Opinion
CASE NO. 4:16-mj-88 -MSH
07-21-2017
UNITED STATES OF AMERICA, v. NICHOLAS J. HARDIE, Defendant.
ORDER
On December 15, 2016, the Court held a hearing on Defendant's motion to suppress and in limine to exclude Defendant's field sobriety tests and refusal of a chemical test (ECF No. 8). For the reasons explained below, Defendant's motion to suppress is denied and his motion in limine is denied in part and granted in part.
FINDINGS OF FACT
Defendant Nicholas Hardie is charged with one count of driving while under the influence, less safe, and one count of speeding. Information 1, ECF No. 1. On July 1, 2016, at a little after midnight, Lieutenant Maynard observed—confirmed via radar—a vehicle going 66 miles per hour in a 45 miles per hour zone. Hr'g Tr. 5:12-15; Gov't's Ex. 1 at 1, ECF No. 12-1. Officer Maynard stopped the vehicle. Hr'g Tr. 5:14-15.
Officer Maynard approached the vehicle and noticed a "strong odor of alcoholic beverage both from the driver and the vehicle itself." Hr'g Tr. 5:25-6:2. The driver, Defendant Hardie, told Officer Maynard that he went to pick up two friends who had been drinking. Id. at 6:2-3. Officer Maynard asked Hardie to step out of the car and to the rear of the vehicle so that he could separate any odor of alcohol coming from the car and passengers. Id. at 6:4-12; Gov't's Ex. 1 at 1. After Hardie exited the vehicle, Officer Maynard smelled a strong smell of alcohol coming from Hardie's person. Hr'g Tr. 6:16-18. Additionally, Officer Maynard observed that Hardie's "eyes were bloodshot and watery[,]" that Hardie "was unsteady on his feet" and "wavering side to side and forward and back[,]" and that Hardie "was a little bit thick-tongued[.]" Id. at 6:22-24. Hardie also admitted to Officer Maynard that Hardie consumed "two drinks a couple of hours ago." Id. at 7:2-4.
Officer Bracey—who Officer Maynard called for back-up—arrived at the scene and performed two field sobriety tests (FSTs) on Defendant Hardie. Hr'g Tr. 7:15-21. Hardie demonstrated several clues or signs of impairment during both the walk and turn test and the one legged stand test. Id. at 9:6-17. Officer Maynard then performed an additional FST, the horizontal gaze nystagmus (HGN) test. Id. at 9:22. Officer Maynard observed "distinct signs, all six clues, both eyes . . . [w]hich led [him] to believe that [Hardie] was under the influence of alcohol." Id. at 10:19-21. The officers then read Hardie the federal implied consent and performed the portable breath test. Hr'g Tr. 11:3-5. The portable breath test showed positive for alcohol. Id. at 11:14-15. Defendant Hardie was then arrested for suspicion of driving under the influence and taken to the station. Id. at 11:19-21.
At the MP station, Officer Maynard again read Hardie the federal implied consent and had him sign it. Id. at 11:23-24. Maynard observed Defendant Hardie during the twenty minute observation period. Id. at 11:24-12:1. Officer Maynard then took Hardie to the Intoxilyzer 9000 for breath testing. Hr'g Tr. 12:2. Defendant Hardie refused to provide a breath sample. Id. at 12:3-7.
DISCUSSION
Defendant seeks to have the FSTs and his refusal to consent to testing suppressed. Def.'s Mot. to Suppress 2-10, ECF No. 8. Defendant asserts that he was arrested without probable cause. He has made multiple arguments to show that the arresting officer lacked probable cause: (1) the field sobriety test was improperly performed; (2) the HGN is a scientific test that should be excluded; (3) the officers performing the FSTs failed to comply with military regulations; and (4) the failure to comply with the regulations violates due process. Defendant further argues that the federal implied consent waiver is unconstitutional and that his refusal to consent to testing cannot be used against him.
