In a Mays Law Office new record, Attorneys Steve Mays and John Orth scored double NOT GUILTY verdicts in an Operating While Intoxicated (OWI) and Prohibited Alcohol Concentration (PAC) case in Dane County. The client, BS, was stopped for operating without required lamps lighted shortly before 10:00 p.m. on Johnson Street near the UW-Madison campus last summer. When the officer inquired whether BS had had anything to drink, she candidly informed him that she had just had two beers at the UW Memorial Union Terrace 20 to 30 minutes prior. The officer had her exit her vehicle and perform field sobriety tests amid heavy vehicular and pedestrian traffic. After deeming her performance unsatisfactory, he placed her under arrest for OWI. BS submitted to an Intoximeter EC/IR breath test that yielded a result of .08. The officer issued her citations for Operating While Intoxicated (OWI) and Operating with a Prohibited Alcohol Concentration (PAC).
With no intention of advising BS to plead to either of these charges, Attorneys Mays and Orth requested that the matter be set for trial, originally scheduled for November of 2022. With trial approaching, Attorney Orth filed with the District Attorney’s office a scholarly article, admissible as an exception to the hearsay rule as a “learned treatise,” regarding research studies regarding the physiological absorption, distribution and elimination of alcohol in the human body. This notified the prosecution of his intention to mount a blood alcohol “curve defense.” The fundamental basis of such a defense is the proposition that at the time of driving, there may be unabsorbed alcohol in a driver’s stomach that was absorbed into the bloodstream between the time of driving and the time that an evidentiary chemical test of blood, breath or urine was conducted. This, in turn, would lead to a test result higher than what the driver’s alcohol level would have been at the time of driving – the pivotal time of essence in a PAC charge. Rather than recognize that there might be a fatal flaw in the case and offer to resolve on reduced charges, the prosecution requested an adjournment in order to secure a toxicologist supplied by the Wisconsin Department of Transportation’s Chemical Test Section. This was a mistake the prosecution would come to regret. The request was granted, and the matter was rescheduled for trial to March of 2023.
When the matter proceeded to trial, the State’s first witness was the arresting officer. On direct examination he testified to his extensive training in the detection and apprehension of intoxicated drivers, the damning indicators of intoxication displayed by BS during her performance of field sobriety testing, and the Intoximeter test results showing that she was over the legal limit (the legal limit being .08 and above). Finally, he testified to what the State attempted to characterize as practically a confession – when asked at the end of her processing if she thought she was under the influence of intoxicants at this time, she responded “yes” (which BS herself was able to later address as being the result of simply feeling worn down and defeated and willing to say whatever the officer wanted in order to simply get the ordeal over with).
Attorney Mays’ cross-examination revealed just how little weight the officer’s evaluation of BS’s performance on field sobriety testing should carry. BS’s performance on the balance-related field sobriety tests (the one-leg stand and walk-and-turn tests) was perfectly fine, something the jury could see with their own eyes through body cam footage. It was the Horizontal Gaze Nystagmus (HGN) test that was put forth by the officer and the prosecution as the most compelling evidence of BS’s impairment. The officer testified that he observed six out of six possible clues of impairment and that the test – when administered properly – could correctly identify subjects with an alcohol concentration of .08 or above 87% of the time. However, as Attorney Mays made abundantly clear through his extensive cross-examination, whatever value that test might have had was severely compromised by the circumstances under which it was administered (i.e., that it was not administered properly). Confronted about his OWI training with the officer’s own National Highway Traffic Safety Administration (NHTSA) training manual and other training materials – said training Attorney Mays, himself, had received over the years along with periodic training updates – the officer had to reluctantly concede that the multitude of flashing lights (including the officer’s own emergency lights), passing traffic, and other distractions could induce other types of nystagmus (involuntary jerking of the eyes) and he had no way to tell whether the nystagmus he observed was due to alcohol consumption or anything else. This was observed on the arresting officer’s backup officer’s body worn camera – which was clear neither the arresting officer nor the prosecution had given any attention to, much less probably even seen, prior to the trial. By the time Attorney Mays was finished with him, the arresting officer simply had no choice but to admit that the manner in which he administered the test completely invalidated the HGN test results – the prosecution’s claimed “most damning” field sobriety test evidence.
The prosecution then called its expert toxicologist, no less than the Chief of the Chemical Test Section. On direct examination the State’s expert attempted a technique known as speculative retrograde extrapolation (although prosecution witnesses will steadfastly refuse to acknowledge the entire name and will simply call it “retrograde extrapolation”). This technique ignores the reality that a person’s alcohol level when charted over time takes on a curve shape, rising during the absorptive phase, peaking, then declining during the eliminative phase. Instead, the manner in which State toxicologists calculate a speculated alcohol concentration at an earlier point in time rests on the presumption that the subject was in the eliminative phase throughout the elapsed time, in this case roughly an hour between the time of driving and the time of testing. Relying on this baseless presumption, the State’s expert opined that BS’s alcohol concentration at the time of driving was likely as high as .10, rather than .08. The prosecution further elicited testimony that based on the Department of Transportation’s standard blood alcohol chart, the maximum alcohol concentration after drinking two beers for a female of BS’s weight would have been approximately .05 – the implication being that BS was lying when she told the officer that she had only had two beers. Again, relying on unfounded assumptions, this calculation was predicated on those two beers having been 4.2% alcohol by volume (ABV) “light” 12-ounce beers. But as anyone who has enjoyed a beer or two at the Memorial Union Terrace would know, that assumption is unlikely to hold true.
Attorney Other started off cross-examination by forcing the State’s expert to acknowledge the slew of shortcomings inherent in breath alcohol testing, from the Intoximeter EC/IR being programmed to accept test results with a whopping margin of error of .02 to the fact that it neither of the two required samples to have an “acceptable” test result, reflects the alcohol concentration at the time of driving nor even reliably correlates to a blood alcohol concentration, the actual source of impairment. Attorney Orth then directed the toxicologist to repeat her calculation of peak alcohol, but this time replace the two 12-ounce light beers with two 15-ounce beers, one with an ABV of 5.2% and one with an ABV of 6.3% (which BS herself would later verify on the witness stand – those being a Fat Tire and Fantasy Factory brands). Now the peak alcohol level came out to approximately .08 – entirely consistent with BS’s statements to the officer and right in line with the test result obtained an hour after driving. After thorough questioning regarding the body of research on the subject of delayed alcohol absorption, the dubiousness of the (speculative) retrograde extrapolation technique, and the unlikelihood that the assumptions relied on in reaching her initial estimates bore any resemblance to the reality of this specific case, the State’s own expert had to concede that she simply could not say what BS’s alcohol concentration was at the time of driving and that it may well have been significantly below the .08 legal limit. With her retrograde extrapolation having been thoroughly exposed as nothing more than meaningless algebra masquerading as science, the State’s expert ultimately wound up being a more effective witness for the defense than the prosecution.
Following closing arguments Attorney Orth asked the jury to return not guilty verdicts. A mere 27 minutes later, they did precisely that.