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Mattice v. State4/29/1998
3807
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM AND JUDGMENT
No. 3807
Richard L. Mattice appeals his convictions for driving while intoxicated, AS 28.35.030(a), and refusing to submit to a chemical test of his breath, AS 28.35.032(a). He contends that the arresting officers improperly refused to allow him to contact an attorney to help him decide whether to take the breath test. He also contends that he never actually refused to take the breath test. For the reasons explained in this opinion, we reject both of Mattice's contentions, and we therefore affirm his convictions.
On August 11, 1996, Mattice was arrested for driving while intoxicated. The arresting officer, State Trooper Carl Wright, brought Mattice to the station and prepared to administer a breath test. Mattice repeatedly told Wright that he wanted to speak to a "Native lawyer". In response, Wright asked Mattice for the name of Mattice's lawyer, and he offered to call the lawyer for Mattice, but Mattice responded that he did not know any Native lawyers. He insisted that Wright call a Native lawyer for him.
Wright did not know any Native lawyers either, but he offered Mattice a telephone directory so that Mattice could find a lawyer listed there. Wright offered to remove Mattice's handcuffs to facilitate Mattice's use of the telephone directory. Wright also offered to call the Public Defender Agency for Mattice. Mattice responded to these offers only by continuing to insist that Wright call a Native lawyer for him.
Another trooper, Trooper William McKillop, also spoke to Mattice. McKillop reiterated Wright's offers to call the Public Defender Agency for Mattice or, alternatively, to provide Mattice with a telephone directory so that Mattice could choose an attorney for himself. Mattice did not respond to these offers and explanations.
This impasse lasted at least twenty minutes. Finally, Wright read the "implied consent warning" to Mattice - the official warning that Mattice was required to submit to a breath test. Wright then asked Mattice to take the breath test. Mattice responded by continuing to insist that Wright provide him with a Native lawyer. Mattice refused to say whether or not he intended to take the breath test. In addition, Mattice refused to take the chewing gum out of his mouth, even though Wright had told Mattice that he needed to take the gum out of his mouth in order to perform the breath test.
Wright then informed Mattice that, under the circumstances, he would construe Mattice's lack of response as a refusal to take the breath test. Mattice did not answer Wright.
Wright began to read Mattice the official notification that, due to Mattice's refusal to take the breath test, Mattice's driver's license was being revoked. During the reading of this notice, Mattice loudly continued to demand a Native lawyer. Wright again asked Mattice whether Mattice would take the breath test, but Mattice still would not answer.
Based on this encounter, Mattice was charged with refusing to take the breath test. Before trial, Mattice moved to suppress all evidence of his refusal on the ground that the arresting officers had not given him a reasonable opportunity to contact counsel.
At the hearing on Mattice's motion, the State introduced the tape of Mattice'
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