so what's the best way to handle this at trial? i have no SFST's...only alcohol odor on breath, bloodshot eyes, admission of drinking six beers "earlier." have any of you had the intox expert address this on the stand successfully?

Plead it.

But that's not what you're asking. The issue with the intox supervisor/expert is that the discussion of the reason for two samples, the tolerances, etc. may hurt you as much as help you because it may play into the typical defense misinformation or misleading discussion of the instrument's tolerances. Usually its easy to address those issues but that misdirection or misstatement sounds more convincing to a jury with that result.

If you've got the facts for true retrograde extrapolation (which it doesn't sound like you do) that could be a real help.

Otherwise you could see what the Widmark equation tells you and match that up with the facts and circumstances of the stop and investigation.

Also, a big part of this puzzle is why SFSTs weren't done. Was there a collision or was the defendant otherwise transported to a hospital? What does the EMS records and medical records show?

Did defendant just refuse? How did he refuse? What did he look like outside of SFSTs? How did he sound on refusal? What was in his car on the inventory--not just alcohol but things that may call his credibility or story into question.

Because if he drank a significant amount sometime back, if you can argue based on all the surrounding facts that he was metabolizing alcohol and his BAC was going down at the time of the test (which brings up how far after driving the test was done), and the Widmark equation tells you that your defendant drank a significant amount to be metabolizing alcohol down to those results given the time that had passed then that will help.

Was there bad driving? If so hammer loss of normal use and argue that that particular BAC does represent loss of normal use for this person given the observations, facts, and driving behavior of the defendant.

Are there other small facts that taken together show a picture of loss of normal use that you can link to your voir dire examples to show how that BAC shows loss of normal use.

Then the defense can rail on the 0.08 standard all the like and you've turned your case into the BAC one more factor showing loss of normal use.

If you can strongly argue one of those given what you know about your local jury, you might have a decent chance.

But you should strongly consider pleading it.

That's my local jury. :-)

thanks for your response, and I'm happy to offer a really sweet deal...but defense simply wants it dismissed! The guy is 20 y.o. and has a previous adult DWI conviction. He refused the SFST's, kind of argumentative according to the officer, but i have no roadside sound thanks to mic problems. he blew a .092 on the PBT, so it appears he is going down. the guy admits in the patrol car that he had the six beers. Stopped for going 75 in a 55..., nothing else really helpful that i have found, so i don't think loss of normal use is going to be my way out. sigh.

Sometimes folks with DWI convictions are your best friend on the jury - especially if they pled their cases and/or blew. They might be the kind to look at this kid (too young to develop real tolerance...at least, you could argue that) as someone who needs to learn a life lesson, especially if he was uncooperative. It is too bad that you don't have retrograde extrapolation information to help you, and it sounds like he doesn't look awful on tape.

If you really don't want to try the case, but you don't want to dismiss, you could consider a conviction for DUI - minor. At least he's definitely going to continue to have a record of alcohol-related offenses on his DL for the next time he's caught, and there are additional requirements beyond just a fine (I think he has to take a class and/or maybe do defensive driving; check the code). If he's acquitted on the DWI at trial, even the arrest could get expunged and his history won't be as complete.

i think the DUI is a great option. we were just talking about that in the office. also found out he's on probation currently for a DWLI. we've got the upperhand now with the pending revocation. we're going to get this kid into some inpatient treatment.

thanks for ya'lls responses.

You need to have a real down to earth discussion with your supervising tech. You do not post what the reference sample was. If the reference sample is really close to .08 then it may be possible for the tech to explain to the jury that the defendant, while giving a testable sample each time, may have altered the amount of labor he put into presenting the samples to the instrument.

you lost me on this one...

we have an open file policy...so our intox results are available to the defense.

we get the intox read out slip that has, in this case, the "reference" (.079) and two "subject tests" (.089 and .075). we always have the reference and two tests show up, along with four air blanks. is this not the standard way of doing this?

I could be wrong (correct me if so), but I think GaryB is saying that since the intoxilyzer procedures are designed to obtain and analyze deep lung air, it may be that your defendant didn't blow into the instrument in the same way both times. While neither sample was deficient enough to cause the deficient sample error, one sample may be more accurate because it may contain a better amount of deep lung air to be analyzed based on the way the defendant blew.

This explanation is an oversimplification and a reason to talk to the intox supervisor. They can explain the process the instrument uses and how this is possible in greater and more accurate detail than I have done here.

You need to determine if that appears to be what occurred in your case based on the training, experience, and expertise of the witness that will have to explain it to you and to the jury.

I thought if the two blows were more than .01 apart, it was an invalid reading? I could be wrong,too, but I thought was supposed to be a heads up that the sample was wrong or, as stated above the air flow was not right.

Breath samples must agree by 0.020 g/210L
Reference sample must agree by 0.010 g/210L

*sigh* .... blood, ALWAYS blood. I understand the difficulty surrounding this depending on the officer's location and jurisdiction size among other things, but still - if possible, hands down decision.

