Client was stopped after officer claimed to observe car cross centerline, almost hit back of city bus, change lanes without signaling, and fail to maintain lane of travel. Officer conducted FSTs including Horizontal Gaze Nystagmus (HGN), One Legged Stand, and Walk and Turn, and testified that client failed all three. Upon a thorough cross-examination, officer admitted that he performed the HGN test improperly, that it was unreliable, and unfair to consider his previous testimony. We were able to establish several inconsistencies and contradictions based upon the in-car video and the officer’s testimony. Finally, we established that the alleged DataMaster test refusal was an Operator Refusal (the officer’s discretion) and not a subject or Technical Refusal. Jury deliberated and acquitted.
(From the client’s perspective) I contacted Mr. Patrick Barone after being arrested for my third drunk driving offense within seven years. The third charge carried a felony conviction and my concern prompted me to find the best defense attorney I could find. Previously, I had secured an attorney through the courts but this time I knew I could not rely on just any court-appointed attorney.
We prepared for my case well in advance. During the preparation process, Mr. Barone kept me informed of all my rights and was completely up front about the type of punishment I would be facing. He also advised me of all the measures I should take to ensure a positive outcome. He shared knowledge gained from many years of experience that ultimately helped me find some peace of mind during a very tumultuous time. I was very grateful for this.
When it came time for my pre-trial, Mr. Barone successfully negotiated a plea bargain that dropped my charge from a third time felony offense to a second offense misdemeanor. This victory saved me from facing some serious jail time in addition to a felony charge. But Mr. Barone was not done.
Before my sentencing date, he drafted a six-page Sentencing Memorandum, which made a very strong case for rehabilitation as opposed to jail time. In the Memorandum, Mr. Barone cited several previous cases that set precedents for alternatives to lengthy jail time. I did not know what effect this would have on the outcome of the case, but it proved to be a powerful force in the courtroom.
On my sentencing date, Mr. Barone spoke gallantly on my behalf, referencing the Sentencing Memorandum while emphasizing a strong recommendation for leniency. When he was finished, the judge paused in silence for a good five minutes before saying, and I quote, “Mr. X, your attorney has done a very thorough job. It’s not every day I receive a Sentencing Memorandum. You should be thanking him today.”
With that, the judge handed down a relatively light sentence with no jail time. I cannot describe the feelings of relief that swept over me. I owe Mr. Barone for his wise counsel and unparalleled skill in the courtroom. He not only gave me a chance for freedom but he gave me the strength and confidence I needed to get through this painful ordeal.
Thank you Patrick – A.V.
Client was stopped by Michigan State Trooper J. Huggins after leaving a bar in Royal Oak. The Trooper observed the subject vehicle (a motorcycle) speeding, and passing other cars. The passenger was observed swinging her hands in the air while riding on the rear.
Upon contact, the narrative police report indicates that both riders smelled of intoxicants, had reddish eyes and unsteady balance. There was an admission to drinking six beers. The balance was unsteady, and the driver swayed as he exited the vehicle.
The driver refused the one-leg stand, but was positive for all six visual clues on the horizontal nystagmus test. He also failed to touch heel-to-toe on one step in each direction, and counted 10 steps rather than 9 as directed. He was arrested for drunk driving, and his blood was drawn. The blood test showed an alcohol level of 0.10.
All of the pretrial procedures were handled by another attorney, and this office was brought in as the trial attorney. Our goal was to show that there was little observable evidence of intoxication, and to show that there was a reasonable doubt as to the reliability of the blood test result. Consequently, we insisted that all the persons who handled the blood testify at the trial.
On the day of trial the prosecutor was unable to produce the lab tech that tested the blood at the Michigan State Lab. Consequently, we were able to negotiate a reduction to the charge of reckless driving. The result was a 6 month period of probation, 6 pts on the driving record, and a 90 day suspended license. This result was far better than could be obtained in any other way than a not-guilty verdict at trial. On the other hand, if the client had been found guilty at trial, the punishment imposed by the Court would have been far more severe, and the driver license would have been revoked for one year.
