Careless Plea Mid-Trial

Patrick Thomas Barone

Practice Area:DUI / DWI

Outcome:Careless driving / Open Intoxicants

Description:Mobil gas station attendant calls 911 to report a suspicious car at the pump. The 911 tape includes the station attendant’s statement that the car was at the pump for more than 30 minutes. The police arrive at 2:22 a.m., and find that the car is still running, and that the driver is asleep with his foot on the brake. The police try to wake him up but he remains asleep. The officer opens the driver’s side door which is unlocked, puts the car in park and removes the keys. He wakes up the driver, who is startled, and reaches for the keys in an apparent attempt to leave. The officer confronts the driver, who denies being asleep. He has bloodshot eyes and a strong odor of intoxicants. He admits drinking “two beers” and states that he’s on his way home from Detroit. The officer asks him for his driver license and instead the driver hands the officer his phone. After several more tries the driver produces his driver license. The officer then asks him to step from his car, and in doing so the driver stumbles and has balance problems. He cannot walk a straight line. His steps are not heel-to-toe, and his balance is “staggering.” The driver is able to state the alphabet and count backwards in a “slow and deliberate” manner. The driver refuses the roadside breath test, but agrees to take the test at the station. His breath test results are .12/.11. The prosecutor makes no offers, so the case is set for trial. At trial, of the first 7 people seated as jurors, 6 are none-drinkers. Additionally 2 jurors have had a close friend or family member killed by a drunk driver, and 2 others believe the people shouldn’t drink and drive – period. After the arresting officer testifies that he’s made 1,500 – 1,600 drunk driving arrests in his career. Also, that the driver was definitely drunk. The simulator operator testifies next. He is the sole simulator operator and has performed all the weekly calibration checks for all months. The prosecutor moves for admission of logs. We object based on the newer United States Melendez-Diaz. Specifically we argue that the "stamp" of the 120 inspector was essentially an affidavit, made for litigation to prove a fact (that 120 day inspection was done according to the rule). The judge agreed with our argument, but ruled that the rest of the logs came in with the 120 day stamp removed. We then made a motion in liminie to keep out the breath test since prosecutor (based on judge's ruling) couldn't lay foundation. This all happened at about 5:30 p.m. so the judge adjourned to allow prosecutor to respond. Before leaving I asked the prosecutor for a careless and open intoxicants and she responded "give me until 8:30 to decide." The following day rather than continue in trial, the prosecutor agreed to the reduction of the OWI (drunk driving) to the civil infraction of careless driving.