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Tired driver arrested for DUI after failed police field sobriety evaluations...Suprise?

Sunday, September 19, 2010

BARTOW — A second test confirmed what Polk County Commissioner Randy Wilkinson has been saying since Saturday: He wasn’t drunk or on drugs when Lakeland police charged him with driving under the influence.So prosecutors Thursday drop-ped the DUI charge against him after a urine analysis found no drug impairment.

At a news conference Thursday afternoon, Wilkinson said the dismissal of the charge was “welcomed but expected news.”

“I knew from the very beginning that I was innocent,” he said.

Despite recording a 0.00 on the Breathalyzer test early Saturday, Wilkinson was charged because police say he performed poorly on field sobriety exams.

The results of the investigation and Wilkinson’s urine drug screen were turned over to the State Attorney’s Office on Wednesday.

Wilkinson’s lawyer, John Liguori, said the arrest was the result of “confusion and improper evaluation” of Wilkinson’s behavior.

“It is quite clear that Mr. Wilkinson was not impaired and that the arresting officer’s subjective impressions were wrong,” Liguori said.

He said Wilkinson was improperly arrested, taken to jail and forced to post bail and to spend substantial time ensuring his vindication.

Despite his arrest, Wilkinson Lakeland police on Thursday defended their decision to arrest Wilkinson on the DUI charge. During a Police Department news conference, they played the videotape of Wilkinson’s driving and his field sobriety tests.

Wilkinson has said he had been putting up campaign signs in the rain all night and that he was tired when stopped by police near the First Baptist Church at the Mall about 3 a.m.

It’s clear now, LPD Sgt. Hans Lehman said, that “he was impaired due to the fatigue.”

Police Chief Roger Boatner said Officer Latina Montgomery, who was working security at the Walgreen Drug Store on East Memorial Boulevard, noticed behavior “associated with impairment” when she saw a man in the store. Boatner said Montgomery didn’t know who Wilkinson was until she checked his license plate.

Montgomery phoned LPD, and Officer Dennis Mosser, a specialist in detecting impaired drivers, responded. Lehman said Montgomery spoke briefly with Mosser, but didn’t tell Mosser who Wilkinson was. Wilkinson drove away with his headlights off.

Lehman said Montgomery, if she thought Wilkinson was impaired, had an obligation to prevent Wilkinson from driving. But Montgomery and Wilkinson “criss-crossed” with the officer heading toward the back of the store as Wilkinson left.

TAKING THE TESTS

With Mosser following, Wilkinson weaved a little while driving on Memorial Boulevard, but he wasn’t all over the road, the video showed. When he was pulled over, Wilkinson told Officer Mosser his lights weren’t working properly.

The tape shows a lengthy field sobriety test in which Wilkinson’s most common miscue was not following the directions given by Mosser. On a number of occasions, Wilkinson started performing the sobriety tests before Mosser gave the go-ahead or didn’t follow instructions. On the heel-to-toe walk and turn, Wilkinson began walking twice before being told to do so.

On one of tests, the video shows, Wilkinson was told to close his eyes and count silently to 30 seconds, announcing when he thought the 30 seconds had expired. Wilkinson did so in 28 seconds. When Mosser, appearing surprised, asked Wilkinson how he did it, Wilkinson said he counted: “one-one thousand; two-one thousand . . .”

Boatner said the arrest was made because police build a DUI case “on the totality of the facts,” and when all the facts were taken together they had reason to think Wilkinson was impaired.

Aside from not following orders, Wilkinson passed the horizontal gaze nystagmus, or HGN, test, an eye test conducted with a flashlight. It is considered the most reliable test for alcohol impairment.

“The HGN test is usually the linchpin of a prosecution,” said Liguori, Wilkinson’s lawyer and a veteran of numerous DUI defenses.

Liguori said he was happy with the outcome, but called the case against Wilkinson “a defense attorney’s dream.”

Liguori said if Wilkinson had been tried, he planned to play tapes of Wilkinson’s speeches at County Commission meetings to show that Wilkinson was no different when he was pulled over.

