Imagine it’s a few days before Christmas, 2016 and you’re driving home. Earlier in the day you had two beers. You are traveling a route you take every day and are less than one mile from your home. It’s a dark night and the roads are wet. Suddenly, out of nowhere, you see something out of the corner of your eye, but you’re not sure what it was. You only have a split second to react. You end up hitting this object. You are still not sure what you hit. Was it an animal? Was it a person? You bring your truck to a stop and run back to see what it was you hit. Tragically, it turns out that what you hit was an older woman who had been walking in the street instead of using the available sidewalk. She was also dressed in dark clothing. Her injuries appear serious. You attempt to render aid until police and ambulance arrive. Later, you learn she died from injuries received in the collision. Your life will never be the same.
When the police arrive you are understandably upset and concerned for the woman. You try to cooperate as best you can, but it all happened so fast and you really couldn’t see her until just before impact with your car. You are honest with the police and let them know you had a couple of beers earlier in the day. Now the questions turn from what happened to were you drunk when it happened? The police ask you to perform field sobriety tests. These are essentially balance and coordination tests. You do your best. However, you are over 60 years old, significantly overweight and have an issue with one of your hips. Not to mention you are scared, shaking and visibly upset by all that has happened leading up to that point. The police say you did not balance well and ultimately you are arrested and brought back to the police station. You agree to perform a breathalyzer test. The legal limit is a 0.08%, but you blow a 0.09% blood alcohol level. You are then charged with (1) operating a motor vehicle under the influence of intoxicating liquor (OUI) and (2) motor vehicle homicide caused by OUI.
You are a good person with a good job. You raised a family. You have kids and grandkids. You only had one minor brush with the law when you were 18.
This is not some fictional story. These are the real-life events of one of our recent clients. We worked with this man from his first day in court, all the way through a successful trial more than two years later, where he was found not guilty on all charges.
We approached this case as we approach all cases. We examined the evidence against the backdrop of the law to determine the best ways to eliminate unfair evidence and to tell our client’s story in a way that illustrated his innocence.
One key piece of evidence for the prosecutor was the breathalyzer test. After a long hearing concerning the reliability of the test and the manner in which the breath test machines are certified and calibrated, the judge excluded the test results. The judge agreed with us that the Commonwealth could not establish that the methodology used by the Office of Alcohol Testing (OAT) to calibrate and certify the machine met the scientific standards to establish a reliable breath test result. At the hearing, we were able to demonstrate that this particular machine had failed calibration and certification on several prior attempts. We were also able to show that the technician who actually calibrated the machine failed to follow proper protocol.
Another major issue related to the cause of the accident. We were able to establish through the State Police Accident Reconstruction Specialist that the accident was unavoidable. It was further established that the cause of the accident was actually the pedestrian. The pedestrian was wearing dark clothing, on a very dark road and not using the sidewalk. It was determined that a normal person (regardless of intoxication) would have been unable to see her; identify her as a hazard and stop or swerve the vehicle prior to striking her. Simply put, it was a tragic and unavoidable accident.
Finally, we were able to demonstrate for the jury that our client was not under the influence of alcohol. To the witnesses who observed him on that evening, there were conflicting opinions. Some witnesses, including some police witnesses, did not believe he was drunk. We were also able to demonstrate that the so-called “Field Sobriety Tests” were unfairly applied to a man of his age, weight and physical characteristics. We confronted the officers with their training manual to establish these things. We were able to illustrate for the jury all the things he did correctly on those tests, including, following directions, counting out loud, only taking the directed numbers of steps, etc. Further, that he took these tests in less than optimal circumstances. They were done at night; just after a horrible accident; our client was visibly shaking; he was also older, overweight and had a hip injury. Our approach illustrated that while he did not have the balance of an 18-year-old gymnast, he was clear headed and not under the influence of alcohol.
As a result of all of this, our client was acquitted of all charges.
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