under the influence and felony refusal to submit to a chemical test.1 After the jury returned guilty verdicts in the first phase of her bifurcated trial, Rascon waived her right to a jury on the second phase and stipulated that she had two prior qualifying convictions.2 Rascon now appeals both convictions, raising four claims.
Rascon first argues that the superior court erroneously denied her motion to suppress evidence after her statutory right to contact an attorney was violated because the arresting officers did not allow Rascon to immediately call an attorney when she requested to do so after being asked to provide a breath sample. Second, Rascon argues that the prosecutor did not lay a sufficient foundation establishing the chain of custody for her blood sample (which was obtained after she refused to provide a breath sample) and that the court accordingly erred in admitting the blood test result. Third, Rascon argues there was insufficient evidence to establish that she operated the vehicle. Lastly, Rascon argues that the court erred in accepting her waiver of her right to a jury trial on the element of whether she had two or more qualifying prior offenses.
For the reasons explained in this decision, we affirm the judgment of the superior court.
Background facts
In May 2022, a Walmart security guard heard a vehicle repeatedly honking, and he located the vehicle in the first row of the store's parking lot. The security guard then watched a woman — later identified as Rascon — step out of the driver's door of the vehicle, remove her pants, urinate, and return to the driver's seat. Based on this behavior, the security guard believed that Rascon was intoxicated. When the guard saw the vehicle's lights come on, he became concerned that Rascon was about to drive off. He then called 911 to report his concerns.
Police officers responded to the scene and found Rascon in the driver's seat of a vehicle with the engine running. The officers noted that Rascon had bloodshot, watery eyes, difficulty maintaining her balance, and slurred speech. She also smelled of alcohol. The officers ultimately arrested her for operating under the influence and took her to jail to conduct standard breath alcohol testing using a DataMaster.
At the jail, the officers first conducted a fifteen-minute observation period. Near the end of the observation period, they started the DataMaster's self-check sequence and informed Rascon that she would be asked to provide a breath sample after the checks were complete.
Star page 2*2 After the fifteen-minute observation period, the officers asked Rascon to provide a breath sample by blowing into a tube on the DataMaster. But Rascon did not blow into the tube; she instead told the officers that a rib injury prevented her from being able to do so.
Officers then read Rascon the implied consent warning, informing her that she would be charged with refusal to submit to a chemical test if she did not provide a breath sample. After this, the officers reinitiated the DataMaster's self-check sequence and informed Rascon that she would be asked to provide a breath sample when it was done.
Approximately three minutes later (i.e., twenty-two minutes after the observation period began and twenty-five minutes into processing as a whole), officers again asked Rascon to provide a breath sample by blowing into the tube. In response, Rascon asked, “Can I have a ... lawyer?” The officer replied, “You can have one, yeah, but I still need you to provide a breath sample, okay? You are legally ... required to provide a breath sample.” The officer then urged Rascon to blow into the tube, informing her that if she did not, the next step would be seeking a warrant for a blood sample.
Rascon again did not blow into the tube, and the DataMaster timed out without Rascon providing a sample. After this, Rascon continued to decline to blow into the tube, leading officers to seek a search warrant for a sample of her blood.
While officers were securing the warrant, Rascon asked to make a phone call to her boyfriend. The officers immediately allowed this. They placed the call for Rascon, and after she provided an incorrect phone number for her boyfriend, they placed a second call for her. Rascon spoke with her boyfriend on speaker phone for approximately thirteen minutes. During this conversation, Rascon stated that her key had been in the vehicle.
The officers eventually obtained and executed a search warrant for Rascon's blood. Later chemical testing showed that Rascon had a blood alcohol content of .224 grams of alcohol per 100 milliliters of blood at the time of the blood draw. Rascon was charged with felony operating under the influence and felony refusal to submit to a chemical test.
Relevant proceedings
Prior to trial, Rascon moved to suppress all evidence collected by the State after she asked to call an attorney, claiming that the officers violated her statutory right to immediately contact a lawyer after her arrest. The superior court denied this motion, ruling that Rascon's request to immediately contact a lawyer was unreasonable. The superior court based this ruling on its findings that Rascon did not request a lawyer during the roughly twenty-five minutes preceding the breath test (when a request would not have interfered with the testing procedures), and that her request occurred while the officers were actively trying to administer a breath test, meaning that allowing her to call a lawyer would have interfered with the testing process.
