Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493 This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


State v. Spencer (2/26/2016) ap-2494

State v. Spencer (2/26/2016) ap-2494

                                                     NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                                     E-mail:  corrections @ akcourts.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STATE OF ALASKA,  

                                                                    Court of Appeals No. A-11895  

                                    Appellant,                     Trial Court No. 4NE-13-95 CR  



                           v.  

                                                                            O  P  I  N  I  O  N  

DAVID C. SPENCER,  



                                    Appellee.                      No. 2494 - February 26, 2016  



                  Appeal from the District Court, Fourth Judicial District, Nenana,  

                  Ben Seekins, Judge.  



                  Appearances:   William A. Spiers, Assistant District Attorney,  

                                                                            

                  Fairbanks, and Michael C. Geraghty, Attorney General, Juneau,  

                                                                  

                  for the Appellant.  William R. Satterberg Jr., The Law Offices  

                  of William R. Satterberg, Jr., Fairbanks, for the Appellee.  



                  Before:  Mannheimer, Chief Judge, and Allard, Judge.  



                  Judge ALLARD.  



                                                                 

                  A state trooper contacted David C. Spencer outside a residence shortly after  



                                         

the trooper observed Spencer driving his four-wheeler on the street in Nenana.  During  



the course of this contact, the trooper observed signs that Spencer was intoxicated.  



                  Based on his observations, the trooper administered field sobriety tests to  

                                                                                                            



Spencer.  During those tests, Spencer began complaining about performing the tests and  

                                                   


----------------------- Page 2-----------------------

expressed his reluctance to do so.   The trooper repeatedly told Spencer to complete the     



rest of the field sobriety tests, which Spencer did.                           After Spencer failed the field sobriety     



tests,  the  trooper  arrested  him  for  driving  under  the  influence.    A  later  breath  test  



revealed a blood alcohol level above the legal limit.  



                     Spencer moved to suppress the evidence of his intoxication, asserting that  

                                                                                           



the trooper unlawfully coerced him into performing the field sobriety tests.  Spencer  

                                                                                      



argued that the trooper could not demand that he perform field sobriety tests unless the  

                                                                           



trooper had probable cause to believe he was driving under the influence.  



                     After an evidentiary hearing and supplemental briefing by the parties, the  



district court agreed with Spencer that the trooper needed probable cause to compel him  



to submit to field sobriety tests against his will.  The court further found that the trooper  

                 



did not have probable cause to believe Spencer was driving under the influence until  

                                                                                      



after Spencer failed the field sobriety tests. The court therefore granted Spencer's motion  

                                                                     



to suppress and dismissed the case.  



                     The State now appeals.  For the reasons explained here, we conclude that  

                                                                                                                



the district court relied on an erroneous interpretation of the law.  We therefore reverse  

                                                                                                         



the  district  court's  orders  and  remand  this  case  to  the  district  court  for  proceedings  



consistent with this decision.  



           Why we reverse the decision of the district court and remand this case  



                     In Alaska, the police are entitled to administer field sobriety tests whenever  

                                                       

they have reasonable suspicion to believe a motorist is driving under the influence. 1 

                                                                                                                                     As  



      1    Galimba v. Anchorage, 19 P.3d 609, 612 (Alaska App. 2001).   



                                                                 - 2 -                                                           2494
  


----------------------- Page 3-----------------------

we first noted in McCormick  v. Anchorage, the majority of states treat field sobriety tests     

as a form of a Terry stop, not as a search.2  

                                                                  In McCormick, we observed:  



                    Although there is some disagreement among the states on this  

                                                                                                      

                    issue, most courts hold that a motorist has no constitutional  

                    right to refuse field sobriety tests as long as the requested  

                                                                              

                    field sobriety tests are non-testimonial ... and as long as the  

                                                                                           

                    officer's request for field sobriety tests is supported by the  

                                                                                                      

                    requisite reasonable suspicion[.]3  



                    Following our decision in McCormick , we issued Galimba v. Anchorage,  

                                            



in  which  we  definitively  held  that  "in  Alaska,  police  do  not  need  probable  cause  

                                                                                                   

sufficient for an arrest before requesting typical field sobriety tests."4  

                                                                                                           



                                                               

                    Spencer points to our use of the term "requesting" in Galimba to argue that  



                               

Galimba's holding is limited to situations where the officer asks a motorist to submit to  



                                                                                        

field sobriety tests.  Spencer argues that the officer must have probable cause to order  



the motorist to submit to those tests.  This is a misreading of Galimba.  



