 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Schoenthaler v. State6/28/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4236 - June 28, 2000]
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
While Gregg Schoenthaler was driving to work in Unalaska, he hit 7-year-old Gabriel Pettit with his pickup truck. Following an investigation, the Unalaska police arrested Schoenthaler. The jury convicted Schoenthaler for third-degree assault and driving while intoxicated. In this appeal, Schoenthaler renews two main claims that the superior court rejected: (1) that there was no probable cause for his arrest or for the issuance of a search warrant for his blood; and (2) that evidence obtained as a result of a warrantless inspection of his vehicle's mechanical systems should have been suppressed. Because we conclude that Schoenthaler was arrested without probable cause, and that evidence obtained as a result of the illegal arrest was admitted at trial, we reverse.
Facts and proceedings
On May 22, 1997 at about 6:00 p.m., Gregg Schoenthaler was driving to work in Unalaska in his Toyota pickup. Schoenthaler was driving on Gilman Avenue when he saw Pettit run into the street. Schoenthaler was not able to stop in time to avoid hitting Pettit. Responding emergency medical personnel observed that Pettit had received potentially serious injuries and they arranged for Pettit's evacuation to Anchorage for further medical treatment.
Members of the Unalaska police also responded to the accident. Sergeant Lucking of the Unalaska police drove Schoenthaler from the accident site to the police station to talk with him about the accident. On the way to the police station, Sergeant Lucking noticed an odor of alcohol. At the police station, Schoenthaler admitted he had a small pitcher of beer early in the afternoon. Schoenthaler said he was driving about twenty miles per hour and attempted to stop when he saw Pettit. Schoenthaler reported that his brakes were functional but that the truck had a brake fluid leak that he addressed by adding brake fluid periodically.
Sergeant Lucking testified at trial that he noticed that Schoenthaler's eyes were red and glassy, but did not mention anything about Schoenthaler's eyes when applying for the search warrant. Sergeant Lucking did not notice any other physical manifestations of alcohol consumption. Lucking testified at trial that he did not believe that Schoenthaler was intoxicated.
While at the police station, Sergeant Lucking had Schoenthaler submit to a portable breath test. The record does not show what type of device was used but the result was .064. The results of the portable breath test were included in the application for the search warrant but were not admitted at trial.
After Sergeant Lucking consulted with the head of his department, he arrested Schoenthaler for first-degree assault and driving while intoxicated. Because the Department's Intoximeter was out of service, Sergeant Lucking and Sergeant Betzen applied for the search warrant to obtain Schoenthaler's blood for alcohol and drug testing. The Unalaska magistrate issued the search warrant. The blood test results were admitted at trial and showed the presence of alcohol (.049) and marijuana.
As part of their investigation, the police seized Schoenthaler's pickup truck at the scene. The next day, May 23, at the request of the police, Jacob Bontrager, a mechanic, examined the truck's brake and steering systems. Bontrager concluded that the brake fluid leak that Schoenthaler mentioned to Sergeant Lucking was located at the right rear brake and could affect the braking performance of Schoenthaler's pickup.
The grand jury indi
Page 1 2 3 4 5 Alaska DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|