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Kashevarof v. State

Court of Appeals of Alaska
Jan 30, 2008
Court of Appeals No. A-9568 (Alaska Ct. App. Jan. 30, 2008)

Opinion

Court of Appeals No. A-9568.

January 30, 2008.

Appeal from the Superior Court, Third Judicial District, Homer, Harold M. Brown, Judge, Trial Court No. 3HO-04-496 CR.

Pamela Dale, Law Office of Pamela Dale, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.


MEMORANDUM OPINION AND JUDGMENT


William F. Kashevarof Jr. was convicted of felony refusal to submit to a chemical test and driving while license suspended. On appeal, he claims that Superior Court Judge Harold M. Brown erred when he ruled that the police had probable cause to arrest him for driving while under the influence. For the following reasons, we affirm the judgment of the superior court.

AS 28.35.032(a), (p) and AS 28.15.291(a)(1), respectively.

Facts and proceedings

In September 2004, Homer Police Officer Cory Rupe saw someone driving a vehicle that he knew was the subject of an Alaska State Trooper "locate." The "locate" involved a recent hit-and-run accident involving this vehicle, and the troopers wanted the driver of the vehicle interviewed about the accident. Rupe knew that Kashevarof was the registered owner of the vehicle and that Kashevarof's driver's license was suspended.

Soon after Rupe saw the vehicle, its driver drove into a hotel parking lot. The driver, later identified as Kashevarof, got out of the vehicle. Rupe parked next to Kashevarof's vehicle and, as Kashevarof walked toward the hotel, called to him and told him that he needed to speak to him about the accident referred to in the "locate." Kashevarof stopped and told Rupe that he had already resolved that incident with the state troopers.

Although Rupe was six feet away from Kashevarof, Rupe was able to detect the odor of alcohol on his person. Rupe also saw that Kashevarof's eyes were bloodshot and watery. When asked, Kashevarof told Rupe that he had consumed two beers. Rupe administered the horizontal gaze nystagmus (HGN) test to Kashevarof. During the test, Kashevarof showed all six "clues," indicating that he had consumed alcohol and was potentially impaired. In addition, Kashevarof swayed back and forth during the HGN test.

After the HGN test, Rupe explained how to do the one-leg-stand test. Kashevarof began this test, but after attempting it for a "split second" he put his foot down and refused to continue. He declined to do any other field sobriety tests. Rupe arrested Kashevarof for driving while under the influence. Later, when the Datamaster was ready, Kashevarof refused to provide a sample of his breath for testing.

AS 28.35.030.

Based on these events and on his criminal history, Kashevarof was charged with felony driving while under the influence, felony refusal, and misdemeanor driving while license suspended. Before trial, Kashevarof moved to dismiss the charges. He raised various challenges to the stop and to the arrest, including a claim that the police lacked probable cause to arrest him for driving while under the influence.

Judge Brown held an evidentiary hearing to resolve Kashevarof's motions. During the hearing, Kashevarof educed testimony from Rupe that he had not administered the HGN test in the manner set out in his police training materials.

After the hearing, Judge Brown issued a written decision denying Kashevarof's motions to dismiss. Among other things, he ruled that Rupe had probable cause to arrest Kashevarof for driving while under the influence. In particular, Judge Brown addressed the HGN test. He ruled that "while [Kashevarof] has elicited evidence that the HGN test may have been defectively performed in some respects, this Court cannot, on the basis of the facts known . . . say that the HGN test must be discarded."

Soon after this decision was issued, Kashevarof asked Judge Brown to reconsider it. He argued that Judge Brown should not have considered the HGN results in his probable cause determination because the test was not properly administered. Judge Brown disagreed, and ruled that

the HGN test was arguably administered in a manner that did not comply with training recommendations. But the consequence of this [type of] failure . . . does not mean that the results of the HGN test should not be considered in determining probable cause to arrest.

Kashevarof was subsequently convicted of refusal to submit to a chemical test and driving while license suspended. The State dismissed the driving while under the influence charge. On appeal, Kashevarof renews his claim that Rupe lacked probable cause to arrest him for driving while under the influence.

Was there probable cause to arrest Kashevarof for driving while under the influence?

Kashevarof claims that Judge Brown erred when he ruled that Rupe had probable cause to arrest him for driving while under the influence. In particular, Kashevarof challenges Judge Brown's reliance on Rupe's testimony addressing Kashevarof's performance on the HGN test.

