Charge: Criminal OWI & Civil Implied Consent Violation
Court: DLAD – Southfield Michigan
E.M. was arrested and charged with the criminal OWI as well as the civil implied consent violation. The Detroit Michigan Police report/warrant request indicated as follows:
"Crew while in full uniform and marked scout car observed above subject driving above vehicle blocking a moving lane of traffic northbound on Harper at Lakeview. Crew then observed subject slumped over the steering wheel of above listed vehicle. Crew then knocked on window of vehicle to waken subject. Writer observed open can of 12oz Bud light beer in vehicle. Once subject was awakened crew performed a field sobriety test, at which time writer could smell heavy odor of intoxicants from subject. Subject then failed sobriety test. Subject was placed into custody and vehicle towed. Subject refused breath testing". The narrative report indicated blood shot eyes, slurred speech, and that the "subject was unaware of surroundings".
As a result of the above investigation, our client was charged with the criminal OWI as well as the civil Implied Consent violations. We demanded a hearing on the alleged implied consent violation (we appealed the officer's determination that our client had unreasonably refused the breath test). The breath test operator appeared for the hearing, but the arresting officer did not. We argued that without the arresting officer being present, the police could not meet their burden of proof relative to the first two of the four relevant issues, namely that the stop and arrest were appropriate. The Hearing Officer agreed, and granted our appeal. CASE DISMISSED.
As a result of winning this case our client's license was not suspended for one-year. In fact, no driver license sanction of any kind was imposed.