I won a case a few months ago where the officer did not testify to any odor of an alcoholic beverage on my client’s breath. This was I think the first time that had happened. I am in front of the same judge a couple weeks ago and the same thing happens. Now I knew I was going to win the case based on the field sobriety, realized I had no idea the officer would omit this. The prosecutor realized it and tried to get him to say it by re-asking questions that were already answered so my objections were sustained.
I wrote on my notes in large letters ODOR and circled it. When it came time to argue I held it up and reminded the judge this was the second time this happened where we were trying a case. She remembered the first time and granted the Motion for Judgment of Acquittal. As I type this, I am back from court where the issue came up in a different context and that is the next blog.