OUI Second Offense Not Guilty Despite .26 Breath Test
This week, my client was found OUI second offense not guilty by a jury in Massachusetts — despite a recorded breath test of .26, more than three times the legal limit.
A second offense OUI conviction carries mandatory jail time and a two-year license loss. My client walked out of that courtroom with her freedom. Here’s how we won.
Suppressing the Breath Test
Before trial, we filed a motion to suppress the breath test under G.L. c. 90, § 24K and 501 CMR § 2.13(3), citing Commonwealth v. Pierre, 72 Mass. App. Ct. 230 (2008).
Massachusetts law requires strict compliance with breath test regulations. When police fail to follow the required procedures, the results can be excluded from evidence — no matter how high the number.
The court allowed our motion. The breath test was out.
That left the prosecution with one thing: the arresting officer’s opinion that my client failed the roadside field sobriety tests.
We took it to a jury.
The Cross-Examination That Won the Case
Almost 35 years ago, I learned a fundamental rule of trial work: never ask a question to which you don’t know the answer.
But sometimes, with the right setup, you can phrase a question where you win no matter what the witness says.
The Setup
I established the following facts through the officer’s own testimony:
My client told the officer she had suffered a stroke that affected the entire left side of her body. We provided certified medical records confirming the stroke. The officer acknowledged he was trained that field sobriety tests become unreliable when the subject has a preexisting medical condition like a stroke.
My client was significantly overweight. The officer acknowledged he was trained that field sobriety tests become unreliable for overweight subjects.
My client was wearing three-inch heeled boots — we introduced a photograph confirming this. The officer acknowledged he was trained that field sobriety tests become unreliable when the subject wears heels larger than one inch.
I then established the conditions under which these tests were administered: 1:00 AM, in the dark, in February cold, roadside in full public view. The officer was armed and in full uniform. A marked cruiser with emergency lights was present. A sergeant had arrived as backup.
The Question
After establishing all of this through the officer’s own admissions, I asked:
“These are fairly difficult test conditions, wouldn’t you agree?”
It doesn’t matter how he answers.
If he says yes, he acknowledges that the tests upon which he based his entire opinion are unreliable.
If he says no — after everything I just established through his own testimony — he loses all credibility with the jury. His opinion becomes worthless.
In this case, the officer testified that he believed the conditions were fair.
The jury disagreed.
The verdict: NOT GUILTY.
Why Field Sobriety Tests Fail
Field sobriety tests are designed to be administered under controlled conditions. The National Highway Traffic Safety Administration protocols that officers are trained on assume a cooperative subject, flat dry surface, moderate temperatures, proper footwear, and no physical limitations.
When those conditions aren’t met, the tests don’t measure impairment — they measure how difficult it is to perform a balancing exercise under adverse circumstances.
A stroke survivor with left-side weakness, wearing three-inch heels, performing roadside gymnastics at 1:00 AM in February while being watched by two uniformed officers — that’s not a fair test of anything.
What This Case Shows
A .26 breath test looks devastating on paper. Most people assume a case like this is unwinnable.
But breath tests can be suppressed when police don’t follow required procedures. Field sobriety tests can be dismantled when the conditions make them unreliable. And juries can see through weak evidence when it’s properly challenged.
This OUI second offense not guilty verdict came down to preparation, cross-examination, and 35 years of trial experience.
If you’re facing OUI charges in Massachusetts — first offense, second offense, or beyond — call me at (508) 393-4162 for a free consultation.
*Results depend on the specific facts and law of each case. Prior results do not guarantee a similar outcome.