The lawyer for Edmonton Oilers goalie Nikolai Khabibulin plans to ask an Arizona court to throw out impaired driving charges against his client, arguing his constitutional rights were violated the night he was arrested.
Khabibulin is scheduled to go on trial in July on speeding and impaired driving charges. He was pulled over by police in Scottsdale, Ariz., in the early hours of Feb. 8.
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.
An evidentiary hearing on the matter will be held in Scottsdale on June 21.
The Oilers signed Khabibulin to a four-year contract worth $15 million last July.
In November, he stopped playing because of back problems, which were later diagnosed as a herniated disk. He had surgery in January.