The case proceeded to trial. At trial, the State presented testimony from the Walmart security guard, who testified about Rascon's actions in the parking lot and why he called 911. The State also presented testimony from the responding officers, including the officer who executed the search warrant for Rascon's blood. This officer testified about Rascon's conduct during the breath testing procedures, the search warrant obtained to collect a sample of Rascon's blood, and the general procedure of sending blood samples to the Alaska Scientific Crime Detection Laboratory (crime lab) for testing.
Star page 3*3 A forensic scientist for the crime lab testified about the testing performed on Rascon's blood sample. When the scientist was asked how she knew that the blood she tested was Rascon's, the scientist explained the various processes in place at the crime lab that are used for tracking items received by the laboratory. The scientist described the use of multiple, redundant forms of identification to ensure that the analysts could be confident that the items they were testing were what they were purported to be.
Rascon objected to the admission of the scientist's laboratory report.3 Rascon argued that no foundation had been laid showing how the blood sample got from her to the crime lab. The court conditionally admitted the report but asked the parties to submit written briefing on the question.
The State then introduced the laboratory report, which stated that the blood sample was “collected from Barbara Rascon” and contained blood with an alcohol content of .224 grams of alcohol per 100 milliliters of blood. The scientist testified that the blood sample had been identified as belonging to Rascon by a label affixed to that sample container stating that the sample was collected from “Barbara Rascon” at a specified date and time.
Rascon objected orally and subsequently provided a written objection, arguing that the evidence was inadmissible under Alaska Evidence Rule 901 because the State had not presented sufficient evidence that Rascon's blood sample was the sample that the forensic scientist had tested. She also argued that the State had not established that the blood sample had not been tampered with.4
The court overruled this objection, finding that there was sufficient evidence to meet Evidence Rule 901’s requirements.
At the close of the State's evidence, Rascon moved for a judgment of acquittal on both counts, arguing that insufficient evidence had been presented to establish that she was “operating” her vehicle, that the blood sample was not sufficiently reliable to prove intoxication, and that the State had not proven her refusal charge beyond a reasonable doubt. The superior court denied this motion.
Rascon then testified in her own defense. Rascon stated that her sister was driving both of them around in Rascon's vehicle, that they went to Walmart together, and that her sister left Rascon and the vehicle in the Walmart parking lot after they had an argument. According to Rascon, she decided to wait in the vehicle for her boyfriend to pick her up. On cross-examination, Rascon stated — contrary to what she said during processing — that she did not think that the key was in the vehicle during this time.
Star page 4*4 While the jury was deliberating after the first phase of trial, the court asked Rascon if she planned to stipulate to her prior convictions for the second phase of trial if she was found guilty. The court informed Rascon that she had a constitutional right to trial by jury on all elements of the alleged offense, including the right to have a jury determine whether she had previously been convicted of qualifying offenses. Then the court described what the second phase of the jury trial would entail, including referring to the first phase of Rascon's own trial that she had just witnessed. Rascon asked for time to consider her options, and the court recessed so Rascon could consult with her attorney.
After the jury returned guilty verdicts for the first phase, the superior court again addressed Rascon about whether she intended to exercise her right to have a jury determine whether she had previously been convicted of qualifying offenses. At the request of Rascon's counsel, the court again gave Rascon time to consult with her attorney on this issue. After another recess, Rascon informed the court that she intended to waive her right to a jury trial and stipulate to her prior convictions.
The court then engaged in a colloquy with Rascon to ensure that her waiver was knowing, intelligent, and voluntary. This colloquy included reviewing the right to a jury trial by referencing aspects of the trial Rascon had just been through, such as requiring the State to present evidence, conducting cross examination, having the right to present her own witnesses and evidence, and having the right to testify, if she desired. The court also confirmed that Rascon's judgment was not affected by alcohol, drugs, medication, lack of sleep, stress, or anything else, and that she was clear-headed. After confirming there were no external forces influencing Rascon's stipulation, the court accepted the stipulation and found it was freely and voluntarily given. The court nevertheless asked the State to present certified copies of the judgments from Rascon's prior convictions. After the State did so, the court found that there was a basis to support Rascon's stipulation. The court entered a judgment convicting Rascon of felony operating under the influence and felony refusal to submit to a chemical test.
