Opinion
Court of Appeals No. A-10424.
August 10, 2011.
Appeal from the District Court, Third Judicial District, Palmer, John W. Wolfe, Judge, Trial Court No. 3PA-08-880 CR.
Hanley R. Smith, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Jarom B. Bangerter, Assistant District Attorney, Palmer, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jessie Lee Dockins appeals his conviction for driving while under the influence of alcohol. He claims that a state trooper lacked probable cause to arrest him for DUI. For the reasons explained here, we agree with the district court's conclusion that the trooper had probable cause to believe Dockins was under the influence of alcohol.
AS 28.35.030(a).
Background
On April 5, 2008, Alaska State Trooper Andrew Gorn stopped the vehicle Dockins was driving because of an equipment violation. When Gorn contacted Dockins, he noticed that Dockins had a moderate odor of alcohol and bloodshot, watery eyes. He described Dockins's eyes as "glassy." Dockins admitted that he had consumed alcohol about one half hour before he was stopped.
Based on this information, Gorn had Dockins perform some field sobriety tests. Dockins successfully recited the alphabet from E to P, but failed when he tried to count backwards from sixty-nine to fifty-four.
Gorn then twice administered the horizontal gaze nystagmus (HGN) test, once while Dockins was in Gorn's vehicle and then once outside the vehicle. On both tests, Dockins had six out of the six clues of impairment (the worst possible result). In other words, he failed both tests.
After the two HGN tests, Dockins failed the walk and turn test, but passed the one-leg stand test. Gorn then administered a preliminary breath test, which indicated that Dockins's blood alcohol content was .098 percent. Afterwards, Gorn arrested Dockins for DUI and transported him to the Wasilla Police Department for a DataMaster test. The DataMaster showed that Dockins's blood alcohol content was .103 percent.
Prior to trial, Dockins moved to suppress the evidence against him, claiming that Gorn lacked probable cause to arrest him for DUI. District Court Judge John W. Wolfe held a hearing to resolve this motion. Gorn was the only witness. After the hearing, Judge Wolfe denied the motion to suppress, finding that Gorn had probable cause to arrest Dockins. Later, following a bench trial based on stipulated facts, Judge Wolfe found Dockins guilty of DUI. He appeals.
Discussion
Dockins contends that Judge Wolfe erred when he ruled that Gorn had probable cause to arrest him for DUI. In particular, he argues that Judge Wolfe should not have relied on the results of the two HGN tests. He asserts that not only were the tests conducted improperly, but also that Judge Wolfe committed plain error by drawing an impermissible correlation between Dockins's performance on the tests and his blood alcohol level. Dockins bases this claim on this court's decision in Ballard v. State.
955 P.2d 931 (Alaska App. 1998).
"Probable cause to arrest exists 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 subject to the search." Probable cause "is determined objectively and requires only a fair probability or substantial chance of criminal activity, not an actual showing that such activity occurred." Probable cause to arrest is a mixed question of fact and law. An appellate court must accept a trial court's findings of historical fact unless those findings are clearly erroneous. Whether probable cause arises from those facts is a purely legal question that the appellate court reviews de novo.
State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
Id. at 1119 (footnote omitted) (internal quotation marks omitted).
State v. Grier, 791 P.2d 627, 631 (Alaska App. 1990).
Id.
Id.
Even if we were to ignore the HGN test results, the facts and circumstances of Dockins's stop arguably warranted a reasonable belief that Dockins had been driving under the influence. Dockins admitted to Gorn that he had consumed alcohol about one half hour before he was stopped. He had a moderate odor of alcohol and bloodshot, watery eyes. And he failed two of four field sobriety tests other than the HGN tests — the counting test and the walk-and-turn test.
Dockins argues that under Saucier v. State this evidence was insufficient to support a finding of probable cause. In Saucier, the only facts and circumstances suggesting Joseph Saucier was driving while intoxicated were "minor driving errors . . . and the facts that he emitted a `normal' odor of alcohol, admitted to having had a couple of beers, and refused to perform field sobriety tests." Dockins exhibited no poor driving but he had bloodshot, watery eyes, he admitted he had consumed alcohol, and he failed two field sobriety tests other than the HGN tests. In other words, there were more facts and circumstances in Dockins's case suggesting that Dockins was impaired.
869 P.2d 483 (Alaska App. 1994).
Id. at 485.
However, we conclude that Judge Wolfe committed no error when he included the HGN test results in his probable cause analysis. Although Dockins claims that neither HGN test was conducted properly, the record shows otherwise.
Dockins asserts that the HGN tests were not reliable because they were conducted too quickly. At the suppression hearing, the defense attorney pointed out that, according to the manual he relied on, it should have taken Gorn seventy-two seconds to fully administer the HGN test. The defense attorney conceded that the time necessary to conduct each stage was "approximate."
