Palmer v. State , 1979 Alas. LEXIS 602 ( 1979 )

OPINION

BURKE, Justice.

After trial by jury in the district court, John W. Palmer, appellant, was convicted of the crime of operating a motor vehicle while under the influence of intoxicating liquor. See AS 28.35.030. Upon entry of a final judgment he appealed to the superior court where his conviction was affirmed. This appeal followed.

I

Palmer’s first contention is that the trial court erred in refusing to suppress evidence of a videotape recording made at trooper headquarters following his arrest.¹ Among other things, the recording portrayed Palmer while a breathalyzer examination was being administered to him and while he performed other sobriety tests, some involving verbal skills. In support of his argument that this evidence should have been suppressed, Palmer advances several theories.

a. Right to a warning.

Palmer contends that, as a matter of due process and fundamental fairness, he was entitled to a warning that his actions were being videotaped. See Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595, 1602 (1942). He cites no direct authority for this argument and we know of none. Accordingly, under the circumstances shown by the evidence in this case, we hold that no warning was required on these grounds.²

b. Right of privacy.

Palmer next contends that such a warning was required by article I, section 22, of the Constitution of the State of Alaska, which specifically guarantees to every citizen of the state a right to privacy.³ In Smith v. State, 510 P.2d 793, 797 (Alaska), cert. denied, 414 U.S. 1086, 94 S.Ct. 603, 38 L.Ed.2d 489 (1973), prior to the adoption of article I, section 22, we considered whether there was a constitutionally protected right of privacy under the search and seizure clause of the state constitution, article I, section 14. In Smith we approved the test articulated by Mr. Justice Harlan in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), for determining whether a reasonable expectation of privacy exists: “[Tjhere is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” Id. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 588 (Harlan, J., concurring). See also Nathanson v. State, 554 P.2d 456 (Alaska 1976). In State v. Glass, 583 P.2d 872, 880 (Alaska 1978), we held that the privacy amendment, Alaska Const., art. I, § 22, prohibited the electronic recording of a narcotics transaction. We concluded that the defendant’s subjective expectation that his conversations with a police informant would not be secretly recorded was one that society recognized as reasonable.⁴

We think the situation in the case at bar, however, is readily distinguishable. When the videotape recording was made, Palmer was already under arrest. After being transported to police headquarters, he was asked to submit to a breáthalyzer examination and to perform a number of sobriety tests. Assuming, arguendo, that he had any actual or subjective expectation at that point that his actions would not be recorded, we are convinced that that expectation is not one that society is prepared to recognize as reasonable. Accordingly, we hold that there was no violation of the right of privacy guaranteed to Palmer by article I, section 22, of the state constitution.⁵

c.Self-incrimination and duty of disclosure.

Palmer further contends that recording his actions on videotape without his knowledge was a violation of his privilege against self-incrimination and a breach of the prosecutor’s duty to disclose evidence favorable to the accused. Criminal Rule 16(b)(3) provides: “The prosecuting attorney shall disclose to defense counsel any material or information within his possession or control which tends to negate the guilt of the accused as to the offense or would tend to reduce his punishment therefor.” Palmer argues that this rule, in combination with minimal requirements of due process, requires the police to inform one arrested for driving while intoxicated that his actions are being videotaped “so that the individual can perform at his best.” This argument, in our judgment, is frivolous.

Palmer’s self-incrimination argument is that, since he was not advised of either his Miranda rights or the fact that he was was being videotaped prior to being asked to perform the actions that were recorded, the recording, or at least the audio portion thereof, should have been suppressed. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court of the United States held that evidence obtained as a result of custodial interrogation of an accused is inadmissible against him in a state court unless it can be demonstrated that he was advised of his fifth amendment right to remain silent and his sixth amendment right to have an attorney present during questioning: “[Ujnless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Id. at 479, 86 S.Ct. at 1630, 16 L.Ed.2d at 726 (footnote omitted). In Anchorage v. Geber, 592 P.2d 1187, 1192 (Alaska 1979), we held that the police were not required to advise one arrested for driving while intoxicated of the right to have counsel present before they administered and videotaped certain field sobriety tests at the police station. Our opinion in that case, however, did not suggest that the Miranda requirements can be ignored where the tape contains evidence of statements or events to which those requirements are otherwise applicable. Thus, for example, where an accused confesses to a crime as a result of custodial interrogation by the police, a videotape recording of his confession would be inadmissible unless the interrogation leading to that confession were preceded by a proper Miranda warning.

