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McCormick v. Municipality of Anchorage3/10/2000
As modified on rehearing. The petition for rehearing is granted. Opinion No. 1658, issued on January 28, 2000, is Withdrawn and is superseded by Opinion No. 1667 is issued on this date in its place.
No. 1667
Appeal from the District Court, Third Judicial District, Anchorage, John R. Lohff, Judge.
John McCormick was involved in a motor vehicle accident. When the police arrived on the scene, an officer asked McCormick to perform field sobriety tests. McCormick agreed to perform a horizontal gaze nystagmus test, and the results from all six segments of the test indicated that McCormick was under the influence of alcohol. The officer next asked McCormick to perform two other tests: the turn-and-walk test, and the stand-on-one-leg test. McCormick refused to perform these tests. The officer then arrested McCormick for driving under the influence .
At McCormick's trial, the Municipality introduced evidence that McCormick had refused to perform the latter two field sobriety tests. In this appeal, McCormick contends that the Municipality should not have been allowed to introduce evidence of, or comment on, McCormick's refusal to perform these two field sobriety tests.
At the police station, McCormick submitted to a breath test. He then exercised his right to obtain an independent blood test at a local hospital. Hospital personnel drew two vials of McCormick's blood. Soon thereafter, McCormick's attorney contacted the hospital and directed them to send both vials to a laboratory in Colorado. The Municipality was not notified of this action.
Some months later, thinking that the blood sample was still at the hospital, the Municipality obtained a search warrant for the blood sample, contacted the hospital, and discovered that the blood had been sent away at the defense attorney's direction. The Municipality then applied to the district court for an order directing the defense attorney to surrender any unused blood to the Municipality for testing. The district court issued this order. A portion of the blood was sent to the Municipality; when tested, this blood yielded a result of .125 percent alcohol. This test result was introduced at McCormick's trial.
On appeal, McCormick contends that the district court should not have ordered McCormick's attorney to surrender the remaining blood. McCormick argues that the Alaska Constitution bars a court from ordering a DWI defendant to produce a portion of the blood drawn during an independent test; he contends that any such order impermissibly burdens the defendant's due process right to an independent test. McCormick also contends that, because the blood in question was in the possession of his attorney or his attorney's agents (the laboratory in Colorado), the district court's order infringed McCormick's attorney-client privilege.
In addition, McCormick contends that the district court improperly prohibited him from arguing to the jury that they should distrust the government's blood-test results because McCormick's blood sample might have been mishandled or improperly preserved by the Colorado laboratory.
Finally, McCormick challenges one aspect of his sentence: the forfeiture of his vehicle.
For the reasons explained here, we reject all of McCormick's contentions and we affirm his conviction.
Can the government introduce evidence of, and comment on, a motorist's refusal to perform field sobriety tests after the motorist is validly stopped on suspicion of driving while intoxicated?
As described above, McCormick refused to perform two of the field sobriety tests requested by the police officer. Before trial, McCormick aske
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