Lady Mefferd’s DUI
by Bruce McEwen, September 1, 2011
Wine, good wine, as everybody knows, does not make you drunk. A 90 point pinot noir is not to be confused with 90 proof rum. Rum goes cheap. Wine goes for big bucks per swig. A shot of Yo Ho Ho tossed back at the Forest Club is not a glass or two or three or four of Chateau Effete swirled and gargled in a sumptuously appointed tasting room with appropriate companions.
Her Ladyship, Deborah Mefferd
Just ask the wine writers (sic) at our best newspapers.
In Anderson Valley, where the Aristocracy of the Vine holds royal sway over much of the labor force up to and including elected officials, there's no such thing as a wine drunk.
So, when a member of the Royal Vine got popped by local deputy Craig Walker who couldn't help but see her vehicle swerve across the double yellow near Philo, Her Ladyship took it personally, and then she took it to court.
I came in second at the Greenwood Pinot Fest! I donate to the Anderson Valley Land Trust! I own property. I am a Nice Person. It was just wine, Your Honor, how could I possibly have been drunk?
The jury was unmoved.
In fact, in Mendocino County the Respectable Person Defense tends to get you convicted.
Anyway, juries are not very sympathetic to people who drink and drive. We all take it on trust that the oncoming vehicle will stay in its own lane. There's so much carnage associated with drunk driving that very few drunks dare to take their non-cases to a jury.
Ms. Deborah Mefferd owns a home and business in Denver and a second home on Yorkville Ranch Road right here in the wine-soaked Anderson Valley. She told the impertinent “bastard” of a CHP officer who arrested her that she does it (drinks and drives) “all the time.”
Ms. Mefferd writes restaurant reviews in Colorado and owns a cooking implement store there. Her son imports classy wine. Drinking and driving, Ms. Mefferd and her Willits lawyer suggested, are inherent in her business.
Ms. M was the designated driver as she was eastbound on Highway 128 near Philo on the evening of the Fourth of July, 2010. She told the officers who arrested her that she'd had a few high-end belts with her friends at dinner before they hit the road with herself behind the wheel as sober enough to drive.
But she'd passed Deputy Craig Walker and neglected to dim her brights.
How many times have you been bright-lighted by an oncoming car and wished, just once, you were a cop? Yeah, me too.
Deputy Walker whipped around and went after the undimmed, pacing the Boonville-bound vehicle at 38mph through Philo where the absolute speed limit is 30mph. When the Colorado oenophile crossed the double yellow line just before the Indian Creek Bridge, Walker hit his red lights and siren.
Deb pulled over right in the middle of the narrow bridge, running her tires up on its curb-high concrete. The deputy could see the silhouetted heads of her passengers bobbing around like so many coconuts.
Deputy Walker had a trainee with him. The deputy told the kid to tell Deb for god's sake to move her car forward to the turnout for Indian Creek County Park.
It was 11:03pm.
Lady Mefferd’s blood alcohol level was about twice the legal limit.
After a glass or two of pinot with dinner? How can that be?
There are only one or two possible answers, as the defense would have it, in these wine-with-dinner DUIs: One, there’s something wrong with the arresting officer; or, two, there’s something wrong with the deputy and his breathalyzer.
This is what you call The Royal Assumption.
Deputy DA Doug Parker called Deputy Walker, who worked as a patrol cop in the East Bay for many years, to the stand and asked him how much experience he had with DUIs. Walker said he’d been the primary officer in approximately 400 DUI stops.
“Did all of these stops result in arrests for DUI?”
“No, not at all.”
When Deputy Walker and his volunteer partner got Lady Mefferd's SUV in a safe place off the Indian Creek Bridge, Walker approached the driver’s door and spoke briefly to Ms. Mefferd.
“I first saw that the bright-lights indicator on the dash was still lit. I then noticed that her eyes were watery, bloodshot, and glassy. Also, there was what I’d describe as a smell of alcohol on her breath.”
“Did you ask if she’d had anything to drink?”
“I did, yes. At first she said she hadn’t; then later she said, Yes she had maybe three glasses of wine.”
