PROVO A jury will begin deliberating today which side of a man charged with DUI they find most believable the man who some witnesses described as smelling of alcohol and acting strange, or the man who others testified as law-abiding and completely normal.
Robert J. Kent VanDyke is on trial in 4th District Court for a third-degree felony charge of driving under the influence, and today the jury will hear closing arguments and begin debating.
"I don't think anybody's going to argue against this, (that there) was a consumption of an alcoholic beverage, smell on his breath," defense attorney Shelden Carter told the jury in opening arguments. "But consumption of alcohol (does) not necessarily mean (VanDyke is) guilty of this charge."
VanDyke has a lengthy criminal history related to DUI arrests, including a conviction for automobile homicide based on a fatal 2000 crash in West Valley. However, because of previous court rulings, jurors have only been given details from Sept. 25, 2007, through officers like Spanish Fork police officer Matthew Johnson.
"I noticed his speech was slurred and he was slow to respond to questions," said Johnson, who arrested VanDyke after he pleaded the "Fifth" and refused to perform field sobriety tests.
However, VanDyke's girlfriend, Debbie Whitehead, testified that when she talked with VanDyke in the police car minutes after his arrest he didn't sound any different to her. She said he told her he wasn't sure why he was under arrest.
Travis and Heidi Bird were the ones who made the 911 call to dispatch that afternoon, after VanDyke approached their 6-year-old son and began joking with and teasing him.
"Do you perceive that talking to a young child is somehow an indication of intoxication?" asked defense attorney Shelden Carter.
She said no, but she was wary of a stranger, who smelled like alcohol, interacting with her children.
Travis Bird had been walking behind his wife, and as they caught up with each other, he told her he thought VanDyke was intoxicated, so they called police.
"Based on your observations that day, for two to three minutes, did you come to an opinion about whether he could safely operate his motor vehicle?" prosecutor Craig Johnson asked.
"No," Travis Bird said. "How could I ascertain that by walking by someone? I didn't even smell the alcohol. All I could ascertain that he was impaired to some degree by observing his mannerisms."
So why call police? the prosecutor asked.
"As a concerned citizen with four little kids of my own, absolutely I'm going to make that call," Travis Bird said.
Carter questioned what Heidi Bird wrote in a statement to police.
"Your criticism was that he was overly cautious, that would mean overly safe?" Carter said.
"I am aware that those who are under the influence are often overly cautious," Heidi Bird said. "That's why I thought that was pertinent to write."
Carter also grilled officer Matthew Johnson about why he arrested VanDyke, who had not committed any traffic offenses. VanDyke had pulled to the side of the road on his own, after the officer had followed him through Spanish Fork.
"Without exception, there was nothing to justify you pulling him over in those 9 1/2 blocks?"
"No," Matthew Johnson said, except that VanDyke had weaved three to four times in his own lane of travel.
"That's really not a suggestion that anybody is impaired to drive a motor vehicle?" Carter asked.
"No," Matthew Johnson said, but later clarified it was.
But the officer said he was first concerned because dispatch had told him of the Birds' call.
"It drew some red flags that maybe the operator was impaired (by alcohol) or he was having a medical condition and wasn't safely capable of operating a motor vehicle," he said.The officer also testified that as he approached the car VanDyke appeared flustered and had a hard time responding to questions or providing proper documentation for the car. Plus, he smelled of alcohol.