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Rollins v. State9/13/2000
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, William H. Fuld, Judge.
Ralph Rollins appeals his convictions for felony driving while intoxicated and driving while his license was suspended . Under Alaska law, a motorist arrested for driving while intoxicated must submit to a breath test , but the police must offer the motorist an opportunity for an independent blood test. Rollins contends that he was denied the opportunity for an independent blood test and so, as a consequence, the superior court should have suppressed the results of his breath test.
The tape of the DWI processing reveals that the officer advised Rollins of his right to an independent test. On the tape, Rollins makes no audible response to the officer's statement, and then the officer can be heard saying "no". The superior court heard conflicting testimony on the meaning of this "no".
The officer testified that, when he advised Rollins of his right to an independent test, Rollins shook his head "no". Observing Rollins's non-verbal response, the officer stated "no" in confirmation. Rollins, on the other hand, testified that after the officer read the notice concerning Rollins's right to an independent test, the officer interjected "no" without giving Rollins a chance to respond. In other words, Rollins claimed that the officer answered the question for Rollins - in effect, telling Rollins that he would not be receiving an independent test.
The trial judge, having listened to the tape and having heard this conflicting testimony, concluded that the officer's version of events was more accurate. He found that Rollins was advised of his right to an independent test and that Rollins consciously declined the test, manifesting his choice by shaking his head "no".
We have reviewed the record, and we conclude that the trial judge's finding of fact is not clearly erroneous. Accordingly, the judgment of the superior court is AFFIRMED.
Page 1 Alaska DUI Attorneys
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