The police report indicated that the reporting/arresting officer was responding to a BOL (be on lookout) for an OWI driver driving southbound on Gratiot from 27 Mile Road. He apparently was advised that the vehicle was a black Jeep. It appears that he did in fact observe this vehicle in the Gratiot and Main area. According to his report, he then followed the Jeep southbound on Gratiot and observed it cross the yellow center line at least three times before reaching 26 Mile Road. Additionally, the officer also notes that the Jeep crossed the lines numerous times after passing 26 Mile Road. After making the stated observations, the officer stopped the Jeep. The officer asked for the vehicle documents and license and the report indicates that JB fumbled with the paperwork. The officer also indicated that he had to request the license a second time. Additionally, the officer stated that there was a strong odor of intoxicants, slow slurred speech, bloodshot watery eyes and an admission to having â€œtwo beers.â€ The only â€œstandardized testâ€ administered by the officer was the one-leg stand (OLS). The report indicates one of four standardized clues â€“ specifically â€œswaying while balancing.â€
The officer also requested the alphabet and counting backwards, and the driver had some difficulty with both as well as the finger dexterity task. The report also suggests slurred speech during these tasks.
There was a roadside breath test (PBT) as well as the evidentiary breath test in this case. The PBT result was .117 and the evidentiary breath test results were .12 and .12.
We set the case for trial and came back two days in a row waiting for the case to be called. We prepared our case, and remained ready to try and win the case before a jury. On the second day the arresting officer did not show. We asked for the case to be dismissed, and the judge granted our motion.
Felony Charges Dismissed
DUI & DWI
Felony reduced to misdemeanor.
In this case the reporting/arresting officer first observed clientâ€™s vehicle swerving on 13 mile road. At that point the officer made a u-turn and followed clientâ€™s vehicle. The officer noted that the vehicle swerved within the lane and that on more than one occasion the tires touched the center line. Several field sobriety tests were given. The first of these tests was the One-Leg Stand. There are four clues associated with this test, and in order for the officer to properly testify that the driver â€œfailedâ€ this test, he must observe at least two of the four. According to the report the driver did not follow the instructions, and put his foot out for balance. The next test was the Walk-and-Turn (heel to toe). With this test there is a total of eight clues, and in order for the officer to properly testify that the client â€œfailedâ€ this test he must observe at least two of the eight during the performance. The report indicates that client did not complete this task due to a problem with his feet. The next standardized test was the Horizontal Gaze Nystagmus. In administering this test, the officer is looking for an involuntary jerking (nystagmus) as the eye moves across a horizontal path. This jerking is thought to be caused by alcohol induced intoxication. There are three clues for each eye that are associated with this task, for a total of six clues. A subject may be deemed to have failed this task if two of the three clues are observed for each eye. The report indicates that the officer observed that clientâ€™s eyes lacked smooth pursuit, and that he moved his head to follow the pen. The client was also asked to state the alphabet and count backwards. These are both non-standardized tests. In Michigan an officer may testify to what was observed on these tests. The description of the alphabet suggests that the client did not recite the alphabet correctly. Regarding the counting task, the client passed this task without issue. The client refused to take the roadside breath test (PBT), but did submit to a chemical breath test at the station, the results of which were .17 and .17 respectively.
Result: This client's number one priority was to avoid the felony conviction and we were able to negotiate the felony charge down to a misdemeanor drunk driving. Among other things, this result allowed our client to keep his job, vote, and keep his gun rights.
Client Avoids Drunk Driving Conviction
DUI & DWI
Client Pleads Guilty to Careless Driving
Here is a transcript of the videotape from this arrest:
The tape begins at 1:43:52. The patrol vehicle is traveling down a two-lane street. The p. vehicle quickly turns around and comes upon a vehicle stopped at the side of the road. The officer can be heard saying: â€œHoly Shitâ€. He then appears to call in the license plate.
The officer next indicates, â€œHereâ€™s what happened, you hit that way back there - you cast yourself in the air and you ended up here, I can see where you went off and launched itâ€. The officer next asked for the driverâ€™s license and the driver is able to produce it quickly. At this point, a crackling can be heard in the mike indicating that it may be windy.
