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United States v. Wilson

United States District Court, E.D. Virginia, Norfolk Division

October 31, 2017

UNITED STATES of AMERICA,
v.
DEBRA P. WILSON, Defendant/Appellant.

          OPINION & ORDER

          HENRY COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Debra P. Wilson's ("Defendant's") appeal from a Magistrate Judge's finding that she is GUILTY of Count Three in the three-count criminal Information in this matter. Doc. 50. for the reasons stated herein, the Court AFFIRMS the judgment of the Magistrate Judge.

         I. BACKGROUND

         A. Facts

         The Government agrees with the Defendant's statement of facts but adds a few additional facts. See Doc. 55 at 1-2. Thus, the agreed facts are as follows:

         "Upon her arrival at the [Naval Air Station Oceana MWR Outdoor Rental Equipment facility (the "MWR')] on October 17, 2016, the Defendant became upset and began yelling at MWR staff members because they refused to help her remove a heavy pressure washer from her vehicle, while providing assistance to other customers. ([Trial Tr. ('TT.')] 9-10). Ms. Irey, the manager at the MWR facility, called security due to the Defendant's escalating behavior. (TT. 10). Ms. Irey, a lay witness, testified that she did not observe anything regarding the Defendant's ability to stand or walk. (TT. 11-12). Another employee, Alec Jones, testified that the Defendant was "negative and aggressive" (TT. 20); however, he offered no testimony regarding the defendant's physical condition or that he observed any evidence of intoxication.

         "Roger Knight, was a former officer employed by the CNIC, the Department of the Navy's police force, on the date of the alleged offense. (TT. 22). At that time, his field-training officer Sergeant Pratis was assisting former officer Knight. Mr. Knight testified that the Defendant's clothing was disheveled (TT. 24); however, the Defendant was doing manual labor that day with a pressure washer. He also testified that her speech was "slightly slurred, but it was kind of hard to pick up because of an accent that she had." (TT. 24). Mr. Knight also testified that the Defendant's eyes were bloodshot. Id. He also indicated that she was pacing around a lot and he believed he observed a slight sway. (TT. 25). He also testified that he believed he smelled the odor of an alcoholic beverage. Id.

         "Upon the request of Mr. Knight, the Defendant voluntarily consented to perform certain field sobriety tests. (TT. 26). Prior to performing the field sobriety tests, the Defendant advised Mr. Knight that she was under the care of a physician and she was taking various medications. (TT. 26). Mr. Knight failed to ask the Defendant any follow up questions about the types of medications she had consumed that day or what medical conditions she had. Id. Mr. Knight testified that he had the Defendant perform the Horizontal Gaze Nystagmus ("HGN") test. (TT. 27). The Defendant, by counsel, objected to the admission of the result of the HGN test because Mr. Knight was not qualified to offer testimony of a medical nature regarding the nystagmus of the eye or whether there was a standard deviation due to his minimal training and experience. (TT. 27). The Magistrate Judge overruled the Defendant's objection, but stated that he didn't attribute much weight to the HGN test. (TT. 28). Mr. Knight testified that he observed four clues of intoxication. Id.

         "Next, Mr. Knight administered the walk and turn test and gave the Defendant the standard instructions. (TT. 29). The Defendant lost her balance because she was wearing flip-flops. Id. She restarted the test with bare feet and Mr. Knight testified that she missed heel to toe on three of the first nine steps before stopping to ask if she was supposed to turn following the ninth step. (TT. 30). He also testified that she used her hands for balance, Id.

         "Mr. Knight also instructed the Defendant on how to perform the one-legged stand test. (TT. 30-31). The Defendant raised her leg and counted to eleven before asking if she had to continue the test. (TT. 31). Mr. Knight instructed the Defendant that she had to continue until 30. The Defendant counted 15, jumped to 30, and then discontinued the test. (TT. 31).

         "Mr. Knight also administered a Preliminary Breath Test (the "PBT") to the Defendant. The Defendant objected to the admissibility of the results of the PBT due to concerns about the reliability of this test. (TT. 31-36). Initially, the Court overruled the defense objection and admitted the results of the PBT as to Count Three, but not Count One. Upon the conclusion of the trial, the Court stated that it was not relying on the results of the PBT in reaching its decision to convict the Defendant of Count Three. (TT. 106). Following the administration of the PBT, the Defendant was arrested for Driving under the Influence of alcohol at 3:30 p.m. (TT. 40). This charge was dismissed later upon a Government motion.

         "Mr. Knight then transported the Defendant to the base police precinct to the Intoxilyzer room (TT. 42-43). Officer Walker administered the Intoxilyzer test to the Defendant. Mr. Knight testified that the Defendant became hostile and loud at the station and began making offensive and inflammatory statements to the police officers. (TT. 44-48).

         "Sergeant Prattis testified that he did not notice the odor of alcohol on the Defendant until someone else brought the odor of alcohol to his attention. (TT. 55-56). Sergeant Prattis testified that he walked close to the Defendant after receiving this information and detected an odor of alcohol. (T. 56). Sergeant Prattis testified that the Defendant was uncooperative during the administration of the field sobriety tests and 'did what she wanted to do.' (TT. 57). He also testified that she refused to submit to any further testing after the walk and turn test. (TT. 57).

         "Master at Arms, Second Class, Solla ('Officer Solla') testified that he detected an [odor] of alcohol coming from the Defendant. (TT. 64) He also testified that she showed 'some signs of slurred speech.' (TT. 64).

         "Officer Walker testified that he attempted to administer two breath alcohol tests; however, the samples were deficient. (TT. 67). He also testified that her eyes were bloodshot, she was ...


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