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Verdict- “Not Guilty” Dwi—”Not Guilty” Dui Despite Breath Test Result!

February 14, 2018

Drunk Driving is a serious crime and should be prosecuted to the fullest extent. However, sometimes a person is arrested for DWI when he is not Intoxicated, but did have a drink and his breath smells of alcohol. This is that case! Despite a 0.10 reading on the breathalyzer, Queens Criminal Defense Attorney Todd Greenberg obtained an Acquittal of all charges for our client, a Certified Airline Mechanic, whose career was on the line. How? During cross-examination of the arresting officer, Mr. Greenberg elicited that although our client passed a red light at 2:30a.m. and the Police Officer stated there was a strong odor of alcohol coming from his breath and he had blood shot eyes, that, in fact, the strong odor of alcohol was coming from the vehicle (not our client), that our client was steady on his feet, cooperative and he was speaking clearly. Further, Mr. Greenberg had the Officer admit that during his observation of our client’s operation of the vehicle, both before and after the red light, he operated the vehicle as a “reasonable and prudent driver”! That language is critical in that the DWI Statute sets forth that a person is Intoxicated when he consumes alcohol to the extent that he cannot operate the vehicle as a “reasonable and prudent driver”. Although the Intoxicated Driver Testing Unit Technician, who administered the breath test, said our client failed the physical coordination test, detailed cross-examination established that the technician failed to give proper instructions regarding the tests. For instance, a video tape showed that our client failed the Finger to Nose Test. However, the instructions for the Finger to Nose Test sets forth that a suspect should tilt his head “slightly back” with his eyes closed. The IDTU Technician told our client to tilt his head “all the way back until he is looking at the ceiling”. Mr. Greenberg then had the Technician admit that the test must be given properly to yield any value. Clearly, the tests were not administered properly in this case. Mr. Greenberg’s knowledge of the Law was critical: although there is a per se 0.08% level of intoxication, whether a person exhibits the signs of intoxication or not, the Law clearly says that a person’s physical attributes can be weighed against the results of the test to determine if the test is correct. In this case, Mr. Greenberg argued that the test result had to be in error because our client did not exhibit the common signs of intoxication. Our client was acquitted of all charges involving Driving While Intoxicated and Driving While Under the Influence, a considerable victory given the fact that the District Attorney insisted from the inception of this case that our client was Intoxicated. Knowledge of the Law, knowledge of the facts of the case and experience in cross-examining police officers led to the best result possible: an acquittal of all charges. You can reach Mr. Greenberg at 718-268-0400 or visit our firms website at