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Charges dropped due to incorrectly administered field test

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I had a client facing an OWI 2nd charge in Waukesha County Circuit Court.  The case was in circuit court because an OWI 2nd in Wisconsin is a criminal charge, whereupon if convicted you face up to 6 months in jail, along with a license revocation, fine, AODA, and ignition interlock requirements.  My client had been traveling on her way home and the officer stated that he saw her weaving across the center line and the fog line, tailgating, and speeding.  Subsequently my client was arrested and submitted to a chemical test.  The State’s offer in the case included jail time as is required by law and after discussing the case with my client, we decided it was in her best interest to file a motion on the case.

Our motion focused on all aspects of the State’s case:

While there was no doubt that my client had violated traffic laws, giving the officer the right to pull her over, his interpretation of her driving differed both from common sense and from what was visible on the video.  The officer alleged that she was weaving because she was intoxicated, that it was a sign of intoxication.  Typically, that would be the common-sense assessment of seeing a vehicle weaving on the road, however, here there were two other explanations that not only fit my client, but that made even more sense.  First, she had two lap dogs loose in the car with her and she indicated to the officer that they had been running around within her car, which had caused her to weave.  This explanation was entirely plausible, however, there was an even more reasonable explanation.  My client was obviously tailgating the vehicle in front of her and as soon as the vehicle moved over significantly increased her speed, so instead of not being in control of her car either because of intoxication or because of the dogs.  I argued that instead she was kind of just being a jerk, most people have had the experience of the sow driver in front of them and it is fairly common to drift to both sides of the slow vehicle to see if anyone is in front of them and to hopefully get them to move over.  This is exactly what it appeared my client was doing, while this is not good driving behavior it shows intentional action as opposed to the loss of her ability to control her vehicle; like would be the case if she was intoxicated.

The officer had indicated in his police report that she had failed two of the standardized field sobriety tests and therefore he had the ‘quantum of probable cause necessary’ to request a preliminary breath test; which came back at 3 times the legal limit.  That was his assertion, but he was wrong on multiple fronts.  Through cross-examination I was able to prove that he incorrectly administered the first of the field sobriety tests and because he had not administered the test right the Judge is unable to consider what the ‘results’ demonstrate.  Namely, there are a specific number of passes the officer must do and there are specific times these passes should take if the officer is administering the first field sobriety test, horizontal gaze nystagmus or the eye test, correctly.  He did too few passes, in too quick a time thus demonstrating that he administered the test completely wrong.  Second, I was able to prove that one of the two clues he attributed to my client on the second test, the walk and turn test, was not in fact a clue.  We watched the video in the court room several times and the officer admitted that based on the rules of what constitutes a clue, my client had not violated the instructions/rules of the test.  This was very important as now instead of failing two tests and passing one, she had actually passed two of the tests and the third was done wrong.

The Judge requested additional briefing on some of the arguments of the motion and following those briefs he ruled to suppress the blood evidence against my client.  With the Judge’s ruling the State had to dismiss the case against my client!