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How to Win a Drunk Driving Case Without Trying

Dec 12th, 2017 OWI How to Win a Drunk Driving Case Without Trying

Sometimes, winning a trial or a contested hearing comes down to knowing what not to do! In drunk driving cases, nowhere is this truer than with administrative hearings held on appeal from an alleged implied consent violation.  To understand why this is true, it’s helpful to know a little bit about the Michigan Implied Consent Law and about administrative hearings.

If you have been charged with drunk driving in Michigan and refused to take a breath or blood test at the request of the police officer, then you will be charged with a violation of Michigan’s Implied Consent Law, pursuant to MCL § 257.625f.  A violation of the implied consent law will result in the suspension of your driver’s license for up to 2 years.

However, you have the right to file an appeal of the alleged implied consent violation and must do so within 14 days of your arrest.  Upon receipt of your request for an appeal, the Secretary of State will schedule a hearing.  In the vast majority of cases, police officers appear at the scheduled hearing without the prosecuting attorney and this means they are “unrepresented parties.”  According to § 257.310(3) of the applicable rules:

” (3) The hearing officer has an affirmative duty to assist a party appearing at a hearing who is not represented by an attorney in presenting a case to properly develop a complete record. To fulfill the duty, the hearing officer may question witnesses or assist with the introduction of documents into evidence, or both.”

Thus, the hearing officer will ask the unrepresented police officer whatever questions are necessary to “develop a complete record” which translated means – help the police office win so that your license can be suspended. There are four issues in every implied consent case.  These are:

  1. Did the driver commit a drunk driving offense?
  2. Was the driver arrested for drunk driving?
  3. Was the driver read his/her chemical test rights?
  4. Did the driver unreasonably refuse?

The actual hearing starts with the police officer being sworn, and then he/she testifies as to what occurred.  If the police officer misses anything, the hearing officer will be sure to ask all the questions necessary to perfect the record, just as they are required to do by the applicable administrative rules.

A recent case handled by the Barone Defense Firm demonstrates how all of these laws and administrative rules interrelate.  The police officer came to our client’s hearing very well prepared, and in fact, had memorized his police report.  After being sworn, he testified from memory.  He had no police report in front of him.  This is significant because police officers often read directly from their reports at these hearings.  In his summary of what happened his testimony hit all the high points, including the basis for the traffic stop, the driver’s performance of the field sobriety tests, and also the reading of the chemical test rights.  Finally, the officer testified that the driver unreasonably refused the chemical test.  In other words, he covered all four of the issues set forth above.  This means he should have won, right?

Not so fast.  His testimony was noteworthy for many reasons, not the least of which was that the police officer never indicated any of the details regarding the chemical test rights.  He testified only that they were in fact read to the driver.  When he was done, the police officer “rested,” meaning he affirmatively stated to the court that he had no additional testimony or evidence.

As it turned out, the police officer was so well prepared that he was over-confident.   His overconfidence lead to him leaving out details of the stop, details regarding the field sobriety tests and details regarding the chemical test rights.  Consequently, the hearing officer, doing his duty pursuant to § 257.310(3) of the applicable rules cited above, questioned the police officer at length about the circumstances of the traffic stop and the details of why the driver “failed” the field sobriety tests.  Probably because there were so many holes to fill in, the hearing officer forgot to ask the police officer any follow-up questions regarding the chemical test rights.

After the hearing officer was done with his questioning of the police officer, the hearing officer asked us if we had any questions.  Our answer was “no.”  Upon hearing this, the hearing officer’s face dropped.  This hearing officer knows the knowledge level of the Barone Defense Firm in these cases, and immediately upon hearing that we had “no questions” realized the mistake that had been made.  But, since both sides had rested, there was no further recourse but than to rule in favor of the driver.  Here’s why:

The police officer only indicated that he read the chemical test rights to the driver.  He never indicated specifically what rights were read, and also, never indicated what form he read from.  Since the implied consent rights are very detailed and specific.  By testifying only that the read the chemical test rights, the police officer failed to meet his burden of proof!  So, we were able to win this case without even trying!

This victory for our client meant that there were no driver license sanctions imposed for the refusal to take the breath test.  On the other hand, had we not won this hearing, our client’s driver license would have been suspended for one year, meaning no driving whatsoever. The best that could be hoped for after that would be a successful appeal of the one-year suspension to the Circuit Court. In most instances, this results in a restricted license, but only with a vehicle equipped with a BAIID (breath alcohol ignition interlock device).  This victory saved the client money, embarrassment and driving freedom!