JURY TRIAL: BAC .23 on OWI 2nd Down to Reckless Driving

Picked a jury yesterday, February 12, 2016.  I was really happy with the jury considering that the facts were pretty tough. Client was followed by a 911 caller who claimed that the vehicle was all over the road. No one else thought my client's driving was bad enough to dial 911 even though the caller followed my client for 15 minutes. Supposedly, he was all over the road, into oncoming traffic, and generally just driving like the drunkest person in the world. At trial, the witness, Kari Lynn Neal, testified that she called the Brownstown Police Department directly, so there was no 911 recording of her call to the police. She also claimed that she had seen my client at a party store removing beer cans from his vehicle. My private investigator found her on facebook, posting:

Ok friends I'm getting really irritated by all of the ignorant statements about police officers, and the punks who try to video them and purposely act like idiots to try and "Catch" a police officer doing something wrong. First of all these men and women put their lives on line everyday to protect and serve YOU, I agree not everyone is great but seriously this is getting ridiculous. If the police are so bad then why is that the first person you call when your in trouble. I'm so sick of seeing the stupid comments badmouthing the police.. Rant over but coming from a house where my Father was a police officer I take it personal. Thanks for letting me Rant

I was able to get her to admit that her father was a police officer, and she also admitted that she had called the police many times as an adult, but that was as far as the court would let me go. The trial court judge held that I could not attempt to show bias or prejudice through further questioning of her motive for calling the police, holding that this evidence was not relevant. This is clearly and unmistakably wrong. Under MRE 607, "[t]he credibility of a witness may be attacked by any party."

The judge did not know about the facebook post. The most interesting thing about this facebook posting is the timing. Ms. Neal made her facebook post on April 18, 2015, one day after David Kapuscinski was killed by Gibraltar Police officers. Kapuscinski was shocked multiple times with a Taser in response to a domestic disturbance call. This event unfolded in one of the adjoining jurisdictions, mere minutes away from Ms. Neal’s home, and it was big news in the area at the time. Ms. Neal commented further on facebook that she was de-friending anyone who is a cop hater, writing "delete delete delete." 

After Ms. Neal was done testifying, she asked if she could remain in court to watch the rest of the trial. No one in his or her right mind actually wants to sit through a jury trial unless they are personally invested in the case. 

It is actually a shame that I prevented Ms. Neal from watching the rest of the trial by saying that I might recall her as a witness. She missed my cross-examination of the arresting officer. 

I got everything that I needed out of the arresting officer. The officer was newly hired this year, straight out of college. While she put up quite an effort, she admitted that she made mistakes. One of these mistakes proved to be critical.

While reading chemical test rights to the accused, the rookie cop messed up and failed to adequately inform my client of his rights and obligations under Michigan's implied consent law. Although the jury had already heard evidence of the breath test results of .23 and .21, I moved for the court to reconsider this evidence, asking the court to strike the chemical test. The chemical test was the product of an unlawful, custodial search. Under Michigan law, when consent for a chemical test is sought outside the provisions of Michigan’s implied consent statute, the search is guided by “conventional constitutional standards against unlawful searches and seizures found in the Fourth Amendment of the United States Constitution.” People v Borchard-Ruhland, 460 Mich 278; 597 NW2d 1 (1999). As the Court held in Borchard-Ruhland, "having determined that defendant falls outside the purview of the implied consent statute, we hold that the admissibility of the blood alcohol evidence is governed by the conventional constitutional standards against unlawful searches and seizures found in the Fourth Amendment of the United States Constitution and Const 1963, art 1, § 11. " A breath test to determine alcohol content constitutes a search under the Fourth Amendment. For the search to fall under Michigan's implied consent statute, the officer would have been required to inform the defendant that he had a right to refuse. In the absence of those chemical test rights, as they are known, the defendant has to provide voluntary consent that is free from coercion. The prosecutor could not establish knowing, voluntary consent to search. A defendant has a federal constitutional right to refuse to consent to a search. People v. Stephens, 133 Mich.App. 294, 349 N.W.2d 162 (1984); Camara v. Municipal Court of the City & Co. of San Francisco, 387 U.S. 523, 532-533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

Based upon these arguments, the trial court judge analyzed the issue for nearly two hours. During that time, I was able to convince the prosecutor to reduce the OWI 2nd charges down to a reckless driving charge. Since the client would have lost his license over the OWI charge, the reckless driving amendment satisfied the client's goals, and we took the offer in a heartbeat.