Client was stopped for crossing dividing line several times and speeding. Client did not perform well on FST’s, but Officer did not comply with Standard Testing Procedures according to NHTSA. Client was arrested for OWI and subsequent DataMaster test resulted in two .16 and .16. A Motion to Suppress the Horizontal Gaze Nystagmus and PBT was filed and a letter requesting reduction was filed with the Prosecuting Attorney office. Client was an E-5 Sergeant in the United States Marine Corps, and would be facing Dishonorable Discharge with an OWI. These issues were discussed with Prosecutor prior to conducting the motion hearing. Negotiations resulted in plea to Reckless Driving.
Officers arrived to scene of property damage accident. Client and friend were in car that was hit after a truck failed to stop at Stop sign. After hour long investigation of the crash, having cars towed, and getting statements from all witnesses, client was investigated and arrested for OWI. Officer alleged client failed all 3 standardized field sobriety tests, and had a .12 PBT. Subsequently, DataMaster resulted in .12 and .12. Client was from out of state and had a prior offense in 2006. The morning of trial prosecutor offered Careless Driving and dismissal of the OWI.
Officer made traffic stop after allegedly observing client speeding (80 mph in a 45 mph zone) on motorcycle. Client admitted to consuming three beers earlier in the evening. Officer conducted 4 tests, which client passed 3 under the National Highway Traffic Safety Administration standardized scoring method. Client refused PBT and DataMaster tests, and officer failed to obtain a blood test. Client had 3 prior alcohol related driving offenses. Through negotiations, client pled responsible to an Amended charge of Careless Driving and PBT Refusal ticket at the Arraignment. Further, no Implied Consent Violation was imposed.
Officer made traffic stop after observing truck almost hit curb, then cross over center line, then back to curb before rolling through flashing red light. Client had slurred speech, glassy eyes, had to use truck for balance, and strong odor of intoxicants. Client stated, “not good, this is not good at all”. PBT resulted in a .161, and subsequent DataMaster resulted in .17 and a “refusal”. The refusal was allegedly a “Subject Refusal”. Prior to filing and oral arguments for Motion to Suppress Chemical Test, plea negotiations resulted in Careless Driving, a civil infraction plus court costs.
Officer made traffic stop after client made a left turn in a no-turn intersection. Officer claimed client failed HGN and Walk & Turn, but passed the One-Legged Stand. The PBT was refused, and subsequent DataMaster resulted in a .08 and an “invalid sample”. Review of the in-car video revealed officer failed to follow National Highway Traffic Safety (NHTSA) Standards for the field sobriety tests, and therefore compromising the results. Further, review of the DataMaster simulator logs revealed failure to comply with the administrative rules for breath testing. Defense Expert was retained to testify as to those failures and potential GERD defense for client. Morning of Trial, prosecutor offered Disorderly Person, and dismiss OWI and PBT Refusal.
Police were dispatched for a possible drunk driver. Officers arrived in the parking lot of client’s apartment complex just as she parked her car. Client failed FST’s, had an odor of alcohol, and open container was located in the vehicle. A PBT resulted in a .097 reading, and subsequent DataMaster resulted in .08 and a Refusal. Plea agreement to Reckless driving was achieved through negotiations prior to arguing Motion to Dismiss.
Client was arrested for OWI after officer found him sleeping in his truck, with the engine running, in a public parking lot. Client did poorly on field tests, submitted to a PBT (.22), and was arrested. At the station, client submitted to DataMaster test and had two tests of .24. Prosecution offered Impaired (OWVI). Our motion to dismiss was denied. At trial, we were able to establish through witnesses and evidence that client did not drive to that location while under the influence, and more importantly, successfully argue that the Government could not prove their case beyond a reasonable doubt. Jury deliberated for approximately 10 minutes and acquitted.
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.
The client was stopped for going through a flashing red light without stopping, and for pulling straight out of a parking lot, again without stopping first. Upon contact with the driver, the officer noted a strong odor of intoxicants, and that the driver’s eyes were bloodshot and glossy. The driver stated that he didn’t know how much he’d had to drink.
The driver was ordered out of the vehicle and asked to perform a finger-to-nose test. The arresting officer’s narrative report indicated that he tried three times, but was “unable to perform it in such a manner where I felt comfortable in letting him drive. His coordination was off”. He was able to say the alphabet, but in counting backwards did so slowly. His breath test results were 0.10.
It was suggested to this client that he might have a very good case to present to a jury, but after a great deal of thought, the client decided not to proceed to trial. Instead we engaged in plea negotiations with the prosecuting attorney, and ultimately persuaded the prosecutor to reduce the charge to the non-alcohol related charge of reckless driving.
It should be noted that in most instances it does not make sense to plead guilty to a reckless driving, because the client can nearly always plead to the alternative charge of OWI, which is an alcohol related offense, but which does not carry mandatory suspension of driving privileges. However, because of the very particular and individual circumstances of this client, this was an excellent result. This is because the client was a law student, and was therefore appropriately apprehensive that an alcohol related conviction on his record might have a deleterious effect on his future employment opportunities. He also was about to leave Michigan to the City of Chicago to complete a summer internship with a law firm located there. Consequently, he was able to accept the imposition of the mandatory 90 day suspension of his driving privileges that are always imposed by the Secretary of State upon receiving notice of a conviction for reckless driving. For this client, a reckless was an excellent result, and made the risks associated with trial not worthwhile.
Client was pulled over in Romulus for speeding, and for swerving/weaving within lane, and crossing the yellow line twice. The vehicle also “did not use its turn signal when changing lanes”. The officer approached the driver, and could smell the odor of intoxicants. The driver indicated that “he’d just left the strip joint down the road”, and that he’d had “a couple” while there. The arresting officer’s narrative report also indicated that the client could not recite his alphabet, and had distinct nystagmus in both eyes. Upon checking the officer noted that the client had a suspended license.
The client refused the breath test and blood was drawn, with a result of 0.12 grams of alcohol per 100 milliliters of blood.
The client had at least two prior convictions within the last ten years, making it possible for the prosecuting attorney to seek enhancement to a felony. This would have made his minimum sentence 30 days to five years in jail. However, at the initial pretrial we were able to persuade the prosecutor to reduce the OUIL / UBAL to the lesser included offense of OWI. The DWLS charge was dismissed as part of this plea bargain. The client was sentenced to pay only a fine of $850.00. There was no jail time, no probation, and no community service. The client resided out of state, and was never required to appear in Court.