Sample Case 1: State of Maine v. M.
Defense Attorney: John Scott Webb, Esq.
Offense: Operating Under the Influence (OUI, DUI, DWI)
Maximum Sentence: 364 days in jail, 90 day license suspension, $500.00 fine
Synopsis: Client took an illegal left hand turn onto a State highway in the presence of a police officer just after midnight. The police officer pursued client and the stop was made without incident. Client tried to perform field sobriety tests but failed. Client was then transported to the police station and administered a breath test. The State of Maine requires that a valid breath test be comprised of two breath samples that are within .02 of each other. In this case, after observing the 15 minute deprivation period prior to the test, the officer asked the Client to deliver the first breath sample and received a valid sample of .20 BAC. During the second required sample, the Officer received an “invalid sample” requiring him to abandon the test, start a new 15 minute deprivation period and begin a 2nd breath test. The 2nd breath test resulted in what appeared a valid .18 BAC. When Counsel obtained breath test discovery, the only test result included in the discovery package was the printout reflecting the .18 BAC test. This .18 BAC test was the basis of the Bureau of Motor Vehicle’s administrative license suspension and the criminal prosecution. On its face, this case appeared hopeless. At the administrative hearing held at the Bureau of Motor Vehicles, the officer was cross-examined by Counsel. While trying to establish if the .18 BAC test was valid, it was revealed that there was an initial failed test that resulted in a .20 BAC & “invalid sample” as described above. When asked for more detail about the initial failed attempt, the officer conceded that he did not have the printout in his discovery package. The hearing was continued to allow Counsel to obtain the initial failed test and evaluate. Once the printout of the initial failed test, (showing the .20 BAC sample and invalid sample), was obtained by Counsel, it became clear that the .18 BAC test (the 2nd test) was also not reliable for evidentiary purposes since the initial failed test interfered with the required 15 minute deprivation period needed for the 2nd test to be reliable. In other words, once the initial failed test was completed, the breath testing protocol was not properly observed and the 2nd test was started too soon. This would never have been discovered if the information initially supplied for the hearing had not been challenged and examined. This is a classic case of why a lawyer must fight for a client instead of giving up and proclaiming the case a complete loss. Once the administrative hearing was reconvened, the initial test result was put in evidence. Following additional cross examination and oral argument, the administrative suspension was removed from the client’s driving record.
Resolution: On the day of jury selection in Superior Court, both the State and Defense Counsel filed motions in limine asking the trial judge to determine if the .18 BAC test result would be admitted into evidence during the trial since the deprivation period did not conform to State breath testing protocol. The District Attorney’s Office argued that the .18 BAC test result should be admitted into evidence against the client, arguing that although the deprivation period was only for 10 minutes, a full 15 minute deprivation period, although required by the State breath testing protocols, is not actually required and that since all other aspects of the breath testing protocol were met, the result should stand against the client at trial. Defense counsel argued that where an invalid sample, indicating that residual mouth alcohol existed in the first breath test followed by a failed deprivation period in the second breath test, was present, the 2nd test should be excluded as evidence in the trial since it was scientifically unreliable and not representative of the client’s actual Blood Alcohol Content. Following oral argument, the trial judge ruled that the test result could not be used against the client at trial. The case was subsequently dismissed