Judge to mull DUI arguments

Wednesday, March 18, 2009
Tribune photo by Karen Hall Marshall County Sheriff's Deputy Tony Nichols takes the stand during Mark Wilkerson's DUI trial.

A Chapel Hill man's DUI case was the subject of a preliminary hearing last Friday, but the session did not end with a school board member's case being bound over to the Grand Jury.

After hearing testimony from the arresting officer and two other lawmen, and arguments from both sides, General Sessions Court Judge Steve Bowden said he would take the case "under advisement," meaning he would deliberate later and not rule from the bench.

Bowden gave defense attorney Walter Bussart a week to present case law to support his argument that the amount of weaving the deputy allegedly saw while following Mark Wilkerson's car was not enough to give him reasonable suspicion that the man was driving under the influence.

If the stop was not justified, Bussart said later, then all the events after the traffic stop were "fruit of the poisoned tree," and therefore inadmissible because the deputy didn't have "reasonable suspicion." Bussart also pointed out that Wilkerson, 43, of Caney Creek Lane, had never been read his Miranda rights, and that his Constitutional right guaranteeing freedom from stop and search had been violated.

Assistant District Attorney Kate Lavery for the prosecution argued that the arresting officer, Marshall County Sheriff's Deputy Tony Nichols, did have the "reasonable suspicion" that's required for a DUI stop, and that the Miranda rights only have to be read to a suspect before "interrogation," not before trying to get them to sign an implied consent form.

Wilkerson, a school board member and former county commissioner, was arrested and charged with driving under the influence and violation of the implied consent law in the early hours of Sunday, Nov. 16.

Lavery took Nichols through an account of the events leading up to the arrest.

Nichols described to Judge Steve Bowden how he got behind a white Cadillac on State Route 50 between the We Skate Center and the On the Run Market convenience store. The deputy testified that he noticed the vehicle crossing both the fog line and the centerline. Nichols then watched the car make a wide left turn onto U.S. 431, Franklin Pike.

"He was having trouble controlling his vehicle," testified Nichols, saying this gave him enough reason to initiate a traffic stop. Nichols put on his blue lights, hoping the car would stop at Oak Grove School, where there is room to safely pull off the road, but, although the car slowed down to around 15 mph, it kept going for about another half mile.

Nichols described administering field sobriety tests, on which he says Wilkerson performed poorly, and subsequently arresting him and taking him to jail.

Bowden also heard testimony from the prosecution's other witnesses: Sheriff's Captain Sam Bragg and Deputy Layne Worsham, who arrived at the scene of the traffic stop a little later.

"As the night shift supervisor, if there's a potential arrest, I try to go to the scene," Bragg said to explain his presence.

"I believe he was impaired to the point where he was legally intoxicated," was Bragg's opinion of Wilkerson's condition.

Worsham said he was on Franklin Pike, driving toward Lewisburg from a call in Chapel Hill, when he heard about the traffic stop. By the time he got there, Wilkerson was in the back of Nichols' patrol car. Worsham characterized his behavior as "belligerent and uncooperative," and said he could "smell the alcohol on his breath."

At this point, Nichols was trying to persuade Wilkerson to allow a blood test to be performed. Worsham quoted Wilkerson as saying "he wouldn't sign a damned thing; he wanted to speak to his attorney."

All three officers said that Wilkerson was persistent in demands that they call Chief Deputy Billy Lamb or Sheriff Les Helton, stating that Lamb or Helton "would tell them what to do," once they were informed who had been stopped.

When asked if he knew Wilkerson previous to that night, Nichols replied, "No, I had never seen him before."

"Mr. Wilkerson made it clear to me who he was - a previous county commissioner and a current school board member - and told me I didn't have any business treating him the way I was," Nichols said.

"Were you treating him bad?" Bussart asked.

"No," Nichols replied.

Marshall County Sheriff's Department patrol cars are not equipped with video cameras, so there is no visual record of the incident and, of course, there are no blood test results.

Bowden's ruling might be issued later this week.