United States District Court, E.D. Virginia, Norfolk Division
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE
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
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:
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.
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.
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
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.
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.
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.
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).
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).
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).
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