by Attorney Patrick T. Barone
State of Michigan vs. S.W.
52-2 District Court
Felony OUIL - Third Offense
The arresting Police Officer
was responding to call regarding a possible OUIL. The caller had followed
the suspect from a local bar. Upon approaching the driver the Officer
noted an odor of intoxicants and bloodshot and glassy eyes. The driver
admitted to drinking three beers and a two shots. The driver was asked
to exit the vehicle to perform field sobriety "tests".
The driver was able to recite
the "ABC’s" correctly, but could not follow the instructions
of the Officer regarding the backwards count, the balance "test"
or the finger-to-nose. He also lost his balance during the one-legged
The driver was arrested for
OUIL and released. Later a felony warrant was issued for his arrest because
he was believed, contrary to the statute, to have two prior drinking related
offenses within ten years, making it appropriate for the prosecutor to
enhance the first offense to a third offense.
During the pretrial and trial
preparation of the case it was discovered that the client had actually
plead guilty more than ten years ago, but that the Prosecutor had improperly
relied on the driving record to establish the conviction dates. The transcripts
from the prior pleas were ordered, and presented to the Prosecutor, along
with a recitation of the law relative to conviction and enhancement. At
the preliminary examination the Prosecutor agreed to amend the charge
and the client plead guilty to a first offense. He was sentenced to time
served, with no fines or costs imposed. Based on the reduction it is also
possible for the client to lose total driving privileges for only 30 days
rather than the mandatory five years for the felony drunk driving.
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