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In The News

Monday, July 20, 2015

Commercial Driver License Holder and Saving Your Job; Your Commercial Driver License and Your LIfe

By Michael Nichols
Categories: Michael J. Nichols

Sitting in my office is my new client. His name is not important but for the sake of this post let's call him "Steve." Steve has a drunk driving charge staring him in the face. He also has a few other major problems: Steve has a prior offense that is not even 5 years old; Steve is recently divorced and going through a hard time; Steve also has chronic alcoholism. Steve might be the perfect candidate for sobriety court in a "perfect" setting. The reason is because Steve knows he has a substance abuse problem and he wants to stop drinking. He drinks to help him when he feels badly. There's just one additional problem with all of that: Steve just recently started working for a local government in the public works department. He obtained a commercial driver license (CDL). He needs the license to keep his job. So why not just get a new job that does not require a CDL? After all, the economy is still strong. There is just one more "thing" that Steve does not like to talk about but I learn as we get to know each other -

Steve cannot read.

So Steve and I go through the case facts. I ask Steve to make a deal: if he promises not to give up on himself, to keep trying, to never quit quitting, I won't give up on him. I also make clear to Steve what his rights are because I always do that. I cover the potential client's rights so that he understands the decisions that he ultimately has to make and the things that the prosecutor has to do in order to change your status from presumed innocent to guilty of a criminal charge. However, Steve already has a lawyer. We go through the rights anyway. The first of the "basket of rights" each one of us enjoy if we are every charged by the government with a crime is the right to counsel. Not just an attorney who stands there but an attorney who stands by your side and gives his or her time, skill and every ounce of energy to help you achieve the result that you need in your case. Steve's other lawyer is telling him to take sobriety court. It makes sense - the facts are tough as the government says Steve blew into a datamaster and it registered .18/.17. I promise Steve only one thing: my best effort. We agree to a contract and I take the case.

As we go through the jury instructions for operating while intoxicated and talk about the case facts I realize something important; the day of Steve's arrest was Christmas Eve. Steve had a breakdown that day. On Christmas Eve, Steve meets his kids at a local mall to shop for their mom: Steve's ex-wife. After he says goodbye to his children, Steve then drives to a major grocery store nearby to pick up some items for his mom's Christmas party. Here's a hitch: when Steve was at the mall, he backed his large truck up and into a very small compact car. Another driver witnessed the incident but did not think Steve even realized what he had done so she followed him, got his license plate number and she waited for the owner of the car that was hit. However, no one really knew what time this whole thing went down because the witness waited for the owner of the car to come out. Then she reported the incident to him. He then went to security. Security calls the local police

Along comes a young police officer, who is called to investigate the "hit and run" at around 3 pm - within 3 hours of when he gets off his shift at 6pm. It is Christmas Eve. He has small children at home. The officer first goes to the home of Steve's ex-wife. She tells the officer that her ex-husband has a drinking problem and now lives with his mom. Mom lives just a few blocks away and both are within a few minutes of the grocery store.

Remember the grocery store where Steve went after the mall? Steve gets there, whips out a pint of Vodka that he had hid in his truck in the event he could not take it any more. Steve's kids are teenagers. teenagers are hard enough but teenagers who are going through a divorce are almost impossible to interact with and at Christmas - the moments Steven reflects on what they are doing at their mom's house away from him are too much sometimes. The moments Steve thinks about his ex-wife and what she is doing. The moments Steve stops, closes his eyes and tries to smell the cookies that his former family is making bring a shower of sadness in the rainiest Christmas the Lansing area saw in many years.

Steve calls a friend. A longtime friend of over 25 years, who he knew in high school and who he dated for a spell. She is helping him through this rough patch. She talked with Steve earlier in the day. Steve sounded ok. He was sad but focused. Now, when Steve calls later in the afternoon and he is at the grocery store, she just cannot mistake the slurred words, the lack of focus, the overwhelming sense of apathy. He needs a ride. She goes the 3 miles from her home to meet him at the store. Steve comes out of the store. The rain is pouring on them. Steve parked the car close to a side entrance by the bottle deposit return so that he can pound that pint of vodka. He and Sue talk in his truck.

Along comes the officer, who is not only fighting the end of shift-fever but was sicker than he had been in years. He is also struck with confirmation bias. Steve's ex and Steve's mother both shared with him that Steve was struggling with alcoholism. The officer's questioning of Steve was short and to the point. The officer figures "here is this guy who got drunk on the holiday and hit this car at the mall and never realized it." Here we find a critical aspect of trial preparation: the officer never follows up when he asks Steve when he drank and Steve replied "earlier." "Earlier" is subjective as an adverb. It does not mean "20 minutes ago" necessarily, nor does it mean "2 hours ago." Additionally, the officer never searches Steve's truck.

In preparing for trial, we realize that the officer never interviews Mary beyond asking her if "they" drank in the truck. He never asks her for her observations. He never asks her if she saw any booze in the truck. The officer also never goes to the one and only establishment in the mall that sells alcohol by the glass to find out if Steve was there before he pulled out of the parking lot and bumped that little compact jobbie in the parking lot.

Fast-forward to trial: Steve is anxious. He is always trying to smile and stay positive. However, as one would expect Steve is as nervous as he can be on this day. Based on the testimony that the prosecutor puts on the stand from the eyewitness, Steve's mom and the arresting officer, the timeline for all of these events is very fuzzy. All we know is that at some point on Christmas Eve, Steve was stone cold sober and at 4:21 pm, Steve blew a .18 g/210 Liters of breath and at 4:23 he blew a .17g/210 Liters of breath in the datamaster.

The jury was left with a lack of information. The presentation by the prosecutor was best represented by a simple x/y graph. This graph was the only science that I present during the trial and it represents the entire problem with the prosecutor's case: that they could not marry the verb "operating" with the noun "intoxicated." The graph showed a big question mark covering the hours of of 9am to 3pm and 2 indicators at 4:21 and 4:23 pm respectively showing all that we knew in this case: he was well over the legal limit when tested, probably over the legal limit when arrested, but the question is what if any breath alcohol content did he have at the time that he operated. The jury does its job and returns a not guilty verdict.

While we await the jury's 40 minute deliberation, Steve and I talk quite a bit about things. His biggest regret is how he feels he failed as a father. He talks a lot about how his "biological" dad used to get drunk and hit his mom. He talks a lot about how he just wants the jury to grant him a second chance; let him forgive himself for the mistakes that he made, keep his CDL so he can just keep working, stay sober and keep trying to repair his relationship with his kids. The jury did the right thing and maintained the status quo, Steve gets to keep his CDL and he gets what hopefully is the last second chance he will ever need.

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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.