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Winning a DWI on a 0.09 BAC result

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Image from National Institute of Standards & Technology.

Recently I met with a potential client charged with drunk driving. When I was addressing some of his case defenses with him, he replied: "I am guilty, so why should I be pleading not guilty?" Why, indeed. Because the prosecution alone has the burden of proving a defendant guilty beyond a reasonable doubt. Because those who commit crimes sometimes go free when they plead not guilty. Because I generally believe in pleading innocent when the worst outcome of doing so is not likely to be much worse than if a guilty plea is entered. Because being convicted and put on probation (and sometimes getting jail, limits on driving, and other limits on liberty) are rude awakenings that should be prevented if possible.

When a client comes to me for a drunk driving case, I usually explain that if it is a Virginia first-time drunk driving charge with no unusually bad evidence, no blood alcohol result of 0.15 or higher (a conviction for a 0.15 BAC brings mandatory jail time and the ignition interlock), and no refusal to take the breath test, I anticipate recommending a not guilty plea. Sometimes I recommend an innocent plea when the stakes are higher than that. In Maryland, I usually recommend an innocent plea under the foregoing circumstances and even up to 0.19 blood alcohol readings and even higher sometimes, with little concern under such circumstances about refusal to take a breath test, because Maryland does not apply Virginia’s sanction of one year of no driving at all for an unreasonable refusal to take the Intox EC/IR II "breathalyzer" test, or blood test.

Magical things can happen with an innocent plea. Sometimes the prosecutor learns s/he does not have available the witnesses and evidence essential to obtain a conviction. Sometimes the defendant wins.

Today, I obtained two back-to-back DWI trial wins. Here is a brief overview of my first win. My client was stopped for allegedly crossing over the yellow line and speeding. The stopping police officer alleged such indications as odor of alcohol and admission to drinking. My client did just fine on the alphabet test, but the officer testified about some "clues" on the one-leg-stand and the walk and turn test. I kept out evidence of calibration of the officer’s speedometer, and the prosecutor did not attempt to show my client’s roadside preliminary breath test result.

This being Virginia, we had to have our first trial -— and last, as a result of our acquittal — in district court without a jury. The judge denied my motion to suppress the arrest of my client. He denied my argument under the Sixth Amendment and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), to keep out the Intox EC/IR II breath test results, elicited from the breath test operator, where the prosecutor offered no live testimony nor even certified documentation from the Virginia Department of Forensic Sciences as to the calibration and certification of the Intox EC/IR II. Moreover, had we presented our own expert witness on the Intox EC/IR II or had a chance to cross-examine the DFS employee responsible for calibrating and certifying this machine, I would have expected to show that the DFS fails even to self-certify its dry gas standards used as a control mechanism to verify accurate operation of the machine, and instead solely relies on the manufacture’s certification.

My focus in cross examining the arresting officer included how my client recited the alphabet fine, and mainly did the walk and turn fine, except for missing heel to toe a few times, taking two too many steps on the way out, and making an improper turn on the way back. Although the officer mentioned my client’s putting his foot down on the one-leg-stand on counts including 18, 24 and 30, he agreed with me on cross examination that he was trained to do the one-leg-stand for no more than thirty seconds, and that he did not use a watch or other timepiece to assure he had not gone over thirty seconds, which made the counts 24 and 30 matters more of a non-issue. The officer just estimated the 30 count, but estimate is a cousin of ASSUME. As Felix Unger says: "When you ASSUME, you make an ASS of U and ME."

In cross-examining the breath technician, she agreed with me that she is not part of the Department of Forensic Sciences, which is responsible for calibrating and certifying the Intox EC/IR II. After the breath technician testified on direct that my client was very cooperative, I asked her if my client had acted like an angel — which the breath technician told me pretrial was in her notes. LIKE AN ANGEL!!!!!!!!!!!!!!!!!!!!!!!!!!!!! No further questions. 

In my closing argument, I pointed out such items as the following: My client’s breath test result was 0.09 on the Intox EC/IR II. The officer testified to stopping my client at 10:30 p.m., and the breath test was performed four hours later. (I could have moved to keep out the breath test result for too long an interval between the arrest and the test, but I expected that such an approach would have resulted in the arresting officer’s re-testifying and being memory-refreshed: by the prosecutor with the officer’s notes (which the defense is not entitled to in the Old Dominion, except at the time of using it to refresh memory) that the stop came later than that, and the judge in explaining his acquittal judgment said he assumed the arrest was later than 10:30 p.m., for that time having been so far away from the breath test). I pointed out that we know that Virginia law asks not what is the breath test result, but what is the blood alcohol level at the time of driving (and also whether the defendant was under the influence of alcohol regardless of of the breath test result; cf. Wimbish v. Virginia, 51 Va. App. 474, 658 S.E.2d 715 (2008), which says to look at the blood alcohol level at the time of testing, not driving, for prosecutions for 0.15 or higher BAC’s). I pointed out that we know that the blood alcohol level can rise between the time of arrest and breath testing from alcohol absorbing into the body, rather than necessarily falling.

I said that the defense had thus avoided a per se guilty for driving under the influence of 0.08 or more, and that the totality of the circumstances in our case was consistent with someone who was tired this late at night, and not exclusively consistent with alcohol consumption. That spells reasonable doubt/ la duda razonable / le doute raisonnable.

In acquitting my client, the judge pointed out, among other things, his politeness with the breath technician and his clarity with the alphabet. The field sobriety tests were not enough to convince the judge of guilt beyond a reasonable doubt, nor did anything else in the totality of the circumstances.