By Ken Wallentine
DUI traffic stop became unintentional de facto arrest requiring suppression
An off-duty trooper and his friend were driving on a rural dirt road when they came upon a truck parked in the middle of the road. Worwood, the driver of the truck, got into the truck and drove it to the side of the road to allow the trooper and his friend to pass. The trooper noticed a wet spot in the dirt, a beer can, and a cooler. The trooper pulled along side the truck and spoke with Worwood. The trooper pulled his vehicle alongside Worwood's to speak to him. During the conversation, the trooper observed that Worwood had bloodshot eyes and slurred speech. Getting out of his vehicle and moving closer to Worwood, the trooper could smell alcohol on Worwood's breath.
The trooper believed that Worwood was too impaired to be driving. Lacking a cell phone or radio, the trooper told Worwood that he could not let him drive and asked Worwood to come with him to the trooper’s home. The trooper’s friend drove Worwood’s truck to a farm nearby and called for an on-duty officer to respond to the trooper’s home. After SFST’s, Worwood was arrested for DUI. His BAC test results were .248. Worwood later claimed that he had been illegally seized and subject to a de facto arrest. The Court of Appeals ruled that Worwood had been the subject of a legitimate investigatory detention and that driving him a short distance to the trooper’s home was a reasonable extension of the detention.
The Utah Supreme Court reversed, holding that the trooper exceeded the bounds of an investigative detention. Thus, the detention became a de factor arrest, unsupported by probable cause. The court agreed that the trooper’s initial stop was justified by observation of the large water spot on the road, a crushed beer can, and later, a cooler. The trooper also saw Worwood behind the wheel of his truck and smelled alcohol on Worwood's breath.
There are circumstances when transporting a suspect from the scene of an initial detention does not create an arrest. However, in this case the court noted that there was no evidence in the record that the field sobriety tests could not have been performed on the gravel road, or that transporting Worwood was necessary to preserve the trooper’s safety. It may well be that the terrain or other circumstances dictated that field sobriety tests were not feasible at the scene of the stop. Similarly, there may have been valid officer safety concerns that suggested transporting Worwood. Nonetheless, there was no evidence introduced at the trial court of such possibilities. This prevented the Supreme Court from justifying the prolonged detention and the transportation away from the scene of the stop on some alternative grounds. This case is a reminder of not only thorough reporting of all relevant facts and circumstances, but also educating prosecutors about those facts. State v. Worwood, --- P.3d ----, 2007 WL 1791238 (Utah 2007).
HGN test requires scientific foundation for admissibility in court
McKown was arrested for DUI after she failed field sobriety tests, including a horizontal gaze nystagmus (HGN) test. The trial judge took judicial notice that the HGN test is generally regarded as reliable. The Illinois Supreme Court reversed that ruling, stating that HGN evidence is inadmissible until the prosecution provides an evidentiary foundation showing that the HGN test satisfies the standard for admissibility of novel scientific evidence set out in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
Some state courts have ruled that HGN testing is no different than other observational field sobriety tests and requires no scientific foundation for consideration in court. Most states that have considered the issue agree with the Illinois court and rule that the HGN test must meet the Frye test for scientific testimony. Other state courts have found that the HGN test is scientific, but have allowed the evidence without a foundation, taking judicial notice of its reliability and validity. The Illinois court ruled that the science behind the test is not the real issue.
Because the HGN test requires interpretation by a trained officer, it qualifies as scientific evidence requiring a foundation. The Frye test requires that “scientific evidence is admissible at trial only if the methodology or scientific principle upon which the opinion is based is ‘sufficiently established to have gained general acceptance in the particular field in which it belongs.’” People v. McKown, --- N.E.2d ----, 2007 WL 2729262 (Ill. 2007).