Court: 72nd District Court – Lapeer
In this Operating Under the Influence – Second Offense, our client was observed by the arresting police officer driving in a market place parking lot with its lights out. The vehicle then put its lights on stopped again, and turned off its lights. The arresting officer then approached the vehicle, and noticed that the driver "pretended to be asleep" when he knocked on the window. The driver "initially denied driving, then later stated that he did wrong". The driver smelled strongly of alcohol, and could not produce a driver license. It also appeared that he had urinated on himself.
During the field exercises, the driver was asked to say the alphabet. He started with A, went to N then said M again. The subject's speech was slow and deliberate. In counting backwards 27 to 19, the driver began counting at 27, went through to the number 23, then stated 22, then stated 23, 21,20,19,18,17. The speech was also slurred during this task. When asked to pick a number between 14 and 12, the driver laughed and stated "15". Nystagmus was observed, he could not stand on one leg, and could not walk a straight line correctly, his balance being very poor during these tasks. He was arrested for OUIL 2nd offense, and had a breath alcohol result of .22
At the first pretrial we advised that we would be filing a motion to dismiss arguing that the prosecutor could not prove the element of operation. An evidentiary hearing was conducted, and the arresting officer testified in a way that was substantially similar to the police report (indicated above). At the conclusion of the hearing, the Court indicated it would issue a written opinion. About one week later we received the Opinion, which relied on the case law we cited in our brief. The Court granted our motion.