This was an interesting case for a couple of reasons. First, my client was black, charged in Monroe, which is predominately white. I don't know how racial attitudes are down there, so this gave me pause for concern. I would hate to deal with racial bias on top of the difficult facts that a DUI trial involves. Second, my client was an electrical engineer for one of the Big Three.
My client suffered from GERD. Gastroesophageal reflux disease, or GERD, is a digestive disorder that affects the lower esophageal sphincter (LES), the ring of muscle between the esophagus and stomach. Many people suffer from heartburn or acid indigestion caused by GERD. Doctors believe that some people suffer from GERD due to a condition called hiatal hernia. GERD is a condition where stomach contents come back up into the esophagus resulting in either symptoms or complications. If any alcohol is present in the stomach that is brought up to the esophagus prior to breath testing, that microscopic amount of alcohol can dramatically alter the breath test, making it look like a sober person is way above the legal limit.
During our pre-trial prep, my client was able to actually inspect one of my working Datamaster breath testing devices, and he was able to show me how and why the machine can't work as accurately as the government claims. He said that if this device were used by one of the major automotive companies, they would see failures in the design and implementation. He also told me that, contrary to the manufacturer's claims, the device was subject to widespread electrical and RFI interference, which is a huge issue in breath testing accuracy.
I needed a fair and impartial jury to decide this case. The actual evidence was weak. The only thing that suggested that my client was guilty was the breath test. The very first thing I talked about down in Monroe? My client's race.
I explained that I wasn't from the area, but I knew it well enough to know that Monroe County is filled with good people. But I also knew that there were some in the community who might decide this case based upon race. Using a prepared jury voir dire, I thought I picked a very good jury, and the jurors were racially neutral. In any event, we talked about it long enough that I knew that no one was going to decide the case based upon race.
I had an expert from Western Michigan University testify during this trial. This person has many years working for the prosecution and police as well as the defense. He had certain theories that were not applicable to my case, and I brought him in only to talk about GERD. He encouraged me to use his studies to try to win the case, even though these studies had nothing to do with the case. I quickly cut him off during a break, instructing him to stick to my theory only. He was, in a word, deflated.
On cross-examination, the prosecutor instantly brought up his studies. I allowed the prosecutor some leeway to explore my college professor's background, knowledge, and veracity, but I wasn't going to allow this trial to devolve down to a debate on the professor's theories, which the prosecutor was prepared to attack. After allowing the debate to go for a while, I finally objected. I objected because the prosecutor and the professor were arguing about theories that had nothing to do with my case, and I indicated to the judge that these two could argue about these unrelated topics outside the jury's presence. AND THE JUDGE AGREED!
Both the prosecutor and the professor, who was more than eager to espouse his theories, were told to stick to the issues. And here is the problem: Neither the prosecutor, nor the professor, was ready to talk about anything other than their personal conflict. I was able to admit the scientific evidence that was objectively true through my expert, and the prosecutor had nothing to attack.
The best part of this trial came at around 4:00 p.m. on the day of the jury trial. As we started our closing arguments, streams of people started to filter into the courtroom. I saw prosecutors and defense attorneys filling the rear of the courtroom. I was stunned! There was so much interest in this trial that local attorneys took note of it and wanted to hear the arguments.
I don't know if I lived up to the attorneys' expectations, but the jury returned a NOT GUILTY verdict. I also called my client in two future cases as an expert witness to testify about the problems with the electrical and RFI issues with the breath testing device.