Residual Mouth Alcohol

Cell Phone Interference OUI Test

State v. R.C.


Blood / Alcohol Content (BAC):

.12%

Defense:

Radio frequency interference, residual mouth alcohol

Defense Attorney:

Matthew B. Nichols

Offense:

Operating Under the Influence-2nd offense (OUI, DUI, DWI)

Maximum Sentence:

364 days in jail (minimum 7 days in jail), 18 month license suspension and $2,000 fine

Synopsis:

Based upon his complete driving history, client would have been declared a habitual offender if convicted of this charge. That would have resulted in a revocation his license for three years. Client was stopped for erratic operation. He also made a series of admissions including a statement that he knew he shouldn’t have been driving and that he could not perform the field sobriety tests because he had been drinking. Client proceeded to do quite well on the field sobriety (the entire roadside investigation was captured on DVD) despite his statements.

Following his arrest client submitted to an Intoxilyzer test with a result of 0.12% BAC. At the administrative hearing the suspension was rescinded because of the likelihood of radio interference affecting the test. Client had his cell phone in his pocket which rang as he was actually providing his breath sample (this was substantiated by production of his cell phone records which showed an incoming call from his brother at exactly the same time the Intoxilyzer printout indicated he was providing a breath sample).

At trial, however, the defense relied upon the DVD to show the lack of impairment and client’s testimony that the officer failed to keep him under strict observation for the required fifteen minutes immediately prior to the test. Client further testified that he was repeatedly burping (albeit silent or muffled burps) during the fifteen minutes leading up to the test.

Client further testified that the testing officer was texting during the fifteen minute observation period and not keeping an eye on him. The officer testified to the contrary.

The defense relied heavily on the expert testimony of Jan Semenoff of Saskatoon Saskatchewan, Canada regarding the radio frequency evidence, the proper way in which a fifteen minute observation period is to be conducted (Jan was a veteran police officer and breath test operator in Canada for many years) and the effects of residual mouth alcohol on the accuracy and reliability of the Intoxilyzer 5000 test.

Verdict:

Not Guilty

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