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In The News

Friday, October 16, 2015

Making a Michigan Drunk Driving Disappear: Getting the Order of Suppression and Protecting the Record

By Michael Nichols
Categories: Drunk-Driving

A Jackson Judge has suppressed the evidence following an arrest, when an officer failed to testify convincingly about his observations and the conclusions that followed from them. The judge found that testimony insufficient evidence to support a warrantless arrest based on probable cause for drunk driving. "The key to this ruling though, is the fact that the judge meticulously cited to reasons why he found the officer was not a credible witness - not that he was lying but that he essentially could not testify with any authority to give his observations any credence or any meaning as evidence that the accused citizen was under the influence of alcohol," says Michigan OWI-OWID attorney Mike Nichols. The reason is that the findings of fact by the trial court on that aspect of the case are untouchable unless an appellate court finds "clear error."

The case arose from an arrest earlier this year. The officer was fairly new, had not made any arrests and went so far as to have the accused driver get back behind the wheel, drive his car down the road to a different spot and then get out to perform standardized field sobriety exercises. Nichols said "I was amazed when I saw that on the video. When I asked the officer under oath about it, he had this startled look on his face like he could not believe it. The officer clearly never watched his own video. From that point forward, I think our accused citizen felt like the tide was turning and his world would slowly get back to normal."

Most importantly, the judge found that the video taken together with the officer's testimony WOULD have been enough to support probable cause had the officer testified with any credibility. Nichols says, "critical to his finding in granting the motion, was the officer's complete lack of authority, his demeanor, his inability to remember even what he wrote in his own police report and the fact that he said several things that were the exact opposite of what was in the dash cam video. I made sure to point out the credibility problems, as hard as it was to be mean to the officer, because I wanted the court to have support for its important finding in a courtroom full of people." 2 weeks later, the prosecutor moved for a dismissal on the morning of trial after Nichols refused to call or email and ask for a negotiated result. Nichols, an East Lansing attorney with 16 years experience said "this was one of the most unique cases and failures by an officer I have ever seen and more than anything else - it justifies the need for mandatory dash cam videos and body cameras for police."

Nichols is a Michigan native, raised in northern Michigan, who put himself through law school at night while working at Channel 10 and the Michigan Radio Network in Lansing as a reporter-anchor. He was first licensed to practice law in 1999 and has dedicated his practice to drunk driving defense since 2007. Contact him and find out the meaning of the term "committed to results" at 517.432.9000 or mnichols@nicholslaw.net

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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.