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Hurlburt v. State

Court of Appeals of Alaska

June 1, 2018

JEROMY FRANCIS HURLBURT, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal from the Superior Court, Third Judicial District, Trial Court No. 3KN-12-431 CR Kenai, Carl Bauman, Judge.

          Olena Kalytiak Davis, Attorney at Law, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

          Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

          OPINION

          ALLARD, Judge

         Jeromy Francis Hurlburt was the driver of a motor vehicle that veered off the road and onto a bike path, seriously injuring two female joggers. During the investigation that followed, the lead investigating officer erroneously told Hurlburt that he was required to submit to a blood test because he had caused an injury accident. In response, Hurlburt expressed concern about what the blood test might show and he told the officer that he had used methamphetamine "for the first time" four days earlier. Based, in part, on this statement, the officer administered field sobriety tests to Hurlburt. Hurlburt failed the field sobriety tests, and was then arrested for driving under the influence. A later blood test revealed significant amounts of methamphetamine in Hurlburt's system.

         Prior to trial, Hurlburt's attorney moved to suppress Hurlburt's statements regarding his prior drug use and the results of the blood test. Hurlburt argued that this evidence should be suppressed as the fruit of an unlawful seizure - an unlawful seizure that he contended occurred when the officer erroneously told him that he was required to submit to a mandatory blood test. Hurlburt also argued that the officer lacked reasonable suspicion to conduct the field sobriety tests that led to his arrest, and the blood test results should also be suppressed on that basis. The superior court rejected both of these arguments and denied Hurlburt's motion to suppress. Hurlburt was later convicted, following a jury trial, of driving under the influence and two counts of first-degree assault (for recklessly causing serious physical injury to the two joggers by means of a dangerous instrument).[1]

         On appeal, Hurlburt challenges the superior court's denial of his motion to suppress. For the reasons explained here, we conclude that the officer's mistaken statement about the mandatory blood test did not result in an unlawful seizure. We also conclude that there was reasonable suspicion to conduct the field sobriety tests. Accordingly, we uphold the superior court's denial of Hurlburt's suppression motion, and we affirm Hurlburt's convictions.

         Background facts and prior proceedings

         On March 21, 2012, Jeromy Hurlburt was driving on Kalifornsky Beach Road, a short distance from its intersection with the Sterling Highway. As Hurlburt's car approached a curve in the road, Hurlburt drove straight ahead-crossing the center line, and cutting off an oncoming driver. Hurlburt's car then continued in a straight line off the road and onto a bike path, striking and seriously injuring two women who were jogging on the path.

         There was no apparent explanation for this accident. The driving conditions were not hazardous, and the road was not icy. Witnesses to the accident later reported that it looked as though the driver had simply failed to follow the curve of the road.

         Sergeant Stace Escott of the Soldotna Police Department and Sergeant Eugene Fowler of the Alaska State Troopers were among the first officers to respond to the accident scene. Sergeant Escott took the lead in the investigation, which included coordinating the medical response, securing and documenting the site, and interviewing the witnesses at the scene before they left.

         After speaking to the victims and collecting the names of some of the witnesses who saw the accident, Escott asked Hurlburt what happened. Hurlburt claimed that the accident was caused by a simultaneous failure of several mechanical systems in his car. Hurlburt told Escott that, as he was driving, he felt or heard something break in his car and, immediately afterwards, the steering on the car locked up, the gas pedal locked up, and the brakes locked up. Hurlburt said that there was nothing he could do to stop the car or to steer it back onto the road.

         During Hurlburt's initial interaction with Escott, Hurlburt was shaking and he appeared highly emotional. But Escott did not detect the smell of alcohol, and he considered Hurlburt's emotional behavior to be appropriate to the situation. At the evidentiary hearing, Escott testified that he did not think that Hurlburt was impaired at that time.