Normally, as a Licensed Chemical Dependency Counselor, DWI and DWI Intervention Instructor, and someone who has been doing this for 20 years, I am gratified to hear a prosecutor who wants to get treatment for somebody. But inpatient treatment for this kid? Maybe if he checks out as a very high probability alcoholic on evaluation and assessment by a qualified credentialed professional, but just to stick him in inpatient would be a waste of money otherwise. He may be an alcoholic, but he also very well may not be. Never thought I'd be saying this, on this blog especially, but this sounds to me like one who needs a wake-up call. Do the DUI Minor. At least he'll get a six hour class and some community service and some probation fees. With 0 tolerance for a minor, how could you miss, and why would you want to take a chance on an acquittal?

Don, this guy's 20 and already has a prior adult DWI already. If all he needed was a wake-up call, he already got it. And hit the snooze button.

Your are right about that. Just saying inpatient tx may not be the answer.

Just a thought, but exactly what facts do you have??

While you may not be able to show he IS over .08 at time of driving, you maybe able to show that to be UNDER .08 would require a miracle....

1) I believe your intox. expert will testify that some normal, healthy people become intoxicated, as far as being able to safely drive a car, at about .05, and that everyone, even the most alcohol tolerant, are intoxicated at .08. That is strong evidence that your man was intoxicated, even if the jury believes the lower number.

2) You've said nothing about your officer. Did he have any difficulty in determining this fellow was intoxicated prior to the tests? He may have determined he was obviously intox. very soon after making contact. If that is the case, what is your officer's experience? Did he just get out of the academy last week, or has he had years of on-the-job experience dealing with intoxicated people? If he's been a cop just a couple of years, he has dealt with more intoxicated people--up close and personal--than most people see in a lifetime. If he is a certified Intoxalyzer operator, he has had many, many opportunities to test his determination of intoxication against the results of the instrument, and he will tell you this has greatly strengthened his skills in determining intoxication.

Most jurors think they can tell if someone is intoxicated, but they have doubts that a cop can do this. That, of course, is nonsense. You need to bring up the foolishness of that position in voir dire. In your opening you should bring up your cop's qualifications, and then make a really big deal about it during your examination.

Don't limit yourself to his DWI experience. Was he ever a jailer? Jailers have to
deal withevery intoxicated person the cops arrest. Does he arrest people for PI? What about fights in which some party is intoxicated? Does he ever have to deal with intoxicated people who he ends up not arresting? Cops have to deal with intoxicated people all the time, and unlike you and I, they can't just find an excuse to leave them, but must talk to them, get information from them, and explain things to them. In short, they spend a lot of quality time with intoxicated people, and they can accurately spot intoxication faster than any other occupation, including doctors and bartenders.

3) You need to hammer on voir dire the legal definition of intoxication. Explain that it is not the same as most people's definition, which is "obviously under the influence." An example I use is: "Have you ever been to a party and found yourself talking to someone who seems perfectly ok, but after about 30 minutes, you noticed that your friend has repeated the same story twice, and that he's not as sharp as he usually is, and it suddenly dawns on you: Bob has had a little too much to drink. No one would say he's 'drunk' but he is feeling the influence? Bob is legally intoxicated if the alcohol has caused him to lose--even to a slight degree--the normal use of his mental faculties, even if it has not affected his physical faculties. Who here feels that standard is too strict?"

4) Point out in Voir Dire that driving is mostly mental. And point out that most DWI's can drive safely from point A to point B--so long as nothing unexpected happens; e.g. a child darts out in the street; a car cuts him off; there is an accident on the road in front of him, etc.

5) Cover in voir dire the limitations of the video: the viewer sees far less than the officer; the subject is a few inches tall on the screen instead of maybe 6' tall in real life; you can't see the flush of his face, the 1000 mile stare; the small motor movements that give away intoxication to an experienced observer.

I say: try it. If the jury wants to acquit him, and he later kills someone, there won't be any blood on your hands.

Regarding my point no. 4, in my previous post: Clay Abbott has a very brief video--I think it was made by the Lubbock DA's Ofc.--that is taken from the point of view of the driver, driving down a residential street. Suddenly a ball bounces out into the street and a couple of moments later, a child runs into the street after it. The video illustrates perfectly the sudden, unexpected things that can happen when you are driving, and why you need to have your wits about you.

If your courtroom has the capability, perhaps you can use that little video to illustrate your point in voir dire.

The two breath specimen readings must be within .02 of each other, or the Intoxilyzer will invalidate the test and issue a "no .02 agreement" message. I believe--don't quote me--that the difference lies in the amount of air the subject blows.

Janette A

quote:

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Originally posted by J Ansolabehere:
The two breath specimen readings must be within .02 of each other, or the Intoxilyzer will invalidate the test and issue a "no .02 agreement" message. I believe--don't quote me--that the difference lies in the amount of air the subject blows.

Janette A

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That's how I always understood it. Thus, the higher of the two is always the more accurate because it is measuring more of the deep lung air.

Your intox supervisor should be able to explain this to the jury.

that video with the kids and the ball may be one that we use in DWI Education classes. That may be a good idea for you guys--there are several videos in that program that you might be able to use. They are all short--borrow them from your nearest DWI Education instructor and give a look.