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            IN THE COURT OF APPEALS OF THE STATE OF ALASKA


STATE OF ALASKA,
                                                     Court of Appeals No. A-11895
                           Appellant,                Trial Court No. 4NE-13-95 CR

                    v.
                                                            O P I N I O N
DAVID C. SPENCER,

                           Appellee.                 No. 2494 — February 26, 2016


             Appeal from the District Court, Fourth Judicial District, Nenana,
             Ben Seekins, Judge.

             Appearances: William A. Spiers, Assistant District Attorney,
             Fairbanks, and Michael C. Geraghty, Attorney General, Juneau,
             for the Appellant. William R. Satterberg Jr., The Law Offices
             of William R. Satterberg, Jr., Fairbanks, for the Appellee.

             Before: Mannheimer, Chief Judge, and Allard, Judge.


             Judge ALLARD.


             A state trooper contacted David C. Spencer outside a residence shortly after
the trooper observed Spencer driving his four-wheeler on the street in Nenana. During
the course of this contact, the trooper observed signs that Spencer was intoxicated.
             Based on his observations, the trooper administered field sobriety tests to
Spencer. During those tests, Spencer began complaining about performing the tests and
expressed his reluctance to do so. The trooper repeatedly told Spencer to complete the
rest of the field sobriety tests, which Spencer did. After Spencer failed the field sobriety
tests, the trooper arrested him for driving under the influence. A later breath test
revealed a blood alcohol level above the legal limit.
              Spencer moved to suppress the evidence of his intoxication, asserting that
the trooper unlawfully coerced him into performing the field sobriety tests. Spencer
argued that the trooper could not demand that he perform field sobriety tests unless the
trooper had probable cause to believe he was driving under the influence.
              After an evidentiary hearing and supplemental briefing by the parties, the
district court agreed with Spencer that the trooper needed probable cause to compel him
to submit to field sobriety tests against his will. The court further found that the trooper
did not have probable cause to believe Spencer was driving under the influence until
after Spencer failed the field sobriety tests. The court therefore granted Spencer’s motion
to suppress and dismissed the case.
              The State now appeals. For the reasons explained here, we conclude that
the district court relied on an erroneous interpretation of the law. We therefore reverse
the district court’s orders and remand this case to the district court for proceedings
consistent with this decision.


       Why we reverse the decision of the district court and remand this case
              In Alaska, the police are entitled to administer field sobriety tests whenever
they have reasonable suspicion to believe a motorist is driving under the influence. 1 As




   1
       Galimba v. Anchorage, 19 P.3d 609, 612 (Alaska App. 2001).

                                           –2–                                        2494

we first noted in McCormick v. Anchorage, the majority of states treat field sobriety tests
as a form of a Terry stop, not as a search.2 In McCormick, we observed:
              Although there is some disagreement among the states on this
              issue, most courts hold that a motorist has no constitutional
              right to refuse field sobriety tests as long as the requested
              field sobriety tests are non-testimonial ... and as long as the
              officer’s request for field sobriety tests is supported by the
              requisite reasonable suspicion[.]3
              Following our decision in McCormick, we issued Galimba v. Anchorage,
in which we definitively held that “in Alaska, police do not need probable cause
sufficient for an arrest before requesting typical field sobriety tests.”4
              Spencer points to our use of the term “requesting” in Galimba to argue that
Galimba’s holding is limited to situations where the officer asks a motorist to submit to
field sobriety tests. Spencer argues that the officer must have probable cause to order
the motorist to submit to those tests. This is a misreading of Galimba.
              We acknowledge that, as a practical matter, an officer cannot compel an
uncooperative motorist to perform the tests. But that does not mean a motorist’s consent
is required as a legal matter. As the Idaho Court of Appeals explained, “an individual
who has been instructed by a police officer to perform field sobriety tests has the power
to prevent the tests by refusing to cooperate, but that power does not equate to a
constitutional right to refuse.”5




   2
       McCormick v. Anchorage, 999 P.2d 155, 160 (Alaska App. 2000).

   3
       Id.

   4
       Galimba, 19 P.3d at 612. 

   5
       State v. Buell, 175 P.3d 216, 218 (Idaho App. 2008).


                                           –3–                                       2494

              Moreover, because a motorist’s legal consent to field sobriety tests is not
required,6 the validity of field sobriety tests does not hinge on whether the officer politely
asked the motorist to perform them or instead tersely instructed the motorist to complete
the tests — as long as the circumstances of the stop as a whole were not so coercive that
the motorist was subjected to arrest before the trooper had probable cause.7
              Here, the trial court found that Spencer did not willingly engage in the field
sobriety tests and the trooper did not have probable cause to demand that Spencer
perform the tests. The trial court believed that probable cause was required because,
although Spencer never refused to perform the field sobriety tests, he complained about
doing them and expressed a desire not to do them. The State argues that the trooper’s
conduct — repeatedly telling Spencer to complete the field sobriety tests — was neither
coercive nor threatening. Indeed, from our review of the record, it appears that the
contact was cordial, and that Spencer cooperated and performed all of the field sobriety
tests as directed, albeit unenthusiastically. We therefore reverse the district court’s ruling
granting Spencer’s motion to suppress and dismissing his case and remand this case to
the district court for further proceedings consistent with this decision.
              We note that, on remand, the court should also address the outstanding
motions that it has not yet ruled on, which include Spencer’s motion challenging the
legality of the initial stop. We express no opinion on the merits of that motion.

       Conclusion


              We REVERSE the judgment of the district court and REMAND for further
proceedings consistent with this decision. We do not retain jurisdiction.



   6
       McCormick, 999 P.2d at 161.
   7
       Galimba, 19 P.3d at 612.

                                            –4–                                         2494
        In the Court of Appeals of the State of Alaska 



State of Alaska,                             )
                                             )    Court ofAppeals No. A-11895
                       Appellant,            )
             v.                              )               Order
                                 )
David Spencer,                   )
                                 )
                    Appellee.    )               Date of Order: February 22, 2016
~~~~~~~~~~~~~~)
Trial Court Case# 4NE-13-00095CR



              [Before: Mannheimer, Chief Judge, and Allard, Judge.]


              Upon consideration of the Appellant's motion to publish our decision in
this case,
              IT IS ORDERED:
              I. The motion to publish is GRANTED.
              2. Memorandum Opinion No. 6282 is WITHDRAWN and is
SUPERSEDED by Published Opinion No. 2494, which will be issued on February 26,
2016.
              Entered at the direction of the Court.
                                             Clerk of the Appellate Courts
