Angle v. State, 27450
| Decision Date | 15 July 1997 |
| Docket Number | No. 27450,27450 |
| Citation | 942 P.2d 177,113 Nev. 757 |
| Parties | Susan Lynn ANGLE, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appellant Susan Angle was arrested for driving under the influence of alcohol. Angle argued that she was not drunk, but rather that she had taken allergy medication, had consumed one beer, and that the combination of these two products gave the arresting officer the erroneous impression that she was intoxicated. At the conclusion of trial, Angle was convicted of driving under the influence of alcohol.
On appeal, Angle alleges that the prosecutor improperly commented on her post-arrest silence during closing arguments, that the district judge incorrectly refused to redact a portion of a videotape of Angle's booking at the police station, and that these errors require a reversal of her conviction. We agree and remand this matter to the district court for a new trial.
On April 26, 1994, Nye County Deputy Sheriff Gene Elbert was traveling westbound when he saw an approaching eastbound car cross the center line of the roadway and then drift back into the eastbound lane. Elbert made a U-turn and began to follow the car. He again saw the car drift across the center line. As Elbert got closer to the suspect vehicle, the vehicle drifted back across the eastbound lane and onto the gravel shoulder. Elbert then activated his flashing red and blue lights and stopped the vehicle.
Elbert approached the vehicle; Angle produced a Wyoming driver's license but no registration for the car. The car belonged to Angle's father, who Angle lived with in Pahrump. Elbert testified that Angle slightly smelled of alcohol, her eyes were glassy, she had a blank stare, and her speech was slow and pronounced. Elbert stated that when he asked Angle if she had been drinking, Angle responded that she had consumed one beer at Our Bar, a local saloon located about five miles from where Elbert stopped Angle. Elbert asked Angle to get out of the car. When Angle complied, Elbert noticed that she was unsteady on her feet and used her car for support.
Elbert administered a field sobriety test to Angle. Elbert administered the "horizontal gaze nystagmus" test. He also asked Angle to count backwards from 89 to 69; to touch the tip of her thumb to the tip of each finger, starting with the pinky, and to count from one to four as she touched each finger; to close her eyes, tilt her head back, and touch her finger to her nose; and to recite the alphabet. Elbert testified that Angle failed every test except for the alphabet test.
Angle refused to submit to a preliminary breath test, and Elbert stated that based on his training, expertise, and observations, it was his opinion that Angle was under the influence of alcohol. Elbert arrested Angle and took her to the police station's booking area, and Angle again refused to submit to a breath test (blood tests were not available at the booking facility).
Dana Elbert, Deputy Elbert's wife, who at the time also worked for the Nye County Sheriff's Department, was riding along in the car with Elbert on the night of Angle's arrest. She stated that she was trained in the administration of field sobriety tests, that she observed Elbert administer the test to Angle, and that Elbert had administered the test correctly. She also stated that she had had close personal contact with Angle later on the evening of Angle's arrest and that based on her training and experience, she believed that Angle was under the influence of alcohol.
Former Deputy Sheriff Christopher Royer was the officer that conducted Angle's booking. He stated that he had previously met Angle through a friend and testified that when he came into contact with Angle, he noticed that she strongly smelled of alcohol, that her speech was slow and stuttered, and that she was very unsteady and used the wall and counter for support. He testified that he knew Angle's speech pattern from previously meeting her and that her speech was different at the booking than it was at other times. Finally, he testified that Angle admitted to him that she had consumed a few beers that night and knew that she should not have been driving. Angle denied making this statement.
Angle testified that she suffered from severe allergies at the time of the arrest, and as a result of those allergies, she coughed and sneezed constantly, had a runny nose and watery eyes, and got headaches. She also stated that she did not drink during that day of her arrest, but that she did have one beer at a softball game at approximately 7:00 p.m. Angle further testified that the wind was blowing at the softball field, exacerbating her allergies, and that even though she had taken her allergy medicine earlier, she was feeling so bad that she needed to go home. Angle's friend, Deborah Davee, testified that she saw Angle at the softball game and that Angle appeared sober. Davee also testified that Angle appeared to have a cold, that her eyes had been red and watering, that she had a runny nose, and that she had coughed periodically.
Angle stated that after she was detained by Elbert, she tried to comply with Elbert's instructions and told Elbert that she was suffering from allergies. She also stated that Elbert's spotlight was shining directly into her eyes, rendering her unable to see clearly, and that this inability to see, combined with her bad knee and her having taken allergy medicine, impaired her ability to take the field sobriety test. She stated that she had refused to take the breath test after she was arrested because she believed the test was inaccurate.
At trial, Angle requested to introduce into evidence a videotape of her booking at the police station. The videotape showed Angle getting out of the police car, walking through a hallway and into the booking room, and talking to Elbert and Royer; however, during part of the videotape, Angle admitted that she had been convicted of driving under the influence of alcohol before. Angle's counsel wished to redact that portion of the videotape containing the admission, but the district court refused, stating that if the videotape was entered into evidence, it would be shown in its entirety, and that a limiting instruction would be given to the jury. Angle chose not to admit the videotape into evidence. Additionally, during closing arguments, the prosecutor stated that Angle had ample opportunity to tell the arresting officer of...
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