Opinion
Court of Appeals No. A-8605.
January 19, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge. Trial Court No. 4FA-02-2905 CR.
William R. Satterberg Jr., Fairbanks, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Edward W. Feldman was convicted of felony driving while under the influence and driving with a suspended license. Feldman appeals the denial of his motion to suppress the results of his field sobriety tests, arguing that his consent to perform those tests was involuntary because it was given under threat of arrest. Feldman also appeals the denial of his motion to suppress his breath test result, arguing that he was not given sufficient time to knowingly and intelligently waive his right to an independent test. For the reasons discussed below, we reject these claims and affirm Feldman's conviction. We do not address Feldman's claim that the court erred in giving three of the jury instructions because Feldman did not preserve this claim and it is inadequately briefed.
AS 28.35.030(a) (n) and AS 28.15.291(a), respectively.
Facts and proceedings
On August 20, 2002, a dispatcher for the Alaska State Troopers relayed a report that a white Chevrolet Cavalier was in a ditch on Chena Small Tracts Road in Fairbanks and that the driver was intoxicated. Trooper Ramin Dunford responded to this dispatch and, after locating the place where a car had gone into the ditch, observed a white Chevrolet Cavalier driving towards him. The Cavalier turned abruptly onto a side road and entered a driveway. When Trooper Dunford contacted the driver, Feldman, Trooper Dunford observed that Feldman smelled of alcohol and that his speech was thick and slurred and his eyes watery. Feldman admitted that he had been driving and that he had consumed two beers and two shots of vodka.
Trooper Dunford asked Feldman to perform field sobriety tests, but Feldman declined the request. By Feldman's account, the trooper then said, in essence: "Well, do them, or I'll arrest you anyway." Although Trooper Dunford was "very polite," Feldman said he took this statement as a threat and would not have done the sobriety tests if Trooper Dunford had not made this statement. Feldman apparently failed the tests and Trooper Dunford arrested him for driving while under the influence.
Feldman was transported to the trooper station, where a breath test showed that his breath-alcohol level was .149 percent. After reporting these results to Feldman, Trooper Dunford read Feldman the standard form advising him of his right to an independent chemical test. Feldman would not say whether he wanted an independent test, instead repeatedly asking what good the test would do him, so Trooper Dunford marked that Feldman had refused to decide.
Because Feldman had two prior drunk driving convictions after January 1, 1996, and within ten years of his current offense, he was indicted for felony driving while under the influence. Feldman was also charged with driving with a suspended license. Feldman moved to suppress the results of his field sobriety tests, arguing that he was coerced into performing the tests by Trooper Dunford's threat to arrest him. Feldman also moved to suppress the breath test results, arguing that he did not knowingly and intelligently waive his right to an independent chemical test because Trooper Dunford did not give him enough time to decide whether to waive his right to the test.
Following an evidentiary hearing, Superior Court Judge pro tem Jane F. Kauvar refused to suppress Feldman's field sobriety test results, finding that Trooper Dunford had not threatened Feldman, but instead had informed him of the reality that he would be arrested even if he refused to perform the tests. She also denied Feldman's motion to suppress the breath test results, ruling that Feldman had knowingly waived his right to an independent test. Feldman appeals these decisions.
Should Judge Kauvar have suppressed the field sobriety tests?
Feldman does not dispute that Trooper Dunford had the required reasonable suspicion to ask him to perform field sobriety tests. But Feldman argues that a field sobriety test is a search under the federal and state constitutions, and that he had a right to refuse to submit to that search. He argues that his consent to perform the sobriety tests was involuntary because he gave that consent under threat of arrest, and that Judge Kauvar thus erred in not suppressing the evidence obtained as a result of those tests.
See Galimba v. Anchorage, 19 P.3d 609, 612 (Alaska App. 2001).
We have never decided whether a field sobriety test is a search for constitutional purposes, and we find it unnecessary to resolve that issue here. Even assuming that a field sobriety test is a search, and that Feldman had a right to refuse to consent to that search, we conclude that Trooper Dunford's statement that he intended to arrest Feldman if Feldman did not take the tests did not make Feldman's consent to perform the tests involuntary.
