Lipstick Application Causes Police to Pull Over Six-Pack Toting Sister - DUI Arrest is Answered by DUI Dismissal
DUI and DWI
Sep 19, 2000
DUI Dismissed; Negotiated Plea to Traffic Ticket
B.M. had just finished an exhausting day at her new job and decided to pick up a six-pack and go visit with her brother. She visited with him and talked about their days and their jobs. She had 3 beers in 5 hours and left at midnight for her home.
As she was driving, she decided to put on some lipstick. This involved pulling down the visor, searching in her purse for the tube of lipstick and applying it. In addition, she was speeding and trying to get home to go to the bathroom. Also there was a slow-moving truck in front of her. She was apparently traveling too close behind this vehicle, according to the arresting officer. B.M. was approaching a curve when her distracting activities and speeding caused her to cross the yellow line. Two officers on duty saw the driving conduct.
When approaching the B.M.â€™s car, the officer asked why she was speeding and also following so closely behind the truck ahead of her vehicle. She explained she was applying lipstick as she was going home. The second officer approached and stated, â€œyouâ€™ve been drinking, get out of the car.â€ He had her perform field sobriety tests, which she passed. Then the officer had her blow into the Alco-sensor (roadside breath analyzer). She registered positive for alcohol. She was immediately put under arrest for DUI. She asked the officer to instead take her home since she lived a short distance from the site. This request was ignored.
The officer was going to allow her husband to pick her up but only allowed 5 minutes for him to arrive before impounding the car. This was too short a time period for him to get dressed and get to the location without speeding or driving recklessly. Because her husband did not arrive within 5 minutes, she was handcuffed and taken to jail.
The road upon which the incident occurred was a rural country road near the Clayton County line, with no street lights. The only lighting was car headlights and the police blue lights. Although B.M. passed each of her field sobriety tests, the officer said nothing to her after each of the tests. Instead, he just arrested her after the roadside breath-screening test.
The case was transferred from a South Fulton area municipal court to Fulton State Court for Jury Trial. A not guilty plea was entered. Mr. Head also filed 14 separate motions, including a Motion for Discharge and Acquittal. The basis for this Motion was the lack of a speedy jury trial in accordance with Georgia statutory law.
Under threat of a lengthy hearing and possible pre-trial appeal, the DUI was dropped. She pleaded guilty to a lesser offense and retained her driving privileges. No jail time was involved in the negotiated plea.
Proving Police Officer's Perjury Leads to Total Dismissal of High BAC DUI Arrest
DUI and DWI
Aug 14, 2000
Officer with Bad Reputation for Lying Gets Caught
A Gwinnett County officer was well-known for lying about important issues in his DUI arrests. The members of Mr. Head's firm and many other Metro Atlanta DUI specialists had shared information about the 22-year veteran's tendency to violate detainees' constitutional rights, and to destroy evidence (usually videotapes that HELPED the case of the person arrested).
The client who hired Mr. Head was first in disbelief that the officer would do such a thing, and was planning to enter a guilty plea to his DUI charge, because both of his breath readings were above a 0.160 result. But, when Mr. Head showed the client the proof that the officer had lied (saying no videotape existed, when there was video at the scene), the quest for uncovering the falsehoods began. This Texan could not tolerate being accused of a crime by a person who was far more culpable of illegal conduct that he had committed.
Mr. Head ultimately proved (to the District Attorney's satisfaction), that the officer not only lied under oath at the Administrative License Suspension hearing, but that he had BROKEN INTO a Gwinnett County records room to alter certain records relating to his assigned vehicle on the night of the client's arrest.
Once the evidence was presented to the assistant prosecutor, Steve Fern, the entire criminal case against Mr. Head's client was dismissed entirely. Furthermore, after the officer was merely suspended without pay for 2 weeks by his department, Mr. Head contacted the District Attorney, Danny Porter, and asked him if that "internal" punishment was adequate for the crimes committed. Mr. Porter apparently did not think so, because he called the officer to his office, with the police officer's attorney in tow, and gave the officer the choice of facing indictment or quitting work as a police officer FOREVER and to turn in his badge, his gun and terminate his POST (police certification authority in GA) within 10 days.
