Kevin J. ANDERSON, Appellant, v. STATE of Alaska, Appellee, 246 P.3d 930

OPINION COATS, Chief Judge. While driving on a snowy day, Kevin J. Anderson hit and killed a pedestrian. The police investigated the accident but did not suspect Anderson of any wrongdoing. An officer told Anderson that he was required by statute to provide blood and urine samples for testing because he had been involved in an accident that caused death or serious physical injury to another person. They transported Anderson to a police substation. At the substation, the police allowed Anderson to contact his attorney. After discussing the matter with his attorney, Anderson provided the requested samples.

Based on the test results, which showed that Anderson's blood aleohol level was .08 percent and that he had consumed marijuana, the State charged Anderson with driving under the influence. Anderson filed a motion to suppress the evidence from his blood and urine samples. Anderson pointed out that the police had incorrectly advised him about their authority: the police could only require him to submit the blood and urine samples if they had probable cause to believe he had committed a crime.

District Court Judge Alex Swiderski agreed that the police did not have statutory authority to seize Anderson's blood and urine samples. Because the police had misrepresented their authority to collect the samples, Judge Swiderski concluded that they had illegally detained Anderson when they transported him to the police substation. However Judge Swiderski concluded that Anderson's consultation with his attorney before providing the samples had insulated Anderson's consent from the officers' prior illegal conduct, and the consent was voluntary.

Anderson filed motions for reconsideration, arguing that he had not had a meaningful conversation with his attorney. Judge Swid-erski denied the motions, finding that the evidence at the suppression hearing supported the conclusion that Anderson was able to meaningfully consult with his attorney. After his motions for reconsideration were denied, Anderson had a bench trial based on stipulated facts. District Court Judge Gregory Motyka found him guilty of driving under the influence. Anderson appeals. We affirm his conviction.

Discussion When an illegal seizure or arrest by the police precedes a defendant's consent to search, the State must show that the defendant's subsequent consent was voluntary and not tainted by the illegal police conduct. As just explained, Judge Swiderski ruled that Anderson's consultations with his attorney dissipated the taint from the officer's prior ilegal conduct, and that his consent was voluntary. Anderson challenges both of these conclusions. Viewing the evidence in the light most favorable to the trial court's rulings, the record supports Judge Swiderski's decision.

Judge Swiderski found that the officer's misrepresentation of authority was not intentional. Anderson does not challenge this finding on appeal, and it is supported by the record. The officer testified that he did not believe Anderson had committed a crime, and that when he requested the blood and urine samples, he was not investigating a crime or looking for evidence. He requested the samples because he believed he was required to by state law. Anderson was a forty-five-year-old lawyer and the police did not suspect him of any wrongdoing.

The police were polite and courteous throughout the contact, and Anderson was not arrested at gunpoint, handcuffed, or surrounded by police officers. After he was transported to the police substation, Anderson was allowed to call his attorney, who was not immediately available. The police allowed Anderson to wait for the attorney to call back. They also permitted Anderson to call his wife and insurance adjuster, and offered to let him call anyone else he wanted to talk with. When Anderson's attorney, Rex Lamont Butler, returned Anderson's call, Butler spoke with Anderson.

Butler then discussed the implied consent law with Anchorage Police Officer Thomas Gaulke. Officer Gaulke directed Butler to his supervisor, Lieutenant Nancy Reeder. After his conversation with Reeder, Butler spoke with Anderson again. After talking with his attorney a second time, Anderson consented to providing the blood and urine samples. The record thus shows that the police did not limit Anderson's time to consult with his attorney, and they allowed him to make other personal phone calls.

There was an interval of approximately forty minutes between when the police first incorrectly asserted they had the legal authority to collect the blood and urine samples and when Anderson consented to provide the samples. Although this time interval was not great, the record supports Judge Swiderski's finding that Anderson had time to reflect on his decision to consent. We note that Anderson initially declined to provide the breath and urine samples when the officers told him he was statutorily required to do so.

Anderson continued to refuse to cooperate with the police's assertion of authority until after he had consulted with Butler. And it was not until after his second conversation with Butler that Anderson consented to provide the samples of his blood and urine. These facts lend substantial support to Judge Swiderski's conclusion that Anderson's consent was not tainted by the police's incorrect assertion of authority.

