by Attorney Patrick T. Barone
vs. S. B
Implied Consent Violation
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.
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
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.
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.
HERE to go back to the sample cases.