I. Probable Cause
"An officer has probable cause to arrest a person when he has sufficient knowledge, based on reasonably trustworthy information, for a prudent person to believe that the suspect has committed or is committing an offense." United States v. Harrell, 603 F. App'x 877, 879 (11th Cir. 2015). "Although probable cause requires more than suspicion, it does not require convincing proof, and need not reach the [same] standard of conclusiveness and probability as the facts necessary to support a conviction." Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (internal quotation marks and citation omitted). Furthermore, this test is an objective one, see, e.g., Whren v. United States, 517 U.S. 806, 813 ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."), that "depends on the totality of the circumstance." Maryland v. Pringle, 540 U.S. 366, 371 (2003) (citation omitted).
It is clear that, based on the totality of the circumstances, Officer Maynard had probable cause to arrest Defendant for driving while under the influence of alcohol. Officer Maynard stopped Plaintiff's vehicle for speeding. When he approached Defendant's car, he noticed a strong smell of alcohol. Officer Maynard then separated Defendant from the car and his passengers; he found that the smell of alcohol was coming from Defendant's person. Officer Maynard also observed that Defendant's eyes were "bloodshot and watery," that Defendant was "unsteady on his feet" and "wavering," and that the Defendant "was a little bit thick-tongued[.]" Hr'g Tr. 6:22-24. Defendant Hardie also told Officer Maynard that Defendant had consumed a couple of drinks earlier in the evening. At this point, Officer Maynard had probable cause to arrest Defendant for DUI. See, e.g., Schmerber v. California, 384 U.S. 757, 768-69 (1966) (finding that the officer "plainly" had probable cause when he observed an odor of alcohol and driver's eyes were "bloodshot, watery, [and] . . . glassy").
Officer Maynard already had probable cause at the time that he conducted the FSTs with the assistance of Officer Bracey. Defendant contends generally that the FSTs were improperly administered because they failed to comply with 32 C.F.R. § 634. He argues that the regulations at § 634, specifically sections 634.1, 634.33, 634.36, create a liberty interest such that the failure to specifically comply with the regulations violates due process. This Court previously held that the failure to comply with the regulations cited by Defendant does not require suppression of the FSTs. United States v. Henderson, 2015 WL 3477005 at *3 (Jun. 2, 2015). The Court similarly finds that these regulations fail to create a liberty interest in this case.
The Court explained:
Section 634.36(b) states that when an officer "reasonably concludes that the individual driving or in control of the vehicle is impaired, field sobriety tests should be conducted on the individual." It then explains that three different types of field sobriety tests should be performed: (1) "a standard field sobriety test (such as one-leg stand or walk and turn)", (2) the horizontal gaze nystagmus tests as sanctioned by NHTSA, and (3) "screening breath-testing devices[.]" Section 634.33(1)(3) states that "installation law enforcement personnel" will be trained to "[p]erform the three field tests of the improved sobriety testing techniques." When read together, these two regulations state that an installation law enforcement officer needs to be trained on standard field sobriety tests, the HGN test, and a portable or field breathalyzer test.
The regulations do not indicate that failure to have an officer trained on all three types of field tests would render him incapable of properly performing those field tests for which he has received training. Likewise, the regulations do not require suppression of a field sobriety test if the officer has not received NHTSA training on the standard field sobriety tests and/or HGN test. Finally, it is abundantly clear that these regulations do not create some additional burden on the part of the Government to prove that NHTSA procedures were explicitly followed in order for a field sobriety test to be admissible.
The Court also specifically declines to find that the regulations were violated. --------
Defendant cites to no legal authority for the proposition that the federal regulations at question bestow rights on a Defendant such that a liberty interest is implicated. To the contrary, the cases cited by Defendant cut against his argument and show that internal regulations and procedural rules do not implicate the Due Process Clause. See, e.g., United States v. Caceres, 440 U.S. 741, 753 (1979) ("Nor is this a case in which the Due Process Clause is implicated because an individual has reasonably relied on agency regulations promulgated for his guidance or benefit and has suffered substantially because of their violation by the agency.") Defendant states that these regulations were created for his benefit—"to protect its personnel and civilians on post from an unjust and incorrect determination of intoxicated driving which would result in an unconstitutional arrest." Def.'s Mot. to Suppress 7. In other words, Defendant argues, the regulations were created to protect a driver's liberty interests while on federal land.
