Jay Ruane
Jay Ruane ()

Todd Romanko claims he was denied a fair trial on charges of driving under the influence because he was not allowed to demonstrate in court how his knee injury prevented him from passing field sobriety tests.

The state Supreme Court, however, ruled that Romanko should’ve proved his alleged disability by other means than a demonstration before a jury. Such a demonstration, the court ruled, could not possibly replicate the sobriety tests as administered by police on the evening in question.

In the majority decision written by Judge Carmen Espinosa, the justices noted that Romanko was free to testify about his knee injury and its impact on his life and activities.

“He also was free to present other evidence regarding the effect that his injury had on his ability to perform the tests,” wrote Espinosa. “He could have presented the testimony of a treating physician, produced documentary evidence, and questioned his father and his friend, both of whom testified on his behalf, regarding the injury. He did not.”

Romanko’s appellate lawyer, Jeanne Zulick, of Ellington, declined comment for this article.

Senior Assistant State’s Attorney Harry Weller was a little more direct about why, in his and the court’s view, it would not be a good thing to allow defendants to demonstrate in court why or how they failed a sobriety test.

“If you were arrested for drunk driving and you were in court and had the opportunity to stand up and show how you were disabled … you’d probably fall down wouldn’t you?” said Weller.

Weller said it is common for police to ask a suspected drunken driver if they have a disability or injury that may prevent them from doing a particular test, especially the walk-and-turn test to check balance.

The controversy happens, Weller said, when police claim a defendant said there was no injury preventing the person from performing the test but then later the defendant says he told police there was. Weller said that happened in this case.

“Then that’s something the fact finder has to sort out,” Weller said.

On the evening of Aug. 14, 2009, Romanko was pulled over by Officer Stanley Murak of the Farmington Police Department who noticed his vehicle swerving.

The officer claimed Romanko smelled of alcohol and was slurring his speech. The officer also noted that an empty 24-ounce can of beer could be seen in the car.

The officer gave Romanko three field sobriety tests: the horizontal gaze nystagmus test, in which an officer shines a small light in the driver’s eye and asks the person to look at the light as it moves; the walk-and-turn test; and the one-leg-stand test.

The officer arrested Romanko after he failed all three tests. Romanko told the officer that he had consumed only one full 12-ounce can of beer that evening, but that he had also taken a dosage of his prescribed anti­anxiety medication.

At trial, Romanko testified that he was not able properly to perform some of the field sobriety tests because, five years before his arrest, his knee was badly injured in a dirt-bike accident. Romanko then sought to demonstrate in court how the injury affected his ability to perform the field sobriety tests.

The trial judge denied the request, reasoning that it would be inappropriate for the defendant to demonstrate what he thought occurred on the night in question. The judge further said that he would give the defendant “every leeway” to describe the events through his testimony.

Romanko was ultimately convicted of operating a motor vehicle while under the influence. He appealed, claiming that the trial court violated his constitutional right to present a defense when it refused to allow the demonstrative evidence.

In 2012, the state Appellate Court upheld the conviction.

“An in-court demonstration would not have reliably re-created how the defendant performed the tests on the night in question,” Judges Robert Beach Jr., Bethany Alvord and Joseph Pellegrino ruled. “The court permitted such evidence through the defendant’s testimony.”

The state Supreme Court then took up the case and came to a similar conclusion.

Justice Richard Palmer penned a separate concurring opinion in the case.

Palmer opined that the trial court should have allowed Romanko’s demonstration but agreed with the overall outcome of the case.

“I nevertheless concur in the judgment because there is no reasonable possibility that the jury would have found the defendant not guilty even if he had been allowed to perform the tests at trial,” wrote Palmer.

Palmer noted that police were looking for Romanko that night because earlier in the evening he had wandered into a stranger’s home looking for a man named “Gerry.”

Police noticed the can of beer in the car and Romanko admitted having been at a bar.

Jay Ruane, who specializes in DUI cases, said it’s not uncommon for defendants to try to show in court why a particular injury caused them to fail a sobriety test.

Ruane, however, said he learned that it does not necessarily help a defendant’s case. Instead he has the police officer administer the test on him. He said oftentimes the police officer misses an instruction, which enables him to score points with the jury.

Further, he said it helps to have a physical therapist, other medical provider, or even a family member or spouse testify as to how someone’s injury prevented them from passing a sobriety test.

Ruane gave the example of a police officer noting in court that a defendant failed the nystagmus eye test as a reason for the DUI charge. Then you bring the man’s wife in to testify that it was because her husband has a glass eye.

“Now you get evidence in there that won’t be able to be cross-examined with the same aggression the prosecutor would go after a defendant,” said Ruane.