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Muller v. Noelck11/25/2002
Plaintiff appeals from the district court's ruling granting defendants' motion for summary judgment. AFFIRMED.
Gerda Muller appeals from the district court's ruling granting Deputy Sheriff C.J. Noelck and Franklin County summary judgment on her claims of violation of 42 U.S.C. section 1983, false arrest, intentional infliction of emotional distress, and malicious prosecution. She contends the district court erred in making credibility assessments and deciding, as a matter of law, that Deputy Noelck had discretion to override the results of her breath test. She also contends summary judgment should not have been granted because there are material facts in dispute. We affirm.
I. Background Facts and Proceedings.
On March 4, 2000, Deputy Noelck stopped Muller's vehicle because her license plate lamp was extinguished. Her grandchild was riding in a car seat in the backseat. Deputy Noelck detected the odor of alcoholic beverage emanating from Muller. Muller informed Deputy Noleck that she had consumed three beers that evening.
Muller consented to take field sobriety tests. Deputy Noelck first administered the horizontal gaze nystagmus test, which Noelck claims she failed. Muller also turned her head to follow Deputy Noelck's finger, in violation of his instructions. During the walk and turn test, Muller stopped twice and stepped off the line to keep her balance. Muller attributes her difficulties to her choice of footwear. Finally, during the one-leg stand, Muller lost her balance after approximately five seconds.
After conducting the field sobriety tests, Deputy Noelck administered a preliminary breath test (PBT) to Muller. Muller attempted the PBT, but only blew into the machine for short periods of time. Muller claimed she had an operation to remove a tumor from her pituitary gland, which impeded her ability to give the required breath sample. Deputy Noelck administered a second PBT, but Muller did not blow into the machine for the required ten to fifteen seconds as instructed by Noelck. The machine registered an alcohol concentration of .087.
Deputy Noelck escorted Muller to the Hampton Police Department where he read her the implied consent advisory. Muller consented to give a breath sample. Muller was informed she had to blow into the Intoxilyzer machine hard enough to maintain a green light. She was told she had to do so for twenty seconds. On her first attempt, Muller failed to keep the Intoxilyzer machine properly lit for more than a few seconds. Muller was then informed that failure to do so on a second test would be considered a refusal. On her second attempt, Muller again failed to provide an adequate breath sample as she was instructed. Both tests yielded a result of .08 blood alcohol concentration.
Deputy Noelck informed Muller her failure to properly complete the Intoxilyzer test was being considered a refusal. He stated that from his observations, he believed she was capable of giving an adequate breath sample. He informed her that he was revoking her driver's license, but that she had an opportunity to appeal. He told her she could present evidence of a medical condition that impeded her ability to give an adequate breath sample to the judge.
After an administrative hearing, Muller's license revocation was rescinded. In his May 2000 ruling, the administrative law judge found no evidence was presented to show the printed Intoxilyzer test results were anything other than a satisfactorily completed test. In June 2000, the charges against Muller of operating a motor vehicle while intoxicated and child endangerment were dismissed due to insufficient evidence.
In August 2000, Muller filed
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