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MITCHELL V. STATE – GEORGIA SUPREME COURT

Posted by Ben Sessions | Mar 19, 2017 | 0 Comments

In Mitchell v. State, the Georgia Supreme Court will address the following alleged errors:
1. The trial court erred in denying Appellant's motion to suppress evidence regarding field sobriety tests performed after the Appellant was told he
would be arrested if he did not submit to sobriety tests but the Petitioner was not provided with Miranda warnings.
2. The trial court erred in denying Appellant's motion in limine to exclude evidence and argument regarding the Petitioner's initial refusal to submit to field sobriety tests pursuant to Mackey v. State, 234 Ga. App. 554, 556 (1998).
3. The trial court erred in denying Appellant's motion in limine to exclude
Romberg test evidence until a foundation is established pursuant to Harper v. State, 249 Ga. 519, 525-26, 292 S.E.2d 389 (1982).
4. The trial court erred in denying the Appellant's equal protection challenge to the constitutionality of O.C.G.A. § 24-7-707.
5. The trial court erred in denying the Appellant's challenge to the constitutionality of O.C.G.A. § 24-7-707 on the grounds that it usurps the power of the courts and violates the separation of powers requirements of
the Georgia Constitution.

N 20vs 20m

APPELLANT'S BRIEF – MITCHELL V. STATE – GEORGIA SUPREME COURT

APPELLANT'S FIRST SUPPLEMENTAL BRIEF – MITCHELL V. STATE – GEORGIA SUPREME COURT

Below is a rough draft of a transcript of the full argument in Mitchell v. State:

S17A0459, Quinton Mitchell v. The State, Benjamin Sessions for appellant, Joseph Myers Jr.

Chief Justice Hines:
And, again, just to remind you, I'm sure you were here this morning probably, but twenty minutes to the side. Mr. Sessions, when you're ready, you may proceed,

Sessions:
May it please the court, I am Ben Sessions on behalf of the appellant Quinton Mitchell in this case. This is an interlocutory appeal involving a DUI charge. We raised several issues before the trial court. The first issue that I'd like the court to address is whether or not the trial court aired in denying our motion to exclude from evidence or comment upon the defendant's refusal to submit to warrantless searches, those warrantless searches being field sobriety tests. One of the issues that the appellee has raised in this case is whether or not in fact field sobriety tests are a search. There is no clear case law in Georgia that definitively states that field sobriety tests are a search, however, I would tell the court that under Katz v. U.S., a United States Supreme Court case, I believe that it certainly is a type of evidence for which you would have a justifiable expectation of privacy, and there are numerous out of state cases that hold that in fact, field sobriety tests are a search.

Justice Peterson:
What is actually being searched in that search?

Sessions:
You're searching the person's body to try to determine whether or not alcohol is present in them.

Justice Peterson:
Are you removing any clothing, are you touching him? You're simply observing, externally, something any person walking down the street can observe.

Sessions:
But you are, no sir, not with regard to the horizontal gaze nystagmus test. With regard to the horizontal gaze nystagmus test in particular, you are taking a nystagmus and you are trying to observe something that would not be observable to a layperson who is simply looking at a person during the course of the stop. So you are observing evidence during the course of horizontal gaze that would not be discernible to you if you were simply looking at a person.

Justice Peterson:
What about with respect to the rest of the sobriety test?

Sessions:
I believe that the way that the tests are administered, it's not like, let's say, for example, the walk and turn test, in which you have a person, standing in the heel to toe position, while they're actually listening to the instructions that the officer gives them. They then have them walk in an abnormal manner, that is nine steps, heel to toe, out on a straight line, they're observing whether or not they're using their arms for balance, whether or not they're missing heel to toe. You're then instructed to leave your front foot planted, take a series of small steps around your front foot, then walk back down the straight line. So you're not performing normal tasks in a normal way, that's the nature of field sobriety is to break up what would be a normal performance of tasks for a person.

Justice Peterson:
How is that different from just talking to a police officer, say, during a Terry stop?

