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Alexander v. Municipality of Anchorage12/15/2000
[No. 1710 - December 15, 2000]
MANNHEIMER, Judge, dissenting.
Following a bench trial on stipulated facts, District Court Judge James N. Wanamaker convicted Gregory L. Alexander of driving while intoxicated (DWI), a misdemeanor. Alexander appeals, contending that District Court Judge Natalie K. Finn erroneously denied his motion to suppress the results of his breath test and his independent blood test. Alexander claims that the police interfered with his right to consult with his attorney before taking a breath test. We affirm because Judge Finn's findings are supported by the record and we agree with Judge Finn that on that record, suppression of evidence was not warranted.
Facts and Proceedings
On March 12, 1999, at about two in the morning, Anchorage Police Officer Chris Goldberg stopped Alexander for driving the wrong way on 5th Avenue, a one-way street. When Goldberg contacted Alexander, he noticed signs indicating that Alexander had been drinking. Goldberg administered some field sobriety tests. After Alexander completed these tests, Goldberg arrested him for DWI.
Goldberg transported Alexander to the 5th Avenue police substation for a breath test. At the substation, Goldberg kept Alexander's hands cuffed behind his back. Goldberg testified that Alexander was intoxicated and uncooperative; he was also upset that he had been arrested, and angry that his vehicle was impounded. Goldberg also testified that based on his eight years experience as a street officer, he has found that intoxicated people are unpredictable, and that, for safety purposes, with very few exceptions, he keeps their hands cuffed behind their backs. Goldberg also testified that it was department policy to keep all DWI arrestees' hands cuffed behind their backs during DWI processing.
While at the substation, Alexander asked to use a phone. Alexander wanted to call a specific attorney, but did not know the attorney's home telephone number. Goldberg helped Alexander call Alexander's wife to get the attorney's home phone number; then Goldberg called the attorney. Before calling Alexander's wife, Goldberg turned off the substation's tape recorder but forgot to turn off the personal tape recorder that Goldberg had in his pocket. The substation's recorder remained off until Alexander completed his calls. Alexander did not know about Goldberg's personal recorder.
Once Alexander's attorney answered the phone, Goldberg switched the phone from the speakerphone to the handset, and placed the handset between Alexander's shoulder and head. Goldberg testified that he regularly does this, and it usually works. However, Alexander was unable to keep the phone from slipping out, so Goldberg held the phone to Alexander's head. Goldberg heard Alexander's side of the conversation, but could not hear the attorney.
Goldberg testified that in his experience, regardless of where he stood in the substation, had the speakerphone been used, he would have heard both sides of the conversation. Goldberg said he always tries to have arrestees use the handset because it is more private.
Alexander also testified. He said that Goldberg was approximately a foot and a half away, and that having Goldberg stand so close made him nervous and uneasy when talking to the attorney; as a result, he lied to his attorney, and told him that he had only had one drink. Based on this information, the attorney advised Alexander to request an independent blood test. After this conversation, Alexander provided a breath sample for the Intoximeter. The result showed that his blood alcohol content (BAC) was .120 percent. Alexander requested an independent test, and wa
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