On December 15, 2019, our client was involved in a single-vehicle collision. Officer Garcia of the Department of Public Safety responded to the collision. The client had slurred speech, an odor of alcohol on her breath, bloodshot watery eyes, was swaying, and was unsteady as she walked. On the Horizontal Gaze Nystagmus (HGN) test, the client exhibited six out of six clues, the client also exhibited several clues on the walk and turn and one-leg stand tests. However, the client had five-inch heels on during the field sobriety tests. The National Highway Traffic Safety Association (NHTSA), states that field sobriety tests should not be done on anyone who has 2 1/2 inch or higher heels.
Officer Garcia arrested the client for DUI and transported her to the El Mirage Police Department to complete a breath test. The client’s breath test results were a .138 for the first blow and a .140 for the second blow.
Potential legal DUI defenses in the case were: Corpus to suppress client’s admission to driving if the witness does not come to court to testify that client was driving, the breath test was not administered until over two hours after driving, that client had the opportunity to drink after driving because there was an open container of vodka in the vehicle, and the client had acid reflux which could cause a person to blow mouth alcohol into the breath test.
During our attorney officer interview with Officer Garcia, he admitted that he applied for a search warrant at 4:35 am. The fax machine used to obtain the search warrant was located in another room. Thus, the client was left alone during this time. However, in Officer Garcia’s police report he stated that the deprivation period was between 4:30 am to 4:49 am. The deprivation period is a 15 minute time period when the accused is to be deprived of placing anything in their mouth prior to the breath test. Therefore, the client was left alone during the deprivation period and there was no one to prevent her from placing anything in her mouth and no one who could testify that she did not place anything in her mouth.
Our DUI defense attorneys filed a motion to suppress the breath test results. The prosecutor changed their initial offer from pleading guilty to DUI impaired to the slightest degree (which required jail, alcohol classes, interlock device, loss of license, and a large fine) to reckless driving with no jail, no alcohol classes, no interlock device, no license suspension requirement, and only a fine which was a fraction of what a DUI fine would have been.