Opinion
Court of Appeals No. A-10643.
July 20, 2011.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond Funk, Judge, Trial Court No. 4FA-09-1353 CR.
Margi Mock, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. David Buettner, Assistant District Attorney, Fairbanks, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Cassandra S. A. Fickus was convicted of driving under the influence, minor consuming, open container, possession of tobacco, and speeding. On appeal, she claims the arresting officer lacked probable cause to arrest her. For the reasons set out here, we conclude the officer had probable cause to believe Fickus w as driving under the influence.
North Pole Police Officer Philip McBroom was on patrol on April 26, 2009, when he saw Fickus driving in a residential neighborhood at 3:15 a.m. He watched her peel out from a stop sign, burning rubber through the intersection, and he observed her driving thirty miles per hour in a twenty miles-per-hour zone. Officer McBroom stopped Fickus. He noted that Fickus's act of peeling out from the intersection and burning rubber in the middle of the night was unusual in the residential neighborhood where it occurred.
Fickus's eyes were bloodshot and watery. She initially stated she had consumed two beers but later said she had had three beers. Officer McBroom noticed a strong odor of alcohol coming from the interior of the vehicle when he contacted her in her vehicle with the window rolled down. Once Fickus got out of her vehicle, Officer McBroom noted a strong odor of alcohol on her breath.
Officer McBroom administered the standardized field sobriety tests to Fickus. Fickus scored all six points (the worst possible result) on the horizontal gaze nystagmus test and one point on the walk-and-turn test. She performed the one-leg-stand test correctly. Officer McBroom gave Fickus a preliminary breath test and arrested her. A Datamaster test later showed that Fickus's blood alcohol content was .091 percent.
Fickus filed a motion to suppress, arguing her arrest was not supported by probable cause. After an evidentiary hearing, District Court Judge Raymond Funk denied Fickus's motion. Although he found the officer's testimony credible, Judge Funk stated that from watching a video of the contact with Fickus, he could not confirm the officer's observation that Fickus had slightly slurred speech and had swayed slightly. Judge Funk evaluated it as a close case, but he concluded that the officer had probable cause to arrest Fickus for the crime of DUI. At a bench trial, Judge Funk convicted Fickus of DUI, minor consuming, open container, possession of tobacco, and speeding.
In this appeal, Fickus claims Judge Funk erred when he concluded that Officer McBroom had probable cause to arrest her for DUI. Probable cause for arrest exists where the officer "is aware of facts and circumstances, based on reasonably trustworthy information, which are `sufficient in themselves to warrant a [person] of reasonable caution in the belief that' an offense has been or is being committed."
State v. Grier, 791 P.2d 627, 631 (Alaska App. 1990) (original sources omitted).
The existence of probable cause is a mixed question of law and fact. Absent clear error, this court accepts the facts as the lower court finds them. Whether probable cause arises from those facts, however, is a purely legal issue over which we exercise our independent judgment. We view the record in the light most favorable to the party that prevailed below, in this case, the State.
Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
Grier, 791 P.2d at 631.
Fickus analogizes her case to Saucier v. State, in which we held that, when considered together, Saucier's "minor driving errors" of driving on or across the center line in a two-block distance, the "normal" odor of alcohol on Saucier after he exited the vehicle, his admission that he had a "couple of beers," and his refusal to perform field sobriety tests did not provide probable cause to arrest him for DUI. We agree with the trial court that although it is a close question, Fickus's case is distinguishable from Saucier. Based on the evidence developed during his contact with Fickus, Officer McBroom had probable cause to arrest her for DUI.
Fickus was driving in a residential neighborhood in the middle of the night. She accelerated rapidly from a stop sign, squealing her tires and burning rubber, and she drove thirty miles per hour in a twenty miles-per-hour zone. When Officer McBroom contacted her, there was a strong odor of alcohol in her vehicle, and when she stepped out of her truck, he observed she had a strong odor of alcohol on her breath. She first stated she had two beers and then changed it to three beers. When Officer McBroom asked her how intoxicated she was on a scale of one to ten, she rated herself a four. When performing the field sobriety tests, she performed well on the walk-and-turn test and the one-leg-stand test, but she exhibited all six clues on the horizontal gaze nystagmus test. These facts established probable cause to believe Fickus was driving under the influence.
These facts are similar to those in State v. Grier, in which this court also found probable cause supported a DUI arrest. Grier was stopped for speeding. He had bloodshot and watery eyes and a strong odor of alcohol about his person. He admitted to drinking two or three beers. Although Grier exhibited some confusion and instability when first approached by the trooper, he performed well on four of five field sobriety tests. Grier exhibited all six clues on the horizontal gaze nystagmus test. Based on these facts, we ruled the police had probable cause to arrest Grier for DUI. Grier supports the conclusion that Officer McBroom had probable cause to arrest Fickus for DUI.
Id. at 628-29.
Id. at 631-32.
We agree with Judge Funk's ruling that the evidence established probable cause to arrest Fickus. We therefore AFFIRM the district court's judgment.