Opinion
Court of Appeals No. A-9192.
March 21, 2007.
Appeal from the District Court, First Judicial District, Juneau, Keith B. Levy, Judge, Trial Court No. 1JU-04-1382 CR.
Robert John, Law Office of Robert John, Fairbanks, for the Appellant.
Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges .
MEMORANDUM OPINION AND JUDGMENT
An off-duty Juneau police officer saw Michael D. Nye staggering in a parking lot and, shortly thereafter, driving erratically. The officer followed Nye to a motel. The officer contacted Nye in the motel parking lot and observed that Nye had bloodshot, watery eyes, smelled of alcohol, was swaying, and was slurring his words. The officer believed Nye was driving while under the influence and detained him for five to ten minutes until an on-duty officer arrived. The on-duty officer administered field sobriety tests and then arrested Nye for driving while under the influence.
AS 28.35.030(a).
Nye argues that the initial stop by the off-duty officer was not supported by reasonable suspicion, that the detention exceeded the scope of an investigative stop, that the court abused its discretion in denying a continuance so he could prepare an additional claim, that he was denied the right to an attorney, that the DataMaster test was not a valid search incident to his arrest because it was not roughly contemporaneous to his arrest, that he was denied fair and just treatment because the officer did not immediately perform field sobriety tests or give him a portable breath test, and that the 2004 amendments to the DUI statutes are unconstitutional. For the reasons discussed below, we affirm Nye's conviction.
Facts and proceedings
At approximately 7:25 p.m. on October 1, 2004, off-duty Juneau Police Officer Rayme L. Vinson was at The Sandbar, a restaurant and bar, picking up food with his wife. He saw a man stagger around the parking lot. He thought the man was intoxicated. As Officer Vinson was driving away, he saw a car leave the parking lot and thought the driver was the man he had seen staggering in the parking lot. Officer Vinson saw the car weave and cross the center line, and it appeared that the driver, Nye, was impaired.
Officer Vinson called the police department to get an on-duty officer to respond. He testified that although off-duty officers can make arrests, they generally wait for on-duty officers because they are in plain clothes and do not have handcuffs, radios, tape recorders, or other law enforcement equipment.
Officer Vinson followed the car to the Travelodge Motel. Nye tried to enter the motel parking lot through the exit. Nye then drove around the parking lot. Officer Vinson thought he was either having problems parking or was trying to avoid him. Nye finally stopped and got out of the car.
Officer Vinson then approached Nye. He observed that Nye was swaying and had red, watery eyes, an odor of alcohol, and slurred speech. Nye appeared to be very intoxicated. Officer Vinson told Nye he was a police officer, showed Nye his badge, and detained Nye while he waited for an on-duty officer to arrive. Officer Vinson talked to Nye for what "seemed like a long time" but "was probably five minutes or so." During this conversation, Nye stated that he was going into the Travelodge. When Officer Marc R. Parfitt arrived, Officer Vinson told Officer Parfitt what had happened, and Officer Parfitt asked Nye to perform field sobriety tests. Nye failed two of the three tests he performed.
Officer Parfitt arrested Nye for driving while under the influence and transported him to the Juneau Police Department. At 8:25 p.m., Nye consented to a DataMaster test, which revealed a blood alcohol content of .163 percent. Nye requested an independent blood test, which was performed at 9:14 p.m. and revealed a blood alcohol content of .172 percent. A jury found Nye guilty of driving while under the influence.
DiscussionWhy we find that Officer Vinson's stop was valid
Nye argues that the court should have suppressed the DataMaster test because Officer Vinson's stop was not supported by reasonable suspicion and because the length of the stop was excessive. Whether an officer has reasonable suspicion to make an investigate stop is a mixed question of fact and law. We view the evidence in the light most favorable to the trial court's ruling and overturn its factual findings only if they are clearly erroneous. We independently review whether those facts justify reasonable suspicion for the stop.
