In The News

In The News

Wednesday, June 3, 2015

Double Jeopardy Prevents a Retrial and OWI "Per Se" Theory Dismissed

By Michael Nichols
Categories: Drunk-Driving

The law in the United States may seem confusing on whether a prosecutor can retry a theory for charging a crime once the prosecutor has put the accused on trial for that theory before a jury. However, the case law goes all the way up to the Supreme Court of the United States and it is clear: if a judge dismisses a charge the person may not be re-tried nor may the prosecutor even appeal the judge's decision whether it was correct or not.

A judge in Ludington just re-affirmed this doctrine in a matter involving a high-profile drunk driving charge. An off-duty police officer was charged with drunk driving. He retained The Nichols Law Firm. The Nichols Law firm and its team of lawyers used local counsel to posture the case for trial. At trial, the judge suppressed a breath alcohol test that allegedly showed the accused over the legal limit. The reason: the officer failed abjectly to follow the so-called "15 minute observation period." Even if the prosecutor may appeal whether the judge's decision was correct, because the directed verdict decision came following the prosecutor's presentation of its entire case, the matter is considered an acquittal.

"We knew that the judge's opinion was not subject to appeal and it is very frustrating that the prosecutor fought us and spent time and taxpayer dollars on a motion to stay the proceedings so that they could appeal - that is clearly contrary to the law," says Michigan-DUI-attorney Mike Nichols. Nichols is the author of the OWI Handbook for West Publishing and an adunct professor of DUI Law and Practice as well as Forensic Evidence in Criminal Law at Cooley Law School in Lansing.

The prosecutor is permitted to proceed on the traditional OWI "Under the Influence" theory of a drunk driving case and the new trial is set for June 22, 2015. For the attorneys who understand the law and stand up to the government, call the Nichols Law Firm at 517.432.9000 or email Mike Nichols at

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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.