By Audrey Sawyer and Madison Whittemore
WOODLAND, CA — In a jury trial Tuesday in Yolo County Superior Court, a man accused of misdemeanor driving under the influence/DUI charges and driving without a license was unable to be properly issued sobriety tests as a result of the accused missing an eye, according to testimony.
Witnesses said one law enforcement officer was not able to conduct the horizontal gaze nystagmus (HGN) test out of concern for accuracy, adding a breathalyzer test was considered, but wasn’t available.
Later testimony also revealed that, because of the accused’s minority—he was Latino—status, fear of law enforcement officers may have impacted his performance on the sobriety tests.
New technology (NVR Systems) was raised as a concern by defense counsel who called the tech “inconsistent.” Additionally, there was testimony that Woodland currently does not have any body camera footage.
A deputy testified he “cannot recall” turning off his microphone during the morning of the incident, but that a provided video clip seemed to show it turned off.
Regarding sobriety tests, the accused, who is noted to be missing an eye, was not issued an HGN test, said a deputy witness who testified he was uncertain about the accuracy that would come from the test given the fact that the accused has a missing eye.
The court noted the law enforcement report did not mention the accused was missing an eye.
While a deputy said they would have issued a breathalyzer test, it was not administered because they did not have a test with them at the time.
And, when Deputy Public Defender India Neville asked if the microphone had ever been turned back on, the deputy stated he could have possibly done so, but did not remember.
California Highway Patrol Officer Marco Rivera was called as the next witness, and went into detail about wireless NVR Systems that are used on the patrol vehicles. NVRs are a relatively new technology in general, and noted by the officer to be a more recent switch from a different system which had been used for a “number of years.”
Officer Rivera emphasized that since the system is reliant on Wi-Fi connection, the technology is more inconsistent than that previously used, and sometimes does not connect properly.
When asked about whether his department had issued a personal body cam, the officer said that these body cams were “not personally in every area, but we ought to be getting them next year.”
While on the scene, the deputy went to the accused being detained in the back of the sheriff’s vehicle, and requested the accused get out of the car. He noted the accused was not speaking, but his eye seemed watery and red, and that he could smell alcohol on his breath.
According to Rivera, the accused had a cooperative demeanor, but his speech was slurred. The officer stated the accused had told him that he had been drinking alcohol (about seven beers).
When later questioned by DPD Neville about the accused’s demeanor and whether or not he appeared nervous, Rivera stated he was not aware of any fear that minority groups have toward police officers.
“People in minority groups might be more fearful of the police,” DPD Neville argued, explaining why someone Hispanic may have not performed well in the hand pat sobriety test.
Tensions in the courtroom quickly escalated as the prosecution objected to the defense suggesting fear minority groups may face, claiming it was not “relevant.”
“It is absolutely relevant,” the DPD responded, as Judge Wolk nodded and overruled the motion.
Upon Deputy District Attorney Aimee McLeod’s further questioning, Rivera explained he performed four field sobriety tests after pulling the accused over: the horizontal gaze nystagmus test, the one-leg stand test, the Romberg test, and the hand pat test.
Officer Rivera explained the accused “put his feet together but was unable to follow” the officer’s finger in the horizontal gaze test, also adding that the accused’s eye was “bouncing” which can be a sign of intoxication.
After administering the horizontal gaze test, Rivera asked the accused to do the one-leg test but the accused lost balance right away and explained to the officer that he had been bitten by a rattlesnake two months ago and it affected his ability to balance.
The accused also made mistakes during the Romberg test by “swaying,” according to Rivera’s testimony, and failed to count the fingers correctly in the hand pat test.
After DDA McLeod’s questioning, DPD Neville began a lengthy and tense cross-examination that honed in on the validity of the sobriety tests since the accused only has one eye, Rivera’s use of non-certified sobriety tests, how accused persons who are a part of minority groups may be nervous around law enforcement, and flaws in the police report.
DPD Neville argued before the jury the National Highway Traffic Safety Administration (NHTSA) recognizes only three officially validated field sobriety tests: the horizontal gaze, one-leg stand, and heel-to-toe tests.
Nonetheless, Rivera administered only one of these tests to the accused successfully, specifically the horizontal gaze test in which the accused’s one eye bounced or jerked in response to the stimulus.
DPD Neville noted the horizontal gaze test alone should not be regarded as substantial evidence, especially considering the accused only has one eye. Additionally, Rivera also testified that “some people actually have that (eye bouncing) naturally.”
It was also pointed out by the defense that field sobriety tests are supposed to be administered on a “smooth, flat, and level surface,” but Rivera had parked his patrol car on a “dirt shoulder” of a “small county road” which was not smooth, flat, or level.
The defense noted mistakes in the incident report which included two separate instances where the accused was referred to as “Carson” (which is not the first or last name of the accused).
During one of the references, it was said a blood sample to check for blood alcohol content (BAC) was taken from “Carson’s arm.”
Rivera admitted these were “typos” and “mistakes” because he sometimes copies paragraphs from other police reports that have similar “narratives.”
“Obviously I forgot to change the person’s name,” CHP Officer Rivera conceded, explaining why the name “Carson” appeared twice in the report.
DPD Neville finished questioning the witness and Judge Wolk dismissed the jurors for the day. The trial reconvenes Wednesday with more witness testimony and closing arguments.