Sessions:
It's different because they're trying to obtain evidence that would not be evident to you if you were just talking to them. You're disclosing something that otherwise the police would not be authorized to see.

Justice Peterson:
The police would not be authorized otherwise to whatever you're thinking.

Sessions:
And I'm not sure that that would not be a search as well. In the context of the statements you're giving to a police officer, might actually be a search under certain instances. Sitting down and undergoing an interrogation under the fourth amendment might be a search for those purposes as well.

Justice Nahmias:
When you say search, you're talking about a third-tier probable cause search? Or a second tier investigatory stop which allows some search?

Sessions:
Second tier investigatory. Absolutely.

Justice Nahmias:
So in the second tier, the officer can frisk the attendant for safety and guns, but can't ask the defendant to stand on one foot?

Sessions:
He can ask the defendant to, if he has reasonable suspicion to expand the scope of the stop beyond the initial purpose. He can ask the defendant to submit to the field sobriety tests, those are obviously voluntary tests which a person may or may not submit to, which is a second issue that we will address, whether or not he was in fact in custody.

Justice Nahmias:
But you're putting this under the second-tier category.

Sessions:
It is a search in the second tier, I believe, Your Honor.

Justice Nahmias:
It's not clear that a second-tier is a fourth amendment search at all.

Sessions:
Your Honor, I would point you to first State v. Superior Court which is an Arizona supreme court case, 149 Arizona 269, it was a 1986 case, I would point you to Ackerman v. State, 774 N.E. 2nd 970…

Justice Grant:
Excuse me, were these cases cited in your briefings?

Sessions:
They are not. In response to the State's brief, I need to submit a supplemental that I'll identify all these out of state authorities for the court. I'll do that following the argument.

Judge:
Well, I'll give you five days to do that and the other side five days to respond if you would like.

Sessions:
Yes, Your Honor. I would also point the court to State v. Nagel it is at 320 Oregon 24 1994, obviously the broader proposition is Katz v. U.S. So, if the court believes as I do, that they are in fact a search, then our case law, from this court, under Miley says the state cannot comment upon a defendant's refusal to submit to a search, that that is improper comment upon a defendant's exercise of a constitutional right to insist on a warrant for the purposes of that search. The court of appeals has actually agreed with that proposition in several cases, in Gardner and in Mackey. But in the case Long v. State, which the court pointed out for us to look at, in Long and headnotes 5 and 6, they address this issue, but they address it very, very superficially. They don't actually go through and do any analysis whatsoever of Mackey, they don't do any analysis whatsoever of Gardner, and they don't address whatsoever Miley, which is this court's case.

Justice Boggs:
Isn't the real issue here, though, one of custody. We don't implicate self-incrimination issues at all, if the individual's not in custody, which also goes to your other numeration concerning Miranda

Sessions:
That issue doesn't involve the person being in custody. Remember, our fourth amendment rights and whether or not you can invoke your fourth amendment rights to refuse to consent to that unwarranted search attaches to you pre- or post-arrest. So the court of appeals analysis…

Justice Boggs:
That's not Long's position, correct? The position of Long is contrary to that.

Sessions:
That's exactly right. Long just missed this issue, the court of appeals did not go through any analysis of Miley, they did not go through any analysis of Mackey, or Gardner. It's not clear what their position is in Long, but it's clear that they simply looked at the tiers of the encounter to determine that for whatever reason, the fourth amendment did not apply there. They didn't go through any of that sort of reasoning…

Grant:
I'm a little confused by your argument because, correct me if I'm wrong, you've said that your view is that it's a second tier search, but then you later said that a warrant is required in this situation, where obviously a warrant is not required for a Terry stop.

Sessions:
A warrant is not required, but the defendant has the right to refuse that warrantless search. At that second tier encounter, let's say for example an officer has reasonable or articulable suspicion to expand the scope of the detention to request field sobriety tests of me. He's not required to get a warrant at that time in order to ask consent to submit to the test, but I'll also have the right to refuse it.

Judge:
No you don't, in a second tier. In a second tier search, I have reasonable or articulable reason to believe you engaged in crime, and I want to do a body search for evidence that would put me in danger and ask you questions and keep you from going, you have a right to walk away at that point?

Sessions:
I do not have a right to walk away at that point in time, however, I have a right not to submit to field sobriety tests at that point in time, I have a right to refuse that testing.

Justice Nahmias:
What about other reasonable investigatory measures?

Sessions:
Anything that does not require me to submit to an act, I can-

Justice Nahmias:
What about answering questions?

Sessions:
I can refuse to answer those questions at that point in time.

Female jury member:
Can you refuse a pat down?

Sessions:
No, you cannot.

Female jury member:
So what's the distinction?

Sessions:
You're actually performing an act, and in the context of field sobriety, the case law is voluminous that says that field sobrieties are in fact an act that requires voluntary submission by the defendant. In moving through that, if the court were to look at headnotes 5 and 6 of Long, you would see that the court of appeals just simply had a very superficial treatment of it. They looked at the tiers of encounter, but the tiers of encounter in terms of looking at whether or not the defendant is in custody, does not control this issue in any way, shape, or form. So if you looked at the case that they cited there, Oliver again goes through the tiers of encounter, but it doesn't address Mackey, it doesn't address Miley, it doesn't address Gardner, and those are in fact the controlling cases that determine whether or not the state can introduce evidence of and comment upon a defendant's refusal to consent to a warrantless search. Those are the controlling cases on this issue. And moving from that, Justice Boggs, I understand that the primary issue that you wanted to address was it in fact a custody issue, and it would, beyond the initial issue of the admissibility of refusal to submit to the sobrieties, if you agree with me, all the rest of the issues are merely superfluous. They don't mean anything, because if you agree with me on the custody issue, all the rest of that evidence is out the window. In this case, the appellee has said we dispute what the facts are. They dispute because they believe that the video shows by clear uncontradicted evidence that this is what happened.

Boggs:
You would agree that the video is, I don't know if I would use the word markedly, but it is different than the testimony that the officer testified to in trial as to what he told the defendant.

Sessions:
What the officer swore to, under oath, in the motions testimony in this case, is different from part of what's on the video, but there is a gap in the video that is unexplained here.

Boggs:
The judge saw that video at the time of the motion hearing?

Sessions:
Yes sir, he did.

Boggs:
But it's not referenced in the order.

Sessions:
It is not referenced in the order, but the officer's testimony is referenced in the order. Yes, sir. The judge entered specific findings, in fact, that are here, he said that in fact the officer told him if he refused to submit to field sobrieties, he would be arrested, if he did not, he may or may not be arrested.

Boggs:
Can you point to where in the video that that exists, because I've watched the video, and I can see where the officer says I'm very good at DUIs and I think he said something about being an expert, I couldn't quite make out whether he'd been qualified as an expert previously. Then he said, ‘it would behoove you to cooperate with me, you know that right? And if you don't-' and before he finished, Mr. Mitchell stated, ‘how long you been an officer?' And then they got into this discussion about him being APD.

Sessions:
Justice Boggs, I would point you to 12:44, 12 hours 44 minutes and 49 seconds to 58 seconds. That's approximately nine seconds. It would be consistent with the chronology that the officer gave us about when that discussion would have taken place. It's also whenever Mr. Mitchell and Officer Hartley are having a discussion as they're walking away and discussing these field sobrieties, there's a portion there that's inaudible to us, which would be consistent with the testimony offered as to when the discussion took place.

Boggs:
What do you purport it says?

Sessions:
It would say what it is that the officer testified to-

Boggs:
What do you claim that the officer said?

Sessions:
He told Mr. Mitchell at that point in time, it's line 9 of page 33 of the transcript, line 9 he says at first he said he would not, based on all the things that I observed already, which was the strong smell of alcohol coming from him, mild slurred speech, bloodshot eyes, the fact that he had used the vehicle for balance, his drunk appearance, his impaired appearance, that I believed he was an impaired driver and that if he did not perform field sobriety tests, I had no option but to arrest him for DUI.