With his attorney's approval, the lying public servant ended his long and tarnished career as a cop. The officer signed documents agreeing to never seek work as a police officer again, and had to leave the State of Georgia permanently.
This case was satisfying because it rid the system of a "bad apple" and also caused all the officer's cases to be dismissed, based on his admitted lack of credibility.
Intelligent Client Defeats Tactics of Cop Who Tried to Mislead Him - DUI Totally Dismissed
DUI and DWI
Jan 25, 2000
DUI Dismissed For Lack of Probable Cause to Arrest
At around 5:30 p.m., after a full day at work, the Defendant, P.M., went to Manuel's Tavern in Midtown Atlanta for a co-workerâ€™s going away party. P.M., who weighed approximately 220 pounds, estimated he had around 3 glasses of beer per hour over about a 5-hour period. At approximately 10:30 p.m., the party split up and P.M. went alone to another bar in Ansley Mall. Here he consumed about 3 beers. While on his way home, on Ponce de Leon Avenue, P.M. was changing lanes to avoid a slower-than-normal car. He was then spotted by a Dekalb County Police Officer. At this point he was only about two-tenths of a mile from his home. The officer pulled him over and immediately asked P.M. how much he had had to drink. P.M. replied â€œNot too much.â€
The officer then attempted, repeatedly, to give P.M. the roadside Alco-sensor (breathalyzer), but P.M. [a highly trained computer consultant] asked a multitude of technical questions regarding the calibration and the legal ramifications of that screening device and about the field sobriety tests which the officer wanted him to take. During the questioning P.M. asked the officer what would happen if he refused the field sobriety examinations, and the officer said â€œnothingâ€, which is not true. As a result of the officerâ€™s response, P.M. instead opted to not take any breath tests, but to request to take an independent blood test. However, the officer did not take â€œnoâ€ for an answer. He continued to coerce P.M. to take the field tests, asking three times for a field breath screening test.
Also during this coercive detention between P.M. and the officer, P.M. asked about the Alco-sensorâ€™s readings and how it worked. The officer said that there was a â€œpositiveâ€ and a â€œnegativeâ€ reading, not numerical; and, that if it were negative it meant he would be below the legal limit. That was false, too. The officer also claimed that the hand-held roadside breathalyzer â€œresultsâ€ could not be used in court, which is a half-truth.
On the way to the Dekalb Medical Center for the blood test, the officer stopped by P.M.â€™s ATM so he could get the funds to pay for the blood test. During the administration of the blood test, P.M. asked the nurse if he could have a second sample, but he was refused. The blood alcohol content of the police officerâ€™s blood sample (analyzed later by the Georgia Bureau of Investigation) was .13%.
From the officerâ€™s agitation of having to answer a whirlwind of questions and taking P.M. to have an independent test, it must have slipped the officerâ€™s mind to read the Miranda Warnings (â€œYou have the right to remain silent, You have the right to an attorney,â€ etc.). In fact, when P.M. asked to make a call, the officer said â€œnoâ€, he could not make a call from jail. Upon reaching the station, P.M. was held for 12 hours before being booked or being permitted to make a call.
In this case, there was no probable cause for making a custodial arrest for DUI (even though he could have received a ticket for a traffic offense). This was made obvious by the officerâ€™s need to coerce P.M. into taking the field sobriety tests and lying to him about the ramifications of a refusal.
At a pre-trial motion hearing, we proved that the officer lacked probable cause to arrest P.M. for DUI. No field sobriety tests supported arrest, nor were there any significant manifestations of P.M. being intoxicated. The video, in fact, made the Defendant look far better than the officer. P.M. merely had the smell of alcohol on his breath, and adults are permitted to drive after drinking, so long as they are not impaired.
