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Castro v. State4/8/1998
ey had only counted to 9 when demonstrating the test.
Following these field sobriety tests, Dudley brought Castro to the police station. A breath test revealed that Castro's blood-alcohol level was .165 percent.
On appeal, Castro argues that a police officer must have probable cause to arrest (not just reasonable suspicion to perform an investigative stop) before the officer directs an unwilling driver to perform field sobriety tests. This argument is moot. When Castro raised this argument in the district court, Magistrate Craig R. McMahon ruled that Dudley had had probable cause to arrest Castro before he asked Castro to perform the field sobriety tests. We agree. Dudley personally observed Castro driving the Bronco, Castro was visibly intoxicated when Dudley stopped the vehicle, and Dudley had just seen Castro drive onto a closed road, apparently oblivious to the markers blocking off the road. Viewing the evidence in the light most favorable to the trial court's ruling, State v. Grier, 791 P.2d 627, 631 (Alaska App. 1990), there was probable cause to arrest Castro before he performed the field sobriety tests.
Castro raises three other arguments on appeal relating to his traffic stop. First, he argues that even if he was validly under arrest when he was asked to perform the field sobriety tests, he should have received Miranda warnings before the tests. Second, he argues that Officer Dudley failed to follow the correct procedures when he administered the field sobriety tests to Castro, so that the results of these tests are invalid. Third, Castro asserts that drivers who are asked to perform field sobriety tests have a due process right to demand that the police record the administration of the tests. We conclude that Castro has failed to preserve these issues for appeal.
When Castro entered his no contest plea in this case, he preserved the question of whether there was probable cause for his arrest. Cooksey v. State, 524 P.2d 1251, 1255 (Alaska 1974). We have already ruled that Officer Dudley had probable cause to arrest Castro before he asked Castro to perform the field sobriety tests. Thus, any alleged impropriety in the administration of the field sobriety tests would not be dispositive of the prosecution against Castro. See Miles v. State, 825 P.2d 904, 905 (Alaska App. 1992).
As in the Fairbanks case, Castro argues that the double jeopardy clause barred the State from prosecuting him from for driving while intoxicated because the Department of Public Safety had already conducted an administrative proceeding against his driver's license. However, Castro raises a new twist to the double jeopardy issue. At the administrative hearing, Officer Dudley failed to appear. Because the State bears the burden of proof at the administrative hearing, see AS 28.15.166(j), the hearing officer ruled summarily in Castro's favor. But see AS 28.15.166(h) (allowing the hearing officer to decide the case based on the arresting officer's written report).
Castro points out that one of the elements of the State's proof at the administrative hearing was to show that there was probable cause for Castro's arrest. See AS 28.15.166(g). Castro contends that, under the principle of collateral estoppel embodied in the double jeopardy clause, see Ashe v. Swensen, 397 U.S. 436, 442, 445-46; 90 S.Ct. 1189, 1193, 1195-96; 25 L.Ed.2d 469 (1970), the ruling in Castro's favor at the administrative hearing should have barred the State from opposing Castro's suppression motion in the criminal prosecution (which was based on Castro's assertion that Dudley had lacked probable cause to arrest him).
A party who pleads collateral estoppel must establish three elem
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