People vs. E. H.

Court: 41B District Court

Here the client was stopped because his "right headlight was not activated". The narrative report indicates that upon contact with the driver, the officer asked for his driver license, registration and proof of insurance. The driver was "acting nervous smoking a cigarette very quickly and did not realize his cigarette was dropping ash down the front of his shirt. The driver fumbled through his papers to produce the registration and proof insurance, then had to be reminded to produce the driver license. His eyes were bloodshot and glassy, and there was an odor of intoxicants noted".

The driver was asked to exit the vehicle to perform some field sobriety tasks. He was unable to follow the instructions regarding the number count, and could not balance on one leg, at one point losing his balance. He also could not perform the walk-and-turn task. The driver then took a PBT, which registered at .178.

Back at the station the driver refused to take the evidentiary breath test, and was therefore charged with OUIL and Implied Consent. The officer did not seek to obtain a warrant for blood.

At the DLAD hearing for the implied consent violation, the officer failed to appear, so the matter was dismissed. Consequently, the client's license was NOT suspended for six months, and six points were not added to his driving record.

Regarding the criminal matter, the Prosecutor refused to offer a reduction because it was the client's second offense within seven years. We set the case for trial, and later selected a jury to hear the case. The trial was then scheduled several weeks later. When we appeared for trial the Prosecutor indicated that she did not have one of her witnesses, specifically, the witness that handled the attempted administration of the evidentiary breath test. We would not stipulate to his testimony, and subsequently objected to the Prosecutor's motion to adjourn the trial. We countered with our own motion to dismiss, which was granted. DISMISSED.