Although we tried to subpoena the videotape several times. The officer didnâ€™t bring it to court. The videotape was extremely favorable to P.M. and supported our motion to suppress. We were also granted an order excluding the blood test. After this ruling, P.M.â€™s DUI charge was dismissed entirely, and he entered a guilty plea to speeding. This fine was $250.00.
Macon DUI Trial Results in Total Acquittal for Jet Ski Racer on his way to Dinner before Competition
DUI and DWI
Nov 02, 1999
Not Guilty to DUI; Prosecutor Drops Other Tickets
T.K., a professional jet skier from Florida, was in Macon for a race/competition. The night before the race, he and his friends went to dinner at Applebee's and later to Rockabilly Club, where he consumed two beers. Shortly after leaving the club, T.K. and his friends were pulled over for speeding and weaving into the emergency lane. The officer, who happended to be the DUI Task Force Sergeant in charge of training others, smelled alcohol coming from T.K.'s breath. He then asked T.K. if he would submit to some field sobriety tests. Not realizing that field tests are optional, T.K. agreed to perform these. T.K. was given the horizontal gaze nystagmus, walk and turn, and one leg stand evaluations.
Before asking T.K. to perform these roadside tasks, the officer never asked him a single preliminary question about his physical ability to execute the tests, something that the National Highway Traffic Safety Administration (NHTSA) requires. Moreover, T.K. volunteered information (as captured on the videotape) about "massive scars," pointing to his legs.But, the officer merely cut him off and said "Do the best you can."
After T.K. finished the field sobriety checks, the officer placed him under arrest and took him to the jail. A state-administered breath test, one hour after the arrest showed that T.K. had a blood alcohol content of 0.089. The legal limit at the time of this arrest was 0.10 grams. At trial, the arresting officer testified that he failed to comply with his NHTSA training by not determining if T.K. was a good candidate for testing. In fact, T.K. voluntarily told the officer about the two surgeries he had undergone on his left leg due to catastrophic injuries. Despite this, the officer told him to "use his good leg" and "do the best he could."
T.K. performed well on the one leg stand test, standing on his "good" leg. Facing a hypercritical "rating" by the officer, T.K. scored four out of 8 clues on the walk and turn test, although T.K. did very well, from what anyone watching the video would conclude. The only test he did not perform well on was the horizontal gaze nystagmus.
Because Mr. Head asks all potential clients about his or her medical history, he learned that T.K. had a long history of serious sports injuries. Mr. Head sent T.K. to Dr. Joseph Citron, M.D., for evaluation of how the prior injuries affected T.K.'s ability to perform the HGN test. Dr. Citron was stunned by the 31-year old man's extent of prior injury to the spinal cord and head.
At trial, Dr. Citron testified that T.K. suffered from permanent nystagmus as a result of prior injuries to his head and spine. One of T.K.'s friends also testified regarding T.K.'s prior racing injuries, being flown to hospitals in emergency helicopters and his compromised physical condition from numerous accidents during jet ski competitions.
After hearing all of the evidence, the jury deliberated for only 19 minutes before returning a verdict of not guilty. The prosecutor had dropped all the other charges in an effort to get this jury to convict of the only remaining count, which was DUI.
Fighting Third DUI Offense Results in Acquittal of DUI despite arrest by State Trooper
DUI and DWI
Oct 26, 1999
Not Guilty at Bench Trial
Defendant, charged with-DUI and improper lane usage, was facing a possible third DUI in five years, with substantial jail time to boot. He had been arguing with his girlfriend inside the pickup truck and made a looping exit off I-285 Westbound onto Buford Highway, struck the opposite curb (after crossing eight lanes of Buford Highway) and then proceeded back up the opposite eastbound I-285 ramp when he was pulled over by a Doraville officer. The officer had witnessed this entire driving excursion.
