United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS UNITED STATES DISTRICT JUDGE.
Daniel Leon Abercrombie was arrested for driving under the
influence of alcohol. A breathalyzer said his blood contained
0.08 percent alcohol - the lowest amount that is illegal per
se. But at trial, the government conceded that the
breathalyzer has a margin of error. And according to the
government's witness, Mr. Abercrombie's blood might
have contained just 0.077 percent alcohol - an amount that
would have required the jury to acquit him.
that Mr. Abercrombie was relying on a margin-of-error
defense, the government introduced evidence that supported
the breath test results. The arresting officer testified
that, during three field sobriety tests, Mr. Abercrombie
exhibited various “indicia of intoxication.” In
its rebuttal argument, the government asked the jury to use
those “indicia” to find that the breath test
results did not exaggerate Mr. Abercrombie's true
the margin of error as irrelevant, the magistrate judge
barred an expert from testifying that Mr. Abercrombie has
disabilities and that physical manifestations of his
disabilities can mimic intoxication. That was error (whether
reviewed de novo or for abuse of discretion), and
the court is not convinced the error was harmless beyond a
reasonable doubt. As a result, Mr. Abercrombie's
conviction for driving under the influence is vacated.
case was tried by a magistrate judge. 18 U.S.C. § 3401;
Fed. R. Crim. P. 58. Mr. Abercrombie filed a timely notice of
appeal (Doc. # 45) from the judgment of conviction and
sentence entered by the magistrate judge (Doc. # 43). This
court has appellate jurisdiction. 18 U.S.C. § 3402; Fed.
R. Crim. P. 58(g)(2).
Arrest on Fort Rucker
afternoon in January 2017, Daniel Abercrombie drove to the
gate of Fort Rucker, a military base in Alabama, with his
father in the passenger seat. He stopped at the security
checkpoint and handed the guard a visitor's pass and a
non-driver's identification card. (Doc. # 46, at 33-36.)
According to the guard, Mr. Abercrombie spoke slowly, softly,
and with a strange “rhythm, ” and
“something was off [about him].” But he did not
slur his words, his eyes were not bloodshot, and there were
no problems with his driving. In short, the guard saw no
signs that he was drunk. (Doc. # 46, at 42-44, 46.) Still,
Mr. Abercrombie did not present a valid driver's license,
so he was told to pull into an inspection lane. (Doc. # 46,
at 37, 44.)
Carlos Whitehead, a civilian police officer for the
Department of the Army, went to the inspection lane. He stood
on the passenger side of the car, next to Mr.
Abercrombie's “highly inebriated” father, and
smelled alcohol. (Doc. # 46, at 67-68.) Sergeant Whitehead
ordered Mr. Abercrombie to step out of the car. An officer
searched the car (with consent) and found a beer can on the
back seat and a mostly empty whisky bottle on the front
floorboard. Sergeant Whitehead also smelled alcohol on Mr.
Abercrombie's breath, so he decided to perform three
field sobriety tests. (Doc. # 46, at 68-71.)
first test was the “one-leg stand.” This
“divided attention test” tested Mr.
Abercrombie's “ability to . . . physically perform
a task and mentally perform a task.” (Doc. # 46, at
72.) Sergeant Whitehead first demonstrated the test to Mr.
Abercrombie: “I'm going to point the right foot,
I'm going to point the toe outward, I'm going to
watch the toe, I'm going to count one-thousand one,
one-thousand two, one-thousand three, and so on, until I tell
you to stop.” (Exhibit 1.) When it was his turn, Mr.
Abercrombie did not sway or put his foot down for twenty
seconds, but Sergeant Whitehead concluded that he displayed
two out of four possible “indicia of
intoxication.” One indicia was that he “used his
arms for balance.” That is, his left arm was near his
side, and his right arm was elevated. (Doc. # 46, at 74,
103-05.) The other indicia was that he “failed to count
out loud.” But a video of the test reveals that Mr.
Abercrombie might have used his fingers to count, and
Sergeant Whitehead did not specifically tell him to count out
loud. (Exhibit 1; Doc. # 46, at 74, 103-05.)
second test looked for horizontal gaze nystagmus (involuntary
jerking) in Mr. Abercrombie's eyes. Sergeant Whitehead
observed nystagmus during the test, so he counted six out of
six possible indicia of intoxication. (Doc. # 46, at 79-82.)
But Sergeant Whitehead hurried this “HGN test”:
It was supposed to take 83 to 124 seconds, and he took just
43 seconds to administer it. (Doc. # 46, at 107-16.)
third test, Sergeant Whitehead directed Mr. Abercrombie to
walk nine steps heel-to-toe in a straight line, turn around,
and walk back. Out of eight possible indicia of intoxication
this test could reveal, Sergeant Whitehead determined that
Mr. Abercrombie exhibited six: He could not keep his balance,
“stepped off the line, ” walked twenty-two steps,
made an “incorrect turn, ” “missed [a] heel
to toe, ” and raised his arms. (Doc. # 46, at 86.) Mr.
Abercrombie also started the test before he was told to do
so. But as Sergeant Whitehead later admitted, he did not tell
Mr. Abercrombie to keep his arms by his side. (Doc. # 46, at
concluding that Mr. Abercrombie displayed fourteen out of
eighteen indicia of intoxication (plus “glazed eyes,
” “slurred speech, ” and “somewhat of
a lethargic reaction”), Sergeant Whitehead arrested Mr.
