When the Juror Asks for your Business Card after Acquitting your Client of DWI

Our client was charged with Operating Under the Influence (OUI) after rear-ending another driver at a stop light. The Commonwealth had what many people assume is the magic number in an OUI case: a 0.08 breath test.

But breath-test cases are not magic-number cases. They are cases that just need a sprinkle of doubt.

The defense focused on what the number actually meant. The breath-test report showed infrared readings of 0.082 and 0.087. Our expert, forensic toxicology consultant Aaron Olson, flown in from Minnesota, explained that when the result was properly corrected for blood-density issues, the scientifically relevant number was approximately 0.077, below 0.08. He also explained that the State’s own measurement uncertainty – hidden in the fine print and unknown to most lawyers – placed the result in a range that included values at 0.05 (well under the limit), and that additional physiological factors, including GERD, made the breath-test result even less reliable as proof beyond a reasonable doubt.

The defense also showed the jury that the breath-test number did not match the person they saw on the booking video. During booking, our client was friendly, polite, compliant, understood his rights, stood on his own, did not stumble, made small talk, and spoke clearly. Of course, we made the officer who claimed otherwise watch the booking video in front of the jury, forcing him to admit he was wrong right then and there, in open court. It was a bad day for him, but a great day for the truth.

After trial, the jury returned a not guilty verdict in about 15 minutes.

And then one of the jurors asked for Attorney Erkan’s business card.

That is a pretty good sign the defense had done its job.