The officer found two cases of beer in the truck, plus obtained an admission from Defendant that they had just left a nightclub. Defendant was given an Alco-sensor test and the HGN test, but no other field evaluations due to the dangerous highway position at the gore of I-285 eastbound and the Buford Highway ramp.
Just prior to a bench trial (an option selected because the non-jury court, if we sought transfer to State Court of the case for a jury trial), pre-trial motions resulted in exclusion of evidence of refusal of the state-administered test, due to defective implied consent advisements. Defendant also sought to exclude the Alco-sensor, due to lack of a proper foundation (Turrentine v. State, 176 Ga. App. 145). This motion was granted.
As evidence proceeded by the State, a defense challenge was made to the officer's training on how to give an HGN test. Upon completion of a short cross-examination about his FST training, the State went forward with its evidence, which was, basically, the smell of alcohol, errant driving, beer in the back seat and Defendant admitting that he had come from a nightclub. The officer never explained what HGN proved, only saying that he gave the test. The trial lasted less than 25 minutes.
Defendant was acquitted of DUI by the judge.
Man on Riding Lawn Mower Arrested for DUI in His Own Front Yard by Peachtree City Police Officer - Mr. Head gets DUI Dropped
DUI and DWI
Aug 19, 1999
DUI Charge Dropped and Negotiated Plea Entered
The Defendant, W.M., had three glasses of wine at home in Peachtree City one evening. He had the wine with dinner and later completed some paperwork related to his job. The next morning, at approximately 4:30 a.m., W.M. awoke and began doing paperwork and cleaning the house. Noticing the wine that was left over from the previous night, W.M. poured the remainder into a glass and discarded the bottle. W.M. finished that glass of wine by 9:15 A.M.
At 9:30 A.M., W.M. ran some errands, including a stop at the grocery store. Then, at noon, W.M. and his wife had lunch and watched the start of a college football game. Over this period of time, they consumed several glasses of wine at their home.
Later that evening, around 4:30 P.M., W.M. decided to mow his lawn. He had a riding lawn mower since his lawn was over an acre in size. W.M. was cutting the grass along a muddy/sloping area of the lawn (it had rained earlier that week). The lawn mower began to lose traction and began to slide down the hill, eventually causing the mower to tip over, at which time W.M. fell off the mower. The mower rolled over with the metal engine housing striking W.M. in the head. Fortunately, the blade stopped due to a safety mechanism built in to the mower. W.M. was knocked unconscious. When W.M. woke up, he was being attended to by some passing motorists. The blow to his head had caused short-term memory loss and confusion.
When emergency personnel were called, so were the Peachtree City police. A sergeant on the DUI task force arrived and began questioning W.M. about the accident and asking â€œhow much alcoholâ€ had W.M. consumed. W.M. was, at first, incredulous that he was being investigated for DUI while he was being given medical attention. He was even more shocked that the police cared what we going on in his front yard, when he nee\ver traveled on a public street or sidewalk. In a matter of less than 4 minutes, W.M. was arrested and taken to jail for suspicion of DUI.
Mr Head was hired to fight the case. He subpoenaed the sergeantâ€™s videotape and it revealed a very confused and incoherent W.M. who was speaking in a jumbled, rambling way. It also showed the officer laughing and ridiculing W.M. about his alleged â€œintoxicationâ€. The officer seemed to ignore W.M.s head injury or its ramifications.
With this bizarre set of facts and being somewhat disturbed by the officerâ€™s conduct, W.M. refused all tests and remained silent throughout the balance of the arrest process.
The next day, after experiencing severe pain, W.M. went to see a doctor. His doctor diagnosed him with a mild concussion and muscle and tendon damage to his neck and shoulder.
