NORWICH – The trial of an Oxford man charged with felony DWI began Tuesday in Chenango County Court. Jurors watched an hour and a half video that featured interaction between police and the suspect on the night of his arrest.
Prosecutors claim 29-year-old Thomas Toomer II was driving drunk May 7 along Mitchell Street in Norwich. They say he was belligerent and uncooperative with police officers as they tried to process him.
The defense claims there is no physical evidence in the case.
Defense Attorney Jeffrey Leibo told the court Toomer didn’t understand his rights at the time of his arrest, which compelled him to insist on having a lawyer present before taking a breath test or answering questions, complicating his ability to cooperate.
District Attorney Joseph McBride called the arresting officer to the stand – Timothy Annesi, a four year veteran of the city police.
In a standing demonstration before the jury, Annesi explained the three main sobriety tests police perform during suspected DWI stops. He described the “walk and turn,” which asks a driver to walk nine steps away, heel to toe, and nine steps back to the officer. Another, the “one leg stand,” he explained asks drivers to stand on one foot while pointing at their raised toe. He also said police use a pen waved before the eyes to detect irregular eye movement, referred to as the horizontal gaze nystagmus (HGN) test. Annesi said officers looked for “smooth pursuit” of an individual’s pupils and for an “uncontrollable bouncing of the eyes,” that can occur when intoxicated suspects attempt to look at an object leaving their peripheral vision.
The officer testified that he was only able to perform the HGN test before Toomer refused to take the other field sobriety tests and that his pupils demonstrated a bounce, indicating he was intoxicated.
Annesi said he attempted to engage other tests with Toomer, but said after the defendant failed to keep his numbers straight or clearly recite the alphabet, Toomer decided not to cooperate further. “His speech was slurred, he smelled of alcohol and his eyes appeared blood shot,” Annesi testified.
Leibo noted that a passenger in the vehicle was intoxicated and implied the odor may have come from him instead of Toomer. He also said police failed to explore other variables that may give a person redness in the eyes and slower speech, such as sleep deprivation.
“Did you ask when the last time he slept was?” he asked Annesi. “No,” the officer responded.