Justice Nahmias:
Well, he goes on in line 18, isn't that the more important part here? That he says that he may not arrest him, depending on how he performs.

Sessions:
Well, the problem is that if I exercise my right to refuse that, that I'm in fact going to be arrested at that point in time. That is the operative I believe, Justice Boggs, based on my view of the case. That is the operative compelling statement that the officer gives to Mr. Mitchell, is that if you decline to submit to these field sobrieties, I'm going to arrest you. Plain, clear-cut, no other talking about it-

Justice Nahmias:
I understand the argument that telling somebody if you don't do what I want you to do, I will arrest you, may be a compulsion for self-incrimination purpose, but I don't really understand the argument that it's putting him in custody when you say, ‘I want you to do this, and depending on how it comes out, I may arrest you at the end of it.' But you're still giving them the choice, and if they do do it, and they pass the test, then they're going to be released.

Sessions:
Justice Nahmias, my response to that would be that number one, we challenge the admissibility of the field sobrieties on state constitutional grounds, I believe that that is the type of act, the type of statement under our state constitution, that is protected under the Aldrich Case. In Aldrich, you dealt with a commercial motor vehicle who was dealing with a 1964 case, it's a very long line of cases that follow before Aldrich. In Aldrich, a defendant was faced with whether or not he was going to comply with a statute that required him to drive his vehicle upon scales. Aldrich refused to do that, and therefore moved to challenge the admissibility of that statute for which he was being charged. If you read Aldrich, it cannot be reconciled with that sort of thinking, that this is not protected under the Georgia Constitution.

Justice Nahmias:
Protected as compelled incrimination? Or protected as putting them in custody, therefore I must give them Miranda? Two different rights.

Sessions:
Justice Nahmias, I have to be honest with you, I was not exactly clear as to how it is that those different rights were protected until after the hearing in the case. It was an issue that I raised in the motion to suppress, I challenge the admissibility of it. Under state constitutional grounds, I believe that I properly preserved that issue, having been raised in that motion. I recognize now that Aldrich and the principle that Aldrich stands for, I believe, is different from the custody argument, but I do believe that those should lead to the suppression of field sobrieties based on Aldrich. I argued the principle in the trial court without fully understanding what it was that I was actually, the implications of it, judge. So I do believe that that issue is properly before the court, that the principle is raised in my written motion, I challenged it under the self-incrimination provision of the Georgia constitution, therefore, the trial court ruled upon it and in fact, denied it.

Justice Nahmias:
Did you cite or reference self-incrimination?