In preparing the defense for the case, the goal was to get the DUI dismissed on the grounds that the officer had no probable cause to arrest W.M. for DUI. The officer never even saw him on the lawn mower. However, in Georgia, a person can be arrested for DUI ANYWHERE in the State. Plus, based on adverse appellate decisions that have upheld highly questionable DUI convictions based on flimsy proof of impairment, a circumstantial evidence case could be made by the State, if the case went to trial.
However, raising these issues was successful in convincing the prosecutor to drop the DUI charge prior to trial. The DUI was dropped entirely. Instead, W.M. plead guilty to â€œreckless conductâ€ (not a motor vehicle offense) and paid a $500.00 fine ($400.00 plus surcharges). No trial was required as a result of this negotiated plea. No "points" were put on the driving record of W.M.
By resorting to the videotape footage, we were able to show the officerâ€™s boorish behavior. In addition to his â€œattitudeâ€ toward W.M., he improperly read the implied consent warning which was prerequisite to being able to le
Roadblock Set Up By City of Doraville Ruled to Be Illegal - Mr. Head Handles Client's Win at Trial Court and then Wins Appeal
DUI and DWI
Jul 12, 1999
Roadblock in Doraville Ruled Illegal
Mr. Head filed a challenge to a Roadblock established late at night along Peachtree Industrial Boulevard. The Motion to Suppress basically said that the roadblock was not established according to existing constitutional standards. Mr. Head received a favorable ruling and the Prosecutor appealed the ruling. Mr. Head handled the appeal, and the Georgia Court of Appeals upheld the lower court's determination that the warrantless stop of J.M. was illegal. The case is cited at 237 Ga.App. 699, 516 S.E.2d 548 (1999).
High Breath Test, Single Car Crash into Interstate Retaining Wall & Open Containers - NOT GUILTY
DUI and DWI
Jul 08, 1999
Not Guilty of All Charges
T.M., a traveling sales representative licensed in another jurisdiction, had a single car collision shortly before midnight as he traveled I-20 eastbound from Alabama to Atlanta. He hit an I-20 guard rail on his eastbound trip to Atlanta from Alabama. He pulled off at the next exit, Fulton Industrial Boulevard, to assess the damage. It was severe, and the front bumper was dragging. As the car limped into an industrial park occupied by three adult nude strip clubs, a private security guard stationed in the parking lot heard the dragging front bumper, and came over to his car to see what was going on.
Mr. Head's client told him that no other car was involved, and that the police need not be called. The client unsuccessfully tried to go inside the nearest strip club, for a beer. The guard said "No way, you are drunk already."
As soon as the next county cop passes by, the guard hails him down, and a DUI investigation ensues. T.M. later took the State's breath alcohol test, which revealed 0.154/0.162 BAC. Trooper First Class Magwood of the Georgia State Patrol handled the arrest after he was called to scene by the Fulton County deputy. The Fulton County officer could not ascertain whether the wreck with the Interstate barrier happened in Cobb County (meaning he may not have had jurisdiction over that violation) or Fulton County. A video of the field sobriety tests showed a generally poor roadside performance. T.M. admitted having 4 beers "earlier", with no other elaboration. The video showed 7 beers, cold and wet, being taken from the wrecked vehicle, plus other empty beer cans. Some of them were spewing or dripping their contents as they were taken out, since they were damaged and exploded during the collision.
While seated in the rear of the patrol car, T.M. gave a spontaneous "mea culpa" statement to Magwood, who left the video running all the way to jail. This statement would typically have ended our chances of winning, especially if a jury heard these words.
A speedy trial demand was filed, which put the case on a quick calendar. Mr. Head then withdrew the "jury demand" and opted for a bench trial with Judge Myra Dixon, reserving all motion issues for the trial portion of the case. Jeopardy attached, and trial began.
The state had 4 witnesses (the guard plus 3 police officers). Mr. Head called no witnesses for the defense.