Probable cause for an arrest exists "when [an] officer is aware of facts and circumstances, based on reasonably trustworthy information, that are sufficient in themselves to warrant a reasonable belief that an offense has been or is being committed." The existence of probable cause "is a mixed question of fact and law. Absent clear error, we must accept the facts as the lower court finds them." Whether probable cause arises from those facts "is a purely legal issue over which we exercise our independent judgment." As explained in the following paragraphs, we conclude that Rupe had probable cause to arrest Kashevarof for driving while under the influence.

Saucier v. State, 869 P.2d 483, 485 (Alaska App. 1994).

Id.

Id.

Judge Brown found that Rupe observed that Kashevarof's eyes were bloodshot and watery, that he swayed while standing, that he admitted that he had consumed alcohol, that he had a moderate odor of alcohol about his person, and that he failed the HGN test. The record supports these findings.

On appeal, Kashevarof specifically challenges Judge Brown's decision to rely on the HGN test results even though Rupe administered the HGN test "defectively . . . in some respects." At the hearing, Kashevarof showed that Rupe had not followed all the directions in the training manual. Specifically, Rupe administered the test in thirty seconds, but the training manual indicated that the test should take approximately twice as long. The test should take twice as long because, according to the training manual, each section of the test should be administered twice.

Rupe acknowledged that he administered the entire test only once. But Rupe further testified that Kashevarof exhibited all six "clues" of impairment. Rupe explained that he did not see a need to administer the test more than once because Kashevarof's "nystagmus was so distinct that it . . . was easy for me to see." Rupe stated that in some cases he repeats portions of the test to ensure that he is not missing something. But he told Judge Brown that in Kashevarof's case it "was pretty easy to see the nystagmus."

Thus Judge Brown was aware that Rupe had not followed the training manual's direction to administer the test twice before he scored Kashevarof's performance. But, based on Rupe's testimony, Judge Brown found that this particular departure from the manual did not render the HGN test results so unreliable that they should be excluded. We conclude that Judge Brown did not err when he factored in Kashevarof's performance on the HGN test with the rest of the circumstances and facts known to Rupe when arresting Kashevarof.

Kashevarof also claims that Judge Brown should have excluded Rupe's testimony about the administration and assessment of the HGN test. In particular, Kashevarof argues that the State did not lay a sufficient foundation for this evidence. But Kashevarof did not make a timely objection at the hearing, nor has he explained on appeal why we should find that plain error occurred. The record shows that Rupe testified that he had been trained in administering the HGN test and in assessing the results. He explained that he had received the "standard" HGN training when he attended the police academy, and that during his two years of experience as a Homer police officer, he had administered the HGN test hundreds of times. He testified that in the past, breath test results had corroborated the HGN results he had observed. During the hearing, he also demonstrated how he conducted part of the test. In Ballard v. State, we concluded that similar testimony established a sufficient foundation for police testimony about the HGN test. We find no plain error.

955 P.2d 931 (Alaska App. 1998), overruled on other grounds by State v. Coon, 974 P.2d 386 (Alaska 1999).

Id. at 941.

Finally, Kashevarof contends that the "HGN test result was admitted into evidence for the impermissible purpose of directly correlating [his] . . . HGN test result with a specific blood alcohol level over .08." But the record does not support this contention, and nothing in Judge Brown's decision suggests that he relied solely or even unduly on the HGN evidence. Rupe testified that he based his decision to arrest Kashevarof only in part on the HGN test. And when Judge Brown made his decision, he relied not only on the HGN test results but also on the facts that Kashevarof's eyes were bloodshot and watery, that he swayed while standing, that he admitted that he had consumed alcohol, and that he had a moderate odor of alcohol about his person.

The record shows that Rupe was aware of facts and circumstances that were sufficient to warrant a reasonable belief that the offense had been committed. We conclude that Rupe had probable cause to arrest Kashevarof for driving while under the influence.

Conclusion

We AFFIRM the superior court's judgment.


Summaries of

Kashevarof v. State

Court of Appeals of Alaska
Jan 30, 2008
Court of Appeals No. A-9568 (Alaska Ct. App. Jan. 30, 2008)
Case details for

Kashevarof v. State

Case Details

Full title:WILLIAM F. KASHEVAROF JR., Appellant, v. STATE OF ALASKA, Appellee

Court:Court of Appeals of Alaska

Date published: Jan 30, 2008

Citations

Court of Appeals No. A-9568 (Alaska Ct. App. Jan. 30, 2008)