An attorney for a Juneau man charged with drunken driving argued during an evidentiary hearing Tuesday in Juneau District Court that bad ankles, not inebriation, caused his client to fail parts of a field sobriety test.
Louis Menendez, the attorney for Elliot Willard, has filed a motion to dismiss the driving under the influence charge, stating the Juneau Police Department officer that stopped Willard lacked probable cause to do so.
Willard, 61, was stopped by a Juneau police officer at 3:30 a.m. on May 23, 2010 while driving from a friend’s home along Back Loop Road.
City Attorney Robyn Carlisle called arresting officer Sterling Salisbury to the stand. Salisbury testified as to his experience with alcohol related cases, how to conduct field sobriety tests, and why he stopped Willard’s 1996 Ford four-door SUV.
Salisbury claimed Willard stalled at a green light at the intersection of Back Loop Road and Egan Drive, made a wide turn, drifted across lanes, straddled the fog lane, and nearly struck a patrol car stopped along side the road near the intersection of Egan Drive and Glacier Highway.
Salisbury was in an unmarked Crown Victoria patrol car with no ability to record video and described the time of night as “bar break.” He testified he radioed the officer in the car to be careful, as he believed Willard’s vehicle might strike that parked patrol car.
When Salisbury pulled Willard over, he testified he smelled alcohol and noticed red, bloodshot eyes on Willard. He then asked Willard to perform field sobriety tests. One of those tests required Willard to walk and turn before standing on one leg.
During the testing, Willard repeatedly told officers he suffered from extreme ligament damage, Salisbury said. Willard failed the battery of tests and Salisbury placed him under arrest for driving under the influence.
“Did he tell you numerous times his ankles were bad?” Menendez asked on cross-examination. “Did he say he completely blew out his ankles?”
“Yes,” Salisbury replied.
Menendez said Willard was being compliant and trying to do the test while explaining that he has a medical condition of no ligaments in his ankles.
“You have somebody who says they have bad ankles and you make them stand in a testing form while explaining the tests,” Menendez said.
Menendez mentioned a statistic that 65 percent of these tests are failed by sober people and that Willard passed the alphabet and counting test and did not fumble when asked for his license.
On cross-examination, Menendez questioned whether Salisbury paid attention to Willard’s statements. He also pointed out Willard made his walking turn correctly, and that another officer on the scene struck Willard’s arms down as Willard stood on one leg.
Salisbury said it was possible he gave the instructions to Willard quickly. He also agreed Willard responded appropriately to the police vehicle lights when stopped.
Willard testified a large truck following him contributed to his erratic driving, as did another car close by when Willard turned wide. He also said a trip to Skagway that day, along with yard work and a visiting friend caused him to be fatigued.
A 1973 rock climbing incident injured Willard’s legs so badly that his right ankle has sprained more than 3,000 times and his left over 1,000, he said. He added he has seen multiple doctors who suggested major surgery.
“It is almost impossible to stand steady,” Willard said. “Even when walking. I cannot chew gum and walk, I have to consciously tighten my muscles.”
However, Willard said he participated in a Klondike Road Run in 1995 with heavy ankle braces but has not tried to run since.
Judge Keith Levy said he may have run on the same team as Willard at some point in the past and would recuse himself from the case at the request of either attorney, but no such request came.
Willard also said the test was done off the pavement on the dirt.
“It is hard enough for me to walk normally let alone do a test in the dark on an uneven road wearing the footwear I had on,” Willard said. “I was trying to figure out the parameters but thought I did pretty well.”
Carlisle tried to get Willard’s breath test entered into evidence, but Menendez objected, claiming the test was hearsay. Levy agreed and would not let the result in. Carlisle stated the test showed Willard’s blood alcohol content to be .138. Intoxication in Alaska is presumed at a BAC of 0.08.
Levy said he would take the motion to dismiss under advisement and try to get an order out this week. A trial date set for June stayed on the calendar.
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