The Cerro Gordo County District Court recently granted the state’s motion to amend the charge from OWI to Public Intoxication following an aggressive, independent investigation into the circumstances surrounding a private party raided by the sheriff’s office. We were able to establish that more than two hours elapsed between the time our client last drove his vehicle and the time of chemical testing on the DataMaster DMT. Had we not done so, the state would have been entitled to a “two-hour presumption” instruction at trial that would have allowed the jury to presume the DMT result was our client’s breath alcohol concentration at the time he last drove his vehicle even though the test took place more than three hours later. There simply wasn’t enough evidence gathered by the state to allow a criminalist to testify at trial regarding the actual breath alcohol concentration at the time he was driving to a reasonable degree of scientific certainty.
With serious doubt established that our client ever drove his vehicle while under the influence of alcohol, the state had no choice but to amend to an simple misdemeanor, which can later be expunged. The court sentenced him to a small fine with no jail time.
