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State v. Williams1/5/2000
MEMORANDUM OPINION AND JUDGMENT
No. 4170
Appeal from the Superior Court, Third Judicial District, Anchorage, Harold M. Brown, Judge.
A police officer stopped Davied Williams because he suspected that Williams was driving while intoxicated. The officer had Williams conduct a variety of field sobriety tests. Williams' performance was videotaped. When he was taken to the police station, the police made an audiotape of Williams taking his second breathalyzer test. Williams was charged with driving while intoxicated. On several occasions his counsel attempted to obtain copies of the video and audio tapes. Ultimately, it was determined that the tapes had somehow been lost, though Williams stipulated that it was not due to bad faith by the police. Williams moved to dismiss the indictment, and the superior court granted the motion. We now reverse, because, although the court had the authority to sanction the state for the loss of the audio and visual recordings, the court abused its discretion by dismissing the indictment.
Facts and Proceedings
On March 14, 1998, the Soldotna police received a report from a citizen that an intoxicated man, accompanied by his two-year old son, had driven off in a gray Ford pickup truck with Alaska license plate 5859CY. The report also indicated that the man might have a firearm. Soldotna Police Officer Duane Kant testified to the following facts concerning the arrest in this case. Officer Kant saw the truck and followed it into a parking lot. The driver, Davied Williams, parked the truck and got out. Officer Kant spoke with Williams and noticed that Williams' speech was slurred, his eyes were bloodshot and watery, his balance was unsteady, and his breath smelled of alcohol. When asked, Williams admitted that he had been drinking beer. Officer Kant directed Williams to conduct some field sobriety tests which Williams performed poorly. During the "heel to toe step portion" of the field sobriety test, Williams stopped to tie his tennis shoe, but was unable to do so after trying for one to two minutes.
Officer Kant recorded Williams' performance using a video camera located in his patrol car. He also made a separate audio recording with a handheld cassette recorder. Officer Kant administered a preliminary breath test which indicated that Williams had a breath-alcohol level of .236. Williams was arrested for driving while intoxicated and then taken to the police station. At the station, another breath test indicated that Williams' breath-alcohol was .230. Officer Kant made an audio recording while he administered this test to Williams. At the station, Officer Kant viewed the videotape that he had made and said that it was a good quality video that showed Williams' "inability to perform the field sobriety tests, unsteady balance, things like that."
Williams was charged with driving while intoxicated under AS 28.35.030(a)(1) or (2) and AS 28.35.030(n). For several weeks Williams' defense counsel requested production of the audio and video tapes. However, the prosecutor did not comply with the requests because he was having difficulty obtaining the tapes from the police. Because he was never able to obtain this evidence, defense counsel filed a motion to dismiss for failure to comply with pre-trial orders and discovery requests. The state opposed, arguing that in most circumstances the remedy for failure to disclose is the granting of a continuance. Eventually, it was determined that the tapes had been lost by the police. But the police were unsure when, how, and why this happened.
An evidentiary hearing was held on the motion to dismiss. During this hearing and a previous proceeding before J
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