Gorn testified that he conducted the tests the way he had been trained. Although he said — based on the defense attorney's representation that the manual recommended that the entire test take seventy-two seconds to administer — that he might have conducted the first test "about five seconds too fast," he added that he would still be able to detect sustained nystagmus.
As for the second HGN test, Gorn conceded that he conducted a portion of the test that should take two seconds to complete "a little fast." But while this particular portion of the test was done "a little fast," the video of the testing shows that Gorn took more than ninety seconds to conduct the entire second HGN test. That is, it took Gorn longer than the recommended seventy-two seconds to conduct the second test in its entirety. There was no evidence that conducting one part of the test "a little fast" rendered the results of the second HGN test unreliable.
Judge Wolfe found that the HGN test was designed to be used in the field and that the recommendations on ad ministering the test were guidelines. Having reviewed the record, we agree that, to the extent Gorn departed from these guidelines, Dockins failed to show that this departure had any effect on the result of the test.
See Ballard, 955 P.2d at 942 (indicating HGN results are admissible unless test procedures were "so substandard as to preclude any reasonable juror from concluding that the results were meaningful").
Dockins also claims that Judge Wolfe committed plain error by drawing an impermissible correlation between Dockins's performance on the HGN tests and his blood alcohol level. He based this claim of error on this court's decision in Ballard v. State. In Ballard, we ruled that
[t]estimony concerning a defendant's performance on a properly administered HGN test is admissible on the issue of impairment, provided that the prosecution claims no greater reliability or weight for the HGN evidence than it does for evidence of the defendant's performance on any of the other standard field sobriety tests, and provided further that the prosecution makes no attempt to correlate the HGN test result with any particular blood-alcohol level, range of blood-alcohol levels, or level of impairment.
Id. at 940.
At the suppression hearing, Gorn testified that he relied primarily on the HGN results in deciding that Dockins was impaired. On cross-examination, Gorn also testified that "I can honestly say that . . . I've never seen someone with six points [on the] HGN [test] under the legal limit." In other words, Gorn's testimony correlated Dockins's performance on the HGN tests to a particular blood-alcohol level — i.e., he inferred based on Dockins's performance on the HGN tests that Dockins's blood alcohol level was greater than the legal limit of .08 percent.
Later, when Judge Wolfe denied Dockins's motion to suppress, he said that Gorn observed six clues of nystagmus and that "whether or not [there] was substantial compliance, [Gorn] testified that he has done these hundreds of times and that based on his observations, [anyone] who has done as the defendant did would . . . subsequently [test] over the legal limit."
Based on Gorn's testimony and Judge Wolfe's statement, Dockins argues that Judge Wolfe violated Ballard by improperly correlating Dockins's HGN test results with a specific level of intoxication and by placing too much weight on the test results.
We find no plain error. Gorn was testifying at a pre-trial hearing about the information he had when he decided to arrest Dockins for DUI. The HGN evidence was not offered to show that Dockins was in fact guilty of violating the legal limit of .08 percent; rather, it was offered as part of the evidence Gorn relied upon to determine whether there was probable cause to arrest Dockins for DUI.
See Grier, 791 P.2d at 630.
We were presented with similar circumstances in Bertilson v. State. Before trial, John Bertilson claimed that the police had relied too heavily on the HGN results when investigating whether he was under the influence, in violation of Ballard. Bertilson moved to suppress the evidence, arguing that because the results of his other field sobriety tests had been borderline, the police must have placed too much emphasis on the HGN results. The trial court rejected this claim, and we affirmed. We pointed out that Bertilson's argument wrongly focused on the officers' subjective reasons for making the arrest. When trial courts determine whether probable cause to arrest exists, the "officers' subjective reasons for making the arrest are irrelevant." Instead, trial courts must "analyze the objective information which the police had at the time when they made an arrest in determining whether there was probable cause to make that arrest."
64 P.3d 180 (Alaska App. 2003).
Id. at 184.
Id.
Id. at 186.
Id. at 185.
Id. at 185; see also Beauvois v. State, 837 P.2d 1118, 1121-22 n. 1 (Alaska App. 1992).
Bertilson, 64 P.3d at 185 (quoting State v. Kendall, 794 P.2d 114, 117 (Alaska App. 1990)).
Here, after viewing all of the evidence presented to Judge Wolfe objectively, including the HGN test results, we conclude that Gorn had ample probable cause to believe Dockins was intoxicated. Accordingly, we uphold the district court's decision denying the motion to suppress.
Conclusion
The judgment of the district court is AFFIRMED.