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Swett v. Municipality of Anchorage3/22/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4193 - March 22, 2000]
Appeal from the District Court, Third Judicial District, Anchorage, James N. Wanamaker and Gregory J. Motyka, Judges.
MANNHEIMER, Judge, dissenting.
Following a plea of no contest, Randy Swett was convicted of driving while intoxicated (DWI), a misdemeanor. Swett appeals, contending that District Court Judge James N. Wanamaker should have suppressed the Intoximeter results and other evidence of DWI because the police interfered with Swett's right to consult with his attorney prior to taking the breath test. We affirm.
During the early morning hours of June 27, 1998, Anchorage Police Officer Matt Williams was dispatched to Fort Richardson to contact the military police. There, Williams met Swett, the driver the military police had stopped under suspicion that he was driving while intoxicated. After administering field sobriety tests, Williams arrested Swett for DWI. Williams transported Swett to the 5th Avenue sub-station for DWI processing. The sub-station is a single room, containing two Intoximeters separated by a partition. There is a separate bathroom. While at the substation, Williams - pursuant to department policy and for officer safety purposes - kept Swett's hands cuffed behind Swett's back.
Once at the sub-station, Williams began the 15-minute observation period that precedes the administration of a breath test. During the observation period, Swett asked to speak with his attorney, a public defender in Sitka. Williams asked dispatch to contact that attorney; Williams was told by dispatch that the attorney responded by asking Swett to contact the Anchorage Public Defender. Williams called the Anchorage Public Defender on behalf of Swett. The individual who answered told Williams that because Swett was under arrest on a municipal misdemeanor charge, Swett should contact the Anchorage law firm that handles misdemeanors for indigent defendants charged with municipal crimes. Williams did so, but the call to the law firm was answered by an answering machine. Officer Williams re- contacted the public defender in Sitka. This attorney agreed to speak with Swett.
Williams announced that he was turning off the tape recorder and did so. Williams took no notes. Because Swett kept dropping the phone, Williams held the phone to Swett's ear. Williams could not hear what the attorney said to Swett.
When the call was completed, Swett complained about the officer's presence during the phone call. In response, Williams told Swett that nothing that Williams had heard could be repeated, and that anything said was between Swett and the attorney. Swett then provided a breath sample for the Intoximeter test, which indicated that his BAC was .140 percent.
After the breath test, Williams asked Swett if he wanted an independent blood test. Swett asked to again speak with the attorney. Williams read through the remaining forms before re-contacting the attorney; when finished, he again called the Sitka attorney. As he had done previously, Williams turned off his tape recorder and made no notes. He did not put any information from either conversation into his reports.
Before trial, Swett moved to suppress evidence including the results of the the Intoximeter test. Swett claimed that Williams had denied Swett's right to speak privately with his attorney before deciding whether to take the breath test because Williams did not remove Swett's handcuffs, and stood close enough to Swett to hold the phone to his head.
Judge Wanamaker held a hearing to resolve this issue. Williams was the sole witness at this hearing. Based on Will
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