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In the Matter of: E. M.

Court: DLAD Southfield
Case: Implied Consent Appeal

The police report in this case indicated that the driver was observed "slumped over the steering wheel blocking a moving lane of traffic. The officer knocked on the window to awaken the driver, and an open 12 oz. can of Bud light beer was observed in a cup holder of the car.

The driver was asked to stop out of the car, and the officer noticed a "strong odor of intoxicants". The driver was asked to count from one to ten. The driver started at the number "1" but could not continue. The officer also observed that his eyes were "bloodshot red, he had slurred speech and was unaware of (his) surroundings at current time"

At the station, the driver refused to take a breath test to determine his alcohol level. Consequently, he was charged with a violation of Michigan's "Implied Consent" law, meaning that unless he appealed and won, his license would be suspended for a period of one year, and six points would be added to his driving record.

Immediately after the client retained our office, we filed with the DLAD a demand for a hearing, and indicated in the demand that we wished to contest all four administrative issues. These are (1) the propriety of the stop; (2) the propriety of the arrest; (3) whether or not the chemical test rights were read as required by law, and; (4) whether or not the driver "reasonably refused" the chemical test.

At the hearing, the officer who read the driver his chemical test rights and attempted to administer the breath test was present, but the officer that handled the stop and arrest was not. We made a motion to dismiss on the grounds that the officer who was present would not be able to meet his burden of proof relative to issues one and two above without relying on hearsay evidence. The hearing officer agreed, granted the appeal, and dismissed the implied consent charge.

This was a nice victory for the client because it allowed him to avoid the mandatory 1 year suspension of his driving privilege. Additionally, no points were added to his record as a result of this matter.

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