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Mattice v. State4/29/1998
at the tape of Mattice's DWI processing "[spoke] for itself". She found that Mattice had repeatedly refused the troopers' offers to telephone an attorney of his choice, as well as their offers to contact the Public Defender Agency for him. Judge Nolan further found that none of the troopers' repeated offers were conditional, nor were these offers accompanied by threats to gain Mattice's cooperation. With regard to Mattice's claim that his handcuffs prevented him from using the telephone directory, Judge Nolan found that the troopers had explicitly offered to remove Mattice's handcuffs in order to facilitate his use of the telephone directory and the telephone. The Judge noted that Mattice's "responses" to these offers were generally non-responsive.
Having lost the suppression motion, Mattice went to trial. After the trial, Mattice moved for a judgment of acquittal, arguing that the State had failed to present any evidence that Mattice had actually refused to take the breath test. District Court Judge Gregory J. Motyka, who had presided over the jury trial, denied this motion.
Alaska law guarantees arrested prisoners the right to telephone or otherwise contact an attorney (or other relative or friend). AS 12.25.150(b); Criminal Rule 5(b). However, this right is not an absolute one; the police need only afford the prisoner a reasonable opportunity to contact an attorney. See Saltz v. Department of Public Safety, 942 P.2d 1151, 1153 (Alaska 1997); Copelin v. State, 659 P.2d 1206, 1211-12, 1215 (Alaska 1983); Kameroff v. State, 926 P.2d 1174, 1177 (Alaska App. 1996). In Saltz, the Alaska Supreme Court recently held that a driver arrested for DWI was afforded a reasonable opportunity to contact counsel when the arresting state trooper provided him with a telephone and a phone directory opened to the "attorneys" section. 942 P.2d at 1152-54.
Judge Nolan found that the arresting officers had given Mattice a reasonable opportunity to contact an attorney. The record amply supports Judge Nolan's finding. Troopers Wright and McKillop made repeated offers to accommodate Mattice's desire to speak with an attorney; it was Mattice who refused to pursue these offers. We therefore uphold the district court's denial of Mattice's suppression motion.
Mattice's second argument on appeal is that there was insufficient evidence presented at his trial to support a finding that he actually refused to submit to the breath test. When we review such a claim, we are required to view the evidence in the light most favorable to upholding the verdict. See Willett v. State, 836 P.2d 955, 957 (Alaska App. 1992). Viewed in this light, we conclude that the evidence was sufficient to sustain Mattice's conviction for breath-test refusal.
The crux of Mattice's argument is his assertion that he never actually stated that he was refusing to take the breath test. Mattice contends that all he did was demand his right to counsel. However, our prior cases make it clear that a refusal can be embodied in conduct as well as words. Even though a defendant may never explicitly state, "I refuse to take this test," the defendant's conduct can amount to a refusal. See Snyder v. State, 930 P.2d 1274, 1276, 1281 (Alaska 1996); Hamilton v. Anchorage, 878 P.2d 653, 653-54 (Alaska App. 1994); Bowlin v. State, 823 P.2d 676, 676-77 (Alaska App. 1991). In each of these cases, we upheld convictions for breath-test refusal when the State's theory of prosecution was that the defendants' purported attempts to take the breath test were feigned. See also Pruitt v. Department of Public Safety, 825 P.2d 887, 894 (Alaska 1992) (holding that an arrestee's act of injecting an alcohol-based mouth spray down his throat at the po
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