The Devil in the Details: DWI Breath Test Exclusion Leads to Not Guilty Verdict

Our client was charged with Operating Under the Influence (OUI) after Amesbury police stopped her late at night and claimed a breath test showed she was over the limit.

On the trial date, Attorney Murat Erkan challenged the admissibility of the breath test and established that the Commonwealth had failed to comply with the regulations governing breath-test evidence. The judge excluded the breath test.

The prosecutor started her case with a question: why would we put a slam-dunk guilty like this on for trial? She got her answer soon enough, leaving her stunned and scrambling to prove impairment the old-fashioned way: through the driving, the officer’s observations, and the field sobriety tests.

But that was not the knock-out blow. Through painstaking review of the body-worn camera footage, we uncovered something most unexpected; something the prosecutor never caught: the supervising officer’s under-the-breath comments, which showed in real time – before anyone had time to polish the reports – that the officer questioned whether our client had actually failed the field sobriety tests and remarked on how unusually well she had performed. Those comments were devastating to the credibility of the Commonwealth’s version of events.

The defense then used the video to show what actually happened: our client was cooperative, responsive, steady, followed instructions, produced her license and registration, completed the alphabet test without difficulty, and performed far better on the roadside exercises than the written reports suggested.

After the breath test was excluded and the body-camera evidence was fully exposed, the case was tried to a judge. The judge found our client not guilty.

This result is a reminder that the instinct most lawyers have – to hammer their clients to plead out in OUI breath test cases – is usually just a product of laziness and fear. These cases can be won, if only lawyers show courage, roll up their sleeve, and work relentlessly to show their clients’ innocence. OUI defense is often won in the details. A breath-test number is not self-proving. Police reports are not the final word. And sometimes the most important evidence in the case is not in the report at all – it is buried in the footage, waiting for someone to find it.