Below the limit

Eagle River case shows DUI cases can be difficult to define


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Nerissa Friars got arrested for driving under the influence in August even though no alcohol showed up in her system during a breath test at the Anchorage Jail. Outraged, the 32-year-old from Eagle River spent $2,000 on a lawyer, along with the fees associated with getting her 2008 Dodge Charger out of impound. Sure enough, city prosecutors declined to take the case to court: there wasn’t enough evidence.

The case isn’t as straightforward as it sounds. Or that unusual.

Friars is one of a half-dozen drivers arrested for DUI in the Eagle River area since August who tested below the legal limit for alcohol consumption — 0.08 percent blood alcohol content. At least one of those drivers was under the influence of prescription drugs. But another one also tested below the legal limit and is also fighting her arrest.

Friars, in an interview last month, said her case didn’t go anywhere because she was wrongly arrested by a police officer who targeted her a flashy car and saw two earlier DUI arrests on her record. She doesn’t contest those arrests and admits she made mistakes, Friars said, but she changed her life for good after seeing close friends die in an alcohol-related crash.

She was shocked to end up in jail in the wee hours of that mid-August morning.

“I’m sitting there like watching drunk people slam their naked body parts (into windows at the jail),” Friars said. “It was disgusting. I should not have been there in the first place.”

But, police and prosecutors say, her case is an example of a solid arrest where some procedural problems got in the way of the charges.

They say Friars should have been pulled over. She violated traffic laws — going straight from a left-turn lane — so there was probable cause. Then she was arrested for DUI because she appeared intoxicated and failed a field sobriety test, according to a police report from the mid-August arrest.

It was the next stage of the case where mistakes were made, police acknowledge. Friars was never tested for substances that could have impaired her driving after that jail breath test revealed no alcohol. So there wasn’t enough evidence to pursue a case against her.

 

The arrest

The arrest took place at about 1 a.m. Aug. 13 at the intersection of Business Boulevard and the Old Glenn Highway.

Friars said she had just worked 18 hours that day at two different restaurant jobs in Anchorage. She drove to the Homestead Lounge to meet her sister-in-law.

She said she got there, had one drink early on — a vodka tonic — and left after an hour.

Leaving the bar, she drove toward the Old Glenn and wanted to go straight from Business to North Eagle River Loop Road but mistakenly got in the left-turn lane. So, Friars said, she waited through the green arrow and drove straight, up the hill, when the main light turned green. She saw a patrol car nearby but was surprised to see his lights come on to pull her over.

Officer Patrick Gilbert’s report tells a different story. When Friars went straight, she forced a truck in the lane next to her to make a right turn to avoid a collision, according to his report.

Gilbert pulled her over in the Holiday gas station parking lot. He and another officer noted that Friars smelled strongly of alcohol, according to the report, and Gilbert noted her eyes were bloodshot and watery.

Gilbert said Friars failed a test in which a driver’s pupils jerk or twitch involuntarily. She also had a little trouble with the “walk and turn” test and standing on one leg, according to the report.

Friars said that’s because she was tired after working two jobs that day. She also was on the “HGC diet” — eating just 500 calories a day and getting regular injections of a hormone supplement. The regimen sometimes made her dizzy, she told one of the officers involved in her arrest. She also said she’d been to the dentist that day for five fillings and received nitrous oxide.

The officers arrested her and impounded her Charger. Friars said she was shocked. She’d only had one drink, nearly an hour before she got in the car. She said any additional smell of alcohol on her came from a job serving drinks at the Spenard Roadhouse.

An officer administered a breath test at the Anchorage Jail. The first was thrown out because of equipment error (the reading was 0.03, Friars said). The next reading was 0.00, according to Friars and to police. Friars said she blew all zeroes three times.

Friars said she offered to work with the officers in any way to clear the arrest. But after her breath test showed zeroes, she said she didn't want to provide a blood sample. She was about to be released from jail on her own recognizance after the test proved she didn't have alcohol in her system, she said in an interview this week. Why would she want to spend any more time in police custody giving blood?

Friars twice said she overheard an officer at the jail talking to another officer on the phone about her breath test results. She said she heard the officer say something into the phone to the effect of, "Well, if you want to get a search warrant, you're going to have to do the footwork."

The report indicates nothing about obtaining a search warrant to get a blood draw from Friars.

 

The charges

An Anchorage police officer known as the force’s DUI expert said it looks like the officers involved “dropped the ball” during the processing phase of the Friars arrest.

Once Friars blew all zeroes on her breath test, a drug-recognition expert should have been called to evaluate her for impairment by substances besides alcohol, said Officer Steve Dunn, who was not personally involved in the arrest but reviewed the seven-page arrest report earlier this month. No such expert was called in, Dunn said.

A driver doesn’t have to submit to analysis by the expert, he said. If they don’t, then officers can request a search warrant to draw blood for testing. Arrestees have several choices, Dunn said: they can offer blood for testing or get their blood tested by an independent lab. If they refuse, police can get a search warrant for a blood sample.

“Without a blood test, in her case it’s hard to say whether she had something else on board,” he said.

And indeed, a municipal prosecutor subsequently reviewing the case “did not feel there was enough evidence” to press charges against Friars, said municipal prosecutor Cynthia Franklin.

Any legal review has to meet the standard of beyond a reasonable doubt and this case didn’t meet that standard, Franklin said.

But the system worked the way it’s supposed to, she said. Officers “erring on the side of keeping the public safe arrested a driver who violated traffic laws and seemed impaired” she said. A magistrate thought the arrest stood up, given the probable cause involved.

Imagine the opposite scenario: an officer makes contact with a driver and isn’t sure she’ll register over the legal limit and lets her off, Franklin said.

“He cuts her loose and then she goes and kills someone,” she said, continuing her hypothetical scenario. “They’re just always going to err on the side of taking someone in.”

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