Jury Says “Not Guilty” on .263 Breath Test Case!

by baronedefensefirm on April 24, 2009

On April 24, 2009, top Illinois DUI attorney Don Ramsell finished a jury trial in DuPage County with a .263 breath test.  The jury returned a verdict of “not guilty” on DUI (common law) and .08 per se.

What follows is a summary of the case prepared by Ramsell himself. 

Defendant on video with speeding only, good speech, but can’t count backwards from 56 to 39 (“49, 48, 49 you got me” and stops), fails walk and turn (wobbly and falls back onto trunk of car after final step)  and one legged stand test (foot down after count of 5 then three times down and quits).

At scene, defendant admits 2 beers, and is polite – no sir, yes sir. Upon arrest, defendant tells cop that he is diabetic and has insulin pen on person. Defendant tells cop that he needs pen with him at all times.

After arrest, defendant at station begging for water, and becomes agitated and belligerent. Keeps drinking water for 20-30 seconds while cops yelling for him to sit down. (Excessive thirst is a sign of hyperglycemia) Defendant then demands insulin, cops refuse. Defendant crying, begging for insulin.

Paramedics arrive, blood sugar 227. Consult with doctor by phone, who approves the defendant self-administering insulin. Paramedics offer transport to hospital, defendant refuses. 30 minutes later, blows .263 on EC-IR.  Defendant is swearing at cops, refusing to listen to commands, telling them to have a horrible life, etc.

Jury included a guy who analyzes chemical materials for a company for quality control; a mailroom supervisor from the National Safety Council; a fundamental Christian who refuses to drink for religious purposes; and a woman whose husband is also Type I diabetic; an appraiser; and others.

Arresting cop admits no impaired driving per NHTSA cues. Admits possible diabetic condition but insists defendant also intoxicated. Breath op says machine in perfect working condition; I’m barred from crossing on theory of machine, interfering substance etc.

State calls no other witnesses; neither does the defense. Defense argues that State had 15 months to know that the defense would be diabetes, so why didn’t they call paramedis or doctor? State saw video, saw breath result, so why didn’t they call someone to explain how test would exclude interfering substances? Defense argues that defendant had ‘consciousness of innocence’ when he refuse ‘escape route’ offered by paramedics, and stays to take breath test.

Almost 4 hours of deliberation. 2 hours in, Jury sent question “Does reasonable doubt require proof to 100% certainty?” The law in Illinois forbids a definition of ‘beyond a reasonable doubt’, so Judge correctly sent note: “You have all the instructions applicable to this case – continue to deliberate”

Another 2 hours later, Not Guilty DUI, Not Guilty 0.08 or more, guilty of speeding. Jury agreed that possibility of interfering substances, and State’s failure to call paramedics or doctor, and disconnect between visuals of no bad driving and no staggering or swaying or stumbling at station (i.e. disconnect) versus .263 bac were enough to say NOT PROVEN to the level of BEYOND A REASONABLE DOUBT.

Our hearty congratulations goes out to Don!


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This post was written by...

– who has written 204 posts on Michigan Drunk Driving Law Firm.

Patrick T. Barone is the author on two books on DUI defense including the well respected two volume treatise Defending Drinking Drivers (James Publishing), and The DUI Book – A Citizen’s Guide to Understanding DUI Litigation in America. He is also the author of a monthly DUI defense column for the Criminal Defense Newsletter, published by Michigan’s State Appellate Defender’s Office. Mr. Barone is an adjunct professor at the Thomas M. Cooley Law School where he teaches Drunk Driving Law and Practice. He is also on the faculty of the Criminal Defense Attorney’s of Michigan’s Trial Lawyer’s College where he provides trial skills training to Michigan’s criminal defense practitioners. Mr. Barone lectures nationally on various DUI defense topics, and he has appeared in newspapers, on television and on radio as a drunk driving defense expert. Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests and has also attended a 24-hour certification course at National Patent Analytical Corporation (the manufacturer of the DataMaster) and has thereby been deemed competent by the manufacturer to operate, perform essential diagnostic verifications and calibration checks on the DataMaster. Mr. Barone is a Sustaining Member of College for DUI Defense. Mr. Barone is the principal and founding member of The Barone Defense Firm, whose practice is limited exclusively to defending drinking drivers. The Firm is headquartered in Birmingham, Michigan.

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