Defendant is pulled over for 69 in a 60. Officer mentions on video that D was weaving slightly as well. Once out of his car, Officer observes odor of alcohol on D's breath and on his person. No mention of glassy/bloodshot eyes or slurred speech.

D looks good to the casual observer on his field sobriety tests. He ends up showing 6 clues on HGN, 4 on walk and turn, and 3 on one legged stand. Officer then decides to have D say his ABCs and do a finger count test. D does both of those perfectly.

After that, Officer places D under arrest for DWI 2nd. Says the last two tests weren't part of the SFSTs and that he had determined D was intoxicated after SFSTs.

D initially doesn't say whether he'd provide breath or blood. While waiting on a wrecker, D has alarm go off on some kind of heart monitor he's wearing and he is taken to local hospital. At hospital, Officer requests blood and D refuses (w/o signing DIC 24). Hospital draws blood but inexplicably does not test for drugs or alcohol.

I know D is going to make a big deal about doing two extra tests after completion of SFSTs as well as the lack of blood/breath evidence.

Anybody have any good ideas about selling this case to the jury?

As an SFST Instructor I would argue that just because the Officer had probable cause after the SFST's does not mean he was required to stop gathering evidence; the decision on when to arrest is entirely his.

As far as the lack of evidence, isn't it the Defendant's fault that the evidence is not available?

You make an excellent point about not having to stop gathering evidence.

There are attorneys out there who remember older case law along the lines of, "once an officer has developed PC to arrest, a defendant is effectively in custody," and then argue from there. The problem is that reasoning has long since been overruled. Yes, an officer can keep gathering evidence as long as he feels like.

All that leaves is for the defense to try to make the officer squirm by admitting that he kept piling on after having sufficient P/C to arrest, as if he's being heavyhanded somehow. But that's a pretty poor argument to make.

The defendant refused a blood test, so the reason there's not blood evidence is him. The hospital drew blood for a different reason not connected to the case, so that they didn't test it for alcohol is irrelevant. I'd just treat this like a standard refusal case and hammer it in that he had the opportunity to give them the most accurate evidence and refused to, and why else would he do that?

I can't see why the defense would try to make a big deal out of the officer making the Defendant do 2 extra tests after he's completed the SFST's. I would think that he would, instead, use them to show the Defendant was not intoxicated, since he performed "perfectly". They would only complain about them if the Defendant did poorly.

Have you taken a look at the medical records to see if the Defendant actually had a medical problem or if he just didn't feel like going to jail? I think you have a different situation if he was admitted and there a couple of days vs. he was there 2 hours and sent home. If he was there with an actual medical situation, that will also be used against you on the SFST's that gave you the intoxication clues.

You can also look to the medical records to see if the Defendant complains of or describes a history of leg and/or back problems, which are often cited as a reason why DWI defendants don't do well on the walk & turn or one leg stand. I would also look to see if the hospital personnel note their observations of the Defendant, including ETOH, slurred speech, how much he had consumed, etc. or, on the other hand, indicate him being coherent and not exhibiting signs of intoxication. Either way, these records can help or hurt you.

He was admitted to the ER for some kind of heart arrhythmia. He wears some kind of monitor that started alerting at some point after the arrest was made.

Whether he was truly ill is not going to be an issue up for debate.