They have remanded the case to the court of appeals to consider a State's cross-point challenging the judge's refusal to charge the jury on the .08 manner and means of committing DWI because the State did not proffer extrapolation testimony.

Well that's anti-climactic.

I don't know the ins and outs of ineffective claims, but the defense attorney's lack of participation was clearly a strategy--but more for appeal than trial. I think it's a stretch to say repeating to a jury you're not prepared is a sympathy ploy. Doesn't the long-term appeal strategy apply to show that he was purposefully acting in that way? The guy blew above an .08 so he clearly didn't have much chance unless he found some expert who would work for free to say bouncing your face on air bags affects intoxilyzer results. Seems not only strategic, but his only hope and it sounds like it took A LOT of effort on his part to keep it up. How many trial attorneys by the second day would not just give in and at least cross examine someone??? Or make a closing statement??? Very strategic and difficult, in my opinion.

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Originally posted by suzannejost:
The guy blew above an .08 so he clearly didn't have much chance unless he found some expert who would work for free to say bouncing your face on air bags affects intoxilyzer results.

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As an added amusement, the State's cross-appeal was because the trial court denied the .08 instruction.