Mens Rea: "Use your expert as a workhorse and you may not need to trot him out like a show pony"

A Veteran Trial Attorney in Ohio reflects on a high-profile DUI/Death Case A Sunday for Columbus DUI attorney Tim Huey is not for napping and watching football. In fact, it is rare that he gets to sleep in like most people. "Today is getting started later than usual. We had an exciting late-night win for the Buckeyes over the Badgers (Ohio State beat Wisconsin on a last minute play) and then I stayed up to watch 'The Last of the Mohicans,'" said Huey. Huey was recuperating after picking a jury for the retrial of a multiple-charge DUI trial that resulted in the death of a bicyclist. The verdict after about 3 weeks of trial on 4 charges, was "not guilty." A typical Sunday? "I will get up and drive to the office for initial client meetings, that I sandwich around mass" he says. "In Ohio, the defendant has only 5 days before they have to appear in Court. Therefore, it is important to make sure I can sit down with someone face to face and ask the questions that I need rather than do all that stuff over the phone." The person arrested for drunk driving in Ohio loses their driving privileges as soon as they are arrested as well. When I was in Columbus last April visiting my mother, I opened up the Columbus Disptach to find a story that impressed me: a man who used to work for a local TV station, accused of driving drunk by impairment; drunk driving by having an unlawful alcohol content; driving while impaired causing a death and reckless driving causing a death, had left the courtroom after a lengthy trial with a hung jury. I saw a quote from the trial attorney and recognized the name as a member of the National College for DUI Defense. I called Tim, we met for dinner and discussed the trial. His strategy was incredible: "we waived jury on the per se charge and the DUI impairment charge," he said. Both were misdemeanors and a drop in the bucket compared to the mandatory prison time that the accused was staring at on the two felonies. The reason to waive the jury on the misdemeanor DUI charges: it allowed Huey to focus on the evidence of causation on the part of the bicyclist and on the conversion of the breath test to blood as well as the reliability of the breath test as evidence of impairment. "We hired Al Staubus to testify about some issues with the breath test instrument used: the Intoxilyzer 5000 ... we hired Jay Zager from Florida, a state where they use that same device," Huey said. He also hired Tom Workman, an engineer and lawyer who has been investigating source code of breath test devices for clues as to their inaccuracy. Ultimately, he called no expert witnesses. "I did a cross of the state's toxicologist that you would call a 'soft' cross," Huey said. He was so well prepared thanks to the evidentiary motions that he argued before trial and with the help of the experts that he accomplished everything he needed during his cross examination of the state's expert witness. Huey added: "he had to concede that they had to make certain assumptions to try to opine what the client's blood alcohol content was at the time that he was driving." The jury was hung 9-3 in favor of not guilty on the impaired driving causing death and 11-1 in favor of guilty on the reckless causing death. Based on Ohio law, the move to waive jury on the misdemeanor DUI charges gave him the latitude that he needed to be able to argue causation and the breath test as evidence of impairment because the charge required proof of impaired driving causing death. Ultimately, after picking a jury in September for the retrial, Huey negotiated a plea offer for his client that will potentially keep him out of prison and give him the chance to argue for a probationary sentence that will not include jail at all because the prosecutor dismissed the charge that carried mandatory prison time as part of the plea deal. For Huey, the hung jury was a lot like going into overtime in football. "We felt like we did enough to push it across," the exhaustion in his voice came through while he was reflecting on it over the phone. "It was disappointing that we did not get the verdict we wanted but we were ready for the second trial," he said. A source for coverage of this incredible case can be found at http://www.dispatch. com/content/stories/local/2011/09/15/plea-is-reached-in-death-of-cyclist.html. In the meantime, enjoy your Sunday, counselor. Mike Nichols is an OWI expert, adjunct law professor and author of The Michigan OWI Handbook by Thomson Reuters West Publishing, the 2011-2012 update is now available. A member of the National College for DUI Defense, he will present at the annual conference for the American Academy of Forensic Science in February, 2012. His office is based in East Lansing. He can be reached at 517.432.9000 or by e-mail at mnichols@nicholslaw.net Published: Thu, Nov 10, 2011