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Spear v. State4/7/2004
Shannon G. Spear appeals his conviction for driving under the influence. [FN1] He contends that most of the evidence against him was obtained during an illegal investigatory stop. The State presented the following evidence at the evidentiary hearing in the district court:
Shortly before 1:00 a.m. on October 7, 2002, Alaska State Trooper Andrew T. Merrill was driving southbound in the left-most lane (i.e., the fast lane) of the Richardson Highway. Spear's vehicle was ahead of Trooper Merrill's vehicle.
Merrill observed that Spear was driving ten miles per hour slower than the posted speed limit, and that Spear's vehicle was weaving noticeably within its lane of travel. Merrill followed Spear for more than a mile, and Spear's vehicle continued to weave within the lane. Based on these observations, Merrill activated his overhead lights. Spear did not react immediately to the overhead lights; he continued driving for another mile before he pulled his vehicle to the side of the road. The ensuing investigatory stop yielded further evidence of Spear's intoxication. Merrill further testified that there was no apparent reason for Spear to be traveling below the speed limit. Traffic on the Richardson Highway was light, and there were no temporary speed limit signs or other unusual traffic control devices in that area of the highway. Although the road surface was wet, driving conditions were not hazardous. Merrill said that he had been taught that driving below the speed limit is one indicator that a driver may be intoxicated.
Based on this testimony, District Court Judge Jane F. Kauvar found that Spear had been driving ten miles per hour below the speed limit in the fast lane of the Richardson Highway even though Spear's vehicle was one of the only cars on the highway. The judge also found that Spear's vehicle had been weaving within his lane for "a period of time", and that he was having trouble keeping his vehicle in his lane even though he was driving ten miles per hour below the speed limit. Judge Kauvar acknowledged that there was a section of the highway under construction ahead of Spear, and that the speed limit was reduced in this construction zone. But the judge also found that Spear had not yet reached that section of the highway. Based on these findings, Judge Kauvar ruled that the investigative stop was justified, and the State was entitled to use the evidence it gathered as a result of that stop.
The investigative stop of Spear's vehicle would be justified if Trooper Merrill had a reasonable suspicion that Spear was under the influence. [FN3] The requisite reasonable suspicion can exist even if the police officer does not see the driver engage in driving that is immediately dangerous. Rather, "[i]t is sufficient if [the officer] observes facts which lead him to reasonably believe that the person to be stopped is dangerous." In Hamman v. State, 883 P.2d 994 (Alaska App.1994), this Court upheld a traffic stop that was based almost entirely on a police officer's observation that the van he was following was noticeably weaving. [FN5] Although the officer ultimately saw the defendant's vehicle leave its lane of travel and then jerk back into the lane, this Court ruled that the officer already possessed sufficient justification to stop the vehicle because the officer had seen the vehicle weaving repeatedly within its lane of travel over a distance of more than half a mile. [FN6] We acknowledged that the officer was also entitled to take the time of day (early morning) into account, but we stressed that the "primary circumstance justifying the stop of Hamman's vehicle was [the] observation of Hamman's erratic driving." Our decision in Hamman followed in the wake of the supreme court's decision in Ebona v. State, 577 P.2d 698 (Alas
Page 1 2 Alaska DUI Attorneys
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