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Ornquist v. State6/6/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4405
Dwight D. Ornquist appeals his convictions for felony driving while intoxicated and felony refusal to submit to a breath test. Ornquist contends that the officer who arrested him refused Ornquist's request to telephone his wife and further refused to assist Ornquist in contacting an attorney. Superior Court Judge Beverly W. Cutler found that the evidence did not support either of Ornquist's contentions. Having reviewed the record, we conclude that Judge Cutler's findings of fact are not clearly erroneous, and we therefore affirm Ornquist's convictions.
Underlying facts
Late in the evening of September 10, 1998, Alaska State Trooper John Cyr arrested Dwight Ornquist for driving while intoxicated. Ornquist had driven his vehicle into a ditch by the side of the road. While Cyr waited for a tow truck to arrive, he allowed Ornquist to speak with his pastor, Dean Hendrickson, in the patrol car. Hendrickson advised Ornquist to "contact your lawyer first thing when you get a chance".
Cyr later transported Ornquist to the Palmer state trooper station, where Cyr intended to have Ornquist take a breath test. On the way to the station, Ornquist asked Cyr, "What would be the chances of stopping and telling my wife ... everything's OK?" Cyr replied, "You can make a phone call once they've booked you."
When they arrived at the trooper station, Cyr asked Ornquist to take the breath test. Ornquist replied that he wished to speak to an attorney first. When Cyr asked Ornquist if he had an attorney, Ornquist answered that he did not. Cyr then told Ornquist that, because of the hour (it was after midnight), it was unlikely that Ornquist would be able to contact an attorney. Nevertheless, Cyr offered Ornquist a telephone book and told him that he was welcome to try to contact an attorney. However, Cyr warned Ornquist that he "[wasn't] going to give all night".
A little later, Ornquist told Cyr that he wished to call the office of Anchorage attorney Brent Cole. Cyr dialed the number, but the call did not go through - apparently because the telephone they were using was programmed not to initiate long-distance calls. Cyr then allowed Ornquist to try the call again - this time, by having the call routed through the trooper switchboard. The call went through, but no one was present at Cole's office to answer the call, so Ornquist left a message on Cole's answering machine.
Ornquist then declared that he wanted an attorney present when he took the breath test. Ornquist also made an additional remark that later became the subject of an evidentiary dispute: According to Ornquist, he told Cyr that he thought he could reach Cole if he was allowed to call his wife and have her look up Cole's home number. But according to Cyr, Ornquist said that he thought he could reach Cole if he called him at home (i.e., at Cole's home). Following an evidentiary hearing, and after listening to the tape of the exchange between Cyr and Ornquist, Judge Cutler found that Cyr's version of events was accurate: Ornquist had not asked to call his wife, but rather had asked to call Cole at Cole's home.
At any rate, by the time Ornquist made his last remarks, the fifteen-minute observation period mandated by 13 AAC 63.040(a)(1) had expired, and Cyr told Ornquist that he had to take the breath test without further delay.
Ornquist made several unsuccessful attempts to blow into the machine. Cyr thought that Ornquist was not making good-faith attempts to take the test, and he warned Ornquist of the penalties for refusal. Cyr then gave Ornquist one more chance to blow into the machine, but again
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