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Hernandez v. Municipality of Anchorage9/1/1999
y a preponderance of the evidence a reasonable suspicion to make the stop, for the red light violation, for the speed violation. So I'm going to deny the defense motion to dismiss."
On appeal, Hernandez again challenges the validity of the stop. He points out for the first time on appeal that Judge Motyka improperly took judicial notice of facts that were not in evidence at the hearing-the Intoximeter result obtained after the stop and arrest-in order to uphold the stop.
Sometimes, a potential hearsay problem may be resolved by a court's power to take judicial notice of a fact under Alaska Evidence Rule 201. However, the problem in Hernandez's case can not be resolved in this fashion. As the supreme court explained in F.T. v. State, Judge Motyka could take judicial notice of Hernandez's prior court appearance and that certain matters were alleged or litigated during that prior court appearance, but Judge Motyka could not take judicial notice of the truth or accuracy of the evidence presented at that court appearance.
We are unable to tell whether Judge Motyka relied on this information in reaching his Conclusion to uphold the stop. We accordingly remand the case to have Judge Motyka redetermine the issue without relying on the information concerning Hernandez's intoxication from the court file.
Remanded. We retain jurisdiction. The district court shall issue its findings within 60 days of the decision. If the parties wish to respond to the supplemental findings, they shall file their memoranda within 30 days thereafter.
Page 1 2 Alaska DUI Attorneys
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