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THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH SAUCIER, )
)
Appellant, ) Court of
Appeals No. A-4859
) Trial Court No. 3SW-S92-328CR
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1335 - February 25, 1994]
______________________________)
Appeal from the District Court, Third
Judicial District, Seward, George Peck,
Magistrate.
Appearances: Rene' L. Wright, Assistant
Public Defender, Kenai, and John B. Salemi,
Public Defender, Anchorage. for Appellant.
Ethan A. Berkowitz, Assistant District
Attorney, Edward E. McNally, District
Attorney, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
WOLVERTON, Judge.
Joseph Saucier was arrested for driving while
intoxicated (DWI) and subsequently charged with refusal to submit
to a chemical test of his breath. He entered a no contest plea
to the refusal charge, reserving his right to appeal the district
court's denial of his motion to suppress the evidence of his
refusal to submit to the chemical test. Saucier argues that the
officer who arrested him did not have probable cause to believe
that Saucier had been driving while intoxicated. We agree.
Saucier was arrested by Seward Police Officer Gary
Byrnes. Byrnes was driving behind Saucier's car on a Seward city
street at about 1:20 a.m., when Saucier's manner of driving
caught his attention. Byrnes saw Saucier drive for approximately
the length of a city block with his left tires on the center line
of the road. A car going in the opposite direction passed
Saucier's car during this time. In the next block Saucier's
left tires briefly crossed completely over the center line. Half
a block later Saucier pulled into a parking space. Byrnes pulled
in behind him and turned on his overhead lights.
Byrnes walked up to Saucier's car and told Saucier that
he had stopped him for driving on and over the center line.
Byrnes asked for Saucier's driver's license and Saucier produced
it without difficulty. Byrnes did not notice any odor of liquor
at this time.
Byrnes asked Saucier to get out of his car and step up
onto the curb, and Saucier complied. When Byrnes asked him
whether he had had anything to drink, Saucier replied that he had
had a "couple of beers." During this conversation on the
sidewalk, Byrnes detected an odor of liquor about Saucier's
person. In his testimony, Byrnes characterized this odor as a
"normal," rather than "strong," odor of intoxicating liquor.
Byrnes asked Saucier to perform field sobriety tests and to
submit to a preliminary breath test. Saucier refused both
requests. Byrnes then arrested Saucier for DWI.
Probable cause for an arrest exists when the officer is
aware of facts and circumstances, based on reasonably trustworthy
information, that are sufficient in themselves to warrant a
reasonable belief that an offense has been or is being committed.
Pistro v. State, 590 P.2d 884, 886 (Alaska 1979); State v. Grier,
791 P.2d 627, 631 (Alaska App. 1990). The existence of probable
cause is a mixed question of fact and law. Absent clear error,
we must accept the facts as the lower court finds them. Whether
probable cause arises from those facts, however, is a purely
legal issue over which we exercise our independent judgment.
Chandler v. State, 830 P.2d 789, 792 (Alaska App. 1992); Grier,
791 P.2d at 631.
In this case there are no clear errors in the trial
court's findings of fact. We disagree, however, with that
court's conclusion that Byrnes' observations gave him probable
cause to arrest Saucier for DWI.
While there is no question that Saucier was driving,
the only facts and circumstances suggesting that Saucier was
driving while intoxicated were his minor driving errors, as
described above, and the facts that he emitted a "normal" odor of
alcohol, admitted to having had a couple of beers, and refused to
perform field sobriety tests.1 At the evidentiary hearing,
Byrnes was given the opportunity to expand on the bases for the
arrest, but was unable to do so. He candidly admitted that many
of the common indicia of intoxication were absent.2
In denying Saucier's motion to suppress, the trial
court stated that "[t]his court can't imagine a greater paucity
of facts supporting probable cause for an arrest for driv[ing]
while intoxicated."
The paucity of supporting facts is what distinguishes
this case from those in which we have found probable cause to
arrest for DWI. The state analogizes this case to State v.
Grier, 791 P.2d 627 (Alaska App. 1990), but the comparison is not
apt. In Grier we found probable cause to arrest despite Grier's
successful performance of several field sobriety tests. After
stopping him for speeding, an officer noticed that Grier's eyes
were bloodshot and watery and that there was a strong odor of
alcohol about his person. Grier had difficulty retrieving his
vehicle registration upon the request of the officer. Grier's
balance appeared to be unsteady as he exited his vehicle, and he
walked back to the patrol car in a "light footed" and "bouncy"
way that the officer thought was "very unusual." Grier was very
talkative and appeared to be confused. He admitted to having
consumed two or three beers. Although he successfully completed
four of five field sobriety tests, Grier failed the horizontal
gaze nystagmus test. These indicia of intoxication were
conspicuously absent in Saucier's case, thus distinguishing it
from Grier.