                    We acknowledge that, as a practical matter, an officer cannot compel an  



uncooperative motorist to perform the tests.  But that does not mean a motorist's consent  



is required as a legal matter.  As the Idaho Court of Appeals explained, "an individual  



who has been instructed by a police officer to perform field sobriety tests has the power  

                                                       



to  prevent  the  tests  by  refusing  to  cooperate,  but  that  power  does  not  equate  to  a  

     

constitutional right to refuse."5  



     2    McCormick v. Anchorage , 999 P.2d 155, 160 (Alaska App. 2000).
  



     3    Id.
  



     4    Galimba, 19 P.3d at 612. 
 



     5    State v. Buell, 175 P.3d 216, 218 (Idaho App. 2008).
  



                                                              - 3 -                                                        2494
  


----------------------- Page 4-----------------------

                    Moreover, because a motorist's legal consent to field sobriety tests is not     



              6 

                                                                 

required,  the validity of field sobriety tests does not hinge on whether the officer politely 



                

asked the motorist to perform them or instead tersely instructed the motorist to complete  



                                                                                                             

the tests - as long as the circumstances of the stop as a whole were not so coercive that  



                                                                                                                 7  

the motorist was subjected to arrest before the trooper had probable cause.   



                                                                                     

                    Here, the trial court found that Spencer did not willingly engage in the field  



sobriety  tests  and  the  trooper  did  not  have  probable  cause  to  demand  that  Spencer  



perform the tests.  The trial court believed that probable cause was required because,  



                            

although Spencer never refused to perform the field sobriety tests, he complained about  



                                                                                                          

doing them and expressed a desire not to do them.  The State argues that the trooper's  



                                                                                                                   

conduct - repeatedly telling Spencer to complete the field sobriety tests - was neither  



coercive nor threatening.  Indeed, from our review of the record, it appears that the  



                                                                                                  

contact was cordial, and that Spencer cooperated and performed all of the field sobriety  



tests as directed, albeit unenthusiastically.  We therefore reverse the district court's ruling  



granting Spencer's motion to suppress and dismissing his case and remand this case to  

                                              



the district court for further proceedings consistent with this decision.  



                    We note that, on remand, the court should also address the outstanding  



motions that it has not yet ruled on, which include Spencer's motion challenging the  

                                          



legality of the initial stop.  We express no opinion on the merits of that motion.  



          Conclusion  



                    We REVERSE the judgment of the district court and REMAND for further  

                                                                                              



proceedings consistent with this decision.  We do not retain jurisdiction.  



     6    McCormick , 999 P.2d at 161.  



     7    Galimba, 19 P.3d at 612.  



                                                              - 4 -                                                        2494  


----------------------- Page 5-----------------------

         In the Court of Appeals of the State of Alaska 
 



 State of Alaska,                                )  

                                                 )     Court ofAppeals No. A-11895  

                         Appellant,              )  



              v.                                 )                  Order  

                                                 )  

 David Spencer,                                  )  

                                                 )  

                         Appellee .              )   Date of Order: February 22, 2016  



~~~~~~~~~~~~~~)  

 Trial Court Case# 4NE-13-00095CR  



                [Before:  Mannheimer, Chief Judge, and Allard, Judge.]  



               Upon consideration of the Appellant's motion to publish our decision in  



this case,  



               IT IS ORDERED:  



                I.  The motion to publish is GRANTED.  



               2.   Memorandum        Opinion   No.     6282    is  WITHDRAWN            and   is  



 SUPERSEDED by Published Opinion No. 2494, which will be issued on February 26,  



2016.  



               Entered at the direction of the Court.  



                                                 Clerk ofthe Appellate Courts  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC