Officer pulled our client over for failure to stop at a stop sign prior to turning right and for making a wide turn. The client had an odor of alcohol, one to two-inch sway while standing, made an admission to consuming two alcoholic beverages, exhibited four out of six clues of impairment on the Horizontal Gaze Nystagmus test (HGN), exhibited six out of eight clues of impairment on the walk and turn test, four out of four clues of impairment on the one-leg stand, three out of seven clues of impairments on the Romberg modified test, and four out of eight clues of impairment on the finger to nose test. The client had submitted to a portable breath test of .093 BAC. The client submitted to a blood test and his blood alcohol concentration was .111 BAC. The client was polite, cooperative, and had a normal clothing condition. The best plea offer the state conveyed was to plead guilty to DUI impaired to the slightest degree and the prosecution would dismiss the DUI over .08 charge. Instead of accepting this plea, we proceeded to trial.
At trial, we argued that the phlebotomist used hand sanitizer to sanitize their hands. However, the sanitizer contained ethyl as the main ingredient, which is the same type of alcohol they were testing for. We argued that the use of ethyl hand sanitizer artificially raised the reading. We also argued that fermentation occurred in the blood vial and artificially raised the reading. Additionally, we argued that the four of six clues on the HGN test indicated that the client had a blood alcohol content at a .05 or below. The State’s expert was eviscerated on the stand under our cross-examination because she failed to acknowledge that there was acetaldehyde in the blood since the intoxilyzer chromatography did not label it.
On the cross-examination, DUI defense attorney David Maletta finally got the expert to admit that one of the unidentified peaks was, in fact, acetaldehyde because acetaldehyde peaks at a specific time. Acetaldehyde is a byproduct of the body breaking down alcohol. However, acetaldehyde can also be a byproduct of fermentation. Fermentation can artificially raise a person’s alcohol concentration by creating alcohol in the vial containing blood after the blood was removed from the body.
The jury came back not guilty on all charges.