by Attorney Patrick T. Barone
In the Matter of: E. M.
Implied Consent Appeal
The police report in this case
indicated that the driver was observed “slumped over the steering wheel
blocking a moving lane of traffic”. The officer knocked on the window
to awaken the driver, and an open 12 oz. can of Bud light beer was
observed in a cup holder of the car.
The driver was asked to stop out
of the car, and the officer noticed a “strong odor of intoxicants”. The
driver was asked to count from one to ten. The driver started at the
number “1” but could not continue. The officer also observed that his
eyes were “bloodshot red, he had slurred speech and was unaware of (his)
surroundings at current time”
At the station, the driver
refused to take a breath test to determine his alcohol level.
Consequently, he was charged with a violation of Michigan’s Implied
Consent” law, meaning that unless he appealed and won, his license would
be suspended for a period of one year, and six points would be added to
his driving record.
Immediately after the client
retained our office, we filed with the DLAD a demand for a hearing, and
indicated in the demand that we wished to contest all four
administrative issues. These are (1) the propriety of the stop; (2) the
propriety of the arrest; (3) whether or not the chemical test rights
were read as required by law, and; (4) whether or not the driver
“reasonably refused” the chemical test.
At the hearing, the officer who
read the driver his chemical test rights and attempted to administer the
breath test was present, but the officer that handled the stop and
arrest was not. We made a motion to dismiss on the grounds that the
officer who was present would not be able to meet his burden of proof
relative to issues one and two above without relying on hearsay
evidence. The hearing officer agreed, granted the appeal, and dismissed
the implied consent charge.
This was a nice victory for the
client because it allowed him to avoid the mandatory 1 year suspension
of his driving privilege. Additionally, no points were added to his
record as a result of this matter.
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