OUI Arrest: Driving a Motorcycle
State v. J.J.
Blood / Alcohol Content (BAC):
Improper Administration of Breath Test
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 was stopped for speeding and dangerously erratic operation of his motorcycle. The Trooper initially observed Client to have red, glassy eyes, the odor of intoxicants on his breath, slurred speech and dexterity problems while producing his paperwork. Client later swayed while standing still and walking normally.
According to the Trooper, he performed field sobriety tests as follows:
- Walk and Turn: Client staggered, missed heel-to-toe contact, used his arms for balance, could not walk straight, failed to count his steps out loud and walked the incorrect number of steps (all contrary to instructions).
- Finger to Nose: Client could touch his finger to his nose on only half of his attempts; he continued to sway in a circular motion.
- One Leg Stand: Client told the Trooper he could not do this test.
The Trooper administered a “balloon” breath kit test (Mobat Sober Meter). The result was a .15% BAC. Client told the trooper that he did not think he would be over a .12% BAC (the legal limit is .08% BAC). He also told the Trooper that he “screwed up” and implored the Trooper to write him up for Driving To Endanger rather than Operating Under the Influence. Client was told by his employer that he would be fired if convicted.
Following a jury trial in which only the Trooper and the State’s expert chemist testified, Client was acquitted. Attorney Nichols used the State’s expert to establish a lengthy list of errors that could have occurred prior to the breath kit coming into the chemist’s “capable hands”. Errors ranged from manufacturer errors to intentional police misconduct or incompetence.
The Trooper’s credibility was attacked by establishing that the test results could not have been known until two weeks after Client’s arrest. State Lab records confirmed this fact. However, although the Trooper testified that he prepared his report hours after the arrest (while the incident was still fresh in his mind), the report included the .15% BAC test result! The inclusion of the result may have been an innocent amendment to the full report, however, by the time the Prosecutor realized the importance of the type of “fact building” that was obtained through cross-examination, it was too late. The Prosecutor and the Trooper first became aware of their problem during Attorney Nichols’s closing argument.
Client kept his job.