United States District Court, M.D. Georgia, Columbus Division
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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
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).
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] . . .
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
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 ...