Begley v. Municipality of Anchorage

711 P.2d 540, 1985 Alas. App. LEXIS 408
CourtCourt of Appeals of Alaska
DecidedDecember 27, 1985
DocketNo. A-434
StatusPublished
Cited by4 cases

This text of 711 P.2d 540 (Begley v. Municipality of Anchorage) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Begley v. Municipality of Anchorage, 711 P.2d 540, 1985 Alas. App. LEXIS 408 (Ala. Ct. App. 1985).

Opinion

OPINION

SINGLETON, Judge.

Catherine Begley was arrested in Anchorage for driving while intoxicated, AMC 9.28.020(a), on December 15, 1983. Her breath was measured on an Intoximeter 3000 breath testing machine; the result was .15. The alcohol in the breath sample analyzed by the Intoximeter was preserved in a tube containing magnesium perchlorate. Begley requested police to send her tube to New England Laboratories of Brat-tleboro, Vermont. A result of .20 was received from New England Laboratories on February 17, 1984.

In April 1984, evidentiary hearings were held in both Anchorage and Fairbanks in separate cases on whether the procedures used by law enforcement agencies in collecting and preserving breath samples by means of the magnesium perchlorate tube (MPT) met the requirements of our decision in Anchorage v. Serrano, 649 P.2d 256 (Alaska App.1982). On April 11, 1984, a three-judge panel in Fairbanks held that the procedures employed there were not yielding samples sufficiently reliable to satisfy Serrano. See State v. Kerr, 712 P.2d 400, (Alaska App., 1985). Accordingly, the panel suppressed the Intoximeter results in all the cases joined for purposes of the suppression motion and evidentiary hearings.

In the Anchorage case, Anchorage v. Ramiro Hernandez, et al., 3ANM 83-4629 Cr., District Court Judge Elaine Andrews also found that there were serious defects in the MPT breath sample preservation system, but the solution she arrived at was not suppression of the Intoximeter result in every case. See Best v. Anchorage, 712 P.2d 892, (Alaska App., 1985). On April 17, 1984, Judge Andrews ruled that the Intoxi-meter result would be suppressed only where the variance between the MPT result and the Intoximeter result was substantial: not within plus or minus 15% of the Intoxi-meter result. In every case under consideration by Judge Andrews, a test of the MPT had been done, and the result was lower than the Intoximeter result.

Begley’s case was set for trial on April 19, 1984. On the day of trial, Begley’s counsel moved to suppress the Intoximeter result on the basis of the findings of Judge Andrews in Anchorage and the three-judge panel in Fairbanks the previous week. Because Begley’s motion was based upon a variance of more than 15% between her Intoximeter result and her MPT result, it [542]*542was necessary that the MPT result from New England Laboratories be admitted into evidence for purposes of the motion. The municipality argued that the laboratory worker who conducted the test of the MPT must be available for cross-examination in order for the result to be admitted, even for purposes of this motion. Beg-ley’s counsel moved for a continuance so that the director of New England Laboratories could be brought to Alaska to testify. District Court Judge John Mason ruled that the result would be admitted for purposes of the motion. On the merits, Judge Mason expressed concern over the fact that Begley had not challenged the municipality’s procedures earlier and yet wanted the benefit of the recently-decided Hernandez case. Because he did not want to continue the case, Judge Mason took the motion under advisement, and required the parties to select a jury.

Later in the day counsel were allowed to argue further on the motion. Defense counsel directed the court’s attention to several findings of fact made by Judge Andrews. Counsel argued that no prejudice should attach to his client’s case simply because the client had chosen to send her sample to an outside laboratory.

Judge Mason eventually concluded that the Intoximeter result need not be suppressed. He based his conclusion on a close reading of Judge Andrews’ findings in the Hernandez case, which he incorporated into the record. Judge Mason pointed out that although the decision states that Intoximeter results will be suppressed where they deviate from retest results by plus or minus 15%, in every case before Judge Andrews, the retest results were lower. This was consistent, according to Judge Mason, with Judge Andrews’ discussion of the particular problems in the collection and measurement of the MPT samples. As Judge Mason read the findings, every potential problem cited by Judge Andrews would tend to make the retest result lower than the true result. Since Begley had offered no evidence to show why the retest from Vermont would be higher, Judge Mason reasoned that suppression in this case would be inconsistent with the logic of the Hernandez decision.

When the motion to suppress was denied, defense counsel again stated that his client would need a continuance in order to secure the presence of the director of New England Laboratories. Judge Mason responded by pointing out that in making his ruling he had assumed that the Vermont laboratory had made no mistake, and that he had no problem with admitting the result for purposes of the motion, although he expressed no opinion on the admissibility of the result for trial.

The next day the court was informed that the parties had stipulated that the motion to suppress was dispositive of the case so that a Cooksey plea could be entered. Cooksey v. State, 524 P.2d 1251 (Alaska 1974). A different attorney for the municipality was present, and she initially expressed some reservations about whether this case was appropriate for a Cooksey plea, but she eventually agreed. Judge Mason specifically stated that the issue of the motion for continuance would be included with the motion to suppress for purposes of the Cooksey plea, and there was no objection to this statement by the assistant municipal attorney. The court went on to find a factual basis for the plea and entered a judgment of no contest.

On appeal, Begley presses the same arguments made before the trial court. The municipality argues (a) that the issue of the motion for continuance was not properly preserved by the plea; (b) that Judge Mason should not have considered the retest result even for purposes of deciding the motion to suppress; and (c) that Begley’s inability to explain the variance was sufficient grounds for denial of her motion.

In Best v. Anchorage, 712 P.2d 892 (Alaska App., 1985), we noted problems with the decision in Hernandez. Vie remanded the case to the trial court for reconsideration in light of our decision in Anchorage v. Flack, 685 P.2d 108 (Alaska App.1984).

[543]*543Even if we assume that Judge Andrews’ ruling in Hernandez was correct, see Best, 712 P.2d at 895-898, at 8-12, it does not follow that Begley was entitled to suppression. Judge Mason’s interpretation of the Hernandez ruling, that it should not apply to cases in which the MPT result is higher than the Intoximeter result, seems to us a reasonable one.

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Related

State v. Caswell
828 P.2d 830 (Idaho Supreme Court, 1992)
Best v. Municipality of Anchorage
749 P.2d 375 (Court of Appeals of Alaska, 1988)

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Bluebook (online)
711 P.2d 540, 1985 Alas. App. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/begley-v-municipality-of-anchorage-alaskactapp-1985.