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Becker v. State1/2/2003
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 as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
No. 4646
A jury convicted Reggie D. Becker of driving while intoxicated. In this appeal, Becker contends that District Court Judge Mark I. Wood erred when he found that Becker had not invoked his right under AS 12.25.150(b) and Zsupnik v. State to telephone a friend or relative before deciding whether to submit to a breath test. He claims that Judge Wood should have suppressed the results of his breath test. We conclude that Judge Wood's findings were not clearly erroneous and support his decision to deny Becker's motion to suppress. Accordingly, we affirm Becker's conviction.
Facts and proceedings
On June 8, 2001, Fairbanks Police Officer Bruce Barnett saw Becker racing another vehicle on the Steese Highway with his 1955 Chevrolet. The officer was able to contact Becker because Becker's car had engine trouble and Becker pulled to the side of the road. Officer Barnett noticed that Becker appeared to be intoxicated and he was eventually arrested for driving while intoxicated. At the Fairbanks Police Station, the police administered a breath test that showed that Becker had a breath alcohol content of .124 percent. Later, Becker had blood drawn for an independent chemical test; the results of that test are not part of the record.
The issue of a phone call arose because the police decided to impound Becker's 1955 Chevrolet. Before he was taken to the police station, Becker asked Officer Barnett if he could contact somebody to retrieve his car. Becker later moved to suppress the results of his breath test, claiming that the police had violated Copelin v. State, Zsupnik and AS 12.25.150(b) by denying him his right to make a phone call before he submitted to a breath test. Becker argued that because he had asked to make a phone call while still on the Steese Highway, the police had a duty to offer him the opportunity to use the phone as soon as they arrived at the police station. Because the police did not offer him this opportunity, he claimed the breath test results should be suppressed.
Judge Wood held an evidentiary hearing at which Officer Barnett and Becker testified. Among the evidence presented was an audiotape recorded by the officer during the stop. At the conclusion of the hearing, Judge Wood found that Becker had requested a phone call at the scene of the traffic stop. But Judge Wood found that the express purpose of Becker's request was to attempt to arrange for his car. Judge Wood found that the police had answered this request by telling Becker that they would impound his car.
Judge Wood alternatively found that even if the police had violated Becker's Zsupnik right, suppression of his breath test was not warranted.
Discussion
Did Judge Wood err when he found that Becker had not invoked the right described in Zsupnik?
Becker contends that Judge Wood erred when he found that Becker "did not request to make a phone call for any purpose other than to have someone take care of his car." Becker also argues that because he asked to use the phone while at the scene of the traffic stop, Judge Wood should have found that the police were required to offer him a phone call when he arrived at the police station.
In Zsupnik, the supreme court extended the right to call an attorney it had recognized in Copelin b
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