Motion to suppress evidence in Lloyd DUI case is common action

Posted: Wednesday, February 09, 2011

The attorney defending former Alaska Department of Fish and Game Commissioner Denby Lloyd against a drunken driving charge filed a motion to suppress evidence expected to be used by the state against him.

MICHAEL PENN / Juneau Empire
MICHAEL PENN / Juneau Empire

Juneau attorney Louis Menendez stated in his motion, filed Dec. 22, the Aug. 8 traffic stop of and subsequent administration of field sobriety tests to Lloyd was illegal.

A Juneau Police Department officer stopped Lloyd for expired tags in front of the Baranof Hotel on North Franklin Street, according to court records.

Assistant City & Borough of Juneau attorney Robyn Carlisle filed an opposition to the motion on Jan. 21, citing a violation of traffic code is valid cause for a stop and probable cause led to Lloyd’s arrest for driving under the influence.

Menendez did not return phone calls before press time but has commented to Empire reporters in prior cases that it is not his policy to discuss matters in litigation.

However, another local attorney said Menendez’ motion was not out of the ordinary.

“Actually this motion to suppress seems pretty routine and non-controversial,” Fred Triem stated in an e-mail. “It’s something that happens quite frequently in criminal defense.”

Also on Jan. 21, Juneau Superior Court Judge Patricia A. Collins ordered that an evidentiary hearing on the motion would take place Mar. 3 and the issue would be decided. An original trial date had been scheduled for Feb. 14.

“It is really a totality of circumstances,” Juneau Police Department Sgt. Dave Campbell said when asked about the procedure of traffic stops. “And what elements are present to let the officer know or suspect that there is impaired driving going on.”

When JPD Officer Thomas Penrose directed Lloyd to get out of the vehicle that morning, he noticed swayed balance and the odor of alcohol, and directed Lloyd to submit to field sobriety tests, according to court records. Penrose arrested Lloyd for drunken driving and transported him to JPD headquarters. There, Lloyd’s breath was measured for alcohol. The test revealed a blood alcohol concentration of .143, well above Alaska’s legal limit of .08. Lloyd was charged with DUI and reckless endangerment for operating the vehicle while his wife was a passenger.

In his motion, Menendez argues that the stop and administration of field sobriety tests were illegal and without legal cause and cited cases in Alaska noting a police officer needs reasonable suspicion that a crime has been committed that presents imminent harm to the public.

Menendez charged there was insufficient justification to stop Lloyd’s vehicle and all evidence flowing from the stop should be suppressed.

Carlisle’s opposing motion stated Penrose observed and verified from the JPD dispatch that Lloyd was driving a vehicle with an expired registration and could legitimately approach Lloyd, discovering his bloodshot watery eyes, slow movements, and the odor of alcohol. These facts warranted a shift in the investigation and the implementation of field sobriety tests, which also gave probable cause for arrest for DUI.

Carlisle’s facts included Penrose’s observations of Lloyd’s vehicle driving down Seward Street near its intersection with Front Street and activating its left turn signal, a turn which would have been against one-way traffic. Lloyd continued down Front Street and left onto Marine Way then onto South Franklin Street.

Carlisle argues an officer who directly observes a violation of the traffic code has probable cause for a traffic stop and as Penrose approached the vehicle additional observations — such as red bloodshot eyes, slow movements, difficulty finding his driver’s license, registration and insurance cards, and the odor of alcohol led him to believe Lloyd may be driving under the influence:

Carlisle argued since Penrose issued standard field sobriety tests, which Lloyd failed, the evidence was obtained legally.

“It is common,” Juneau city attorney John Hartle said of motions to suppress evidence. “You can see if it succeeds then the stop and everything flowing from it is thrown out, so then there is no case.”

According to Campbell, police typically will look for erratic driving as a sign of a drunken driver. Upon contact with the driver, additional clues could include bloodshot watery eyes, slurred speech, inability to stand or walk properly and an odor of alcohol. If the officer believes the driver is impaired than the officer can ask the person for a field sobriety test

According to Campbell the field sobriety test is based on the National Highway Transportation Safety Board requirements.

“It is not something we make up on the spot,” Campbell said. “It is considered to be the national standard.”

If a person refuses, the officer makes a decision based on the facts on hand on what to do next. A police officer can arrest someone without the test if he believes there is some impairment.

“Just because someone is driving erratically doesn’t mean it is driving under the influence,” Campbell said. “It could be a medical issue, it could be distraction with a cell phone … I had a lady eating crackers and cheese … so it could be a variety of reason that can explain erratic behavior. So when an officer performs a legal stop and contacts the person, then they will start to use their observations to continue and make sure the person is safe to drive. That is what we are mandated to do, ensure the public’s safety. If we let someone go who is impaired and they get in an accident, then we have let the community down.”

• Contact Klas Stolpe at 523-2263 or klas.stolpe@juneauempire.com.





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