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Thursday, January 27, 2011
By Michael Nichols
A life-changing criminal conviction for OWI-OUIL-DUI was brought to a halt by the Constitution because a police officer went too far in exercising his power and pulling over a citizen. “This was a case that we had to win,” said Michigan OWI-OUIL-DUI expert and Lansing-attorney-Mike-Nichols. The citizen charged in this case needed to travel internationally for his job.
“The man has a few beers after meetings in Detroit then drives home to his home in southwest Michigan. He’s in a good mood because of the success of the meetings. He stops on the way and buys a couple more tall boys to celebrate with his wife. He opens one in the car,” added Nichols.
Where the story gets scary is that a local police officer, who is young and diligent, responds to a be-on-the-lookout (BOL) call for a car with a similar description. However, both the license plate and race of the driver were different. Said Nichols: “yet, when the officer ran the license plate on the client’s vehicle, he discovered that the client’s car and the car that was the subject of the BOL were owned by the same company – a rental car company. The officer believes that the situation is more than a coincidence … by the time he realizes that is all that is going on, he’s already undertaking an investigation for OWI.”
Mike-Nichols filed a motion arguing that the officer’s actions crossed the boundary that separates assertive police work and intruding on the liberty of a citizen based on a hunch. However, before the criminal court had a chance to rule on that issue, there was the matter of the client’s driver license. “The client was charged with violating the Michigan Implied Consent Act by refusing the breathalyzer at the police station,” Nichols said. The officer’s determination that the client refused the breath test meant that his license would be suspended for 1 year no matter what happened in the criminal case. The officer had to establish that he had reasonable grounds to believe that the citizen committed a crime; that the citizen was actually placed under arrest; that the citizen was read his chemical test rights and that the citizen unreasonably refused.
Nichols was not swayed: “we argued to the driver assessment and appeal division (DAAD) hearing officer that the officer could not tip the scales of proof on the issues of the reasonableness of the stop and the refusal. The hearing officer agreed. We received his opinion on the day of the hearing on our motion to suppress the evidence in the criminal court.”
The prosecuting attorney, in a very conservative county that is known for its harsh treatment of citizens accused of drunk driving, dismissed the case based on the motion. “The prosecutor initially filed a written response to our motion arguing that the officer observed the client’s car drift over the outer right edge of the lane he was in (the fogline). However, we had elicited from the officer at the DAAD hearing that he had already made up his mind to stop our client’s car when he ran the plate and before he observed the car drift over the fogline. Moreover, the stop occurred outside of the officer’s local jurisdiction. “An officer must observe a traffic infraction inside his jurisdiction in order to take action on it unless he is acting in conjunction with the state police or a county sheriff,” Nichols added.
The client got his life back and no longer had to worry about the consequences on his ability to travel internationally. An OWI conviction can affect your ability to travel internationally. Nichols added: “the best part of the story came as we walked away from the courthouse and the client said ‘I learned a valuable lesson today.’ I responded ‘you just didn’t have to learn it the hard way.’”