“What did you do then?”
“I asked her to get out of the car, and noticed she was a little unsteady on her feet.”
Parker asked, “Is the red, watery eyes something that you would consider as indicative of someone who is impaired?”
“It is, yes.”
“Did you have Ms. Mefferd perform a field sobriety test?”
“A brief one, yes.”
“Can you describe it?”
“Yes. I had the driver follow my pen with her eyes.”
“Why is that?”
“Well, I was looking for a couple of things. The ability to follow the pen smoothly, for one; and I was also looking for bounciness in the pupils.”
“And was there any bounciness in her pupils?”
“What did this indicate?”
“That she was possibly impaired.”
“So what did you do?”
“I called for a CHP officer to join us.”
This is called a “turnover.”
Sheriff’s Deputies turn DUIs and other serious Vehicle Code violators over to CHP Officers while the CHP generally turns Penal Code violators over to the deputies.
“Do you recall what time the CHP Officer got there?”
“A few minutes after midnight.”
“What were the passengers doing during this time?”
“Primarily, they remained seated in the vehicle. But they got out to stretch their legs occasionally, or to go to the bathroom.”
“Did the defendant remain seated in the vehicle the whole time?”
“She did, yes.”
Ms. Mefferd’s defense attorney, Linda McNiel of Willits, arranged her material for the cross-examination of Deputy Walker on a podium in front of the jury box, facing the witness stand. She's a large woman with a mass of gray hair and a sour expression on her otherwise pleasantly-plump face. She always dresses for court appearances in funereal black. Think Grandma Smuckers at graveside services.
“What time did you say you first saw Deborah Mefferd, Deputy Walker?”
“It was at 11:03.”
“And did you put in your report what time the CHP Officer, Officer Heinke, arrived?”
“I did, yes. It was a few minutes after midnight, as I recall, but I’d have to look at my report to tell you the exact time.”
“Then please do so,” Ms. McNiel said.
After finding the page, Walker said, “It was 11 minutes after midnight.”
“Do you recall what Officer Heinke did when he got to the scene?”
“He spoke to me very briefly, then he went to speak to Ms. Mefferd.”
“And at the time of this detention, deputy …uh, Walker, you had only been with the Mendocino County Sheriff’s Office for only about maybe one-and-a-half years, at most, isn’t that true, deputy?”
Walker smiled at the implication that he was too green to know a drunk when he saw one. Walker corrected McNiel on his seniority. “It was more like two years,” he said.
“Do you always have to call a CHP Officer for help?” McNiel asked with the snide implication that Walker, unaided, couldn't handle a routine DUI.
“Yes,” Walker replied simply.
“And why is that?” McNiel gotcha-chuckled.
“Two reasons. First, it allows us to play our relative strengths; secondly, the CHP has more experience with DUIs.”
“Now, Deputy Walker, you stated that Ms. Mefferd still had her bright lights on when you stopped her and approached her in the vehicle?”
“Did you put that in your report?”
“I don’t recall.”
“Would you check?”
Walker flipped through his report and said, “You’re right, I did not.”
“And when she passed you with her brights on, did you flash your lights at her to tell her she had her brights on?”
“You say she didn’t pull over right away, Deputy Walker, but isn’t it sometimes the case that a driver doesn’t know it’s them that’s being stopped?”
“Yes, that’s true. It sometimes happens like that.”
“But not in this case, Deputy Walker — how do you know that? Do you remember what the traffic was like?”
“Yes. We were the only two vehicles on that particular piece of road at the time.”
“And you say she was going 38 in a 30 through Philo. Do you know this because of the reader board, or because you paced her.”
“Both. I paced her and it said 38mph on the reader board.”
“At what point did she straddle the double yellow line?”
“As she was going through the center of town.”
“How many times?”
“And for how long, Deputy Walker? How long did she go over the center line?”
“Just a matter of seconds.”
“Is it easy to see these markings?”
“But there are no street lights, are there, Deputy Walker?”
“So after she stopped on the bridge the other officer went up to tell her to pull forward?”
