Watch them sweat, but beware the cool judge

I had an officer on the stand today who did a pretty good job on the SFSTS, but my client is 5’7″ and weighs 265.  The officer denied weight could be an issue and then I approached him with the same NHTSA Manual he had for training.  I felt like Jack Nicholson in the Shining as he saw the “weapon” approaching.  At first he could not be sure it was the same Manual, but then decided better to agree.  He then readily agreed that weight was an issue, but he had seen large people pass these exercises.  I asked him about HGN causes other than alcohol and he conceded them.  The judge was taking notes.  I asked if he questioned about smoking and caffeine and he admitted he did not.  When I asked why not he could not provide an answer other than he didn’t.  It turns out he was also a Certified Breath Test Operator and drove my client to the station with him cuffed in the front seat.  He knew my client didn’t eat but could not say he didn’t belch.  Once he took him into the station, he said the Breath Test Operator did the test within 5 minutes.  Breath Tech agreed with the 5 minute observation and that belching could have occurred that neither he nor the officer would have seen.  Home run!? Maybe we are only going to be arguing iffy SFSTs and not terrible driving.  I have won with worse.  Not a home run when the judge reaches over the fence and catches the ball.  To my disappointment he let the test in and client was “guilty by gadget.”  The MVA Hearing was continued last week so I have ordered today’s trial tape to attack the 20 minute issue there.  Even when you get perfect testimony, if the judge is not persuaded about the legal issue, you loose.  Blogs are meant to teach, and you have to teach when you lose as well as win.  This is why I prepare every client for disaster.  This client is in treatment and got the same disposition as if he had plead guilty 4 hours earlier.  Try the perfect case, but be prepared if it is not perfect enough.