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Fallon v. State

Court of Appeals of Alaska

January 8, 2010

Christopher R. FALLON, Appellant,
v.
STATE of Alaska, Appellee.

Page 1017

Arthur S. Robinson, Robinson & Associates, Soldotna, for the Appellant.

Devoron K. Hill, Assistant District Attorney, Lance E. Joanis, District Attorney, Kenai, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

BOLGER, Judge.

Christopher R. Fallon was convicted of driving under the influence and resisting arrest. He argues that he was illegally seized when an Alaska trooper retained his driver's license for several minutes to check on the status of the license, and that the district court should have granted his motion to suppress on that basis. He also challenges his resisting arrest conviction on two grounds. First, he argues that the district court should have granted his motion for judgment of acquittal because the conduct the State alleged amounted to resisting arrest occurred after his arrest was complete. Second, he argues that there was insufficient evidence for the jury to find that he used force to resist arrest. For the reasons discussed below, we reject Fallon's claims and affirm his convictions.

Facts and proceedings

On the evening of March 11, 2007, Trooper Kyle Carson was on patrol on Kalifornsky Beach Road off the Sterling Highway when he spotted a silver Chevy SUV in the ditch fifteen to twenty feet off the roadway. Another motorist with a pickup truck had hooked a tow strap to the SUV and was getting ready to pull it out of the ditch. Trooper Carson turned on his emergency lights and pulled over to make sure the driver was not injured, and to offer assistance.

Trooper Carson contacted the driver, Fallon, who explained that his tire caught the snow and pulled his vehicle into the ditch. Carson and the driver of the pickup discussed the best way to pull Fallon's vehicle back onto the roadway. Carson then asked Fallon for his driver's license and returned to his patrol car to call dispatch to check on the status of the license.

After dispatch completed the check, Trooper Carson contacted Fallon again to return his license and to ask him if he needed a tow truck because his clutch had overheated. During this discussion, Trooper Carson smelled a mild odor of alcohol, and he noticed that Fallon's speech was " a bit slurred." He asked Fallon if he had consumed alcohol or

Page 1018

medication. Fallon said he was just tired and stressed. After administering a horizontal gaze nystagmus test, Carson concluded that Fallon had been drinking, so he asked Fallon to step out of his vehicle for additional field sobriety tests. Based on the results of those tests, Carson arrested Fallon for driving under the influence. A later breath test showed that his blood alcohol content was .179 percent, more than twice the legal limit.[1]

When Trooper Carson arrested Fallon, he directed him to put his arms behind his back. Fallon initially complied, but then he tensed his arms and pressed them against his back so that Carson could only handcuff one arm. Carson told Fallon several times to relax and stop resisting, but Fallon became verbally belligerent and continued to tense his arms. Trooper Carson was concerned Fallon might assault him, so he walked Fallon back to the patrol car. He also used pepper spray on Fallon, but it had no obvious effect. Fallon pushed himself away from the patrol car, which again made Carson concerned that Fallon would assault him, so he took Fallon to the ground. Carson could still not handcuff Fallon because Fallon kept trying to get up and continued to tense his arms. At this point a motorist stopped, and with the motorist's help Carson was able to get Fallon's second arm handcuffed and to place him in the patrol car.

Fallon was charged with driving under the influence [2] and resisting arrest.[3] Before trial, he moved to suppress the evidence, arguing that he was illegally seized when Carson retained his driver's license and called dispatch. Following an evidentiary ...


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