WAS JOE REALLY GUILTY OF DUI?
There is no doubt about it, winning a DUI case is an uphill battle. It is the most political crime out there these days. Judges go out of there way to find anything that can justify their verdict of “GUILTY.” Innocent people are getting convicted of DUI, and it is a real shame. A DUI conviction can literally ruin a person’s life. Let’s take a look at a commercial truck driver by the name of “Joe” who unfortunately got a DUI. If found guilty, he will not be able to drive a commercial vehicle for one year, he will lose his job, and the chances of being rehired again to drive a truck are very slim. A conviction will literally result in financial devastation for him and his family.
Joe met a few friends at a local sports bar. He drank five beers over three hours. He is 48 years old and weighs 270 pounds. He spent the last hour at the bar nursing his last beer. When he left the bar, he headed for home, driving seven miles without a problem. He ran into a road block about a mile from his home. His driving was fine but the police were allowed to stop him (Road blocks are a DUI exception to the Constitution, which normally prevents seizing a citizen without a reason). The police smelled alcohol and ordered him from his car, thus beginning Joe’s nightmare.
As a result of having played as an offensive linemen, in college, Joe’s knees are shot. As he got out of his car, he stumbled a bit when his left knee slightly gave way. Now the police were on to him. He smelled like alcohol and he was unsteady on his feet. They asked him to perform some field sobriety “tests.” They asked him to do the 9 step walk and turn. The police note that he missed heel to toe on 12 out of 18 steps, and he raised his arms four to five inches to keep his balance. They tell him he next has to put his 270 pound frame on one leg and raise his other leg six inches from the ground while counting to 30. Joe lifted his leg but put his foot down on the count of 2. He kept going and next put his foot down on the count of 21, then finished to 30. He raised his arms slightly and swayed a few inches while balancing himself. They had him do his ABC’s and count backwards. He did OK on these but said the number 50 two times. Joe was nervous. He knew his career was on the line. He felt fine but knew he wasn’t perfect on the “tests.” His stomach was in a big ball of knots. The cops next had him blow into a hand held breath machine. He burped prior to blowing into it, but the cop said nothing. He blew a .16. They slapped cuffs on his big wrists, read him his rights and put him in the back of a cruiser. He went to the station and blew into the Intoxilyzer 5000, a machine that is two generations behind the technological curve and is described by the Department of Forensic Science as being dated, unstable, and unreliable. His stomach was really upset then. He felt like he was going to throw up. They put him in front of the machine and told him to “blow hard.” They yelled at him to blow harder, blow harder! He was out of breath, blowing as hard as he could. He continuously had an upset stomach and burping going on. The cop never asked if Joe burped, rather just demanded that he not burp. The results of the test were a .10. He was put in a holding cell and given a $2,500 bond. He called a great bondsman who responded very quickly and got him out of jail. Is Joe guilty? He failed his tests, right? He failed the breath test right?
Some lawyers may see that the stop seemed ok, the field sobriety tests weren’t so hot, and he had a .10 on the machine. They may go to court and get the minimum sentence for old Joe, but he still ends up with a conviction. A good DUI defense lawyer would never let Joe plead guilty. Joe is NOT GUILTY!! A man who weighs 270 pounds who has 5 beers over three hours would only have a blood alcohol content of a.04! Joe paid his tab with a credit card. His lawyer should obtain his bill, and subpoena the bartender and his buddies to court. He also should subpoena his medical records for the knee surgeries, and send him to a gastroenterologist to see if he suffers from GERD. He also needs a lawyer who knows, and will use both the NHTSA Manual (National Highway Traffic Safety Administration) and the Virginia Breath Test Operators Manual.
The cop said Joe didn’t do so good on the 9 step walk and turn test. There are 8 components of that test. It takes two failures or “cues” to fail the test. Did Joe maintain the starting position? Yes. Did Joe start the test too soon? No. Did Joe step off the line at any time? No. Did he count out loud? Yes. Did he actually take 9 steps out and 9 steps back? Yes. Did he do his turn properly? Yes. Did he use his arms for balance? Yes……..NO!! The NHTSA manual says that Joe is allowed 6 inches. Joe did not fail this part of the test! Did Joe miss heel to toe? Yes, many times, but this is counted as only one thing wrong! Joe did seven out of the eight things right! According to the NHTSA guidelines, Joe passed this test. The manual also says that people more than 50 pounds overweight have difficulty performing this test. Even if Joe failed the tests, there is a reasonable explanation.
The cop says he didn’t do so good on the one leg stand. There are four components to this test. It takes two “cues” or failure of two components to fail the test. Joe did put his foot down a couple of times but that is only one cue. He kept his arms at his side! He didn’t hop! He did sway. He did, but again the manual allows for up to six inches of sway. Joe missed only one component of this test. Even though he put his foot down twice, he failed only one component of this test. According to the NHTSA manual, Joe, bad knees and all, passed this test. The manual also says that people more than 50 pounds overweight have difficulty performing this test. Even if Joe failed the tests, there is a reasonable explanation.
What about the breath test? The machine measures alcohol coming from the lungs. The problem is, is that Joe was micro burping. Turns out he did have GERD, a condition where ones esophageal sphincter (between the stomach and esophagus) opens allowing gas and liquids to escape into the esophagus. When Joe blows into the Intox machine, he is blowing in alcohol molecules from his lungs AND his stomach. The esophagus and trachea open up at the same hole! Ever swallowed something down the wrong hole?? The Intox never picks up the difference between stomach alcohol and lung alcohol. For every 1 alcohol molecule found in the lung, there are 2100 of them in the blood. This is called the Partition Ratio. The problem is when alcohol comes from the stomach it is automatically multiplied by at least 2100 times! So Joe isn’t a .10!! He is getting a false result on an unreliable machine. Also, the cop didn’t administer the test according to the manual. He is supposed to ask, prior to each blow, if the subject has in fact burped, not demand that they don’t. Also, the breath is supposed to be a long, steady breath, not a forced hard blow! An expert can testify how both of these things can lead to false results on a breath test.
Joe is not guilty!! It is not illegal to drink alcohol and drive a vehicle. Will Joe be found guilty? It all depends on the Judge ultimately. But if he pleads guilty, he is 100% likely to be found guilty. The sad thing is, is there are a lot of Joes out there getting falsely convicted. Joe and those like him need a lawyer who has expertise in breath testing and field sobriety testing. He needs an aggressive lawyer who will protect his rights and fight for his freedom. He needs a lawyer who knows how to obtain the leading scientific experts in the country to help defend a case. Joe needs someone who cares about him and his career. Then and only then will Joe have a chance to be found not guilty.
At our firm, we care about our “Joes” and we work hard and prepare hard to fight for them. Thank you for entrusting your “Joes” to us. We will always do our best to make sure that all potential defenses are presented to the court. Joe has worked hard all his adult life. He doesn’t deserve to be found guilty of a crime he did not commit. We are proud to fight for Joe!
Michael C. Tillotson
Is your story similar to Joe’s? Have you been arrested for DUI/DWI in Virginia? As you can see there are many potential issues involving a DUI/DWI case. It is in your best interest to acquire legal assistance from an attorney who is dedicated and educated on DUI/DWI defense. You can receive a FREE consultation with Mike if you have been arrested of DUI/DWI in Virginia by contacting our office today.
Michael C. Tillotson – DUI Defense Attorney in Virginia. Office 757.969.5197 http://www.VaDUILawyer.com or email at info@vaduilawyer.org
