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Moses v. State10/5/2001
Following a jury trial, Jonathan Moses was convicted for driving while intoxicated (DWI) and refusing to submit to a chemical test (refusal). On appeal, Moses contends that District Court Judge Jane F. Kauvar erred when she found that Moses was provided the right to make a telephone call prior to deciding whether to submit to a breath test, that an administrative decision at Moses's license revocation hearing did not collaterally estop the state from proving that Moses was provided the right to make a telephone call, that the state troopers were not required to videotape Moses's refusal to take the breath test, and that Moses validly waived his right to an independent chemical test. For the reasons below, we affirm Moses's convictions.
Facts and Proceedings
On May 15, 1999, at approximately three in the morning, Alaska State Trooper Patrick S. Johnson stopped a vehicle that was repeatedly leaving its lane of travel and crossing the right fog line on Chena Hot Springs Road near Fairbanks. Johnson contacted the driver, Moses, to determine whether he was driving while intoxicated . Upon contact, Johnson smelled a strong odor of alcohol coming from Moses's breath and person, and saw that Moses had bloodshot, watery eyes, slurred speech, and a swaying stance.
Johnson had Moses perform some field sobriety tests. Moses failed the horizontal gaze nystagmus test, only partially completed the walk-and-turn and the one-leg- stand tests, and refused to do any other tests. Moses submitted to a portable breath test, and his breath alcohol content was .190 percent. Johnson also found alcohol in Moses's vehicle, and Moses admitted that he had consumed alcohol that evening.
After arresting Moses for DWI, Johnson allowed Moses to call his wife from the scene of the traffic stop. The call lasted approximately one minute. Johnson then transported Moses to the station for an Intoximeter test.
After they arrived at the station, Moses again asked to make a phone call. Johnson asked if Moses wanted to call his wife or a public defender, and Moses said that he wanted to call his wife. During this conversation, Johnson inquired whether Moses was going to have his wife call a public defender. While the transcript indicates that Moses's response is "indiscernible," the record as a whole shows that Moses indicated that he wanted to call his wife to discuss arranging bail. Moses gave no indication at the station that he wanted his wife to call an attorney.
When they returned to the Intoximeter, Johnson asked Moses if he wanted to call a public defender. Moses said no, and the DWI processing proceeded. When the Intoximeter 3000 was ready, Moses refused to provide a breath sample. The DWI processing at the station, including the refusal, was audiotaped but was not videotaped. After Moses refused, he was advised of his right to an independent chemical test. He signed the notice of this right, indicating that he did not want the independent test.
Subsequently, Moses moved to suppress the evidence. Among other things, Moses argued that Johnson, by not allowing him a second call to his wife while at the station, had violated AS 12.25.150(b) and Zsupnik v. State. He also argued that a Division of Motor Vehicles (DMV) hearing officer's decision rescinding Moses's license revocation because of Johnson's failure to allow this call collaterally estopped the state from asserting that Johnson had complied with AS 12.25.150(b). Finally, Moses sought suppression on the grounds that the refusal was not videotaped, and that his waiver of the independent test was not valid.
Following an evidentiary hearing, Judge Kauvar found that Johnson had com
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