Drunk Driving Cases Handled
by Attorney Patrick T. Barone

Case 18:

People vs. S. B

DLAD - Implied Consent Violation

H.O. Modelski

This client refused to take the evidentiary breath test, and was therefore charged with a violation of Michigan’s Implied Consent Law.  At the appeal hearing for this violation, the Trooper testified that the subject was observed “speeding” on Big Beaver Road in the City of Troy.  She was stopped by two Michigan State Troopers, and the narrative report indicated that upon contact, the Trooper noted a “strong odor of intoxicants”.  The driver “fumbled through her wallet before providing her license, and the driver had red watery bloodshot eyes”.  The Trooper also noted slurring speech.  Upon exiting the driver stumbled from the vehicle, and the PBT registered a .17.

The Trooper also testified that field sobriety evaluations were administered, and the report indicates that “nystagmus” was observed in both eyes, the driver couldn’t say her “ABC’s”, couldn’t walk a straight line, and did not perform the finger-count properly.  The Trooper testified that he arrested the driver, and further indicated that he read the driver the chemical test rights off of form DI-177.  The Trooper then had this form admitted into evidence.

The Hearing Officer asked the Trooper  for what offense he arrested the driver, and the Trooper stated “drunk driving”.  The Hearing Officer also asked the Trooper what the speed limit was on Big Beaver, and the Trooper indicated that he did not know the speed limit.

The client testified that although the Trooper may have read her the chemical test rights, she could not hear or understand them because they were read to her in the Trooper’s patrol vehicle, and she could not hear the Trooper’s voice over the car’s radio.  She also stated that prior to refusing the breath test she had requested that she be allowed to an attorney, and that she made this request several times.  The Trooper admitted that he never let her use a phone.  Finally, the client testified that after she learned that they were on their way to the Judge’s house to obtain a search warrant, she tried to change her mind and agree to submit to the breath test.  The Trooper’s responded that it was too late for her to change her mind.

At the close of the testimony we argued that the chemical test rights were not properly read, that it was a reasonable refusal because the client asked to speak with an attorney, but was denied this request, and finally, that the Trooper had not established by a preponderance of evidence that there was a proper basis for the stop.  He testified that the client was speeding, and yet did not know the speed limit of that road.  The Hearing Officer agreed with the last argument, and granted our appeal.  Accordingly, the client’s license was NOT suspended for six months, and six points were not added to her driving record.

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