See id., 19 P.3d at 611-12; McCormick v. Anchorage, 999 P.2d 155, 159-60 (Alaska App. 2000).
See Punguk v. State, 784 P.2d 246, 247 (Alaska App. 1989) ("a trial court's finding of consent to search must be accepted on appeal unless clearly erroneous").
To be voluntary, consent to a warrantless search "must be unequivocal, specific and intelligently given, [and] uncontaminated by any duress or coercion[.]" If police threaten to arrest a person when obtaining consent to a search, that fact may be considered in evaluating all the circumstances to decide whether the consent was involuntary. But if police have the right to make that threat — in other words, if police are simply advising the defendant about what they have a legal right to do — that statement, standing alone, will not normally make the ensuing consent involuntary.
Erickson v. State, 507 P.2d 508, 515 (Alaska 1973).
United States v. Bradley, 234 F.3d 363, 366-67 (8th Cir. 2000); United States v. Ivy, 165 F.3d 397, 402-04 (6th Cir. 1998); United States v. Bolin, 514 F.2d 554, 560-61 (7th Cir. 1975); State v. Walmsley, 344 N.W.2d 450, 453-54 (Neb. 1984); State v. Cox, 947 P.2d 207, 209 (Or.App. 1997).
Punguk, 784 P.2d at 247-48; see also State v. Medenbach, 616 P.2d 543, 545 (Or.App. 1980) (quoting State v. Douglas, 488 P.2d 1366 (Or. 1971) ("the action of the officer in advising defendant that he would have to be arrested unless he agreed to take some field sobriety tests was not constitutionally objectionable coercion because the trooper then had probable cause to arrest defendant for driving under the influence. Therefore, the officer threatened `only to do what the law permitted him to do.'")).
In Punguk v. State, the defendant argued that his consent to a search of his bedroom was involuntary because he had given that consent only after the trooper had told him that, in order to prevent possible destruction of evidence, he would have to accompany the trooper to the public safety building while the trooper applied for a warrant. After noting that the trooper had probable cause to arrest Punguk — and thus the authority to secure his room and detain him while getting a warrant — we upheld the search. We observed that:
Id. at 247.
There was nothing inherently coercive or impermissible in informing Punguk that he would have to accompany [Trooper] Martin while Martin applied for a warrant. As recognized by the Washington Court of Appeals under analogous circumstances:
The police were within their rights when they stated they would impound . . . [the] house until a search warrant could be secured. Bowing to events about which one may be unhappy does not render a consent involuntary.
Id. at 248.
In this case, the undisputed facts show that Trooper Dunford not only had reasonable suspicion that Feldman was driving while under the influence, he had probable cause to arrest Feldman at the time he asked Feldman to perform the field sobriety tests. Trooper Dunford received a dispatch that a white Chevrolet Cavalier was in a ditch on Chena Small Tracts Road in Fairbanks and that the driver was intoxicated. When Trooper Dunford responded to the dispatch, he found signs that a car had been in a ditch. He then saw a car that matched the dispatcher's description driving toward him. That car turned abruptly onto a side road and entered a driveway. When Trooper Dunford contacted the driver, Feldman, he immediately noticed that Feldman smelled of alcohol, and that his speech was thick and slurred and his eyes watery. Feldman admitted he had been driving and that he had consumed four drinks. These circumstances gave Trooper Dunford probable cause to arrest Feldman. Therefore, there was nothing impermissible or coercive about Trooper Dunford accurately informing Feldman that he could not avoid arrest by refusing to perform field sobriety tests. Because Feldman points to no other potentially coercive circumstances, we hold that Judge Kauvar did not err in concluding that Feldman's consent was voluntary.
Did Judge Kauvar err in not suppressing the breath test results?
Feldman next argues that Judge Kauvar should have suppressed his breath test results because he was given too little time to decide whether to get an independent chemical test, and thus did not knowingly and intelligently waive that right.
In Crim v. Anchorage, we concluded that the defendant had validly waived his right to an independent chemical test because the record showed that he had been notified of this right, that he knew he had been arrested for drunk driving, and that he generally understood that the purpose of the test was to obtain evidence of his blood alcohol content. We ruled that Crim's waiver was valid even though he did not know the results of his breath test at the time he declined a blood test, and thus could not fully assess the advantages and disadvantages of obtaining a blood test. Likewise in Moses v. State, we rejected the defendant's claim that his waiver was not knowing and intelligent because the record showed that he understood his right to an independent test — his only real confusion was over whether exercising that right would benefit him.
