Alaska Court: 'Peel out' doesn't justify traffic stop

By Pat Murphy

The Daily Record Newswire

BOSTON -- It seems rather odd that a police officer would not have justification to stop a driver after watching him "peel out" in an intersection, but the Alaska Court of Appeals has made a plausible argument as to why such a stop violates the Fourth Amendment.

Those of us who have left our teen years behind, both literally and figuratively, understand that flooring the gas to accelerate from a complete stop is a reckless act. That's certainly what Alaska State Trooper Lucas Altepeter thought when he observed a truck "peel out" from a stop-sign-controlled intersection in Bethel at around 12:30 a.m. on Sept. 20, 2009.

As Altepeter watched the accelerating truck spin its tires through the beginning of a left-hand turn, it occurred to the state trooper that perhaps the driver had overindulged in adult beverages. So the trooper initiated a traffic stop.

Altepeter knew he had struck pay dirt when he observed that the driver of the truck, Vernon Burnett, had bloodshot, watery eyes, and stumbled a bit when he walked. Further, the trooper's nose detected the strong odor of alcohol.

Burnett proceeded to flunk field sobriety tests and a portable breath test, so Altepeter placed him under arrest for driving under the influence. A breath test performed at the trooper post showed that Burnett had a blood alcohol content of .162 percent, about twice the state's legal limit.

So it looked like the state had an open-and-shut case for driving under the influence and Trooper Altepeter could be commended for getting another drunk driver off the road.

Sure, Burnett would argue that the trooper lacked reasonable suspicion to initiate a traffic stop. But the driver had been observed peeling out from an intersection, so he must have been in violation of some state or local law against negligent or reckless driving, right?

Well, the Alaska Court of Appeals had a chance to review Burnett's drunk-driving conviction. Last Thursday, the court decided that the traffic stop violated the Fourth Amendment. In looking at the issue of whether Trooper Altepeter had reasonable suspicion to initiate the stop, the court first explained that the mere act of peeling out on a public roadway does not violate Alaska law prohibiting negligent driving.

The court noted that the state negligent driving law requires proof that the alleged dangerous conduct actually endangers persons or property. In Burnett's case, there was no such proof.

"Trooper Altepeter testified that when Burnett accelerated and turned left at the intersection, Burnett's tires spun one-third to one-half of the way across the intersection. However, the trooper stated that he did not see Burnett engage in any other improper driving. Altepeter did not assert that Burnett's driving endangered Burnett or anyone else, or that Burnett's driving put property at risk," the court said.

But if Burnett did not commit a traffic offense in the presence of a police officer, could the state argue that the mere act of peeling out provided Trooper Altepeter with reasonable suspicion that Burnett was intoxicated?

The court answered this question in the negative, observing that Altepeter "testified that, based on his training and experience, the fact that Burnett spun his tires for that distance caused Altepeter to suspect that Burnett was under the influence. However, Altepeter did not explain what aspect of his training and experience led him to this conclusion, other than the fact that Burnett's behavior was unusual."

The court concluded that "that Burnett's act of unnecessarily spinning his tires, without more, is not a sufficient indication of intoxication to justify a traffic stop for driving under the influence."

Of course, since the evidence of Burnett's impairment was deemed the fruit of an unlawful traffic stop, Burnett's conviction for driving under the influence could not stand. So he's free to peel out on Alaska's roadways to his heart's desire, whether intoxicated or not.

Published: Wed, Nov 23, 2011


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