Our key issues were the "timing" of implied consent. Also, no one proved an exigent circumstance to justify the long delay in reading these rights to T.M. Furthermore, the Fulton deputy had put T.M. in the rear of his patrol car for over an hour, uncuffed. We successfully argued "custody", and no Miranda rights. All field tests and the video of same were excluded from evidence by Judge Dixon, based on our legal arguments and citation of key appellate cases.
Judge Dixon found T.M. not guilty on both DUI counts. The breath test results from the Intoxilyzer 5000 were 0.154/0.162, but Mr. Head successfully argued that the results had to be suppressed. The "no proof of insurance" charge was nol prossed by Assistant Solicitor Oliver Murray prior to trial, since Mr. Head's client was not licensed in Georgia, and had no obligation to prove insurance coverage, as mandated for Georgia licensees.
20-Year Old Female Facing 45 Years in Prison Hires Mr. Head for Serious Injury By Vehicle (3 Counts) - Acquitted of All Felonies
Jun 25, 1999
Not Guilty on All Felony & DUI Charges
After a serious accident in Savannah that injured two passengers in her vehicle and another female (passenger) in another vehicle, A.H. was charged with DUI-alcohol, DUI-drugs (marijuana) and three felony counts of serious injury by vehicle for allegedly injuring these three people as a result of being impaired by alcohol, or drugs or BOTH. The parents of the Savannah College of Art & Design student first consulted with several Savannah-area attorneys. After weeks of investigating attorneys to represent her, the best prosecution "offer" of a non-trial resolution was a 45 year sentence (three 15 year terms, consecutive) with the first 10 years in state prison. The parents of the student (who resided in Stone Mountain, GA), were told by one of the Savannah attorneys that if she wanted to challenge the case at trial, he would recommend Bubba Head from Atlanta.
The parents hired Mr. Head and he filed 8 different motions challenging the evidence against A.H. Mr. Head knew that if could defeat the DUI charges, the serious injury felonies were not maintainable. The first thing Mr. Head did was to obtain a meeting with the assigned Assistant District Attorney to discuss the flexibility of the ADA for conducting a bench trial in the case in order for Mr. Head to be able to preserve certain legal challenges. The prosecutor agreed that he would NOT increase the proposed punishment for A.H. if a bench trial was utilized for this purpose. Hence, A.H. could not get a more harsh sentence by seeking a bench trial.
Next, Mr. Head hired two top experts on laboratory testing and drugs, Dr. Richard Jensen of Minnesota and Dr. David Stafford.of Tennessee. Mr. Head's challenge was to the allegation that A.H. was impaired by alcohol or marijuana, since the GBI lab results on marijuana were "lower than the lowest calibrator", meaning that the number generated was so low that it did not register (because the sensitivity of the testing was not set that low). The alcohol content was "trace", and this Count was dropped.
The expert testimony of Jensen and Stafford confirmed that A.H. had no "psychoactive" effect, and therefore was not impaired. In fact, the number (lower that 10 nanograms) was an amount that could be obtained from merely being in a room with someone smoking marijuana.
The case proceeded to trial in January of 1999. The GBI expert, Horton McCurdy, did all that he could to assure this young woman's conviction. However, his testimony was refuted by the other two equally qualified experts. The judge found no impairment was proven. However, the judge indicated that she was inclined to convict her of DUI-marijuana for merely having a measurable quantity in her system. The Court's initial written ruling (issued in February 1999) was going to convict A.H. of all three felonies.
However, Mr. Head asked the Court to delay ruling based upon a pending criminal appeal on the constitutionality of the DUI-marijuana statute as being impermissibly overly broad. The appeal, Love v. State, was (at that time) pending at the Georgia Supreme Court. The judge read the appellate briefs and agreed to delay imposition of her sentence until Love was decided.
On June 1, 1999, the Georgia Supreme Court did strike down the DUI-marijuana statute as being overly broad. Jude Freesemann then vacated (withdrew) her initial written ruling, and only found A.H. guilty of failure to yield (during the left turn that led to the collision). After paying a small fine, A.H. was free of all pending charges.
