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In The News

Saturday, July 22, 2017

Not Guilty: A Blood Alcohol Level of Nearly .29 But What is "Operating" Under Michigan Drunk Driving Law

By Michael Nichols
Categories: Drunk-Driving

A Clinton County jury recently looked past all the emotion and the fear instilled by the prosecutor and returned a quick not guilty verdict on a charge of drunk driving involving a semi-truck. The case had its frustrations. Every case does. The truck stop where the accident occurred, the "Flying J" between Grand Ledge and Eagle Michigan (just outside of Lansing) did not preserve the video of the parking lot on the night of the alleged incident and the police never asked them to do so and when we went to talk to them about it they had no interest in explaining their camera system -- even though a man's livelihood depended on it.

Then there was the issue of the "e-logs." The e-logs are a method for truck drivers to verify unequvocally the movement of their rig and that the service hours are within the United States Department of Transportation (USDOT) regulations. The deputies who responded to the scene contacted an officer for the Michigan State Police Motor Carrier Division. The motor carrier officer (MCO) could not have been less effective or helpful. Watching the video and listening to the recorded audio from the mobile vision recorder (mvr) for the deputy who responded, it was clear that the deputy wanted the "expertise" such as it was - of the MCO. The MCO had about 3 things wrong and failed to even suggest that the police officers look into the logs or global position satellite data for the 2 trucks that were involved in the alleged accident caused by our hero, a driver for a large professional trucking corporation. The MCO even said the rig had to be taken out of service, when no such rule exists.

After the MCO failed to point out the ability to determine which truck arrived to the truck stop at what time and who may have been responsible for the "collision" that led one trucker to call 9-1-1, the prosecutor fought like gangbusters to make the accused citizen prove what the logs showed. The accused has the right to confront his accusers and only in very limited, narrow situations can the prosecutor replace live testimony with surrogate testimony, video testimony or self-authenticating documents. So, I can understand to an extent the failure to agree to allow us to admit the logs without bringing in a logs manager from out of state at great expense to the client. Why make it easier for the accused when they usually never make it easier for the government? That is despite the existence of Michigan Rule of Evidence (MRE) 803(6), that allows the admission of a business record and MRE 902(11) that allows the business record to be admitted with a certificate of a records keeper at the business about the authenticity of the record.

What boggles my mind and really was frustrating was the shoulder-shrugging of the MCO. He acted as if I did not know anything about the USDOT, Michigan Vehicle Code or how electronic data recording works when I called him to come to testify at our evidentiary hearing before trial. All was well that ended well, but he even went so far as to say that he did not think he could honor a subpoena from a defense attorney. He had absolutely no legal authority for that - he just did not want to come to court. If you are ever interested check out Michigan Court Rule MCR 2.506.

It says nothing about how only a prosecutor can subpoena a cop. Why would it? An MCO is a tax-paid civil servant and he better be available to serve citizens as well as prosecutors. It can be just silly how these guys sometimes think that when someone is arrested they are automatically guilty and "resistance is futile." The guy makes me think of the hapless professor Dufenshmertz in "Phineas and Ferb."

This all started when one trucker called 9-1-1 at about 9:30 on a cold February night and claimed that another truck bumped into his. He also claimed that, when he got out to make contact with the other driver, he was "highly intoxicated."

The mistake that our client made was having too much "happy" during happy hour in the sleeper berth of his vehicle then trying to explain things or even answering the questions of law enforcement - like most situations simply not answering would have gone over much better than trying to even talk, let alone answer questions with a blood alcohol level of anywhere between a .25 and a .29 grams of alcohol per 100 milliliters of blood.

During trial preparation, it was all about preparing the client to testify and explain statements that he made - on video on the mobile vision recorder no less - about being in Illinois earlier that day when he definitely never was and his logs showed it. He needed to describe for the jury that he was drunk and confused. He also said that he had not moved for a half hour, when in reality he had parked his truck about 8 hours prior to the point that 9-1-1 was called. The logs proved it.

I also learned a little bit about how to drive a big rig. Did you know that they have 2 clutches? The USDOT also prefers that drivers "double clutch" when shifting up. Most newer rigs have "5 low" and "5 high" and 2 shifter positions for reverse. There are also air switches that have to be activated. In short, someone "highly intoxicated" is not going to have command of his fine motor skills or even his gross motor skills to the extent that he can do all that, turn the ignition on with the brake depressed and put the engine in gear.

That - you see - is the definition of "operating" under Michigan law. There are a lot of misperceptions of what constitutes "operating" for purposes of our drunk driving statute. However, so long as the vehicle is parked, the accused cannot be said to be "operating" unless the engine is on and the transmission is engaged. Otherwise, the person has the right to use the vehicle as a mechanical sleeping bag (see People v Wood and City of Plymouth v Longeway, both of which interpret operating under MCL 257.625). However, if the vehicle is in a place at which it poses a danger to the public or to other property, you do not even have to be IN the vehicle if you put it there while in an intoxicated state (see People v Lechleitner and People v Solomonson).

The prosecutor helped us with all this - unintentionally of course - by eliciting from the arresting officer that the client could barely pay attention, touch his fingers to his thumb or follow a finger as it moved back and forth across his face (for the Horizontal Gaze Nystagmus or "HGN" test) and had little command of his fine motor skills.

We told the jury that a person as "drunk as Hootie Brown" could not possibly be even capable of turning the ignition on and putting the truck in gear. Even if the truck moved, there was nothing that our hero did to put it in gear or meet the legal definition of operating.

When the eyewitness showed, a fellow trucker, he could only testify to the jury that he saw a person hit some switches to turn the air pumps on/off. He also said that the vehicle was on a slope descending backwards so he anticipated that the truck was going to roll back right before he saw it roll back. There was no testimony about how far the truck rolled back before stopping but suffice to say the semis are packed in to this truck stop like sardines most nights and this night was no exception.

The eyewitness also testified on cross that he never heard the engine get turned on. That is at least what I pointed out to the jury. I pointed out that when I asked "did you cover every thing you saw AND heard?" He said "Yes." You would hear the engine get activated. It just makes common sense that if was operating, or intending to operate, you would have heard the engine get turned on. That was another point we made to the jury.

Thanks to the fact that we argued a motion to dismiss because there was no operating, we had a transcript of the arresting officer. He acknowledged on cross examination that he could not remember if the key was in the ignition and in the "on" position - which was about all I needed to establish with him.

We were then able to argue to the jury that, even if the eyewitness could testify in a way that "put" the hero on trial in the driver's seat as the person playing with the switches, that conduct is not operating under Michigan law. The prosecutor on rebuttal shook his head and made completely objectionable statements like "this is dangerous" and claiming the hero (who, by the way was naked as a jaybird along with being as drunk as Hootie Brown, according to the arresting officer's testimony) was about to get behind the wheel and drive to his next pickup. Hmmm.

Sometimes, in fact many times, trial is an exercise of restraint and just because you can object does not mean that you should. The cross examinations by attorney Stephanie Tzafaroglou and I were quick, to the point and our argument was the same. We left some points on "the table" but the testimony stood for itself.

This was a great example of how the amount of preparation can give you the ability to take advantage of what witnesses "give" you on the stand. We are committed to results and we certainly can be for you or your loved one. If you want to find out more, call our office at 517 432 9000 or email me 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.