KOCH v. STATE, A-9407 (Alaska App. 11-22-2006)

JACQUELINE E. KOCH, Appellant v. STATE OF ALASKA, Appellee.

No. A-9407.Court of Appeals of Alaska.
November 22, 2006.

Appeal from the District Court, Third Judicial District, Palmer, John Wolfe, Judge. Trial Court No. 3PA-04-2967 CR.

Verne E. Rupright, Rupright and Associates, LLC, Wasilla, for the Appellant.

Jarom B. Bangerter, Assistant District Attorney, Roman J. Kalytiak, District Attorney, Palmer, David W. Márquez, Attorney General, Juneau, for Appellee.

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

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Jacqueline E. Koch was arrested for driving while under the influence after a police officer found her slumped over in the driver’s seat of an idling car. Koch agreed to take a breath test and, based on the results of that test, was convicted of misdemeanor driving while under the influence. On appeal, Koch argues that the district court should have suppressed the evidence of her intoxication because the officer never warned her that refusal to take a breath test was a crime. She also argues that the district court erred by admitting documents showing that the state had verified the calibration of the breath test machine without requiring the State to present the testimony of the individuals who had performed those verifications. Lastly, she argues that the court erred by allowing the arresting officer to rely on those documents to testify as an expert that the breath test machine was working properly. We conclude that none of these claims has merit and affirm Koch’s conviction.

Facts and proceedings

On October 2, 2004, at about 10:30 p.m., Palmer Police Officer Jamey Hammons was dispatched on a report that there was a vehicle idling at the intersection of Arctic Avenue and the Glenn Highway and that the woman inside did not appear to be moving. When Officer Hammons arrived at the intersection he saw the woman, Koch, slumped on her side in the driver’s seat. Hammons was able to rouse Koch, but only after knocking repeatedly on her window.

Koch admitted she had been drinking. Officer Hammons observed that she had an odor of alcohol and that her speech was slurred, her balance poor, and her eyes watery and bloodshot. He tried to administer field sobriety tests, but Koch was not responsive and admitted she could not pass the tests. Officer Hammons then arrested Koch and transported her to the Palmer police station.

At the station, Koch agreed to submit to a breath test. That test showed a blood alcohol content of .204 percent. Based on this evidence, Koch was charged with misdemeanor driving while under the influence.

Before trial, Koch filed a motion to suppress, arguing that she was entitled to suppression of the breathalyzer results because Officer Hammons had not read her the implied consent warning. That warning would have informed Koch of the consequences of refusing to take the breath test. She argued that, by obtaining a breath sample without reading her the implied consent warning, Officer Hammons violated her Fourth Amendment right to be free of unreasonable searches and seizures and her Sixth Amendment right to counsel. District Court Judge John Wolfe denied the motion, noting that the implied consent statutes “do not create [a] requirement for advisement prior to administering [a] breath test.”

Koch then filed a “second motion to suppress and dismiss and in support of reconsideration,” arguing that Officer Hammons’s failure to read the implied consent warning had violated her rights to counsel, due process, and equal protection of the laws. Judge Wolfe denied those motions without comment.

During trial, over Koch’s hearsay objection, Judge Wolfe admitted certified documents to show that the calibration of the Datamaster machine used for Koch’s breath test had been verified at least every sixty days as required by regulation.

Judge Wolfe convicted Koch of driving while under the influence.[fn1] Koch appeals.

The court did not err in refusing to suppress Koch’s breath test result

On appeal, Koch renews her claim that she was entitled to suppression of her breath test result because the police did not read her the implied consent warning. The standard implied consent warning, which Koch introduced as an exhibit below, informs an arrested motorist that refusal to submit to a chemical test is a crime punishable by fines, imprisonment, and driver’s license revocation.

In support of her claim that the police are required to give this warning before administering a breath test, Koch quotes the following portion of AS 28.35.031(c): “`Before administering apreliminary breath test . . . the officer shall advise theperson’ of the legal repercussions of refusal.”[fn2]

This requirement, by its plain language, applies only to apreliminary breath test. As we explained in Blank v.State,[fn3] a preliminary breath test is a test administeredbefore a motorist’s arrest.[fn4] Koch’s case does not involve a preliminary breath test. Rather, she consented to a breathalyzer test after she was arrested and transported to the Palmer police station.