All though we believed that the client had an excellent case for trial, he decided that it was in his best interest, all things considered, to accept the reduction and plead guilty to the reckless driving. He was sentenced the same day.
The client retained our office after being arrested for an OUIL on March 10, 2001. The police report indicated that the subject vehicle was traveling at excessive speed, and crossing over the center line several times. After the stop, the arresting officer noticed “a lot of slurring in the driver’s speech”. The driver admitted to drinking 2-3 beers, but later admitted to drinking large quantities of alcohol. The arresting officer also wrote that “in his attempt to do the field sobriety test, S1 was stumbling around almost falling down several times”. Also, that the officer “had to assist S1 away from the road to keep him from stumbling onto the road”. When asked to perform the finger-to-nose test, the driver allegedly said “I’m fucked up, you know it and I know it”.
On May 8, 2001, the client was again arrested, in the same jurisdiction, and again charged with OUIL, making his second OUIL arrest with 7 years. (While he could not be charged with the enhanced crime of OUIL 2nd, if convicted of both, some of the same sanctions apply, most notably, the one year mandatory license revocation).
In this second case the arresting officer observed the client’s vehicle cross over the center line, then strike the car in front of his. The report indicated that he “failed” the alphabet and counting tests, and that all “six visual clues” were apparent in the HGN (follow pen with eyes test). The blood alcohol level was 0.17.
Both cases were set for trial. On the day of jury selection for the first case, I was able to persuade the prosecutor to offer a very enticing plea bargain. The deal we worked out was for the client to plead guilty to an impaired driving on one file, and to a reckless driving on the other file. This amounts to just one alcohol related offense, and benefited the client in several ways, the first being that he avoids the mandatory one year license revocation, and will not have to request a license and have a hearing (and perhaps be denied) at the conclusion of that one year period. Instead he loses his license for a period of 90 days after which his license will be returned upon only his application to the Secretary of State, and payment of the reinstatement fee.
The plea agreement also avoids the mandatory minimum 90 day period of vehicle immobilization. Fines and costs are lower, and there is no mandatory period of incarceration. This result was far better than having the client take the risk of being found guilty of two OUIL’s within 7 years, with all the mandatory and discretionary sanctions associated with two such convictions.
This client retained our office after being denied a license in his home state (he moved away from Michigan several years ago). He was denied a license because he had two unresolved drunk driving cases pending in Michigan. The client’s overall goal was to resolve the outstanding Michigan cases and the resulting license sanctions imposed, so that he would be eligible to be licensed in his state of residence. This case was the first one addressed in court.
This case involved a September 1988 arrest for OUIL. The arresting police officer observed the client’s vehicle pulling out of a driveway then continuing down the street, running a stop sign. Upon contact with the driver, the police officer asked for the driver license and registration. The report states that “the driver took about four minutes to retrieve the registration fumbling through the wallet. I could tell he had been drinking from the trouble he was having with the papers in his wallet, and his fingers moved slowly. Also, there was the strong odor of alcohol coming from the vehicle”.
Field sobriety exercises were administered, including the alphabet, finger-to-nose, heel-to-toe, and counting backwards. The report indicates that the client had trouble successfully completing each of these. His preliminary breath test result was .234. The report also indicated that during the field sobriety exercises, there was a strong odor of alcohol about the client’s breath and person. Also, that the female passenger was taken to the hospital for detoxification.
We filed our appearance, but the Court was unwilling to simply set aside the bench warrant issued back in 1988, so the client appeared with counsel for an arraignment on the bench warrant, and to schedule a pretrial. During the arraignment on the bench warrant, we approached the bench with a senior officer from the Huntington Woods Police Department. During this sidebar conference we were able to persuade the Court to agree to dismiss the original misdemeanor charge of OUIL in exchange for the client’s admitting responsibility for the civil infraction of careless driving.
As a consequence of this plea bargain the client received only a small fine and three points on his driving record. He was not placed on probation, served no community service, and of course did not spend any time in jail.
