Grossman v. State

285 P.3d 281, 2012 WL 3871445, 2012 Alas. App. LEXIS 134
CourtCourt of Appeals of Alaska
DecidedSeptember 7, 2012
DocketNo. A-10980
StatusPublished
Cited by1 cases

This text of 285 P.3d 281 (Grossman v. State) 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
Grossman v. State, 285 P.3d 281, 2012 WL 3871445, 2012 Alas. App. LEXIS 134 (Ala. Ct. App. 2012).

Opinion

OPINION

MANNHEIMER, Judge.

Under the Alaska Supreme Court's decision in Copelin v. State, 659 P.2d 1206, 1212-14 (Alaska 1983), a person arrested for driving under the influence has the right to attempt to contact and consult an attorney before deciding whether to submit to a breath test. This appeal presents the question of whether a DUI arrestee has the right, under Copelin, to interrupt the administration of the breath test-not the 15-minute pre-testing observation period, but rather the actual testing process itself-to try to telephone an attorney. For the reasons explained here, we hold that a person's right to consult an attorney under Copelin does not include the right to interrupt the actual administration of the breath test.

Underlying facts

The defendant in this case, Richard Gross-man Jr., was arrested for driving under the influence, and he was taken to a police station for a breath test. The arresting officer told Grossman at the start of the 15-minute observation period that he was free to use the telephone, but Grossman made no attempt to contact anyone.

After the 15-minute observation period was over, the officer began to administer the breath test to Grossman. Although Gross-man ostensibly agreed to take the test, he would not close his lips around the air tube, and the testing machine reported that it had not received an adequate sample of Gross-man's breath to run the test. The officer told Grossman that it appeared Grossman was purposely trying to avoid giving a breath sample.

After Grossman twice failed to provide an adequate breath sample, the officer read the "implied consent" warning to Grossman-ap-prising Grossman (1) that he was legally required to take the breath test, and (2) that the officer intended to charge Grossman with the additional crime of breath test refusal [283]*283unless Grossman provided an adequate breath sample on his next attempt.

At this point, Grossman announced that he wanted to consult an attorney. The officer replied that he would not allow Grossman to interrupt the administration of the breath test, but the officer assured Grossman that he would be given the opportunity to try to contact an attorney after the testing procedure was finished.

Grossman then blew a third time into the machine, but again he failed to provide an adequate breath sample. As a result, Gross-man was charged with both DUI and breath test refusal.

(The officer then informed Grossman of his right to an independent blood test, but Grossman declined the blood test.)

Grossman's claim on appeal

In this appeal, Grossman argues that the officer violated his rights under Copelin when the officer refused to interrupt the administration of the breath test to let Grossman try to contact an attorney. But the Copelin decision itself declares that an arrestee's right to contact an attorney is "limited [to a) reasonable time and opportunity", 659 P.2d at 1211-12, and that the arresting officer is not required to allow an arrestee to exercise this right in a manner that "interfere[s]) with the prompt and purposeful investigation of the case". Id. at 1212 n. 14. This is because the aleohol in a DUI arrestee's blood will normally be dissipating with the passage of time, and the government has an important interest in obtaining reliable evidence of the arrestee's blood aleohol level. Id. at 1211.

The Copelin decision states that an arrestee's request to try to contact an attorney during the mandatory 15-minute observation period is reasonable, since "no additional delay is incurred by acceding to 'a request to contact an attorney during that time." Id. at 1211. But requests made after the observation period is completed must be evaluated under the particular facts of the case. Copelin explains that the reasonableness of such requests "will depend on [such] cireumstances ... as the amount of time between the stop and the [arrestee's] transportation to the station, when the request is made, and how much time is needed to set up the [breath] test." Id. at 1212.

Moreover, Copelin makes it clear that the police are not required to put the testing process on hold while the arrestee attempts to contact an attorney: "If [an] attorney cannot be contacted within a reasonable timel{,] the [arrestee] must decide without the advice of counsel ... whether to take the [breath] test." Ibid.

The question, then, is whether a request to try to contact an attorney is "unreasonable", for purposes of Copelin, if the request is made after the observation period is completed and the officer is in the middle of the testing process. We believe that the supreme court answered this question in Saltz v. Department of Public Safety, 942 P.2d 1151 (Alaska 1997).

The defendant in Saltz was arrested for DUI after he drove his vehicle into a ditch, and he was transported to the trooper station for a breath test.1 Upon his arrival, Saltz asked to speak to an attorney.2 The arresting trooper provided Saltz with a telephone and a copy of the Yellow Pages opened to the "attorneys" section, but Saltz told the trooper that he was unable to read the directory listings without his glasses.3 The trooper responded that he was not permitted to do more than offer Saltz a telephone, the Yellow Pages, and the opportunity to speak with an attorney in private (if Saltz was successful in contacting one).4

Saltz then asked the trooper if he could borrow a pair of glasses, or if the trooper could wait to administer the breath test until someone could retrieve Saltz's glasses from his vehicle (which was still at the seene of the accident).5 The trooper told Saltz that he had no glasses to give him, and that he would [284]*284not delay the breath test. The trooper said that Saltz could use his own glasses, but only if they arrived in time.6 After this exchange, Saltz sat beside the telephone, but he did not attempt to use it.7

The trooper waited for the 15-minute observation period, and then he administered the breath test to Saltz.8 Based on the result of that test, and the corroborating result of an ensuing blood test, the Division of Motor Vehicles revoked Saltzg's driver's license.9

On appeal, Saltz argued that the trooper violated his rights under Copelin by failing to provide a pair of reading glasses or (alternatively) reading the Yellow Pages aloud to Saltz, or at least giving Saltz the telephone number of the Alaska Public Defender Agency, or suggesting that Saltz call a relative or friend who might then assist him in locating an attorney. Saltz, 942 P.2d at 1152-53.

The supreme court rejected Saltz's Copelin claim on two bases. First, the supreme court concluded that "[the trooper's] reluctance to help Saltz, while perhaps overly cautious, was far from the "flat refusal to afford access to counsel after it is requested that the exclusionary rule of Copelin was designed to discourage." Id. at 1154.

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Cite This Page — Counsel Stack

Bluebook (online)
285 P.3d 281, 2012 WL 3871445, 2012 Alas. App. LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grossman-v-state-alaskactapp-2012.