by Attorney Patrick T. Barone
City of Waterford vs. S.P.
51st District Court
In this case the client was
arrested for OUIL, and because he refused the breath test he was also
charged with a violation of the implied consent law. At the hearing before
the Driver License Appeal Division the Hearing Officer was successfully
persuaded by defense counsel that the breath test refusal was proper.
The Hearing Officer dismissed the implied consent charge. No points were
assessed to the client’s driver license, and the client did not lose his
At the trial on the underlying
OUIL, the Arresting Officer testified that he observed the client weaving
across the center line of traffic several times, then suddenly turning
right from the main road onto a side street to avoid a traffic control
device. The Officer also testified that the client was observed traveling
in excess of the speed limit. The Police Officer told the jury that in
his opinion all of this indicated a driver who exhibited signs of intoxication.
The Police Officer further
testified that upon activating his overhead lights, the client’s vehicle
stopped at an angle, and in such a way as to impede traffic. Further,
that the client had blood shot eyes, and that the strong odor of intoxicants
was emanating from the vehicle and his person. His speech was slurred,
he was unsteady on his feet, and the client admitted to drinking 3-4 beers.
The client was asked to recite
the alphabet, and the arresting officer testified that this attempted
recited was so slurred as to be unintelligible. Also, that the client
could not count backwards, missed several numbers, and stopped inappropriately.
The client admitted to not remembering the Police Officer’s instructions.
Based on all of this the Officer concluded that the client was operating
a motor vehicle while under the influence of intoxicating liquor. The
Officer told the jury that the client was read his chemical rights, but
refused to take the breath test.
On cross-examination the Police
Officer admitted that sober drivers also sometimes weave, turn suddenly
and speed, and that other things beside alcohol can cause blood shot eyes.
The arresting officer was questioned regarding the use of "divided
attention" field sobriety tests, and admitted that good reflexes
and motor skills were necessary in order to properly operate a motor vehicle.
He was also questioned regarding the statistical inaccuracy of field sobriety
tests in evaluating sobriety versus intoxication.
The jury deliberated for about
twenty minutes before returning a verdict of not guilty.
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