.14 Breath Test Case Reduced to Careless!

Patrick Thomas Barone

Practice Area:DUI / DWI

Outcome:OWI reducted to careless driving

Description:This client was stopped after she hit a curb while turning from 13 mile onto Groesbeck Highway. While turning she also ran the red light at the intersection and made a very wide right turn - traveling well into the left turn lane for oncoming traffic. She admitted drinking one and later two beers at a party that evening. She was asked to step out of the car for field sobriety tests. For the first field sobriety test she was asked to state the alphabet and did so “as instructed.” She was then asked to count backwards, and missed several numbers, and put the numbers in the wrong order. She attempted to count backwards a second time with the same result. She was then asked to stand on one leg. She was not able to do so. She put her foot down several times, and simply could not stand on one leg for more than a few seconds. The client was then given a roadside (pbt) test with a result of .128. She was arrested and back at the station given another test. This second “evidentiary” (DataMaster) breath test yielded two results of .14 each. We ordered the entire discovery package including a videotape of the booking room where the DataMaster test was administered. We were able to determine that the 15 minute observation rule was not followed. We filed a motion and asked for an evidentiary hearing. We cross-examined the police officer and after the videotape was entered into evidence the judge took the matter “under advisement.” We returned on another date when the Court issued its ruling from the bench which granted our motion. At this point the breath test was suppressed, and could not be used for trial. The week before trial we contacted the prosecutor who indicated that we would proceed to trial unless our client would agree to an impaired driving. We said “no” and began our trial preparation in earnest. On the day of trial the prosecutor offered a reckless driving. We told the prosecutor that we thought that we could win the trial, but would consider a plea to the civil infraction of careless driving. The prosecutor wanted the client to also plead guilty to disorderly person. Through further negotiations we were able to persuade the prosecutor and the judge to agree to accept a “no contest” plea to the disorderly person with the understanding that the matter would be delayed for six months and then dismissed. During this six month period our client would be on non-reporting probation. Client agreed to this and the original charges, including the drunk driving charge, the no proof of insurance and no vehicle registration charges were all dismissed.