844 P.2d 691 (Idaho 1992), 19388, State v. Gleason

Docket Nº:19388.
Citation:844 P.2d 691, 123 Idaho 62
Opinion Judge:McDEVITT, Justice. BISTLINE,
Party Name:STATE of Idaho, Plaintiff-Respondent, v. Danny R. GLEASON, Defendant-Appellant.
Attorney:Frederick G. Loats, Coeur d'Alene, for defendant-appellant. Larry EchoHawk, Atty. Gen. and Michael J. Kane, Chief, Criminal Div., argued, Boise, for plaintiff-respondent.
Judge Panel:BAKES, C.J., and JOHNSON, and TROUT, JJ., concur.
Case Date:December 22, 1992
Court:Supreme Court of Idaho
 
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Page 691

844 P.2d 691 (Idaho 1992)

123 Idaho 62

STATE of Idaho, Plaintiff-Respondent,

v.

Danny R. GLEASON, Defendant-Appellant.

No. 19388.

Supreme Court of Idaho, Coeur D'Alene.

December 22, 1992

Page 692

[123 Idaho 63] Frederick G. Loats, Coeur d'Alene, for defendant-appellant.

Larry EchoHawk, Atty. Gen. and Michael J. Kane, Chief, Criminal Div., argued, Boise, for plaintiff-respondent.

McDEVITT, Justice.

STATEMENT OF THE CASE

Defendant was arrested and charged by a Uniform Traffic Citation with having "operated a motor vehicle while under the influence of alcohol and/or with a Blood Alcohol Content of .10% or above" in violation of I.C. § 18-8004, on August 29, 1988. Defendant pled "not guilty" and a trial was held before a jury on June 15, 1989.

In the early morning hours of August 29, 1988, Officer Alex Carrington noticed a white Thunderbird travelling south on Highway 41 that appeared to be weaving in its lane. Officer Carrington followed the vehicle for approximately eleven miles and radioed for help from the county. Officer Carrington testified that he could see the car clearly the entire time he followed it and that there were no other cars on the road. He also testified that he observed the car meander back and forth several times between the curb and center line. Shortly after receiving the radio call, Deputy Wolfinger of the County Sheriff's Office

Page 693

[123 Idaho 64] pulled in between the white Thunderbird and Officer Carrington's marked police car. Deputy Wolfinger followed the car onto a main thoroughfare, observing the vehicle drift and jerk back at least three times, at which point he activated his lights and pulled the vehicle to the side of the road.

At trial, the court allowed a tape recording of the subsequent interchange between the defendant Gleason, driver of the white Thunderbird, and Deputy Wolfinger, up to the moment of defendant Gleason's arrest for driving under the influence. Deputy Wolfinger's testimony and arrest report also recited the same sequence of events. When Deputy Wolfinger first contacted Gleason, he noticed a moderate odor of alcohol on Gleason's breath and that Gleason's eyes were watery and bloodshot. Moreover, the deputy noticed a plastic cup on the transmission hump containing a liquid later verified as alcohol. Deputy Wolfinger requested Gleason to step from the vehicle and perform a series of field sobriety tests. Deputy Wolfinger has an Associate of Science Degree in Law Enforcement, has received training by experienced field officers, and has attended two training seminars on improving recognition of intoxicated persons and administration of the tests. In addition, Wolfinger has performed the field sobriety tests over 200 times in the past five years. Every DUI arrest he has made based upon these tests was verified by an Intoximeter 3000 Blood Alcohol Content ("BAC") test.

Deputy Wolfinger performed five tests on Gleason: the horizontal gaze nystagmus ("HGN") test, one-foot balance test, alphabet test, finger counting test, and hand-slap dexterity test. Gleason performed very poorly on each test. Gleason exhibited the onset of nystagmus prior to 45 degrees and could not maintain maximum deviation, he could not stand on one foot for more than 10 seconds, he could only recite the alphabet to "O", he could not touch and count his own fingers in the proper order, even after several explanations and demonstrations by the deputy, and he could not keep the simple hand-slapping rhythm. Based on Gleason's performance, Deputy Wolfinger was of the opinion that Gleason was under the influence of alcohol, and arrested and charged Gleason accordingly.

Appellant Gleason objected at trial to the admission of evidence concerning the HGN test based on lack of foundation. After a brief debate out of the presence of the jury, the trial court found that the foundation for the admissibility of the HGN test was satisfied by Deputy Wolfinger's testimony of past testing experience and independent verification of his accuracy. The court allowed Deputy Wolfinger to testify that he administered the test, to give his opinion based on his observations in administering the test, and to state that nystagmus, or eye-jerking, prior to 45 degrees is a "strong indicator that he's under the influence of alcohol." The court struck the word "strong". On cross, appellant delved even further into the controversial quagmire of the HGN test, and failed to object when he evoked the response from Deputy Wolfinger that nystagmus prior to 45 degrees "is a good indicator of alcohol content above a .10 percent."

In addition to Deputy Wolfinger's testimony, the State offered the testimonies of Officer Carrington and Chaplain Greg Linnebach, who was in the marked sheriff's car with Wolfinger. The two testified that, based on their own training and experience in the administration of field sobriety tests and their personal observations of Gleason's erratic driving pattern and uncoordinated mannerisms, they each formed the opinion that Gleason was intoxicated. Specifically, Gleason swerved in his lane several times and had somewhat slurred speech, the smell of alcohol was strong on his breath, and his movements seemed slow and deliberate. The prosecution presented evidence to show that defendant was driving under the influence, but failed to present any evidence that defendant had a BAC over .10 percent. Therefore, upon motion of the defendant, the court struck the second part of the pleadings relating to BAC levels.

Gleason had two...

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