Disability claimed in appeal of DWI

Man convicted despite blood test

— How did a 52-year-old man with a 0.00 percent blood-alcohol level end up with a DWI conviction?

A speech impediment, a bad back from a job injury and guilt by association, his attorney contends.

The deputy who arrested Robin Homan, 52, that night in April said his eyes were bloodshot, his speech was slurred, he admitted to drinking beer at some point, had trouble with field-sobriety tests and was driving erratically.

Despite the blood test, and the fact the police did not seek a drug screen, a judge on Aug. 10 convicted Robin Homan of his first offense of driving while intoxicated and of driving left of center, both misdemeanors.

Armed with a privately conducted drug test done after conviction, Homan is appealing. A hearing is set for Sept. 14 in Garland County Circuit Court.

Homan's conviction underscores what some defense attorneys say is a challenging, even unfair, system when it comes to DWI cases.

A judge does not need any scientific tests showing drugs or alcohol in a person's system to convict. And prosecutors, even if they wanted to, can't drop a DWI charge or reduce it, under state law.

"They are the hardest cases there are," said Kirby Riffel, a Pocahontas attorney who for years has traveled the state defending DWI suspects. "I've never lost a murder case or a rape case - I've only tried 6 of each of them - but I've lost plenty of DWI cases that should have been won."

Just as in Homan's case, law enforcement doesn't always do drug screening after traffic stops, and many agencies don't have specially trained officers, called drug-recognition experts, to look for signs of drug use.

So it's up to a judge to determine whether the person was indeed impaired or not, often with little more than the officer's account of how someone behaved and whether they acted impaired.

"My experience has been that there's so much public outrage over DWIs, it seems that sometimes there's a different standard" said John Collins, a former police officer whose law firm focuses on DWI and drug-related defense.

Since district courts in Arkansas do not have jury trials, the only way to have peers instead of a judge determine guilt or innocence on a misdemeanor DWI charge is to appeal to Circuit Court.

David Cannon, a North Little Rock defense attorney, said sometimes a jury is the only way for a fair judgment since some judges are inclined to believe "everything that comes out of a police officer's mouth."

Cannon represents a Little Rock police detective who was convicted of a DWI in Bryant without a breath or blood test. That detective refused to take a blood-alcohol test, and the judge used that against him in convicting him. In Homan's case in Garland County, he agreed to the blood test, according to court and hospital records.

Deputy Jeremy Long took Homan for a blood test after he "was unable to follow through with the" breath test, the arrest report says. The sheriff's office says its breath machine at the jailhouse was broken that night.

So Homan went to the emergency room, where the staff noted he was alert and cooperative.

"I kept telling him I'm not drunk," Homan recalled in an interview. "And he said, 'We'll take you down and draw blood,' and I said, 'Fine, I have nothing in my system.'"

Garland County Sheriff Larry Sanders said he wasn't familiar with the case, but offered: "You might just be hearing the claims by somebody who didn't like what happened."

Homan can sound a little drunk when he talks, due to a speech impediment he said he's had his whole life. And he's in constant pain, he said, from back and neck injuries from an oil-refinery explosion in California, where he worked. So he takes ibuprofen, he said.

Those disabilities appeared in Long's report.

"If I had that kind of defense, I think I'd try to get that in there and not stipulate to the facts," said the Garland County deputy prosecutor Cody Dowden on Homan's case.

By stipulating to the facts, it means there was no testimony in Homan's case. Both sides agreed to submit to the judge the paper record and leave it up to him.

Dowden wouldn't comment on what he thought about a guilty verdict in a case with no drug test and an alcohol test showing no booze in the system.

"I'm not going to speculate as to why the judge made a decision," Dowden said.

But he pointed to evidence of impairment that was noted in the deputy's report.

Homan was weaving in the lane and even crossed the center line, the deputy wrote.

Homan also had trouble with field-sobriety tests, being unable to stand on one leg for more than three seconds and having jerky eye movements during another test.

Plus, when the deputy stopped the car, he said he smelled booze. The three people Homan had agreed to pick up from a restaurant after work had been drinking and ended up with charges, including public intoxication.

Shane Ethridge, a Hot Springs attorney representing Homan, said Homan's company that night was part of the reason he ended up with a DWI arrest. Jason Davis, 37, who was in the back seat, has had his share of trouble with the law before the April 5 traffic stop, records show.

And that night he made threatening statements and resisted arrest, ending up with pepper spray in the face, reports say.

But that's no reason for Homan, who goes by "Bob," to have gone to jail, said Rosemary Davis, the mother of Jason Davis. She acknowledged her son's "colorful past."

"What they've done to Bob is inhumane," said Davis, who is helping pay for Homan's defense.

Cannon said the best weapon in DWI defense is often the recordings from an officer's squad car.

Garland County sheriff's deputies, however, don't have that equipment.

Like in so many criminal cases, Long's account of what happened at the traffic stop conflicts with Homan's telling.

And there's no mention of suspicion of drug use in Long's report.

Ethridge said District Court Judge David Switzer's position was that Homan was somehow impaired.

"Under what theory, we don't know," Ethridge said.

Switzer did not return calls seeking comment.

Arkansas, Pages 9, 11 on 08/31/2009