The superior court did not erroneously admit evidence collected after Rascon's arrest because her right to contact an attorney was not violated
Rascon first argues that the superior court erred in denying her motion to suppress evidence collected after her arrest. This motion alleged that the arresting officers violated her right to contact an attorney under AS 12.25.150(b), Alaska Criminal Rule 5(b), and Copelin v. State.5
Under AS 12.25.150(b) and Rule 5(b), every arrestee has the right to immediately telephone or otherwise communicate with an attorney. In Copelin, the Alaska Supreme Court held that, in the context of arrests for driving under the influence, AS 12.25.150(b) and Rule 5(b) require that an arrestee be afforded a reasonable opportunity to communicate with an attorney before being required to decide whether or not to submit to a breath test.6 Thus, “[w]here the important chemical testing procedures are not unreasonably delayed, the driver should, upon request, have the benefit of the advice of [their] own counsel, with whom [they have] a statutory right to communicate.”7
Copelin also held that the right to contact an attorney after arrest “is not an absolute one ..., but, rather, a limited one of reasonable time and opportunity” and that this right cannot be used to “interfere[ ] with the ‘prompt and purposeful investigation’ of the case,” including testing an arrestee's breath to determine their blood alcohol content.8 Determining whether the timing is reasonable depends “on the circumstances of each case, such as the amount of time between the stop and the transportation to the station, when the request is made, and how much time is needed to set up the test.”9
Star page 5*5 Here, Rascon first requested an attorney approximately twenty-two minutes after the beginning of the observation period, after the DataMaster was fully set up and the officers had asked her to provide a breath sample. Rascon nevertheless argues that she was not interrupting an active test when she asked to talk to an attorney. She asserts that, “[f]or active administration [of a breath test] to begin, the arrestee must ... be willing and able to participate.” According to Rascon, the fact that she had not yet decided whether to take the breath test and had neither offered nor attempted to provide a breath sample, meant that the test was not actively being administered.
But defining the active administration of the test as beginning with an arrestee's subjective decision to participate in the breath test — rather than beginning with objective actions taken by law enforcement — is impractical and contrary to Copelin. An arrestee's internal thought process often leaves no external evidence for officers to evaluate in the moment or for courts to later review. Furthermore, allowing an arrestee to determine when the testing procedures begin would make it more likely that the arrestee could use their right to contact counsel as a way to “interfere[ ] with the ‘prompt and purposeful investigation’ of the case.”10
Here, the superior court found that Rascon requested counsel while the officers were actively administering the breath test and that honoring her request would interrupt the testing procedure. These findings are well-supported by the record. Given that Rascon did not ask to call an attorney until after a reasonable time for trying to contact an attorney had expired, we conclude that the officer was not required to immediately honor her request.11 We accordingly affirm the superior court's denial of Rascon's motion to suppress the blood test results on these grounds.
The superior court did not err in concluding there was sufficient foundation to show the blood test results were from Rascon's blood sample
Rascon next argues that the superior court erred in finding that the State laid a sufficient foundation to establish that the blood test results introduced at trial were from testing done on her blood sample. This is essentially an attack on the chain-of-custody and anti-tampering requirements of Alaska Evidence Rule 901.
Under Rule 901(a), the State must demonstrate a “reasonable certainty” that a defendant's blood sample was not substituted, modified, or otherwise tampered with prior to testing. But “Evidence Rule 901 does not require the State to bring forward every witness who had custody of, or contact with, the physical evidence in question, nor does it require the State to affirmatively negate every conceivable possibility of mishandling or tampering.”12 Indeed, “[w]here no evidence indicating otherwise is produced, the presumption of regularity supports the official acts of public officers, and courts presume that they have properly discharged their official duties.”13
Here, the superior court correctly concluded that the State introduced sufficient evidence to satisfy Evidence Rule 901. The State presented testimony from two witnesses (a police officer and a forensic scientist) about how Rascon's blood sample was collected, transported, identified, and tested in accordance with their duties as public officials. The testimony of these witnesses provided a basis for applying the presumption of regularity. As the superior court found, there was no evidence suggesting that the sample was tainted or that there was any irregularity in the handling of the disputed evidence. Thus, although the State could have made a more thorough presentation of this evidence, we agree with the superior court that Evidence Rule 901(a) was satisfied.
