Fisherman found not guilty in Waterford DUI case

A jury in New London Superior Court found a 46-year-old Hartford man not guilty of driving under the influence of alcohol or drugs Wednesday in a case in which the defendant's favorable Breathalyzer results were withheld from evidence.  

Angel Pena, who had a prior conviction for driving under the influence and was facing prison time if convicted, cried and hugged his attorney, Jassette A. Henry from the public defenders office, after the jury foreman pronounced Pena "not guilty" of driving under the influence of alcohol or drugs.

Pena was arrested by Department of Energy and Environmental Protection Marine Patrol Officer Joshua Tefft on Nov. 6, 2016. He submitted to a Breathalyzer test, which indicated his blood alcohol content was 0.05 percent, under the 0.08 percent legal limit for driving. The state did not introduce the Breathalyzer result to the six-member jury, but instead attempted to prosecute Pena based on behaviors the DEEP officer said Pena exhibited during a field sobriety test conducted in a parking lot off Scotch Cap Road in Waterford.

By agreement with the state and defense, Judge Barbara Bailey Jongbloed decided part of the case outside the presence of the jury. She found Pena guilty of possession of less than four ounces of marijuana for the stub of a marijuana cigarette found in his minivan and fined him $150. Jongbloed also found Pena guilty of illegal possession of an undersized blackfish and fined him $50.

"Outside (of prison) I can pay the fine," Pena said in the hallway after the jury was dismissed. He said prosecutor Rafael Bustamante had offered to resolve the case with a guilty plea and four-month prison sentence, but he knew he wasn't guilty and decided to go to trial.

The DEEP officer testified he was parked in an overlook at an apartment complex lot adjacent to a popular fishing spot on the Thames River when Pena pulled in to the lot in a green minivan about 2:15 p.m. on that November afternoon. Tefft testified that he was watching the area because blackfish were in season and it was a busy time of year.

Tefft testified that Pena pulled in, exited his car, opened the hatch and grabbed a brown paper bag that he threw in the woods. Tefft said he got out of his patrol vehicle — an unmarked brown Chevrolet Silverado — and watched as Pena gathered his fishing gear and started walking toward the trail that leads to the river. Tefft said he approached Pena and told him to pick up the bag, which contained empty six-ounce cans of Coors Light beer. Tefft said when Pena opened the minivan hatch to put the bag away, he smelled a strong odor of marijuana.

Tefft said Pena admitted he had a marijuana joint in the cup-holder of his car and that he had smoked while driving to the area and drank two beers earlier. Tefft said that based on the empty beer cans and the marijuana, he decided to administer a field sobriety test to Pena. He said he noticed Pena had bloodshot, glassy eyes and smelled of alcohol.

Tefft testified that Pena failed the horizontal gaze nystagmus test because his eyes jerked when Pena was asked to follow the track of a pen with his eyes. He said Pena failed the "walk and turn" test, in which he was asked to walk nine steps heel to toe, turn around and return the same way. He said Pena, who had told him his knee was sore, stopped to steady himself on the way back and failed to walk heel to toe.

Tefft said that Pena swayed from side to side as Tefft was explaining the one-leg stand, which required him to stand and hold one leg six inches off the ground and count for 30 seconds. The officer said Pena missed two numbers while counting, stopped briefly and had "divided attention."

Tefft said he placed Pena under arrest, then searched the minivan and found the joint and a blackfish that was 2.5 inches short of the legal size in a container with about 30 other fish. He said he took Pena, who was cooperative, to Troop E, where Pena submitted to the Breathalyzer.

The prosecutor elicited testimony from Waterford Patrolman Gilbert Maffeo III, a nationally certified drug-recognition expert, who explained the field sobriety testing process and spoke of the "synergistic" effect of marijuana and alcohol on driver impairment. 

"In the overwhelming majority of fatal accidents we investigate, the cocktail is alcohol and marijuana," Maffeo testified.

Testifying for the defense, Ronald Pitz, Pena's boss at the Knox Inc. landscaping company of South Windsor for the past eight years, said that Pena, a crew supervisor, is a hard worker who has a back problem and sometimes looks "wobbly" when he gets up and starts walking.

During closing arguments, Henry picked apart the DEEP officer's administration of the field sobriety test, saying he had not followed all the required steps nor taken into account Pena's physical limitations. She said there was no laboratory evidence that showed Pena was impaired by alcohol or marijuana when he was driving.

"Ladies and gentlemen, this is the United States of America, and in this country we do not convict people on inconsistent and compromised evidence," she said.

About 15 minutes after they began deliberating, the jury sent out a note asking for the Breathalyzer results and a copy of Tefft's report from the incident. The judge told them no, since neither had been placed into evidence.

Both attorneys involved in the case declined to comment on the verdict. The jury foreman also declined to comment.

k.florin@theday.com

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