“You didn’t use the speakers in the patrol car?”
“So she moved up to a turnout?”
“Yes. There’s a turnout there that goes into a county park.”
“Did she leave room for you?”
“Is it flat, Deputy Walker, is the ground, the surface, flat?”
“It was not. There was a little slope to it, not much, but a little.”
“And the things you observed about Ms. Mefferd were consistent with people who are impaired with alcohol?”
“Yes, Deputy Walker, but could these things also be consistent with someone who was not impaired with alcohol?”
“Yes. They could.”
“Were you ever told the reason for the delay, Deputy Walker? Were you told why it took so long for the CHP Officer Heinke to get there?”
“I was, yes. He had encountered another DUI on the way.”
On his way over the hill to the Anderson Valley from Ukiah, Officer Heinke encountered another drunk driver — Mr. Jose Plancarte of Boonville. Heinke had to arrest Plancarte and get his vehicle off the roadway before he could deal with the drunk Walker had reeled in.
CHP Officer John Heinke was called next.
“How many, approximately, how many DUI arrests have you made since you left the academy in ’08, Officer Heinke?”
“And how many people have you suspected of drinking and driving?”
“Well, I’ve administered over 1000 field sobriety tests, and I don’t have them do the tests unless I suspect they’ve been drinking.”
“So not all of your investigations result in arrests?”
“They do not. Not by a long ways. Over 500 of the ones who had been drinking were not intoxicated enough, in my opinion, to arrest.”
Clearly no zealot, Officer Heinke said he got a call for a “turnover,” but en route over the hill from Ukiah he’d stopped a vehicle for crossing the center line and speeding.
“Where was this car stopped?”
“Just as he was entering the town of Boonville.”
A field sobriety test showed the guy had been drinking, and he was put in the back of Heinke’s car and taken to the scene near Philo where Deputy Walker was waiting with Ms. Mefferd and her party.
“How many officers were on duty?”
“Well, I was working graveyard, and everyone else was just going off shift.”
“Did you talk to Ms. Mefferd when you got to the scene?”
“Yes. I asked her to step out of the car.”
“Yes. One of the passengers in the car spoke up and announced his occupation as being a lawyer.”
“Did that mean anything to you?”
“No. I thought it was irrelevant, but I don’t remember my response.”
“Did you talk to Ms. Mefferd about what she’d been doing that night?”
“Yes. I always ask the same questions.”
“Did you ask if she’d been drinking?”
“Yes. She said three glasses of wine.”
“Ask what time she’d started?”
“Yes. She said around dinnertime.”
“Yes. As I was asking these questions, I could smell alcohol emitting from her breath; her eyes were watery and red; and I noticed an unsteady gait as she walked back from the car.”
“Was that consistent with someone impaired with alcohol?”
“So what did you do next?”
“I began administering the field sobriety tests.”
“Did she pass the tests?”
“These are not pass-or-fail tests, but if someone did not want to go to jail they would try to complete the tests successfully.”
“Can you describe these tests?”
“First, I gave her the one Deputy Walker had given her, but I used my finger instead of a pen. It’s the Horizontal Gaze test. I explained to her that she must put her feet together and keep her hands to her side; to keep her head still and follow my finger with her eyes, and her eyes only.”
“Did she appear to understand these instructions?”
“She said she did.”
“Did she pass?”
“It’s not pass-or-fail, it’s more like looking for clues. She displayed some nystagmus, the uncontrolled jerking of the eyes, and a lack of smooth pursuit — her eyes would jerk, her gaze would stop occasionally.”
“Could you see well enough?”
“The atmosphere was clear and cool, and I had the light from my headlights and a flashlight.”
Deb didn’t do well on the next test either. She was supposed to hold her foot out in front of her and count, “one thousand-one, one thousand-two,” et cetera. But she got confused and put her foot down and asked — “who is supposed to count, me or you?”
“You demonstrated the test, first?”
“Yes,” the CHP officer replied.
“Is a performance like that consistent with someone who is impaired with alcohol?”
“It’s a clue, yes. What I’m looking for is balance; if they have to use their hands for balance, for instance, and she did.”
