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Hernandez v. Municipality of Anchorage9/1/1999
MEMORANDUM OPINION AND JUDGMENT
[No. 4108 - September 1, 1999]
Appeal from the District Court, Third Judicial District, Anchorage, Gregory J. Motyka, Judge.
Ricardo D. Hernandez pleaded no contest to driving while intoxicated (DWI), preserving for appeal his challenge to the validity of the traffic stop. We remand.
In the early morning of May 9, 1998, Anchorage Police Officer Brett Sarber was waiting in his patrol car at the intersection of Benson Boulevard and Minnesota Drive. Sarber testified that when the traffic light at the intersection changed to green for him, he was about to drive south from the intersection when he saw Hernandez's car drive east into the intersection against a red traffic light (Sarber saw and confirmed the traffic light was red for Hernandez's direction). Sarber estimated that Hernandez's car was driving about 55 miles per hour (m.p.h.) in a 40 m.p.h. zone. Sarber activated the overhead lights of his patrol car and followed Hernandez for several blocks, pacing Hernandez's car at over 65 m.p.h., before Hernandez finally stopped. After making the stop, Sarber noticed that Hernandez appeared intoxicated and eventually arrested him for DWI.
Hernandez filed a motion to dismiss, arguing that the traffic stop had been unjustified by reasonable suspicion. At the evidentiary hearing on this motion, Sarber testified as outlined above. At first, Hernandez testified that he had been driving eastbound on Benson but did not remember the intersection with Minnesota or whether he had run a red light there. Hernandez testified that his vehicle starts shaking at 60 m.p.h. Then, however, Hernandez testified that he had actually been going north on Minnesota and then had turned right (east) onto Benson at the intersection, so that the light was green for him (as well as for Sarber, who had been going south on Minnesota). Therefore, Hernandez's testimony regarding his position and direction at the intersection of Benson and Minnesota was different from Sarber's. Hernandez testified that after his turn, he was then driving 40 m.p.h., as he always did when he often traveled that way on Benson. Hernandez's testimony regarding his speed after the intersection was therefore again different from Sarber's. On rebuttal, Sarber reaffirmed his earlier testimony, testifying that he specifically remembered that night (and that at the time he was going to the Seely substation to eat the hot meal he had just purchased) and specifically remembered seeing Hernandez drive straight through the intersection, from Sarber's right to Sarber's left.
Judge Motyka denied the motion. The Judge noted that there were two different versions of the facts and stated that he found Sarber's testimony to be credible. Judge Motyka explained that if Hernandez's testimony had been correct-if Hernandez had been going north and had turned east onto Benson at the same green light that Sarber, going south, had at the time, and Hernandez had not thereafter been speeding-then it would not have taken Sarber several blocks driving at high speeds to catch Hernandez. The Judge repeated that he credited Sarber's "rather vivid" testimony, noted that the incident had not occurred long before the hearing (which was on August 14, 1998, about three months after the stop), and then added:
"And, although there was no evidence as to the amount of alcohol on board Mr. Hernandez, certainly the log notes of the magistrate reflect an Intoximeter result; clearly there was alcohol on board that would affect his recollection of the matter. We are not discussing, of course, that here, but the bottom line is that I believe the officer's testimony, and I think that it has proven b
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