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

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


         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 @



                                                                    Court of Appeals No. A-11895  

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


                                                                            O  P  I  N  I  O  N  


                                    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 


      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     



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  


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.  


                    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,  


               Entered at the direction of the Court.  

                                                 Clerk ofthe Appellate Courts  

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