The firm’s client was stopped for erratic operation. After field sobriety tests, the officer arrested the client and brought her to the police station for breath test on an Intoxilyzer 8000. The Intoxilyzer registered a result of .27 — more than three and a half times the legal limit.
Attorney Smith fought at the BMV to stop the client’s license from being suspended. He argued that the officer did not conduct a proper 15-minute observation period for administering the test. Without a proper pre-test observation, the defense argued, residual mouth alcohol could contaminate the test. The defense also argued that the likelihood of contamination was corroborated by the fact that client did not exhibit signs on the booking room video or cruiser video that were consistent with a highly intoxicated person.
Important to the result was careful review of the video. The officer and client were situated such that dual-screen computer monitors were between them, at least partially obstructing line of sight. The officer testified that, despite this, he could still observe the client between and above the two monitors. But as was pointed out, a close review of the video shows that the officer and Client needed to lean to look around the monitors to speak to each other. The Hearings Examiner concluded,
I do not doubt that the officer could see parts of [Client] from his seat behind the desk. He was a credible witness. However, supporting [Client]’s argument that that line of sight was not a sufficient observation point, was the fact then when the officer and [Client] spoke, they seemed to lean and look over or around the computer monitors. That is strong evidence that the officer’s view with the monitors in the way was not unobstructed.
. . .
[Client’s] conduct in the Intoxilyzer room was not that of a person more than 3 times the legal limit. [Client] was also slight in stature, and one would assume if she was that heavily intoxicated, more than 3 times the legal limit at a .27, that her actions would more clearly match that of a highly intoxicated person.
For these reasons, based on the totality of the circumstances of this case, I cannot find that the Secretary of State met its burden of proof on issue #2.