Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

HANLEY, Judge.

Frank Jerome Olson was arrested for driving under the influence. A police officer gave Olson incorrect information about whether he would be charged with a misdemeanor or a felony offense if he did not provide a breath sample for testing. Specifically, the officer told Olson that refusing the breath test would be a felony if Olson had two prior convictions within the preceding five years, when actually the look-back period was ten years.1

Olson had two relevant prior DUI convictions. One of these prior convictions fell outside the five-year look-back period by about three weeks, but both of the prior convictions were well within the ten-year look-back period. Olson refused to provide a breath sample, and the State charged him with felony breath test refusal.2

The Alaska Supreme Court concluded that Olson's due process rights were violated when the officer gave him the incorrect information about the penalty he faced for refusing to take the breath test.3 Based on this ruling, the supreme court remanded Olson's case to the superior court for a hearing to determine whether Olson was prejudiced by this incorrect information — i.e., to determine whether Olson actually relied on this incorrect information when he decided to refuse the breath test.4

On remand, the superior court concluded that Olson did not meet his burden of proving that he was prejudiced by the information. Olson now appeals the superior court's ruling.

For the reasons explained in this decision, we conclude that the superior court's findings of fact are not clearly erroneous, and we therefore affirm Olson's conviction.

The evidence before the superior court

Olson's trial judge, Superior Court Judge Michael L. Wolverton, held an evidentiary hearing following the remand from the supreme court.

At this hearing, Olson testified that when the police officer told him that refusing to take the breath test would be a felony if Olson had two prior convictions within the preceding five years, Olson thought to himself, "I [don't] have the requisite convictions within the preceding five years." Olson further testified that he never would have refused to take the test if the officer had given him accurate information about the consequences of his refusal — i.e., if the officer had told him that the look-back period for the felony offense was ten years.

At the conclusion of the evidentiary hearing, Judge Wolverton announced that he did not find Olson's testimony to be credible. The judge commented that, despite the years that had passed, he still remembered Olson's case. In particular, the judge stated that, according to his memory of the case, Olson was "non compos mentis" at the time of his arrest — that he was "in a complete and utter stupor, . . . completely unresponsive to the officers there, and . . . unresponsive throughout the course of the [post-arrest] processing."

The judge suggested that Olson had attempted to "reconstruct" his thought processes during the incident, but that Olson's reconstruction was not accurate. Instead, the judge found (based on his recollection of the evidence presented in the original criminal proceeding) that when Olson was asked to provide a breath sample, it was "very clear that [Olson was not] capable of comprehending the difference between whether [his refusal would be] a felony or a misdemeanor."

Based on these findings, Judge Wolverton concluded that Olson had not shown he was prejudiced by the incorrect information he received from the police officer.

After Judge Wolverton made these oral findings, Olson's attorney announced that she wished to augment the evidence by submitting a copy of the audio recording of Olson's DUI processing. The judge agreed to this.

After reviewing this recording, the judge issued a written decision in which he reaffirmed his conclusion that Olson had not detrimentally relied on the incorrect information — although the judge did clarify some of his earlier findings regarding Olson's mental state at the time of his arrest.

Judge Wolverton stated in his written decision that "throughout the police contact, Mr. Olson was almost completely non-responsive [and] non-communicative" and that Olson was "staring off into space." (Emphasis added.) The judge found that Olson was "impaired to such a remarkable degree that he was simply incapable of making [the kind] of analytical assessment" that he had described in his testimony "regarding the decision [whether] to refuse [the] breath or chemical test." And, once again, the judge concluded that Olson had not shown that his decision was influenced by the incorrect information.

Why we uphold the superior court's finding

An appellate court must uphold a trial court's findings of fact unless the finding is clearly erroneous.5 "Clearly erroneous" means that an appellate court must be firmly convinced that a mistake has been made, even though there may be some evidence to support the lower court's finding.6

In this appeal, Olson argues that Judge Wolverton was clearly wrong when, at the conclusion of the evidentiary hearing, he characterized Olson as "non compos mentis" and as completely "unresponsive [and] uncommunicative" during the DUI processing.

From our review of the record, it appears that the judge's initial oral findings overstated the extent of Olson's intoxication. Although the record supports a finding that Olson was substantially impaired (as we are about to describe in some detail), Olson did respond logically to several of the officer's questions. For example, when the officer asked Olson if he would agree or refuse to take a breath test, Olson replied, "Refuse." When the officer asked Olson if he wanted to have a sample of his blood taken at government expense, Olson twice said, "Yes." When Olson was asked whether he understood the Miranda warnings that the officer had read to him, Olson responded, "Yes." And when, following those warnings, the officer asked Olson if he wanted to talk to the officer, Olson stated, "No."

Although the record does not support Judge Wolverton's oral finding (at the conclusion of the evidentiary hearing) that Olson was "non compos mentis," the record does adequately support Judge Wolverton's subsequent written findings that Olson was "almost completely non-responsive [and] non-communicative" and that Olson was "staring off into space" during the DUI processing.

When the police first contacted Olson at the scene, he was passed out and slumped over the wheel of his vehicle; the vehicle was running, and the keys were in the ignition. Olson smelled of alcohol. An officer had to "physically shake [Olson] to get him to wake up." When Olson woke up, the officer observed that he had bloodshot eyes and that he slurred and mumbled his words. When Olson got out of his vehicle, the officer described him as appearing "dazed" and "kind of confused" and "staring in the distance."

Olson exhibited similar behavior at the police station. The officer who was processing Olson commented that Olson was "sitt[ing] there, staring off into space." During the processing, Olson fell asleep, and the officer had to tap him and speak Olson's name a few times before Olson responded.

Thus, while the evidence does not support a finding that Olson was "non compos mentis" (i.e., completely mentally incompetent),7 the evidence does support Judge Wolverton's finding that Olson was so intoxicated that he was not capable of (1) remembering the date of his prior conviction and then (2) calculating that this prior conviction was three weeks beyond the five-year look-back period that the officer mistakenly referred to (when he warned Olson of the consequences of refusing the breath test).

Based on our review of this record, we conclude that the findings contained in Judge Wolverton's written decision are not clearly erroneous, and we therefore uphold the judge's conclusion that Olson did not rely on the officer's mistaken information about a five-year look-back period when Olson refused the breath test.

Conclusion

The judgment of the superior court is AFFIRMED.