I rarely do this, but I've already disclosed so much about it that I figured I'd wrap it up.
I got a "Not Guilty" today in a DWI case in our County Court at Law. As you can tell from the above slip, the breath tests were .118 and .119. Of course, .08 is the legal limit.
Before you start screaming "How can this happen?" or "What an injustice!!!", you might want to tap the brakes. The case is odd one.
To begin with, the traffic stop was simply for speeding at 11:00 o'clock in the
morning. No weaving. No recklessness. Although he did need to slow down since he was running 84 in a 70. (Note to Wise County Drivers: The officer was hiding on the 287 northbound entrance ramp off of 407.).
The video of the Field Sobriety Tests showed an almost flawless performance. He passed the One Leg Stand by holding his foot in the air for 30 seconds, never swayed, never used his arms for balance and never hopped. His performance on the Walk and Turn test was nearly equally flawless having only stepped off the line one time during the 18 step test (in a gusting wind along Hwy 287), and performed an "improper turn" because he did a military turn instead of "a series of small steps."
Concerning his actions, he looked as sober as a preacher. No slurred speech. No unsteadiness on his feet. He and the officer communicated with each other just like you would with someone over a cup of coffee.
Had he been drinking? Yes and no. He admitted to getting "pretty" drunk the night before with his last drink being at around 2:00 a.m. The officer, on the tape, seemed to believe him. Remember, the traffic stop is at 11:00 a.m.
He is arrested (somehow) and taken to the Wise County Sheriff's Office where he readily agreed to provide a sample of his breath. The only person more shocked than me as to the results was the defendant himself.
I watched the video a million times and was convinced the breath test had to be wrong. For it to be correct, my client would have had the equivalent of 7 regular sized beers in the hour immediately before the test. Even the State's expert agreed with that.
No way.
The basic defense was fairly simple: Are you going to believe your eyes, or are you going to convict someone based upon a machine in the Sheriff's office?
Two important factors about the Intoxilyzer 5000: (1) If both breath samples from the arrested person are within .02 of one another, it is considered a valid test. Yep, if I blow a .081 on my first test and .101 on the second (or .061) the machine will validate it - as will DPS. That's a shocking range of error. (2) There can also be as much as .019 grams of alcohol in the chamber of the machine before the "Ambient Failure" warning will appear. Yep, in
theory, a sober person could blow into the machine and register a true .019 and the machine wouldn't detect an error.
With all of that in the mix, the verdict isn't that surprising. If the law says that you must find a person not guilty if you have a doubt about the accuracy of the machine and that doubt is a reasonable one to you, how could you vote to convict?
[OK, I'll regulate the comments a little more than normal. But let me say this in all earnestness: The prosecutors did a very good job. The officer did a good job and was very honest to admit when he did make a mistake. This case is one that was decided on the evidence and the evidence alone.]
Edit: And a buddy of mine has a heck of a sense of humor.
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I rarely do this, but I've already disclosed so much about it that I figured I'd wrap it up.
I got a "Not Guilty" today in a DWI case in our County Court at Law. As you can tell from the above slip, the breath tests were .118 and .119. Of course, .08 is the legal limit.
Before you start screaming "How can this happen?" or "What an injustice!!!", you might want to tap the brakes. The case is odd one.
To begin with, the traffic stop was simply for speeding at 11:00 o'clock in the morning. No weaving. No recklessness. Although he did need to slow down since he was running 84 in a 70. (Note to Wise County Drivers: The officer was hiding on the 287 northbound entrance ramp off of 407.).
The video of the Field Sobriety Tests showed an almost flawless performance. He passed the One Leg Stand by holding his foot in the air for 30 seconds, never swayed, never used his arms for balance and never hopped. His performance on the Walk and Turn test was nearly equally flawless having only stepped off the line one time during the 18 step test (in a gusting wind along Hwy 287), and performed an "improper turn" because he did a military turn instead of "a series of small steps."
Concerning his actions, he looked as sober as a preacher. No slurred speech. No unsteadiness on his feet. He and the officer communicated with each other just like you would with someone over a cup of coffee.
Had he been drinking? Yes and no. He admitted to getting "pretty" drunk the night before with his last drink being at around 2:00 a.m. The officer, on the tape, seemed to believe him. Remember, the traffic stop is at 11:00 a.m.
He is arrested (somehow) and taken to the Wise County Sheriff's Office where he readily agreed to provide a sample of his breath. The only person more shocked than me as to the results was the defendant himself.
I watched the video a million times and was convinced the breath test had to be wrong. For it to be correct, my client would have had the equivalent of 7 regular sized beers in the hour immediately before the test. Even the State's expert agreed with that.
No way.
The basic defense was fairly simple: Are you going to believe your eyes, or are you going to convict someone based upon a machine in the Sheriff's office?
Two important factors about the Intoxilyzer 5000: (1) If both breath samples from the arrested person are within .02 of one another, it is considered a valid test. Yep, if I blow a .081 on my first test and .101 on the second (or .061) the machine will validate it - as will DPS. That's a shocking range of error. (2) There can also be as much as .019 grams of alcohol in the chamber of the machine before the "Ambient Failure" warning will appear. Yep, in theory, a sober person could blow into the machine and register a true .019 and the machine wouldn't detect an error.
With all of that in the mix, the verdict isn't that surprising. If the law says that you must find a person not guilty if you have a doubt about the accuracy of the machine and that doubt is a reasonable one to you, how could you vote to convict?
[OK, I'll regulate the comments a little more than normal. But let me say this in all earnestness: The prosecutors did a very good job. The officer did a good job and was very honest to admit when he did make a mistake. This case is one that was decided on the evidence and the evidence alone.]
Edit: And a buddy of mine has a heck of a sense of humor.
