Prior OUI Conviction Case
State v. L.F.
Blood / Alcohol Content (BAC):
Lack of Credibility of Police and Lay Witnesses
Matthew B. Nichols
Operating Under the Influence and Assault (OUI, DUI, DWI)
OUI: 364 days in jail (minimum 7 days, $500 fine, 2 year license suspension), Assault: 364 days in jail
Client was charged with operating under the influence and assault. Client had a prior conviction for OUI. The State called five witnesses: the arresting officer, an investigating officer, the victim of the assault, and the eye witnesses to the assault.
The State’s case went as follows: Client was found passed out in his truck by two couples. He was parked, inexplicably, in a tenant-reserved space belonging to one of the couples. The female tenant asked Client to move out of their space. He stumbled out of the vehicle, assaulted her and swore at her (very graphic). Client, according to the assault victim, her husband and one member of the other couple, then dropped his keys and fell down retrieving them. He then re-entered his truck, looked over his shoulder as if backing out of the parking space, hit the gas but ( he inadvertently shifted into drive rather than reverse ) drove forward again striking the assault victim. Client then shifted again to back out and drove into a snow bank behind him. The two couples called the police with a vehicle description and described Client to the investigating officer as follows: heavy smell of intoxicants, swearing, staggering, belligerent, assaultive, slurred speech, etc.
A few minutes later the arresting officer observed Client in the neighboring town driving on the wrong side of Route 1. After pulling off the road to avoid a head-on collision, the arresting officer executed a U-turn and stopped Client’s truck. After the stop the arresting officer described Client as incoherent and extremely intoxicated. Field sobriety testing (awful results) confirmed his initial observations which mirrored those of the two couples. In fact, at trial the State introduced Client’s written alphabet original. It was an illegible scroll at best. Client refused to take a chemical test. Client was unable to testify because he had “blacked out” the entire event.
The defense called no witnesses. Client was acquitted of operating under the influence and assault. The defense was confronted with a lot of witnesses (police and citizens). There were no available defense witnesses. All State’s witnesses appeared to be consistent in their written statements. The only strategy available was to attempt to create inconsistencies and evil motives on cross-examination. The strategy worked in theory and implementation.