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Mangiapane v. Municipality of Anchorage3/19/1999
[No. 1627 - March 19, 1999]
Appeal from the District Court, Third Judicial District, Anchorage, Peter G. Ashman and Gregory J. Motyka, Judges.
Steven A. Mangiapane appeals his conviction for driving while intoxicated. He contends that the police denied him a fair opportunity to consult privately with an attorney before deciding whether to take an Intoximeter test. Mangiapane also contends that the trial Judge should have instructed his jury that Intoximeters, even when functioning properly, can yield results that vary as much as .01 percent from a person's true blood- or breath-alcohol level. For the reasons explained here, we reject both of Mangiapane's arguments and we affirm his conviction.
Shortly after Mangiapane was arrested, he was taken to the Anchorage Police Department's Fifth Avenue substation for a breath test. While the police waited for the expiration of the 15-minute observation period mandated by 13 AAC 63.040(a)(1), Mangiapane asked to make a telephone call. Officer John Richtarcsik brought a telephone to Mangiapane but, under department policy, the officer did not release Mangiapane from his handcuffs. Instead, the officer gave Mangiapane the choice of having the telephone receiver propped between his ear and his shoulder or, instead, using the speaker feature of the telephone. Mangiapane chose the speaker phone.
Mangiapane called an attorney. While Mangiapane was on the phone, Richtarcsik backed away ten or fifteen feet and he turned off his tape recorder. Richtarcsik testified that he wished to give Mangiapane as much privacy as possible, consistent with continuing the observation period required by the breath test regulation.
After speaking with the attorney, Mangiapane decided that he would take the breath test. Mangiapane's breath test result was .112 percent blood alcohol. Mangiapane also exercised his right to an independent blood test. His blood was drawn approximately 40 minutes later, and the result was .10 percent blood alcohol.
Before trial, Mangiapane asked the district court to suppress the result of the Intoximeter test. Mangiapane claimed that, because Officer Richtarcsik remained within ten to fifteen feet of him during the telephone call, the officer had denied Mangiapane a fair opportunity to consult with the attorney before deciding whether to take the breath test.
District Court Judge Gregory J. Motyka held a hearing to resolve this issue. Officer Richtarcsik was the sole witness at this hearing; we have already summarized his testimony. Based on Richtarcsik's testimony, Judge Motyka concluded that the police had not intruded improperly into Mangiapane's conversation with his attorney. The Judge therefore denied Mangiapane's request to suppress the Intoximeter result.
In a series of cases , this court has held that " ven though police officers have a duty to maintain custodial observation of [an arrestee] before administration of the breath test, [the arrestee] must be given a reasonable opportunity to hold a private conversation with his or her attorney." But an arrestee's right to confer with counsel "is not violated merely because the arresting officer maintains physical proximity to the [arrestee]". This court has suppressed Intoximeter results only when, in addition to maintaining physical proximity, "the police engaged in additional intrusive measures, intrusions that convinced [arrestees] that the officers were intent on overhearing and reporting [the arrestees'] conversations with their attorneys."
In the present case, Officer Richtarcsik maintained observation of Mangiapane but he did not engage in additional intrusive conduct to dete
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