by Attorney Patrick T. Barone
People vs. T. H.
72nd District Court - Lapeer
In this Operating Under the
Influence - Second Offense, our client was observed by the arresting police
officer driving in a market place parking lot with its lights out. The
vehicle then put its lights on stopped again, and turned off its lights.
The arresting officer then approached the vehicle, and noticed that the
driver "pretended to be asleep" when he knocked on the window.
The driver "initially denied driving, then later stated that he did
wrong". The driver smelled strongly of alcohol, and could not produce
a driver license. It also appeared that he had urinated on himself.
During the field exercises, the driver was asked to say the alphabet.
He started with A, went to N then said M again. The subject's speech was
slow and deliberate. In counting backwards 27 to 19, the driver began
counting at 27, went through to the number 23, then stated 22, then stated
23, 21,20,19,18,17. The speech was also slurred during this task. When
asked to pick a number between 14 and 12, the driver laughed and stated
"15". Nystagmus was observed, he could not stand on one leg,
and could not walk a straight line correctly, his balance being very poor
during these tasks. He was arrested for OUIL 2nd offense, and had a breath
alcohol result of .22
At the first pretrial we advised
that we would be filing a motion to dismiss arguing that the prosecutor
could not prove the element of operation. An evidentiary hearing was conducted,
and the arresting officer testified in a way that was substantially similar
to the police report (indicated above). At the conclusion of the hearing,
the Court indicated it would issue a written opinion. About one week later
we received the Opinion, which relied on the case law we cited in our
brief. The Court granted our motion. CASE DISMISSED.
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