McCormick v. State

JAMES HOWARD MCCORMICK, III v. STATE OF MARYLAND

No. 1855

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2011

Filed: March 21, 2013

REPORTED

Woodward,

Graeff,

Raker, Irma S.

(Retired, specially assigned),

JJ.

Opinion by Raker, J. James McCormick, appellant, was convicted in the Circuit Court for Anne Arundel County of driving while impaired by alcohol. In this appeal he presents one issue for our review: whether the trial court erred in denying his motion to suppress the blood alcohol test because the police lacked probable cause to arrest him. We shall hold that the trial court did not err and affirm.

I.

Appellant was charged in the District Court of Maryland, sitting in Anne Arundel County, with driving under the influence of alcohol, driving under the influence of alcohol per se, driving while impaired by alcohol, negligent driving, speeding, and driving in violation of a restricted license requirement. Following his prayer for a jury trial, the case was transferred for trial to the Circuit Court for Anne Arundel County.

Appellant filed a pre-trial motion to suppress, and the trial court held a hearing on the motion.¹ On August 26, 2010, as appellant drove along Route 50 in the area of Bay Dale Drive, Officer Davies stopped appellant for driving eighty-eight miles per hour in a fifty-five mile per hour zone. When the officer approached the driver's side of appellant's vehicle, he detected a strong odor of alcohol, noted appellant's bloodshot eyes, and observed that appellant's speech was slurred. Appellant admitted to having consumed two alcoholicbeverages that evening. Officer Davies noted that appellant's license contained a "J" alcohol restriction.²

Officer Davies asked appellant to submit to a field sobriety test. From this point forward, appellant was uncooperative. Before explaining the test to appellant, appellant told Officer Davies that a few weeks ago he was attacked and that, as a result of that attack, he suffered a brain hemorrhage. As Officer Davies attempted to explain the field sobriety test, appellant interrupted Officer Davies repeatedly.

Officer Davies told appellant that if he did not submit to the field sobriety test he would arrest him. Appellant refused the test, and in explaining why he was arresting appellant, Officer Davies stated, "I don't know how much you've had to drink. At that point I got to lock you up. You been drinking, you been driving . . . . You have a[n alcohol] restriction on your license . . . . You're not allowed to drink and drive." At the police station after his arrest, appellant submitted voluntarily to a blood alcohol concentration (BAC) test, which indicated that appellant had a BAC of 0.11.

During the defense's closing argument on the motion to suppress, the following colloquy occurred:

"[DEFENSE COUNSEL:] The Constitutional issue is at the time of arrest can the State demonstrate probable cause tobelieve that Mr. McCormick was driving while impaired by alcohol.

* * *

The third thing the State needs to demonstrate in order to support probable cause is impaired coordination. And that would be the reason for, in the normal case, the heel to toe test or the leg lift test.

[THE COURT:] You say that that is a requirement-

[DEFENSE COUNSEL:] Yes.

[THE COURT:] -for probable cause?

[DEFENSE COUNSEL:] Yes.

[THE COURT:] Well-

[DEFENSE COUNSEL:] Because-

[THE COURT:] -that's a novel argument because if I follow that argument to its conclusion any time someone refuses field tests they should simply be-

[DEFENSE COUNSEL:] No-

[THE COURT:] -cut loose.

[DEFENSE COUNSEL:] Well, I am about to answer that for you.

[THE COURT:] Go ahead.

[DEFENSE COUNSEL:] Because there are other possible observations that don't rely upon field sobriety tests. We've heard plenty of times where officers talk about a driver being confused and unable to produce a license and a registration. We've seen reports before where the officer standing outside the car and is able to see the driver's driver's license in the walletbut the driver thumbs right through it, indicating a lack of concentration. We've heard plenty of times where the driver has trouble exiting the vehicle. He needs to use the car door for support. We've heard plenty of reports where the officer says the driver was swaying or staggering while standing.

There are other observations that could have been made that showed lack of-lack of coordination or lack of ordinary coordination. It doesn't have to be the field sobriety tests. Otherwise the Court would argue-or the Court's position would be that drivers are required to take the field sobriety tests.

[THE COURT:] Which they're not.

