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Miller v. City and Borough of Juneau3/25/1998
MEMORANDUM OPINION AND JUDGMENT
Starla M. Miller was convicted of refusal to submit to a chemical test based on her no contest plea. Code, City and Borough of Juneau (CC&BJ; § 72.10.012(a). Miller preserved for appeal, in accordance with Cooksey v. State, 524 P.2d 1251 (Alaska 1974), her claim that Magistrate John W. Sivertsen, Jr. erred when he denied her motion to suppress. We affirm.
On the evening of October 31, 1995, Juneau Police Officers Scott Erickson and Rayme Vinson were on patrol. They received a message from dispatch that an anonymous telephone caller reported that Miller was driving while intoxicated with a child in the car; the dispatch described Miller's car and gave a license plate number. The officers noted the dispatch and drove around looking for Miller's car, without locating it.
Later that evening, the officers saw Miller's car in a parking lot; Miller was sitting alone in the driver's seat of the car, which had its interior light on. The officers stopped their patrol car partially within the entryway to the parking lot about twenty-five feet from Miller's car. They did not activate emergency lights or otherwise signal Miller.
Miller got out of her car and approached the officers' patrol car so quickly that Miller had to step back from the patrol car so Officer Vinson could get out. The officers noticed that Miller appeared to be intoxicated, with red, watery eyes, the odor of alcohol, and slow and deliberate motions and balance. Miller admitted she had been drinking. Officer Erickson asked her to perform field sobriety tests. Erickson then arrested Miller for driving while intoxicated. She subsequently refused a chemical test of her breath.
Miller moved to suppress the evidence and dismiss the case, arguing that the police had illegally stopped her. Magistrate Sivertsen found that the officers did not stop Miller but that Miller approached the officers. Magistrate Sivertsen concluded that Miller had not been seized when she approached the officers' patrol car.
On appeal, Miller renews her contention that there was no reasonable suspicion of her having been driving while intoxicated to justify the police stop. However, Miller does not challenge Magistrate Sivertsen's finding that it was Miller who approached the officers. That finding supports Magistrate Sivertsen's Conclusion that Miller's approach to the officers was not a police stop. Miller's argument on appeal that the officers' personal observations of her in the parking lot after she contacted them could not be taken into account to justify the police officers' subsequent investigation and arrest is not well taken, since the officers had not stopped Miller when they observed her apparent intoxication. Those observations justified the request that Miller perform field sobriety tests. See Romo v. Anchorage, 697 P.2d 1065, 1069 (Alaska App. 1985). We conclude that the record supports Magistrate Sivertsen's decision that the officers did not stop Miller. Our Conclusion disposes of Miller's other claims. Therefore, we AFFIRM the conviction.
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