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In the Matter of: R.W.
Court: DLAD Southfield
The police report in this case indicates that the reporting officer received a radio run to a particular Michigan Neighborhood (in the area or jurisdiction of the Novi District Court) because a resident had heard a crash. When the Oakland County Deputy Sheriff arrived he observed a fluid trail leading to R.W.'s address. He also observed R.W. walking in the street in the same general area.
R.W. was placed into the Deputy's car, and driven a short distance back to his home. There, the Deputy continued his investigation, and found that the jeep parked in his driveway had visible body damage, and that the airbag had deployed. There was a bottle of C&C whiskey in the car, as well as the owner's watch. The Deputy also found the keys to the car in R.W.'s pocket.
R.W. also was observed to have "strong odor of intoxicants, dilated pupils and slurred speech, as well as minor injuries on his wrist and forehead". A roadside breath test indicated a BrAC of .174. The evidentiary breath test was refused, and a search warrant for blood was obtained. The blood test result came back at .14. It was also determined that the driver had been involved in another accident the same evening where he'd driven off the road, and collided with a fence and two other cars, doing significant damage to everything he struck. After completing his investigation, the Deputy charged our client with a violation of Michigan's implied consent statute, as well as Operating While Intoxicated (OWI).
After being retained, we immediately demanded a hearing (appeal) on the alleged violation of Michigan's implied consent law. At the hearing, the arresting officer testified consistent with the above stated facts, and added that he'd read our client his implied consent "chemical test" rights. We cross-examined the officer, but presented no witnesses of our own. At the conclusion of the hearing we argued that the Deputy had not meet his burden of proof relative to the chemical test rights because he did not testify specifically what rights were read, and did not otherwise identify the state form that he read from, making it improper for the hearing officer to take "judicial notice" of the rights. The hearing officer agreed with our arguments, and granted our appeal, thereby dismissing the case. CASE DISMISSED.
As a result of wining this case the client's license was not suspended for one year, and no other penalties were imposed for this violation.