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Schultz v. State8/31/1995
Appellant, William Leroy Schultz Sr., was convicted by a jury in the Circuit Court for Washington County of driving under the influence, speeding, and driving with alcohol in his blood in violation of a court-ordered alcohol restriction on his driver's license. He was sentenced to nine months detention on the driving under the influence conviction and was fined for the other convictions. Appellant raises the following questions on appeal:
I. Did the court err in admitting the officer's testimony about appellant's performance of the horizontal gaze nystagmus test?
II. Did the court improperly influence the jury with its remarks and questions of the officer?
FACTS
Officer Timothy Rossiter stopped appellant on March 1, 1994, about 11:30 p.m. Upon approaching appellant's vehicle and speaking with appellant, Officer Rossiter detected, among other things, the smell of alcohol and proceeded to administer several field sobriety tests: when asked to recite the alphabet, appellant jumbled several letters after Q; when asked to stand on one foot for thirty seconds, he had to use his other foot to maintain his balance within fifteen seconds; and, when asked to walk in a straight line heel to toe, he experiencedsome difficulty doing so. The officer also performed the horizontal gaze nystagmus (HGN) test. As the officer explained at trial:
You measure each eye separately and one point is assessed as the object is passed in front of the eye, if it doesn't move smoothly, that's a point. Once you get to the 45 degree angle, if there's a quiver in the eye, that's a point; if there's not, then there's no point, and when you get to the furthest point, again, if there's a moving or a jumping of the eyeball, that's a point. If there's no movement, then there isn't.
According to the officer, a person can receive a score as high as six on the test, and the higher the score, the more likely it is that the individual is intoxicated. The officer stated that a score of more than four indicates that an individual is intoxicated; a score of four indicates a borderline case. The officer then stated that appellant received a score of five or six on the test. No chemical tests were performed.
Officer Rossiter was the only witness that testified for the State. Appellant testified that he had had nothing to drink that day. On that day, he had flown home from Florida. He testified that he had stopped off at a tavern he owns and operates on his way home for about one-half hour, but had nothing to drink. He indicated that his truck might have exhibited the smell of alcohol because he sometimes uses it to haul empty alcoholic beverage containers. He also indicated that his difficulty in some of the sobriety tests might have been attributable to an injury that he suffered to his knees several years earlier. The injury causes stiffness when sitting for extended periods of time, as was the case on the day in question.
Appellant's nephew and a friend of his also testified on behalf of appellant. They both stated that they had been with him since about 3:00 p.m. that day, as they were flying backfrom Florida together. They stated that they did not observe appellant drink any alcohol. They drove with him from Baltimore-Washington International Airport and accompanied him into the tavern that he owns. They admitted that, once they went into the tavern, they socialized with other patrons and could not be sure that he did not have anything alcoholic to drink at the tavern, but they did not observe him doing so. The waitress who was working at the tavern that night stated that appellant only had a ginger ale to drink while he was there. Appellant's son pic
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