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Feldman v. State1/19/2005
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. 4962
Edward W. Feldman was convicted of felony driving while under the influence and driving with a suspended license. Feldman appeals the denial of his motion to suppress the results of his field sobriety tests, arguing that his consent to perform those tests was involuntary because it was given under threat of arrest. Feldman also appeals the denial of his motion to suppress his breath test result, arguing that he was not given sufficient time to knowingly and intelligently waive his right to an independent test. For the reasons discussed below, we reject these claims and affirm Feldman's conviction. We do not address Feldman's claim that the court erred in giving three of the jury instructions because Feldman did not preserve this claim and it is inadequately briefed.
Facts and proceedings
On August 20, 2002, a dispatcher for the Alaska State Troopers relayed a report that a white Chevrolet Cavalier was in a ditch on Chena Small Tracts Road in Fairbanks and that the driver was intoxicated. Trooper Ramin Dunford responded to this dispatch and, after locating the place where a car had gone into the ditch, observed a white Chevrolet Cavalier driving towards him. The Cavalier turned abruptly onto a side road and entered a driveway. When Trooper Dunford contacted the driver, Feldman, Trooper Dunford observed that Feldman smelled of alcohol and that his speech was thick and slurred and his eyes watery. Feldman admitted that he had been driving and that he had consumed two beers and two shots of vodka.
Trooper Dunford asked Feldman to perform field sobriety tests, but Feldman declined the request. By Feldman's account, the trooper then said, in essence: "Well, do them, or I'll arrest you anyway." Although Trooper Dunford was "very polite," Feldman said he took this statement as a threat and would not have done the sobriety tests if Trooper Dunford had not made this statement. Feldman apparently failed the tests and Trooper Dunford arrested him for driving while under the influence.
Feldman was transported to the trooper station, where a breath test showed that his breath-alcohol level was .149 percent. After reporting these results to Feldman, Trooper Dunford read Feldman the standard form advising him of his right to an independent chemical test. Feldman would not say whether he wanted an independent test, instead repeatedly asking what good the test would do him, so Trooper Dunford marked that Feldman had refused to decide.
Because Feldman had two prior drunk driving convictions after January 1, 1996, and within ten years of his current offense, he was indicted for felony driving while under the influence. Feldman was also charged with driving with a suspended license. Feldman moved to suppress the results of his field sobriety tests, arguing that he was coerced into performing the tests by Trooper Dunford's threat to arrest him. Feldman also moved to suppress the breath test results, arguing that he did not knowingly and intelligently waive his right to an independent chemical test because Trooper Dunford did not give him enough time to decide whether to waive his right to the test.
Following an evidentiary hearing, Superior Court Judge pro tem Jane F. Kauvar refused to suppress Feldman's field sobriety test results, finding that Trooper Dunford had n
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