In The News

In The News

Saturday, October 27, 2018

The Court of Appeals Interprets the "Impaired" Statute Nonsensically

By Michael Nichols
Categories: Drunk-Driving

The Michigan Court of Appeals Issued an opinion in April, 2018 that lawyers will really be tested in navigating. This is a case that will be fleshed out more completely in the 2019 update of the Michigan OWI Manual for West Publishing. Ultimately it leads me back to this thought - why would anyone ever submit to Standardized Field Sobriety Tests (SFSTs) after this case, called People v Mikulen.
In Mikulen, the Court of Appeals reversed a circuit court opinion that vacated a conviction for an Operating While Visibly Impaired (OWVI) charge where the officer made serious mistakes in administering and interpreting the NHTSA SFST’s and the driver was operating the vehicle in an “appropriate” manner.
Mr. Mikulen went to trial in District Court in Jackson and was found not guilty of the primary charge of Operating While Intoxicated (OWI) but convicted of Operating While Visibly Impaired (OWVI). He appealed and the circuit court found that there was insufficient evidence to convict of OWVI, thus vacating the conviction. The prosecution appealed, arguing that even though there was no evidence that Mr. Mikulen was driving in an erratic, improper or impaired manner, the charge of operating while visibly impaired does not require the same. The Court of Appeals reversed, holding that the charge focuses on the person’s ability to operate, not the actual operation of the vehicle. In other words, glassy bloodshot eyes, the odor of alcohol and the improperly administered/interpreted SFSTs were ENOUGH for a conviction. So - why give them more evidence by performing SFSTs? I just cannot think of a reason why.
Now, I know what you are thinking - "what are you advising me to do regarding SFSTs?" Frankly - I am still contemplating exactly how to handle this but I come back to what one client told an officer (and his case was ultimately dismissed) "I do not perform subjective tests." Maybe that needs to be the answer until and unless someone appeals this Mikulen ruling or the legislature clarifies whether the impairment has to be demonstrated by the "person" or the impairment has to be demonstrated in the "driving by the person."

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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.