Friday, December 21, 2012

December 4, 2012: Jury Finds Client Not Guilty in OWI-1st Case (with .20 Breath Test Result)

In Wisconsin, there are certain counties that are notorious for taking a very hard line approach to drunk driving cases. Some of these counties even have a strict "no plea bargain " policy, meaning they will not reduce a drunk driving charge under almost any circumstance. You either plead guilty as charged or take the case to trial. Ozaukee County would certainly fall into this category. Our client, JEG, had the misfortune of being arrested for her first offense in this tough county. From day one, Dennis Melowski knew JEG's case was destined for trial and he prepared it accordingly. And he definitely had his work cut out for him. JEG was called in by another driver who claimed she repeatedly crossed the centerline while he was behind her. This call prompted an Ozaukee County sheriff's deputy to follow JEG for 3 miles, making similar observations. When JEG was stopped, the deputy claimed he smelled intoxicants and asked her to get out of her car. On the side of a busy highway, she was subjected to 3 different field sobriety tests, all of which she supposedly failed. She was arrested and taken to the Ozaukee County sheriff's department for a breath test, the result of which was .20, two and a half times the legal limit. With all this evidence, the case against JEG initially looked very strong and Ozaukee County wasn't interested in giving her any breaks.

But as is typically the case, there are two sides to every story. As Dennis dug deeper and deeper into the case, he realized it wasn't nearly as strong as it first appeared. It started with JEG's insistence that she had only 4 drinks over a several hour period of time, an amount that couldn't possibly yield a .20 breath test result. For the breath test to be right, JEG would have needed to drink more than 3 times the amount she was so sure she had. The circumstances surrounding her drinking simply did not allow JEG to have had that much to drink. In fact, she had never had that much to drink at one time in her entire life. Something had to be wrong with the breath test result. And there was. Through his investigation, Dennis was able to prove that  "residual mouth alcohol" contaminated JEG's first blow into the machine. When residual mouth alcohol is present, the officer is required to wait 20 minutes before attempting another breath test, allowing time for the residual alcohol to dissipate. The officer's own training manual is explicitly clear on this point. But the officer never followed this important protocol. Alarmingly, he didn't wait the required 20 minutes because he "didn't think it was a big deal." The Ozaukee County prosecutor even called an expert witness at the trial to try to back up this absurd claim. But the problems with the case against JEG didn't end with the breath test. As it turns out, the other driver who reported JEG portrayed her driving much differently at trial than how it was originally portrayed in the police report. In fact, by the time Dennis finished cross-examining this witness, it was clear there were very few "problems" with JEG's driving at all, aside from things that you would see almost any driver do if you followed them long enough. The officer who arrested JEG didn't fare much better when confronted on the stand by Dennis. He admitted that none of his observations of JEG had been recorded on his fully functioning squad video camera because "he pushed the wrong button." By this point in the trial there was a distinct theme developing: Dennis kept pointing out mistake after mistake and the County kept offering flimsy excuse after flimsy excuse. In the end, though, the jury saw right through this sad attempt to salvage an obviously broken case. And they sent their message to the County loud and clear: JEG was Not Guilty on all charges. She was completely exonerated. JEG was overcome with emotion and relief when the jury announced their verdict. After nearly two years of trying to clear her good name, justice had finally been delivered. It couldn't have happened to a more deserving person.