[DEFENSE COUNSEL:] And they're not. But the field sobriety tests are not the only measure of impaired coordination. Not only do we have no testimony from Officer Davies about other non-formal observations of impairment. We have a chance to see Mr. McCormick there. We see him exit the vehicle without difficulty. We see him walk from the driver's door to the rear of the car. We see him sit down, stand up, sit down, stand up on the bumper without any impairment at all. We see Mr. McCormick walk over to the grass and throw gum and then walk back and sit back down again without any staggering or swaying, without needing any support. So, simply put, there's just no other-there's no observations of impaired coordination.

And the probable cause goes to the crime. And the crime is as I defined it. And that evidence of impaired coordination is the gravamen of the crime.

If you have a beer after work and drive home and the officer stops you for speeding the odor of alcoholic beverage is going to be strong on your breath because it relates to the time you drank the beer. It's going to be strong because you just had it. But that doesn't mean that you're intoxicated. And before the officer could arrest you he would have to see some impaired coordination."

The Court denied appellant's motion to suppress, explaining as follows:

"[THE COURT:] I wasn't on the road that night at one o'clock. But, you know, citizens were out on the highway. The officer saw someone going [eighty-eight] miles per hour. He certainly had justification stopping that vehicle. And then everything at that point progresses on a step by step basis. The officer did everything-this is a classic DWI stop in my opinion.

I mean if I were to agree with [defense counsel]'s argument that there had to be some demonstrative signs of physical impairment anyone, as I indicated, anyone who avoided a field sobriety test would not give the officer that information. But . . . I think that the Defendant probably did himself a disservice by not cooperating on the side of the road and going through those tests.

If his statement is true, that he only had two drinks, maybe at the conclusion of the field tests this officer, based on his earlier testimony under oath, may have just said, okay, I am going to give you a ticket for speeding, go home and see you later.

But we've got so many things here. We've got a delay in his responses, which counters what [defense counsel] said. I saw, and a picture is worth a thousand words, he didn't follow the instructions on the gum. The officer was very patient with him. It got to the point where they were a little confrontational to one another regarding some of the responses. But it was because the Defendant did not really respond to the requests of the officer. Not the reverse. The officer was very patient.

We have an admission that he was-that he had drank. We have the odor, a strong odor of alcohol. You've got bloodshot eyes. I mean I just can't imagine this officer doing anything but what he did."

Appellant waived a jury trial and elected to proceed on a not guilty, agreed statement of facts on the driving while impaired charge only. The court found appellant guilty of driving while impaired. The court noted appellant's BAC after his arrest coupled withOfficer Davies's observations at the time of arrest as evidence proving beyond a reasonable doubt that appellant's normal condition was impaired. The trial court sentenced appellant to a term of incarceration of one year, all but eight days suspended, followed by two years probation.

II.

Appellant argues before this Court that the trial court erred by denying his motion to suppress the BAC test following what he alleges is an unlawful arrest. More specifically, appellant concedes that Officer Davies had a reasonable basis and articulable facts from which he could request appellant take a field sobriety test, but, because there was no evidence that appellant's normal coordination was impaired, he did not have probable cause to arrest appellant and that the officer had no choice but to let appellant proceed on his way.

The State argues that the trial court denied appellant's motion to suppress properly. The State argues that appellant's bloodshot eyes, slurred speech and confrontational demeanor as well as a strong odor of alcohol emanating from him demonstrate that appellant's normal condition was impaired by alcohol. In the alternative, the State argues that appellant's refusal to submit to the field sobriety test connotes consciousness of guilt from which the trial court could have found probable cause to support appellant's arrest.

III.

The scope of our review of a trial court's ruling on a suppression motion is limited ordinarily to the record made at the suppression hearing. Blasi v. State, 167 Md. App. 483, 494, 893 A.2d 1152, 1158 (2006). We view the evidence and inferences that may be reasonably drawn from the evidence in the light most favorable to the prevailing party on the motion, and extend great deference to the motion court's findings of fact, unless clearly erroneous. State v. Rucker, 374 Md. 199, 207, 821 A.2d 439, 444 (2003); Allen v. State, 197 Md. App. 308, 316, 13 A.3d 801, 805 (2011). We make our own independent constitutional appraisal of the law as it applies to the facts of the case. Alston v. State, 159 Md. App. 253, 262, 858 A.2d...