In The News

In The News

Thursday, July 11, 2013

A Nichols Law Firm Client Goes to Trial On a Minor in Possession of Alcohol Charge and is Found Not Guilty.

By Michael Nichols
Categories: Drunk-Driving, Josh Covert

A young man in Mason County was arrested for allegedly possessing alcohol while under the age of 21.  He was riding in a car with 4 friends when the car was pulled over.  The officer allegedly smelled the odor of alcohol coming from the car and asked the occupants if they had been drinking alcohol.  Everyone answered yes and they were then each asked to step out of the vehicle.  There was no alcohol found in the car and no alcohol was found on any of the occupants.  The officer the instructed each of the occupants to submit to a preliminary breath test (PBT).  The client did as he was instructed and submitted to the PBT.  This was important because the officer never asked the client if he consented to take the PBT.  Without the client's consent the PBT was an unlawful warrantless search and attorney Joshua Covert filed a motion to suppress the PBT.  A hearing was held and the presiding Judge agreed with Mr. Covert and suppressed the PBT results meaning that the prosecution could not use the PBT results at trial. 

Because Mr. Covert's client admitted to drinking the prosecution would not dismiss the charge and therefore the case proceeded to trial.  Mr.  Covert knew that his client's admission would be a big hurdle to overcome at trial and prepared to show the jury that admitting to drinking alcohol is not necessarily enough to get a conviction.  Mr.  Covert came prepared to trial with jury instructions explaining to the jury that the MIP statute requires the presence of alcohol within the defendant's body.  This was important because the officer never asked Mr. Covert's client when he had been drinking and also never asked how much was consumed.  Since the officer did not ask how much alcohol was consumed or when the alcohol was consumed Mr. Covert knew the prosecution would have a hard time proving beyond a reasonable doubt that his client had the presence of alcohol within his body.  "Suppressing the PBT was key to the outcome because in this case, proving internal possession of alcohol was difficult because the client never gave statements regarding the amount and there was timeframe and everyone knows that alcohol does not stay in the body forever" says attorney Joshua Covert.

If you have been charged with MIP and were instructed to submit to a PBT and did not consent, call the Nichols Law Firm at 517-432-9000.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.