Prior to pleading guilty to operating a vehicle with a restricted, controlled substance as a second offense, Howard filed a motion to suppress, claiming that the arresting officer lacked probable cause. The court of appeals affirms the denial of Howard’s motion based on the following circumstances: (1) she was driving at 12:53 a.m. without headlights on, (2) she was confused about where she was coming from and where she was going, (3) she appeared nervous, (4) she avoided eye contact, and (5) she failed the HGN field sobriety test (4) . (Opinion, ¶11).
While the time of the stop, the equipment violation, and the confusion and nervousness caused the officer to suspect Howard might be operating under the influence, the failed HGN test appears to be a key factor that converted reasonable suspicion to probable cause. However, Howard attacked that evidence using the arresting officer’s own testimony at the suppression hearing, during which he admitted to not conducting the HGN test properly and that the results were therefore invalid. While there was apparently some ambiguity about what the officer’s body camera captured regarding the testing, Howard’s argument was not based on the video, it was based on the officer’s testimony. (See here and here).
The closest the decision comes to addressing Howard’s argument about the officer’s testimony is a footnote that nonchalantly states, “Howard’s attorney suggested…that [the officer] did not conduct the test properly,” but that “the video is not part of the appellate Record, and therefore this court does not consider it.” (¶10, n.5) The footnote clearly misses Howard’s point: it wasn’t the video that weighed against probable cause; it was the officer’s testimony and admission that he improperly conducted the test and that the results were invalid. Howard’s attack on the HGN results is especially relevant because the purportedly failed HGN test led the officer to administer a PBT, which came back at “zero.” (¶3). Nevertheless, the court “cannot conclude the circuit court erred in denying Howard’s motion to suppress.” (¶11).