The officer asked the driver again how much heâ€™s had to drink tonight and the driver explained that he had been at the Moose in Belleview since eight oâ€™clock. He then continues that he didnâ€™t think he had a lot but heâ€™s been on a diet lately and that his judgment may be off.
The officer asked the driver to walk in front of the vehicle. At this point the driver can be seen walking into the view of the camera. The two officers are with him and they look into his vehicle with flashlights. The one officer comments that both air bags went off. The other officer asks him if anybody else was in the car to which he responds no.
The officer next asks if he is hurt at all to which he responds no but he is embarrassed. He went into Kateâ€™s â€œItâ€™s not what I intended to doâ€.
Task One : Finger Count - The officer first demonstrates the task and asks the driver to count with his finger to his thumb 12344321. On the first try the driver indicates 12343421. The officer asks him to try again and on the second time he indicates 12343421.
Task Two : Counting Task - The officer asks first if he has any problems counting 1-15, to which the driver indicates â€œno.â€ The officer then asks him to count 1-15 then backward 15-8. The driver completes this task successfully.
His speech appears approximately normal.
The officer next asks if the driver has any problems with his knees or ankles to which the driver responds he has problems with both his knees as well as his ankles. The officer indicates both to which the driver responds yeah, I used to play football. The officer asked if it causes him balance problems and the driver responds â€œ Not a lot but you knowâ€. As he is answering the question he puts his arms up with his palms forward and shrugs his shoulders. Officer responds â€œokay fair enough.â€
Task three : One leg Stand: The officer indicates to the driver: â€œokay, what I am going to have you do is pick either leg and I am going to have you balance on it. Youâ€™re going to extend your foot out about six inches above the ground like so and you are going to count with your hands at your side 1001 1002 1003 now go ahead and count until I tell you to stop.â€ The driver lifts his left leg and extends both hands about 18 inches away from his sides and counts 1001,2, 1003 1004 1005 1006 1007 1008 at this point his left hand is almost parallel with the ground. He continues counting 1009 1010 1011 1012 at which point he loses his balance and places his foots down. The officer stops the test.
Task Four : Walk and Turn - On these first steps he loses his balance somewhat and then continues counting to nine, turns, and counts nine steps back. and counts nine steps back.
At 1:50:30 the police officer can be seen obtaining his preliminary breath testing device from its case. The officer then indicates: â€œall right, this what youâ€™re at right now a .16 so put your hands behind youâ€™re under arrest for operating while intoxicated.â€ A later breath test at the station confirmed the roadside breath test.
Barone Obtains Dismissal of 2nd Offense Drunk Driving Charges
DUI & DWI
Motion to dismiss - GRANTED
This case was an second offense drunk driving. Our client was stopped after the cops ran his plate â€œrandomlyâ€ (unfortunately legal in Michigan) and thereby discovered that he had a restricted license. After stopping the car our client told the cop â€œIâ€™m going to prisonâ€ (he had a bad criminal history). He admitted drinking seven drinks at the bowling alley, and told the cops that he was a â€œstock broker.â€
He was not able to properly state the alphabet, but could count backwards without any â€œnoticeableâ€ problems. He was not able to complete the walk and turn, at one point almost losing his balance. His PBT result was a whopping .354. Our client refused the breath test, and his blood was drawn. Much later his blood test results came back at a .12.
We filed a motion to dismiss arguing that the police lacked any reasonable suspicion to stop our clientâ€™s vehicle because the only way he could definitively determine that the driver was in violation of the restricted license was to stop and question him. We were able to further demonstrate this at a contested hearing. At the conclusion of the hearing the judge took the matter â€œunder advisementâ€ pending further research. About one month later the court issued its opinion on the record, granting our motion.