903 P.2d 586 (Alaska App. 1995).
Id. at 588-89.
Crim, 903 P.2d at 588.
32 P.3d 1079 (Alaska App. 2001).
Id. at 1084.
In this case, the record of the contact between Trooper Dunford and Feldman shows that Feldman was notified of his right to an independent test, that he knew he had been arrested for DUI and that a breath test had shown that his breath alcohol level was.149, and that he understood that the purpose of an independent test was to get evidence of his blood alcohol content. In addition, the record shows that Feldman had been convicted of driving while intoxicated twice before, and that he had been informed of his right to an independent test on those prior occasions. On at least one of those occasions, he had exercised his right to an independent test. After Trooper Dunford read Feldman the form advising him of his right to an independent test, Feldman stated: "I could have you guys drive me to the hospital and take blood out. What good does that do me?" Later he reiterated: "I could tell you that I want you to take me to the hospital and draw my blood to test my level, right? What is that going to do for me except waste an hour?" Again he declared: "If it will help me in any way, let's go and suck my blood." On this record, Judge Kauvar did not err in concluding that Feldman had sufficient understanding of his right to an independent test to make a knowing and intelligent waiver of that right.
Feldman claims that his waiver was invalid because he was not given enough time to decide whether to exercise his right to an independent test, and because Trooper Dunford marked the "refused to decide or sign" box on the waiver form without telling him. We find no merit to these claims. Trooper Dunford twice carefully explained to Feldman what his options were: he could decide to take the independent test, decide not to take the test, take the test at his own expense, or refuse to decide whether to take the test. Three times Trooper Dunford told Feldman that he viewed Feldman's conduct as refusing to decide. In response, Feldman either changed the subject or said, "No, I'm not refusing to decide." Finally, Trooper Dunford said: "We'll move on to the next thing, okay?" Given these circumstances, Feldman cannot colorably claim that he did not have enough warning that Trooper Dunford had concluded that he had refused to decide.
In the context of breath-test refusal, this court has held that a defendant's conduct may amount to refusal even if the defendant never explicitly states that he is refusing to take a breath test. Considering the encounter between Trooper Dunford and Feldman as a whole, Judge Kauvar's findings that Feldman by his conduct had refused to decide whether to take an independent test, and that Trooper Dunford gave him ample time to knowingly and intelligently waive his right to obtain that test are not clearly erroneous.
See Hamilton v. Anchorage, 878 P.2d 653, 653-54 (Alaska App. 1994); Bowlin v. State, 823 P.2d 676, 676-77 (Alaska App. 1991). See also Snyder v. State, Dep't of Public Safety, 31 P.3d 770, 776 (Alaska 2001).
Did Feldman preserve his attack on the jury instructions?
Feldman asserts that three of the jury instructions given in this case created an inference in the mind of the jurors that he was guilty because he was not given the opportunity to decide to obtain an independent chemical test. Under Alaska Criminal Rule 30(a), an attorney who objects to a jury instruction must "stat[e] distinctly the matter to which the party objects and the grounds of the objections" so that the trial judge is alerted to the problem and has an opportunity to correct it. Feldman has not indicated where, or if, he objected to these instructions below.
Because Feldman has not shown that he preserved the claim he advances here, he must show plain error. But Feldman's briefing on this issue does not cite any authority or explain how these instructions created a high likelihood that the jury followed an erroneous theory resulting in a miscarriage of justice. Because this claim is not briefed adequately, we decline to address it. Conclusion
See Estate of McCoy, 844 P.2d 1131, 1134 (Alaska 1993); Heaps v. State, 30 P.3d 109, 113-14 (Alaska App. 2001).
See Estate of McCoy, 844 P.2d at 1134; Heaps, 30 P.3d at 114.
See Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n. 3 (Alaska 1991) ("[W]here a point is given only cursory statement in the argument portion of a brief, the point will not be considered on appeal.").
We AFFIRM the judgment of the superior court.