As a side benefit of winning the DUI and the felony serious injury charges, A.H. avoided several multi-million dollar civil claims against her. Any serious injury caused by a DUI is NOT DISCHARGEABLE in bankruptcy. She could have been garnished for the remainder of her working life, since getting rid of the debts would not have been possible.
A.H. was married two years ago (2006), after one of the closest calls any young woman will ever face.
College Student Misses Curve, Wrecks his Vehicle, Has 0.146/0.147 Breath Test Results and Gets Totally Acquitted
DUI and DWI
Jun 24, 1999
Air Bag Deployment Affected Breath Test "Numbers"
K.B., a 21 year old student, was driving a 21-year old passenger home at 4:25 AM on November 29, 1997 after having dropped off two other friends at their homes. K.B. had been the "designated driver" (he was supposed to moderate his consumption). As he proceeded to the home of the last passenger (who was passed out drunk), he was unfamiliar with the roadway leading to the young man's home, having never approached from that direction. Seeing the turn at the last minute, he attempted to veer to the left at a speed too great to negotiate the maneuver. He sideswiped a telephone pole, flattened a brick mailbox, and then came to rest against a tree in the front yard of the home located at the intersection.
K.B. and the passenger got out and tried to silence the horn, which was blaring. Neither was seriously injured thanks to dual airbags and seat belts in the vehicle. The two of them then jogged over to the friendâ€™s house some 300 yards away (this was a few years before everyone in America obtained at least ONE cell phone). There, K.B. called his mother and father and told them he "had a wreck and tore his car up" and asked how to stop the horn from blaring and waking up the neighborhood. No mention was made that he had been drinking or that he was at all concerned about being under the influence. The parents told him to return to the scene and wait there for them. The parents immediately dressed and came to the scene, arriving just as the police officers arrived. The police officer smelled alcohol on the driver and immediately began giving K. B. field tests.
After attempting the field tests, K.B. was arrested. He was later tested on the Intoxilyzer 5000 breath testing device and had readings of .146 and .147, at 5:44 AM.
Mr. Head selected a "bench" trial for this case, because the issues that the defense sought to assert were compelling, and the Judge assigned to the case was extremely fair. The arresting officer was called by the State first, as occurs in almost all DUI trials.
With no videotape available to demonstrate the actual reading of the implied consent advisement, the arresting officer carefully read the implied consent advisement on the witness stand perfectly. Hence, no challenge to the accuracy of the advisements was available.
However, after the close of the Stateâ€™s case, both of K.B.â€™s parents testified about what they observed and heard at the scene. Their opinions concerning K.B.â€™s sobriety countered the two police officersâ€™ opinions that Defendant was impaired. The parents had also taken photos of the scene the next day and identified these photos of the sharp curve, the lack of signs warning of the curve & the roadway. Also, Dr. Richard Jensen of Minneapolis was qualified as an expert on the Intoxilyzer 5000, and in the field of analytical chemistry. He gave expert testimony about the possibility of interference with the breath test results due to the release of talc and other powdery substances (such as corn starch) when the airbags deployed during the accident. The powdery substances were used to pack the airbags and make them slide out easily. He stated that an alternative forensic test (blood or urine) should be utilized when airbags have deployed so that the "interference" from suspended particles (the "Tyndall effect") would not compromise the breath test results. The Defendant did not testify.
After a lengthy bench trial, Judge John Mather found Defendant not guilty of both the per se and the less safe DUI charges. He stated that Dr. Jensen's testimony created reasonable doubt. There was no accusation of "too fast for conditions". The "lane violation" charge also resulted in a not guilty verdict based on the lack of any skid marks and the presence of copious amounts of pine straw along the roadway. An expert on accident reconstruction, Bill Taylor, also testified about the likelihood that the straw could have contributed to the car losing traction and leaving no skid marks.