Sessions:
I did. The principle itself was argued, although unartfully. I tried to spell that out more as I went along in the case. In moving from Aldrich, I think that we have to recognize that there are two cases that the state ruled upon, Raul and Moseley from the court of appeals. What I'd like for you to know about Moseley, is that in Moseley, you don't have the same type of statements that the officer made in this case. In Moseley, he told to the defendant that he may or may not arrest him, in either scenario. He's not going to say that unequivocally he did in fact tell the person, ‘hey I will arrest you if you don't submit to the field tests. I will arrest you at the end of the field sobrieties.' He didn't give him any clear indication. Raul, however, the statements are much closer to what we actually have in this case. Raul, the officer told the defendant that if he refused to submit the field sobrieties, I will arrest you, and I may or may not do that. However, in Raul, you have one distinguishing characteristic, which is very, very important, which is, the defendant told the officer prior to him making that statement that the defendant wanted to submit to the field sobrieties. It indicated prior that they would in fact submit to the field sobrieties. By doing that, any mis-statement that the officer made in terms of, that would have conceivably placed the person in custody became irrelevant, because in that point of time, you have already said, ‘hey, I'm not going, I want to submit to the field sobrieties.' Moving on from there, we will next turn to the Romberg test. The Romberg test, what I'd like for the court to know is, this is a test that, as the officer testified to in this case, had one main purpose, and that is to estimate the passage of time, to determine whether or not a person's internal clock is functioning properly. If there was anything that is a hallmark of a scientific test, it is this type of evidence. I will tell the court that there is a lot of cases that deal with the walk and turn and one leg stand test, those are physical dexterity tests that involve balancing, those are things that normal people in normal situations can look at and say, ‘I believe that that person is intoxicated, because they have difficulty balancing.' A normal person who is looking at a person who is allegedly under the influence, has no idea whatsoever what a person's internal clock is, or whether or not a person's internal clock would deviate upward or downward based on the presence of a central nervous system depressant. That is not the type of conclusion that any type of person in that situation would be able to deduce. I believe that the trial court aired as to not applying the Harper standard to that Romberg evidence. I see the time is running down here, so I'm trying to tick along here. I would love to, Justice, but I don't think I'm going to get there. With regard to the Equal Protection challenge, yes, Mason is there. What I want you to know is that in Mason, there is clearly, and this court has set forth a clear, black-letter law that says civil litigants cannot be similarly situated to criminal litigants. Reconsider it. Reconsider it because of this very situation, in which a defendant be involved in an accident involving a state vehicle, they could then be criminally sued for the property damage by the state of Georgia, state of Georgia v. Quinton Mitchell, and simultaneously face criminal charges, that is, state of Georgia v. Quinton Mitchell. Same parties aligned here. If you applied rule 702, the evidence that would be against him, he would receive a heightened level of protection in the case, as opposed to what would be admitted under rule 707, which says all scientific evidence shall be admissible. That leads to a very perverse result, because in the civil case, you get more protection, and you have effectively lowered the burden of proof, versus what it is that you actually apply in the criminal case. You've lowered the burden of proof beyond reasonable doubt by creating those different standards in the law. Got twenty five seconds, so I just want to wrap up in saying that the separation of powers argument I believe is controlled by Calhoun v. State Highway Dept., which says that the legislator cannot overstep and tell courts what evidence should and shall be admissible. And in fact, in 707, they say shall be admissible, that's exactly what this court has said is not permissible.

Justice Blackwell:
Is Rule 402 unconstitutional under that argument? Because it says under no circumstance may a court admit irrelevant evidence.

Sessions:
I don't believe 402 is, because it adopts the common law rule, but I don't believe that Rule 707 has in fact justified the common law rule that we have.

Chief Justice:
And now Mr. Myers for the appellee.

Myers:
Chief Justice and members of the court, may it please the court. My name is Joe Myers, I'm the chief assistant solicitor in Fayette County and with me is Audrey Holiday Cruzan, who is the other assistant solicitor. We come here on behalf of the state through our solicitor general Jamie Inagawa. I would ask that the court uphold the trial court's order in this case, the trial court did not air when it found out that Miranda warnings were not required prior to the field sobriety, because the defendant was not under arrest at the time. There were no overt acts or words that would make Mr. Mitchell believe that this detention was anything more than temporary. The court did not air when it found that the refusal to submit to field sobriety was admissible because the performance of the field sobriety testing was not a subject of the fourth or fifth amendment, because the defendant was not under arrest. Moreover, the trial court didn't air-

Justice Nahmias:
So on that one, you're saying whether or not something is a search depends on whether or not somebody's been arrested?

Myers:
Well, under the Keenan case, judge, I think in Keenan, this court said that unless the person is under arrest, there's no violation of a right to self-incrimination. Most of the cases that deal with this issue about whether field sobriety is a search, it's not a search, none of the cases ever said that. All of the cases that have come up have been under whether it's a self-incrimination issue. I think the Keenan case is the one that says unless the person is under arrest, the fifth amendment doesn't attach, and therefore, there's no issue with regards to whether it's an issue of self-incrimination.

Justice Nahmias:
Then are you saying when the officer says that if you don't agree to the field sobriety test, I have to arrest you, that Mr. Mitchell did not take that to mean he wasn't free to leave?

Myers:
I don't think that's what happened in this case. If you look at the video, that was never said. If he's not under arrest, there's no self-incrimination. He agreed to take the test voluntarily, after all of this discussion with the officer. I mean, trying to say how many years he was on the police-

Justice Nahmias:
So your response is that statement was never made.

