Implied Consent Victory for Livingston County Client
May 21, 2015OUTCOME: Implied Consent Appeal Granted (license not suspended)
After being arrested for Operating While Intoxicated (OWI) in the city of Brighton (Livingston County), my client refused to blow into the DataMaster. This refusal resulted in an implied consent viola ... tion, which we appealed. There were no seemingly "great" issues for us to attack at the implied consent appeal hearing. It was a true refusal--not just a failed attempt to blow into the machine. The officer had even written his initials by each line of the DI-177 form as he read the chemical test rights to my client. However, the police officer testified about an odor of intoxicants coming from the vehicle and very little more. He offered no testimony about any of the clues from the 3 Standardized Field Sobriety Tests (SFSTs) that my client had failed--which were all in his police report. When the officer had finished testifying, I realized that the officer had failed to meet his burden of proof on the issue of whether there were sufficient grounds to believe that my client had committed a crime--even at the low level of preponderance of the evidence. Despite being given an opportunity to present additional evidence, the police officer did not testify about my client's performance on the SFSTs except to say that he had failed them. Hearing Officer Clover found that the testimony about failing SFSTs was a conclusion that was not supported by facts. The hearing officer granted the appeal, and my client did not receive the one-year license suspension and six points he would have otherwise received from an implied consent violation. Most importantly, my client told me that he was on "Cloud 9" after the hearing because he could continue to drive to and from work.