After being contacted by this potential client we learned that he had just sold his boutique insurance company to a larger business. During the transition he was being paid a 7-figure consultation fee for the next two years. The new business was doing well, and he believed that his services were not necessary to assure the new business owner’s success. Because the consulting contract contained a “moral turpitude” clause, our client believed that if he were convicted, he would be fired, costing him more than 2 Million Dollars! In other words, this was a must win case.
But this was not an easy case to win. After being arrested, our client had his blood tested by the Michigan State Police Crime Lab. The tests were .096 and .099. Because the blood was tested more than an hour after the stop, the alleged alcohol level at the time of driving was said to be approximately .12. A preliminary or roadside breath test suggested a bodily alcohol content of .16!
On the first day of trial the arresting officer in this case testified that he observed our client in a bright yellow Lotus sports car traveling 70 MPH in a 50 MPH (northbound Woodward). After the traffic stop, the officer’s narrative report suggested that our client smelled strongly of intoxicants and had slurred speech and red glassy eyes. The driver was confused and changed his story regarding where he had been and where he was going that evening, at first saying something about leaving from his office, and later changing it to leaving from his home. Also, he first denied drinking, then admitted he’d had some wine with dinner.
The officer administered several field sobriety tests, including the alphabet, counting backwards, one leg stand, 9 step heel-to-toe and a HGN (Horizontal Gaze Nystagmus). The officer testified that our client failed all these tests and from all of his observations and the officer testified that the motorist was intoxicated. However, through our cross-examination we were able to call this conclusion into question because the officer failed to administer the field sobriety tests correctly. We argued on this basis that his conclusions relative to the intoxication of our client were compromised. A second officer on the scene was also called as a witness and testified that he too believed our client was drunk. This was the last witness of the day.
At the end of the first day of trial the prosecutor indicated he would be calling Dr. Felix Adatsi from the State Police Crime Lab to testify about retrograde extrapolation, which is a method whereby a toxicologist will relate a breath or blood test taken later back to the time of driving, when the bodily alcohol level is always higher (due to the metabolism of alcohol).
Knowing this, on the second day of trial we came armed with a motion to preclude Dr. Adatsi’s retrograde extrapolation testimony. We argued that retrograde extrapolation was misleading and should not be admitted as evidence because it really amounts to nothing other than guesswork. The trial judge disagreed and allowed Dr. Adatsi to testify that in his opinion .02 should be added to the .099, making the actual alcohol level closer to .12. During our cross-examination of this witness we were able to cast considerable doubt on his conclusions.
After the testimony of the Dr. Adatsi the prosecuting rested and we called no witnesses. In our closing argument we explained to the jury during argument that the evidence presented, even with the failed field sobriety tests and the almost .12 test result, was still insufficient to show, beyond a reasonable doubt, that our client was drunk driving. After a two-hour deliberation, the jury agreed with our arguments and returned their unanimous verdict of NOT GUILTY! Because our client was not convicted of anything, he kept his consulting contract and more importantly, kept the more than $2,000,000.00 he was owed under it!