Refusal to submit to a breath test after an arrest is addressed elsewhere, in AS 28.35.032. That statute provides in pertinent part:

(a) If a person under arrest for operating a motor vehicle or aircraft while under the influence of an alcoholic beverage, inhalant, or controlled substance refuses the request of a law enforcement officer to submit to a chemical test . . ., after being advised by the officer that the refusal will result in the denial or revocation of the driver’s license, privilege to drive, or privilege to obtain a license, that the refusal may be used against the person in a civil or criminal action or proceeding . . . and that the refusal is a crime, a chemical test may not be given[.][fn5]

In Wirz v. State,[fn6] the Alaska Supreme Court held that AS 28.35.032 does not require the police to read the implied consent warning to an arrestee unless and until the suspect refuses to take the breathalyzer.[fn7] If an arrestee refuses to take the breath test, the arrestee must be advised of the consequences flowing from that refusal and must be permitted to reconsider his or her refusal in light of that information.[fn8] Although the legislature has toughened the penalties for refusal since Wirz, and the implied consent warning has been modified to reflect those new penalties, the legislature has not altered the language of AS 28.35.032(a) in any way that would suggest disagreement with Wirz.[fn9]

Because Koch did not refuse to take the breath test, we conclude under Wirz that Officer Hammons had no statutory duty to read her the implied consent form.

Koch’s claim that her Fourth Amendment rights were violated because she did not receive the implied consent warning is also meritless. Koch has not asserted, much less shown, that Officer Hammons lacked probable cause to arrest her for driving while under the influence. Her breath test was therefore a valid search incident to her arrest.[fn10]

Koch also asserts that her right to equal protection was violated because she was not read the implied consent warning. But Koch has offered no evidence to show that other similarly situated motorists are treated differently under the statute.[fn11] The purpose of the implied consent warning is to inform motorists that if they refuse to take a breath test they will be charged with a crime.[fn12] Koch did not refuse to take the breath test; she therefore had no legitimate interest in receiving this warning. Because Koch has not shown that she was deprived of any legitimate interest, or that she was treated differently than any other motorist, we reject her equal protection claim.

Koch next argues that she was denied her right to counsel because she was not read the implied consent warning. Koch is apparently referring to the portion of the warning that states: “[n]either your right to speak with an attorney nor your right to remain silent gives you the right to refuse to submit to a chemical test.”

Koch had no constitutional right to have an attorney present during her breath test.[fn13] She had a statutory right to contact an attorney, but she has not claimed that she invoked that right.[fn14] Nor has she claimed that Officer Hammons interfered with any effort to obtain counsel.[fn15] We therefore find no merit to this claim.

The court did not err by admitting documents to show that the calibration of the Datamaster had been verified or by admitting the officer’s testimony that the machine appeared to be working properly

Under AS 28.35.033(d), if the State establishes at trial that a breath test has been performed according to methods approved by the Department of Public Safety, “there is a presumption that the test results are valid and further foundation for introduction of the evidence is unnecessary.” The Department’s approved methods for verifying that a breath test machine is properly calibrated are laid out in 13 Alaska Administrative Code 63.100. That regulation requires, among other things, that the scientific director of the state’s breath and blood alcohol testing program (or a qualified person designated by the director) verify the calibration of each instrument used in the state at least every sixty days and keep a record of those verifications.[fn16]

At Koch’s trial, the State offered certified documents to show that the calibration of the Datamaster used in Koch’s case had been verified on August 18, 2004, and October 7, 2004 — within the sixty-day intervals required by regulation. The State offered this evidence to show that the machine was working properly — that is, that the calibration had been verified according to the Department’s approved methods — in the period relevant to Koch’s October 2, 2004 test. Judge Wolfe admitted the documents under the business and public records exceptions.

