OUTCOME: 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 client’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 client’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!
DUI and DWI
OWI 2nd Reduced to Careless
N/A
OUTCOME: 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 possibl...e 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 driver’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.
TESTS
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 Client’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 Client’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 Client’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
ARREST: 1:55:09
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.
VIDEO SUMMARY
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 Client’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 “without prejudice†meaning the case could be brought again if and when the officer was rehired.
DUI and DWI
Barone Obtains Another Reduction to Careless!
N/A
OUTCOME: 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 “I’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 “faggot.†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 “without prejudice.†Later, an under 21 BAC†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 client’s driving record.
OUTCOME: Drunk driving reduced to reckless driving
This case involved a client with a CDL (commercial driver’s license) charged with OWI (operating while intoxicated) in Michigan. Due to a 2005 change in Michigan’s drunk driving laws, a conviction... to drunk driving (including both OWI and OWVI) would result in a one-year suspension of the driver’s CDL. This suspension occurs even if the drunk driving did not involve a commercial vehicle.
In this case we were able to obtain a reduction from drunk driving to reckless driving, saving the client his CDL and his job.
Here is a summary of the case:
In this case the police were responding to a two-vehicle injury accident. A witness at the scene of the accident said "he (client) hit hte curb right before he smashed into the car, I knew he was drunk. He was swerving while driving." The accident occurred on November 27, 2008, and according to a recorded statement of the arresting officer this is traditionally the “busiest bar night of the year.â€
The client admitted drinking “at a friend’s house†and had all the usual signs of intoxication. This included an inability to state the alphabet, stand on one leg. The arresting officer had to catch him to keep him from falling over. The PBT results were .12. The client was arrested.
At the station he blew a pair of .13s, i.e., the DataMaster breath test evidence ticket indicated that two samples of client’s breath were tested and registered .13 each time. This amount is more than 50% above the legal limit.
Our review of the case suggested that there were no viable legal issues. We referred the client to alcohol treatment at Henry Ford and set the case for trial. After at least 12 court appearances over about a 9 month period the case was finally set for a non-jury trial.
On the date of the trial, with all parties present, we negotiated with the prosecutor and the arresting officer, and ultimately persuaded them to offer a reduced plea to a reckless driving. Our client agreed to such reduction.
In many instances a reduction from drunk driving to reckless driving in Michigan would not be helpful to the client because the penalty for a reckless driving is greater than for the more typical reduction to operating while visibly impaired (OWVI). This is because a reckless driving carries with it a 90 day hard suspension of the driver license and 6 pts on the driving record.
However, for a CDL holder, there is a significant benefit in that the suspension is for “only†90 days rather than the full year as it would otherwise be with the more typical reduction to the impaired driving.
There is some confusion as to whether or not a reckless driving also triggers the one year CDL suspension, and it would IF the offense was committed while driving a commercial vehicle. Here the offense involved a non-commercial vehicle. Here is the relevant statutory information:
This is from the Oct 1 2005 amended statue analysis
"In addition, pursuant to 319d(c) (vii) a 6-point violation outlined in 257.320a also will be a 1 year suspension for a CDL. Specifically, Section 320a (e) lists operating a motor vehicle in violation of section 626. Section 626 is commonly known as "Reckless Driving". Therefore, conviction of a reckless driving, while operating a commercial vehicle, will cause a 1-year suspension of the CDL. However, and important to the matter at hand, a conviction for "reckless driving" while operating a non-commercial vehicle will not suspend a CDL for 1-year but only be a 90-day hard suspension in accordance with the statute and secretary of state guidelines. "
DUI and DWI
Careless Plea Mid-Trial
N/A
OUTCOME: Careless driving / Open Intoxicants
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.
Criminal defense
Client's Second OWI Offense Dismissed
N/A
OUTCOME: Case refiled as reckless driving.
Client was stopped for speeding, and according to the police report, failed all the field sobriety tests. A breath test at the station suggested a BAC of .11%. We requested a video of the breath test, ...and some irregularities were observed suggesting that the .11% was wrong. This information was brought to the attention of the prosecuting attorney, who was also provided with scientific support for our contention that breath test was result was wrong. After extensive negotiations, the prosecutor agreed to reduce the charge to reckless driving. However, the Judge presiding over the case would not accept the plea to reckless driving. Prosecutor then agreed to dismiss the case and re-wrote the charge as reckless. Client plead to this new misdemeanor offense.
DUI and DWI
.14 Breath Test Case Reduced to Careless!
N/A
OUTCOME: OWI reducted to careless driving
This client was stopped after she hit a curb while turning from 13 mile onto Groesbeck Highway. While turning she also ran the red light at the intersection and made a very wide right turn - travelin...g well into the left turn lane for oncoming traffic. She admitted drinking one and later two beers at a party that evening.
She was asked to step out of the car for field sobriety tests. For the first field sobriety test she was asked to state the alphabet and did so “as instructed.” She was then asked to count backwards, and missed several numbers, and put the numbers in the wrong order. She attempted to count backwards a second time with the same result. She was then asked to stand on one leg. She was not able to do so. She put her foot down several times, and simply could not stand on one leg for more than a few seconds.
The client was then given a roadside (pbt) test with a result of .128. She was arrested and back at the station given another test. This second “evidentiary” (DataMaster) breath test yielded two results of .14 each.
We ordered the entire discovery package including a videotape of the booking room where the DataMaster test was administered. We were able to determine that the 15 minute observation rule was not followed. We filed a motion and asked for an evidentiary hearing. We cross-examined the police officer and after the videotape was entered into evidence the judge took the matter “under advisement.” We returned on another date when the Court issued its ruling from the bench which granted our motion. At this point the breath test was suppressed, and could not be used for trial.
The week before trial we contacted the prosecutor who indicated that we would proceed to trial unless our client would agree to an impaired driving. We said “no” and began our trial preparation in earnest.
On the day of trial the prosecutor offered a reckless driving. We told the prosecutor that we thought that we could win the trial, but would consider a plea to the civil infraction of careless driving. The prosecutor wanted the client to also plead guilty to disorderly person. Through further negotiations we were able to persuade the prosecutor and the judge to agree to accept a “no contest” plea to the disorderly person with the understanding that the matter would be delayed for six months and then dismissed. During this six month period our client would be on non-reporting probation. Client agreed to this and the original charges, including the drunk driving charge, the no proof of insurance and no vehicle registration charges were all dismissed.
