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Fredrichs v. State6/28/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4238 - June 28, 2000]
Appeal from the District Court, Fourth Judicial District, Fairbanks, Jane F. Kauvar, Judge.
Following a jury trial, Bradley R. Fredrichs was convicted of driving while intoxicated (DWI). Fredrichs appeals a number of the trial court's decisions. We affirm. Fredrichs, based on various grounds, moved to suppress evidence prior to trial. Following an evidentiary hearing, District Court Judge Jane F. Kauvar denied the motion. On appeal, Fredrichs argues that evidence should have been suppressed because the police did not have probable cause to administer field sobriety tests, did not tape record the field contact or the administration of the field sobriety tests, did not comply with the observation period before administering the Intoximeter test, and deprived him of his right to an independent chemical test. He also argues that the judge should have instructed the jury that they should presume that evidence missing from an audiotape made during the testing process was favorable to him.
Facts and Proceedings
On January 10, 1998, at approximately 1 a.m., Fredrichs drove his vehicle into a ditch alongside the Old Richardson Highway near Fairbanks. The vehicle became stuck in the snow. He left the vehicle to seek assistance in getting it out of the ditch. While he was gone, North Pole Police Officer Paul Lindhag discovered the vehicle, and began to look for the driver. He contacted Fredrichs a minute or two later, when Fredrichs returned to his vehicle.
According to Lindhag's testimony, as Fredrichs approached him, he could see that Fredrichs was "swaying". When Fredrichs walked next to him, Lindhag could smell the odor of an alcoholic beverage, and could see that Fredrichs' eyes were bloodshot and watery. Fredrichs told Lindhag that he had been driving home from a local bar, that he had been alone in the vehicle, and that the accident had occurred when he reached for a tissue. Fredrichs also said that the accident had occurred about five or ten minutes prior to his contacting Lindhag, that he had been drinking earlier in the evening, and that he had stopped drinking about a half hour before the accident. He indicated that he had not been drinking since the accident.
Lindhag administered three field sobriety tests - the horizontal gaze nystagmus, the walk-and-turn, and the one-legged stand. According to Lindhag, Fredrichs performed poorly on the first two, and could not complete the third; Lindhag concluded that Fredrichs had failed all three tests. Lindhag then arrested Fredrichs for DWI, and transported him to the North Pole police station. At the station, Lindhag administered an Intoximeter 3000 test, which showed that Fredrichs' blood alcohol content was .146 percent.
Prior to administering the Intoximeter 3000, Lindhag checked and started a tape recorder located at the station. He testified that he recorded the entire observation period, but that the tape was later partially recorded over when a copy was being prepared for an administrative hearing. He also testified that he observed Fredrichs for at least fifteen minutes, and perhaps longer by the time he actually administered the test. At the evidentiary hearing, Fredrichs pointed out that the tape had only recorded 10 minutes and 30 seconds of the observation period. (Fredrichs, however, also indicated that the tape itself was "about 16, 17 minutes" long.)
Discussion
Probable Cause
Fredrichs argues that the police must have probable cause to believe that a motorist has been driving while intoxicated before they ask the motorist to submit to field sobriet
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