Koch does not claim that the documents were not certified as required, or that the State failed to lay a proper foundation for introducing them under the business or public records exceptions. Rather, she complains, as she did below, that the State did not call a laboratory criminalist to authenticate the documents. This claim is resolved by our supreme court’s decision in Wester v.State:[fn17]

With the increasing acceptance and reliability of the breathalyzer has come a relaxation of any notion of rigid proof of foundational facts. In this respect, ampule certification and breathalyzer calibration need not be the subject of personal testimony and are clearly admissible under the official records exception to the hearsay rule. The evidence was not of the direct testing of [the defendant], but involved results of the tests pertaining to the reliability of the machine and ampules used. Those tests were performed by technicians who should not be compelled to testify in every case. These documents are the exact type that are normally reliable and trustworthy so as to give rise to the official records exception to the hearsay rule. The admission into evidence of the authenticated copies of certified documents was not error.[fn18]

Koch did not present any evidence to suggest that the certified documents were not authentic or that the Datamaster was not functioning properly on the date of her test. Consequently, direct testimony by the individuals who performed the verifications of calibration was not required.

Koch next argues that the State failed to establish that the documents were of the type that Officer Hammons, as an expert, could reasonably rely on. In making this assertion, Koch is apparently relying on Evidence Rule 703, which provides that experts may testify based on facts or data that are not admissible if those facts or data are “of a type reasonably relied upon by experts in the particular field.”

Evidence Rule 703 is inapposite. As discussed above, the documents were properly admitted into evidence. Moreover, Officer Hammons offered no expert opinion about the verification of the Datamaster’s calibration. On cross-examination, he acknowledged that he had never worked on a Datamaster, that he did not calibrate the machine, and that he did not know from its internal workings whether it had provided an accurate test on the night in question. Officer Hammons did testify that he was certified to operate the Datamaster, that he performed a standard check on the instrument before administering Koch’s breath test, and that, from his observations and experience, the machine appeared to be working properly. Koch has not challenged this latter testimony.

Koch also complains that she did not receive the required notice that Officer Hammons would testify “as an expert authenticating calibration of the Datamaster performed by another officer.”[fn19] Again, this claim fails because Officer Hammons did not testify as an expert on the calibration of the Datamaster; he merely laid a foundation for admission of the documents under the business or public records exception to the hearsay rule. The State was therefore not obliged to disclose him as an expert.

Lastly, Koch appears to claim that Officer Hammons’s testimony violated her equal protection, due process, and confrontation clause rights. The briefing on these claims is inadequate.[fn20] We consequently do not address them.

Conclusion

Koch’s conviction is AFFIRMED.

[fn1] AS 28.35.030(a).

[fn2] (Emphasis in Koch’s brief).

[fn3] 142 P.3d 1210 (Alaska App. 2006).

[fn4] Id. at 1213.

[fn5] AS 28.35.032(a).

[fn6] 577 P.2d 227 (Alaska 1978).

[fn7] Id. at 229-30.

[fn8] Id. at 230.

[fn9] The version of AS 28.35.032 addressed in Wirz provided: “If a person under arrest refuses the request of a law enforcement officer to submit to a chemical test of his breath as provided in (AS 28.35.031), after being advised by the officer that his refusal will result in the suspension, denial or revocation of his license, a chemical test shall not be given.”Wirz, 577 P.2d at 228.

[fn10] See McCormick v. Anchorage, 999 P.2d 155, 161 (Alaska App. 2000); Burnett v. Anchorage, 678 P.2d 1364, 1368 (Alaska App. 1984); Svedlund v. Anchorage, 671 P.2d 378, 384 (Alaska App. 1983).

[fn11] See Matanuska-Susitna Borough Sch. Dist. v. State,931 P.2d 391, 397 n. 7 (Alaska 1997).

[fn12] See Yang v. State, 107 P.3d 302, 309 (Alaska App. 2005);Svedlund, 671 P.2d at 385.

[fn13] See Svedlund, 671 P.2d at 382.

[fn14] See Copelin v. State, 659 P.2d 1206, 1211-12 (Alaska 1983); Svedlund, 671 P.2d at 382.

[fn15] See Svedlund, 671 P.2d at 382; Johnson v. State,662 P.2d 981, 988-89 (Alaska App. 1983).

[fn16] 13 AAC 63.100(c).

[fn17] 528 P.2d 1179 (Alaska 1974).

[fn18] Id. at 1183.

[fn19] See Alaska R. Crim. P. 16(b)(1)(B).

[fn20] See Adamson v. University of Alaska, 819 P.2d 886, 889
n. 3 (Alaska 1991).