In an interview with police after his arrest, Wilkinson rated his impairment at an 8 on a scale of 0 to 10, a police report said. Lehman said Wilkinson gave himself an 8 because he was tired.

Wilkinson had a sizable wet spot near the crotch of his jeans, which Officer Montgomery thought was urine. Wilkinson explained he was wet because he had been in the rain. Lehman, who interviewed Wilkinson at the police station, said he did not smell urine.

REACTION TO ARREST

While prosecutors dropped the case against Wilkinson, Administrative Assistant State Attorney Chip Thullbery said the legal definition of “impaired” probably doesn’t match the public’s perception.

“The standard of proof in a DUI case is simply that a person’s normal faculties are impaired by alcohol or drugs. The standard is not that the person is intoxicated or knee-walking drunk.”

But with negative results on both the Breathalyzer and urine test, the charge was dropped.

Boatner, however, said there was nothing he would have had his officers do differently. “They did their jobs,” he said.

Wilkinson called his arrest “bizarre.”

“And their (Lakeland police) performance today . . . it sounded like they were totally defending what they’d done,” he said. “It didn’t sound like they had learned anything from the process that had gone on. That’s of concern to me.

“Not so much for me, but for all the others that are following and all the others that have been adversely affected by subjective criteria being utilized,” he said.

Many of Wilkinson’s supporters have said he was set up.

Wilkinson, whose feuds with the Polk County Sheriff’s Office once caused former Sheriff Lawrence W. Crow Jr. to question Wilkinson’s mental health, said he probably gets “tremendous more scrutiny than others in a government situation.”

“I think there was a critical mass of some people, of some power circles, saying so many bad things that the police were predisposed to think poorly of me . . .,” Wilkinson said. “I would say they were predisposed to making that arrest.”

After Wilkinson’s arrest, former County Commissioner Neil Combee described Wilkinson’s speech as sometimes “slurry” and that he “mutters.”

Wilkinson agreed with the description of his speech and that he can sound as if he has marbles in his mouth.

“Should people be penalized for not having the best communication skills in the world?” Wilkinson asked.

“So what, I’m supposed to get arrested for that?” he asked.

THANKS FOR SUPPORT

At his news conference outside the steps of Bartow’s historic courthouse, Wilkinson arrived just as rain began to fall.

“Randy, your pants are wet,” one person joked.

“Oh, no!” Wilkinson replied with a laugh.

Wilkinson thanked his supporters who stood by him during this “dark hour.”

Wilkinson said the DUI allegation might have increased voter turnout by rallying people who knew he was falsely accused, but he didn’t think it won the race.

Wilkinson’s political adversaries had little to say about the state attorney’s decision to not prosecute.

“I’m glad for him,” said Betty Hill, who lost to Wilkinson in the Republican primary. “And I wish him well.”

Robert Connors, who faces Wilkinson in the Nov. 7 general election, said he was not surprised by the state attorney’s conclusion.

“I really didn’t expect otherwise,” Connors said. “When he blew 0.0, I figured that was the end of it.”

Reporters asked Wilkinson whether his decision to drive while fatigued made him a danger on the road.

“I don’t think I was driving impaired,” he said.

Wilkinson said he had the financial means to hire a good lawyer. Local news outlets were interested in scrutinizing the circumstances of his arrest, and he could attempt to “out-press-conference” law enforcement.

“I just wish other people would have that recourse,” he said.

“Why is it always me? Why is it always me?” asked Wilkinson. “I think if you followed some other elected officials around, you could find some things as well.”

Liguori, his lawyer, said Wilkinson was guilty only of “driving while Randy.”

Field Sobriety Evaluations are just stupid people tricks.  Don’t take them!

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No legal advice should be obtained from the web site alone. George C. Creal, Jr., P.C. is Georgia Professional Corporation authorized to practice law in the State of Georgia only and all information contained in this web site is intended for use for DUI/DWIs occurring in the State of Georgia. Individuals with DUI/DWIs from outside the State of Georgia should contact a licensed attorney in the state of occurrence of their DUI. Copyright © 2010 George C. Creal, Jr. P.C.
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