In the case at bar, the videotape begins with Palmer taking the breathalyzer test. The tape then shows Palmer performing several physical tests designed to determine whether, and to what extent, he was under the influence of intoxicating liquor. The tape shows that when asked to perform the “walk the line test,” Palmer complained of problems with his hip. The trooper administering the tests then informed Palmer that the breathalyzer test results indicated that he had a blood alcohol level of .16%.⁶ To this, Palmer replied, “Oh no.”

The fifth amendment offers no protection against compulsion to take the sort of tests administered to Palmer in this case. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Moreover, even if the statements made by the accused were testimonial in character, as argued by Palmer, they were not the product of the sort of custodial “interrogation” that requires a Miranda warning. See Hunter v. State, 590 P.2d 888 (Alaska 1979).

Even if Palmer’s utterances were erroneously admitted into evidence, however, the error was harmless beyond a reasonable doubt. Considering the statements along with the other evidence in the case, we see no reasonable possibility that those statements contributed to the jury’s verdict. See Rule 47(a); Alaska R.Crim.P.; Love v. State, 457 P.2d 622, 633 (Alaska 1969).

II

As 28.35.033(e) provides that a person who is required to submit to a breathalyzer examination may obtain an independent blood alcohol test:

The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test in addition to the test administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer; the fact that the person under arrest sought to obtain such an additional test, and failed or was unable so to do, is likewise admissible in evidence.

Palmer was not advised of his right to obtain an independent test, and he now contends that the results of the breathalyzer examination were therefore inadmissible. The statute, however, contains no requirement that such advice be given, and we are not persuaded that it is required by any provision of the state or federal constitution. See People v. Thornton, 9 Mich.App. 536, 157 N.W.2d 490 (1968); People v. Kerrigan, 8 Mich.App. 216, 154 N.W.2d 43 (1967); State v. Myers, 88 N.M. 16, 536 P.2d 280 (1975); State v. Osburn, 13 Or.App. 92, 508 P.2d 837 (1973); Caldwell v. Commonwealth, 205 Va. 277, 136 S.E.2d 798 (Va.1964). Compare Wirz v. State, 577 P.2d 227, 230 (Alaska 1978).⁷

Ill

Palmer next contends that due process requires that a person in his position be advised that he has a right to refuse to submit to a breathalyzer examination. See AS 28.35.032(a); Anchorage v. Geber, 592 P.2d 1187 (Alaska 1979).

While AS 28.35.032(a) prohibits the giving of any other blood test when the person arrested refuses to submit to a breathalyzer examination, Anchorage v. Geber, 592 P.2d at 1191, it does not otherwise grant or recognize a right on the part of the arrested person to refuse that examination.⁸ Since the legislature has not imposed a specific requirement that the person be informed that he has a right to refuse the breathalyzer examination, we have held that there is no statutory requirement that such advice be given. Wirz v. State, 577 P.2d 227, 230 (Alaska 1978). We are equally unpersuaded that such advice is required as a matter of constitutional due process.

IV

During the trial of the case, the district court refused a defense request to exclude the arresting officer from the courtroom. See AS 09.20.180; Rule 43(g)(3), Alaska R.Civ.P.⁹ The record convinces us that the court did not abuse its discretion in ruling as it did. Accordingly, there was no error. See Dickens v. State, 398 P.2d 1008 (Alaska 1965).

