(Trial recap, continued.)

The trooper says this: The defendant was driving on the shoulder for no apparent reason so he, the trooper, did a U-turn. As he did, the defendant moved the vehicle back into the proper lane of travel before moving back onto the shoulder, signaling, and taking a right hand turn on to CR 3503. The trooper testified that the movements of the defendant seemed intentional and he would not categorize the driving as "dangerous" or "erratic." Over the next one minute the defendant would drive perfectly with once exception. His right tires "went off" the very narrow road by about two inches at which point the defendant "jerked it back." The troopers described it as "almost hitting a telephone poll" but I'm not real sure it was that bad. (The defendant claimed he was reaching for a cell phone.)

Once the overhead lights came on, the defendant stopped the vehicle in an appropriate amount of time and in an appropriate location. The cops eventually find the open container which is "three-quarters full."

He is then put through (my most despised thing on the face of the earth) the Standardized Feel Sobriety Tests. The defendant had "all six clues" during the HGN test (what I call the "eye jiggle" test), but he performed the Walk and Turn test and the One Leg Stand Test incredibly well. In fact, he was able to keep one foot off the ground on the latter test for 40 full seconds (10 seconds longer than required.) He was then asked to say his ABC's which he did perfectly and then performed some kind of goofy "finger dexterity" test which he also did very well on.

The prosecutors almost had to concede: This guy did very, very well on the field sobriety tests.  I, frankly, loved the performance on the video and would be hard pressed to ask for more.

If that were all the facts, I could win that case 9 out of 10 times. They were just good facts - nothing is more important in a DWI case that someone who looks "normal" on the videotape.

But I had a problem. A big problem. My guy, feeling he had nothing to hide, agreed to a breath test at the county jail. Get this: The results, less than one hour after the traffic stop, were .124 and .127 - 1 and 1/2 times the legal limit of .08 That, my friends, was not-a-good. Those results were so high that he should have looked hammered on the tape. But he didn't. Something wasn't right.

So I'm in a difficult position. The State can prove DWI by showing the defendant (1) did not have the normal use of his mental or physical faculties, or (2) that he had a breath alcohol concentration at the time of driving of .08 or more. I had a good chance of beating that first prong, but the second one (the .08 one) had me troubled.

My guy swore to me he wasn't intoxicated and only had two beers. Even though a plea bargain was offered, I can't have my client take it if he isn't willing to admit his guilt. He wasn't willing to do that nor did he want a DWI conviction. So the trial was the only option.

The defense is quite common in cases like this: "Are you going to trust your eyes based upon what you see on the video or are you going to trust a machine." That's not a bad defense but it helps if there is some evidence calling the breath test into question.

I caught a little bit of break a couple of days before trial. I had reviewed all the evidence and thought I had a complete grasp of the facts. I had a copy of the offense report and the DVD of the field sobriety tests and other interaction with the trooper. (The prosecutor is open and honest and hides no facts.) The tape was long (over an hour) but 60% of it was just routine stuff that happened after the arrest including the recorded ride to the jail. Normally boring silence or a radio blasting in the background.

But I decided to listen to the jail ride again just to make sure I didn't miss anything the first time. So, being the tech guy I am, I ripped the audio off of the DVD and put it in my MP3 player. From there, I slapped on a pair of headsets one morning as I was driving to work. Much to my surprise, I hit gold.

The ride to the jail was fairly quiet since my guy wasn't much of a talker. (Note to other defendants: It's not a good idea to call the trooper a sorry son-of-a-bitch on the way to the jail.) Anyway, at one point the trooper asked my client if he drank anything besides beer. He was smelling a "minty smell" kind of like Listerine. My client responded, and the audio isn't that clear, that he "had" some gum after he "left" the club.

This is important. (Bonus: The 40 second audio clip, which is part of the public record, is here.)

DPS has promulgated some rules and regulations regarding the breath test program. One of the important ones is that nothing should go into a defendant's mouth 15 minutes before the test. Everyone agrees that any foreign substance in a defendant's mouth during that 15 minutes would invalidate the test.

Now, based upon the audio, we have the trooper smelling mint and the defendant referencing gum. Did he still have the gum in his mouth? I asked my client that question (without telling him why I was asking) and he told me he specifically remembered the lady at the jail that took his post-breath test book-in photo telling him to spit his gum out. Were you chewing it all the time? No, he told me, he used to dip a lot but now he often puts the gum in between his cheek and gum.

He would tell that same thing to the jury.

(Now I know you skeptics out there are thinking, yeah, right, he had gum in his mouth. I believe this kid. So did the jury.)

The trooper, although hearing about the gum, didn't do a follow-up question of "You don't still have that gum in your mouth, do you?" And although he always stays in the presence of a defendant before the breath test (per DPS rules), he didn't specifically look in the defendant's mouth in this case. Nor could he recall asking him about any foreign substance in his mouth.

In his defense, the rules just tell him to exercise "reasonable care". It's not clear what that means. And as another side note: this is a good, honest and professional trooper who I respect. He could have simply said, "Yeah, I looked in his mouth and didn't see any gum," but that would have been a lie. And he wasn't going to lie. He told the jury he didn't remember, and he needs to be respected for that.

But he conceded that if the defendant had gum in his mouth at the time of the test the the breath test results would be invalid.

The prosecutors also called the DPS Technical Supervisor as a witness who is in charge of the machine. She conceded that if the defendant had gum in his mouth that she would not be able to certify the test (but made the very odd statement that gum would not effect the results of the test.) That doesn't make sense to me - why have the rule against foreign substances if it didn't effect the test? And she really didn't help the State's case when she told the jury that she had "replaced" the machine (at a taxpayer cost of $6,000) the defendant had blown into but she couldn't tell the jury how the old machine was different than the new one. Say what? We threw out a perfectly good machine?

(Then I got some more gold from here. Based upon "generalities", one beer causes a breath alcohol concentration of .02 but the body also eliminates .02 per hour. After a couple of hypotheticals, she opined that an average person in the defendant's situation would have to have consumed 9 beers to get to a .127/.124 breath test! Nine beers! Man, he didn't look like a guy that just cannon balled nine beers before he was videotaped. This was just more proof that the breath test results just "didn't make sense.")

With the testimony over, I asked the judge to instruct the jury that they should disregard the breath test results if the DPS rules and regulations weren't followed. This was a no-brainer instruction.

So as the case was submitted to the jury, I had all I could ask for: A good video tape that showed the defendant to not be intoxicated and a reason (the gum) for the jury to disregard the test results if they found that proper procedures weren't followed. To cut through all the crap: The jury could now justify finding the defendant not guilty if they wanted to find him not guilty.

After two hours of deliberations, the jury sent out a note that they were deadlocked 5-1 in favor of "not guilty." That, my friends, was very good news to me. (They really weren't supposed to tell us how they were leaning but they didn't know that.) The judge sent them to lunch and then had them deliberate further. In about 10 minutes after they resumed deliberations, they had a unanimous "not guilty" verdict.

Trust me, if you saw the video, you would want to find him not guilty as well. But what will happen is that word will get around that "a jury let a guy go who had a breath test of .127!!! Can you believe that happened!!!' But, it's not that simple.

And if you had been there, you wouldn't have argued with the verdict at all.