GALLAGHER v. STATE, A-9979 (Alaska App. 2-4-2009)

JAMES GALLAGHER, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9979, No. 5437.Court of Appeals of Alaska.
February 4, 2009.

Appeal from the District Court, Third Judicial District, Valdez, Daniel Schally, Judge, Trial Court No. 3VA-06-206 CR.

Allen Vacura, Stepovich Vacura, Fairbanks, for the Appellant.

Blair M . Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

James Gallagher was convicted of misdemeanor driving while under the influence.[fn1] On appeal, he contends that the district court should have suppressed the Data Master results on the g round that police interfered with his right to contact an attorney before he decided to submit to a breath test. For the reasons explained here, we affirmPage 2
the district court’s decision that the police did not interfere with the defendant’s right to contact counsel.

Facts and proceedings

Gallagher was charged with driving while under the influence. He moved to suppress the DataMaster results. Relying on Criminal Rule 5(b) and AS 12.25.150(b), he asserted that police “prevented [him] from contacting an attorney.” There was no evidentiary hearing, and the motion was submitted to District Court Judge Daniel Schally on the parties’ pleadings and the audio recording of the DUI processing.

On September 30, 2006, Valdez Police Officer Jamesson Major stopped a speeding vehicle. Gallagher was the driver. When Major contacted Gallagher, he noticed that Gallagher had bloodshot eyes and smelled strongly of alcohol. Gallagher also had several empty beer bottles in his vehicle’s front passenger seat and a bong in the vehicle’s front console. Gallagher admitted that he had been drinking alcohol and smoking marijuana. He performed poorly on a field sobriety test, and a preliminary breath test indicated that his breath alcohol content was .117.

Major transported Gallagher to the Valdez Police Department for a DataMaster test. During the fifteen-minute observation period, Major and Gallagher had the following discussion:

Officer Major: Hey, James, this is the actual DataMaster breath test. And what we’re going to do — when I ask you to come up here and blow into the instrument, you need to take a deep breath and as you blow, you put your lips around the little plastic piece and you need to do a steady slow tone. It doesn’t have to be all at once, just a steady slow tone. And it’s going to go [demonstrates blowing into the tube]. And you’ll first, you’ll first hear a beep beep beep. And when you’re blowing into the machine right, it’ll give a steady tone of beeeeep.Page 3
And you keep on blowing for as long as you can or until I tell you to stop. OK? You have any questions?

Gallagher: Oh yeah, first of all, he says I’m looking at a felony.

Officer Major: Okay.

Gallagher: Why?

Other speaker: I’m not positive, but you had two DWIs: one in ’93 and one in 2004.

Gallagher: So what does that mean to me? Maybe I need an attorney to explain some things then. I don’t know. What’s the deal?

Other Speaker: Do you know? Is it 10 years?

Officer Major: I have to double check. I’m not sure. In the State of Alaska there is a certain amount of time, [and] if you have two DWIs or DUIs after that cutoff, then those count towards, each one progressively, towards a felony. And two is two misdemeanors, the third one is a felony.

Gallagher: [indiscernible — DataMaster running] (Although it is not clear, Gallagher appears to be asking whether or why the law has changed since the last time he was arrested for DUI.)

Officer Major: I can’t tell you why the laws are set the way they are, this is something, [coughing] excuse me, the legislators do. I know that’s not really an answer — I know that’s not really an answer to your question but that’s —

Gallagher: [simultaneous speech]

Officer Major: No, go ahead and sit, I’ll let you know when it’s ready to go.

Soon after this exchange, Gallagher provided a breath sample for testing. The DataMaster result showed that his breath alcohol content was .118. However, Gallagher was not charged with felony driving while under the influence. Instead, he wasPage 4
ultimately charged under AS 28.35.030(a) for misdemeanor driving while under the influence.

As already described, Gallagher then moved to suppress the DataMaster results. The State opposed the motion on two grounds. First, the State argued that Gallagher had never expressly requested an opportunity to contact an attorney. Second, the State argued that Gallagher’s reference to an attorney was not related to the breath test.

Based on the pleadings and the audio recording (the pertinent part of which is set out above), Judge Schally denied the motion. He found that “Gallagher’s reference to an attorney [w as] clearly made in relation to whether the number of priors he has would result in the instant charge being a felony. The reference was not related to the DataMaster breath test.” Gallagher then moved for reconsideration, arguing that Judge Schally had to determine whether Gallagher wanted an attorney for any defense-related purpose. Upon reconsideration, Judge Schally found Gallagher’s request did not relate to the breath test or to any related issue, such as an independent chemical test, and that therefore Gallagher’s rights under Copelin v. State[fn2] had not been violated.

