
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: WEDNESDAY, April 11, 1990                   TAG: 9004110366
SECTION: VIRGINIA                    PAGE: B-2   EDITION: STATE  
SOURCE: By Associated Press
DATELINE: RICHMOND                                LENGTH: Medium

COURT REVERSES DUI RULING

A three-judge panel of the Virginia Court of Appeals on Tuesday reversed drunken driving-related convictions of a Pulaski County man, ruling the jury should not have heard testimony that the man refused to take a field sobriety test.

Michael J. Barbour, attorney for Michael Larry Farmer, said it was the first time a Virginia court had addressed the question of whether refusal to take a sobriety test could be admitted into evidence.

Barbour said Virginia law does not permit authorities to show that a defendant refused a formal blood or alcohol test.

Field sobriety tests vary from officer to officer and jurisdiction to jurisdiction and could include things like having a driver touch his nose or recite the alphabet. The field tests can be used to determine if a driver will be arrested for driving under the influence and then be asked to take a scientific breath or blood test.

Farmer was arrested early in the morning of Aug. 2, 1986, when Robert Hoback, a Pulaski County deputy sheriff who had known Farmer for 20 years, spotted Farmer driving a car past him in the opposite direction.

"Hoback testified that he detected a strong odor of alcohol when he assisted Farmer out of the vehicle. According to Hoback, Farmer was unsteady on his feet, was weaving, had slurred speech and glassy eyes, used abusive language, and had a strong odor of alcohol on his breath," said the majority opinion, written by Chief Judge Lawrence L. Koontz Jr.

"Over Farmer's objection, Officer Hoback testified that Farmer refused to perform the requested field sobriety tests," wrote Koontz.

Farmer was convicted by the jury of driving under the influence and driving after being declared a habitual offender.

Farmer appealed, arguing that his right against self-incrimination was violated when Hoback was allowed to testify that Farmer had refused the field sobriety test.

Koontz wrote that "the evidence of a refusal to submit to field sobriety tests, when used by the finder of fact as evidence that the accused refused to submit to the test because he believed he might fail, violates the accused['s] right . . . under the constitution of Virginia, not to be compelled . . . to give evidence against himself."

by CNB