United States District Court, M.D. Georgia, Columbus Division
STEPHEN HYLES, Magistrate Judge.
On February 11, 2015, the Court held a hearing on Defendant's motion to suppress and in limine to exclude the field sobriety tests and breathalyzer tests performed on Defendant (ECF No. 9). 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 Hunter Henderson is charged with two counts of driving while under the influence-DUI with an alcohol concentration of.08 or more and DUI less safe-in violation of 18 U.S.C. §§ 7 and 13 in conjunction with O.C.G.A. § 40-6-391(a)(5) and (a)(1). On September 27, 2014, a little after eleven o'clock at night, Defendant Henderson drove up to an access point for Fort Benning, Georgia, and was approached by a guard. Hr'g Tr. 5:19-23, 6:2-3. The guard called over Officer Dennis Newby who is a police officer at Fort Benning. Id. at 4:1, 5:19-23. Officer Newby asked for identification from the driver and passenger and noticed a "strong odor of alcohol emitting from the vehicle." Hr'g Tr. 6:6-8. He consequently asked the driver to step out of the vehicle in order to separate him from the smell of the car. Id. at 6:10-13. When Defendant Henderson stepped out of the car, Officer Newby noticed a strong smell of alcohol coming from Defendant. Hr'g Tr. 6:15-16; 28:21-29:1.
Although Defendant Henderson denied drinking, Officer Newby asked Defendant Henderson to perform the standard field sobriety tests. Id. at 6:15-17. Defendant Henderson agreed to perform the standard field sobriety tests. Id. While demonstrating the walk and turn, Officer Newby noticed that Defendant Henderson was very "unsure of his balance." Hr'g Tr. 8:4-7. Officer Newby also noticed that Defendant Henderson's eyes were bloodshot and his speech was slurred. Id . at 8:8-12; 29:2-6. When Defendant Henderson performed the walk and turn test, he exhibited four clues as to his intoxication. Id. at 8:14-21.
After the walk and turn test, Officer Newby asked Defendant Henderson if he had any medical conditions that would keep him from being able to perform the one leg stand test. Hr'g Tr. 8:22-9:10. Defendant Henderson stated that he had an old leg injury; consequently, Officer Newby did not perform the one leg stand test. Id. at 9:12-20. Officer Newby then arrested Defendant Henderson, took him to the MP station to have a breathalyzer test done, and read him the federal implied consent form. Id. at 9:17-10:13. Defendant Henderson signed a rights waiver form. Id. at 10:8-13.
At the MP station, Officer Newby observed Defendant Henderson during the twenty minute observation period. Hr'g Tr. 41:23-43:20. Captain Mendoza then performed the breathalyzer test on Defendant Henderson using the Intoxilyzer 5000. Hr'g Tr. 31:13-4. The initial reading was a.187. Id. at 38:16-17. The final reading of the breathalyzer test was a.171. Id. at 34:18-19.
Defendant seeks to have the evidence surrounding his arrest, primarily the walk and turn test and the readings of the Intoxilyzer 5000, suppressed. Defendant argues 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 field sobriety test performed is a scientific test that should be excluded; (3) the arresting officer failed to comply with O.C.G.A. § 40-6-392 and O.C.G.A. § 40-5-67.1; (4) the implied consent waiver was invalid and untimely.
"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, ___ F.Appx. ___, 2015 WL 1134800, at *2 (11th Cir. Mar. 16, 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, s ee, 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).
Here it is clear that, based on the totality of the circumstances, Officer Newby had probable cause to arrest Defendant Henderson for driving while under the influence of alcohol. Officer Newby approached Defendant's car and noticed a strong smell of alcohol. Officer Newby separated Defendant from the car and his passengers and found that the smell of alcohol was coming from Defendant's person. Defendant then agreed to perform the walk and turn field sobriety test. While demonstrating the field sobriety test, Officer Newby noticed that Defendant's eyes were blood-shot, his speech was slurred, and he was having problems with his balance. At this point, Officer Newby had probable cause to arrest Defendant. 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").
The fact that Officer Newby then went on to perform a walk and turn test, which Defendant performed poorly, does not negate probable cause. Furthermore, the walk and turn test in this case was properly administered. Defendant's arguments that Officer Newby is not properly trained, did not give proper instructions, and did not properly demonstrate the test is not supported by the testimony. Officer Newby testified to his extensive and yearly training, that he provided Defendant with instructions and a demonstration, and that he asked Defendant whether Defendant understood the instructions. Hr'g Tr. 4:3-19, 7:4-8:1, 16:11-18:15. Defendant did not tell Officer Newby that Defendant could not understand the instructions or could not perform the test. Id. at 17:23-15.
Defendant's reliance on 32 C.F.R. §§ 634.33 and 634.36 is misplaced. Defendant contends that these two regulations require that a field sobriety test be suppressed if performed by someone who is not NHTSA trained and/or by someone who does not explicitly follow NHTSA procedures. The Defendant also avers that these provisions require the Government to affirmatively prove (it is unclear by what standard) "that NHTSA procedures were followed for the [field sobriety] test to be admissible."
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 ...