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Winegar v. Greenfield Polce Department3/27/2002
y test, because he is required to show reasonable grounds that the driver was impaired, and not merely consuming alcohol, as a condition to conducting such tests. The officer issued two citations to Fillmore, one for squealing his tires and the second for driving under suspension. The officer testified that the driving-while-under-suspension violation requires that the individual with the suspended license be removed from the driver's seat of the vehicle.
While the officer and Fillmore were in the police cruiser, Fillmore's passenger, Floyd Simmons, with whom, up until this time, the officer had had no communication, approached the police cruiser and asked permission to enter. After getting into the cruiser, Simmons asked the officer to release the car to him, as he had a valid driver's license and full insurance. Officer Schraw ran a check on Simmons' driver's license and determined that it was valid. The officer asked Simmons if he had been drinking, to which Simmons answered "no." According to his testimony, Officer Schraw did not smell alcohol on Simmons' breath or person, nor did he notice any unusual behavior.
Officer Schraw issued the two citations to Fillmore and instructed Simmons to drive. Simmons replied that he was taking Fillmore home. The officer further instructed Fillmore not to drive until he had a valid driver's license. Officer Schraw last saw the car being driven by Simmons, with Fillmore as a passenger, at approximately 3:58 p.m.
Simmons recollects the events of that day somewhat differently. Simmons' version of events was presented in both his affidavit and his testimony at Fillmore's criminal trial for vehicular homicide. According to Simmons, on April 5, 1996, he was off work and he and James Fillmore were driving around Greenfield in Simmons' pick-up truck from about 1:00 p.m. During their time in Simmons' truck they bought a six- pack of beer at a drive-through convenient store, and they each drank two to three bottles, smoked marijuana, and took some Valium. Simmons states that they later picked up Fillmore's Mustang and took Simmons' truck to his mother's house, and bought another six-pack of beer while in the Mustang.
Simmons recalls Fillmore squealing his tires and being pulled over by Officer Schraw at approximately 3:50 p.m. Simmons states that at the time they were stopped, they had each consumed at least four or five beers, two Valiums, and smoked marijuana. Simmons claims that when Fillmore was in the police cruiser, he waited in the Mustang for awhile, then went to the police cruiser, got into the back seat and closed the door. He further claims that he began to bang on the plexiglass partition, situated between the back and front seats of the cruiser, demanding to be let out. Simmons states that someone let him out of the cruiser and that he then went between two buildings and urinated.
Upon returning to Fillmore's Mustang, Simmons states that Officer Schraw asked him whether he could drive, to which Simmons replied in the affirmative. No attempt was made to determine Simmons' sobriety even though he claims to have smelled of alcohol and to have been acting unusual. Simmons does not recall being asked for his driver's license or insurance information by Officer Schraw.
Simmons further recollects that after being released by the officer, he and Fillmore drove to Benjamin Shiltz's house, where they consumed more beer and changed positions in the vehicle so that Fillmore was once again driving the Mustang. Also, during the drive to Benjamin Shiltz's house, Simmons and Fillmore consumed more beer. Benjamin Shiltz died in the one-car wreck that occurred at approximately 4:55 p.m. Simmons states that after the w
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