Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa White, Judge. Trial Court No. 3PA-11-435 CR.
Margi Mock, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge KOSSLER, writing for the Court. Chief Judge MANNHEIMER, concurring.
Terry Velarde was convicted of felony driving under the influence, driving with a suspended license, failure to stop at the direction of a peace officer, and resisting arrest. On appeal, Velarde raises two claims.
First, Velarde argues that the superior court should have suppressed his breath test result based on trooper interference with his right to an independent chemical test. Specifically, he claims that the trooper interfered with his right to an independent test when the trooper only told him he could have a blood test, not that he could obtain a chemical test other than a blood test. Because we conclude that the trooper did not interfere with Velarde's right to an independent chemical test when he offered Velarde a blood test, we affirm the superior court's denial of his motion to suppress.
Second, Velarde argues that there was insufficient evidence for the jury to find that he used force to resist arrest. Because we conclude that the evidence was sufficient for a jury to find that Velarde actively fought the
troopers' effort to arrest him, we affirm his conviction for resisting arrest.
According to the trial testimony, while responding to a report of an underage drinking party at a home in the Mat-Su area in February 2011, Alaska State Troopers contacted Terry Velarde, who had arrived to pick up his son from the party. As Velarde arrived at the home, his vehicle was moving too fast for the slippery conditions and slid in the driveway. Alaska State Trooper Anthony Stariha contacted Velarde and noticed that he had an odor of alcohol, slurred speech, and bloodshot eyes. He also noticed that Velarde had trouble standing. Stariha told Velarde to remain at the scene while he helped break up the party; instead, Velarde drove away. Alaska State Trooper Sergeant Jacob Covey tried to stop Velarde after observing him drive approximately ten miles per hour over the speed limit. Despite places to pull over, Velarde continued to drive until he pulled into a gas station off the Parks Highway.
Velarde got out of his vehicle and went into the bathroom at the gas station, locking himself inside. The station clerk provided a key, and the troopers unlocked the bathroom door and tried to handcuff Velarde, but he struggled with them. It took several troopers to get Velarde handcuffed and under control.
The troopers transported Velarde to a station for DUI processing. Velarde's breath test result showed a blood-alcohol level of .173 percent. Trooper Stariha read Velarde a notice of his right to an independent chemical test. Velarde at first was interested in an independent test, but after asking several questions about it, he decided not to get one.
The State charged Velarde with felony DUI, driving with a suspended license (DWLS), failure to stop at the direction of an officer, and resisting arrest. Velarde moved to suppress his breath test result, in part arguing that the trooper interfered with his right to an independent chemical test. After an evidentiary hearing, Superior Court Judge Vanessa White denied his motion, finding that the trooper offered to help Velarde obtain a blood test but that Velarde had waived his right to an independent test.
On the morning of trial, Velarde pleaded guilty to DWLS, and the jury subsequently convicted him of the other charges. Velarde appeals his felony DUI and his resisting arrest convictions.
The trooper did not interfere with Velarde's right to an independent chemical test
During Velarde's DUI processing, Trooper Stariha read Velarde a form giving him notice of his right to an independent chemical test. During this reading, they had the following exchange:
Stariha : You have four choices here: " [I] do not wish an independent chemical test; " second choice, " I want a blood draw -- a blood sample drawn at the government's expense; " third choice is, " I want a chemical test at my own expense to be administered at the location; " third [ sic ] is, " refuse to decide or sign." Which one of those would you like?
Velarde : (indiscernible) get bailed out right now, that's all.
Stariha : Well, I'm asking you, do you want a blood test? " I do not wish an independent test," that's one; " I want a blood sample drawn at the government's expense," that's two; " I want a chemical test at my own expense to be administered," that's three; or, " [I] ...