Abercrombie and took him to the police station. (Doc. # 46,
at 88-89.) There, Sergeant Whitehead used a Draeger Alcotest
7100MKIII-C machine to test Mr. Abercrombie's breath for
alcohol. That machine automatically performs two
“calibration checks” whenever an officer
administers a test. The first check uses a lab sample known
to be 0.020 percent alcohol; the machine accepts any reading
between 0.015 and 0.025 percent. The second calibration check
uses a lab sample known to be 0.080 percent alcohol; the
machine accepts any reading between 0.076 and 0.084 percent.
See Ala. Admin. Code r. 370-1-1-.01(5)(a)(2) (2017).
So according to Sergeant Whitehead, a person whose
blood-alcohol content is 0.077 percent might erroneously test
above the legal limit. (Doc. # 46, at 131-32, 135-138.)
Abercrombie's test result was “0.08 g/210L, ”
or 0.08 percent. (Doc. # 58-1, at 2.) Ala. Code §
32-5A-194(a)(5) (“Percent by weight of alcohol in the
blood shall be based upon . . . grams of alcohol per 210
liters of breath.”). He was charged with driving a
vehicle while there was “0.08 percent or more by weight
of alcohol in his . . . blood” in violation of Alabama
Code § 32-5A-191(a)(1). That statute applies on Fort
Rucker under the Assimilative Crimes Act. 18 U.S.C. §
13; see United States v. Tyson, 829 F.Supp. 368, 369
(M.D. Ala. 1993). It is an “illegal per se law”
that applies “without reference to the effect that
alcohol may have on the driver.” Curren v.
State, 620 So.2d 739, 740 (Ala. 1993) (cleaned up).
Abercrombie went to trial in March 2018. A week before trial,
he gave notice that he intended to call Dr. David Ghostley, a
clinical psychologist, as an expert witness. (Doc. # 20.) Dr.
Ghostley had evaluated Mr. Abercrombie, and he reported that
Mr. Abercrombie has several psychological conditions:
Unspecified Pervasive Developmental Disorder, Generalized
Anxiety Disorder, Unspecified Learning Disabilities, Adaptive
Behavior Deficits, and Borderline Intellectual Functioning.
Dr. Ghostley intended to testify about “the physical
manifestations of” those diagnoses. (Doc. # 20, at 1.)
To be more specific, he would have testified that those
disabilities can be confused with intoxication. (Doc. # 46,
government never challenged whether Dr. Ghostley was an
expert under Federal Rule of Evidence 702. But minutes before
trial, the government questioned the relevance and
materiality of his testimony. (Doc. # 46, at 7.) Defense
counsel explained that Mr. Abercrombie was making a
margin-of-error defense and that he anticipated the
government would “elicit testimony as to the indicia of
intoxication to corroborate the breath test results.”
(Doc. # 46, at 7.) Dr. Ghostley's testimony would have
cut against that corroboration, supporting the
margin-of-error defense. The judge then opined that
performance on a field test is relevant only to establish
that an officer had “reasonable suspicion” to
administer a breath test. (Doc. # 46, at 8.) The judge
No. The .08 - as far as the breathalyzer, if they do it
right, it either gives a result or it doesn't. If
it's [a] .08 and that's what the limit is, that's
the limit. It doesn't matter at that point. It's what
it is. But the indicia - the other indicia, they're
offering that for the purposes of whether or not they can get
to the point of giving him the breathalyzer test. So I
don't - Ghostley's testimony on that I don't find
- I find that's going to be more confusing, and it's
not going to be - it's not going to help as far as the
issue at all of whether or not he was intoxicated. It's
not like it's close and it's right on the line. It
doesn't matter whether it's on the line or not. If
that's what it is and you hit that on the breathalyzer,
that's what it is.
(Doc. # 46, at 9.) The judge thus implicitly based his ruling
on Rules 402 and 403 of the Federal Rules of Evidence.
Defense counsel's follow-up request to keep the
government from introducing evidence of the field tests was
denied. (Doc. # 46, at 10.)
counsel's opening statement previewed its margin-of-error
defense and alluded to Mr. Abercrombie's disabilities.
(Doc. # 46, at 30.) But the judge soon told counsel:
“Once that test is given, you cannot argue that the
test . . . is not proof one way or another. If they lay the
foundation, you can't argue, well, we don't think
he's drunk because of other things.” (Doc. # 46, at
54.) During trial, defense counsel advanced the
margin-of-error defense by challenging whether Mr.
Abercrombie failed the field tests. (Doc. # 46, at 95-140.)
But the judge once again asserted that field tests simply
give a reason for more tests and are irrelevant to proving
intoxication. (Doc. # 46, at 132-33.) When defense counsel
again tried to explain his margin-of-error defense, the judge
stated: “Whether there's a margin of error or not,
you knew the thing was calibrated, did you not?” (Doc.
# 46, at 133.)
Abercrombie testified in his own defense. He admitted that he
drank beer and wine earlier that day. (Doc. # 46, at 144.) He
also testified that he took “special ed” classes,
was “nervous” during the field tests, and had
some trouble keeping up with Sergeant Whitehead's
instructions during the ...