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Hurlburt case moves forward

Court hears arguments to surpress evidence

Posted: November 29, 2012 - 9:39pm

A defense attorney argued Wednesday at the Kenai Courthouse to suppress two pieces of evidence that could convict a Soldotna man of multiple assault charges and a DUI charge.

Jeromy F. Hurlburt was allegedly under the influence of controlled substances when he struck two joggers with his vehicle after veering off Kalifornsky Beach Road on March 21.

Assistant public advocate Lyle Stohler said the accident’s investigating officer violated Hurlburt’s rights when he held his client without making an arrest. Also, the officer did not have reasonable suspicion to conduct field sobriety tests.

“If there’s no reason to do (field sobriety tests) then there’s no probable cause for a DUI arrest,” Stohler said.

The state argued Soldotna Police Sgt. Stace Escott correctly handled the investigation. They also discussed the lack of a search warrant needed for a blood test; an Anchorage magistrate said it was unnecessary. Stohler said the authorities failed to conduct a thorough investigation.

The blood results and field sobriety tests should be suppressed, Stohler said.

Superior Court Judge Carl Bauman did not make a decision.

Hurlburt appeared in court in full-body restraints. He did not speak during the evidentiary hearing.

The state has offered Hurlburt one firm plea deal, and the defense said it understood that proceeding with Wednesday’s hearing meant the deal was off the table.

Assistant District Attorney Amanda Browning began the hearing with the state’s version of the accident.

The 36-year-old Hurlburt was traveling south on Kalifornsky Beach Road toward the Funny River area near the Alaska State Trooper building when his red 1986 Audi 5000 veered into the opposing lanes and onto a bike path, according to court records.

He struck two joggers, 63-year-old Joan Miller and her 46-year-old daughter Melanie Papp. They were transported to Central Peninsula Hospital.

Witnesses told police the car was travelling about 45 to 50 miles per hour and the women were thrown over the hood on impact.

According to court records, Hurlburt said he heard something break under his car, causing it to veer left across the road. Police reported they could not find any broken parts. He also said he honked his horn to warn the women.

“There was no indication that he tried to stop,” Browning said.

When Escott arrived on scene, he witnessed “a group of people standing around two people lying in the snow who weren’t moving.”

There was blood on the snow, and one of the jogger’s shoes was missing, he said. The women had been hit from behind.

Hurlburt was emotional, and he expressed concern for the victims, Escott said.

Escott contacted the injured joggers and determined a blood test would be necessary, Browning said.

Hurlburt was “temporarily contained” and informed someone could pick him up at the hospital after the blood test. The situation changed as the sergeant conducted field sobriety tests.

When Escott informed Hurlburt a blood test would be necessary, the defendant allegedly said he had consumed meth and marijuana several days prior.

Escott contacted an Anchorage magistrate to obtain a search warrant for the blood test. The magistrate allegedly said a warrant was not necessary.

Escott’s initial report states no impairment was initially witnessed.

Stohler argued Escott applied for the search warrant, was denied and preceded with the blood test despite the denial. The state argued the sergeant was informed he did not need a warrant.

Due to Hurlburt’s reaction to the blood test, Escott said he changed tracks. He did not intend to arrest the defendant, but decided to conduct field sobriety tests “based on the totality of circumstances adding up in my mind.”

Hurlburt allegedly showed impairment on two tests: the one-leg stand and the walk-and-turn, Escott said. He did not show impairment during a number recitation test, however.

Stohler asked many questions regarding whether or not Escott witnessed any signs of impairment. Escott replied no. Trooper Sgt. Eugene Fowler arrived on scene and aided the Soldotna sergeant with the investigation. At some point, the trooper commented to Escott, “He’s good for something,” referring to Hurlburt.

Stohler argued this is the point at which the sergeant decided to conduct field sobriety tests despite the absence of probable cause. The trooper’s brief comment was the sole indication of concern for impairment, he said.

Escott disagreed.

“I did the tests based on several factors,” Escott said. “Those included his manner of driving, the admittance of using drugs on a prior date” and Hurlburt’s reluctance to submit a blood test.

The defendant has been separately charged with refusal.

When Fowler took the stand, he said he witnessed impairment. Fowler is trained in advanced alcohol and drug impairment detection, he said.

Fowler said his comment to Escott involved the verbal cue, “He’s good for something,” and a gesture. The gesture was meant to encourage Escott to take a closer look at Hurlburt’s behavior, he said.

The public defender again pointed out that Escott reported viewing no impairment prior to the tests.

Despite prolonged arguments about the blood test, the involved parties declined to comment about the results of those tests.

Jerzy Shedlock can be reached at jerzy.shedlock@peninsulaclarion.com.

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