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Client was prosecuted for DUI after being stopped for horrible driving and failing field sobriety tests. She refused a breath test. At trial, we called her friend and a T-Mobile records custodian as witnesses. Our trial theme was the client’s “terrible, horrible, no good, very bad day.” She had learned earlier in the day that her mother’s cancer was inoperable and she had only 3-6 months to live (she passed about six months after the arrest). Then that night while commiserating with her girl friends, her boyfriend broke up with her via text message. She was emotionally distraught and drove home. On video, her driving was horrible; she went outside the line a few times and almost hit a wall barrier exiting JTB onto I-295. The officer followed her with video all the way to Beach Blvd. where she straddled two lanes and almost turned right from the left turn lane. She did fairly well on the field sobriety tests, but took 15 steps instead of nine on the Walk and Turn test and put her foot down several times on the One Leg Stand test. She was arrested and refused a breath test when offered one at the jail. The arresting officer was a DUI enforcement officer. The breath test operator only noted a smell of alcohol and bloodshot/watery eyes. At trial, we entered her cell phone records showing she was texting during the time the officer followed her and recorded the horrible driving. We had prepared the jury in jury selection to know the difference between saturated weaving indicating a condition (intoxication) and momentary lapses in driving and corrections indicating inattentiveness (texting). The records also showed her last text occurred four minutes before the arrest was made, proving the DUI investigation took less than four minutes. We put on our client’s friend who was with her the entire evening and got into evidence her terrible, horrible, no good, very bad day. We had prepared the jury in jury selection to understand that emotional stress and trauma can effect one’s motor skills and attentiveness. We stressed the DUI enforcement officer was in the business of looking for a crime even if one didn’t exist. We showed the breath test operator was trained to observe signs of alcohol impairment and got him to admit that an odor of alcohol on one’s breath and bloodshot/watery eyes may be signs of ingestion but not impairment, so he had to admit he observed no signs of impairment by alcohol on our client. In the end we argued all the jury had was an opinion. We had prepared them in jury selection by getting them to confess they could never convict anyone if the only evidence a crime even happened was an opinion. The jury took 44 minutes in deliberations and returned a verdict of NOT GUILTY.

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