Later, a jury found Gallagher guilty of misdemeanor DUI. This appeal followed.

Gallagher did not invoke his right under Copelin v. State
On appeal, Gallagher contends that the police interfered with his right under Copelin when they ignored his comment that “[m]aybe I need an attorney to explain some things then. I don’t know.” Gallagher claims that Judge Schally found that Gallagher “did make a request to call an attorney,” but denied the motion to suppress because hePage 5
found that Gallagher did not ask to contact an attorney in the context of deciding whether to provide a breath sample. For its part, the State contends that Judge Schally in his initial decision actually found that Gallagher had not invoked his Copelin right. Under the State’s interpretation, Judge Schally’s later finding — upon reconsideration — concerning Gallagher’s purpose for contacting an attorney was unnecessary.

Gallagher does not address Judge Schally’s original ruling. Rather, on appeal, he focuses on Judge Schally’s rationale for his decision upon reconsideration. That is, Gallagher contends that Judge Schally erred when he found that Gallagher did not have a defense-related purpose for contacting an attorney. He argues that Judge Schally wrongly concluded that Gallagher, once he asked for an attorney, also had to tell the police why he wanted to contact an attorney. Gallagher contends that when a motorist asks to contact an attorney, the police are required to accommodate the request and the motorist is not required to explain why he or she wants to talk to an attorney.

We acknowledge that Judge Schally’s findings are not particularly clear, but we believe the State’s view of his findings is supported by the record. That is, we conclude that a reasonable interpretation of the record shows that Judge Schally found that Gallagher did not invoke his right under Copelin to contact an attorney before deciding whether to submit to the breath test. And if Gallagher did not invoke the right recognized in Copelin, then the police did not interfere with that right.

In Copelin, the Alaska Supreme Court held that, based on AS 12.25.150(b), if a motorist arrested for DUI asks to contact an attorney, then the motorist has a right to have a reasonable opportunity to contact and consult an attorney about whether to take the breath test.[fn3] But the right recognized under Copelin is not automatic, nor do the policePage 6
have a duty to advise a motorist of the right or to expressly offer the opportunity to make a telephone call. The only duty imposed on the police is to not unreasonably interfere with a motorist’s efforts to make a call.[fn4] In other words, if a motorist arrested for DUI asks to contact an attorney (or a friend or a relative), then the police must afford the motorist a reasonable opportunity to contact an attorney before the police require the person to decide whether to take the breath test.[fn5]

But police do not interfere with the Copelin right when the motorist has not requested or in some other way informed the police that he or she wants to contact an attorney before being required to decide whether to take the breath test. Accordingly, we have routinely held that police did not violate Copelin in cases where the motorists never requested an opportunity to contact an attorney before taking the breath test.[fn6]
As we stated in Van Wormer v. State:[fn7] “Copelin established a right to counsel only for those who requested it.”[fn8]Page 7

To determine whether a motorist has made a request, “express or implied, for an opportunity to contact counsel,” courts look at the totality of the circumstances.[fn9] Whether a given inquiry amounts to such a request is a question of fact for the trial court to determine, and an appellate court should reverse a finding of fact only if it is clearly erroneous.[fn10] When the motorist’s

comments, inquiries, and requests are ambiguous, and reasonable people could differ as to whether they constituted a request for counsel for purposes of consultation, the issue is one of fact to be resolved by the trial court and his or her decision, unless clearly erroneous, will not be reversed on appeal.[fn11]

“A finding of fact is clearly erroneous when, although there may be evidence to support it, [the reviewing court is] . . . left with the definite and firm conviction on the entire record that a mistake has been committed.”[fn12] Here, the record show s that Gallagher did not expressly ask to speak to an attorney; rather, when he heard that he could be charged with a felony, he said, “maybe I need an attorney to explain some things.” ThisPage 8
comment is similar to the type of comment that we, in Anchorage v.Erickson, [fn13] agreed was not a request to talk to an attorney.[fn14]

In Erickson, the motorist, while en route to the police station for a breath test, asked the police “whether he w as in trouble and whether he might need an attorney.”[fn15] The police officer explained that she could not give Erickson legal advice.[fn16] Later, Erickson moved to suppress, alleging a Copelin violation. At the evidentiary hearing, Erickson conceded that he had not actually asked to contact an attorney.[fn17] The district court found that Erickson had not invoked the right. We agreed, concluding that the finding was not clearly erroneous.[fn18]

