The Barone Defense Firm recently handled a drunk driving case in Bloomfield Hills 48th District Court. The case involved a person who was stopped for weaving and running a red light. According to the police officer, this driver failed the field sobriety tests, and was arrested. He later had his blood drawn, and the result of the blood test suggested a bodily alcohol level of .136 grams of alcohol per 100 milliliters of blood. The driver had been arrested for DUI previously, so this was his second offense.
This second offense drunk driving was prosecuted by the Oakland County Prosecuting Attorney’s office. As is typical for this prosecutor, no deals were offered so the matter was set for trial. A few days before the trial date the prosecutor filed a “Daubert” motion, arguing that the defendant’s expert was unqualified and should not be able to offer his opinion at trial that the blood test result was flawed, inaccurate and unreliable. The motion was scheduled for the first day of trial.
On the first day of trial, the assistant prosecutor handling the case indicated to the judge that she had no witnesses and could not proceed. Accordingly, she asked the judge to dismiss the case. We had no objection to the dismissal, so long as it was “with prejudice.” The assistant prosecutor asked that it be without prejudice. In this context, legal “prejudice” essentially means “final determination.” Said differently, we were arguing that jeopardy should attach so that the case could not be tried at a later date. Jeopardy arises out of the Fifth Amendment to the Constitution, which indicates “[N]or shall any person be subject for the same offense to be twice put in jeopardy.”
It is generally accepted that in a criminal case jeopardy does not attach until either the first witness is called in a non-jury case, or when a jury is present, when the jury is sworn. In this particular case, neither of those things happened, so the judge at the 48th District Court who was presiding over this drunk driving case decided that the case would be dismissed without a finding relative to prejudice. The question of whether jeopardy attached would be addressed by the court only if and when the case was re-filed by the Oakland County prosecutor.
Sure enough, this DUI case was refiled by the Oakland County Prosecutor, and both the prosecutor and the defense attorney made their legal arguments. The judge then “took the matter under advisement” and subsequently, made the ruling that the prosecutor dismissed the case without good cause, and therefore, jeopardy attached. This means this DUI case can never be tried. As of this writing, this case is on appeal by the prosecutor. Look for future updates as this case continues to progress through the appellate system.