Opinion
Court of Appeals No. A-10273.
December 16, 2009.
Appeal from the District Court, Third Judicial District, Kenai, Sharon A. S. Illsley, Judge. Trial Court No. 3KN-07-2442 Cr.
Arthur S. Robinson, Soldotna, for the Appellant. Devoron K. Hill, Assistant District Attorney, and Lance E. Joanis, District Attorney, Kenai, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Michael T. Kunz appeals his conviction for driving under the influence, AS 28.35.030(a). Kunz's intoxication was discovered after he was stopped for violating 13 AAC 04.020(e)(1), the regulation that prohibits a driver from operating the high beam of a vehicle's headlights within 500 feet of oncoming vehicles. The question presented in this appeal is whether that traffic stop was supported by probable cause.
According to the evidence presented to the district court, in the early morning of December 22, 2007, Alaska State Trooper John Ostoj was traveling in a patrol car on the Sterling Highway with a trooper recruit-trainee; the trainee was driving. As they approached an oncoming pickup truck, the driver of the truck flashed his high beams and his bright auxiliary lights, known as "moose lights", at the patrol car. (Kunz had apparently rigged his truck so that the moose lights turned on automatically whenever he switched his headlights to high beam.)
The combination of the high beams and the moose lights blinded Trooper Ostoj, and he saw spots for several seconds. Although he was temporarily unable to see, Ostoj knew where the switch was located for activating the patrol car's overhead lights. He reached for this switch and activated the overhead lights before the two vehicles passed each other. He then directed his trainee to turn the patrol car around and pursue the pickup truck. His intention was to perform a traffic stop and warn the driver of the truck that it was illegal to use high beams within 500 feet of an approaching vehicle.
Ostoj and the recruit were not immediately able to locate the truck because the driver had pulled off the main road. They eventually found the truck parked on Forest Drive. When Trooper Ostoj approached the truck, he found that Kunz was the driver. During his contact with Kunz, Ostoj observed that Kunz smelled of alcohol and that his eyes were bloodshot and watery. Kunz admitted that he had consumed several beers, the last one about thirty minutes before he was stopped. Kunz also admitted that he had purposefully avoided the patrol car after he saw the flashing overhead lights.
After Ostoj administered field sobriety tests to Kunz, he arrested Kunz for driving under the influence and transported him to the station. At the station, a breath test showed that Kunz's blood alcohol level was .167 percent.
Kunz filed a motion to suppress the evidence against him. Kunz conceded that he flashed his high beams and moose lights at the troopers, and he further conceded that he would have violated 13 AAC 04.020(e)(1) if his truck had been within 500 feet of the trooper patrol car, but Kunz argued that the two vehicles must have been more than 500 feet apart when he flashed his lights — and, thus, the troopers did not have probable cause to believe that Kunz had violated 13 AAC 04.020(e)(1).
At the hearing on Kunz's suppression motion, Trooper Ostoj testified that the trooper patrol car was less than 100 feet away from Kunz's truck when Kunz flashed his high beams and moose lights. However, Kunz actively disputed this assertion.
Kunz testified that he later went back to the scene and measured the distance between (1) the spot where he was when he flashed his lights and (2) the place where he believed the patrol car was. Kunz stated that this distance was 1320 feet.
In support of his assertion that the distance between the vehicles was substantially greater than 500 feet, Kunz also testified that an interval of several seconds elapsed between (1) the time that he flashed his high beams and moose lights and (2) the time that the troopers activated the overhead lights of their patrol car. Kunz pointed out that if both vehicles had been traveling at the speed limit (55 miles per hour), they would have been approaching each other at approximately 160 feet per second. If, as Kunz asserted, he saw the patrol car's overhead lights come on before the two vehicles passed each other, and if those overhead lights were not activated until several seconds after Kunz flashed his high beams and moose lights, then the vehicles must have been several hundred feet apart when Kunz flashed his high beams and moose lights.
One mile equals 5280 feet. Thus, 55 miles per hour equals 290,400 feet per hour, or 4840 feet per minute, or 80 b feet per second.
Based on the motion of the two vehicles and the time interval involved, Kunz asserted that Trooper Ostoj must have been mistaken when he asserted that the trooper patrol car was less than 100 feet away from Kunz's truck when Kunz flashed his high beams and moose lights.
District Court Judge Sharon A. S. Illsley acknowledged the parties' dispute and the conflicting evidence regarding the distance between the two vehicles. She indicated that she did not believe that the State's evidence would be sufficient to prove a violation of 13 AAC 04.020(e)(1) beyond a reasonable doubt. Nevertheless, Judge Illsley recognized that the applicable standard was not proof beyond a reasonable doubt, but rather probable cause. The judge concluded that Trooper Ostoj had had probable cause to believe that Kunz was within 500 feet of the trooper patrol car when Kunz flashed his high beams and moose lights.
On appeal, we are obliged to view the evidence in the light most favorable to the district court's ruling.
See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001) (when reviewing a trial court's decision on a motion to suppress, an appellate court views the facts in the light most favorable to upholding the trial court's ruling).
Trooper Ostoj testified that the patrol car was traveling at 55 miles per hour, and that Kunz's truck appeared to be traveling under the speed limit. Thus, the two vehicles were approaching each other no faster than 160 feet per second, and perhaps substantially more slowly.
Ostoj agreed that, during the traffic stop, Kunz told him that he saw the patrol car's overhead lights go on before the two vehicles passed each other. But Ostoj did not testify that it took him two or three seconds to activate the overhead lights after Kunz flashed his high beams and moose lights. Rather, Ostoj testified that he was familiar enough with the layout of the patrol car's controls — in particular, the switch for the overhead lights — that he was able to activate the overhead lights even though he was still blinded by the flash of Kunz's lights.
When this evidence is viewed in the light most favorable to the district court's ruling, the district court could reasonably conclude that even if Trooper Ostoj was mistaken about how close his patrol car was to Kunz's truck when Kunz flashed his lights, the two vehicles easily could have been within 500 feet of each other.
Moreover, the question is not whether the State could have proved beyond a reasonable doubt, at a trial, that Kunz's truck was less than 500 feet from the patrol car when he flashed his high beams and moose lights. Rather, as Judge Illsley observed when she made her ruling, the question is whether Trooper Ostoj had probable cause to believe that the distance between the two vehicles was less than 500 feet.
We conclude that the evidence, viewed in the light most favorable to the district court's decision, is sufficient to establish probable cause to believe that Kunz violated 13 AAC 04.020(e)(1) when he flashed his high beams and moose lights. Accordingly, the traffic stop was lawful, and the resulting evidence of Kunz's intoxication was admissible.
The judgement of the district court is AFFIRMED.