by Lindsay Christenson
On February 23, the suppression hearing for Jeanette Metcalfe resumed as Deputy District Attorney Frits Van der Hoek called his first witness to the stand. This witness was Officer Cody Coulter, who had been the arresting officer for this incident. Coulter has been a police officer with the West Sacramento Police Department for about two and one-half years and estimated he has had experience interacting with individuals under the influence of alcohol well over 100 times.
The People moved to make him an expert witness in the case, but the defense attorney, John Campanella, asked to deny this request, after questioning Coulter about the standardized testing used in DUI cases.
In this particular case, the officer stated he was exiting off Highway 50 onto Jefferson Boulevard in West Sacramento when the stoplight before him turned green. As he was about to go, Ms. Metcalfe blew through a red light, passing directly in front of him. The officer claimed, after he saw her drive by, he looked at the light and saw that it was red.
Officer Coulter then pulled Metcalfe over and began speaking with her about her driving violation. She claimed she drove through the light at the same time she had seen him. The officer said, as they were talking, he smelled an alcohol odor coming from within the car. He asked her how much she had had to drink that evening, and she said two drinks, with dinner. The officer went back to his patrol car, ran her license, and then asked her to get out of her car and approach the police vehicle. He stated that, even outside he could still smell the alcohol, the defendant’s eyes were watery, and she was unsteady on her feet.
He then performed field sobriety tests on the defendant: the horizontal gaze nystagmus (HGN) test, the walk-and-turn test, and the one-leg-stand test. The defendant displayed signs such as swaying throughout these tests. The officer said the defendant’s skin looked flushed and so it was then determined that the defendant would take a preliminary alcohol screening (PAS) test. Her results were a blood alcohol concentration (BAC) of .177. The officer then arrested the defendant. The officer claimed he offered Metcalfe a blood or a breath test and she chose a breath test, which was eventually performed at the jail by Coulter.
In his cross-examination of Coulter, the defense questioned many aspects regarding the defendant’s results on her field tests and clarified that the officer did not give any type of advisement before administering the PAS test. He also clarified that the officer did not tell the defendant that she had the option not to take either test, and that doing so would result in a fine or higher penalties if later convicted.
Next, Ms. Metcalfe took the stand as the second witness. She claimed she has a very clear recollection of the night. She stated the the officer told her she needed to take the PAS test because he believed she might be “borderline,” but he never told her she had the option not to take the test. She stated that after being arrested she was taken to Woodland to do the breath test, but the devices were not working properly so she was then told she would have to take a blood test. She claimed she was terrified of needles, and so at that point she was taken to the Yolo County Jail in order to perform a breath test with functioning devices.
Ms. Metcalfe claimed she was never given the choice between a breath and a blood test and was never told she could refuse to take either. She clarified that she had two drinks with dinner, and two drinks at a hotel later. Significant time had passed between these sets of drinks, accounting for why she had said two drinks initially, and then four at a later time, when Officer Coulter asked how much she had to drink that evening.
At this time, the defense filed supplemental briefs that contended the defendant had not given her consent for either the PAS or the breath test. In response to this, the People claimed that the defendant did indeed give her consent for both tests, that the officer explained her options to her and that actually performing the breath test, which she could not have been forced to do, was a manifestation of her consent. The People also stated that they believed her credibility to be questionable, as she stated she had had only four beers that night, yet her blood alcohol content was .177.
The defense responded in saying that acquiescence is not consent – the officer is supposed to give the driver the ultimate decision in taking these tests. It is the duty of the officer to lay out all options and state that the individual can refuse to take the test, although it will result in a warrant and additional sanctions. He claimed there was no valid consent and asked that neither the PAS nor the breath test be admitted as evidence in this case.
Judge Maguire concluded the hearing with his statement that he would have a ruling within a week and scheduled a pretrial conference for March 9 at 10 a.m.
In my experience over the last 20 years of handling DUI cases I have observed that it is commonplace for law enforcement to violate their duties proscribed in CVC 23612. That section clearly sets out for the officer what he/she is to inform the subject prior to requesting blood, breath or urine samples. Law enforcement does this to aid in the prosecution of the case. It is my speculation that law enforcement is neglecting their duty to advise pursuant to CVC 23612 because instead of performing the duties of law enforcement, they are trying to favor the prosecution and do a disservice to the citizens by denying them the advice that we Californians specifically voted for. They are no longer the police officers some of us older citizens might remember from the TV series, “Dragnet”. If you recall, Dragnet wanted the, “Fact’s and only the facts”. Today’s cop come prepared to spin the facts in favor of the prosecution. This is simple another example of how the government has grown too powerful at the expense of the citizens.