State v. Walter B.
Grafton County Superior Court.
Grafton County Superior Court charge of aggravated DWI with a breath test of 0.18 BRAC. Client stopped for speeding, arresting officer claims he fails field sobriety tests and arrests. Client agrees to take breath test. Result of breath test on Intoxilyzer 5000 EN is a 0.18 Breath alcohol reading.
Client has chewing tobacco in his mouth at time of stop and drank while chewing tobacco was in his mouth. There is a video that shows client attempting to remove the chew from his mouth at the time of the stop and during the 20 minute observation. Police do restart the 20 minute observation but do not allow or ask him to rinse and clean out mouth.
Defense hires Mary McMurray a breath test expert from Wisconsin to testify that the chewing tobacco could contaminate the breath test making it unreliable scientifically. Mary McMurray explains how chewing tobacco can contaminate the breath test and create a false positive reading.
State’s expert is Matthew Howe who opines that the chewing tobacco would not cause there to be any contamination or elevation of the breath reading. Mr. Howe is cross examined vigorously and confronted with a learned treatise and concedes that he has never done any experiment involving a dosed subject and mouth contamination.
Jury finds client not guilty.
Summary of Outcome:
Not guilty of aggravated DWI.
February 6, 2013
Type of Case:
DWI/ criminal law.