Our client was observed traveling 54 mph in a 35 mph zone. According to the police report, “upon activating the over head the suspect immediately jerked his vehicle to the right lane almost striking a vehicle”. The report further indicates that the driver/suspect fumbled through his wallet attempting to locate the requested documents (driver license, proof of service, and registration). The driver had a flushed face, watery bloodshot eyes, and slow hard to understand speech. His movements were slow and deliberate. The driver admitted drinking one glass of wine about “45 minutes ago”. Upon exiting his vehicle, the driver’s balance was “very unsteady”.
The “alcohol influence report” indicates that the driver almost fell during the one-leg stand test, and therefore, the test was stopped. During this exercise, the driver also used his arms for balance, and put his foot down. During the alphabet task, his speech was slowed and slurred, and his balance was swaying. He was able to do the finger count, but again, his performance was slow and deliberate. He was able to pick a number between 13 and 15. After the field exercises, the suspect/driver was arrested. At the station a breath test was administered with a result of .08/.07. The driver was charged with operating under the influence of intoxicating liquor (OUIL).
After the pretrial in this case, we immediately set the case for trial. The trial date was adjourned several times, and on the final pretrial date, the client was out-of-town, and therefore unable to attend. We did attend, and were able to persuade the Court not to issue a bench warrant for our client’s non-appearance, and did conduct a final jury pretrial. At this time we were able to persuade the prosecuting attorney to offer a reduced charge of careless driving, a civil infraction carrying only a fine and three points. The client plead guilty to this charge when he returned from his trip, and was received a small fine. His driver license was not suspended, revoked or in any way restricted, (he retained full driving privileges). Additionally, there was no jail time, no probation and no community service.
Hearing Officer Hopkins
The Arresting Officer in this case testified that he responded to the scene of a property damage accident. When he arrived, another Officer advised him that they were looking for the driver in the nearby field. The suspect was later found in the field, laying face down. When approached, he stood up with keys to “the truck” in his hand. A very strong odor of intoxicants was noted, along with red, watery and glassy eyes. He also admitted to drinking three or four beers.
Field sobriety tests were administered, including the horizontal gaze nystagmus (HGN), walk-and-turn and one-leg stand. The suspect was unable to perform any of these to the satisfaction of the officer, and he was arrested for OUIL. He refused to submit to a breath test, and a warrant for blood was obtained. The Officer also testified that prior to asking the suspect to submit to the breath test, he read the Chemical Test Rights to the suspect from “the form”, but did not further identify the form, other than to say it was “pink in color”.
We argued that the Officer had failed to meet his burden of proof in that he had not established that the suspect was the driver of the vehicle (in legal jargon, that there was no “corpus delicti“), and therefore, that the arrest was unlawful. We also argued that the Officer had failed to meet his burden of proof relative to the Chemical Test Rights because he had not indicated specifically what the rights were, and because the “form” was not produced or properly identified, there was no evidence on the record that the implied consent statute had been satisfied.
The Hearing Officer issued a written opinion indicating that our appeal was granted. The opinion indicates “[A]s counsel for the petitioner noted at the hearing the form provided to the police to read the Chemical Test Rights from is not called a “DI177” as the officer testified to at this hearing. Without something in the record to establish with some specificity what Chemical Test Rights the officer advised the petitioner (sic) of I can not find that the petitioner was properly advised of the Chemical Test Rights request by statute”.
Because the Petitioner’s appeal was granted his operating privileges were not suspended for six months based on the alleged refusal to submit to a chemical test.
While on probation for a prior OUIL 3rd this client was stopped by a Michigan State Trooper, and ultimately arrested for a second OUIL 3rd. As a result of this arrest, he was also served with a “show cause” for violation of probation.
The Trooper’s narrative report indicated that the while traveling on I-75 South near Nadeau Road, he observed a gray pick-up truck “continually swerving” between lanes. The subject vehicle then was observed crossing over the lane of travel, straddling the lanes as it entered the Nadeau exit ramp. The vehicle stopped “well beyond the white line” as it approached the stop sign at the end of the ramp, made an abrupt stop, then a sudden right turn “while traveling on the shoulder”, then made another sudden turn, at a high rate of speed, again “traveling on the shoulder and kicking up dirt and gravel, nearly hitting several street signs”. The Trooper activated his siren and emergency equipment as the subject vehicle turned into the driveway of a local residence (address removed).
