(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.)
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."
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,
the performance on the video and would be hard pressed to ask for more.
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.
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"
This is important. (Bonus: The 40 second audio clip, which is part of
the public record, is here.)
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.)
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.
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?
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
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.
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.
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