This was a Dearborn drugged driving case in the 19th District Court before Judge Sam A. Salamey. Dearborn police found my client "passed out" at a red light. These are normally bad cases. If you fall asleep at a light or railroad crossing, all I can say is, "oops!" That's bad. But this was the middle of the day, and once the bodycam recordings, medical records, search warrant affidavit, and police assumptions were compared carefully, the case looked extremely weak.
My client was diabetic. He was also fasting. When the first Dearborn officers arrived, they spoke with him, evaluated the situation, and appeared prepared to let him leave. His speech was normal. His reactions were normal. Two officers left the scene. The initial police response did not look like a drugged driving investigation moving toward an arrest.
Then Cpl. Bradley Clair arrived.
The bodycam recording captured him taking over the investigation almost immediately. He said, “No, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no. Hey come on out of the car." From that point forward, the case changed direction. My client exited the vehicle normally. His speech remained clear. He walked normally toward the fire engine when Cpl. Clair insisted that he be evaluated by medical personnel. (This is, in part, a DRE "trick" that is used to help rule out medical conditions. In this case, it didn't work!) The Dearborn Fire Department found my client to be "alert and oriented, A&Ox4, with a GCS of 15," the highest Glasgow Coma Scale score. Medical personnel reported no alcohol and no drugs. His blood sugar was slightly low, which matters for a fasting diabetic.
Those medical findings became important because the search warrant affidavit later described a completely different case. The affidavit claimed slurred speech, incoherent speech, watery or glassy eyes, and staggering or swaying. The video and medical records did not support those claims. The officer also failed to give meaningful weight to the fasting issue, minimized the diabetes issue, and did not fairly present the Fire Department’s findings. The affidavit was not merely incomplete. It was misleading where accuracy mattered most.
Cpl. Clair then conducted a roadside drugged driving investigation using DRE-style testing. He performed HGN, VGN, lack of convergence, modified Romberg, and one-leg stand testing. The preliminary breath test was .000. There was no alcohol. The officer arrested my client anyway, stating that he saw signs of impairment and believed my client’s ability to operate a motor vehicle safely was impaired. The problem was that this opinion depended entirely upon the bizarre DRE tests, which are utterly ridiculous.
The blood test later reported the presence of a normal prescription medication at a level that is consistent with a therapeutic dose. This is certainly not proof that a person is unsafe to drive, but DREs and prosecutors will point to anything in a blood test result, claiming that it is proof of intoxication.
We filed a motion to exclude the DRE testimony and requested a Daubert hearing under MRE 702. The argument was direct. The prosecution could not simply call a police officer a Drug Recognition Expert and then allow the officer to tell the jury that a driver was impaired based on a scientific-sounding protocol that had not been properly validated for that purpose. The City of Dearborn tried to avoid that problem by claiming that Cpl. Clair would not testify as an expert. The prosecution instead argued that he would testify only as a lay witness about observations and roadside tests. In my view, that was expert testimony being offered under a lay-witness label.
The district court denied the request for a Daubert hearing, concluding that the officer would testify to his observations rather than expert opinions. The defense position was that this ruling allowed the City to present DRE testimony to the jury without first satisfying MRE 702. The circuit court denied leave to appeal without oral argument. We then filed an application for leave to appeal in the Michigan Court of Appeals, arguing that the district court had failed to perform its gatekeeping function and that the case presented the type of significant evidentiary issue that interlocutory review exists to address.
The appellate litigation focused heavily on DRE testimony, HGN, VGN, lack of convergence, modified Romberg, and the one-leg stand. We challenged the claim that these tests could be used as a shortcut to prove impairment. We also attacked the lack of validated clues, the absence of objective benchmarks, the failure to complete a full DRE evaluation, and the officer’s effort to turn a roadside suspicion into courtroom science. The appellate application emphasized that the prosecution’s case depended on the same DRE-style testimony the defense was challenging. The Court of Appeals refused to grant interlocutory relief, telling us to go to trial and raise the issue on direct appeal if we lost. Ugh!!!
Going to trial is expensive. We were prepared to hire our own retired DRE and a toxicologist, both of whom are not cheap.
Meanwhile, while we were preparing to continue the fight in the Michigan Supreme Court, we returned to the district court with a separate but related attack: a motion to quash the search warrant. That motion focused on the warrant affidavit itself. Because my client was diabetic, the blood draw depended on the search warrant. If the warrant was defective, the blood test result had to be suppressed.
The motion to quash argued that the affidavit contained false or misleading statements and material omissions. The officer claimed my client’s speech was slurred and incoherent. The video and medical evaluation showed otherwise. The officer claimed that his eyes were watery or glassy. Medical personnel did not report that. The officer claimed that his balance involved staggering or swaying. The video and medical records did not support that. The officer relied on HGN even though the PBT was .000 and HGN is not a general-purpose drug impairment detector. He relied on the one-leg stand while omitting my client’s broken ankle and poor balance. He relied on modified Romberg and lack of convergence without fairly informing the magistrate that those tests are not part of the standardized SFST battery and carry serious scientific limitations.
The motion also addressed diabetes directly. Diabetic conditions can mimic intoxication. That was not a minor detail. It was a central alternative explanation for what the officer claimed to observe, and it should have been presented honestly to the magistrate before the blood warrant issued. Instead, the affidavit emphasized impairment while leaving out facts that pointed in the opposite direction.
The district court granted the motion to quash the search warrant and suppressed the blood test result, holding that the "video shows a completely picture than the officer presented in the affidavit." He held that Bradley Clair had presented facts that were misleading to the magistrate. That ruling changed the case. Without the blood result, the prosecution no longer had the centerpiece of its drugged driving theory. After numerous motion hearings, an application for leave to appeal in circuit court, an application for leave to appeal in the Michigan Court of Appeals, and preparation for a possible Michigan Supreme Court application, the case resolved based on what the prosecution could actually prove.
This case shows why drunk driving and drugged driving defense cannot be reduced to reading the police report and negotiating a plea. The police report did not tell the whole story. The search warrant did not tell the whole story. The bodycam recordings, medical records, DRE materials, toxicology evidence, Michigan law, and officer omissions told a different story.
As a side note, I had requested volumes of public records from the Michigan State Police regarding DRE B. Clair, and those cost a small fortune. In addition to criminal discovery, I now have a complete picture of his training history. He has arrested at least one person in the past who had absolutely nothing in his or her body! This inspired me to create a DRE Project to catalog Michigan DRE officers. Officer Clair, who is now with the Huron Township Police Department, is busy arresting people as a mysterious Drug Whisperer. Michigan DRE officers are not the super troopers they are made out to be, and I suspect that my research will uncover a lot of wrongful arrests.
