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Richardson v. State2/12/2003
No. 4661
Following a jury trial in the Anchorage superior court, Mark Richardson was convicted of felony driving while intoxicated and felony refusal to submit to a breath test. (Before trial, Richardson pleaded no contest to a related charge of driving with a suspended operator's license.)
On appeal, Richardson contends that the superior court should have dismissed the count of the indictment charging him with breath-test refusal. Richardson argues that this count of the indictment was flawed because the prosecutor violated the duty imposed by Frink v. State, 597 P.2d 154, 165 (Alaska 1979) - the duty to apprise the grand jury of exculpatory evidence. As a second point on appeal, Richardson argues that the evidence presented at his trial was insufficient to establish his guilt of driving while intoxicated and breath-test refusal. For the reasons explained here, we reject both of these contentions and we therefore affirm Richardson's convictions.
Underlying facts
Shortly before 1:00 a.m. on November 14, 1999, Anchorage Police Officer Anthony Rollins observed a vehicle speeding and weaving between lanes. Rollins followed the vehicle for a short distance and watched it pull into a driveway. Officer Rollins parked his patrol car behind the vehicle and approached the driver - who turned out to be Richardson.
Rollins observed that Richardson was unsteady on his feet, his eyes were bloodshot, and he smelled of alcohol. When Rollins asked Richardson if he had been drinking, Richardson replied that he had drunk one beer. Because Richardson claimed to have a knee injury, Officer Rollins did not require him to perform the standard field sobriety tests. Rollins did, however, perform the horizontal gaze nystagmus test on Richardson; this test was positive for all six indicators of alcohol consumption. Based on these observations, Rollins arrested Richardson for driving while intoxicated.
Rollins brought Richardson to the Fairview police substation for DWI processing. Richardson's processing began at 1:36 a.m.. Because no other officer was processing an intoxicated driver at that time, Rollins had immediate access to the breath-test machine. But when Rollins told Richardson that he was starting up the machine, Richardson said, "Forget it." Later, when Rollins informed Richardson that the breath-test machine was ready to accept a breath sample, Richardson said, "I told you `no'."
Despite Richardson's announced unwillingness to take the test, Rollins fitted the machine with a clean mouthpiece and then turned to Richardson and said, "Sir, what I'd like for you to do ... ." But Richardson interrupted the officer, saying "Yeah, well forget it. I said `no'. You got it? You understand? I said I decline. I'll take my chances. Fuck you. I'm not going to give you a blow-job [i.e., a breath sample]. Fuck you."
Rollins asked Richardson why he was refusing to provide a breath sample. Richardson responded with a racial slur. At this point, Rollins read Richardson the implied consent warning. After reading this warning to Richardson, the officer again asked Richardson to provide a breath sample. In response, Richardson turned his back. Rollins then recorded the time of refusal: 1:55 a.m..
Because Richardson had refused to provide a breath sample, Rollins read him the statutory notice that his license was revoked, as well as a notice that his vehicle would be impounded or forfeited. Throughout this process, Richardson repeatedly interrupted Rollins with foul language and abusive remarks. Then Rollins informed Richardson of his right to an independent chemical test. Richardson replied that he wanted an independent
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