State v. Garcia, 752 P.2d 478, 480 (Alaska App. 1988).
Id.
Id.
Police are authorized to perform an investigative stop if they have reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred.
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976); Garcia, 752 P.2d at 480.
However, not all police-citizen encounters are investigative stops that require reasonable suspicion.
In Waring v. State, the Alaska Supreme Court observed that:
670 P.2d 357 (Alaska 1983).
[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen . . . Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.
Id. at 363 (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983)).
Officer Vinson's initial contact with Nye was not an investigatory stop. Officer Vinson simply walked up to Nye in the parking lot as he was getting out of his car and identified himself as a police officer. Officer Vinson was off-duty, in plain clothes, and did not have handcuffs, a tape recorder, a radio, or other law enforcement equipment. And there is no evidence that Officer Vinson was in a police car, turned on his overhead lights, or otherwise effectuated a stop.
After contacting Nye and observing signs of intoxication, Officer Vinson detained Nye and did not allow him to leave. But by then Officer Vinson had seen Nye weave, cross the center line, and try to enter the motel parking lot through the exit, and he had observed that Nye was swaying and had red, watery eyes, an odor of alcohol, and slurred speech. These observations provided Officer Vinson with reasonable suspicion for the stop. And even if the five-to ten-minute delay while waiting for the on-duty officer elevated the encounter from a stop to an arrest, the same observations provided Officer Vinson with probable cause to arrest.
See Ebona v. State, 577 P.2d 698, 701 (Alaska 1978).
See Shuse v. State, 714 P.2d 368, 372 (Alaska App. 1986).
Nye argues that Officer Vinson was not justified in making the investigative stop because he had finished driving for the night and, therefore, did not pose an imminent public danger. However, in Shearer v. Anchorage, we held that the police were justified in making an investigatory stop for driving while under the influence where the suspect had access to his car and had already demonstrated a willingness to drive while intoxicated. The fact that it was late and the suspect was parked in his driveway at the time of the stop did not eliminate the danger. In this case, it was approximately 7:30 p.m., and Nye was parked at a motel. Under these circumstances, Officer Vinson had reasonable suspicion that an imminent public danger existed.
4 P.3d 336 (Alaska App. 2000).
Id. at 340.
Id.
Nye also argues that the duration of the investigative stop was excessive. However, Officer Vinson's initial detention was approximately five to ten minutes, and the period between Officer Vinson's initial contact and Officer Parfitt's arrest was no more than twenty minutes. This was not excessive under the circumstances. Moreover, even if the detention exceeded the scope of the investigative stop and thereby turned into an arrest, as noted earlier, Officer Vinson had probable cause for the arrest.
See Howard v. State, 664 P.2d 603, 611 (Alaska App. 1983).
Nye also raises two arguments for the first time on appeal and, therefore, must show plain error. First, he argues that he was denied fair and just treatment under article 1, section 7 of the Alaska Constitution because of the five-to ten-minute delay in his field sobriety tests and because the officers did not give him a portable breath test. But the fair and just treatment clause does not apply to the police investigation of driving while under the influence. Both this court and the Alaska Supreme Court recognize that the fair and just treatment clause of article 1, section 7 arose from the concerns of the delegates over the abuse of citizens subpoenaed to appear at legislative and executive branch hearings, epitomized by the conduct of United States Senator Joseph McCarthy in the 1950s. There was no violation of the fair and just treatment clause.
Wettanen v. Cowper, 749 P.2d 362, 364 (Alaska 1988); Burford v. State, 515 P.2d 382, 383 (Alaska 1973).
See O'Leary v. Superior Court, 816 P.2d 163, 172 (Alaska 1991); State v. Gonzalez, 825 P.2d 920, 930 n. 6 (Alaska App. 1992).
