Janice Johnston of CBC has more on Khabibulin’s upcoming hearing:
According to a police report, an officer stopped Khabibulin after he was found driving at a high rate of speed. The goalie was clocked as driving as fast as 70 mph in a 45 mph zone.
The officer smelled alcohol and thought he had watery eyes. Khabibulin admitted drinking one glass of wine.
The officer conducted a field sobriety test even though Khabibulin told him he’d just had back surgery in January.
Court documents obtained by CBC News show a defence expert is prepared to testify that studies from the National Highway Traffic Safety Administration in the U.S. say standard field sobriety tests should not be given to people with back problems.
These tests — known as the walk and turn, one leg stand and finger to nose — cannot be performed correctly by people with back problems. The results would be no indication of impairment, and therefore meaningless, Khabibulin’s lawyer Mark Dubiel states in the document.
Back surgery in January
Dubiel also argues the officer had no legal right to test Khabibulin, as he did not have probable grounds to make him take the sobriety test.
Khabibulin did not “exhibit any reasonably trustworthy signs of impairment.” His face wasn’t flushed, nor did he slur his speech. He was polite and co-operative with police, the document states.
Since taking the test violated the hockey player’s constitutional rights, all evidence that came out of the seizure should not be allowed, including results from a blood alcohol test police said was over the legal limit of 0.08.
Generally speaking, the police need to have reasonable and probable grounds to search you. This includes making you give a breath sample or sample of blood. The argument that Khabibulin is making is that the police officer did not have reasonable and probable grounds to force him to submit to a blood test. I’m not really wowed by the argument, although I expect his lawyer will be arguing that if the cop thought he had reasonable and probable grounds before making Khabibulin do the field sobriety tests, he wouldn’t have bothered doing them. The counter-argument, I suppose, will be that the speeding and the officer’s observations as to what Khabby smelled like gave him grounds to demand a blood sample.
My gut feeling is that (taking the speed as being provable), travelling at 40 km/h over the limit and smelling like booze ought to be reasonable and probable grounds for taking a breath or blood sample from someone to see if they’re impaired. Gut feelings and law, however, only rarely coincide so I’m not making any sort a prediction based on that. I’ve made an effort to get a copy of the court filings in the hopes that they’ll contain some Arizona case law that I can read and comment more intelligently on.