I got a few calls about my recent DWI trial so I figured I should tell the story. Despite a breath test showing a BAC of 0.16, the jury found my client not guilty.
Here are some details:
For starters, breath tests are not reliable -- see my post on breath test videos for some idea. Also key - in this case my client was innocent. For a variety of reasons, I have no doubt whatsoever.
My client, a retired engineer, had been at home with his wife and her parents. Over a period of three to four hours they shared one bottle of wine, with my client having two glasses. Driving the in-laws home at night, a dog ran out in front of the car.
Client turned around and went back. He turned around again and positioned his car to protect the dog, and put his flashers on. He got out of the car and asked a neighbor to call 911. He stayed at the scene. When the police arrived and asked who the driver was, he stepped forward.
These actions are not consistent with guilt.
The neighbor testified at the trial for the prosecution. While he did smell alcohol on my client's breath, he did not notice any slurred speech, problems with balance, or anything else that might have suggested he was intoxicated.
On the prosecution side, both officers testified that my client had slurred speech. The arresting officer said he had trouble walking and standing - in other words, my client was "falling-down drunk." Strange that the neighbor didn't notice this. Also strange that this officer, in filling out his paperwork that night, did not check the box for impaired speech.
The arresting officer was one of the worst police witnesses I've ever seen, and I'm not the only one with that opinion. At one point he insisted that he'd gotten my client back to the station at 7:30 pm, even though he didn't arrive at the scene of the incident until 7:40 pm.
The time he arrived at the station matters. Police are supposed to observe a suspect for 20 minutes before he blows into the machine, to watch for things that can throw off the test. In this case it appears he arrived at the station 27 minutes before the breath test. The arresting officer said that he kept my client in the booking room for more than 20 minutes. The breath test operator said that he observed my client for more than 20 minutes in the breath test room. Somehow they squeezed that 40+ minutes into the 27 minutes he was there. Or, they didn't observe him properly.
The breath test operator seemed credible. He kept saying that the device is a "highly reliable scientific instrument." When I pointed out that it had been off by ten percent 39 times in a row testing the lab-calibrated solution, he said that was within the parameters. If your speedometer was off by 10%, would you consider that highly reliable? If the gas pump gave you 10% less gas than you paid for, how would you feel about that?
I raised the Confrontation Clause issue with respect to documents that show calibration of the device (see my post on DWI and Melendez-Diaz), and the judge ruled it didn't apply. I'll explain more about this below.
I also tried to raise the problems at the State Police lab that did one of the calibrations. The solution calibration document was signed by Keith Coonrod. Per the NY Times and others, Coonrod covered up widespread systemic problems at the lab. The judge wouldn't allow me to ask the breath test operator if he was aware of these problems.
In our case, Defendant, his wife and her parents (age 90+) all testified that he had 2 glasses of wine over a 4-hour period and that he showed no signs of intoxication.
It was a close call for the jury - they took nearly 5 hours to decide and wrapped up at 11:45 pm on the second day of trial. They found him not guilty.
You'd think I'd be thrilled but that's not the emotion. When you believe your client is innocent, and you get a not-guilty verdict, the feeling is relief.
Getting back to the Confrontation Clause issue, this is really important. I can't cross-examine a machine. The breath test operator comes into Court and testifies how he operated the machine, but he is not competent to explain how it really works, nor to explain it's potential weaknesses.
I've had a number of cases where video showed my clients with no signs of intoxication in the face of police testimony that they had slurred speech, balance problems, etc. The general public does not know what I know from my work, so breath tests have an aura of accuracy and reliability in the public eye. It's wrong.
If the prosecution is going to rely so heavily on this "black box," then the details underlying it are essential facts in the case. They should be required to bring in the supporting witnesses so the defendant has a chance to confront and cross-examine them. Experts are commonly used in other states, like California.
Two other appropriate safeguards for DUI arrests are:
1. Repeating the test a second time, say 10-20 minutes later, to make sure you get a similar result;
2. Putting video cameras on every police car and in every police station - this also protects police from false accusations.
What worked in this trial? There were two things I did that made a huge difference.
First, I attacked the breath test's aura right at the beginning, in jury selection, and I kept attacking it throughout the trial.
Second, I emphasized the reasonable doubt standard, starting at jury selection. If you as a juror have any doubt, and you have reasons for that doubt, then you have to say not guilty.