The Rhomburg test was next. Feet together, hands to the side, tilt your head back and wait 30 seconds. Then bring your head down and open your eyes. Ta-da!
“How did she perform?”
“Her time was 35 seconds,” Heinke reported sadly.
“She swayed from side to side and her eyes tremored.”
“Is that consistent with alcohol impairment?”
“Yes, it is.”
Let’s try the Finger Count test! That’s easy! Stand with your feet together and touch each fingertip to your thumb while counting, “one two three four, four three two one.
You can use either hand, it doesn’t matter if you’re left- or right-handed. Do four sets. Ready, set — go!
“How did she do?”
“She didn’t perform satisfactorily. She did five sets and missed numbers on all five.”
Consistent with alcohol impairment?”
Moving right along, how about the “Walk and Turn test?”
Sure, easy as kiss your hand, that one. Feet together, hands to side, start by taking nine heel-to-toe steps; nine forward, nine backwards; turn smartly like a trooper and do it again.
“How’d she do?”
“She did not walk heel to toe, did not turn properly, and she raised her arms.”
“So she failed?”
“Just because you do one thing wrong doesn’t mean you fail. It’s just clues,” Heinke emphasized mildly.
At this point, Sherlock himself would have enough clues to give Deb the breath test, and sure enough, that’s what happened next, although now, having been put through her paces by the side of the road an hour after being pulled over you'd have thought that Deb would have sobered up some.
“It’s a pretty simple machine,” Heinke said.
“Was it in good working order?”
“It worked as well as every other time I’ve used it.”
This was the PAS (Preliminary Alcohol Screening) test, which is voluntary.
“Did you tell her it was not mandatory?”
“I made the statement that I make to everybody and she answered something, I don’t remember exactly what, but something in the positive.”
“At what time was this?”
“It was 12:22am. Then I waited two minutes and let her blow again. It’s part of the training.”
“What was the result of the first test?”
“It was 0.158.”
“And the second?”
“The second was 0.157.”
“What did you do next?”
“I placed Deborah Mefferd in handcuffs and informed her she was under arrest.”
“I received a little verbal abuse. She called me a bastard.”
An hour and a half after being pulled over Deb was still loaded to the gills. Lawyer guy, after identifying himself as a member of that noble profession had apparently lapsed into a pinot-aided silence, and Deb was in back of the CHP car with the Boonville drunk.
On cross, Ms. McNiel nitpicked the tests in endless detail, but Officer Heinke bore up patiently and explained everything as thoroughly as anyone could about how these tests were all scientifically validated and calibrated.
The next two days of the trial involved experts from both sides who came in and argued over whether the machines that measure blood alcohol levels are accurate.
The defense had brought in a hired gun from Sacramento for $200 an hour — “portal to portal” as he explained — so he raked in a cool $1200 just in driving time from Sacramento to Ukiah and back.
In effect, Ms. Mefferd's defense was: I had lots of food, tasted and drank an unknown number of wines, but I was not impaired.
Officer Heinke was called back to the stand to clear up a problem Ms. McNiel had concerning his report.
“Where in your report did you say Ms. Mefferd admitted to drinking and driving before?’
“On the very last page, near the bottom. You see there? It says, ‘She related to me that she drives after drinking a few glasses of wine with dinner all the time, and never had a problem with it before.”
The jury was out for about a day and a half, there being reams of testimony to consider, much of it from more self-alleged experts than I’ve mentioned here.
The jury found Ms. Mefferd guilty on both counts, driving under the influence and driving with more than 0.08 in her system. They also got her on the special allegation that her blood alcohol level was more than 0.15.
Judge Ann Moorman sentenced Deb to 48 hours in jail — 13 of which she’d already served — and five years probation. Her fine was $2491.60 with another $95 in fees. Factor in McNiel's bill and the tab for “expert witnesses,” and Deborah's night out cost her at least ten cases of quality pinot.
Prosecutor Parker also asked for 30 hours of community service and the judge imposed that as well because of Deb's high blood alcohol level.