Opinion
Court of Appeals No. A-11793 No. 6269
01-13-2016
DAVID P. GEORGE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Emily Jura, Assistant Public Defender, Kodiak, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Amy M. Paige, Assistant District Attorney, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE 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. Trial Court No. 1JU-13-537 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Emily Jura, Assistant Public Defender, Kodiak, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Amy M. Paige, Assistant District Attorney, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge MANNHEIMER.
David P. George appeals his convictions for felony driving under the influence and driving with a suspended license. The primary evidence against George was obtained as a result of a traffic stop, and George contends that this traffic stop was not supported by probable cause.
AS 28.35.030(n) and AS 28.15.291(a), respectively. --------
George was stopped for violating the provisions of AS 28.35.185(a). This statute requires drivers to steer away from a stationary police vehicle (and other listed types of official vehicles) if that vehicle is displaying flashing lights and is currently being deployed for official duties.
More specifically, because the roadway involved in George's case had two or more lanes of travel in the same direction, the statute required George to leave the lane closest to the police vehicle if this maneuver was "possible [under] the existing safety and traffic conditions". AS 28.35.185(a)(1)(A). And if this prescribed lane change "[was] impossible, [or] prohibited by law, or unsafe", the statute required George to "slow to a reasonable and prudent speed considering the traffic, roadway, and weather conditions". AS 28.35.185(a)(1)(B).
According to the evidence presented at the suppression hearing in the superior court, Juneau Police Officer Steven Scherrer was driving on Egan Drive in the early morning hours of May 19, 2013, en route to assist another officer with a traffic stop.
The relevant stretch of Egan Drive is a divided highway, with two lanes of travel in each direction, and with a fairly wide shoulder. It was shortly after 3:00 a.m., and it was still dark. The only other signs of traffic that Scherrer saw on the road were the headlights of two vehicles behind him.
As Officer Scherrer approached the scene of the traffic stop, he saw the overhead flashing lights on the other officer's vehicle parked on the right shoulder of the roadway. Scherrer activated his own flashing lights (his rear deck lights), and then he pulled his vehicle to the side of the road and stopped behind the other police car.
As Scherrer stopped his vehicle, he glanced in his rear view mirror and noticed headlights in the right lane of Egan Drive — that is, in the lane closest to his vehicle and the other police car, which were both parked on the shoulder. This vehicle was not moving over as required by the statute.
Shortly thereafter, two vehicles passed Officer Scherrer. The first vehicle was traveling in the left lane of the roadway (i.e., the lane farthest from Scherrer). The second vehicle was a white van that was straddling the dividing line between the left and right lanes of the roadway. This van was being driven by George, and it was between one and two car lengths behind the first vehicle.
Within seconds after Officer Scherrer watched the van pass him without moving into the left lane as required by the statute, Scherrer pulled out onto the road, activated his forward-facing lights, and began to pursue the van. After Scherrer got behind George's van, George moved into the left lane. George then swerved within the left lane, moved back into the right lane, and then steered onto the shoulder, where he came to a stop.
When Scherrer contacted George and asked him for his driver's license, George said that he did not have his license with him. Scherrer detected a strong odor of alcohol on George, so he asked George to perform field sobriety tests. George failed the horizontal gaze nystagmus test, and he refused to perform the other tests. George was taken to the police station, where he submitted to a breath test. This breath test showed that his blood alcohol level was .185 percent.
Because of prior offenses, George was indicted for felony driving under the influence; he was also charged with driving with a suspended license.
After he was charged, George filed a motion asking the superior court to suppress all of the evidence obtained during and after the traffic stop. George argued that the traffic stop was invalid because the officer had no reason to believe that George had violated AS 28.35.185.
In particular, George noted that the statute excused drivers from moving into the left lane if this maneuver was not possible under "the existing safety and traffic conditions". AS 28.35.185(a)(1)(A). George argued that it had not been possible for him to move into the left lane of Egan Drive, given the existing conditions.
The superior court held an evidentiary hearing, at which Officer Scherrer testified concerning his observations. The court also watched the "iCop" video recording that was taken by a camera mounted in Scherrer's patrol vehicle.
Based on this evidence, the superior court found that George had ample time to observe the police vehicles (with their activated lights) and to move his own vehicle into the left lane of the roadway as required by the statute. The court rejected George's suggestion that the other vehicle — i.e., the only other vehicle on the road — had blocked him from moving into the left lane. The court found that even if this other vehicle had been alongside George when George first spotted the police cars, there was plenty of time for George to slow his van and move into the left lane behind the other vehicle.
We have reviewed the record (both the transcript and the video), and it supports the conclusion that the officer had probable cause to conduct the traffic stop. Accordingly, the judgement of the superior court is AFFIRMED.