Drunk Driving Cases Handled
by Attorney Patrick T. Barone

Case 17:

People of the Township of Macomb vs. A. B.

41A District Court - Macomb County

Judge Shepard - OUIL 1st

Here the narrative report indicated that the arresting officer was stopped by a citizen who complained that a black van had "cut him off"several times and he feared that the driver was possibly OUIL. The officer then caught up to the vehicle in question, and observed the vehicle drive over the right shoulder line, then gradually correct and then cross the lane marker for the right and middle lanes. The vehicle was then stopped.

At trial, Defense Counsel asked the Judge to limit the testimony of the arresting officer relative to what he was told by the "citizen". The Judge granted the motion in part, and the officer was only able to testify that he was stopped by a citizen and responded to this citizenís complaint by catching up to and following the Clientís vehicle. The officer was of course allowed to testify regarding what he himself had actually observed, including the weaving described above.

After stopping the vehicle at about 2:30 a.m., the officer testified that he noted a strong odor of intoxicants, red glassy eyes and slurred speech. The driver told the officer that heíd just left a local bar and was on his way home. He admitted to drinking four drinks and a shot. When the officer pointed out to the driver that the entrance to his subdivision was "about 1-1 Ĺ miles behind us", the driver chuckled and responded "no way". While still seated in the van he was asked to recite the alphabet from A - Z, which the driver was able to do, but with "thick slurred speech". He was then asked to count from 37-21. He counted backwards, again with slurred speech, stopping at 20 rather than 21. He was then asked to exit the vehicle.

The arresting officer then asked the driver to do a finger-to-nose test. He testified that "as he performed it, he began to raise his right finger as I said "left". He did quickly lower it and proceeded. A "standing Rhomberg" test was then administered, with the subject again asked to recite the alphabet with his head tiled back and eyes shut. The officer noted that he observed the driver sway from side to side while standing with his feet together.

The arresting officer then brought the driver to the County jail so that a breath test could be administered. The driver offered two breath samples, each of which showed a breath alcohol level of 0.10. The arresting officer testified that based on all of this he believed the driver was intoxicated, and had an unlawful blood alcohol level.

Upon cross-examination Defense Counsel was able to demonstrate that even in the face of this testimony, there was ample evidence of sobriety, and that there was a lack of evidence regarding for example over what period of time the drinks were consumed, how large the drinks were, what kind of alcohol were contained in the drinks and so forth. It was also brought out that while the driver made several mistakes on the field sobriety tests, for all practical purposes, he passed them. The arresting officer was subjected to other areas of rigorous cross-examination relative to all of his "observation testimony". Ultimately, the purpose of this cross-examination was to show that the police officerís conclusion that he drew from his observations, namely that the client was intoxicated, that this was an unreliable conclusion, and that the jury should give it very little weight.

The next area of cross-examination was relative to the limitations of the breath test device (the datamaster), and therefore, the limitations as to the reliability of the result of 0.10. The officer was also cross-examined relative to the limitations in the manner in which the device was set-up, maintained and calibrated by the department. On cross-examination the arresting officer also admitted that he left the subject in the same room as the datamaster even though this was contrary to the instructions in the operatorís manual.

During the closing argument, Defense Counsel argued that the prosecutor had failed to prove the case beyond a reasonable doubt because there was a great deal of evidence of the driverís sobriety, and that there was a reasonable doubt as the reliability of the officerís conclusion, based on his observations, that the client was intoxicated. Defense Counsel also argued that the prosecutor had not proven beyond a reasonable doubt that the datamaster result was reliable. Defense Counsel argued therefore, that both the datamaster result of 0.10, as well as the officerís conclusion that the client was intoxicated, should be disregarded by the jury. After deliberating for 40 minutes, the jury returned a unanimous verdict of NOT GUILTY.

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