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Bain v. State5/7/2003
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
No. 4705
MEMORANDUM OPINION AND JUDGMENT
James Bain, Sr., appeals his conviction for driving while intoxicated. He contends that Magistrate Bradley N. Gater should have suppressed the evidence against him because it was obtained illegally; Bain argues that the police stopped him without reasonable suspicion of wrongdoing.
According to the undisputed facts, about 5:04 p.m. on November 23, 2001, Nome Community Service Officer Rob Manning served civil papers on Bain while Bain was at his son's residence. During Manning's contact with Bain, Manning saw indications that Bain was intoxicated: Bain had an odor of alcohol about his person, had bloodshot and watery eyes, and had slurred speech. Bain was also drinking what appeared to be an alcoholic beverage from a glass. Because Manning knew that Bain was not at his home, and because Bain's truck was nearby, Manning was concerned that Bain would drive in the near future. Manning contacted Nome Police Officer Matt Owens to tell Owens about his observations and concerns.
Less than two hours later, Officer Owens saw Bain driving his truck. Owens followed Bain for a short distance, noting that Bain obeyed traffic signs and used turn signals. But, based on Manning's information, Owens decided to stop Bain to investigate whether Bain was still intoxicated. Upon contact, Owens thought Bain was intoxicated, and Bain admitted that he was. Bain failed field sobriety tests, and an Intoximeter 3000 test showed that his blood alcohol content was .256 percent.
Bain argues on appeal that Owens did not have reasonable suspicion to stop him. He contends that the information given Owens by Manning was too old to rely upon. We disagree.
The Alaska Supreme Court's decision in Ebona v. State disposes of Bain's claim. In that case, police saw Ebona walking in downtown Juneau; he was swaying a bit and appeared to be intoxicated. Approximately an hour and twenty minutes later they saw and followed a car the police knew Ebona owned; they could not, however, see the driver. Although the police saw the car weave within its traffic lane, they saw no traffic violations. The police stopped the car after they had followed it for a short distance. The supreme court held that the investigative stop was justified.
As set out in Ebona, a police officer with a reasonable suspicion that imminent danger exists may conduct an investigatory stop. The Ebona court first found that a person driving while intoxicated poses a risk of "significant dangers to persons or property." The court then, applying an objective test, went on to determine that the facts known to the police at the time of the stop would have caused a reasonable person to suspect that Ebona was driving while intoxicated.
Bain's case is factually similar to Ebona, although Manning did more than just see Bain walking down a street; rather, Manning actually contacted and interacted with Bain while serving him with civil papers. During this contact Manning noticed that not only did Bain appear to be intoxicated, but he was apparently still consuming alcoholic beverages. Approximately an hour and fifty minutes later, Owens - aware of Manning's observations - saw Bain driving his truck. Considering the length of time it takes for the normal person to eliminate alcohol from their system, the period that passe
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