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McKinley v. State11/8/2000
MEMORANDUM OPINION AND JUDGMENT
[No. 4305 - November 8, 2000]
Appeal from the District Court, Third Judicial District, Anchorage, Sigurd E. Murphy, Judge.
Michael R. McKinley was convicted of driving while intoxicated. On appeal, he asserts that he was arrested without probable cause and therefore the district court should have suppressed most of the evidence against him.
McKinley was initially stopped for going 81 miles per hour on the Seward Highway in a 55-mile-per-hour zone (near Bird Creek). The officer had McKinley perform various field sobriety tests, and the officer also required him to take a portable breath test. Based on the results of the field sobriety tests and the portable breath test, the officer arrested McKinley.
The State concedes that the officer had no authority to ask McKinley to take the portable breath test unless there was already probable cause to arrest him. Thus, the issue is whether, leaving aside the result of the portable breath test, the officer had probable cause to arrest McKinley for driving while intoxicated.
When this issue was argued in the district court, neither side asked for an evidentiary hearing. The State relied on the officer's written reports (which purportedly recorded the fact that McKinley had failed several field sobriety tests). McKinley relied on a tape recording that the officer made of the traffic stop. According to McKinley, the tape showed that the officer's reports were mistaken - that McKinley had in fact passed the field sobriety tests.
We have reviewed the record presented to the district court, and it is difficult to tell from this evidence exactly how McKinley performed on the field sobriety tests. The police report and the tape recording are both ambiguous.
However, when a defendant appeals the denial of a suppression motion, the reviewing court can uphold the trial judge's decision based on the evidence presented at the defendant's trial. At McKinley's trial, the officer testified that McKinley failed two of three field sobriety tests (tests that required McKinley to count and to perform a walk-and-turn). When McKinley again used the audio tape to try to impeach the officer, the officer testified that McKinley's failures on these tests would not have been picked up on the tape.
Specifically, with regard to the counting test, the officer testified that McKinley failed because he repeated a number under his breath, so softly that the tape did not pick it up. With regard to the walk-and-turn test, McKinley started to perform the test before he was directed to, and he nearly fell over during the test; neither of these actions was the kind of audible event that would expectably be picked up on the tape.
Added to this was the officer's testimony that McKinley was traveling substantially over the speed limit, that McKinley admitted he had been drinking, that McKinley's eyes were bloodshot and watery, and that McKinley's speech was slightly slurred at the beginning of the traffic stop (although the officer admitted that McKinley's enunciation improved during the contact).
When we consider the testimony presented at McKinley's trial, we conclude that the officer had probable cause to arrest McKinley even before he asked McKinley to take the portable breath test. Accordingly, we uphold the district court's denial of McKinley's suppression motion.
The judgment of the district court is AFFIRMED.
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