The state also cites Skuse v. State, 714 P.2d 368
(Alaska App. 1986). Again, the case is not analogous to
Saucier's. When initially observed, Skuse was driving in an
erratic manner indicative of impairment. Skuse's vehicle was
weaving continuously within its lane and he was seen making an
unnecessarily evasive response to an approaching vehicle by
veering into the lane of oncoming traffic. After stopping Skuse,
the officer noticed an odor of alcohol coming from Skuse's
vehicle. Skuse fumbled in his wallet for a few seconds before he
found his driver's license, and he tore his vehicle registration
when taking it out of its envelope. Skuse also seemed confused
when the officer questioned him about his expired registration
stickers. Like Saucier, Skuse smelled of liquor and refused to
perform field sobriety tests, but the similarities end there.
Skuse's driving errors were more like those usually exhibited by
intoxicated drivers. Unlike Skuse, Saucier did not exhibit
confusion and clumsiness when asked for his license and
registration.
We have found probable cause to arrest for DWI in cases
where driving behavior that indicates impaired control of the
vehicle is accompanied by signs of intoxication such as bloodshot
eyes, flushed complexion, poor physical coordination, and
confusion. See, e.g., Skuse, 714 P.2d at 373; Robins v.
Anchorage, 711 P.2d 550, 552 (Alaska App. 1985). Even in cases
where no erratic driving has been observed, we have found
probable cause based on multiple indicia of intoxication,
particularly if these included failure of one or more field
sobriety tests. See, e.g., Russell v. Anchorage, 706 P.2d 687,
690 (Alaska App. 1985); cf. Grier, 791 P.2d at 631. Neither
situation is presented in this case.
Saucier's manner of driving did not strongly suggest
that his control of the vehicle was impaired. The odor of
alcohol Byrnes detected indicated that Saucier had consumed some
amount of alcohol, as he admitted that he had. However, the law
prohibits driving while intoxicated, not driving after having had
a drink. This distinction has been cogently stated by the Ohio
Court of Appeals:
The mere odor of alcohol about a driver's
person, not even characterized by such
customary adjectives as "pervasive" or
"strong," may be indicia of alcohol
ingestion, but is no more a probable
indication of intoxication than eating a meal
is of gluttony.
State v. Taylor, 444 N.E.2d 481, 482 (Ohio App. 1981).
Finally, Saucier's unwillingness to perform field
sobriety tests, if at all probative of intoxication, is far less
so than the attempt and failure of such tests. We recognize the
difficulty encountered by an officer when a driver effectively
cuts off an investigation by refusing to perform field sobriety
tests. Nevertheless, we cannot uphold an arrest that is not
supported by probable cause to believe that a crime has been
committed.
Because Byrnes did not have probable cause to arrest
Saucier for DWI, Saucier is entitled to have evidence of his
refusal to take a breath test suppressed. See Skuse v. State,
714 P.2d at 372. The district court erred in denying Saucier's
motion to suppress. The judgment of conviction against Saucier
is REVERSED.
_______________________________
*Sitting by assignment made under article IV, section
16 of the Alaska Constitution.
1. The state argues that Saucier's refusal to submit
to a preliminary breath test (PBT) should be considered as an
additional factor in support of probable cause. This argument is
mistaken. We have previously held that "an officer must have
probable cause to arrest a defendant for driving while under the
influence before he can lawfully administer a preliminary breath
test." Leslie v. State, 711 P.2d 575, 577 (Alaska App. 1986).
It would be incongruous to hold that an officer who does not have
the requisite probable cause to administer a PBT can nevertheless
ask a driver to submit to such a test, and then use the driver's
refusal of that request to bolster the circumstances supporting
probable cause.
2. Byrnes' testimony on cross-examination included
the following:
Q. Now, that odor [of alcohol about Saucier] was not
an extraordinarily strong odor, was it?
A. Just a normal odor of intoxicating liquor.
. . . .
Q. He didn't seem confused about what you were
asking?
A. No, he did not.
Q. His eyes were normal?
A. Yes.
Q. His gait was normal when he exited the vehicle and
walked up on the sidewalk?
A. Yes.
. . . .
Q. His balance was fine. You observed him walking up
on the sidewalk. He didn't trip, he didn't stumble, he
didn't seek support from the vehicle to help him stand
up?
A. No.
Q. His balance, you indicated, was fine. Correct?
A. Yes.
Q. And he had no slurred speech?
A. No, he did not.
