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Nathan v. Municipality of Anchorage3/27/1998
James G. Nathan appeals his conviction for driving while intoxicated, Anchorage Municipal Ordinance 9.28.020. After Nathan was arrested for DWI, he submitted to a breath test (which showed his blood- alcohol level to be .134 percent), and he declined the offer of an independent blood test. However, Nathan contends that the breath test result should be suppressed because, when he gave up his right to an independent blood test, he did not really understand his right to such a test.
Nathan is deaf, and has been since birth. In the trial court, Nathan asserted that, because of his deafness, he was unable to communicate well with the officer who administered the breath test and who explained Nathan's right to an independent blood test. Nathan contended that, because of this difficulty in communication, he was unable to follow the officer's explanation of his right to an independent test. Even though Nathan signed the waiver-of-test form, Nathan stated that he signed the form to please the officer, without understanding what he was relinquishing.
District Court Judge Stephanie Rhoades held a hearing into Nathan's allegations. At this hearing, Nathan testified that his primary language was American Sign Language; he asserted that he was unable to communicate effectively in English, whether oral or written. Nathan's description of his linguistic ability was corroborated by the testimony of his high school teacher, who declared that, at the time Nathan graduated from high school, his ability to read was perhaps at a third-grade level. Nathan's teacher testified that Nathan had a limited ability to read lips.
With regard to his understanding of the right to an independent blood test, Nathan testified that he did not understand this right. Nathan declared that, even though he read the consent/waiver form and eventually signed the waiver of his right to an independent test, he did not understand the word "independent" as it was used on the form, and he did not understand what he was giving up when he signed the waiver. However, Nathan conceded on cross-examination that he understood, and could have written, phrases such as "Let me use the phone" or "I do not understand".
Both the officer who arrested Nathan (Derek Hsieh) and the officer who administered the breath test to Nathan (Joe Caswell) testified that Nathan was obviously deaf, and that he remained mute throughout their contacts with him. Caswell, in particular, testified that he was fully aware that Nathan could neither speak nor hear. However, both Hsieh and Caswell also testified that Nathan seemed to understand what they said to him: he followed their directions and otherwise responded appropriately to their remarks and questions. When Caswell asked Nathan (in writing) if he could read and write English, Nathan nodded affirmatively without hesitation. Nathan in fact began to write out a statement concerning the events leading up to his arrest. The ensuing interview between Caswell and Nathan was conducted with pen and paper.
Officer Caswell's testimony was corroborated by the record of Nathan's first appearance and bail hearing in front of Magistrate Roy V. Williams. At that hearing, Magistrate Williams communicated with Nathan by passing written notes back and forth. Following this exchange of written communications, the magistrate was apparently satisfied that Nathan understood the proceedings - and, in particular, his obligation to appear in court at the time stated in his bail release form - because the magistrate released Nathan on his own recognizance after Nathan signed an acknowledgement of the conditions of his release.
After hearing this conflicting testimony, and after listening
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