by Attorney Patrick T. Barone
Secretary of State vs G.B.
DLAD in Flint
Hearing Officer Kronk
The Client in this case had
refused to take the breath test, and was therefore charged with the civil
implied consent violation. Our office demanded a hearing which was held
at the Driver License Appeal Division of the Secretary of State located
in Flint Michigan. At the hearing the arresting Officer testified that
he paced the Client’s vehicle, a Porsche, traveling 45 mph and 60 mph
in a 35 mph zone. The Client swerved to the center lane, swerved to the
left side agin, and drove over the yellow line. The Officer also observed
the Client’s vehicle change lanes without signaling. The Officer noticed
a moderate smell of intoxicants and he admitted to drinking two glasses
of wine. The Client attempted the alphabet 3 times, on the first two tries
he repeated A to S and then from L to S; on the third try he was able
to complete the alphabet quite rapidly. The Client counted from 88 to
73, when asked to count from 88 to 75. On the walk-and-turn the Client
could not walk heal to toe. He also could not stand on one leg for more
than 2 seconds although asked to do so for 10 minutes. The Officer testified
that he read the Client his chemical test rights "from the form".
The Client testified that he
repeatedly requested to speak with an attorney, but was never allowed
to do so. He also noticed a sign in the booking room indicating that there
had been some mistakes on the breath testing log, and this made him skeptical
that the breath testing machine was operating properly.
We argued that Michigan case
law provided for a right to contact an attorney before deciding to submit
to the breath test. This was particularly important in this case because
the Client had good reason to believe there might be a problem with the
breath testing equipment. It was also argued that the Officer had not
met his burden of proof relative to the chemical test rights because he
never testified what form he read from, and did not produce any form or
admit any form into evidence.
The Hearing Officer found that
there was a reasonable refusal in this case, and dismissed the implied
consent violation. Consequently, the mandatory 6 month license suspension
and 6 points on the driving record were not imposed.
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