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Wednesday, June 3, 2015
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 mnichols@nicholslaw.net