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So ya got busted on a DWI huh? Sorry dude. Tough luck. I mean it. Been there myself (35 years ago) and it was not cool. Totally not cool to have the parental units have to come down to the jail and bail out their number one son either. Nope. So I know what you’re going through for sure, like I say. And I know also that you’re thinking the real bummer is that it’s hard to beat a breathalyzer nowadays. Seems like even if you’re just barely over the limit (.08 on the machine or better in most cases) your goose is pretty much cooked. I mean, the cop had some good reason to stop you, you blew .08, end of story, right?Well, maybe. But then again maybe not. ‘Cause even as dire as things seem in this climate of “I got arrested now I’ll have a fair trial before they find me guilty” there’s hope.


A story about a Vietnam veteran, a Harley, and a DWI checkpoint

Let me tell ya’ll a story.  I repped this guy one time on a .08 DWI and there was a real happy ending. Story goes like this: He’s riding along on his big Harley after tossing back a few with the guys at the local VFW (here in Garner NC where I live and work). So it’s about midnight or so when he’s rumbling along and has the good luck (Not!) to happen upon Garner’s finest who have set up a DWI checkpoint not far down the road from the VFW. So, he pulls up on his bike, they ask a question or two including a couple about alcohol. So he’s nice enough and wants to cooperate and answers truthfully that he’d had a couple and so on. Then—of course—hearing the magic words that he’d had “some” to drink, the coppers ask him to park the scooter and take his helmet off and do the DWI dance (the one leg stand, the finger count, walk the line and all that bullshit).


As is typical, the cop finds probable cause and hauls him to downtown Raleigh and gets him to blow in the Intoxilyzer 5000 (sounds like the title of some cheap-ass Sci-Fi Movie). And whaddya know, it comes up .08. So…some days later he comes to me and tells me the whole story. Tells me about how he’s a veteran and was in ‘Nam and was decorated and had been hit pretty bad in a leg and, to cap it all off, he was “simply not drunk or under the influence” when this happened (I’ll keep to myself all the OTHER stories of just how he had such a high tolerance for alcohol and so on. Trust me, they’re pretty good.)


The intoxilyzer 5000 is just a tool, like any other tool. It is not infallible.

Now, this guy is tough. He’s a pragmatist too. He’s not into wasting money and time chasing some bullshit argument. I mean, he blew a .08 right? They saw him drive, right? He’s all ready to take his lumps. Yeah, right. But not so fast I tell him. You see, as I counseled him, here in NC, and I presume in other states as well, the machine that reads blood alcohol is not made by fairies and magic leprechauns. It is a tool just like any other and is not infallible. Additionally, the judge in a bench trial (or jury as the case may be) is ENTIRELY empowered to decide that, weighed against all the other evidence, the reading is in fact NOT indicative of a person’s state of impairment.


And that’s just what saved this guy’s bacon, as it happens. So: we tried the case and the state was able to produce NO evidence of bad driving (since he was stopped at a checkpoint and not for driving fast or weaving or anything like that) and, when it came to his performance on the so-called “field sobriety tests” (the DWI dance) the fact that he was a decorated combat veteran who’d been wounded IN HIS LEGS was helpful too (glad he decided to testify!). I mean really. The dude walks with a limp from having been all shot up in ‘Nam. How can we conclude that his poor tests are a result of the alcohol and not the war wounds?


But the capper may have been this: The cop who nabbed him has a slight speech impairment. It sounds a little like Elmer Fudd really. I mean no disrespect but that’s the best way to describe it. And once, just once, I got to ask him on cross examination, when he said he thought my client’s speech was “slurred”: “Now Officer,” I said, “just because someone’s speech is slurred or unusual, it doesn’t necessarily mean he’s impaired by any intoxicant, right?” (Never have that opportunity again will I? But man, when it comes, you knock it out of the PARK!). His answer: “Yewss. I gwess youw’wa wight.”



(With loud laughs from the peanut gallery, I might add.) So here’s the upshot: I am absolutely NOT saying that every .08 is winnable. Not hardly. What I am saying is that sometimes there are certain circumstances under which a low blow (like a .08) can be overcome if there’s no evidence of bad driving and the field sobriety tests are good or at least explicably bad (bad for a good reason). Needless to say, the farther from .08 you move in the positive direction, the harder it will be to overcome the weight of the breathalyzer.


The lesson here: .08 ain’t the end of the world

So don’t dispair dude! .08 ain’t the end of the world. And if the cop just happens to talk like Elmer Fudd, I’ll lay odds that you squeak by! Weally I wiwl!

Of course, having a good lawyer helps (ahem!). Post your case now and find one!

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