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People of the State of Michigan vs. K.G.

Court: 14B District Court – Ypsilanti Visiting Judge
Charge: OUIL

This Client was stopped on a freeway in Washtenaw County for speeding, (69 in a 55 mph zone), but while the arresting office was behind and following him, the driver was observed driving on the dotted white line. It was at this point that the officer activated his lights. Upon initial contact with the driver, the officer testified that he noted a strong odor of intoxicants coming from the driver's breath, and also noticed that the driver had bloodshot glassy eyes. The driver admitted that he was coming from a bar where he drank four beers.

The driver was asked for his papers, produced same, and after being asked to exit the vehicle, the driver was asked to perform several "field sobriety tasks". In this regard the officer testified as follows:

Horizontal gaze nystagmus (HGN) – The officer testified that he noticed slight nystagmus in the driver's eyes, indicating that alcohol was present in the driver's system.

ABC – starting at "A" and ending at "T" – The officer testified that the driver completed this task, but also testified that while performing this task, his speech was "slow and deliberate".

Counting Backwards – The officer testified that the driver completed this task, but again, also testified that while performing this task, the driver's speech was "slow and deliberate".

Finger Count – The officer testified that the driver completed this task.

The officer's narrative report indicates that at this point a preliminary breath test was administered and registered a 0.11. The officer testified at trial that after the above field tasks were administered, it was his opinion, based on all of the evidence, that the driver was guilty of drunk driving. The officer further testified that based on all of this evidence, he arrested the driver. [Ultimately the driver was charged with both Operating Under the Influence of Liquor (OUIL) and Unlawful Blood Alcohol Level (UBAL). The prosecutor requested the additional charge of Operating While Visibly Impaired (OWI), and the trial judge granted this request].

After transport to the Washtenaw County Jail, a DataMaster test was administered to the driver. This test registered two results of 0.10 each. After the DataMaster, the driver requested an independent test, and he was taken to a local hospital for a blood draw. The result of this independent blood (serum) test was 0.127.

When cross-examination of the officer in charge of maintaining the records on the DataMaster used to test the driver in this case, we were able to point out several deficiencies in the manner in which the equipment was assembled and maintained. We were also able to point out deficiencies in the operator's training and lack of proficiency.

When cross-examination of the arresting officer, we were able to show the overwhelming evidence of sobriety at the time of the driving, based on many of the observations that this officer would be expected to make with this type of investigation, but did not make with regard to this driver. Additionally, we were able to show that despite the arresting officer's characterizations, the driver performed quite well on all of the field tasks. At this juncture in the trial, we stipulated to admission of the independent blood test results, and with that the prosecutor rested.

We called only one witness – the defendant himself. He testified that he did in fact drink four beers in about a four hour period. After this, the defense rested, and the testimony and evidence was complete.

In our closing argument, we explained to the jury that the prosecutor had not met her burden of proof because the observation evidence was more consistent with sobriety than with intoxication. More specifically, we argued that the driving, the field sobriety tasks, speech, manner of walking and talking, judgment and vision of the driver were all normal. Based on this evidence or lack of evidence, we urged to the jury that they must return a verdict of "not guilty" on the charges of Operating Under the Influence of Liquor (OUIL) and Operating While Visibly Impaired (OWI).

However, we weren't done yet, because we still had to overcome the chemical tests. If we did not, the jury could still return a verdict of guilty on the Unlawful Blood Alcohol Charge (UBAL). To combat this evidence, we argued that both chemical intoxication tests, here a breath test of 0.10 and a serum blood test of 0.127, we not reliable, and should therefore be disregarded by the Jury. We were successful with these arguments as well, and after deliberating for about 35 minutes, the jury returned a verdict of "NOT GUILTY" on all three counts.

Post Script: This was the client's second offense within 7 years, so this verdict allowed the client to avoid the imposition of the mandatory one year license revocation. Had he lost his license, the client, who was a district manager, would have lost his job, and this would have had a devastating impact on him and his family for whom he provided sole support. In fact, because of the not guilty verdict, the client was able to walk out of the Court without paying any fines or costs, and no penalties of any kind were imposed (or could be imposed) by the Court. For this Client, the not guilty verdict made it as if the arrest never happened.

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