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Police Negligence: Skewed Breathalyzer Test

State v. R.W.

Blood / Alcohol Content (BAC):



Poor testing, DVD proof

Defense Attorney:

Matthew B. Nichols


Operating Under the Influence (OUI, DUI, DWI) (third offense Class C felony)

Maximum Sentence:

5 years in prison (minimum 30 days in jail, 6 year license suspension, $1200 fine)


Client had 2 prior Operating Under the Influence (OUI) convictions. Accordingly, this alleged third offense was charged as a Class C felony exposing him to a maximum prison sentence of 5 years, a $5,000 fine and a 6 year license suspension.

Client was stopped for speeding in Winthrop, Maine on July 20, 2010. At the time he had a conditional license (not to operate a motor vehicle with any amount of alcohol in his system) based upon the prior 2 convictions within a 10 year period for Operating Under the Influence. In response to the officer’s questions about alcohol consumption, client admitted to consuming 3 to 4 beers.

The officer administered 3 standardized field sobriety tests (SFST’s) which, according to the officer, client failed. The tests included the horizontal gaze nystagmus test (HGN), the walk and turn test and the one leg stand test. Following the administration of the tests, the officer arrested client and transported him to Winthrop Police Department for an Intoxilyzer 5000 breath test.

The defense obtained a copy of the DVD of the administration of the Intoxilyzer 5000 breath test and conducted a thorough cross examination of the police officer at the administrative license suspension hearing (the defense prevailed at the administrative license suspension hearing based upon the following facts in evidence). During the 15 minute observation period the police officer made a cursory check of the inside of client’s mouth as per the protocol prior to the commencement of the 15 minute observation period. The police officer did not require client to pull down his lower lip to inspect for foreign objects such as dip (finely cut chewing tobacco). The DVD also revealed that the police officer asked the client if he had any tongue piercings or similar materials in his mouth, but did not inquire as to whether or not client had any other removable objects or materials in his mouth. In fact, client did have dip between his lower front gum line and his lip prior to and during the administration of the Intoxilyzer 5000 breath test.

The Intoxilyzer 5000 breath test result was 0.19 (over twice the legal limit). The cross examination of the police officer at trial revealed that client showed no signs of impairment while driving, during the administration of the standardized field sobriety tests (cross examination showed that the police officer’s conclusions regarding the results of the standardized field sobriety tests were at odds with the National Highway Traffic Safety Administration guidelines regarding the evaluation of the SFST’s) or at any other time during the police officer’s contact with client.

Client testified at trial about, among other things, the presence of the dip in his mouth up to and during the administration of the Intoxilyzer 5000 breath test as well as his consumption of alcohol prior to the speeding stop. Prior to trial, client pled guilty to the misdemeanor offense of Operating Beyond License Restriction (having consumed alcohol and having alcohol in his system while driving –  client received a sentence of 10 days in the county jail for that offense).

The defense also called expert witness Patrick Demers to testify regarding the impropriety of administering an Intoxilyzer 5000 breath test to a subject who had dip in his mouth during the 15 minute observation period as well as during the administration of the breath test. The presence of that material, according to Mr. Demers as well as all of the relevant scientific literature) almost certainly caused “residual mouth alcohol contamination” to cause a false-high breath test reading on the Intoxilyzer 5000.

The State of Maine attempted to obtain a felony conviction of client based on 2 theories. First, the State contended that client operated a motor vehicle while under the influence of alcohol (defined in Maine as operating a motor vehicle while one’s mental or physical faculties were impaired to the slightest degree or any extent by alcohol or that client had operated a motor vehicle with an excessive blood alcohol level (0.08 or higher breath alcohol concentration).

Verdict: Not Guilty

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