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Secretary of State vs G.B.

Court: DLAD in Flint 
Charge: Drink and drive

The Client in this case had refused to take the breath test, and was therefore charged with the civil implied consent violation. Our office demanded a hearing which was held at the Driver License Appeal Division of the Secretary of State located in Flint Michigan. At the hearing the arresting Officer testified that he paced the Client’s vehicle, a Porsche, traveling 45 mph and 60 mph in a 35 mph zone. The Client swerved to the center lane, swerved to the left side again, and drove over the yellow line. The Officer also observed the Client’s vehicle change lanes without signaling. The Officer noticed a moderate smell of intoxicants and he admitted to drinking two glasses of wine. The Client attempted the alphabet 3 times, on the first two tries he repeated A to S and then from L to S; on the third try he was able to complete the alphabet quite rapidly. The Client counted from 88 to 73, when asked to count from 88 to 75. On the walk-and-turn the Client could not walk heal to toe. He also could not stand on one leg for more than 2 seconds although asked to do so for 10 minutes. The Officer testified that he read the Client his chemical test rights “from the form”.

The Client testified that he repeatedly requested to speak with an attorney, but was never allowed to do so. He also noticed a sign in the booking room indicating that there had been some mistakes on the breath testing log, and this made him skeptical that the breath testing machine was operating properly.

We argued that Michigan case law provided for a right to contact an attorney before deciding to submit to the breath test. This was particularly important in this case because the Client had good reason to believe there might be a problem with the breath testing equipment. It was also argued that the Officer had not met his burden of proof relative to the chemical test rights because he never testified what form he read from, and did not produce any form or admit any form into evidence.

The Hearing Officer found that there was a reasonable refusal in this case, and dismissed the implied consent violation. Consequently, the mandatory 6-month license suspension and 6 points on the driving record were not imposed.