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Bloomfield Township vs. C.H.

Court: 48th District Court, Bloomfield Hills, Michigan
Charge: DUI

This was a trial involving two blood test results of .096 and .099, or adjusted to the time of driving, approximately .11. The roadside breath test result was .16. The facts, as testified to by the various prosecution witnesses, were as follows:

The first witness to testify was the arresting officer, who first testified that he became a participant in the National Highway Traffic Safety Administration's Standardized Field Sobriety Test (SFST) Program in 2004. Also, that this course offers highly specialized training in DUI detection. He testified further that the motorist was stopped at about 9:00 p.m. after being observed traveling in his Lotus 70 mph in a 50 mph zone. After stopping the officer noticed slurred speech and a strong odor of intoxicants coming from the motorist as well as from inside the car, and also that the motorist had red eyes. According to the officer, the motorist seemed a bit confused about where he was going and where he had been. In speaking with the motorist, the story changed from being at work to being at home. The motorist also first stated that he'd had nothing to drink, then admitted one drink, and finally indicated two glasses of wine with dinner. Backup arrived, and the motorist was ordered out of his car so the officers could see "whether or not he'd had too much to drink".

The first field task administered was the alphabet, which the motorist was able to complete, albeit with slurred speech. Next, the motorist was able to count backward, but paused several times for several seconds each time as if trying to remember what number came next. The officer also indicated in his report that "he had a hard time remembering where to stop".

The officer then administered the HGN (Horizontal Gaze Nystagmus), and testified that he observed all three "clues". Further, that he concluded from this test that the motorist was intoxicated. I objected to this conclusion, and the Judge sustained. (Michigan Law only allows the officer to testify that HGN denotes the presence of alcohol). The officer then stated at least two additional times that HGN means intoxication. I moved for a mistrial on this basis, and the Judge denied the motion.

The officer also administered the walk and turn, and the motorist used his arms for balance, and turned improperly. The motorist also used his arms for balance on the one leg stand. Based on everything the officer observed he testified that the motorist was intoxicated. The motorist was brought to the hospital for medical treatment where he refused to consent to a blood draw. However, two tubes of blood were drawn pursuant to a search warrant. This blood draw took place about 2.5 hours after the traffic stop.

On cross-examination the arresting officer was forced to admit that he administered the SFSTs incorrectly and that because he did not administer or score them in the standardized way the validity of them (and therefore his conclusion at the roadside regarding intoxication) was compromised.

The prosecutor next called the backup officer who also testified that in his opinion the motorist was intoxicated. He also added that the motorist had glassy eyes.

The Judge stopped the trial at this juncture because the forensic scientist who tested the blood and the Doctor who drew it, was not available until the following morning. However, based on the questioning of the arresting officer however, it became evident that the prosecutor wanted to have the forensic scientist testify regarding the metabolism of alcohol (retrograde extrapolation). I immediately filed a motion to block this testimony, arguing that retrograde extrapolation should not be allowed.

The following day the trial is continued, and we begin with oral argument and testimony on the issue of retrograde extrapolation. After hearing the argument and listening to the testimony of the forensic scientist, the Judge denies the motion, thereby allowing the forensic scientist to testify that the blood alcohol level of the motorist was higher at the time of driving than at the time of the test, and in fact this was the forensic scientist's testimony. Specifically, he indicated that in his opinion about an additional .02 should be added to the .09 to allow for the burning or metabolism of alcohol after the arrest. He then states that it is his opinion that the blood alcohol level at the time of the driving was about .11.

The forensic scientist was cross-examined extensively on issues involving quality assurance and quality control, as well as the limitations of retrograde extrapolation. He is also questioned regarding his conclusion of .11 at the roadside. After this testimony is completed the prosecution rested. The defense called no witnesses. The motorist also did not testify in his own behalf. Because the defense rested the case went to the jury.

After about two hours the jury returned their unanimous verdict of NOT GUILTY!

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