Sample Case #6

The client was found passed out in his car at a gas station, next to the pumps, with the motor running. The passenger compartment was filled with smoke. The officer opened the driver's side door and smelled a strong odor of alcohol beverage on the driver's breath. The officer attempted to wake the driver and when he spoke, his speech was incoherent. The officer asked the driver to exit the car and he gripped the steering wheel and would not let go. The officer attempted to forcibly remove the client from the car and eventually he was able to do so. The client was arrested and charged with driving while intoxicated, driving while under the influence of alcohol, and resisting arrest. At the police station, the client refused to take a breath test.

At the hearing to contest the refusal to take a breath test, the officer was cross-examined about the arrest.

Q: Officer, I assume that one of the reasons you wanted to wake my client from the car and remove him, is because your were concerned about the possibility of carbon monoxide poisoning?
A: Yes.
Q: And you did not know at the time whether the driver was suffering from carbon monoxide poisoning?
A: That is correct.
Q: And you still do not know whether the driver was suffering from carbon monoxide poisoning when you encountered him?
A: True.
Q: And you cannot testify whether the observations you made of the driver were as a result of the consumption of alcohol or carbon monoxide poisoning?
A: That is true.

The administrative law judge took no action against the client's license, and in court, the officer recommended that the prosecutor drop the case.