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Judge Ward dismisses DUI case, suppresses evidence

District Court Judge John Ward has issued an “Opinion and Order” in an alleged driving under the influence (DUI) case against Brian Miscoi. The 20- page order was issued last month where Ward ruled that the police lacked probable cause to arrest Miscoi for a DUI after a routine traffic stop in September last year.

David Vargas attorney for Miscoi filed a motion to suppress, and a hearing was held on January 12, 2012.

According to the order, Miscoi was stopped in his vehicle in the early morning hours driving home alone on the main highway leading to Pago Pago. Police Sgt. Tolia Solaita testified during the suppression hearing that he observed Miscoi’s vehicle approaching an estimated speed at between 29-30 MPH in a 20 MPH zone. Both Miscoi and officer Solaita testified that the scene where the stop occurred was dark, says the order.

Miscoi was voluntarily transported to conduct tests at a safer location, the Central Police station, where he was escorted inside and placed in a room. Miscoi was requested to perform field sobriety tests, which would be used as evidence against him in any subsequent prosecution for DUI.

However, Ward ruled that the field sobriety tests could have been conducted or re-conducted at a police station, if Miscoi have been validly arrested for DUI at or reasonably near the traffic stop, however given that Miscoi was not Mirandized (advised of his civil rights under the Miranda ruling) before conducting the field sobriety tests, those results became inadmissible in court.

“When Miscoi was escorted by police into the central police station into a secure room, he was in custody for all practical purposes without probable cause to support the seizure.

“Any and all evidence the government collected after Miscoi was escorted into the central Police station in the early morning hours of September 4, 2011 is held inadmissible by either ASG or Miscoi, in court” according to the order.

The order states that the statutes and case-law of the Territory contemplates that a driver stopped by police will generally be briefly detained, issued a traffic citation or given a warning and be allowed to resume the route to the driver’s destination.

As a result of the order that was issued the government moved to dismiss the DUI charge against Miscoi. Ward through the order says, the court recognizes that any traffic stop involves increased risks to the personal safety of the police officer and may present an increased risk to the driver and vehicle occupants as well.

“Even on main highways some vehicles stops may occurred in places “unsafe” for either or both, moreover village roadways are narrow and without road shoulders, sidewalks or even lighting adequate to conduct nighttime stops.

“Given the historically large numbers of DUI citations issued in the territory it seems reasonable that the Department of Public Safety could have developed standard procedures including surveying, identifying and designating public locations reasonably near known “unsafe” roadways areas, to which police could briefly transport a DUI suspect for SFST purposes”, said Ward.

(SFST refers to field sobriety tests.)

According to the order, the court also appreciates that the field sobriety testing procedures and even the roadside breathalyzer testing devices developed to allow officers to ascertain and test probable cause for a DUI arrest.

“The reasonableness of a brief seizure of a motorist on a public highway and investigatory detention is based upon its short duration and being conducted publicly” he noted.

“These aspects preserve an acceptable balance between the police power of the government and the motorist’s constitutional rights. If those circumstances are altered to the extent that for all practical purposes, the motorist is in police custody with no reasonable expectation of ready release, the government must be able to demonstrate the officer had probable cause for any such seizure.”

He continued, “Although, motivated by legitimate concerns for officers and suspect safety briefly exercised with a minimum individual restraint upon Miscoi and with his consent and cooperation, the rapid transition from a public roadside vehicle stop to a police dominated room at the central station, for all practical purposes, put Miscoi in police custody”, according to the order.

The order goes on to say that the officer lacked at that time probable cause to do so.

“The present practice of routinely transporting DUI suspects to police stations for in-custody field sobriety testing, in the absence of probable cause for arrest or other completing, reasonable circumstances neither significantly increases officer or suspect safety levels nor preserves an individual’s constitutional rights against unreasonable seizure by the government.

Ward said that there are other reasonable alternative approaches routinely employed by police departments throughout the United States, which include portable hand-held devices to develop evidence supporting probable cause as the officer to fulfill their public duty to keep public roadways safe from alcohol or other drug-impaired motorists.

“The compelling public safety issues require the immediate and active consideration of such alternatives approached by the government”, according to the order.

The order states that the District Court is well aware of chronic alcohol and other drug abuse levels within this small island community and this is in addition to handling dozens to hundreds of DUI cases each year, where the court also hears over 600 adult criminal cases misdemeanor and felony involving alcohol.  

“Nearly one half of this court’s juvenile’s caseload of over 300 cases each year also involve alcohol or other drugs. “A significant percentage of DUI cases also present elevated levels of alcohol well over twice the legal limit of .08% Blood Alcohol Contents (BAC) but for the island’s smallness, causing vehicle trips generally to be short duration and a maximum speed limit of 30 m.p.h, the current level of vehicle crashes, injuries and fatalities would be substantially higher than currently prevail.

The court notes that although drivers are arrested for DUI prior to BAC testing, in those cases where the BAC results are less than the legal impairment limit of .08% BAC, the arresting officers may and frequently have then issued the driver traffic citations for the offense prompting the traffic stop, along with a careless driving citation addressing the “impaired” but not legally “under the influence of intoxicating liquor or drugs” motor vehicles operation of the driver.

According to the order, the District Court appreciates the risks daily (and especially nightly) faced by Police officers who are not equipped with firearms but are often are faced with suspects under the influence of alcohol exhibiting belligerence, verbal abuse, physical resistance or violence during the initial police contact.

“A single police officer transporting an unrestrained suspect in that suspect’s vehicle does not strike this court as being much if any, more “safe” than at the scene with other officers.

The vehicle’s mechanical condition is unknown and the suspect has ready access to all items in the vehicle known to him but unknown to the officer, such as weapons, contraband, or even more alcohol that could affect further testing.

The suspect also through impaired accidental movement or by design has ready access to an unlocked door during this transport. “For both officer and citizen safety these recurrent roadside enforcement risks need to be reevaluated and safe standardized procedures adopted and utilized.”

The order also noted the Peleti case at the west-substation some years ago whereby a suspect was beaten by police officers while restrained inside the station and subsequently died.

“That case tragically underscores how an individual such as Miscoi could assess his situation and immediate options to perform or refuse the SFST while inside a closed room at the Central Police Station”, says the order.