The Trooper’s report further indicated that the “driver quickly exited the vehicle and started walking towards the front door of the house. I instructed the driver to come over toward my patrol vehicle”. In speaking with the driver, the Trooper noted a strong odor of intoxicants. The driver admitting to drinking “a lot”, and said “yes, I know I am drunk”. The driver then handed the Trooper a Michigan Commercial Driver License which was issued to “Chuck Jones”. The address on the license was different than the address of the home where the vehicle was stopped. When confronted with this fact, the driver indicated that he’d moved. The driver failed all the field sobriety tests, including the alphabet, finger count and backwards count. His breath test results were .15. The driver was arrested for OUIL 3rd.
The driver was then brought to the Monroe County Jail, and while the Trooper was checking the information for Chuck Jones, the driver said “you’re gonna find out that isn’t my license. The Trooper’s report indicates “I asked the driver to explain what he was talking about. The driver then told me that the Michigan license he gave me was not his, and that he didn’t have a license. I asked him where he got the license for “Jones” from, and he stated he found it. The driver then produced a social security card and food town plus card identifying him as C. G. H. The driver also said “I have a CDL and need a break”. During the Trooper’s investigation, it was found that the truck the subject was driving was registered to another individual by the name of “Patrick Starr”.
Upon the first meeting with the client he indicated that in fact he was not the driver. He explained that he and Mr. Starr work together in Detroit, and that he had asked Mr. Starr for a ride home that evening. On their way home, they stopped off at a club located in Wayne because they had to deliver some cash to their boss, the business owner. While at the club, the client had consumed some beer (in violation of his probation). Later, he got back into the truck with Mr. Starr, and they continued on to the client’s home. Mr. Starr was driving. When they got there, Mr. Starr quickly exited the truck, and went inside the client’s home. The client then got out of the truck, and was confronted with the Trooper. When he tried to explain that he was not the driver, the Trooper ignored him.
At the preliminary examination the trooper testified that he was directly behind the truck at all times, and that had a clear view of the inside through the rear window. He also testified that there was only one occupant. The Trooper testified that he pulled into the driveway of the home with his emergency lights and siren on, and watched the truck come to a complete stop. He then observed the client get out of the driver side of the truck.
Immediately before the trial began we made a motion where we asked the Judge to keep out all of the facts relative to the false driver license, that the client’s driving privileges were revoked, and that he asked for “a break” because he had a CDL. (Based on Michigan Rule of Evidence 403(b)). The Judge denied the motion in part, but did instruct the prosecutor to be very careful not to elicit any testimony from the Trooper relative to the client’s license revocation.
At the trial we stipulated to all of the elements of a drunk driving except the element of “operation”. In other words, we told the jury that we admitted that the client was “under the influence” and that he had an unlawful breath alcohol level. The only issue for the jury to decide therefore was whether or not the client was actually driving the truck that was stopped by the Trooper.
The Trooper testified at the trial, and essentially repeated much of his prior testimony, indicating to the jury that he was absolutely certain that there was only one occupant in the truck. He described to the jury in great detail about how there are flashing and strobe lights on top of, on the side of, and at the rear of the patrol vehicle, and that they were all activated before stopping the subject vehicle. He also described the siren how he activated in making the stop. The Trooper diagramed the scene on a large black board, and told the jury that he stopped about one car length behind and to the side of the client’s vehicle.
On cross-examination certain differences between the trial testimony and examination testimony were brought out, as was the fact that the Trooper had turned off the siren and called dispatch before he got out of his vehicle. We called Mr. Starr, and the owner of the business as witnesses, and the client also testified in his own behalf. Mr. Starr told the jury that he was in fact the driver of the truck, that it was his truck, that the passenger side door doesn’t open from the inside, and that he got out of the truck without noticing the Trooper, went inside, took a shower, and fell asleep on the couch. He testified that he never saw the Trooper’s lights, or heard the siren. The next day when he found out about the arrest, he never thought to try and call the police to straighten it out because he didn’t think the police would believe him.
