July 2012 Second Operating under the Influence of Alcohol (OUI)

Police stopped a motorist who was observed drifting among and in between travel lanes at night on the freeway. The officer initiated a traffic stop of the motorist. As the vehicle pulled over it struck the cement curbing. The officer then approached the vehicle and observed a female motorist. He also observed her eyes to be glossy and detected a strong odor of an alcoholic beverage emanating from inside the car. The officer retrieved the motorist’s license and learned that it was suspended for a recent OUI charge that was still pending in court.

The officer asked the woman to step from the vehicle to perform field sobriety tests (FST). As the woman exited the car she fell back on her heels and used the vehicle to support her body weight. She participated in only one FST which she failed. The officer continued to detect a strong odor of an alcoholic beverage emanating from the womanӳ breath during their interactions. Despite these observations the woman repeatedly professed that she “did not drink” and “does not ever drink.” The officer also observed a plastic cub inside the vehicle that contained a yellow fluid. The officer tested the fluid with his Portable Breath Test (PBT) machine and confirmed it was an alcoholic beverage. The officer then asked the female motorist to participate in a breath test with the PBT. She agreed to do so but feigned her participation preventing the officer from obtaining an accurate reading of her blood-alcohol concentration (BAC). Based upon these facts the officer placed the woman under arrest and transported her to the station for a chemical breath test which she declined. The officer ultimately charged her with Operating under the Influence of Alcohol (OUI); Driving While License Suspended for OUI; Negligent Operation of a Motor Vehicle; Marked Lanes Violation; and Possessing an Open Alcohol Container in a Vehicle.

Attorney Calcagni was tasked with representing this motorist. He previously represented her on the first OUI charge that rendered her license suspended at the time of this arrest and successfully negotiated a pretrial resolution of that case that led to a dismissal. Initially Attorney Calcagni could not negotiate a similar resolution of this case. As a result the matter was set down for a jury trial. On the morning of trial before a jury was impaneled Attorney Calcagni presented the prosecutor with nearly one dozen pretrial motions that he intended to file. The motions sought to exclude evidence at trial such as the womanӳ statements to police; her refusal to participate in the PBT and chemical breath test; her failing the FST; and the discovery of alcohol in her vehicle. If partially or wholly successful on these motions Attorney Calcagni would have defeated the Stateӳ case against the woman before a trial even started. Because of this fact Attorney Calcagni was able to successfully persuade the prosecutor to make a pretrial offer to resolve this case. The offer provided that if the woman accepted responsibility to the OUI charge the remaining charges would be dismissed. The offer further provided that despite having a prior OUI on her record the woman would still receive first offender sanctions for this OUI and a Continuation Without a Finding (CWOF). Providing the woman successfully complies with all terms of her CWOF period this OUI charge will be dismissed and she will not incur a criminal conviction from this incident.