So….the arresting trooper(state police) testifies that my client is driving at an excessive rate of speed while approaching from behind.  My client nearly rear ends the trooper’s cruiser causing the trooper to pull dramatically to the right and off the road to avoid the collision.   He then follows my client with his blue lights on and eventually pulls my client over.

According to this trooper, my client was unable to hold his head up and when asked to step out of his car, he could neither walk nor stand without assistance.  My client allegedly admitted that he had been drinking at a bachelor party and had a bra in his pants pocket.  On cross examination I was able to get the trooper to testify that my client was “fall down drunk”.  Sounds damaging, right?  Stay with me….

The booking trooper takes the stand and testifies that he interviewed my client 15 minutes after the arrest.  Curiously my client had only a moderate odor of alcohol and appeared somewhat unsteady as opposed to staggering.  My client was able to answer all booking questions without incident and in fact struck up a conversation with the trooper about a mutual friend from high school. 

How did the prosecutor explain the obscene disconnect between the testimony of the witnesses?  He didn’t…

How did the jury explain the obscene disconnect between the testimony of the witnesses?  NOT GUILTY!!

Yet again I was confronted with a client who wanted to plea guilty as soon as possible to her second offense as the results of her breath test were more than twice the legal limit. (.18) and the officer report seemed extremely dramatic. 

However, upon review of the breath test documentation it was discovered that the test was administered incorrectly and the test should not be admissible at her trial.  In short, a valid breath test in Massachusetts requires a subject test follow by a calibration test through “simulator solution” from within the machine with a known value of .15 followed by a second subject test which must be within +/- .02 of the first subject test.  In this instance, the subject test had a difference of .03.  As a result, the breath test operator performed a third subject test which was the same as the first subject test, however, the breath test operator failed to conduct a second test from the “simulator solution” which is required between all subject tests.  This evidence was excluded from trial.

Without the breath test results, the case was based on the subjective opinion of two officers whose testimony was wholly unreliable.  Specifically, the officer driving the police cruiser told the jury that while traveling in the opposite direction of the client, she crossed into the police officer’s lane and corrected herself from a distance of approximately 50 feet.  This officer specifically stated that no evasive action was required to avoid a collision and that in fact he did not even have to apply the brakes.

Interestingly, but not surprisingly, the second officer, who was a passenger in the police cruiser, also testified that my client entered their lane of travel but did so within feet of the cruiser nearly causing a head on collision.  This officer testified that his partner had to pull to the right nearly striking the curb and slam the brakes to avoid the collision.  Game over !!!

I was once again amused by the juror’s faces when the second officer unknowingly gave testimony that completely contradicted his partner.  As frequently as that occurs, it never gets old.  The jury deliberated for less than 10 minutes before returning a not guilty verdict.

My client was involved in a motorcycle accident resulting in his bike an body lying on someone’s front lawn when discovered by the homeowner.  When police arrived, the client was being treated be EMTs and was transported to the local hospital where blood was taken “for medical purposes.”   The blood alcohol level was .19.

The police responded to the hospital and questioned my client about his odor of alcohol, where he had been drinking and how much he had to drink.  As a result of the blood alcohol levels and my clients statements, the client was charged with his second offense OUI.

At trial I did not question the blood alcohol level but merely relied upon the lack of evidence that my client was driving the motorcycle.  Despite the officer’s testimony that he saw my client laying 10 feet from the crashed bike, he admitted that he never directly asked if my client was driving.  Oops.  Was my client a passenger?   

After trial the police officer, prosecutor and judge admitted that they never saw it coming.  It takes an experienced eye to see all the issues.  Another example of why it is critical to make the government prove their case.

In a case where my client was stopped for speeding and a marked lane violation on the Mass Pike, the trooper testified that my client could not complete the alphabet and had difficulty counting backwards.  The trooper also claimed that my client could not stand on one leg or walk heel to toe as instructed.  Despite a breath test of .09, the client was found NOT GUILTY.

This case was the classic example of a trooper losing credibility by trying to make more of the facts than reality allows.  (also known as distortion or exageration).  I still do not understand how my client “swayed so much during the heel/toe test that he almost lost his balance” yet his feet never stepped of the line.  Thats a pretty good trick.  Equally confusing was the officers insistance that my client’s foot never left its original position during the one legged stand yet it moved throughout the test. 

As long as officers insist on telling jurors that a driver’s speech was slurred after hearing a stranger speak a single sentence and that a driver was unsteady after seeing this stranger walk only six steps, they will continue to make my job easier.