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Beaver v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Jun 19, 2013
Court of Appeals No. A-11017 (Alaska Ct. App. Jun. 19, 2013)

Opinion

Court of Appeals No. A-11017 Trial Court No. 3KN-10-1085 CR No. 5954

06-19-2013

ROY P. BEAVER, Appellant, v. STATE OF ALASKA, Appellee.

Appearances: Andrew Steiner, Bend, Oregon, for the Appellant. Eric A. Ringsmuth, 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

AND JUDGMENT

Appeal from the Superior Court, Third Judicial District, Kenai, Anna M. Moran, Judge.

Appearances: Andrew Steiner, Bend, Oregon, for the Appellant. Eric A. Ringsmuth, 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 Coats, Senior Judge.

Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

Senior Judge COATS.

Roy P. Beaver was convicted of felony driving under the influence. He appeals, arguing that the trooper who arrested him did not have probable cause to believe he was intoxicated. For the reasons explained below, we reject that claim and affirm Beaver's conviction.

Facts and proceedings

On July 3, 2010, at about 2:45 a.m., Alaska State Trooper Sherman Powell spotted a pickup truck driving near Soldotna with two white lights illuminating flags that were displayed on the back of the vehicle. Because the lights violated a state traffic regulation and posed a safety hazard, Powell initiated a traffic stop by activating his patrol car's flashing overhead lights and siren. Instead of stopping, the truck continued down the road at about fifteen miles per hour. Powell called dispatch and obtained the name of the truck's owner, Roy Beaver, and then used his loudspeaker to order Beaver to pull over. The truck still did not stop. After about 1.2 miles, Beaver pulled into his driveway.

When Powell contacted Beaver he noticed that Beaver had an odor of alcoholic beverages and bloodshot, watery eyes. Powell also saw an open beer can in a cup holder on the dash, two unopened beer cans behind the driver's seat, and an empty whiskey bottle partially under the driver's seat. Beaver admitted he had shared a bottle of whiskey with a friend and that he "drank a lot." He told Powell he did not stop because there was a bonfire at his house and he did not want the house to burn down if he was arrested and taken to jail.

Powell administered field sobriety tests. He concluded that Beaver passed the walk-and-turn, one-legged stand, and alphabet tests but that he failed the horizontal gaze nystagmus and counting tests. After administering a portable breath test, Powell arrested Beaver. A breathalyzer test at the station showed a blood alcohol level of .086 percent.

Because Beaver had prior convictions, he was charged with felony driving under the influence. He was also charged with driving with a revoked license, failure to stop at the direction of a peace officer, and sixth-degree controlled substance misconduct, based on the discovery of marijuana in his pocket during a pat-down search at the scene of the stop.

AS 28.35.030(n).

AS 28.15.291(a).

AS 28.35.182(b).

AS 11.71.060(a)(1).

Beaver filed a motion to suppress the evidence, arguing that his arrest was not supported by probable cause. Superior Court Judge Anna M. Moran denied the motion. Because Trooper Powell had conceded in his testimony at the evidentiary hearing that he failed to adhere to all the guidelines for administering the horizontal gaze nystagmus test, Judge Moran discounted Powell's testimony that Beaver had failed that test. Judge Moran nevertheless held that Powell had probable cause to arrest Beaver for driving under the influence because Beaver admitted to drinking a bottle of whiskey with a friend, there was an empty bottle of whiskey under the front seat of his car and an open container of beer on the dash, his breath smelled of alcohol, his eyes were watery and bloodshot, and "he failed to stop for a mile and a half after having sirens and a loud speaker announcing his name because he was afraid that he was going to be arrested."

After Judge Moran denied the suppression motion, the State agreed to dismiss all the charges except the felony driving under the influence charge in exchange for Beaver's agreement to be tried in a bench trial on stipulated facts. Beaver was convicted in that bench trial. He now appeals.

Why we conclude Beaver's arrest was supported by probable cause

Beaver argues that he is entitled to suppression of his breath test result and reversal of his felony driving under the influence conviction because the trooper who arrested him did not have probable cause to believe he was intoxicated.

See Burnett v. Anchorage, 678 P.2d 1364, 1371 (Alaska App. 1984) (Bryner, C.J., concurring) (noting that suppression of a breath test result will be required when there is no probable cause to support an arrest for driving under the influence).

An officer has probable cause to arrest a suspect when the officer is aware, based on reasonably trustworthy information, of facts and circumstances that would support a reasonable belief that the suspect has committed a criminal offense. Probable cause only requires a showing of a "fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred." We apply our independent judgment to determine whether a particular arrest is supported by probable cause.

State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001); Pistro v. State, 590 P.2d 884, 886 (Alaska 1979); State v. Grier, 791 P.2d 627, 631 (Alaska App. 1990).

Howard v. State, 209 P.3d 1044, 1047 (Alaska App. 2009) (quoting Joubert, 20 P.3d at 1119).

Shorty v. State, 214 P.3d 374, 380 (Alaska App. 2009).