However, the regulations themselves state that the
objectives of motor vehicle supervision are to assure—
32 C.F.R. § 634.5(a). These regulations are thus created with the intent of reducing traffic accidents and death and removing intoxicated drivers from the roadway, not to ensure that stopped drivers receive additional protections. Defendant's argument is simply without merit.(1) Safe and efficient movement of personnel and vehicles.
(2) Reduction of traffic deaths, injuries, and property damage from traffic accidents. Most traffic accidents can be prevented. Investigation of motor vehicle accidents should examine all factors, operator status, vehicle condition, and supervisory control measures involved.
(3) Integration of installation safety, engineering, legal, medical, and law enforcement resources into the installation traffic planning process.
(4) Removal of intoxicated drivers from installation roadways.
The Court agrees, however, that the one-legged stand and walk and turn test are not scientific tests, but that the HGN is a scientific test. The Government has acknowledged the limitation on using the walk and turn and one-legged stand and stated that Officer Bracey will not state whether Defendant "passed" or "failed" those tests. Gov't's Resp. 3, ECF No. 12. This is consistent with the Court's previous rulings on this issue. Because the HGN is a scientific test, however, the Government must comply with Federal Rule of Evidence 702 for it to be considered admissible at trial. The Court reserves ruling on Defendant's objection to the admission of the HGN test at this time.
II. Federal Implied Consent
Defendant also contends that the federal implied consent statute, 18 U.S.C. § 3118, is unconstitutional such that his refusal to submit to breath testing must be excluded. In support of this argument, he cites to Birchfield v. N. Dakota, 136 S. Ct. 2160 (2016). The Court is at a loss to understand Defendant's interpretation of that case to support his argument that the federal implied consent statue is unconstitutional.
The Supreme Court specifically addresses implied consent in Birchfield, and Defendant quotes from this same section. 136 S. Ct. at 2185. The Court explains:
It is well established that a search is reasonable when the subject consents, and that sometimes consent to a search need not be express but may be fairly inferred from context. Our prior opinions have referred approvingly to the general concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them.Id. Defendant seems to argue that because he is questioning the constitutionality of the federal implied consent statute, and the officers could have requested a blood test under the statute, the statute must necessarily be found unconstitutional. Def.'s Suppl. Br. 2, ECF No. 15. Birchfield does not stand for the proposition that warrantless blood tests are always unconstitutional. Nor does it state that an implied consent law that requires consent to a blood test is unconstitutional—the Supreme Court specifically states, "nothing we say here should be read to cast doubt on [implied consent laws]." Birchfield, 136 S. Ct. at 2185. The holding of Birchfield relevant to implied consent statues is that "motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense." Id. at 2186. This holding is inapplicable to the federal implied consent statute as it does impose criminal penalties for failure to comply. See 18 U.S.C. § 3118(b) (providing civil and evidentiary penalty for refusal).
It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads.
Moreover, Birchfield is inapplicable to the facts of this case because Defendant was not asked to consent to a blood test. Defendant was asked to provide a breath sample on the Intoxilyzer 9000. In reference to breath tests, the Supreme Court explained:
Because breath tests are significantly less intrusive than blood test and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.Birchfield, 136 S. Ct. at 2185. Birchfield simply does not support Defendant's argument. Defendant's request to find the federal implied consent statute unconstitutional is denied.
CONCLUSION
In sum, probable cause existed in this case prior to Defendant actually performing the FSTs; the alleged failure to comply with federal regulations in this case does not implicate the Due Process Clause; and the federal implied consent statute is constitutional. Except as explained above regarding the admissibility of the HGN, which shall be determined at a later time, Defendant's motion is denied.
SO ORDERED, this 21st day of July, 2017.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE