Blog Topic

If You're Drinking Beer With Dinner, Don't Forget the Wings
Posted by: Zach Peagler
August 11, 2009

I guess this falls under the topic of "Court Decisions" although I probably should make a new topic for "Creative Lawyering" for future stories like this one emailed to me by a friend: An Oregon man has pled not guilty to the charge of DUI based, in part on the fact that he is obese and therefore could not perform the "standard" field sobriety tests given by the police.  Apparently, this defense has some history, as an Illinois man was acquitted on similar grounds.  

The man in the instant case is 5'10" and weighs 230 lbs, hardly an "off the charts" case.  However, his lawyer has filed a pretrial brief to suppress evidence of the field sobriety tests administered based on the fact that he is, in fact "obese."  According to the article, written by Elizabeth Dinan, the attorney attached documents to his pretrial brief from Metropolitan Life Insurance, the Centers for Disease Control and the National Center for Health Statistics, all
characterizing men of the Defendant's height and weight as overweight and/or obese.

 The crux of the argument is that certain "standard" field sobriety tests, such as walking in a straight line touching heel to toe, cannot be performed by obese people.  Remember, all that is needed in any criminal defense is a "reasonable doubt."  If the attorney can convince the Judge, probably based on literature or case studies, that obese people are not capable of performing such tests, the evidence can be suppressed and the prosecution's case becomes much more difficult.  (There is no mention in the article of whether a breathalyzer was performed or not.)

I'll try to check back in on the outcome of this case and update the success, or lack there of, of this defense tactic.  In the mean time, don't shy away from the chicken wings at the bar.

 Drive Safe,

Zach 

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CA Supreme Court Rules Breathalyzer Is Not Infallible
Posted by: Zach Peagler
July 10, 2009

An interesting decision reached by California's high court yesterday.

A unanimous decision by the California Supreme Court was issued Thursday acknowledging that breathalyzer results may vary depending on the individual driver. Read the entire story at http://www.al.com/newsflash/index.ssf?/base/national-13/1247167425151170.xml&storylist=national

The article goes on to say, "Studies have shown the breath-to-blood ratio varies widely among different people and even in the same person depending on such factors as health, menstrual cycle and even the weather."

This decision will further allow defense attorneys to challenge the accuracy of these breathalyzer tests as well as present these issues of variability to a jury.

Therefore, if you have been arrested; given a breathalyzer where you blew over the legal limit and you think there is no use in hiring an attorney to fight your case you are wrong. Not only can a competent DUI attorney look to challenge all aspects of your initial stop and arrest but they can also begin to challenge all aspects of the breathalyzer itself.

Drive Safe,

Brett

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