by Attorney Patrick T. Barone
People of the
State of Michigan vs. R.S.
This was a jury trial.
When the prosecuting attorney was asking the questions, the arresting
officer testified that he observed our Client leaving a bar parking lot
(Shark’s Club) and cross over the lane marker twice. When following
behind our client, the officer testified that he observed the vehicle
brake hard, almost coming to a complete stop, and that he did this twice
“for no apparent reason”. The officer characterized this as “erratic
driving”. It was at this point that the officer activated his lights, and
pulled our client over.
Upon initial contact with
the driver, the officer testified that he noted a strong odor of intoxicants
immediately after the driver rolled down his window “only about a
half-inch”. He also noticed nystagmus in the driver’s left eye when the
driver “looked up and back at me”. The officer also testified that he
noticed that the driver had “very glassy eyes”, and that his speech was
slurred. The driver at first denied any drinking, and then later admitted
that he had one beer. When asked where he was coming from the driver
indicated “I don’t think I want to answer that”.
The officer testified that
he had to ask the driver several times before he agreed to step out of the
vehicle, and that “I had to constantly repeat myself with him”.
After being asked to exit
the vehicle, the driver was asked to perform several "field sobriety tasks",
and the officer testified as follows:
– Driver’s speech was slow and slurred.
– Again, driver’s speech slow and slurred.
– No problems.
There was also a videotape
of the arrest which showed the following:
Horizontal Gaze Nystagmus (HGN)
- After the officer instructs the driver to follow the pen with his eyes and
not move his head, he begins the test. The driver is facing toward the
police vehicle that has its emergency lights on. The videotape does not
clearly show how many passes the officer made with each eye, but the total
duration of the test was about 22 seconds. During the test the officer can
be heard telling the driver at least twice to keep his head still. The
officer testified that because of the driver’s non-compliance, he could not
“successfully” complete the task, but that he did observe the three NITSA
clues, i.e., lack of smooth pursuit, nystagmus at maximum deviation, and
nystagmus prior to 45 degrees.
Walk and Turn (WAT) – The
officer’s initial instructions could not be heard on the tape. The officer
appeared to instruct the driver to stand in the start position, and could
then be heard indicating: “Continue touching your heels to your toes. The
officer can be seen demonstrating the steps. He further instructs the
driver to walk 9 steps and then demonstrates a turn, which is essentially
the officer pivoting and turning at the same time.
In attempting the task, the driver
can be seen and heard walking forward, counting 9 steps, then pivoting,
saying out loud “a series of small steps”, then turning and counting back 9
The officer testified that the
driver stepped from the start position twice (this was visible in the
videotape), that he started before being instructed to start, that he didn’t
touch heel-to-toe, and that he stepped off the line. Also, that “he kept
leaning to one side as he walked”.
One Leg Stand (OLS) – On the
video, the officer can be heard instructing the driver to keep his feet
together, and the officer can be seen lifting his leg to demonstrate.
During the entire OLS, the driver could be seen hopping to maintain his
balance, however, in the video he does not put his foot down and appears to
raise his arms only slightly away from his body.
The driver was then
arrested for drunk driving. After transport to the police station, a
DataMaster test was offered to the driver, but he refused to submit to it.
As a result, the officer obtained a search warrant for blood. This blood was
collected at a local hospital, and sent to the State Crime Lab in Lansing
Michigan for testing. The toxicology report indicated a blood alcohol level
When cross-examination of
the arresting officer, we were able to show that despite the arresting
officer’s characterizations, the driver performed quite well on all of the
field tasks. We also pointed out to the jury problems with the manner in
which the officer administered or evaluated the field tasks.
Regarding the blood test
results, we questioned the officer and lab technician (“forensic scientist”)
who tested the blood, and attempted to point out problems with the manner in
which the blood was collected, transported or tested by the State Lab.
We called only one witness
who was a toxicologist. After the voir dire by the prosecutor, we decided
to withdraw him as a witness, and he offered no further testimony. The
defendant did not testify. We then rested our case, and the testimony and
evidence was complete.
In our closing argument, we
explained to the jury that the prosecutor had not met her burden of proof as
that burden is set forth in the common law and jury instructions. Based on
the prosecutor’s evidence or lack of evidence, we urged to the jury that
they must return a verdict of "not guilty" on the charge of Operating While
Visibly Impaired (formerly “OWI”). We were successful with these arguments,
and after deliberating for about two hours, the jury returned a verdict of
Script: This was the client’s second offense within 7 years, so this verdict
allowed the client to avoid the imposition of the mandatory one year license
revocation. Had he lost his license, the client, who was a law student,
might have had to drop out of class. The conviction would otherwise have had
a devastating impact on him and possibly his future. However, because of
the not guilty verdict, the client was able to walk out of the Court without
paying any fines or costs, and no penalties of any kind were imposed (or
could be imposed) by the Court. For this Client, the not guilty verdict made
it as if the arrest never happened.
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