State attorney DUI closeout memo.

1. OFFICE OF THE STATE ATTORNEY
ELEVENTH JUDICIAL CIRCUIT
KATHERINE FERNANDEZ RUNDLE
STATE ATTORNEY
INTEROFFICE MEMORANDUM
TO:
Case File
10/15/13
DEFT NAME:
CASE NO:
FROM: Joseph J. Mansfield
Chief of County Court
DATE:
Tracy Wilson Mourning
7655XEE
RE:
Close-Out Memo
On February 8th, 2013, Tracy Wilson Mourning was stopped for speeding and running a
flashing red-light by Officer Richard Closius of the Miami-Dade Police Department. During the traffic
investigation, OfficerClosiusnoted bloodshot eyes and slurred speech, and the odor of alcohol
emanating from her breath. At this point, the Officerproceeded to conduct an investigation into
whether or not he believed that she was under the influence of alcohol or drugs to the extent that her
normal faculties were impaired.
The Officerconducted a series of roadside exercises. First, the Officer conducted HGN
(horizontal gaze nystagmus). On HGN, he noted that she could not smoothly follow a moving object,
and had distinct nystagmus at maximum deviation. Then the Officer conducted the Romberg Balance
exercise. The Defendant was asked to balance and mentally estimate a time span of 30 seconds. On
this exercise, she performed extremely well and showed little signs of impairment. Then she was
asked to perform a walk and turn exercise. On this exercise, the Defendant lost her balance during the
instruction phase, and stopped to regain her balance several times. However, it was noted that the
Defendant was asked to conduct these exercises in the dark of night on the side of a road with regular
traffic. On the finger to nose exercise, she missed the tip of her nose with her finger three of the six
times, showing potential signs of impairment. Then the Defendant was asked to perform a one-legged
stand exercise, during which the Defendant swayed minimally while balancing on one leg. On this
exercise, she showed very little to no signs of impairment. In their totality, the results of the
roadside exercises are, at best, inconclusive, as evidence of impairmentto the extent that normal
faculties were affected.
It is also worth noting that throughout the course of the traffic investigation, the Defendant,
while both lucid and polite, was able to fully engage with the Officer, and conduct meaningful
conversation regarding the DUI investigation. The Officer noted her complete cooperation and
compliance with his requests and commands.
Presented with the burden of proof known as the probable cause standard, the Officer
proceeded with an arrest for DUI and transported the Defendant to the police station. Again, during
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2. the transport, it was noted that she was compliant, cooperative, and while agitated, completely
respectful of the Officer. Ms. Mourning even noted that she understood that “he had a job to do”, and
that she understood that “he was just doing his job.”
Once at the station, the Defendant was offered a sobriety test, also known as an intoxilyzer test.
At this point, the Defendant inquired, quite lucidly, as to whether or not she would still be arrested if
she agreed to take the test and it came back no showing of alcohol in her system. She was advised that
regardless of the result of the intoxilyzer exam, she was going to be arrested for DUI. At this point, the
Defendant refused the test.
Once the case was filed, the State began to evaluate the case as it correlates to an increased
burden of proof, which is beyond and to the exclusion of all reasonable doubt. As part of the
evaluation conducted by the State, it was noted that the intersection whereby the Defendant allegedly
ran a flashing red light is somewhat impeded by trees and side-brush, which would arguably require
the approaching motorist to extend past the stop area. In addition, it was noted by the Officer that the
Defendant failed to maintain her lane by wandering within the lane. Upon investigation by the State, it
was observed that the road on which the Defendant was driving is a winding road, and the opposing
lanes of traffic are somewhat narrow, making it more difficult to maintain the lane.
While acknowledging the stop was based on the Officer’s observations, and concluding the
stop was a valid stop, the State then turned to an examination of the indicia of impairment, as it relates
to proof of driving under the influence. The Defendant performed a variety of roadside exercises,
typically used to craft a picture of impairment that can be used as evidence in a subsequent trial. As to
the performance by the Defendant of these roadsides, the Defendant did extremely well on some, and
evinced potential signs of impairment on some of the others. At the end, the best that one could
argue at trial was that the results of the roadsides were inconclusive, as it relates to evidence of
impairment.
Then we move to the Defendant’s conduct during the course of the investigation. She was
respectful and lucid, and participated in meaningful conversation regarding the potential impact of her
decision to refuse the breath test. While she also disagreed with the Officer’s evaluation of the results
of her roadside exercises, she continuously noted that the Officer was in fact doing his job, and that it
took a special person to do what he does every day. She also had requested that perhaps she could redo the roadside exercises with another Officer, in an attempt to get a different opinion, but her requests
were denied. In total, her demeanor and actions throughout the course of the investigation did not
support the theory that she was impaired to an extent that her normal faculties were affected.
In addition, the State was presented with defense witnesses who were prepared to testify that
they had spent the evening with the Defendant. The sum and substance of the testimony of the defense
witnesses was that the Defendant had consumed wine with dinner some 8-10 hours before she was
stopped. But during the course of the 8 hours after dinner, the Defendant, having been identified as
adesignated driver, only consumed bottled water throughout the events of the night leading up to the
arrest, according to the witnesses. For purposes of trial, this witness testimony would have been
uncontested by any evidence put forth by the State.
At the conclusion of the State’s investigation, the State was forced to balance the evidence of
impairment against the lack of evidence of impairment. This balancing test is applied against the
backdrop of the State’s evidentiary burden at trial, which is proof beyond and to the exclusion of all
reasonable doubt. The strongest evidence the State had was the Defendant’s consciousness of guilt- in
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3. the fact that the Defendant refused to submit to an intoxilyzer examination. But when it was balanced
against the inconclusive results of her roadside exercises, her lucid and polite demeanor at the scene
and throughout the night, the conditions of the road upon which the stop was made, the conditions of
the area upon where roadside exercises were conducted, and the uncontested testimony of the defense
witnesses, it is thebelief of the State that we could not prove the charge of DUI beyond and to the
exclusion of all reasonable doubt.
This analysis in no way casts doubt on the Officer’s finding of proof to warrant probable cause
to make the arrest. But our evidentiary burden of proof beyond a reasonable doubt is substantially
higher, and requires an analysis different from an Officer’s analysis for probable cause. Our ethical
duty is to not proceed on cases that we feel we cannot prove beyond a reasonable doubt. In the matter
at hand, that was our determination.
As such, based upon the foregoing analysis, the charges were reduced to careless driving. On
October 15, 2013, the Defendant pled no contest, and the court adjudicated guilt to one count of
careless driving, and ordered the Defendant to complete DUI School, a victim impact program (the
YouImpact program), and 50 community service hours.
The case was subsequently closed.
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