Jury Says "Not Guilty"
DUI & DWI
Complete Victory at Trial
This was a trial involving two blood test results of .096 and .099, or adjusted to the time of driving, approximately .11. The roadside breath test result was .16. The facts, as testified to by the various prosecution witnesses, were as follows:
The first witness to testify was the arresting officer. He testified further that the motorist was stopped at about 9:00 p.m. after being observed traveling in his Lotus 70 mph in a 50 mph zone. After stopping the officer noticed slurred speech and a strong odor of intoxicants coming from the motorist as well as from inside the car, and also that the motorist had red eyes. According to the officer, the motorist seemed a bit confused about where he was going and where he had been. In speaking with the motorist, the story changed from being at work to being at home. The motorist also first stated that he'd had nothing to drink, then admitted one drink, and finally indicated two glasses of wine with dinner. Backup arrived, and the motorist was ordered out of his car so the officers could see "whether or not he'd had too much to drink".
The first field task administered was the alphabet, which the motorist was able to complete, albeit with slurred speech. Next, the motorist was able to count backwards, but paused several times for several seconds each time as if trying to remember what number came next. The officer also indicated in his report that "he had a hard time remembering where to stop".
The officer then administered the HGN (Horizontal Gaze Nystagmus), and testified that he observed all three "clues". Further, that he concluded from this test that the motorist was intoxicated.
The officer also administered the walk and turn, and the motorist used his arms for balance, and turned improperly. The motorist also used his arms for balance on the one leg stand. Based on everything the officer observed he testified that the motorist was intoxicated. The motorist was brought to the hospital for medical treatment where he refused to consent to a blood draw. However, two tubes of blood were drawn pursuant to a search warrant. This blood draw took place about 2.5 hours after the traffic stop.
The prosecutor next called the backup officer who also testified that in his opinion the motorist was intoxicated. He also added that the motorist had glassy eyes.
The following day the trial is continued with the testimony of the forensic scientist. He indicated that in his opinion about an additional .02 should be added to the .09 to allow for the burning or metabolism of alcohol after the arrest. He then states that it is his opinion that the blood alcohol level at the time of the driving was about .11.
The forensic scientist was cross-examined extensively on issues involving quality assurance and quality control, as well as the limitations of retrograde extrapolation. He is also questioned regarding his conclusion of .11 at the roadside. After this testimony is completed the prosecution rested. The defense called no witnesses. The motorist also did not testify in his own behalf. Because the defense rested the case went to the jury.
After about two hours the jury returned their unanimous verdict of NOT GUILTY!
The police responded to a dispatch regarding a vehicle in the ditch. The witness stated to the police that she believed the driver was intoxicated. When the police arrived they spoke with a witness who indicated that she noticed the vehicle in the ditch â€œturn around on Sashabaw south and go back the way he came. He swerved back and forth fishtailing and swerving. The vehicle lost traction, did a 360 and stopped against a tree. She saw a man in the driverâ€™s seat with a beer can between his legs. He said he wasnâ€™t injured. His speech was extremely slurred and he had trouble with balance and coordination as he exited the vehicle. The vehicle came to rest against a tree so that the driverâ€™s side door could not be opened. The appearance of the man was 5â€™9â€ to 5â€™10â€ about 27-35 years of age with short blond hair or a crew cut.â€
The police ran the plate and went to the home where the car was registered. When they arrived they interviewed a woman who answered the door. This woman was later identified as the defendantâ€™s mother and said her son sometimes drives the car in the ditch. The police asked to let them see her son as he had just been in a serious accident and they wanted to check to be sure he was alright. The woman was on the phone speaking with her husband to determine if they should let the police into their home. The police heard her say â€œI could not wake him up.â€ At this point the police stormed the home and found the defendant drenched in sweat hiding in a furnace room in the basement. He admitted drinking 6-8 beer before driving home. His speech was slurred; he had glassy eyes and smelled of intoxicants. He was arrested and taken for a blood test. The result was a .18 blood alcohol.
We filed our motion to dismiss for unlawful entry. The judge agreed and suppressed the evidence obtained at the defendantâ€™s home. The prosecutor told the judge she wished to go forward on the theory of impaired driving based on what the roadside witness had observed. The judge agreed. We filed a second motion to dismiss arguing that there was insufficient probable cause relative the identification of the driver or relative to the impairment of the driver. The judge ultimately agreed with the defense and dismissed the case.
Another Case Dismissed!
