The One That Got Away

Attorney David Mintz did all the talking for client Jesse Bollinger (seated)

In a bench trial this morning Judge John Payne found Jesse Bollinger, age 29, not guilty of driving under the influence, 2nd offense.

He was arrested back on Easter Sunday early morning by APD officer Rita Contardo after she noticed his front headlight out and when pulled over he exhibited the strong "order of alcohol, bloodshot eyes and slurred speech."

In other words, the usual traits that gets you out of the car performing a Field Sobriety Test. He also admitted to having just consumed alcohol.

 Jesse Bollinger did not take the stand to testify

On the Step Test, where you have to take nine strait steps heel-to-toe while saying each step aloud, he missed on step #4 -- leaving a one inch gap -- and step #7 where his heel came down on his other foot.

And on the return trip he made the same type of mistake with one step.

On the One Leg Stand, where you lift one leg, point your toes and count up from one one-thousand, he had to use his arms for balance and touched down at 18.

He also raced through the alphabet (although correctly) in a mumbling manner.

After the brief trip back to APD for booking the officer noted her cruiser was left with the odor of alcohol and even after the booking process the room was left with the distinct smell of alcohol.

Defense Attorney David Mintz rattled off a series of questions establishing that there was no indication of impaired driving after the officer followed his client for about 200 yards.  He also asked if police tend to look a little harder for drunk drivers just after bars close, to which she responded, "yes."

As for the FST's Attorney Mintz told Judge Payne that officer Contardo was a "hard grader" and he would not want to have her for a school teacher.  Because only faltering on 3 of 18 steps was close enough.  And the smell of alcohol does not precisely indicate how much you have had.

Judge Payne agreed that she's a "hard marker" and that the mistakes exhibited on the 9 step test were "not significant."  And since she did not give him explicit instructions about reciting the ABCs it doesn't matter that he quickly mumbled them. 

Since a guilty finding requires "proof beyond a reasonable doubt" Judge Payne found the prosecution did not meet the burden of proof.  Without missing a beat, Attorney Mintz then asked the judge to sign a motion for reinstatement of his client's drivers license.

Of course the one telling piece of evidence not presented to the Judge was Mr. Bollinger's refusal to take the breath test back at Amherst police headquarters during the booking process.  State law says you cannot use the refusal to take a breath test as evidence at trial, but the act of refusal instantly garners a six month license suspension. 

In this case the refusal paid off for Bollinger as he now gets his license back less than two months after losing it for refusing a breath test that would have given solid evidence one way or the other for the serious charge of drunk driving.

The state needs to close that loophole.