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State of Michigan vs. K.G.

Court: 14B District Court – Washtenaw County
Charge: OUIL 2nd

The arresting officer testified at trial that while on routine patrol the officer observed the client’s vehicle traveling 69 in a 55 mph zone. The officer followed the subject vehicle, and then observed it driving on the dotted line between two lanes of traffic. The officer stopped the subject vehicle, and upon contact with the driver noticed “red glassy eyes, and a strong smell of intoxicants”. The driver admitted to drinking four 12 oz beers, “at least one beer an hour while at the bar, and that he consumed the last beer within an hour prior to leaving the bar”.

Field sobriety evaluations were administered as follows: Horizontal gaze nystagmus, the officer indicating “slight nystagmus in both eyes”. Alphabet A – T, subject complied, backwards count 98-82, “suspect began by starting at 98 then continued by counting backwards very slowly and deliberately to 82, and finger dexterity, client complied.

After testifying in this manner, the prosecutor asked what he did next, to which the officer replied that he administered a preliminary breath test (PBT). Defense Counsel immediately objected, and at the bench conference that followed, the Judge admonished the prosecutor to be careful, but that since the officer had not indicated a result, he would not grant Defense Counsel’s request for a “curative instruction.”

Upon further questioning, the officer indicated that after the PBT, the suspect was arrested. The suspect was brought to the station and another breath test was administered with a result of .10 and .10. Next, the officer indicated that in his experience he has arrested individuals for OUIL who then were tested at the station, but that he did not charge them because their breath alcohol levels were lower at the station than at the road, and that on another occasion, he administered field sobriety tests, but let the person go because they were below the legal limit on the roadside. Each of these tacit references to the PBT were objected to by Defense Counsel.

At the conclusion of the arresting officer’s testimony, Defense Counsel made a motion for mistrial based on the officer’s several references to the PBT. It was Defense Counsel’s argument that through this testimony the arresting officer had essentially advised the jury that the client’s breath alcohol level was above the legal limit. This was impermissible testimony because the results of a PBT are inadmissible at trial (except under very limited circumstances, none of which applied to this trial). The Judge granted the motion for mistrial.

It should be noted that since the Defendant had, through counsel, requested the mistrial, double jeopardy did not attach, and therefore, the prosecutor has the option of seeking another trial for the same offense. However, any time Defense Counsel can preclude a guilty verdict at trial it is thought of as a victory.