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Thursday, October 20, 2016
By Michael Nichols
Categories: Michael J. Nichols
A New England man, who returned to Michigan last spring for an alumni event in East Lansing, returned home with his life in shambles: a drunk driving charge was pending against him and his job was in jeopardy. It was a tough case: he pulled out of one bar parking lot and smacked right smack dab into another bar after trying to find directions to a friend's house on his phone. Officers arrive; standardized field sobriety tests (SFSTs) are administered; a PBT is given and he gets arrested with a post-arrest blood draw showing a .16 blood alcohol level allegedly. Tough case, right?
Sometimes all we can do for a client is prepare like his case is the last case we will ever do. That’s what I tried to do here. It got us where we needed to be. I had lots of great help and here is a story of getting a theme and a theory lined up, getting prepared and using what I learned over the years putting in thousands of hours of teaching, writing, learning and trials.
The man is a sales rep for a particular type of medical device; he reports his arrest to his office. We reviewed his employment documents and realized that failing to report is probably the worst thing to do. He is told any kind of alcohol related conviction while driving will lead to termination. He is immediately suspended from driving company cars.
In the meantime, the Michigan State Police lab realizes that the analysis was based on an incorrect mathematical equation; as part of a time span covering MONTHS and this test was among them. They don’t re-analyze – they just re-measure. It goes UP (says the prosecutor emphatically) to a .161
After we complete the initial factual investigation (this bar happens to be near downtown East Lansing and took me not long to go analyze the scene and get independent pics) and an investigation into the consequences on his license and job – we conclude that he can get convicted of reckless driving and that will allow him to keep his job even if his home state suspended him day-for-day based on any Michigan action. Parenthetically, Michigan does not have a ‘wet reckless’ like other states. Reckless is a separate section of the vehicle code and it’s a straight up misdemeanor with a hard suspension and 6 points on your Michigan driving record.
So, we make the request was made for a reckless at the pretrial. Client had a substance abuse evaluation done early; no priors; was very cooperative - heck he told the officer he had 4-5 beers. The prosecuting attorney said no way.
We set the matter for trial with the following team:
Blood = Janine Arvizu to testify on the impact of pre analytical error; preservation and potentially – quality assurance issues at the lab; Dr. Andreas Stolz helped me assemble my FOI for the blood and did the initial analysis of the data.
SFST and sobriety "symptoms" = Dr. Lance Platt. Dr. Platt is a retired police officer who knows the SFSTs as well if not better than almost anyone there is. He identified mistakes in what the officer did and he was ready to explain to the jury why no conclusions could be drawn because of the mistakes made by the officer.
I outlined the theory of the case and as I sat and thought and thought and thought some more – I analyzed the jury we picked (in East lansing you pick on a specific day and come back to try the case later). I had a neuropsychologist who is a professor at MSU and who told me she believes that a person should not drive after drinking at all. But I used my strikes on other potential jurors based on her feedback during jury selection that she would require the prosecutor to prove the reliability of the blood analysis and not vice versa.
“Substandard policies yield substandard practices yield substandard results”
I put together a lengthy trial outline; my cross and my closing. A friend told me “this case is tough – you have to win it with a dynamic opening that boxes in the prosecutor.” Next thing I know – I am at my desk going through the closing and drafting an opening. The week prior – my poor 7 year old daughter breaks her arm. Wendy, Morgan and I spend hours from 6;15 to 1:15 am at the ER. The time the process took; the 3 rounds of xrays – the care not to give her narcotics that might cause an allergic reaction; it was painstaking. I kept thinking to myself “it’s a broken arm; set it; cast it and let’s come back.” Then I realize that the fact that the care providers went the extra mile to make sure to get it right the first time was critical – the reason? It would be up to the end-user – the orthopedist – to care for our daughter’s recovery going forward and he needed the best, most carefully prepared and thoroughly vetted data possible: xrays; observations and preserved radial and ulna bones.
Which is exactly what did not happen in this case – especially when it came to collecting and preserving the blood evidence such that there was nothing the MSP lab could do to give us a reliable result (that they also re-calculated after realizing that they analyzed their data incorrectly) as well as the SFSTs.
That is exactly what I talk to the jury about during opening. What I realize during the opening is that that prosecutor is literally apologizing for her officer failing to properly perform SFSTs (Lance is sitting in the courtroom of course) and 2) the prosecutor did not understand the MSP problem and how they recalculate the blood result or why they did what they did.
Eyewitness testifies. I ask 3 questions on cross about the fact that our hero never left the scene and did not seem scared of cops but wanted help and was shaken up. Cop testifies. I only get to voir dire the cop on the fact that her MVR was not working properly and we do not have audio of the exchange with our hero (but we had body cam that revealed NO nystagmus – that is another story) and it was on her to make sure it works at the start of the shift. She was in a word, combative.
We take a break. We get the reckless offer. The phlebotomist is not at court yet. The air seems to be just right for a not guilty verdict and the judge even let us do a no contest plea. Part of the plea was no objection to fines and costs as long as the fines and costs were specified at a certain amount. After the bond was applied – our hero walks out of court with a $1046 dollar fine and a new leash on life. No probation.
That man sent a wonderful thank you note that appears as a testimonial on our website. It is a story of hard work and true grit determination. It is a story of commitment to results.