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Yang v. State2/11/2005
No. 1969
Il Seung Yang appeals his conviction for refusing to submit to a breath test following his arrest for driving while intoxicated. Yang argues that his proficiency in English was so poor that he did not understand the offer of the breath test or his legal obligation to take the test. He argues in the alternative that the police failed to adequately advise him of the consequences of refusing the breath test.
Yang also challenges the trial judge's decision to allow the State to rebut these contentions by presenting evidence that Yang had taken the breath test on a prior occasion. And Yang argues that the prosecutor made statements to the jury implying that Yang had a prior conviction for driving while intoxicated, and that the trial judge should therefore have declared a mistrial.
Finally, Yang argues that the sentencing judge misconstrued the record when he concluded that Yang had engaged in bad driving in this case, and when he used this purported bad driving to justify an increase in the length of Yang's driver's license suspension.
For the reasons explained here, we reject all of Yang's contentions and we affirm his conviction and his sentence.
Underlying Facts
Early on the morning of June 23, 2002, two off-duty corrections officers went to the Kotzebue police station and reported that they had seen an Asian male driving a Toyota pickup truck very fast on Airport Way. According to the corrections officers, the pickup truck was weaving across the road, and they suspected that the driver might be intoxicated.
While they were in the police station making their report, the corrections officers happened to see the same pickup truck speed by the police station. Shortly afterward, the officers located this pickup truck parked in front of a hotel , and they radioed the truck's location to the police.
Kotzebue Police Officer Peter Steen contacted the truck's owner, Yang, in the lobby of the hotel . Yang confirmed that the truck was his, and he acknowledged that he had been driving the truck. Yang smelled of alcoholic beverages; he swayed as he stood, and he had red, watery eyes. Yang agreed to perform field sobriety tests; at the conclusion of these tests, Steen arrested him for driving while intoxicated.
Yang was initially cooperative, but after he was transported to the Kotzebue jail for a breath test, he became less so. At the jail, Steen read Yang the "implied consent" form - warning Yang that, if he refused to take the breath test, he would be charged with a crime and would lose his driver's license, and also warning Yang that his refusal to take the test could be used against him in other proceedings. Yang responded, "I don't care," and he refused to take the test.
Based on these events, Yang was charged with driving while intoxicated and breath test refusal. Following a jury trial, Yang was acquitted of driving while intoxicated, but he was convicted of refusing to submit to the breath test.
The trial judge's ruling that the State could introduce evidence of a prior occasion when Yang took the breath test Yang's defense to the breath test refusal charge was that his command of English was so poor that he had not understood Officer Steen's request to take the test or the warnings concerning the consequences of refusing the test.
Yang took the stand at his trial and testified (through an interpreter) that, because of his poor comprehension of English, he had not understood that he had been arrested for driving while intoxicated, nor had he understood that he would be charged with another crime for refusing to take a breath test. Yang asser
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