Myers:
Yes sir. The video does not show that. It was not made. I don't know, Mr. Sessions brought up where there was no audio, that stretch to suggest that's what was said during that time, we don't know that. But the video that we have, there is no indication whatsoever that that officer told him, ‘hey, if you don't take these tests.' I think he may have been on his way there, but he never got to it because Mr. Mitchell interrupted him. He said he would take the test because he likes him.

Justice Nahmias:
But they did say that he would be in custody, correct?

Myers:
I don't think so, judge, because I think the way it came out, even what Officer Hartley testified to, was that he was giving him a choice. He had seen some physical manifestations of impairment, I think he was at a point where he believed he had probable cause to arrest him, but he was trying to persuade him to take the fields, to give him a choice, like in Roel, in order to determine whether maybe-

Justice Milton:
Council, in the trial court's order on page 2, the trial court says, and I quote, “Officer Hartley told defendant that if he did not submit to field sobriety exercises he would have no choice but to arrest him for DUI. He also told him that if he did perform field sobriety exercises that he may or may not be arrested. Isn't that a finding by the trial court as to those facts? Are we supposed to defer to those?

Myers:
Yes, well that's what Officer Hartley testified to, and I will tell you that the video was played during the motion hearing and the judge may not have heard or seen this. I think he took it from the transcript, what Officer Hartley testified to, but a review of the video, those words are not said.

Justice Milton:
Well, just because they're not said in the video, doesn't mean they're not said, right?

Myers:
I agree.

Justice Milton:
And if the trial court found that they were said, don't we defer to those findings in this juncture?

Myers:
You can, Your Honor, and again, that's what Officer Hartley testified to, but a review of the video, he never got to that. And I think what the trial court was doing was reading the transcript of what Officer Hartley testified to.

Justice Nahmias:
Going back to Justice Milton's question, I understand the argument that if you say, ‘if you take this test, I may or may not arrest you.' But if you tell somebody, ‘if you don't do this act or statement, I am going to arrest you,' how is that not compulsion?

Myers:
It might be. Under those circumstances, if an officer says, ‘hey, if you don't do this, I am going to arrest you,' a reasonable person may not believe-

Justice Nahmias:
Okay, so here, assuming the trial court's finding can be appelled, the officer said, ‘if you don't take a field sobriety test, I have no choice, I have to arrest you. If you do take it, I may not arrest you.' That may be telling the person, ‘you're not in custody yet, because you may be able to leave.' But it's also telling him, ‘if you don't take this test, I'm going to exercise the power of the state to lock you up and take you to jail.' How is that not compulsion?

Myers:
Well, Judge, I think it's the same kind of situation as in Roel, it's an option that they had.

Justice Nahmias:
In Roel they talked about the custody piece, what about the compulsion piece? They are two different things.

Myers:
I agree, and I think that if he had said that, he probably had enough probable cause to arrest him for DUI even without the fields.

Unnamed justice:
And I don't understand how a reasonable person wouldn't take that to mean that he could not leave. If you tell me that I either have to take this test or you're going to arrest me, that says I can't leave, because that's not taking the test.

Myers:
I would agree with you, judge. But again, I don't think that's what occurred.

Unnamed justice:
I understand that, I'm asking if he did say that, and we're going to look at the tape, he can't leave.

Myers:
I agree. It does. If he makes an equivocal statement, ‘if you don't do this, you're going to be under arrest,' a reasonable person might not believe that that's temporary.

Judge Boggs:
But council, that's what he testified to. Granted, you argue that it's not on the video tape. But that's what he testified to and that's what's in the judge's order.

Myers:
I agree. I think in the testimony he was giving him an option, and I think Your Honor pointed that out when Mr. Sessions showed you a copy of the transcript. Officer Hartley was trying to-

Judge Boggs:
That was only on the issue of either you take the field sobriety test or you don't. If you take it and you pass it, you're not under arrest. But if you don't take it, the compulsion is, you don't take it, you're going to jail right now. I already have enough without you taking field sobriety tests, is what he told him. If we're to believe what he testified to at the motion hearing, is he already had enough to arrest you now, you can get yourself out of this trap by taking these tests. And if you pass these tests, you may not be arrested. But you're going to be arrested otherwise.

