by Attorney Patrick T. Barone
People of the Township of
Macomb vs. A. B.
41A District Court - Macomb
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 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
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
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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