Faulty Breath Test Machine
.141 breath test - trial results in not guilty
Summary: M.M., president of an airline, was stopped by an Anchorage Police Officer for speeding. The officer noticed signs of intoxication, conducted field "sobriety" tests which M.M. allegedly failed, and M. M. was arrested for driving while intoxicated. M.M. was taken to a substation where a breath test was obtained with a result of .141.
M.M. was referred to Attorney Fred Slone by a civil attorney that he knew. Attorney Slone obtained copies of the discovery materials from the prosecution, including an audio recording of the processing at the police station, which included the administration of the breath test.
anchorage vs. M. M., district court, anchorage, alaska
breath test fails
The audio recording indicated that the officer tried first of all to administer the breath test on one machine at the station, but could not get a result, despite several attempts. The officer then moved M.M. to another breath testing machine where, after a few more attempts, he finally obtained the .141 test result.
officer provides evidence of faulty breath test machine
After listening to the audio recording several times, attorney Fred Slone noted that the officer, almost imperceptibly, under his breath stated "you rotten piece of f . . .ing shit". He was apparently referring to the Intoximeter 3000 breath testing machine in his frustration at not getting a result. This was the same type of device that was used when the .141 result was obtained. Prior to the start of trial, apparently neither the prosecutor or the officer were aware that the officer's "opinion" of this breath testing device had been picked up by the recording. The officer's "opinion" of the machine as a "rotten piece of f . . .ing shit" thus became the theme of the defense.
slone cross examines officer for statements
At trial, the police officer testified as to his observations of M.M.'s condition, which led him to believe that M.M. was intoxicated. On cross-examination by Attorney Fred Slone, the officer admitted that he saw no signs of erratic driving other than speeding 13 mph over the speed limit. On cross-examination regarding the breath testing machine, Attorney Fred Slone played for the jury the section of the audio recording capturing the officer's statement that the machine was a "rotten piece of f...ing shit," and reference to this "opinion" was made several times throughout the trial.
expert witness claims breath test machine reliable
The State called an expert witness to testify about the reliability of the breath testing devices, apparently to no avail.
slone brings in evidence to disprove drunken state
M.M. testified that he had drank no more than four beers, spread out over five hours before his stop. He had drank a couple of beers much earlier in the evening and a couple of beers while he was having dinner with his daughter shortly before his arrest. Attorney Fred Slone introduced credit card receipts of M.M. indicating the amount of alcohol and food that was purchased while M.M. was having dinner with his daughter, to corroborate that he had only drank 2 beers at that time. M.M.'s daughter also testified that there was nothing that would have led her to believe that M.M. was intoxicated and that she had been with M.M. for the last couple of hours just before his arrest.
jury returns not guilty verdict
After several days of trial, the jury returned a "NOT GUILTY" verdict on all charges, including a "NOT GUILTY" on the DWI case, a "NOT GUILTY" verdict on the lesser included offense of reckless driving, and a "NOT GUILTY" verdict on the lesser included offense of careless driving. M.M. was completely exonerated, despite a .141 breath test result.