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12/07/90 JON W. EILERS v. DISTRICT COLUMBIA BUREAU

December 7, 1990

JON W. EILERS, PETITIONER
v.
DISTRICT OF COLUMBIA BUREAU OF MOTOR VEHICLES SERVICES, RESPONDENT



On Petition for Review of a Decision of the District of Columbia Bureau of Motor Vehicle Services

Schwelb and Wagner, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Schwelb

One man's word is no man's word

We should quietly hear from both sides.

GOETHE*

I

THE CASE

In the early morning hours of December 20, 1988, petitioner Jon W. Eilers was driving his two-seater BMW in a northerly direction on Wisconsin Avenue near Blues Alley in the Georgetown area of northwest Washington, D.C. A female companion, Ms. Lori Shelley, was riding in the passenger seat. At about 12:45 a.m., the vehicle was stopped by Officer Loren Braswell of the Metropolitan Police Department. The circumstances which led to the officer's intervention, as well as the nature of the events that followed, are in sharp dispute. The parties do agree, however, that at the Conclusion of the encounter, Mr. Eilers was served with a notice of the proposed suspension of his privilege to operate a motor vehicle in the District of Columbia, allegedly for driving while under the influence of intoxicating liquor and for refusing to submit to two chemical sobriety tests.

On March 20, 1989, the case came before a hearing examiner of the District of Columbia Bureau of Motor Vehicle Services (BMVS). At the Conclusion of an evidentiary hearing, the examiner made summary findings unfavorable to Mr. Eilers on both allegations and ordered a one-year revocation of his operating privileges. He issued a brief written order on the same day. On June 6, 1989, without making any additional findings, the Assistant Director of the BMVS affirmed the hearing examiner's decision.

Having filed a timely petition for review, Mr. Eilers now asks this court to set aside the order of revocation on the grounds that he did not receive a fair hearing. He contends, among other things, that the hearing examiner's summary findings lacked adequate support in the record, largely because the testimony of the police officer on which they were based was so contradictory and improbable that it did not constitute credible or substantial evidence. Mr. Eilers also claims that the hearing examiner applied an incorrect legal standard and that he effectively preJudged important contested issues in the case.

We generally defer to factual determinations by the trier of fact. The hearing examiner was present when the witnesses testified. He had the opportunity, never available to a reviewing court, to observe and evaluate their demeanor. We conclude, however, that in this case the police officer's testimony was so flawed that an unexplained decision to accept it was insufficient, and that the hearing examiner was obliged to provide some persuasive reason for crediting it over the evidence of Mr. Eilers and Ms. Shelley. The hearing examiner also expressly decided a significant factual issue in the case before the defense "had the opportunity to present any evidence, and subsequently apparently determined the merits before hearing argument. This was inconsistent with the most fundamental elements of fair procedure. Accordingly, we vacate the order of revocation and remand the case to the BMVS for further proceedings consistent with this opinion.

II

THE EVIDENCE

The witnesses at the hearing included the arresting officer, the accused driver and the latter's passenger. Officer Braswell's testimony on "direct" examination by the hearing examiner *fn1 differed sharply in some respects from the account which he gave on cross-examination, and both versions were contradicted in large measure by Mr. Eilers and Ms. Shelley.

A. Officer Braswell's Direct Examination.

In response to questions posed by the hearing examiner, Officer Braswell testified that at about 12:45 a.m. on December 20, 1988, he observed Mr. Eilers driving north on Wisconsin Avenue near Blues Alley. He related that the light at that location turned red, but that Mr. Eilers proceeded to drive through it. The officer stopped the car and asked Mr. Eilers to step out. He testified that Mr. Eilers' balance was swaying and unsure and that his eyes were bloodshot and watery. Officer Braswell also stated that he detected a strong odor of alcohol emanating both from the driver's breath and from his vehicle. He gave Mr. Eilers several sobriety "field tests," directing him to walk heel to toe, to turn, and to place his right and left forefingers on his nose. The officer stated that Mr. Eilers failed all of these tests. Accordingly, he was placed under arrest and advised of his rights.

Officer Braswell further testified that he read the entire District of Columbia "implied consent" form to Mr. Eilers. According to the officer, Mr. Eilers had an opportunity to read the form, and he told the officer that he understood it. Officer Braswell testified, however, that Mr. Eilers refused to submit to a chemical test, saying only that he did not "feel like taking the test." The officer produced the implied consent form, which was introduced into evidence. The form was signed by Mr. Eilers. Questions 1, 2, and 3, which deal with whether Mr. Eilers' rights had been read to him and whether he understood them, were answered "Yes." The fourth question, "Do you consent to take two chemical tests?" was answered "No." It is not apparent to a lay observer whether these answers were written by the officer or by Mr. Eilers. To the right of the word "No" appears Mr. Eilers' signature. Immediately to the right of his signature there are the hand-printed words "DID NOT FEEL LIKE IT." These words appear to have been inserted after the signature was written, for there is barely enough room for the signature between the word "No" and the hand-printing.

Officer Braswell related that Mr. Eilers was taken to the Traffic Enforcement Branch at 501 New York Avenue, N.W., and that this was where he declined to consent to the tests. Officer Braswell also testified that he completed a Metropolitan Police Department Form 163A (Prosecution Form, DUI) *fn2 while Mr. Eilers was at that location.

B. Officer Braswell's Cross-Examination.

During his entire direct examination, the officer never mentioned that he could not see the traffic light which Mr. Eilers allegedly ran, or that Mr. Eilers was assaulting Ms. Shelley at the time, or that the implied consent form was signed in a van at the scene, or that Mr. Eilers was never taken to the Traffic Enforcement Branch at all. During his cross-examination, however, Officer Braswell was led into some startling disclosures regarding each of these subjects.

With respect to the curious saga of the red light, the questioning began as follows:

Q And did I understand that you said he went through a red light?

A Yes, he did.

Q How did you know it was red?

A How did I know it was red?

Q Uh-huh.

A Because I could see it perfectly. It was dark.

Q Yes.

A And I could see that the light was red.

(Emphasis added).

A few moments later, however, the following transpired:

Q Isn't it a fact, though, that the signals at Blues Alley face only northbound traffic?

A No.

Q They face -

A I'm sorry. Yes, they do.

(Emphasis added). Following this admission, Officer Braswell abandoned his claim that he could see the traffic light itself, and insisted instead that he could determine that the light was red for cars travelling north because he could see a reflection of it in the window ...


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