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Schroeder v. State5/9/2001
MEMORANDUM OPINION AND JUDGMENT
No. 4393
Following a bench trial before District Court Judge Mark I. Wood, Don Kelly Schroeder was convicted of driving while intoxicated (DWI). Schroeder appeals, arguing that Judge Wood should have suppressed evidence because Schroeder was denied his right to call or contact a friend after his arrest. We affirm.
Facts and Proceedings
On August 4, 1999, at around 1:50 a.m., Fairbanks Airport Police Officer James Gibson observed a vehicle fail to stop at a stop sign at an intersection. Gibson turned on his lights and followed the vehicle as it turned onto another street and then pulled into a driveway. When Gibson contacted the driver, Schroeder, he smelled the odor of alcohol on Schroeder's breath. Gibson also noted that Schroeder's speech was slurred and his eyes were red and watery.
Gibson administered field sobriety tests, which Schroeder failed. Gibson then arrested Schroeder and took his cell phone and pager, which he put in Schroeder's truck. Schroeder asked Gibson if he could go inside his house and wake up his roommate, Mike, to arrange for bail. Gibson told Schroeder that he could not allow him go inside the house, but Gibson offered to contact Mike for Schroeder. Gibson knocked on the front door of Schroeder's residence a couple of times, and yelled for Mike, but there was no response. Gibson then opened the door, and yelled for Mike, but there was still no response.
Gibson told Schroeder that he could not awaken Mike, but that if Schroeder was worried about bail, then he would take down Mike's phone number and try to contact him later. Gibson then transported Schroeder to the trooper station. Sometime prior to reaching the station, Schroeder asked again about calling Mike and gave a telephone number to Gibson.
After Gibson and Schroeder arrived at the trooper station, Schroeder did not ask to make a phone call, nor did he ask to speak to an attorney. Gibson testified that it slipped his mind to give Schroeder an opportunity to use the telephone. The fifteen minute observation period passed, and Schroeder took the Intoximeter test. The Intoximeter result was .241. At some point later in the evening, Gibson asked dispatch to call Schroeder's roommate. Schroeder had blood drawn at the hospital following the Intoximeter.
Schroeder filed a motion to suppress evidence, including his Intoximeter results. Schroeder claimed that the police violated his right to contact a friend under Copelin v. State and Zsupnik v. State because after his arrest, Schroeder requested that he be allowed to contact or call his roommate and the police did not allow him to do so. After an evidentiary hearing, Judge Wood denied Schroeder's motion to suppress. Schroeder was subsequently tried and convicted of DWI.
Discussion
On appeal, Schroeder renews his argument that he was denied his statutory right immediately to contact or call a friend because Officer Gibson did not allow him to contact his roommate at the scene of his arrest or once he reached the trooper station. He claims that the trial court should have suppressed the evidence collected after this violation, particularly the results of the breath test.
AS 12.25.150(b) and Criminal Rule 5(b) allow an arrestee the right to contact an attorney and a relative or friend immediately after their arrest. In Copelin, the supreme court held that when an arrestee asks to contact an attorney, AS 12.25.150(b) and Criminal Rule 5(b) require that the arrestee be given "a reasonable opportunity to do so before being required to decide whether or not to submit to a breathalyzer test." If the police deny
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