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United States v. Abercrombie

United States District Court, M.D. Alabama, Southern Division

May 28, 2019




         Defendant 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.

         Knowing 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 blood-alcohol content.

         Treating 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.


         This 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).


         A. Arrest on Fort Rucker

         One 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.[1] 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.)

         Sergeant 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.)

         The 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.)

         The 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.)

         For the 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 123.)

         After 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.)

         Mr. 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).[2] 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).

         B. Jury Trial

         Mr. 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, at 7-8.)

         The 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 stated:

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.)

         Defense 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.)

         Mr. 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 ...

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