DUI & DWI
OWI Dismissed / Plea of Responsible Careless
On November 14, 2008, at approximately 8:15 pm, our client had just finished gassing up his car at the Sunoco Gas Station, located at 15 Mile Road and Harper Ave. in Clinton Township. While client was at the gas station, an officer of the Clinton Township Police Department arrived in response to dispatch receiving an anonymous 911 call, claiming that clientâ€™s car had been swerving on the road. The Clinton Police Dispatcher told the Officer, â€œDrunk driver, heâ€™s just finishing pumping gas at the Sunoco at 15 and Harper, a silver Honda, boy union 4770, came off the expressway, heâ€™s all over the road, out of Grant Township.â€ As soon as our client began to pull out of the gas station and onto 15 Mile Road, the Officer immediately turned on his patrol carâ€™s overhead lights. Our client pulled over in response to the patrol carâ€™s lights.
During the investigation there was an admission to drinking three drinks. There was an odor of alcohol and bloodshot eyes and slurred speech. The police report also suggested that our client had balance trouble â€œthroughout the stopâ€ and on at least one occasion leaned on the officerâ€™s car for support.
Our client was asked to state the alphabet and count backwards. The police report indicated without specificity that our client did not properly state the alphabet on three attempts, and made some minor mistakes with the counting task. The report also suggested that our client was unable to properly make a finger-count. Our client agreed to take the roadside breath test (PBT), with the result of .09, and also agreed to the breath test back at the station with a result of .08/.09.
We filed a motion to dismiss arguing that it was a bad stop. We prepared our case including our cross-examination of the cop, got psyched up, expected to win, went in prepared to win, and on the day of the hearing the prosecutor offered to dismiss the case upon our clientâ€™s plea of responsible to careless driving.
OWI 2nd Reduced to Careless
DUI & DWI
Second Offense OWI reduced to Careless Driving!
Client is stopped for speeding 10-15 MPH over the limit by a state trooper. The report indicates she was slow to pull over. She admits drinking beer has the odor of alcohol, bloodshot glassy eyes and slurred speech.
Client fails the HGN (horizontal gaze nystagmus), the one leg stand and walk and turn standardized filed sobriety tests. She also exhibits poor balance.
At the jail the client blows into the DataMaster which reveals a breath alcohol content (BAC) of .14/.15.
The case is set for trial and on the first trial date the trooper agrees to a reckless driving. Case is adjourned to determine if a plea can be worked out. Client eventually declines to accept this offer, and the case is re-set for trial.
On the new trial date we point out to the prosecutor that the jail had missed the 120 day inspection of the DataMaster that should have occurred subsequent to our clientâ€™s breath test. We argue that without this result the judge will not allow the jury to see the breath test results.
The prosecutor offers a careless driving and the client accepts this plea. A careless driving is a civil infraction like a speeding ticket or running a red light.
This fantastic result helped the client to avoid the imposition of any driver license sanction on this case and there was no driver responsibility fees imposed. Also, only three points rather than six points were added to the clientâ€™s driving record.
Also, this client was an Illinois licensed driver. She had moved to Michigan to take a management position at a large department store. Had she been convicted of any alcohol related charge her Illinois driver license would have been suspended for at least one year!
OWI 2nd Reduced to Careless
DUI & DWI
Second Offense OWI Reduced to Careless!
What follows is a portion of our summary of the videotape in this case. We prepared this document to assist in trial preparation and also to assist in any plea negotiations and to identify any possible legal issues:
VEHICLE IN MOTION: 1:48:48
The video is in color and there is limited audio
According to the police report the officer observed the listed vehicle disregard the stop sign. The officer then noticed the vehicle accelerate in speed and drive in the right fog lane. The officer then illuminated his emergency lights to make a traffic stop. None of the driving was captured on camera, when the video began, we observed the officer illuminate his emergency lights and the listed vehicle was stopped on the shoulder of the road.
PERSONAL CONTACT: 1:51:16
1:51:16 We observed the officer exit his patrol vehicle and walk up to the driverâ€™s side window to speak with the driver, soon to be known as our Client. We are not able to hear the conversation between the two because there is no audio at this time.
PRE ARREST SCREENING: 1:52:01
1:52:01 Client stepped out of his vehicle.
1:52:08 The officer searched Client.