The business owner testified regarding meeting them at the club in Wayne, and also about how after leaving the club, he watched both the client and Mr. Starr get into the truck and drive off, with Mr. Starr as the driver. The client testified similarly, but added that he had given the wrong license to the Trooper by mistake. He testified that he first realized this when he heard the Trooper calling the wrong name into dispatch, and then corrected him by giving the Trooper his real name.
During closing argument we told the jury to be very careful with the prosecutor’s argument that in order to believe our “story”, they’d have to believe the Trooper was a liar. We argued that the prosecutor was attempting to shift the jury’s attention away from the central question, which was “has the prosecutor proved his case beyond a reasonable doubt, or stated differently, was there a reasonable doubt, a fair honest doubt, as to who was operating the truck”. It was pointed out to the jury that the Trooper must have taken his eyes off the truck when he reached down to grab his microphone so that he could call dispatch. He also must have taken his eyes off the truck when he reached up to turn off the emergency equipment and flashers. This would have given Mr. Starr an opportunity to exit the truck, and enter the home undetected by the Trooper. It was also pointed out that there were no over head street lamps, and no other illumination near the home other than the Trooper’s headlights, and that in fact, it was so dark that the Trooper had to use his spot light to illuminate the driveway during his investigation. Based these and other arguments, we suggested to the jury that in fact there was a “reasonable doubt” as to who was operating the truck, and therefore, that they should return a verdict of “not guilty”.
After deliberating for 40 minutes, the jury did return a verdict of NOT GUILTY! Based on a prior agreement we had reached with the probation officer in charge of the case, the violation of probation was also dropped (this despite the fact that the client had taken the stand and admitted to drinking). The client’s bond was returned to him, and the Court took no further action
Here the client was stopped because his “right headlight was not activated”. The narrative report indicates that upon contact with the driver, the officer asked for his driver license, registration and proof of insurance. The driver was “acting nervous smoking a cigarette very quickly and did not realize his cigarette was dropping ash down the front of his shirt. The driver fumbled through his papers to produce the registration and proof insurance, then had to be reminded to produce the driver license. His eyes were bloodshot and glassy, and there was an odor of intoxicants noted”.
The driver was asked to exit the vehicle to perform some field sobriety tasks. He was unable to follow the instructions regarding the number count, and could not balance on one leg, at one point losing his balance. He also could not perform the walk-and-turn task. The driver then took a PBT, which registered at .178.
Back at the station the driver refused to take the evidentiary breath test, and was therefore charged with OUIL and Implied Consent. The officer did not seek to obtain a warrant for blood.
At the DLAD hearing for the implied consent violation, the officer failed to appear, so the matter was dismissed. Consequently, the client’s license was NOT suspended for six months, and six points were not added to his driving record.
Regarding the criminal matter, the Prosecutor refused to offer a reduction because it was the client’s second offense within seven years. We set the case for trial, and later selected a jury to hear the case. The trial was then scheduled several weeks later. When we appeared for trial the Prosecutor indicated that she did not have one of her witnesses, specifically, the witness that handled the attempted administration of the evidentiary breath test. We would not stipulate to his testimony, and subsequently objected to the Prosecutor’s motion to adjourn the trial. We countered with our own motion to dismiss, which was granted. DISMISSED.
The client was arrested for OUIL and since he refused the breath test, was also charged with an implied consent violation. After meeting with the client, we immediately filed an appeal of the implied consent matter, thereby demanding a hearing with the Secretary of State’s Driver License Appeal Division. [Failure to file an appeal, or failing to win the appeal once filed, results in an automatic six-month license revocation and six points are added to the violator’s driving record].
On the hearing date, we appeared with and on behalf of our client. The arresting officer failed to appear. After waiting 20 minutes we requested a dismissal. The Hearing Officer agreed and dismissed the implied consent violation. As a result, no license sanctions were imposed, and the client was able to continue his driving otherwise unrestricted