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Colette v. State1/7/2004
Jason S. Colette was arrested for driving while intoxicated [FN1] and refusal to submit to a chemical test. [FN2] Before trial, he moved to suppress the evidence of his intoxication and refusal, arguing that the police had interfered with his right to contact an attorney under AS 12.25.150(b). The district court denied Colette's motion, ruling that the statutory right to contact counsel only applies after an arrest--and that, because Colette asked to call his attorney before his arrest (while he was performing field sobriety tests), the police were not required to honor his request.
We do not agree with the district court's ruling that, as a matter of law, the police may ignore a pre-arrest request to contact counsel. However, we conclude that suppression of the evidence is not required in this case. The police did not prevent Colette from calling his attorney--they simply asked him to delay his call until he had finished the field sobriety tests. Colette never renewed his request to telephone his attorney, even though he was informed at the police station that he had the right to consult an attorney. Because we conclude that the police did not unreasonably interfere with Colette's efforts to telephone his attorney, we affirm the denial of his motion to suppress.
Facts and proceedings
Early on the morning of June 23, 2002, an off-duty state trooper stopped Colette after observing him run a red light and drive approximately 100 miles per hour on Airport Way in Fairbanks. The trooper was soon joined at the scene by Fairbanks police officers Jeromey Lindhag and Eric A. Jewkes.
Colette received a call on his cell phone shortly after the police contacted him. The call lasted about forty-five seconds. During that time, Colette told the caller, among other things, that he was in front of his shop and that he had been stopped for drunk driving. Although Officer Lindhag twice asked Colette to tell the caller that he would call back later, he did not otherwise interfere with the phone call. After ending this phone call, Colette told Officer Lindhag that he had consumed a "couple of beers." Colette then agreed to perform field sobriety tests. At Officer Lindhag's direction, Colette performed the horizontal gaze nystagmus test and the walk-and-turn test. Officer Lindhag then demonstrated the one-legged stand test. After this demonstration, the following discussion took place among Colette, Officer Lindhag, and an unidentified third person (presumably Sergeant Jewkes):
Colette: Why don't you go ahead and let me call my attorney.
Officer Lindhag: You got his phone number?
Colette: (inaudible) I do.
Unidentified voice: Why don't you go ahead and finish the test first.
Officer Lindhag: Can you do that test?
Colette: Finish the test first.
Officer Lindhag: Can you do that test?
Colette: Excuse me, what test is that?
Officer Lindhag: I just explained it to you and I showed it to you.
*2 Colette then performed the one-legged stand test. Following that test, Officer Lindhag arrested Colette for reckless driving and driving while intoxicated. Colette did not ask to speak with an attorney after his arrest.
Before trial, Colette moved to suppress the evidence of his conduct at the police station, arguing that he had been denied his right under AS 12.25.150(b) to call his attorney. District Court Judge Mark I. Wood denied Colette's motion. Judge Wood found that Colette had not asked to call an attorney after he was arrested. He held that the statutory right to call counsel does not attach unless a suspect invokes the right after arrest, and that the police had thus not violated Colette's right. Because of this ruling, Judge Wood made no factual findings on whether the police had interfered with Colette's efforts to contact his at
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