People vs. E.M: Implied Consent

Charge: First Offense OWI
Court: 36th District Court – Detroit Michigan

E.M. was arrested and charged with the criminal OWI as well as the civil implied consent violation. The Detroit Michigan Police report/warrant request indicated as follows:

"Crew while in full uniform and marked scout car observed above subject driving above vehicle blocking a moving lane of traffic northbound on Harper at Lakeview. Crew then observed subject slumped over the steering wheel of above listed vehicle. Crew then knocked on window of vehicle to waken subject. Writer observed open can of 12oz Bud light beer in vehicle. Once subject was awakened crew performed a field sobriety test, at which time writer could smell heavy odor of intoxicants from subject. Subject then failed sobriety test. Subject was placed into custody and vehicle towed. Subject refused breath testing". The narrative report further indicated blood shot eyes, slurred speech, and that the "subject was unaware of surroundings".

As a result of the above investigation, our client was charged with the criminal OWI as well as the civil Implied Consent violations. We demanded a hearing on the implied consent and also set the criminal matter for trial. The officer who attempted to administer the breath test as well as the assisting officer appeared for trial, but the "OIC" (officer in charge or arresting officer) was not present. We moved to dismiss on these grounds. The prosecutor argued to the Court that because the matter was a misdemeanor, he did not have to call any witnesses (technically correct), and furthermore, that he could prove his case without the arresting officer's testimony. We responded that by not calling the arresting officer we were effectively precluded our FourthResult:

Amendment right of confrontation (cross-examination), and cited to the Court the brand new case of Crawford vs. Washington, a case where the United States Supreme Court effectively expanded a criminal defendant's right to confront and cross-examine witnesses. The Court agreed with our arguments, and dismissed the case.