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Wilson v. State1/27/1998
REPORTED
Donald Kent Wilson, appellant, was convicted by a jury in the Circuit Court for St. Mary's County of driving under the influence of alcohol ("DUI") and making an unsafe lane change. Wilson was sentenced as a second offender to one year of incarceration, with work release. For purposes of sentencing, the court merged the unsafe lane changing conviction with the DUI offense. On appeal, appellant presents two issues:
I. Did the trial court err in permitting the arresting officer to testify that, based on the results of a horizontal gaze nystagmus test, he believed that appellant was "intoxicated" and that his blood alcohol content was "probably point one zero or higher"?
II. Was appellant improperly sentenced as a second offender?
We answer the first question in the affirmative. Therefore, we shall reverse the judgment of conviction for the DUI offense only, and remand for further proceedings. In light of our disposition, we need not consider the second issue.
FACTUAL SUMMARY
Early on the morning of May 31, 1997, Trooper Roger Redmond was on routine patrol, traveling westbound on Maryland Route 246, near Lexington Park. At approximately 1:30 a.m., a Ford pick-up truck caught the trooper's attention. The truck, which was traveling westbound on Route 246, was in lane number one, which the trooper also referred to as the left and the fast lane. The truck made an "abrupt jerk to the right," as if it were changing lanes. When the truck was partly in lane number two, also referred to as the slow or right lane, it drifted back into the left lane. After that, the truck made another "erratic" lane change into the right lane, without signaling, nearly striking the curb. In describing the movement of the truck, Trooper Redmond said it was "as if to avoid an animal, for example ... very quick, erratic."
Based on his observations, Trooper Redmond determined to follow the truck in his marked patrol vehicle. Without accelerating, the trooper gained on the truck, which was traveling below the posted speed limit. When Trooper Redmond was within several feet of the truck, it made another erratic lane change into the left lane. In doing so, the truck nearly struck the front of the police car. Trooper Redmond then pulled the truck over to a parking lot and approached the vehicle, which had two occupants.
Appellant was identified as the driver of the truck. Steven Gingery was the passenger in the vehicle. Trooper Redmond advised appellant that he stopped the truck because of the erratic lane change and asked him for his license and registration. The trooper noticed that appellant was "very clumsy, very slow with his movements." Although appellant's driver's license was visible in his wallet, appellant "fumbled" and flipped past it. After twenty to thirty seconds, Trooper Redmond pointed out the license to appellant, who "clumsily" removed it.
The trooper detected a "very strong" odor of alcohol and asked appellant if he had been drinking. Appellant did not respond. As appellant stepped out of the truck, however, Trooper Redmond determined that the odor of alcohol was coming from appellant. The trooper acknowledged that although appellant was "very slow with his movements," he did not "fall over" when he exited his vehicle.
Trooper Redmond wanted appellant to perform three field sobriety tests while on the level, paved parking lot. The first was the horizontal gaze nystagmus ("HGN") test. The police officer explained that it is used to evaluate certain involuntary, jerking optical movements, indicative of one's alcohol content. Over objection, Trooper Redmond was qualified as an expert in admin
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