Sufficient evidence supported the verdicts
Star page 6*6 Rascon next argues there was insufficient evidence to support the jury's verdicts finding her guilty of operating a motor vehicle while under the influence of alcohol and refusal to submit to a chemical test.14
During trial, Rascon moved for a judgment of acquittal, arguing that there was insufficient evidence that she operated the vehicle. The superior court denied this motion. On appeal, Rascon renews this argument, again challenging the sufficiency of the evidence that she was “operating” a motor vehicle.
Operating a motor vehicle includes “being in actual physical control of a vehicle with its motor running.”15 During Rascon's trial testimony, she admitted that she had been seated in the driver's seat of the vehicle when the officers contacted her, and she did not contest that the vehicle's engine was running. She also testified that, although she had said during the OUI processing that the key was in the vehicle, she was no longer “sure” that this was true.
On appeal, Rascon contends that the vehicle used a push-to-start ignition mechanism, so although there was evidence that Rascon was sitting in the driver's seat of the vehicle with the engine running, this did not mean that Rascon had the key or could drive the vehicle.
When we review a claim that the evidence presented at a criminal trial is insufficient to support the defendant's conviction, we view the evidence, and all reasonable inferences to be drawn from that evidence, in the light most favorable to upholding the verdict.16 The evidence is sufficient when, viewed in this manner, it is “adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to [the defendant's] guilt.”17 Here, the uncontested evidence showed that Rascon was seated in the driver's seat with the engine running. Furthermore, the evidence included an audio recording of Rascon saying that the key was in the vehicle.
We accordingly affirm the superior court's denial of Rascon's motion to dismiss for insufficient evidence.
The superior court did not err in accepting Rascon's waiver of her right to a jury trial
Rascon finally argues that her convictions must be reversed because the superior court's inquiry into her waiver of her right to a jury trial on the question of whether she had two or more qualifying prior convictions was deficient.
A defendant can waive their right to a jury trial on an element via a personal waiver that is knowing, intelligent, and voluntary.18 A trial court has a duty to personally inquire with a defendant who seeks to waive their right to a jury trial on an element to ensure that their waiver is knowing, intelligent, and voluntary.19
Rascon argues there were three deficiencies in the superior court's inquiry: (1) the court did not distinguish between Rascon's waiver of her right to a jury trial and her stipulation to the existence of the prior convictions; (2) the court's colloquy failed to inform Rascon that the right to a jury trial requires a unanimous decision beyond a reasonable doubt; and (3) the court did not explicitly find that Rascon's waiver was “knowing and intelligent.” We disagree.
Star page 7*7 First, while the court's acceptance of Rascon's waiver of her right to a jury trial on one element and her stipulation that the element was met at the same time was not the best practice, any error was harmless. Rascon does not dispute that she has two prior qualifying convictions and the superior court was actually shown certified copies of Rascon's prior convictions despite her stipulation and waiver. As a result, any error was harmless.20
Second, the superior court's failure to explicitly inform Rascon about the “unanimity” and “beyond a reasonable doubt” requirements in jury trials did not render Rascon's waiver unknowing. The purpose of the superior court's inquiry was to ensure that Rascon “was provided with enough information to ensure that [s]he knowingly waived h[er] right to a jury trial.”21 This standard was met even without the court explicitly telling Rascon about the unanimity requirement and the beyond a reasonable doubt standard, especially since Rascon had just participated in a full jury trial on the question of whether she was guilty of operating under the influence and refusal.
Finally, the superior court did not err in failing to make explicit findings that Rascon's waiver was knowing and intelligent. Taken as a whole, the superior court's colloquy with Rascon shows that the court applied the correct test and that Rascon's waiver was knowing, intelligent, and voluntary.
Accordingly, we find no error in the superior court's acceptance of Rascon's waiver of her right to a jury trial and stipulation to her prior convictions.
Conclusion
The judgment of the superior court is AFFIRMED.