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Clark v. Municipality of Anchorage5/5/2000
[No. 1671- May 5, 2000]
Appeal from the District Court, Third Judicial District, Anchorage, Natalie K. Finn, Judge.
Amy Catherine Clark pleaded no contest to the charge of driving while intoxicated. Her plea purports to be a Cooksey plea - that is, a plea that preserves her right to litigate a specified issue on appeal. But under Cooksey and the subsequent cases construing the Cooksey rule, the issue preserved for appeal must be "dispositive of the entire case". If it is not, the plea is not valid and the defendant has no right to appeal.
In Clark's case, the preserved issue is not dispositive of the charge against her. We therefore dismiss this appeal and we remand Clark's case to the district court, where Clark must be afforded the opportunity to withdraw her plea and go to trial.
The claim that Clark attempted to preserve
Clark was arrested for driving while intoxicated, and she was asked to submit to a breath test. Clark took the test, but she claims that the test result should be suppressed because the police did not inform her of her right to consult an attorney before deciding whether to take the test.
Alaska law requires the police to honor an arrested motorist's request to consult an attorney before taking the breath test, if the motorist makes such a request. But we have repeatedly held that if an arrested motorist does not request the opportunity to consult an attorney before taking the breath test, the police have no obligation to affirmatively advise the motorist of this right. Clark argues that our prior decisions are wrongly decided. She asserts that arrested motorists have a constitutional right to consult an attorney before they decide whether to take the breath test, and she further asserts that the police have a corresponding constitutional obligation to inform motorists of this right.
Why this claim is not dispositive of the litigation
Clark was prosecuted for driving while intoxicated under AMC 9.28.020A. This ordinance provides two alternative ways of proving the offense. One way is to prove that the defendant operated a motor vehicle while their blood-alcohol level was .10 percent or higher. The other way is to prove that the defendant operated a motor vehicle while they were under the influence of intoxicants.
If Clark prevailed on her claim that police officers are obliged to advise arrested motorists of the right to consult an attorney before deciding whether to take a breath test, she might gain suppression of her breath test result. But this would not bar the Municipality from pursuing the other theory of guilt - the theory that Clark was under the influence of intoxicants. The record reveals that there was substantial evidence to support this theory, even without evidence of the breath test result.
According to the stipulated facts, Clark was stopped in the early morning hours after the police saw her driving with her headlights off. Clark's headlights remained off even after the driver of another vehicle flashed their headlights at her. When the police officers contacted Clark, they immediately noted a very strong odor of alcoholic beverages. When Clark was asked to step from her vehicle, she told the officers that she wished to put on her coat. Clark reached into the back seat of her car, apparently to retrieve the coat. She continued to search the back seat area of the car even after it was obvious that the garment was not where she thought it was. When Clark got out of her vehicle, the officers saw that her movements were fumbling and that she was having trouble maintaining her balance. The officers also noted that Clark had red, bloods
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