by Attorney Patrick T. Barone
State of Michigan Vs. R.L.
35th District Court - Plymouth, Michigan
Non-Jury Trial, Judge Lowe Presiding
In this case the Client’s had
stopped for a few beers after work. He left the bar and was driving Northbound
on I-275 when he was spotted by a State Trooper. The Trooper followed
for a period of time, then stopped the Client, ostensibly because he was
not wearing his seat belt.
Upon contacting the Client,
the Trooper noted that there was a moderate smell of intoxicants, and
that his speech was slurred as he spoke. The trooper ordered him out of
the vehicle and asked him to perform several field sobriety "tests".
At trial the Trooper testified that the Client could not follow his directions,
and "failed" the finger touch test. The Trooper also testified
that he did not properly pick a number between 11 and 13, but instead
picked "9". The client was then given the preliminary breath
test with the result of .176. The client was arrested and transported
to the Livonia Police Department for processing. The Trooper testified
that after observing the mandatory 15 minute observation period at the
Livonia Police Station the Client was given an evidentiary breath test
on the Datamaster, and the results were .17 and .17. The evidence ticket
showing these results was admitted into evidence. This ticket also indicated
a start observation time of 18:43, and a first subject sample at 19:04.
On cross-examination the Trooper
admitted that the evaluation of the finger count was "fairly subjective"
and that his department had not prepared a standardized method to evaluate
this field sobriety test. The Trooper testified further that he did not
attempt to score the Client’s performance, but instead simply concluded
that the Client had not followed his instructions. The Trooper also testified
that the Student Manual prepared by the NHTSA was authoritative. Having
done so, and without further questioning, the Judge acknowledged that
the field sobriety tests given were not the most probative tests available.
Regarding the breath test it
was established that the 15 minute observation period was not followed.
This was accomplished in the following way: All of the documentary evidence
was carefully examined by our office. Upon doing so it was determined
that there was insufficient time to allow the 15 minute observation period.
To prove this at trial it was necessary to obtain the dispatch records
of the State Police as well as the City of Livonia. Therefore a pretrial
discovery order was obtained from the Court and served on the respective
departments. However, only the City of Livonia complied. The next step
was to determine how to cross-examine the Trooper to obtain the necessary
times but not give him enough clues based on the questions to guess that
the 15 minute observation period was being contested. If this could be
done then the Prosecutor and the Trooper would be caught off guard and
It was first established that
the necessary chemical test rights were read to the Client at the scene
of the arrest. It was next established that there was a distance of about
five miles and between a five and fifteen minute drive between the scene
of arrest and the Livonia Police Department. The Trooper also testified
that after he read these rights to the Client he waited for the tow truck
to arrive. Finally it was established that the chemical test rights were
read at 18:42.
Our closing argument was that
there was insufficient observation evidence of either OUIL or the lesser
OWI, and that the breath test results should not be considered by the
Court because the lack of a 15 minute observation period made them unreliable.
Despite the Trooper’s testimony that he had observed the Client for 15
minutes, the evidence showed that this was not possible since the chemical
rights were read at the scene (I-275 & 96) and it was at least a 10
minute drive back to the Livonia Police Department. Also, that the Trooper
did not leave immediately, instead waiting for the tow truck. The Court
was also asked to conclude that since the State Police did not produce
the dispatch records pursuant to Court Order, the case should either be
dismissed, or the Client was entitled to an inference that they contained
information unfavorable to the Prosecutor.
After listening to closing
arguments of both parties, the Judge dismissed the case. The Judge indicated
in his findings of fact that there was insufficient evidence that a 15
minute observation period was followed. He also found that the Prosecutor
had otherwise failed to prove his case.
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