Sample Drunk Driving Cases Handled by
Matthew B. Nichols

Case 1
State v. D.D.
Superior Court
Cumberland County
Portland, Maine
Jury Trial
February, 1999
(OUI)

Client was observed (by a Scarborough Police officer) operating erratically and at an excessive speed on Route 1. According to the arresting officer he had difficulty locating his pertinent paperwork; his eyes were bloodshot and glassy; his speech was slurred; his breath smelled of intoxicants. After exiting his vehicle Client was asked to perform a number of field sobriety tests. They went as follows according to the arresting officer:

ABC’S: Client confirmed that he completed high school but could not remember whether he graduated in 1996 or 1997; he also mistakenly said that he graduated from Scarborough High School rather than Gorham High School. On his first attempt he slurred: "A-G" correctly, then said "I, H, K, L, N, O . . . I forgot them. "On his second attempt he said "A-G" correctly, then "H, I, K, N, O, P, Q, R, T, U, X, Y, Z."

Walk and Turn: (9 Steps out heal to toe, nine steps back heal to toe):Client started test before told to do so; Client stepped off line and missed heal-to-toe on steps 3, 4, 6, 8 on initial nine steps; Client stepped off line and missed heal-to-toe and steps 3, 6, 7 on second nine steps; Client used his arms for balance on entire test (all contrary to instructions).

One Leg Stand: (Stand with one leg raised for 30 seconds without dropping foot) Client started the test before told to do so; dropped his foot eleven times; Client mis-counted (all contrary to instructions).

Defendant had mood swings, continued to have slurred speech and used profanity in speaking with the arresting officer. At the police station, Client submitted to an Intoxilyzer 5000 test. The result was a .14% BAC. The legal limit in Maine is a .08% BAC. Regardless of the test result a person accused of drunk driving in Maine will be convicted if the jury finds that the Client’s "mental or physical faculties were impaired to the slightest degree or to any extent by alcohol and/or drugs." In other words the State gets a conviction if the jury finds that the Client operated a motor vehicle while having a blood-alcohol level of .08% or more or while the Client was impaired to the slightest degree.

Following a two-day jury trial Client was acquitted. The defense called a forensic chemist, Dr. Carolyn Howard (Attorney Nichols calls her in numerous cases), and used the State’s own expert chemist to create reasonable doubt regarding the reliability of Intoxilyzer results. The attack against the Intoxilyzer results was threefold: (1) Lack of scientifically acceptable calibration checks; (2) Lack of specificity for detecting alcohol as opposed to other "interfering" substances; (3) Failure to adhere to proper protocols for test administration. So much for the .14% BAC test result.

The attack against "impairment" was more difficult. By conducting a thorough pre-trial administrative hearing, Attorney Nichols was able to "lock-in" the arresting officer to facts that were not included in her police report. These facts were all exculpatory. Further, a thorough preparation of Client’s and Dr. Howard’s testimony revealed even more exculpatory evidence, including the presence of "interfering" substances that caused the Intoxilyzer to over-report his BAC level. As a more general observation, Attorney Nichols was able to destroy the officer’s credibility through effective cross-examination.