by Attorney Patrick T. Barone
State of Michigan vs. C.
Monroe County Circuit Court
Judge LaBeau / Monroe, Michigan
While on probation for a prior
OUIL 3rd (also before Judge LaBeau), this client was stopped
by a Michigan State Trooper, and ultimately arrested for a second OUIL
3rd. As a result of this arrest, he was also served with a
"show cause" for violation of probation.
The Trooper’s narrative report
indicated that the while traveling on I-75 South near Nadeau Road, he
observed a grey pick-up truck "continually swerving" between
lanes. The subject vehicle then was observed crossing over the lane of
travel, straddling the lanes as it entered the Nadeau exit ramp. The vehicle
stopped "well beyond the white line" as it approached the stop
sign at the end of the ramp, made an abrupt stop, then a sudden right
turn "while traveling on the shoulder", then made another sudden
turn, at a high rate of speed, again "traveling on the shoulder and
kicking up dirt and gravel, nearly hitting several street signs".
The Trooper activated his siren and emergency equipment as the subject
vehicle turned into the driveway of a local residence (address removed).
The Trooper’s report further
indicated that the "driver quickly exited the vehicle and started
walking towards the front door of the house. I instructed the driver to
come over toward my patrol vehicle". In speaking with the driver,
the Trooper noted a strong odor of intoxicants. The driver admitting to
drinking "a lot", and said "yes, I know I am drunk".
The driver then handed the Trooper a Michigan Commercial Driver License
which was issued to "Chuck Jones". The address on the license
was different than the address of the home where the vehicle was stopped.
When confronted with this fact, the driver indicated that he’d moved.
The driver failed all the field sobriety tests, including the alphabet,
finger count and backwards count. His breath test results were .15. The
driver was arrested for OUIL 3rd.
The driver was then brought
to the Monroe County Jail, and while the Trooper was checking the information
for Chuck Jones, the driver said "you’re gonna find out that isn’t
my license. The Trooper’s report indicates "I asked the driver to
explain what he was talking about. The driver then told me that the Michigan
license he gave me was not his, and that he didn’t have a license. I asked
him where he got the license for "Jones" from, and he stated
he found it. The driver then produced a social security card and food
town plus card identifying him as C. G. H. The driver also said ‘I have
a CDL and need a break’". During the Trooper’s investigation, it
was found that the truck the subject was driving was registered to another
individual by the name of "Patrick Starr".
Upon the first meeting with
the client he indicated that in fact he was not the driver. He explained
that he and Mr. Starr work together in Detroit, and that he had asked
Mr. Starr for a ride home that evening. On their way home, they stopped
off at a club located in Wayne because they had to deliver some cash to
their boss, the business owner. While at the club, the client had consumed
some beer (in violation of his probation). Later, he got back into the
truck with Mr. Starr, and they continued on to the client’s home. Mr.
Starr was driving. When they got there, Mr. Starr quickly exited the truck,
and went inside the client’s home. The client then got out of the truck,
and was confronted with the Trooper. When he tried to explain that he
was not the driver, the Trooper ignored him.
At the preliminary examination
the trooper testified that he was directly behind the truck at all times,
and that had a clear view of the inside through the rear window. He also
testified that there was only one occupant. The Trooper testified that
he pulled into the driveway of the home with his emergency lights and
siren on, and watched the truck come to a complete stop. He then observed
the client get out of the driver side of the truck.
Immediately before the trial
began we made a motion where we asked the Judge to keep out all of the
facts relative to the false driver license, that the client’s driving
privileges were revoked, and that he asked for "a break" because
he had a CDL. (Based on Michigan Rule of Evidence 403(b)). The Judge denied
the motion in part, but did instruct the prosecutor to be very careful
not to elicit any testimony from the Trooper relative to the client’s
At the trial we stipulated
to all of the elements of a drunk driving except the element of "operation".
In other words, we told the jury that we admitted that the client was
"under the influence" and that he had an unlawful breath alcohol
level. The only issue for the jury to decide therefore was whether or
not the client was actually driving the truck that was stopped by the
The Trooper testified at the
trial, and essentially repeated much of his prior testimony, indicating
to the jury that he was absolutely certain that there was only one occupant
in the truck. He described to the jury in great detail about how there
are flashing and strobe lights on top of, on the side of, and at the rear
of the patrol vehicle, and that they were all activated before stopping
the subject vehicle. He also described the siren how he activated in making
the stop. The Trooper diagramed the scene on a large black board, and
told the jury that he stopped about one car length behind and to the side
of the client’s vehicle.
On cross-examination certain
differences between the trial testimony and examination testimony were
brought out, as was the fact that the Trooper had turned off the siren
and called dispatch before he got out of his vehicle. We called Mr. Starr,
and the owner of the business as witnesses, and the client also testified
in his own behalf. Mr. Starr told the jury that he was in fact the driver
of the truck, that it was his truck, that the passenger side door doesn’t
open from the inside, and that he got out of the truck without noticing
the Trooper, went inside, took a shower, and fell asleep on the couch.
He testified that he never saw the Trooper’s lights, or heard the siren.
The next day when he found out about the arrest, he never thought to try
and call the police to straighten it out because he didn’t think the police
would believe him.
The business owner testified
regarding meeting them at the club in Wayne, and also about how after
leaving the club, he watched both the client and Mr. Starr get into the
truck and drive off, with Mr. Starr as the driver. The client testified
similarly, but added that he had given the wrong license to the Trooper
by mistake. He testified that he first realized this when he heard the
Trooper calling the wrong name into dispatch, and then corrected him by
giving the Trooper his real name.
During closing argument we
told the jury to be very careful with the prosecutor’s argument that in
order to believe our "story", they’d have to believe the Trooper
was a liar. We argued that the prosecutor was attempting to shift the
jury’s attention away from the central question, which was "has the
prosecutor proved his case beyond a reasonable doubt, or stated differently,
was there a reasonable doubt, a fair honest doubt, as to who was operating
the truck". It was pointed out to the jury that the Trooper must
have taken his eyes off the truck when he reached down to grab his microphone
so that he could call dispatch. He also must have taken his eyes off the
truck when he reached up to turn off the emergency equipment and flashers.
This would have given Mr. Starr an opportunity to exit the truck, and
enter the home undetected by the Trooper. It was also pointed out that
there were no over head street lamps, and no other illumination near the
home other than the Trooper’s headlights, and that in fact, it was so
dark that the Trooper had to use his spot light to illuminate the driveway
during his investigation. Based these and other arguments, we suggested
to the jury that in fact there was a "reasonable doubt" as to
who was opperating the truck, and therefore, that they should return a
verdict of "not guilty".
After deliberating for 40 minutes,
the jury did return a verdict of NOT GUILTY! Based on a prior agreement
we had reached with the probation officer in charge of the case, the violation
of probation was also dropped (this despite the fact that the client had
taken the stand and admitted to drinking). The client’s bond was returned
to him, and the Court took no further action.
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