I had a no breath test case today where the State offered the driving while impaired and would defer on sentencing. My client had finished treatment months ago and had no record, so I told the prosecutor I am playing with house money and we would try the case. The trooper remembered only what he wrote down. He remembered nothing else. He claimed to be NHTSA Certified, but then admitted he took a NHTSA course at the State Police Academy, and therefore passed the State Police test. NHTSA does not certify anyone, including me, as I passed the same course.
The trooper needed to refer to his notes and on direct left out that my client told him he had a knee injury. On the walk and turn test he said my client lifted his left foot while taking the appropriate small steps to turn around. I demonstrated it to him and asked whether he would expect a barefooted person to drag the left foot across the road surface, or lift the foot while turning. He said you drag the foot on the ground. I guess you then “fail” the test when you start hopping as you tear the skin off the bottom of your foot. Woman wearing high heels or people wearing flip flops are encouraged to do this barefoot. Ridiculous, and this trooper is part of the DUI Task Force! My client was perfect on the 1 leg stand. The judge interrupted my closing argument because she was prepared to enter a not guilty verdict. I had an audience of prosecutors who were waiting to go to lunch with my prosecutor and the public defender stuck around to watch. The judge gave the prosecutors some pointers after it was over. Nice way to start the week.