Friday, October 12, 2012

Rule campaign speaks out on DWI arrest

Posted By on Fri, Oct 12, 2012 at 5:11 PM

Herb Rule, the Democratic candidate for 2nd District Congress, has decided to speak out on his DWI arrest in Fayetteville.

He has maintained from the beginning that he was not intoxicated that night and now he's said that police procedures that night were flawed. There's an AP report here, but we've also received material from the campaign strongly challenging the arrest. Rule's Republican opponent Tim Griffin hasn't brought up the issue, but he hasn't needed to. Blog comments here and elsewhere by allies have depicted Rule in an unflattering light, in part because he'd been arrested once previously, though not convicted, for DWI.

Rule said he had one drink that night in Fayetteville. His campaign aide, Adam Fogleman, supports Rule's account. "I was there with Herb at dinner. He had one drink before dinner. Dinner began around 7:30. We left around 10." The dinner was at Bordino's. Rule was driving to a hotel with a female friend when police stopped him.

His case has drawn the attention of Partne Daugherty of Jacksonville, whose close examination of police videos and other records turned around a case against Surgeon General Joe Thompson after cops arrested Thompson at his own home after Thompson questioned a private security guard's presence at his curb one night. (CORRECTION: I'd earlier written incorrectly that the security guard cruising the neighborhood was an off-duty cop.)

Daugherty has posted a lengthy video of the arrest of Rule on YouTube. Watch it closely. It does not appear to clearly depict an intoxicated man. Rule was stopped for failing to signal a lane change on a four-lane street, a commonplace event that rarely draws police attention.

Daugherty's commentary on the YouTube page includes discrepancies she found in reviews of police records, including a more extensive report prepared on the arrest subsequent to a brief report provided media and the fact that it includes a statement from one officer that he didn't smell alcohol on Rule.

Fogleman said:

Herb Rule is fighting this baseless charge. The voters of the 2nd District have every reason to be confident in Herb Rule's ability and integrity to serve in Congress.

The video reveals that Mr. Rule was frustrated given the circumstances but it's clear he was arrested without grounds and the charge unjustified. The video shows inconsistent statements made by the arresting police officer in a span of three minutes. When asked by another officer, the arresting officer indicated that he did not smell alcohol. Only after he learned of an earlier charge against Mr. Rule did he approach Mr. Rule and ask him to take a field sobriety test b/c he "smelled alcohol." Additionally, the video shows that the field tests were highly flawed and did not follow the established standards.

The campaign suggests a closer look at events on the film Daugherty made of police video, sharpened and enhanced for viewing. They note, among others:

— It appears all he did was change lanes twice without signaling before being pulled over.

— 323 ... Officer said he crossed over the center line ... but he describes it as the broken white line ... the center line isn't white. It's yellow. Is he referring to the first lane change without a signal?

— 1049 Rule says he's had nothing to drink.

— 1215 Rule acknowledges one lane change without a signal, says he's trying to find his way, says officer have no cause to suspect he's intoxicated.

— 1314 officer says reason for belief to be intoxicated is "inconsistency" in stories between Rule and the lady and the manner in which he was driving.

— 1555 officer says "are you refusing to take MY test"

— 2000 appears to pass eye and walking tests.

— 2210 counts to one-thousand 15 but puts his leg down a couple of times (at 8 and 11), apparently not following the instructions of the officer to keep his leg raised until he is told him to put it down.

— 2216 Puts him under arrest and cuffs him. Officer says he failed the test. Gives no specifics.


— 2600 officer won't tell Rule what he failed in field sobriety test.

— 3000 Rule says he's not a threat and officer responds that Rule hasn't been the most compliant.

— 3135 Passenger asked officers whether Rule needs an attorney. Officers say no. They advise her to go on back to the hotel.

There are manuals related to stops for DWI and field sobriety testing. The Student Manual for the Transportation Department's publication on sobriety testing includes this limitation for "one leg stands"

"The original research indicated that certain individuals over 65 years of age, back, leg or middle ear problems, or people who are overweight by 50 or more pounds had difficulty performing this test. Individuals wearing heels more than 2 inches high should be given the opportunity to remove their shoes."

Rule is 74.

The warning is almost the same for the walk-and-turn test.

"Certain individuals have difficulty with this test when sober, including: people over 65 years of age; people with back, leg or middle-ear problems; and people with high-heeled shoes (over two inches). We recommend only the nystagmus test be used with the first four categories of stopees, while people with high-heeled shoes should be asked to remove them."

Additionally, the walk-and-turn test "requires a designated straight line . . ." The officer in the video asked Mr. Rule to imagine a line instead of designating one.

All this is headed to the court trial, naturally. But Rule wants the public to consider evidence now about the arrest of a 74-year-old man who has witnesses that he had one drink more than three hours before this stop; who can play a video that doesn't demonstrate obvious impairment; and who can show reasonable performance on tests specifically considered ill-advised for people of his age.

Rule DID refuse to take a breath alcohol test. That carries with it not just legal presumptions but problems of appearance. But police and their machines are not infallible. Daugherty has proved that herself in court before.

Can Rule present reasonable doubt on his day in court? I like his chances. He certainly deserves a fairer hearing than he's gotten from sniggering Republicans. Weigh this and continue to snigger if you choose. But you might want to walk that straight line yourself or put yourself in that video first.

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