Spring is here and summer is right around the corner. In my practice that means more motorcycle DWI cases and Boating While Intoxicated (BWI) cases. Ironically, just this month I received “not guilty” findings on a 2014 Laconia Bike Week DWI and a Labor Day Weekend 2014 Boating While Intoxicated (BWI) case. It is not unusual for DWI cases to take several months to be finally adjudicated at trial before any particular District Court in New Hampshire.
Sadly, my client’s Boating While Intoxicated arrest last August was well publicized on all forms of print, television and social media. The booking photo depicting his battered and bloodied face was there for the world to see. The injuries he sustained in a single vessel crash on Lake Winnisquam made for an ugly and one-sided version of an arrest when first reported. Those same injuries proved crucial to his defense of the Boating While Intoxicated charge several months later. At trial in the matter of State v. Richard DeGregory, the defense presented evidence that the defendant was injured in the boat crash and knocked unconscious with classic signs of concussion, including loss of memory, confusion and difficulty with field sobriety testing. First responders were notified that the boat crash involved injuries and at least one unconscious person; even though the defendant refused medical treatment, he was never identified by law enforcement as the unconscious person. Medical testimony from the defense expert witness established that even the most well-trained and well-intentioned law enforcement or Marine Patrol officer will struggle to distinguish head injury symptoms from many of the classic signs of intoxication. Richard DeGregory, of Tyngsborough, Massachusetts was found “not guilty” of the New Hampshire Boating While Intoxicated charge following a thorough review and consideration of the evidence by the Laconia District Court.
The second “not guilty” finding was on a DWI arrest from Bike Week 2014. The driver of a recently purchased Harley Davidson motorcycle found himself arrested for DWI following a stop at a speed trap. The evidence presented at trial included testimony from the defendant’s companion rider. Each man testified that they arrived early on the first day of Bike Week and spent time cruising the Weirs, walking the tents and the pier, and of course visiting a few different establishments where they ate lunch and drank beer. The testimony was that each consumed only three (3) beers before their arrest in the early afternoon. The friend’s post-arrest breath test was .06. He was not charged with DWI. The defendant’s post arrest breath test was .13. Obviously, the defense had work to do. Independent testing of the defendant’s captured breath sample by head space gas chromatography showed a large discrepancy between the Intoxilyzer 5000 68 EN reported results (.13/.14) and the independent lab testing of the same samples (.14/.18). Not only were the independent results inflated, they were inconsistent with each other. Further, the defense utilized expert testimony and medical records to establish the defendant’s Gastroesophageal reflux disorder (G.E.R.D.), a condition the defense argued would account for such a wildly inflated and inconsistent breath test results. The defendant’s performance on the standardized field sobriety testing roadside was also inconsistent with such high breath test numbers. The defendant in this Bike Week DWI case was found “not guilty” on both theories of Driving While Intoxicated.