Myers:
My argument is that he was giving the option to him. Again, if there was a compulsion, if he said, ‘if you don't take these tests, you're under arrest,' I think no reasonable person would believe they were free to leave. The detention was more than temporary.

Judge Boggs:
You would agree that upon review of the audio and video, if we're not able to discern whether that was said, and I think it was argued that it was apparently not audible, that it was said sometime in that space on the tape or otherwise. We have nothing to rebut, the Officer himself testified to it in trial.

Myers:
I agree. I do. Again, I don't think when we reviewed the video, I think he was on his way to giving Mr. Mitchell some options about

Judge Boggs:
At that part of the video, when he says, ‘it would behoove you to cooperate with me, you know that right? And if you don't…' And at that point, Mr. Mitchell interrupted him and said, you know, ‘how long have you been on the force?' That's the point you're talking about. That's where he was giving him a choice.

Myers:
Yes sir.

Judge Boggs:
But that's not what his council's arguing. He's arguing elsewhere he said, ‘if you don't do it, I'm going to arrest you.'

Myers:
I don't know where that is in the video. If he's saying that it's in this part that's inaudible, I don't know how he's saying that, because it's inaudible.

Judge Boggs:
Well, because that's what the officer testified to. The officer testified to it, which puts it in evidence.

Myers:
Yes.

Judge Boggs:
If we were to reverse on that issue, do we reach the Romberg and the-

Myers:
No, sir. I don't believe you do.

Justice Nahmias:
Is this case over that, then?

Myers:
I believe it is. I believe it is. I do. Let me address-

Justice Nahmias:
You still have the evidence before the field sobriety test, right?

Myers:
You do, but if he's under arrest at that point, then I don't have any of the fields, which I don't need necessarily, but it's helpful.

Justice Grant:
You said that you thought he had enough evidence to arrest him even without the field sobriety tests, so does that necessarily taint the arrest completely?

Myers:
It's okay for probable cause, proven beyond a reasonable doubt without the fields. I lose cases with better evidence-

Justice Nahmias:
You mean his inability to stay in his lane, difficulty getting his license out of his pocket, and the strong smell of alcohol emanating from someone's breath in that car, and he wasn't the only one in that car. Is that the extent of it?

Myers:
Well, that's going to be pretty much all there is.

Justice Milton:
Council, that seems fairly different from Raul. Because in Raul, the holding of the court of appeals was that in any event, whether or not the participation in the field sobriety tests were coerced, it was harmless air because there was still probable cause to arrest, because there was a bunch of additional evidence beyond simply what was present here.

Myers:
Well, I think that there was probable cause for arrest, and the case's trial is harder without the evaluation of the field sobriety tests.

Judge Nahmias:
On the Raul issue, tell me how, when I'm drunk, does my internal clock go faster or slower?

Myers:
You mean on the Romberg test?

Judge Nahmias:
Romberg, sorry.

Myers:
Well, Judge, these officers are trained, and Officer Hartley-

Judge Nahmias:
Well, if you're going to rely on special training and experience, you're in the expert testimony realm, so tell me how the average juror or judge, when I'm drunk, does my internal clock go faster or slower?

Myers:
The theory is that it goes slower. They're not just looking for internal clock. They're looking for sway, other physical manifestations. That's why it's more like physical dexterity tests than like, say for example, the HGN.

Justice Grant:
What else are they looking for besides internal clock and swaying?

Myers:
Swaying, body tremors, the ability to follow directions. These are all things that our officer is looking for in a divided attention test or the physical dexterity test.

Justice Nahmias:
Did the officer here give any testimony regarding the internal clock?

Myers:
He gave testimony about the internal clock, he did.

Justice Nahmias:
So tell me, without having some specialized training or experience, does the internal clock go faster or slower?

Myers:
Apparently, it moves slower.

