Monday, October 27, 2014

Errors: Sometimes They’re Harmless

State v. Wilt2014 VT 114

By Elizabeth Kruska

On the day after Christmas in 2011, Maureen Wilt invited her neighbor over for dinner. They cooked, they had wine, they ate, and when they were done, Mr. Neighbor (we don’t know his name) went on his merry way back home. Then Maureen called up another friend of hers, maybe around 8:00. The facts of this are a little confusing, but it seems like Maureen wanted to go visit the friend but he didn’t want her to come over. She showed up anyway, knocked on the door, and somehow ended up falling down a flight of stairs, hitting her head, and becoming unconscious. The friend, Mr. Rondeau, asked his son to call 911I’d assume because there was an unconscious, bleeding lady in his basementand before help arrives, Maureen gets up and drives away. Mr. Rondeau thought her driving seemed fine.

If I may interjectunconscious and bleeding while lying at the foot of a flight of basement stairs seems a little inconsistent with competent driving ability a few moments later. I’d have been concerned with that, but perhaps they weren’t able to stop her from driving. I don’t know.

Anyway, a little while later, Maureen showed up at her neighbor’s housethe same neighbor she ate dinner with a few hours before. Neighbor invited her in because her head was all bloody. Neighbor thought she had a faraway look in her eyes, which were also glassy. He got dressed so he could take her to the hospital, at which point he noticed Maureen was drinking from a bottle of Southern Comfort. Coincidentally, Neighbor had been a bartender for 30 years and assessed that the amount of Southern Comfort missing from the bottle was about 2 ounces. Neighbor got Maureen into the car and headed toward the hospital. Just down the road they were stopped by police, who were responding due to Mr. Rondeau’s call.

Although Maureen was a passenger in the car, they arrested her for a DUI, believing she had been drinking when she made the drive from Mr. Rondeau’s to Neighbor’s. She admitted she drank wine at dinner time. The Trooper had Maureen do some standard field sobriety exercises, despite the fact she wasn’t wearing shoes and pretty clearly had a head injury. One exercisethe horizontal gaze nystagmus testreally isn’t supposed to be done on people with head injuries. It measures involuntary jerking of the eyeballs, which happens when someone ingests alcohol. You can also make yourself show nystagmus by spinning around for about a full minute because spinning causes the fluid in the eyeballs to be unbalanced, which causes the involuntary eyeball jerking. A head injury will do the same thing.

Anyway, police had Maureen do a preliminary breath test, which registers at .160, which is twice the so-called legal limit for driving. Remember, though, Maureen had wine at dinner several hours before, but then also drank after she drove to Neighbor’s. Based on that, it would be kind of hard to know exactly what her BAC was at the time she actually drove.

Maureen got arrested for a DUI and later had a trial in the case. Her defense seems to be that she drank after, and based on that it was unknown what her impairment level was when she actually drove. Both she and the State had experts testify about what her BAC would have been at the time of driving if the Southern Comfort she drank at Neighbor’s was factored out of the equation. Since nobody really actually knew how much she drank after, the possible BACs varied from .033 to .136. Number-wise, this feels like reasonable doubt.

The other thing that happened was that the court admitted testimony from the Trooper about the HGN test. The Trooper gave an opinion that based on the amount of nystagmus, or eyeball jerking, he saw, that Maureen’s BAC was over .10.

Everybody concedes that the Trooper shouldn’t have said this. Although he said he had performed the test many times in the past, HGN is a scientific principle, and the Trooper lacked the qualifications or ability to testify to the causal link between the nystagmus and whatever was causing it. He also conceded that there is a procedure they are supposed to follow when someone has a head injury and he didn’t follow it.

Maureen was convicted and appeals, raising the HGN testimony issue.

SCOV affirms, saying that although the Trooper really wasn’t qualified to give the opinion that the HGN meant Maureen’s BAC was at or above a certain level, that this was harmless in the overall scheme of things. SCOV feels the heart of the issue is when Maureen drank. There were 2 experts who testified, and both gave opinions about what her BAC would have been at the time of operation based on the fact she drank after arriving at Neighbor’s. This, they feel is really the more relevant evidence, and was the evidence the jury would have used in making its decision. In other words, although the Trooper talked about HGN and gave his opinion, his opinion was sort of superfluous in the grand scheme of things.

Justice Robinson dissents. She points out that the HGN test is a scientific one, and is more complicated than lay people in a jury can understand without appropriate testimony. People can understand the other components of the standard field sobriety exercises, which pretty much look like performing roadside ballet. People of ordinary sensibilities know it’s hard to stand on one foot for thirty seconds that it’s and even harder to do it when you’ve been drinking. Everybody gets that. Heck, I assume jurors go into the jury room and all try to do the standard field sobriety exercises just to see if they can.

People who don’t understand ophthalmology (which is probably most people) or who have ever even heard of nystagmus, though, aren’t going to understand HGN without proper expert testimony to explain the causal link between the eyeball jerking and alcohol consumption. Justice Robinson was concerned that the admission of this evidence, by a State Trooper who said he’d performed the test hundreds of times, might unintentionally sway jurors by giving sort of an “expert veneer” that wasn’t really there.

So, although she agrees that the real question was when Maureen drove and what her BAC would have been at that point, she can’t agree that the admission of the HGN testimony was harmless.

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