Second, Nye argues that the DataMaster test was not a valid search incident to an arrest because it was not "roughly contemporaneous" to his arrest. However, the DataMaster test was administered approximately one hour after the initial stop. This is within the four-hour period specified in AS 28.35.030(a)(2). Nye has not shown plain error. Why we find that the court did not abuse its discretion in denying Nye's motion for a continuance and in not permitting him to call an expert
See Burford, 515 P.2d at 383.
Nye argues that the court abused its discretion in denying his motion for a continuance of the trial and in not permitting him to call an expert to testify regarding alcohol absorption rates.
Nye was charged on October 12, 2004. In December 2004 and January 2005, he was granted two continuances of his trial date. On March 7, 2005, at the start of the evidentiary hearing on his suppression motion, Nye requested a continuance of the evidentiary hearing because the State had not given him the police dispatch recording until ten minutes before the hearing. The court denied the continuance. The judge told Nye he could ask for reconsideration after reviewing the dispatch recording but that he needed to do so quickly because trial was scheduled for the following week.
On March 14, 2005, the day before Nye's trial, Nye filed a motion for reconsideration of the court's denial of his suppression motion. He noted that, although he received the dispatch recording on March 7, he was unable to listen to the recording until March 11 because the prosecutor had not provided the necessary software to review the dispatch recording. He claimed he had acted diligently because he contacted the police department, the district attorney's office and the public defender's office, spending "five to seven hours . . . over seven days" trying to obtain the software. The following day — March 15, 2005, the day of trial — the court denied the motion for reconsideration.
On the morning of trial, Nye also requested a continuance of the trial to litigate the alleged denial of his right to contact an attorney before he decided whether to submit to a breath test. Nye argued that he told off-duty Officer Vinson he wanted an attorney and, therefore, he should have been afforded the opportunity to call an attorney as soon as he reached the police station. Nye's attorney said he did not raise this issue earlier because he only found out about Nye's request for counsel after listening to the dispatch recording.
The court denied Nye's motion to continue the trial. While recognizing that it was the State's obligation to provide discovery, the court ruled that Nye had waived his right to a continuance by waiting until 30 minutes before trial to request the continuance.
A decision by a trial court to deny a continuance is reviewed for an abuse of discretion. "`[T]he prime focus of inquiry must be on the reason for the requested continuance,' but we will also consider whether the moving party has acted diligently and in good faith."
Gottschalk v. State, 602 P.2d 448, 450 (Alaska 1979).
Id. at 450 (quoting Salazar v. State, 559 P.2d 66, 72 (Alaska 1976)).
Nye had four to seven days to request a continuance or file any necessary motions. However, he waited until the morning of trial to ask for a continuance. Nye had already been granted two continuances and had time to file a motion or request a continuance in the week immediately preceding the trial. Under these circumstances, the court did not abuse its discretion in denying the continuance.
See id. at 450-51. See also Huntington v. State, 151 P.3d 523 (Alaska App. 2007) (holding that the police had no obligation to remind the defendant at the police station that the defendant had asked to call an attorney while at his home).
Furthermore, Nye did not ask the court to relax the time limits on the filing of motions under Criminal Rule 12, based on the State's dilatory discovery, to litigate his proposed suppression motions during the trial or after the trial was concluded. His suppression issues did not turn on the result of the trial, and could have been litigated later.
Nye also argues that he should have been permitted to call an expert to testify that his blood alcohol level may have been increasing in the hour between when he stopped driving and when he took the DataMaster test. However, Nye did not give notice of the expert until fifteen minutes before trial. Under Criminal Rule 16(c)(4), Nye was required to give notice of the expert at least thirty days before trial. The court did not abuse its discretion by ruling that Nye's request was untimely. The 2004 amendments to the DUI statute
Finally, Nye raises several challenges to the constitutionality of the 2004 amendments to the DUI statute. We reject these arguments for the reasons stated in Valentine v. State. Conclusion
___ P.3d ___, Alaska App. Opinion No. 2088 (Mar. 9, 2007), 2007 WL 706589.
We AFFIRM Nye's conviction.