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Expert Witnesses – Tobacco






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Jan 11, 2012

Expert Witnesses – Tobacco

Today’s discussion concerns using an expert witness to assist you with the defense against an OUI charge.

Often times the only people that have an expert witness involved in a case is the government. That’s because the government has plenty of money to spend on their own private army of investigators and expert witnesses. Generally, the typical state expert witnesses is a chemist. The chemists will testify either about the accuracy and reliability of a breath test or the accuracy and reliability of a blood test. If you want to have the best chance of successfully defending your OUI case, it’s really important to think about employing the services of your own expert.

Now, employing an expert can be extremely expensive. As a result, the vast majority of my typical OUI clients don’t employ an expert. Sometimes the reason may be as simple as a lack of finances or that an expert wouldn’t be helpful to the defense. However, when I suggest to a client that we bring an expire on board to assist with the defense of a case, it’s for a good reason. Chances are that that expert can make the difference between an acquittal and a conviction.

Oftentimes, I have clients who chew tobacco. In cases where the officer fails to have the client remove the tobacco and rinse the mouth with water, an expert will be needed to raise doubt about the breath test. Most officers are trained to examine the inside of the subject’s mouth to determine if there are “foreign objects” contained therein. The officer’s questioning of the subject may go something like this: “Hey Bill, Joe, whatever your name is, you got anything inside your mouth I should know about?” Perhaps you have some chewing tobacco between your lip and your gum and you say no because you don’t think it’s important. The officer doesn’t bother to check inside your mouth and low and behold, you blow well over the legal limit. Why did that happen?

When you have chewing tobacco in your mouth while you’re consuming alcohol, the tobacco acts like a little sponge and absorbs the alcohol. The reason this is important is because the alcohol that’s in your lungs is very, very minute compared to the alcohol coursing through your bloodstream. When the machine reads the alcohol on your breath and you have alcohol sitting in that little sponge-like piece of dip or chew that’s in your mouth, the machine spits out a falsely elevated breath test result. It doesn’t know the difference between the alcohol in your chewing tobacco and the alcohol in your breath. It basically adds them together and, wall-a! You’re over the legal limit. When that happens, you’ll need an expert witness that can testify as to why the presence of chewing tobacco can invalidate a test and why it’s a violation of the police policies and procedures when it comes to administering a breath test. Without that person, you may not prevail at the Bureau of Motor Vehicle hearing and/or at trial.

Finally, let’s get one thing straight. This is a legitimate and viable defense. Police officers are now learning that the proper procedure for dealing with chewing tobacco is to have the subject remove the tobacco, rinse with clean water and then re-check the mouth. If all remaining tobacco particles are gone, then they should restart the 15 minute wait period in preparation for a breath test. The problem is that too many officers are in a hurry to get the defendant processed and booked so that they can continue on with their shift. When police officers get lazy or rushed, people’s rights get trampled. Don’t let this happen to you!

If you blew over the legal limit and had chewing tobacco in your mouth prior to taking the breath test, pick up the phone and call my office. I can help. Don’t let poor police procedures result in a DUI conviction and loss of license.



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