But that's what happened in State v. Jacob, a case filed earlier this month in the State Court of Appeals Division II. In the appeal, the state admitted that it miscalculated the defendant's offender score, which is used to determine the severity of the punishment doled out after a conviction.
In October of 2011, Terry Jacob was pulled over in Mason County on suspicion of driving under the influence. He claimed to have had "two or three drinks" at a nearby bar, but subsequently failed some field sobriety tests, including the horizontal gaze nystagmus test, which monitors eye movement. (He also reportedly failed to touch his finger to his nose in six out of seven attempts). Jacob was arrested and charged with DUI.
At trial, a state toxicologist stated that Jacob's BAC was .10, which is over the limit of .08 grams. He also indicated the presence of inhalants in Jacob's blood like those which are often used for huffing, and noted they could have affected the HGN test results. Though the toxicologist wasn't cross-examined, Jacob later claimed that he had used an asthma inhaler, which could have tainted the test results. Nevertheless, the court excluded the testimony, and a jury found Jacob guilty of DUI.
Jacob appealed his conviction and his offender score. To the state's credit, it admitted that officials had miscalculated Jacob's offender score and imposed a harsher sentence than he should have gotten (five years of incarceration). The appeals court vacated the sentence and remanded the case back to the lower court for resentencing - but they did not overturn Jacob's conviction, ruling that the inhaler testimony was rightfully excluded.