Victory – Case Dismissed – 3rd OWI – High BAC

Apr 14, 2023 | Blog, Recent Victories

This one was an epic battle, that started right before the shut down in March of 2020 and involved the following:

Preliminary Exam 1.

After filing several motions to be heard at the preliminary exam, the police failed to appear and the charges were dismissed.

The charges were then re-issued.

At the arraignment on the re-issued charges and in response to my arguments  for personal bond, the court said, “ Counsel that may be true that your client has not had an alcohol related driving offense for over 12 years but what about all the times he drove drunk and wasn’t arrested? Bond is set at 5,000 cash.

Motion to Recuse

Based upon the aforementioned statements by the Court, I was forced to move to Disqualify the Court for bias.

The Court disagreed.

Appeal to Circuit Court ( Regarding the Arraignment and Setting of Bond).

We appealed the District Court Judges Ruling at the arraignment , setting of Bond and its denial of my motion to disqualify the Court for bias.

The Circuit Court ( acting as the Appellate Court) reversed the District Court’s  denial of my Motion to Disqualify,  reset the bond as a personal bond and remanded to the District Court for a Preliminary  Exam to be heard by a different Judge.

Preliminary Exam 2

We refilled our motions in the District Court and appeared for the exam.

The facts involved a vehicle reported to be stalled out, in a church parking lot, and the police were called for a welfare check (although what unfolded seemed to have little to do with the welfare of my client).

Described as standing outside of the vehicle at the time the police arrived for the welfare check, the vehicle was inoperable, not working, stalled out, the engine was not on or working and no keys were found at the scene.

Allegedly, wine bottles were found in the back of the inoperable vehicle, allegedly my client failed the standard and non standardized field sobriety test. He was subsequently arrested, and taken to the stations for Breath Testing.

Allegedly my client refused or technically refused to submit a breath sample, and the arresting officer acting as the affiant, sought out and obtained a search warrant for the blood of my client. The Blood results allegedly were above the legal limit of .08 g/ml and above the High BAC threshold of 0.17 per milliliters of Blood.

During the testimony of the arresting officer, (and not mentioned in any of the police reports) for the first time it was revealed that allegedly my client was observed about an hour prior to the “welfare check” in the driver seat behind the wheel of the vehicle (he was later observed standing near at the time of the welfare check).

This revelation by the officer also included the following: I observed your client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.

Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road.”

Other highlights from the exam included testimony surrounding the affidavit and search warrant for the blood.

After some hemming and hawing, the court found probable cause existed to bind my client over for Trial.

The Circuit Court.

We filed additional motions in the circuit court. As it goes sometimes, despite perfecting service through the on-line filing system, providing courtesy copies to the Court, we appeared three times, and each time a different prosecutor appeared for the State.

Each time the new assistant prosecutor appeared, they knew nothing about the motions, didn’t receive them, are not connected to the on line filing system, and didn’t even know that the hearing and motions were scheduled.

The Wheels of Justice Grind Slow

Today we finally got an opportunity to argue our motions, or at least one of them. The Court it turned out was in the middle of a jury trial but was able to get us in during the lunch break for some limited arguing.

All involved ( The Judge, the assistant Prosecutor) commented that the facts made this an interesting case. Generally,  the essential elements or issues that are needed to prove a Drunk driving case/ Operating While Intoxicated case, are that the person was intoxicated at the time they were operating the motor vehicle.(1)

if a person pulls over after driving, and then consumes alcohol while in their vehicle without any intention of further driving, even while stationary in a parking lot, would be ill advised and very likely to result in an arrest for Operating While Intoxicated, despite not actually driving, because the driver would be in “actual physical control of the vehicle.”

Likewise, pulling over because a driver feels intoxicated with the intention of not driving but instead sleeping it off, would also likely result in an arrest, should police contact occur.

Other States allow for a driver who thinks they may be impaired to pull over, rest and even sleep, without being charged with “operating” while intoxicated.

In Michigan the word “operating” has been interpreted broadly is defined as driving or having actual physical control of the “vehicle.”

The cases and jurisprudence in Michigan that have interpreted these rules are generally not favorable for the accused/ driver.

The reason why this case was interesting, were mostly focused on the legal definitions of “Motor Vehicle” and Vehicle” ( See below).  (2)

The Court Decision

Today the Court heard arguments on these issues. The Court ultimately agreed with me, that in fact the testimony at the preliminary exam of the arresting officer who had “observed my client behind the wheel of the vehicle we later saw him standing next to, at that time, the vehicle was being pushed by a younger gentleman.

