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must do the best it can to establish the circumstances . . . the Court must be convinced with reasonable certainty.
“The Court has not been satisfied that this has been done in this case —through no fault of the Commonwealth.”
Judge Foley then struck the breath test from evidence.
Mr. Luke argued that Mr. Marsh’s demeanor, the fact that he admitted he fell asleep, was evidence enough of his intoxication.
“Even considered in the light most favorable to the Commonwealth, the Court must grant the motion to strike the charge,” Judge Foley replied.
Directing Mr. Marsh to stand, Judge Foley addressed him: “You are a very fortunate young man. You were charged with driving while intoxicated — had you stayed at the scene, and someone had happened by...
“I don’t know your record,” the Judge continued, “but I can tell you that you have had your one bite of the apple in this Court. I suggest that you not appear before this Court again — the Court will certainly remember these circumstances.”
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