         However, Escott believed (erroneously) that Alaska law required Hurlburt to submit to a mandatory blood test based solely on the fact that Hurlburt had caused a serious injury accident. (The other officers at the scene also appeared to be under the same mistaken impression.)

         This mistaken view of the law was likely based on an overly literal reading of AS 28.35.031(g). This subsection of Alaska's "implied consent" law provides, in relevant part:

A person who operates or drives a motor vehicle in this state shall be considered to have given consent to a chemical test or tests of the person's breath and blood for the purpose of determining the alcoholic content of the person's breath and blood and shall be considered to have given consent to a chemical test or tests of the person's blood and urine for the purpose of determining the presence of controlled substances in the person's blood and urine if the person is involved in a motor vehicle accident that causes death or serious physical injury to another person.[2]

         In State v. Blank, however, the Alaska Supreme Court held that it would be unconstitutional to require a defendant to submit to a chemical test based only on the fact that the defendant caused a serious injury accident.[3] Instead, three other requirements must also be met: (1) there must be probable cause to arrest the defendant for driving under the influence - although the arrest need not be contemporaneous; (2) there must be case-specific exigent circumstances that preclude the police from timely applying for and obtaining a warrant for the chemical test;[4] and (3) the chemical test must be performed in a "reasonable manner."[5]

         The constitutional principles the Alaska Supreme Court relied on in Blank were established in Schmerber v. California, a 1966 decision by the United States Supreme Court.[6] More recent United States Supreme Court decisions have further restricted the circumstances under which the police can lawfully obtain a warrantless blood test. In Missouri v. McNeely, the Court held that the natural dissipation of alcohol or controlled substances in a person's system did not create a per se exigency justifying a warrantless blood test.[7] And in Birchfield v. North Dakota, the Court held that warrantless breath tests, but not warrantless blood tests, could be administered under the search incident to arrest exception to the warrant requirement.[8]

         The Alaska Supreme Court issued Blank in 2004. However, the legislature has never acted to modify the statutory language of AS 28.35.031(g) to reflect the constitutional limitations recognized in Blank. As a result, the burden falls on the police to be aware of those limitations on their authority, notwithstanding the literal language of the implied consent statute.

         Here, the record shows that Sergeant Escott was not aware of the constitutional requirements for obtaining a warrantless blood test. Escott therefore told Hurlburt that he would be required to submit to a mandatory blood test as part of the investigation into the cause of the accident. In response, Hurlburt expressed concern about what the blood test might show, and he admitted to Escott that he had smoked marijuana five days earlier and that he had tried methamphetamine "for the first time" four days earlier. Hurlburt denied taking any drugs or being under the influence at the time of the accident.

         Based, in part, on Hurlburt's admission to recent illegal drug use, Sergeant Escott made the decision to administer field sobriety tests to Hurlburt. Escott later testified at an evidentiary hearing that he made the decision to administer field sobriety tests based on the "totality of circumstances" known to him, which included (1) the suspicious nature of the accident, (2) an earlier comment by Trooper Fowler to Escott that Hurlburt was likely "good for something, " and (3) Hurlburt's statements about his prior illegal drug use.

         Trooper Fowler's comment to Escott about Hurlburt being "good for something" occurred relatively early in the investigation. While Sergeant Escott was busy coordinating the investigation and the medical response, Trooper Fowler was able to independently observe Hurlburt's actions and demeanor. Based on those observations, Trooper Fowler believed that Hurlburt was likely under the influence of a controlled substance, probably a stimulant:

And while I was watching him it-he seemed to not be able to stand still. He was pacing back and forth. He was swinging his arms. His movements-he-he was touching his face. Seemed to be continually doing this repetitive type behavior. He was wringing his hands. He appeared to be very nervous and - and his movements were - were exaggerated in nature and they seemed to be without stop.

         Trooper Fowler attempted to communicate his suspicion about Hurlburt's impairment by telling Sergeant Escott that Hurlburt "look[ed] ...


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