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Beattie v. State8/17/2005
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
No. 4999
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
A jury convicted Thomas M. Beattie of felony driving while under the influence, felony refusal to submit to a chemical test, and misdemeanor driving with a suspended license. Beattie argues that the superior court should have suppressed the evidence against him because the state troopers violated his statutory right to contact an attorney before deciding whether to take a breath test. He also argues that the court erred by refusing to instruct the jury that it could not find that he was "operating" a motor vehicle unless it found that he had "actual, physical possession" of the ignition key. We reject these claims and affirm Beattie's convictions. The superior court did not clearly err in finding that Beattie was offered, but declined, the opportunity to call his attorney before refusing to take the breath test. The court also did not err in rejecting Beattie's proposed jury instruction, because that instruction misstated the law.
Facts and Proceedings
At about 10:15 p.m. on April 6, 2002, three off-duty wildlife protection troopers observed a Chevy Blazer being driven erratically. When the troopers first spotted the Blazer, it was stopped at a stoplight straddling the white line between the left and right southbound lanes on the Parks Highway. When the light changed, the Blazer drove up on to the cement median between the southbound and northbound lanes. The driver then overcorrected, swerving over the centerline between the southbound lanes. The troopers pulled up behind the Blazer, got the license plate number, and phoned it in to state trooper dispatch. The dispatcher told them that the Wasilla Police Department would respond. However, when the Wasilla police did respond, they pulled over the wrong vehicle, so the troopers continued to follow the Blazer. The Blazer turned left off the Parks Highway and out of sight for a short period of time, but the troopers were able to follow its fresh tracks to Quiet Circle and into the parking lot of Beattie's apartment complex. The troopers pulled up behind the Blazer and saw Beattie sitting in the driver's seat. No one else was in the vehicle. As the troopers approached the Blazer, Beattie shut off the engine and headlights. The troopers identified themselves, and removed Beattie's keys from the ignition. Because the stop was outside Wasilla city limits, Alaska State Trooper Nathan Bucknall ultimately took over the investigation, arresting Beattie for driving while under the influence and for driving with a suspended license. Beattie later refused to take a breath test, and was charged with refusal to submit to a chemical test.
Before trial, Beattie moved to suppress the evidence against him, arguing that Trooper Bucknall had violated his statutory right to contact an attorney. Superior Court Judge Beverly W. Cutler denied the motion, finding that Trooper Bucknall had offered Beattie an opportunity to contact his attorney before he decided whether to take the breath test, and Beattie chose not to call his attorney.
At trial, Beattie testified that he did not drive the Blazer that night. He said he was outside smoking a cigarette when his girlfriend's son, Matthew Theodore, drove up, parked the Blazer, and walked off, leaving the ke
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