(Your client didn’t say anything to me, but the young man pushing the vehicle did say , the car broke down, and I am pushing it out of the road)” had described a situation that did not include evidence of “a motor vehicle” or a “vehicle” as those terms are defined within Michigan Law.

The Court found the District Court Judge had erred in making the decision to bind over my client for trial, and that probable cause did not exist or was not at the preliminary exam, to wit: The State had failed to prove that probable cause existed that my client was “operating a moving vehicle/ vehicle” while intoxicated, and dismissed all of the charges.

THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927

777.1 Definitions.

Sec. 1. As used in this chapter:

(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL 257.79. (below)

MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949

Sec. 79.

“Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.(4)

257.33 “Motor vehicle” defined.

Sec. 33.

  “Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act.

Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability.

Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577.

Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage.

Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.

FOOTNOTES

Footnote –(1)

Mi Crim Jury Instructions 15.1, 15.1a, 15.2, 15.3

Footnote –(2) 

777.1 Definitions.

THE CODE OF CRIMINAL PROCEDURE (EXCERPT) Act 175 of 1927

Sec. 1. As used in this chapter:

(a) “Aircraft” means that term as defined in section 2 of the aeronautics code of the state of Michigan, 1945 PA 327, MCL 259.2.

(b) “Departure” means that term as defined in section 31 of chapter IX.

(c) “Homicide” means any crime in which the death of a human being is an element of that crime.

(d) “Intermediate sanction” means that term as defined in section 31 of chapter IX.

(e) “ORV” means that term as defined in section 81101 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.81101.

(f) “Snowmobile” means that term as defined in section 82101 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.82101.

(g) “Vehicle” means that term as defined in section 79 of the Michigan vehicle code, 1949 PA 300, MCL

257.79.

(h) “Vessel” means that term as defined in section 80104 of the natural resources and environmental

protection act, 1994 PA 451, MCL 324.80104.

History: Add. 1998, Act 317, Eff. Dec. 15, 1998;Am. 2000, Act 279, Eff. Oct. 1, 2000;Am. 2002, Act 34, Eff. May 15, 2002.

Footnote -(3)

MICHIGAN VEHICLE CODE (EXCERPT)Act 300 of 1949

257.33 “Motor vehicle” defined.

Sec. 33.

  “Motor vehicle” means every vehicle that is self-propelled, but for purposes of chapter 4, motor vehicle does not include industrial equipment such as a forklift, a front-end loader, or other construction equipment that is not subject to registration under this act. Motor vehicle does not include a power-driven mobility device when that power-driven mobility device is being used by an individual with a mobility disability. Motor vehicle does not include an electric patrol vehicle being operated in compliance with the electric patrol vehicle act, 1997 PA 55, MCL 257.1571 to 257.1577. Motor vehicle does not include an electric personal assistive mobility device. Motor vehicle does not include an electric carriage. Motor vehicle does not include a commercial quadricycle. Motor vehicle does not include an electric bicycle. Motor vehicle does not include an electric skateboard.

History: 1949, Act 300, Eff. Sept. 23, 1949 ;– Am. 1993, Act 300, Eff. Jan. 1, 1994 ;– Am. 1995, Act 140, Imd. Eff. July 10, 1995 ;– Am. 1997, Act 56, Imd. Eff. July 1, 1997 ;– Am. 2002, Act 494, Imd. Eff. July 3, 2002 ;– Am. 2013, Act 36, Imd. Eff. May 21, 2013 ;– Am. 2015, Act 127, Imd. Eff. July 15, 2015 ;– Am. 2017, Act 139, Eff. Jan. 28, 2018 ;– Am. 2018, Act 204, Eff. Sept. 18, 2018 ;– Am. 2018, Act 391, Eff. Mar. 19, 2019

Footnote –(4)

MICHIGAN VEHICLE CODE (EXCERPT) Act 300 of 1949

Sec. 79. “Vehicle” means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices exclusively moved by human power or used exclusively upon stationary rails or tracks and except, only for the purpose of titling and registration under this act, a mobile home as defined in section 2 of the mobile home commission act, Act No. 96 of the Public Acts of 1987, being section 125.2302 of the Michigan Compiled Laws.

History: 1949, Act 300, Eff. Sept. 23, 1949;Am. 1976, Act 439, Imd. Eff. Jan. 13, 1977;Am. 1978, Act 568, Eff. Jan. 6, 1979; Am. 1992, Act 134, Eff. Oct. 1, 1992.

End of Footnotes

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