We conclude that Judge Schally found that Gallagher’s reference to an attorney was not a request that triggered the right recognized inCopelin. Here, Gallagher’s comment that “maybe [he needed] an attorney to explain some things” is substantially similar to Erickson’s. Gallagher points to nothing in the record that leaves us with a definite and firm conviction that Judge Schally’s finding was clearly erroneous. Because Gallagher did not invoke his Copelin right, he was not entitled to have the DataMaster results suppressed.Page 9

In his reply brief, Gallagher urges us to overturn Erickson andHuntington v. State, [fn19] a case where we reiterated that police do not have a duty to expressly offer motorists an opportunity to make a telephone call, nor do they have a duty to remind motorists that they had previously indicated that they wanted to contact an attorney.[fn20]
Gallagher argues that we should rule that police have an affirmative duty to advise motorists of statutory rights that are intended to protect constitutional rights. We decline to do so for two reasons.

Primarily, we decline because Gallagher waives this argument by raising it for the first time in his reply brief.[fn21] But also, as we explained in Erickson v. State, [fn22] when a litigant attacks a rule of law established in one of our prior decisions, the doctrine of stare decisis requires the litigant to convincingly demonstrate not only “[that] the existing rule was originally erroneous” but also “that more good than harm would result from a departure from precedent.”[fn23]
Gallagher has not met either burden.

Conclusion

The district court’s judgment is AFFIRMED.

[fn1] AS 28.35.030(a).

[fn2] 659 P.2d 1206 (Alaska 1983).

[fn3] Id. at 1208. This holding was expanded in Zsupnik v. State,789 P.2d 357, 359-61 (Alaska 1990) (motorists detained for DUI are also entitled to call a friend or relative before deciding whether to submit to a breath test).

[fn4] Rollefson v. Anchorage, 782 P.2d 305, 306-07 (Alaska App. 1989);Yancy v. State, 733 P.2d 1058, 1060-62 (Alaska App. 1987); Anderson v.State, 713 P.2d 1220, 1221 (Alaska App. 1986).

[fn5] See Kameroff v. State, 926 P.2d 1174, 1177 (Alaska App. 1996).

[fn6] Annas v. State, 726 P.2d 552, 560 (Alaska App. 1986); Van Wormerv. State, 699 P.2d 895, 897-98 (Alaska App. 1985), overruled in part byZsupnik, 789 P.2d at 362-63; Anchorage v. Erickson, 690 P.2d 20, 21
(Alaska App. 1984) (defendant forfeits any rights under Copelin if he does not request counsel prior to taking or refusing the breathalyzer examination); Svedlund v. Anchorage, 671 P.2d 378, 382 (Alaska App. 1983) (defendant must invoke right under Copelin).

[fn7] 699 P.2d 895.

[fn8] Id. at 898.

[fn9] Id. at 898; see also Zsupnik, 789 P.2d at 361-62 (courts apply a “totality of the circumstances” test to determine whether a motorist requested the right under Copelin to contact an attorney, friend, or relative).

[fn10] Van Wormer, 699 P.2d at 898; Erickson, 690 P.2d at 22.

[fn11] Van Wormer, 699 P.2d at 898.

[fn12] Alaska Foods, Inc. v. American Mfrs. Mut. Ins. Co., 482 P.2d 842,847 (Alaska 1971); see Odekirk v. State, 648 P.2d 1039, 1042-43 (Alaska App. 1982) (“A finding of fact is `clearly erroneous’ when, although there may be evidence to support it, the reviewing court is left with the definite and firm conviction on the entire record that a mistake has been made.” (citations omitted)).

[fn13] 690 P.2d 20.

[fn14] Id. at 21.

[fn15] Id. at 22-23.

[fn16] Id. at 22.

[fn17] Id.

[fn18] Id.

[fn19] 151 P.3d 523 (Alaska App. 2007).

[fn20] Id. at 525.

[fn21] See Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406,411 (Alaska 1990); Hitt v. J.B. Coghill, Inc., 641 P.2d 211, 213 n. 4 (Alaska 1982); Charliaga v. State, 157 P.3d 1053, 1055-56 (Alaska App. 2007).

[fn22] 950 P.2d 580 (Alaska App. 1997).

[fn23] Id. at 587 (citations omitted) (internal quotations omitted).Page 1