DUI Breath Test Trial Victory
Jun 08, 2021OUTCOME: Not Guilty
In the hours leading up to the Philadelphia Eagles defeating Tom Brady and the New England Patriots in the 2017-2018 Super Bowl, client had worked a full morning and afternoon shift as a plumber. When ... he got home he decided to clean out the inside of his car. He opened a can of beer, and while cleaning, accidentally forgot it in the center console. Client went inside his apartment where he watched the Super Bowl by himself. Once the game ended, he went to his favorite local bar to have a beer. Client drank one bottle of corona before driving a short distance home. On the way home, client was stopped for speeding, 64 in a 35. The Lilburn Police Department officer explained the reason for the stop. Client apologized stating that he was headed home. Client was polite and respectful during the entire investigation. He served as a marine for 8 years. Client provided his drivers license without issue and the officer, while walking to his vehicle, called for back up. The reason he called for back up is because the officer detected slow slurred speech. A sergeant arrived on scene shortly thereafter. This sergeant was much more experienced in DUI detection and investigation than stopping officer. The sergeant detected an odor of alcohol but no slurred speech, in total opposition to the stopping officer who observed slurred speech but no odor of alcohol. Furthermore, neither officer nor Sergeant observed red, blood shot, or watery eyes on client. The sergeant first had client perform HGN. Although the sergeants instructions were OK, his positioning of the stimulus was not. The stimulus was clearly held less than 12 inches from the clients face. The sergeant debated this with me on cross-examination. He testified he observed 6/6 clues. After HGN, the Sergeant had client do the walk and turn test. Prior to giving the instruction, client advised the sergeant that he had balance problems. Client stated he could walk but could not stand on one leg. Before the instructions were completed for the instructional stage, client started to walk. Sergeant repositioned client and began to start the instructions again but client started walking again. This time the sergeant did not stop client and let him continue to walk while the sergeant made observations. Client had significant balance issues during his performance. After he was done walking, client stated to the officer that he could not walk heel to toe because of those same balance issues. At this point, the sergeant asked client if he would submit to a portable breath test. Client agreed. Client was then placed under arrest for DUI and read the implied consent warning. The officer requested a test of his breath, client agreed. Client was then taken to the police department to give a breath sample. Client provided two samples, the lower of which was a 0.202. At trial, the Intoxilyzer operator appeared to be disgruntled. He fought me on his training. He fought me on the manual. And at one point he demanded I show the results to the jury. I told him, “sir, the jury will be able to look at those, but for now I’d like to continue my questioning.” Later, the operator made an objection on behalf of the state. His testimony on direct examination was minimally sufficient to lay a foundation to introduce the breath test result. On cross examination, I was able to establish that the operator had not conducted a 20 minute observation of the client prior to client providing a breath sample. Not only was this established by circumstantial evidence, but when I asked point blank whether the operator conducted a 20 minute observation, he said no, he had not. The complete lack of any 20 minute observation by the operator or any other officer present at the Intoxilyzer room seemed to be one of the biggest issues for the jury in assessing the validity of the breath test results. Ultimately, my client was acquitted of counts one and two, DUI less safe and DUI per se. He was convicted of speeding and open container.
