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Flanagan v. Municipality of Anchorage9/27/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4282 - September 27, 2000]
Appeal from the District Court, Third Judicial District, Anchorage, Peter G. Ashman, Judge.
William C. Flanagan, Jr., was arrested on suspicion of driving while intoxicated. Flanagan is deaf, and he asked for an American Sign Language (ASL) interpreter. The Anchorage Police Department has enacted an official procedure (Operational Procedure 3.07.045) which requires arresting officers in these circumstances to contact their dispatch center to determine whether an interpreter is available. But Flanagan's arrest took place in the early morning hours, and the police were unable to locate an interpreter who could communicate in ASL. They did, however, locate an on-duty officer who could finger-spell in ASL. This officer, Rhonda Davenport, volunteered to assist Flanagan during the DWI processing.
The DWI processing was recorded on tape. During this processing, Davenport communicated with Flanagan through finger-spelling and through pantomime; Flanagan responded in writing and by using his voice. Flanagan repeatedly asked for an ASL interpreter, and Davenport communicated these requests to her fellow officers, but each time police dispatch reported that there were no interpreters available.
Flanagan ultimately submitted to a breath test; this test yielded a result of .179 percent blood-alcohol. Davenport explained to Flanagan that he had a right to an independent blood test, but Flanagan orally waived this right. He explained to the officers that he was concerned that a blood test would reveal that he had recently smoked marijuana.
After Flanagan was formally charged with driving while intoxicated, he asked the district court to suppress his breath test result. He argued that the police had violated the Americans with Disabilities Act (the ADA) when they failed to provide him with an ASL interpreter.
District Court Judge Peter G. Ashman denied Flanagan's motion for two reasons. First, Judge Ashman found that, despite Flanagan's disability, Flanagan did have a basic understanding of his right to an independent blood test when he waived this test. Second, Judge Ashman found that the police had not violated the ADA because they made good-faith efforts to obtain an interpreter for Flanagan and because their alternative efforts to communicate with Flanagan were ultimately successful - that is, Flanagan did understand his right to an independent blood test.
On appeal, Flanagan does not dispute Judge Ashman's finding that Flanagan understood and knowingly waived his right to an independent test. Flanagan nevertheless contends that, even if he did understand his right to the independent test, the police still violated his rights under the ADA and, for this reason, the breath test result should be suppressed.
Because Flanagan concedes that he understood his right to an independent test, his case is governed by our decision in Nathan v. Anchorage. In Nathan, we held that the ADA is not violated when, despite the absence of an ASL interpreter, police officers are successful in communicating with a deaf arrestee and explaining the arrestee's right to an independent blood test. We also held that, even assuming there might be cases where the ADA was violated even though the defendant acquired a basic understanding of their right to an independent test, such a violation of the ADA would not entitle the defendant to exclusion of the breath test evidence. That is, the crucial issue for suppression purposes is not whether the police violated the ADA, but rather whether a defendant understood and knowingly waived their right to an independent test.
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