Opinion
Court of Appeals No. A-10792 Trial Court No. 4FA-09-2547 CR No. 5846
05-16-2012
LAURA G. WILBANKS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond Funk, Judge.
Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Laura G. Wilbanks appeals her conviction for driving under the influence. She argues the trial court erred in concluding that the officer had probable cause to administer a preliminary breath test and to arrest her for DUI. As explained below, we conclude the officer had probable cause to believe Wilbanks was driving under the influence.
Facts and proceedings
University of Alaska Fairbanks Police Officer William Alan Keeler stopped Wilbanks for driving 45 mph in a 35-mph zone at 3:38 a.m. on Saturday, July 18, 2009. Wilbanks had three passengers, all of whom appeared intoxicated. Officer Keeler smelled alcohol coming from inside the vehicle, and he observed that Wilbanks had red, bloodshot, watery eyes.
Officer Keeler had Wilbanks step out of the vehicle and noticed a moderate smell of alcohol. He administered the standardized field sobriety tests to her; she exhibited all six clues on the horizontal gaze nystagmus test ("HGN test"), one clue on the walk-and-turn test (two clues is the decision point for that test), and no clues on the one-leg-stand test. When he asked if she had been drinking, Wilbanks admitted to drinking one beer, which Officer Keeler thought was inconsistent with her level of impairment.
Based on his observations, Officer Keeler concluded Wilbanks had been driving under the influence. He administered a preliminary breath test to her, which showed a result of .130 percent. He arrested her for DUI. A Datamaster test later showed that her breath alcohol level was .131 percent.
Before trial, Wilbanks moved to suppress the evidence of the preliminary breath test and all evidence obtained after her arrest. She argued Officer Keeler lacked probable cause to administer the preliminary breath test and to arrest her for DUI. District Court Judge Raymond Funk held an evidentiary hearing at which Officer Keeler testified. Judge Funk denied Wilbanks's motion, finding the officer had probable cause to arrest Wilbanks for DUI. After a bench trial, the court convicted Wilbanks of DUI.
Discussion
Wilbanks claims Judge Funk erred when he concluded Officer Keeler had probable cause to believe she was driving under the influence at the time he administered the preliminary breath test and arrested her for DUI. One of the requirements to administer a preliminary breath test is probable cause to believe the suspect's ability to operate a motor vehicle is impaired by alcohol, the same standard required to arrest the suspect 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 ... committed."
AS 28.35.031(b)(2).
State v. Grier, 791 P.2d 627, 631 (Alaska App. 1990) (citations omitted).
The existence of probable cause is a mixed question of law and fact. This court upholds the trial court's factual findings absent clear error, and we review de novo the legal issue of whether those facts support probable cause. We view the record in the light most favorable to upholding the trial court's ruling.
Saucier v. State, 869 P.2d 483, 484 (Alaska App. 1994).
Grier, 791 P.2d at 631.
The officer stopped Wilbanks for speeding forty-five miles per hour in a thirty-five mile-per-hour zone at 3:38 a.m. on a Saturday morning. Her three passengers were apparently intoxicated, and she had a moderate odor of alcohol on her breath. Wilbanks had red, watery, blood-shot eyes, and she admitted consuming alcohol, although the officer did not consider her admission of one beer consistent with her level of impairment. When the officer administered the field sobriety tests, Wilbanks passed the walk-and-turn and the one-leg-stand tests, but she exhibited all six clues on the HGN test. Although younger individuals may perform better on average in the walk-and-turn and one-leg-stand field sobriety tests than older drinkers, the HGN test is unique among the battery of standardized field sobriety tests "because nystagmus is an involuntary response. An alcoholic can learn to control or compensate for the effects of intoxication on balance, physical agility, and verbal acuity, but it is all but impossible to disguise nystagmus." The HGN test is the most accurate of the field sobriety tests.
See id. at 631.
See Ballard v. State, 955 P.2d 931, 935 (Alaska App. 1998).
See Grier, 791 P.2d at 631; Ballard, 955 P.2d at 934-35, 939.
The evidence in this case is very similar to the facts in a case we recently decided, Fickus v. State, and to the facts in Decker v. State and State v. Grier. In each of these cases, the suspect was stopped for speeding at nighttime, had bloodshot and watery eyes, an odor of alcohol, admitted consuming alcohol, and performed well on all of the field sobriety tests except they each failed the HGN test. Based on the facts in each case, we ruled the police had probable cause to arrest for DUI. These cases support the conclusion that Officer Keeler had probable cause to arrest Wilbanks for DUI.
Mem. Op. & J. No. 5719, 2011 WL 2937225 (Alaska App. July 20, 2011).
Mem. Op. & J. No. 4557, 2002 WL 531136 (Alaska App. Apr. 10, 2002).
Fickus, 2011 WL 2937225, at *1-2; Decker, 2002 WL 531136, at *1-2; Grier, 791 P.2d at 628-29, 631-32.
Wilbanks analogizes her case to the facts in Saucier v. State, in which we held that, 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 consumed alcohol, and his refusal to perform field sobriety tests did not constitute probable cause to arrest him for DUI. Wilbanks's case is distinguishable from Saucier. To arrest for DUI, the officer must have probable cause to believe the suspect is under the influence as prohibited in AS 28.35.030, for it is not generally illegal to drive after consuming alcohol if one is not under the influence. In Saucier, the evidence did not establish probable cause to believe Saucier had violated the law. But in the case at hand, the officer had additional evidence supporting the conclusion Wilbanks was under the influence, including the fact that she failed the HGN test, which, when considered with the other facts at hand, provided circumstantial evidence of intoxication.
See Ballard, 955 P.2d at 939.
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For the reasons explained above, we affirm Judge Funk's ruling that Officer Keeler had probable cause to arrest Wilbanks for DUI.
Conclusion
We AFFIRM the district court's judgment.