Note: It is unknown whether Officer #1 was/is a certified SFST practitioner. Please refer to the video review addendum to learn how the standardized field sobriety tests should be properly administered.
(1) Horizontal Gaze Nystagmus: 1:52:48 to 1:53:02
We observed the officer make 2 vertical passes across Clientâ€™s eyes. Please note that the test began off screen and half way through the camera angle changed allowing us to view the test being administered, there also was no audio. According to the police report, the officer found all 6 clues in Clientâ€™s eyes, lack of smooth pursuit, distinct nystagmus at maximum deviation and onset of nystagmus prior to 45 degrees.
(2) One Leg Stand: 1:53:10 to 1:53:22
We observed Client attempt the one leg stand task three times, each time he used his arms for balance, swayed, and put his foot down after a few seconds. Please note there was no audio during this test. This is consistent with the police report.
(3) Walk and Turn: 1:53:34 to 1:53:50
We observed Client take 8 steps forward, turn, and take 8 steps back, with his arms at his sides. Client had trouble maintaining his balance after his first turn. We were unable to observe Clientâ€™s feet on camera walking heel to toe. Please note that there was no audio during the test. According to the police report the officer observed Client take 9 steps forwards, turn, and take 9 steps back. We were unsure if the officer counted an extra step when Client made his turn, and are also unsure how many steps the officer asked Client to take.
1:54:20 The audio begins and we hear the officer ask Client to take a PBT test. The officer never read Client his PBT rights. The officer asked Client if he was correct in stating that he had consumed 2 beers tonight, Client stated he had more then 2 beers.
(4) Preliminary Breath Test (PBT): 1:55:09
1:55:09 We observed Client take the PBT test, which resulted in a .14 BAC level. At the Station client blew .14/.14
1:55:09 The officer informed Client that he was under arrest for OWI.
1:55:44 The video ends with Client seated in the back of the patrol vehicle.
Client was arrested on the evening of March 25, 2009 for OWI 2nd. The officer stated that the initial reason for the stop was due to Clientâ€™s erratic driving.
This plea was in part due to the fact that the arresting officer had been laid off. The client decided a final resolution would be better than a dismissal â€œwithout prejudiceâ€ meaning the case could be brought again if and when the officer was rehired.
Barone Obtains Another Reduction to Careless!
DUI & DWI
OWI case reduced to Careless Driving
Client is driving his truck through a subdivision when he careens off the road and crashes into a parked car. He gets back onto the street, stops and a neighbor observes him throwing up. He continues and hits a second car and a tree, and is observed throwing up a second time. The neighbor calls the police then follows client across the street into the parking lot of the Middle School across the street.
When the police arrive the client is observed outside his car and is dirty and covered with leaves. He admits drinking has a strong odor of alcohol on his breath, and when confronted about the cars he hit simply says â€œIâ€™m sorry.â€
The police administer a roadside breath test (PBT) which registers a .20 breath alcohol result. Our client is arrested and at the station becomes combative and argumentative with the police. At one point he refers to the arresting office as a â€œfaggot.â€ He refuses the breath test at the station.
The case is pending for many months, and at one point we are able to obtain a dismissal â€œwithout prejudice.â€ Later, an under 21 BACâ€ is offered, but client refuses to accept this plea bargain. The case continues on for trial, being adjourned several times.
On one trial date the neighbor appears and we request an evidentiary hearing so that we can obtain his testimony. After the hearing the court reluctantly agrees to yet another adjournment so that we can obtain the transcript from the evidentiary hearing.
Shortly after the evidentiary hearing the client picks up another drunk driving case in another jurisdiction.
On the day of trial we are able to negotiate a reduction to careless driving provided he is found guilty or pleads guilty to the second case. The court also requires that client obtain and follow-through on alcohol treatment. We had already recommended treatment, and client had already begun his alcohol recovery.
Original drunk driving case dismissed, client pleads guilty to the civil infraction of careless driving as well as the misdemeanor charge of open intoxicants in a motor vehicle.
The result helped the client to avoid the imposition of any driver license sanction on this case and there was no driver responsibility fees imposed. Also, only three points rather than six points were added to the clientâ€™s driving record.