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OUI Test Interference: Chewing Tobacco (Dip)

State v. J.W.


Blood / Alcohol Content (BAC):

.16%

Defense:

Chewing tobacco, lack of credibility of police, invalid sample, residual mouth alcohol

Defense Attorney:

Matthew B. Nichols

Offense:

Operating Under the Influence (OUI, DUI, DWI)

Maximum Sentence:

364 days in jail (minimum 48 hours in jail), 90 days license suspension and $2,000 fine

Synopsis:

Client was on his way from western Massachusetts to the Augusta, Maine area when he was pulled over for nearly running a marked Game Warden truck off Interstate 95. Client had driven to that point from his home in western Massachusetts with his father and friend as passengers. The three were on their way to Maine for a hunting trip. The Game Warden, also a part-time Waterville police officer, detained client until three Maine State Troopers arrived to conduct field sobriety tests and otherwise continue the OUI investigation. Both client’s father and friend were extremely intoxicated and practically tumbled out of the truck when the police asked them to exit.

All four law enforcement officers testified that client had urinated in his pants, had extremely slurred speech, could barely maintain his feet and rated himself a 9 on a scale of 1 to 10 in terms of drunkenness. Client was arrested and taken to a local police department for an Intoxilyzer test. The test result was 0.16% BAC and client was charged with Operating Under the Influence.

Again, all four law enforcement officers testified at the trial during which Attorney Nichols focused the jury’s attention on the discrepancies among all four officers’ stories. Client also testified as did Dr. Carolyn Howard, the defense expert. Client testified that the cause of his erratic operation was the fact that he was attempting to open a new can of chewing tobacco (dip). While doing so the material spilled all over his pants thus explaining the stain that the police officers claimed was urine. Client admitted to consuming alcoholic beverages, namely beer, but indicated that he had stopped quite some time ago to make sure that he did not exceed the legal limit.

Client also testified that he had dip in his mouth during the performance of the field sobriety tests and the administration of the breath test. The officer who administered the test testified that a “invalid sample” error prompt did appear on the display screen and the printout from the Intoxilyzer machine. However, the officer did not know the significance of that error prompt and took no corrective action. Dr. Howard explained to the jury that the “invalid sample” error prompt was a signal to the officer that client’s breath sample was contaminated by residual mouth alcohol (likely caused by the presence of an absorbent foreign object in his mouth, namely chewing tobacco/dip).

Accordingly, the testing officer should have cleared client’s mouth and kept him under strict observation for the required fifteen minutes prior to administering another breath test. During that fifteen minute observation period, any residual mouth alcohol should have dissipated and the officer would have obtained a good breath sample. Because the officer did not follow the prescribed protocol, Dr. Howard testified that the test result was unreliable.

Verdict:

Not Guilty

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