V

Palmer sought to introduce expert testimony concerning procedures utilized in other states and in Canada to increase or guarantee the accuracy of breathalyzer examinations, particularly the practice of administering a second test to see how it compares to the first. The techniques, methods, and standards pertaining to breathalyzer examinations in Alaska have been established by the legislature and administrative regulations adopted by the Department of Health and Social Services. See AS 28.35-033; 7 AAC 30.010-.080. In this appeal, Palmer makes no claim that the state did not comply with these techniques, methods, and standards.

To the extent that the evidence merely established that other procedures are utilized elsewhere, it was irrelevant and properly excluded. In any event, the district court held extensive hearings on the nature and content of the proffered testimony, and there was no showing that the breathalyzer test in question suffered from any of the defects to be testified to by the expert witness. Thus, while the excluded evidence may have had some probative value on the issue of the probable accuracy of the test administered to Palmer, we are unable to say that the district court erred in ruling as it did.

VI

After stopping Palmer’s vehicle, the arresting officer, before formally placing him under arrest, asked Palmer how much he had had to drink. Palmer replied that he had had “five or six beers.” This exchange occurred before Palmer was advised of his right to remain silent. At trial, Palmer’s attorney moved to suppress this evidence, claiming that its introduction would violate his client’s constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Assuming, arguendo, that there was a Miranda violation, we conclude that the statement, if it was incriminating, merely corroborated other evidence at trial which, standing alone, would have been more than sufficient to convict Palmer of the offense charged. If it was error to admit the statement, such error was harmless beyond a reasonable doubt, since we see no reasonable possibility that that evidence contributed to the jury’s verdict. Love v. State, 457 P.2d 622, 633 (Alaska 1969).

VII

Palmer’s final contention is that the superior court erred in refusing to stay that portion of the district court’s sentence suspending his driver’s license for a period of thirty days, pending the outcome of his appeal to this court. The decision whether to grant or deny such a stay is one that is properly left to the sound discretion of the superior court. We have determined that the court did not abuse its discretion and, therefore, conclude that there was no error.

AFFIRMED.

1 . District Court Judge Laurel Peterson ruled on appellant’s pre-trial motion to suppress, as well as his motion to dismiss the complaint. District Court Judge Alexander Bryner presided over the trial.

2 . No reason has been suggested to us why such a warning should not be given. Absent some demonstrated justification for the failure to do so, we think the better practice would be to advise the arrested person that his or her actions are being videotaped.

3 . Alaska Const., art. I, § 22, provides: “The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.”

4 . The holding in Glass was by a 4 to 1 majority. The author of the present opinion dissented.

5 .Palmer also contends that it was a violation of AS 11.60.290 for the police to videotape his actions and record his voice. AS 11.60.290 provides in pertinent part: “It is unlawful for a person to (1) use an eavesdropping device to hear or record all or any part of an oral conversation without the consent of a party to the conversation^]” This statute is clearly intended to prohibit third-party eavesdropping and is therefore not applicable to the situation in the case at bar where one of the participants recorded the conversation.

6 . When the blood alcohol level is 0.10 percent or more, it is presumed that the person was under the influence of intoxicating liquor. AS 28.35.033(a)(3).

7 . We also reject Palmer’s suggestion in that the failure of the police to inform him of his right to an independent blood test violated Criminal Rule 16(b)(3). A similar argument, discussed in Part 1(c) of this opinion, was deemed frivolous.

8 . There is a statutory requirement that the arrested person be advised that refusal to submit to a breathalyzer examination may result in the suspension, revocation or denial of his driver’s license by the Department of Public Safety. AS 28.35.032(b). If he is not so advised, any such action by the department can be rescinded by the district court. AS 28.35.032(c).

9 .AS 09.20.180 provides:- “Upon the request of either party the judge may exclude from the court room any witness of the adverse party not under examination at the time so that he may not hear the testimony of other witnesses.” Similar language is contained in Civil Rule 43(g)(3), which is made applicable to criminal proceedings by Rule 26(a), Alaska R.Crim.P.