DUI CASE JURY TAIL – NOT GUILTY
Client was arrested for an OWI, second offense. After doing a satisfactory job with field sobriety tests at the Officer's request, the client consented to a preliminary breath test and registered a .17 blood alcohol content on the road – more than two times the legal limit. He was immediately arrested for Operating While Intoxicated, second offense. His car was impounded, his license plate removed, and he was taken to the police department for further breath testing and booking.
At the Police Department, the officer was required to observe the client for 15 minutes prior to administering an additional breath test. In an overwhelming majority of breath test cases, the blood alcohol result obtained on the breath test machine at the police department is the only result that can be used to establish a defendant's blood alcohol level. However, several minutes into the “observation period,” the officer noticed that the client had a tongue piercing and a metal stud inside his mouth. Aware of his responsibility to ensure nothing is placed in the mouth area during the observation period, the officer asked the client to remove the tongue piercing from his tongue. The client obliged and reached into his mouth the remove the metal stud. Attorney Joseph Awad requested the booking video of the arrest and noticed that his client clearly reached into his mouth during the critical observation period. It was also clear that the officer did not re-initiate the observation period after his client placed his fingers into his mouth. On the basis of the video evidence, Mr. Awad brought a motion to the court requesting a suppression of the .16 breath alcohol test, obtained at the police department. The judge heard oral arguments and reviewed the legal briefs submitted by both sides. After careful deliberation and several hearings, the Judge agreed with Mr. Awad and suppressed the breath test, making the results of his client's blood alcohol test inadmissible in Court.
Undeterred by the inability to use the suppressed blood alcohol result, the prosecutor remained stubborn and refused to dismiss the case. As a result, a careful discussion of the pros and cons of trial was thoroughly discussed and the client decided to take the case to trial on the advice of Mr. Awad. At trial, Mr. Awad cross-examined the police officer regarding the field tests, his client's statements, and other aspects of the case. The jury returned a verdict of NOT GUILTY. The client's OWI second offense was dismissed!