Court-Martial Trial Practice Blog
Client leaves work at 1600.
Goes to get a haircut and have a beer.
Client leaves checkout counter at NEX (shown on video walking around store and register receipt) at 1658.
Client drives home through heavy traffic, stopping off to buy some seafood for dinner.
1800 another car runs into client’s car. The other driver accuses client of being drunk.
Police arrive 1805.
1935 client give blood for analysis.
The handwritten report of .bac says 0.145. Not good?
There’s an Article 32, and the IO recommends NJP. DC recommends NJP. Other DC’s asked to “consult” recommend NJP. Client accepts NJP. Everyone accepts that the 0.145 must be correct.
Client pleads “NG” at NJP, saying it’s impossible for him to have had that much alcohol. He’d done a little personal research before NJP. He says he had no more than a large 20oz beer, and would have had to have had about six to eight between 1600 and 1800.
Client found “guilty” at NJP.
BUPERS says “show cause.”
At hearing client lays out the timeline; and presents an evaluation by an expert in alcohol and its effects, etc. The expert’s analysis – assuming all the facts as above – a Widmark retrograde extrapolation indicates he’d likely be at 0.015. As you know (?) the WRE is based on averages (client weighed 220lbs) so there isn’t a lot of difference there between the WRE and the handwritten report. Thus, the best opinion is they left out a zero when writing the report and likely should have reported 0.0145. No body bothered to get a copy of the laboratory data, reports, printouts, etc.
So, the BOI finds NO misconduct. Had the WRE been done months ago at the time of the Art. 32 and NJP it’s possible the BOI would not have been needed.
Anytime you have a case with alcohol and there is a BAC or breath result it ought to be an immediate response that you get an WRE done. Also, check where the client has been during the relevant time frames: there are many places around base and public areas that have cameras that record. The quicker you get the video the better. Some recording systems rerecord over during a 24 hour cycle, some after a week, some after longer. Did the client come through the gate on base? Get the video.
And for those who say that all a lab does when reporting “results” of samples is spew out computer data – don’t believe them. Or at least don’t believe that mistakes aren’t made.