Residual Mouth Alcohol Case
State v. E.L.
Blood / Alcohol Content (BAC):
Chewing Tobacco in Mouth and Lack of Credibility of Police
Matthew B. Nichols
Operating Under the Influence (OUI, DUI, DWI)
364 days in jail (minimum 48 hours in jail, 90-day license suspension, $400 fine)
Client, according to the arresting officer, made a wide turn into the opposite lane of traffic nearly striking the opposing curb. He then drove erratically and at a high rate of speed endangering countless pedestrians and motorists. Again, according to the officer’s report and direct testimony, client failed all field sobriety tests (HGN, Walk and Turn, One Leg Stand). Client provided an Intoxilyzer 5000 test result of .15% BAC.
The defense called Client to testify regarding his use of “dip” (Kodiak). Although he removed the bulk of his “dip” at the roadside, he had residue in his mouth at the time of testing. The defense also called Dr. Carolyn Howard (forensic chemist) to refute the state’s claim that proper protocols and safeguards were followed. She educated the jury as to the potential for contamination of breath samples due to the presence of residual mouth alcohol (i.e.; alcohol retained in the “dip” remnants).
The state’s expert was unable to sway the jury when faced with Dr. Howard’s testimony. Finally, through thorough cross-examination, the defense was able to show the jury that even the officer’s observations did not show impairment to any degree attributable to Client’s alcohol consumption.