Beaver argues that this case is controlled by Saucier v. State. In Saucier an officer stopped the defendant for committing minor driving errors — he drove the length of a city block with his left tires on the center line of the road, and at one point his left tires crossed completely over the center line. During his contact with the police, Saucier was able to produce his driver's license without difficulty. He admitted to drinking a couple of beers and, once he was outside his vehicle, the officer noticed that he had a "normal" odor of alcoholic beverages. Saucier was arrested after he refused to perform field sobriety tests or a preliminary breath test. We reversed Saucier's conviction for driving while intoxicated, concluding that his minor driving errors, combined with his "normal" odor of alcohol, his admission to drinking a couple of beers, and his refusal to perform field sobriety tests, did not provide probable cause to believe he was under the influence. In reaching that conclusion, we emphasized that the law prohibited driving while intoxicated, "not driving after having had a drink."

869 P.2d 483 (Alaska App. 1994).

Id. at 484.

Id.

Id.

Id.

Id. at 485.

Id. at 486.

Beaver argues that, like Saucier, he exhibited no impaired driving. But the evidence showed that when Trooper Powell tried to stop Beaver, Beaver instead drove on at approximately fifteen miles per hour. Judge Moran found that Powell could reasonably infer that Beaver was impaired from the fact that he continued to drive for over a mile while he was being pursued by a police vehicle that had its flashing lights, siren, and loudspeaker activated. Judge Moran's decision was supported by Powell's testimony that slow driving and failure to yield are indicia of driving under the influence. Beaver asserts that he had good reason not to stop — because there was a bonfire at his house and he thought his house might burn down if he was arrested and taken to jail. But even if Judge Moran accepted Beaver's claim that this is why he decided not to pull over, she reasonably could have concluded that the decision to ignore Powell and keep driving was a sign of alcohol-impaired judgment.

See Dunn v. State, 653 P.2d 1071, 1079 (Alaska App. 1982) (holding that probable cause existed even though "various factors, if taken individually, are as readily consistent with innocence as guilt, [because] the main point to be made is that the factors did not occur individually, and in isolation from each other").

Beaver acknowledges that he failed one of the field sobriety tests, the counting test, because he stopped counting backward at 57 instead of 54, as Powell had instructed. He nevertheless argues that his ability to count backward to 57 without pausing or skipping numbers was evidence of his sobriety. But Judge Moran found that Beaver's failure to follow Powell's instructions when he performed the counting test was an indication of his impairment. Beaver has not argued, or shown, that this finding was clear error.

Beaver emphasizes — as we observed in Saucier — that the law does not prohibit "driving after having had a drink." But in Saucier there were circumstances suggesting that the defendant had not consumed alcohol to the point of intoxication: Saucier only admitted to drinking a couple of beers, and the officer who contacted him did not immediately notice an odor of alcohol and observed no watery, bloodshot eyes or other obvious signs of intoxication. By contrast, Powell noticed when he first contacted Beaver that he smelled of alcohol and that he had watery, bloodshot eyes. There was an open beer can in a cup holder on the dash, two unopened beer cans behind the driver's seat, and an empty whiskey bottle partially under the driver's seat. Beaver admitted to sharing a bottle of whiskey with a friend and he said he "drank a lot." These circumstances, combined with Beaver's driving behavior and his performance on the counting test, gave Powell good reason to believe Beaver was intoxicated.

Saucier, 869 P.2d at 486.

Id. at 484, 485 & n.2.

Beaver also emphasizes that his gait was normal, that his speech was not slurred, that he was able to get in and out of his vehicle without difficulty, that he was cooperative, and that he had the presence of mind to call his sister to put out the fire at his house. While these are facts in Beaver's favor, viewed in the totality of the circumstances they do not establish that Powell lacked probable cause to arrest Beaver. As already noted, the State's burden at the suppression hearing was not to prove beyond a reasonable doubt that Beaver had been driving under the influence, but rather to establish that the facts known to Powell at the time of the stop established a fair probability or substantial chance Beaver committed the offense. We conclude that Beaver's arrest was supported by probable cause to believe he was driving under the influence, and that Judge Moran did not err in denying the motion to suppress.

Howard, 209 P.3d at 1047 (quoting Joubert, 20 P.3d at 1119); see Hazen v. Anchorage, 718 P.2d 456, 460 (Alaska 1986).
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Conclusion

We AFFIRM the judgment of the superior court.


Summaries of

Beaver v. State

COURT OF APPEALS OF THE STATE OF ALASKA
Jun 19, 2013
Court of Appeals No. A-11017 (Alaska Ct. App. Jun. 19, 2013)
Case details for

Beaver v. State

Case Details

Full title:ROY P. BEAVER, Appellant, v. STATE OF ALASKA, Appellee.

Court:COURT OF APPEALS OF THE STATE OF ALASKA

Date published: Jun 19, 2013

Citations

Court of Appeals No. A-11017 (Alaska Ct. App. Jun. 19, 2013)