Sample Case #8
The client was traveling northbound on New Hampshire Avenue in Montgomery County, Maryland. He was recorded by a laser going 62 mph in a 35 mph zone. The officer pulled out and activated his emergency equipment. The client pulled into a parking space in front of a beer and wine store. The officer approached him and detected the odor of an alcohol beverage. The client denied drinking although there was a cup with a yellow liquid that smelled like an alcohol beverage in the car. After providing his license and registration, the officer asked him to exit the car to perform field sobriety tests.
On the one leg stand test he put his foot down at 1004 and 1007. Then at 1017 he started counting 18, 19, 20, 21 and put his foot down. He also started the test during the instruction phase.
On the walk and turn test he lost balance during the instructions, started during the instructions, started on his left foot in front of his right instead of vice versa, and made an improper turn.
He also submitted to a horizontal gaze nystagmus test and the officer detected 6 clues, lack of smooth pursuit in both eyes, onset of nystagmus prior to 45 degrees in both eyes, and nystagmus at maximum deviation.
He was arrested. At the station he submitted to a breath test with a .10 result. The officer took a picture of the client, a 57 year old executive, wearing a T-shirt that said on the front, "BEER IS LIFE."
Before trial, the court ruled that the State could not present the breath test because the court (a different judge) had earlier ordered the toxicologist to respond to a subpoena duces tecum requesting initial certification records of the Intoximeter 3000 used in this case and the toxicologist had not complied.
At trial, the court overruled objections to the laser and the speed came in evidence as well as the stop of the client. The officer conceded that other than speeding the client committed no traffic violations. He also parked the car properly and properly provided license and registration.
The State was unable to get the horizontal gaze nystagmus test in evidence. The officer admitted that on the one leg stand there was no swaying or hopping or raising arms. The officer also admitted that on the walk and turn test the client took the proper number of steps, did not stop walking, did not raise arms, did not miss heel to toe, and did not sway. The officer also admitted that the walk and turn requires a line that the suspect can see and that there was none.
The State was unable to offer the opinion of the officer after he blurted out that it was based on the horizontal gaze nystagmus test.
The defense produced medical records going from 1987 up until 10 days before the arrest in June 1998, documenting a history of problems with his right ankle which "could limit his ability to walk in a straight line" diagnosed as "post traumatic degenerative arthritic process" and problems of balance resulting from gout arthritis in the left foot marked by swelling with severe pain.
In light of the medical records, and the State's case hinging on the performance of the two balance tests, the client was acquitted of the driving while intoxicated and under the influence charge. He was found guilty of speeding and given a small fine.