Justice Nahmias:
Apparently. If we polled the folks in the courtroom, do you think the average person would know whether it goes faster or slower?

Myers:
No, what the officer testified to is that they have been taught that when alcohol can affect a person's internal clock to the extent that it can go slower, and there's a range that they use-

Jusdge Boggs:
That's no different than alcohol affecting a person's dexterity? Their sense of balance? Their sense of time?

Myers:
Correct. And their ability to follow directions, because they hold their head back-

Justice Nahmias:
That part I get. I know that if I'm drunk, I can't balance on one foot as easily. I think most people who are adults would probably know that. But faster or slower and by how much, that…

Justice Grant:
How does that faster or slower manifest itself in the test?

Myers:
What they do, Your Honor, is they have them hold their head back and close their eyes. They ask them to put their feet by their side and put their hands down, then they ask them, internally, to themselves, count out thirty seconds. Then the person will tell them once thirty seconds has passed. And they're watching their watch to see if it's twenty seconds or forty seconds, then they record that.

Justice Nahmias:
What if it's 33, do they pass or fail?

Myers:
I think there's a range between 5 or 10 seconds, I believe it's 5 seconds, either way.

Justice Nahmias:
And how in the world would an average person know whether your internal clock over thirty seconds deviates?

Justice Milton:
And how would they know that when you're sober?

Myers:
Well, what they're looking for, again it's not just that-

Justice Nahmias:
Okay, well if it's not just that, then the question is, can they talk about that? Because if all they're talking about is, yes, we do these things where we make people close their eyes and stand on one foot, that's a physical dexterity test. But this internal clock stuff, is the core of the Romberg test, right?

Myers:
It is one of the issues that they're looking for in terms of what it shows.

Justice Nahmias:
And you're saying an officer can testify to that, when they're talking about everyday observations, that anybody would understand.

Myers:
Right, and the other thing about it is that like the physical dexterity test, somebody can possibly fake that, for example the HGN they can't fake because that is a physiological-

Justice Nahmias:
The HGN is a scientific test.

Myers:
Yes, sir, it is. The trial court did not air when it found that the 24 707 was not an unconstitutional violation of the Equal Protection clause. This court said that in Mason, they've kind of reaffirmed that in a case called Zorati Martinez, a recent case where they held that this dichotomy is not unconstitutional either for the Equal Protection or the separation of powers. We believe that the trial court correctly ruled on that issue.

Justice Nahmias:
Can you explain what the rational basis is for having a more permissive test to lock people up than make them pay money?

Myers:
Well I think the standard of proof is different, the consequences are different for both the state and-

Justice Nahmias:
The standard of proof is typically defendant protective, and the consequences are you get locked up or maybe you get executed, versus you pay money. Both of those rationally would say that you give more protection, or at least the same protection to defendants.

Myers:
Well I think that there is a policy issue that the legislature has decided that that's, you know, that those-

Justice Nahmias:
But they still have to have a rational basis for those policy issues. What would be a rational reason?

Myers:
That the policy for the introduction of that evidence, you have a lot of different types of testimony in a criminal case from police officers, and other witnesses, and the defendant is getting the same, if it is a lower standard, the defendant is also getting that lower standard. So, both parties in that litigation are getting the lower standard.

Justice Milton:
That's more a description of what the rule is than a reason why the legislature might have adopted that rule.

Myers:
I believe the legislature adopted it because there's a-the purpose of that is so that you have different types of evidence in a criminal case. For example, from police officers that have their expertise in an experience over time-

Justice Nahmias:
The same cop can testify to the same thing in the same civil case arising out of these same facts. It's excluded potentially in the civil side and allowed in on the criminal side.

Myers:
And that may be true, but there's also the issue of moving the cases along-

Justice Nahmias:
So it's rational to make it easier to lock people up than to make them pay money.

Myers:
No judge, I think it's rational because-thank you.

Chief Justice Hines:
Thank you Mr. Sessions, thank you Mr. Myers. Be safe going back, both of you. Nice to have you.

About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.

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