BASIC FACTS: A New Hampshire state trooper received a call for a reported domestic argument in a car on the side of a New Hampshire highway. Trooper sees female pedestrian walking toward the car and entering the passenger side. The trooper activated his emergency lights and approached the vehicle. The driver and the woman were arguing in the car when the trooper arrived at the driver’s door.

The trooper smelled the strong odor of alcohol and asked the driver where he was coming from. The driver told the trooper he had come from a restaurant where he had consumed a marguerite and a beer. The trooper asked the defendant to get out of his car and perform a series of roadside gymnastics known as “standardized field sobriety tests”.

The defendant agreed to perform “field sobriety tests”, and was generally cooperative with the trooper throughout the roadside encounter. The trooper then had the driver perform a “horizontal gaze nystagmus (”HGN”) test” (the test where the driver has to follow a pen), a walk and turn test (the nine step heel-to-toe test on the white line), and a one leg stand test. After the defendant predictably “failed” these field sobriety tests, the officer arrested the defendant and charged him with driving while intoxicated (DWI).

At the police station, the defendant agreed to submit to a breath test. The purported result of the breath test was a .11. The state charged the defendant with DWI on two alternative theories: one, that at the time he drove his car he was impaired by alcohol; and two, that he submitted to a breath test that resulted in a .08 or higher.

DEFENSE AND TRIAL: Innocence. By cross-examining the trooper about his observations, Attorney Stevens illustrated many aspects of the driver’s performance on the field sobriety tests that were consistent with sobriety. There were not enough facts to prove beyond a reasonable doubt that the defendant was intoxicated. The defendant also presented the testimony of expert witness Charles Smith of CES Consulting in Florida. Mr. Smith explained why the defendant’s breath alcohol concentration was likely lower when he drove than when he submitted to the breath test later at the station.

The defendant rejected a plea offer of the minimum DWI penalties and a withdrawal of the administrative license suspension for “failing the breath test”. The state presented the testimony of the trooper and a state lab expert. The state’s expert testified that the machine was in perfect working order; The trooper testified that the defendant was intoxicated. At the conclusion of the trial, the defendant prevailed.

RESULT: NOT GUILTY ON BOTH CHARGES!!!

Attorney Stevens thanks God for this successful defense!