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Friday, September 1, 2023
By Michael Nichols
Categories: Michael J. Nichols
Michigan has a somewhat unique law that is, in essence, a statute that creates a rule of evidence. It is often called "the inference." The law says the jury may infer that the chemical test that is administered to the defendant reflects what the defendant's BAC was at the time that he/she was operating the motor vehicle.
Ok - so what if a blood draw shows that the person was appreciably BELOW the legal limit? The Michigan Court of Appeals recently addressed that in the published case "People v Urbanski." In this case from Allegan County (think Grand Haven in Southwest Michigan), the accused was pulled over and admitted to slamming 3 "maybe 4" beers at around midnight. It was about 2:30 in the morning that he was stopped by a sheriff deputy.
The deputy arrested Mr. Urbanski and conducted a blood draw. The result? 0.064 grams of etoh (alcohol) per 100 milliliters of blood. So, that is good, right?
At trial, the assistant prosecutor went all in. Without calling an expert witness on retrograde extrapolation, the assistant prosecutor argued to the jury that Mr. Urbanski's BAC was HIGHER at the time of driving than when his blood was drawn.
The attorney for the accused never objected. On top of that, the defense attorney never asked for a STANDARD instruction on "the inference." I have no idea if the assistant prosecutor knew better and just never requested the standard instruction (it is identified as Mi Standard Criminal Jury Instruction 15.5(6)). Mr. Urbanski sure was prejudiced by it - because the jury was left with no instruction from the court that he was driving with a BAC BELOW the legal limit.
The Michigan Court of Appeals issued a published opinion on August 31st, 2023 that reversed the conviction and ordered a new trial. The grounds were ineffective assistance of counsel. On top of all that, the trial court sentenced Mr. Urbanski as a habitual offender. The problem with that is that OWI is not a felony when there is no more than one prior conviction.
The lesson? Make sure that your attorney knows both the science and the law - or reaches out to resources like the Michigan OWI Manual by West Publishing before you go into battle with him or her. Justice was definitely not served in Allegan County in this case.