State of Michigan vs. S.W.

Court: 52-2 District Court Clarkston, Michigan
Charge: Felony OUIL – Third Offense

The arresting Police Officer was responding to call regarding a possible OUIL. The caller had followed the suspect from a local bar. Upon approaching the driver the Officer noted an odor of intoxicants and bloodshot and glassy eyes. The driver admitted to drinking three beers and a two shots. The driver was asked to exit the vehicle to perform field sobriety "tests".

The driver was able to recite the "ABC's" correctly, but could not follow the instructions of the Officer regarding the backwards count, the balance "test" or the finger-to-nose. He also lost his balance during the one-legged stand.

The driver was arrested for OUIL and released. Later a felony warrant was issued for his arrest because he was believed, contrary to the statute, to have two prior drinking related offenses within ten years, making it appropriate for the prosecutor to enhance the first offense to a third offense.

During the pretrial and trial preparation of the case it was discovered that the client had actually plead guilty more than ten years ago, but that the Prosecutor had improperly relied on the driving record to establish the conviction dates. The transcripts from the prior pleas were ordered, and presented to the Prosecutor, along with a recitation of the law relative to conviction and enhancement. At the preliminary examination the Prosecutor agreed to amend the charge and the client plead guilty to a first offense. He was sentenced to time served, with no fines or costs imposed. Based on the reduction it is also possible for the client to lose total driving privileges for only 30 days rather than the mandatory five years for the felony drunk driving.