Although Anderson contends he was not fully able to consult with his attorney because of a lack of privacy, Judge Swiderski found that the attorney's side of the conversation was not overheard and that neither Anderson nor his attorney asked for more privacy. Judge Swiderski also noted that the record did not reveal the content of Anderson's conversation with his attorney. The parties do not dispute that Butler is an experienced criminal defense attorney, and Anderson has not challenged the advice Butler gave him.

Butler may have accurately advised Anderson that he was not required to provide blood and urine samples. But there were also significant advantages in having Anderson provide the samples if Anderson believed he was not impaired. Anderson had just hit and killed a pedestrian. It was in his interest to prove that he was not impaired at the time of the accident. Why would Anderson provide the samples if there was a risk they would incriminate him? Anderson may have underestimated his level of impairment. Anderson told the police he had consumed one beer a little more than an hour before the collision.

The officer investigating the accident only detected a "faint" odor of alcohol on Anderson's breath and did not observe any signs of impairment. If Anderson told Butler he was not impaired, Butler might have advised Anderson to provide the samples to protect himself against possible later criminal charges or a civil lawsuit, Or Anderson could have reached this conclusion on his own. Therefore, on the record before him, it was reasonable for Judge Swiderski to conclude that Anderson's consent to provide the samples was based upon his consultation with his attorney rather than on what he was told by the police.

In his dissent, Judge Mannheimer finds it implausible that Anderson received correct advice from his attorney. It is certainly possible that Anderson received incorrect advice. Butler is an experienced attorney, but determining whether Anderson was required by law to submit blood and urine samples required knowledge of the supreme court's decision in State v. Blank. On its face, AS 28.35.0831(

g) requires a person to provide blood and urine samples if he "is involved in a motor vehicle accident that causes death or serious physical injury to another person." But in Blank, the Alas-ka Supreme Court held that for this statute to be constitutional, the State must also show that "probable cause to search exists and the search falls within a recognized exception to the warrant requirement." As Judge Mannheimer points out, Butler had little chance to do independent research on this issue.

Therefore, it is certainly possible that Butler made the same legal mistake that the police made and advised Anderson that he was required to provide the samples. Or, as we have previously pointed out, Butler might have concluded, based on Anderson's representations, that the samples would tend to exonerate Anderson. It might not have been important for Butler to know definitively what the law required if he thought the evidence would be exeulpatory and that providing it would be in Anderson's interest.

So it is certainly possible that, had Anderson and/or Butler testified, Judge Swiderski might have faced a different legal question in resolving Anderson's motion to suppress. But Anderson never produced this evidence; he never asserted that Butler gave him the wrong legal advice, or that he was coerced. In the absence of this evidence, there was no reason for Judge Swid-erski to presume that Anderson received bad advice.

We conclude that Judge Swiderski could properly find, on the record before the court, that the State carried its burden of proving that Anderson's conversations with his attorney dissipated the taint from the police's illegal conduct, and that Anderson made the voluntary choice to provide the blood and urine samples. Conclusion Based on the record before us, we AFFIRM the trial court's denial of Anderson's motion to suppress. BOLGER, Judge, concurring. MANNHEIMER, Judge, dissenting. . AS 28.35.030(a). . State v. Blank, 90 P.3d 156, 162 (Alaska 2004). . Skjervem v.

State, 215 P.3d 1101, 1108-09 (Alaska App.2009); Moore v. State, 119 P.3d 1018, 1020-21 (Alaska App.2005); see also Halberg v. State, 903 P.2d 1090, 1094 (Alaska App.1996) (citing Brown v. Illinois, 422 U.S. 590, 602, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975)) {other citations omitted). . See Brown, 422 U.S. at 602, 95 S.Ct. at 2261; Frink v. State, 597 P.2d 154, 168 (Alaska 1979); McBath v. State, 108 P.3d 241, 243-44 (Alaska App.2005); Crawford v. State, 100 P.3d 440, 444 (Alaska App.2004); Halberg, 903 P.2d at 1094. . 90 P.3d 156, 162 (Alaska 2004). . 90 P.3d at 162.