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State v. D.K.

Blood / Alcohol Content (BAC):



Improper Calibration of Intoxilyzer and Lack of Credibility of Police

Defense Attorney:

Matthew B. Nichols


Operating Under the Influence

Maximum Sentence:

364 days in jail (minimum 48 hours in jail, $400 fine, 90-day license suspension)


Client was observed (after leaving a bar) operating in the wrong direction on a clearly posted one-way street. The arresting officer turned on his blue lights and observed Client drive into the curb while stopping.

Client had bloodshot and glassy eyes, dexterity problems in producing his documents, smelled heavily of alcohol, had slurred speech and difficulty exiting his vehicle. Client swayed while walking and standing and failed miserably in his attempts to do field sobriety tests. At one point during the tests, Client placed his hands behind his back, turned to the arresting officer and said “Go ahead and arrest me, you’ll be doing me a favor by getting me off the road tonight.” The officer obliged, and Client subsequently blew a .21% BAC on the Intoxilyzer 5000.

The jurors deadlocked (i.e. could not agree on a verdict), a mistrial was declared and the OUI charge was later dismissed by the District Attorney.

The State called two expert witnesses as well as the arresting officer to testify. The defense called no witnesses. Through cross-examination of the State’s experts, the defense showed that the police failed to follow proper protocol for performing calibration checks and otherwise maintaining the Intoxilyzer 5000. The defense further created reasonable doubt regarding the officer’s testimony based upon his admission to destroying his field notes and subsequently preparing a typed report after seeing the Intoxilyzer results.


Case dismissed after hung jury.

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