Summary
concluding that probable cause existed for a DUI arrest in part because the defendant tried to order a rum and Coke at a Kentucky Fried Chicken drive-through
Summary of this case from Johnson v. StateOpinion
Court of Appeals No. A-11201 Trial Court No. 3AN-10-9374 CR No. 6067
07-02-2014
TODD C. SHOBE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge.
Appearances: Megan Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Following a jury trial, Todd C. Shobe was convicted of felony driving under the influence. On appeal, he argues that the superior court should have suppressed the results of his breath test because the police lacked probable cause to arrest him. For the reasons described here, we reject Shobe's claim of error and affirm his conviction.
Facts and proceedings
On August 20, 2010, the Anchorage Police received a report that an intoxicated driver had pulled up to the Kentucky Fried Chicken drive-thru and tried to order a rum and Coke. The caller told police dispatch that the vehicle had parked in the rear parking lot of the restaurant.
In response to this call, Officer Michael Lofton went to the KFC parking lot and contacted the driver, who was identified as Shobe. Officer Lofton observed that the keys were still in the ignition and that Shobe's speech was slurred and his eyes were "red and droopy." Officer Lofton could smell an odor of alcohol around Shobe's person. Shobe told the officer that he had consumed two "shooters" earlier that evening and was taking medication.
Officer Lofton had Shobe step out of the car to perform field sobriety tests. Shobe passed the alphabet test and the counting test. However, Shobe showed six clues of intoxication on the horizontal gaze nystagmus test; Shobe explained that this was caused by a thyroid condition that affected his eyes. Shobe also told the officer that he was unable to perform the walk-and-turn test because he recently had surgery on his knee. Officer Lofton nevertheless had Shobe perform the walk-and-turn test; Shobe showed four clues of intoxication.
Following the administration of the field sobriety tests, Officer Lofton arrested Shobe for driving under the influence. Shobe then provided a breath sample, and the Datamaster registered a blood alcohol level of .120 percent, over the legal limit of .08 percent.
Prior to trial, Shobe filed a motion to suppress the breath test result, asserting that Officer Lofton lacked probable cause to arrest him for driving under the influence because his poor performance on the field sobriety tests could be attributed to his medical afflictions. The trial court denied the motion, finding that even if Shobe "suffered from all the complaints or problems he identified ... [t]he police in this case had several indicators of impairment such that probable cause to arrest existed."
A jury later convicted Shobe of felony driving under the influence. He now appeals.
AS 28.35.030(a),(n).
Why we conclude that there was probable cause to arrest Shobe
A police officer has probable cause to arrest a suspect "if the facts and circumstances known to the officer would support a reasonable belief that an offense has been or is being committed by the suspect." Probable cause "requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred."
State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
Id. at 1119 (quoting Van Sandt v. Brown, 944 P.2d 449, 452 (Alaska 1997)).
Here, there were a number of facts to support a reasonable belief that Shobe had been driving under the influence. The police received a report that a driver who showed signs of intoxication had tried to order a rum and Coke at the Kentucky Fried Chicken drive-thru. When Officer Lofton contacted the driver, Shobe, he observed that Shobe's car smelled of alcohol, and Shobe himself admitted to consuming alcohol. Shobe also performed poorly on the horizontal gaze nystagmus test and the walk-and-turn test.
Shobe argues that each of these facts can be explained: he asserts he was merely joking when he ordered the rum and Coke, his performance on the walk-and-turn test could be attributed to knee trouble, and though he had admitted to consuming alcohol, he said "he had only consumed two shooters." He argues that his performance on the horizontal gaze nystagmus test indicated only that he had consumed alcohol, not that he was impaired. He concludes that because each of these facts has an explanation, and because he passed the alphabet test and the counting test, Officer Lofton lacked probable cause to arrest him.
But probable cause is by definition "a standard that hinges on probability rather than certainty [and] a showing of probable cause need not rule out other explanations that are merely possible." Thus, while Shobe may have had innocent explanations for his behavior, the officer was not required to credit those explanations or to discount his own observations of Shobe's impairment. We conclude that the officer had probable cause to arrest Shobe given the totality of the circumstances and that the trial court therefore did not err in denying Shobe's motion to suppress.
Yi v. Yang, 282 P.3d 340, 346 (Alaska 2012) (quoting State v. Koen, 152 P.3d 1148, 1152 (Alaska 2007)); see also McCoy v. State, 491 P.2d 127, 130 (Alaska 1971) (Possible innocent explanations "do not negate the facts and circumstances within the officers' knowledge which supplied the probable cause ... [I]t is not necessary that at the time the arrest is made the peace officer have sufficient evidence for conviction.").
--------
Conclusion
We AFFIRM the superior court's judgment.