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Surprise, Arizona - Where You Can Be Arrested For DUI For Swimming

Posted by Craig Penrod | Oct 28, 2013 | 0 Comments

Surprise, Arizona - Where You Can Be Arrested For DUI For Swimming

Surprised?  Don't be....

The Daily Mail reported this summer that a Surprise, Arizona man, retired firefighter, 64 year-old Jessie Thornton was driving home late one night from the local LA Fitness after having been swimming laps in the gym's pool.  According to Mr. Thornton, he had just left the gym at around 11:00 pm, when he was stopped by a police officer for crossing the white line, after which the officer immediately accused him of driving under the influence.

"I can tell you're driving DUI by looking in your eyes," the officer told him.

Mr. Thornton explained that he had just been swimming laps at LA Fitness, citing the chlorine in the pool water as the real reason behind his red eyes.

"I think you're DUI...we're going to do a sobriety test," the officer allegedly told him.

Mr. Thornton tried to explain that he has bad knees and was scheduled for hip surgery only two days after the stop.  The officer apparently ignored Mr. Thornton's condition and forced him to do the test anyway, in violation of NHTSA rules and regulations for administering standardized field sobriety tests.

The officer called two others to the scene to help conduct the test.

Mr. Thornton noted that at one point one of the officers shined a light IN his eyes, and after apologizing, asked the other officers if he was administering the test correctly.

While the answer to that question should have been a resounding NO, apparently in Surprise it's a mumbled "I don't know" and a "Let's keep going."

Officers proceeded to place Mr. Thornton under arrest, actually putting him in handcuffs and sitting the 64 year old with bad hips and knees down on the curb.  He was then taken to the police station and given a breathalyzer test that registered a shocking 0.000 BAC.

Unfazed by the lack of evidence in their crumbling case, police officers continued their investigation by calling in a Drug Recognition Expert.  Perhaps as the first real police officer on the scene, the DRE examined Mr. Thornton and told him "I would never have arrested you."  The expert apparently wrote in his report that "...in my opinion Jessie was never under the influence of drugs or alcohol."

Naturally, by the time he was released, his car had been impounded and the Arizona Motor Vehicle Department had been notified so that they could begin the process for suspension of his driver's license.

He was eventually released into the custody of his wife.

Mr.Thornton was later notified that his license was being suspended and that he would have to take an alcohol class.  His court case was ultimately dismissed, but not before he had to go through the red tape and bureaucracy that accompanies any trip to MVD.Records indicate, according to the original story published, that Mr. Thornton did have surgery scheduled two days after the incident.

Unfortunately, this case is not as uncommon as one would hope.  Let's take a look at it from the defense attorney's perspective.

Mr. Thornton was stopped for crossing the white line.  While driving over lane dividers is a common cue the National Highway Traffic Safety Administration lists as a cue for driving under the influence, a totality of the circumstances approach is required in making a DUI stop.

If that is the only violation and it only happened once, a fact we don't know, as Mr. Thornton wasn't actually CHARGED with unsafe lane change, it was merely used as a pretextual reason for the stop, then the reasonable suspicion in this case is weak at best.

The officer could not have smelled alcohol when he made contact with Mr. Thornton, as he had clearly been swimming and later test results supported the fact that he hadn't been drinking.  I am sure the smell of chlorine was in the air, and so the officer didn't even have that evidence to support his 'request' for performance of the field sobriety test.

The field sobriety test, even by NHTSA standards should not have been administered to Mr. Thornton. His advanced age and infirmities clearly preclude him from performing the test.  The HGN test (discussed in a previous article) could have possibly been given, but it's reasonable to assume that none of the officers responding to the scene were qualified to administer it, let alone interpret its results.

After seeing that Mr. Thornton had failed the test, the officers adopted the attitude that they were 'in for a penny, in for a pound,' and decided to proceed with arresting him.  Was it really necessary to place the 64 year old in handcuffs and make him sit on the ground?  Was he a threat to their safety?  Unlikely, especially considering that there were three of them.

After taking him to the station for the breathalyzer it must have become clear that they had made a mistake....but rather than back down the keystone cops called in a real expert.  Thankfully the Drug Recognition Expert, a DUI officer with advanced training in recognizing the signs and symptoms of alcohol and drug consumption, responded to the station.  If the DRE hadn't shown up, it's entirely possible that Mr. Thornton would have spent the night in jail.

Luckily the DRE stepped up and issued the opinion that Mr. Thornton was NOT under the influence of drugs or alcohol and should not have been placed under arrest.  It took an act of the Prosecutor's Office however, to actually dismiss the false charges and not before Mr. Thornton had to go through the hassle of getting his driver's license straightened out and his car out of impound, an expensive process for someone who hadn't actually done anything wrong.

This case outlines the danger one faces when being stopped by a police officer.  Though Mr. Thornton's case is extreme, things like this happen across the State, every weekend.  Officers untrained in conducting DUI investigations are put on the spot and sometimes feel the pressure to make an arrest. The field sobriety tests are powerful and often misused weapons in the police officer's hands.  The mistakes they are looking for are subject to interpretation and are often skewed to support the supposition that everyone they stop after 10pm at night is guilty of DUI.

This is the main reason that defense attorneys URGE their clients to avoid the voluntary field sobriety tests. Of course, in this case, it seemed that the officer wasn't giving Mr. Thornton the option of refusing, as he clearly never explained that the test was voluntary.  You must remember that they are.

The only test you are required by law to take is the test of your blood, breath or urine AFTER they have placed you under arrest.  In this case, if Mr. Thornton had not taken the test (even though it never should have been given) the only evidence the officer would have had was that he had driven over a lane divider and that his eyes were red.  Even this officer would have to admit that is not enough evidence to support a DUI arrest!

Mr. Thornton was correct in his assertions that he was not DWI...he also contends that he was, instead, DWB...arrested for Driving While Black.  Looking at the facts of this investigation, it's possible he is right.

If you have been arrested for DUI anywhere in Phoenix or Maricopa County, contact the Law Offices of Craig W. Penrod immediately and schedule a free consultation so that they can evaluate your case and help you determine how best to proceed.

In order to fight your case, or assure that your rights are protected, you need experienced legal counsel to represent you.  Craig Penrod only accepts DUI and DUI related cases, focusing his practice narrowly to provide you with the most effective representation in the State.

Call our offices today at (480) 753-5888.

About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.

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