Category Archives: Not Guilty

NOT GUILTY – Operating While Visibly Impaired

Many people are not aware that you can be under the legal limit of .08 blood/alcohol content, yet still be charged with drunk driving. In Michigan there is a charge below Operating While Intoxicated called Operating While Visibly Impaired. They are two separate charges and they have two different legal standards.

When a person blows a .08 BAC or above, they are generally charged with Operating While Intoxicated. In order to prove this charge, the prosecution must actually admit evidence that the person took a breath test and was at .08 BAC or above.

If the prosecution cannot prove that the person blew above at or above a .08 BAC, then they can charge the person with Operating While Visibly Impaired. In order to prove this charge, the only thing that the prosecution must prove is that  the person had consumed alcohol and that the alcohol impaired their ability to operate the motor vehicle. Usually this is proved by showing that the person looked like they were driving impaired (e.g. by swerving, speeding, failing to use a turn signal, driving erratically, etc.)

Last month Neil held a trial in which our client was charged with operating his motor vehicle while impaired by alcohol after he abruptly changed lanes once, was pulled over, and blew a .06 BAC on the breathalyzer. The Prosecutor’s office refused to dismiss the case and even filed a motion asking the judge to ban us from being able to argue that driving below a .08 BAC was legal. We filed a response and the judge agreed that we were able to argue to the jury that driving with a BAC less than .08 was not a crime, unless they could prove that he was actually impaired by the alcohol.

The trial lasted two days and after a very short deliberation, the jury agreed that there was no proof that our client had driven his car while impaired by alcohol. Another NOT GUILTY in the books!

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NOT GUILTY of drug and weapons charges!

In mid-December we went to trial on a case in Detroit, Michigan.

Our client was charged back in late 2012 of Possession of nearly 200 grams of cocaine and felony firearm. If he were convicted, he would have been looking at 5-8 years in prison.

However, we knew he was innocent.

The police had allegedly received an anonymous tip that someone was dealing drugs out of our client’s mother’s house in Detroit. Our client did not live at this house, but while his mother was in Florida, he was taking care of the home. The police busted into the home and found our client in the home in a towel (he was about to take a shower). They arrested him and conducted a search of the home.

At this point the “facts” get muddled. The police claimed that they caught our client walking down the stairs (coming from upstairs) and that when they searched the upstairs bedroom they found several guns, pictures of our client, a large amount of cocaine, paperwork proving our client lived at that house, and some cash. In fact, the police claimed that they found all of that “evidence” in and on top of a small end table on the side of a bed (wrapped up with a neat and tidy little bow too, right?)

However, our client claimed that the police did not catch him coming from upstairs, and that the guns were all legally registered and found throughout the house for protection (I mean it is Detroit after all) and that the cocaine was actually found by the police in the rafters in the basement. Further, he told us that many people stopped by and hung out at the home and that he had no idea that there was a bag of cocaine hidden away in the basement.

In other words, the police found a bunch of illegal items but had no way to actually connect our client to those illegal items (especially since the house doesn’t belong to him.)

Trial prep was arduous. We had to figure out a way to convince the jury that the police were lying about the location where all of the contraband was found, and we had to convince the jury that our client was being truthful about the fact that he didn’t know there were drugs in the home. We developed several lines of cross-examination for all of the officers and in the end Neil gave one of the best closing arguments he has ever given.

It was a 3 day jury trial and after about 2 hours of deliberation, the jury returned a NOT GUILTY verdict ON ALL COUNTS. It was apparent that the jury simply did not believe the police. Instead, they believed our client – when he testified that he did not know that someone was using his mother’s home as a stash house.

NOT GUILTY! – 2nd NG in one week

Yesterday Neil Rockind obtained a second Not Guilty verdict within a week.

This time it was a Domestic Violence trial in New Baltimore. From the get-go our client maintained his innocence. His (now) ex-wife claimed that he had entered their house and hit her. Except, there was no evidence of an assault. No witnesses, no bruising, no pictures, nothing. In reality, she was pissed that he was sleeping with another woman and was about to file for divorce. So, she did what many scorned women have done: She called the cops, made up an assault, filed for divorce first, filed a PPO, drained their bank accounts, and kept his kids from him (even went so far as to tell the children’s principle that that their father was under court order not to see the kids – which was a lie.) She did all of this within 5 days.  And through it all, our client maintained his innocence; that although they had argued, that he had never laid a hand on her.

Fortunately, the trier of fact agreed and he was found Not Guilty. Justice prevails once again.

NOT GUILTY!

Nearly a year ago we began representing a young woman who was charged with Operating While Intoxicated. When she came to our office she was scared and vulnerable. She was worried about how the conviction would affect her schooling, her future career, and the rest of her life. We sat down with her and after hearing her story, we told her that we would fight as hard as we could fight to get her case dismissed and clear her name.

Yesterday, after a hard fought battle that took nearly a year – including a 2-day jury trial, we delivered: The jury returned a verdict of NOT GUILTY.

For months she had cried tears of sadness – knowing that there was a possibility that she could be wrongly convicted and sent to jail. Yesterday she cried tears of joy – knowing that she had finally received the justice that she deserved.

Here is her story:

A little more than 1 year ago, our client – S.J. – had gone out to a bar with her underage (19 year old) cousin. S.J. and her cousin (who at the time had a fake ID) decided to go out in downtown Rochester Hills to celebrate the passing of a school examination. They went to Fuse Bar in downtown Rochester at approximately 11pm. Her cousin drove her own vehicle and picked up S.J. at her home before heading downtown. While at the bar, both girls consumed several drinks. A couple of hours later they decided to leave. S.J. got back into the passenger seat and her cousin drove. They left the parking lot and were immediately pulled over due to the fact that her cousin had gone the wrong way down a one way street.

Immediately after the police officer flipped on his emergency lights, S.J.’s cousin abruptly stopped the vehicle and hopped into the passenger seat with S.J. while repeatedly saying that she was on probation and couldn’t get in trouble again. Our client, S.J., in a chaotic moment of desperation switched into the drivers seat a couple of seconds before the police officer approached the front window.

The decision by S.J. to switch seats with her cousin would prove to be the biggest mistake of her young life. The cop, who hadn’t been paying close attention, rightly presumed that S.J. had been the driver of the vehicle. Based on his preliminary assessments that S.J. was drunk (red and watery eyes, odor of intoxicants) he required S.J. to exit the vehicle and perform some field sobriety tests. S.J. performed the field sobriety tests terribly, yet in an attempt to salvage the situation she repeatedly told the cop that she had only had one drink and was not drunk. Further, she stated that she had been driving the vehicle and that her cousin was the passenger. Ultimately, S.J. was taken down to the police station and given a Datamaster Breath Test and tested at a .12 Blood Alcohol Content. Based on all of this, S.J. was charged with Operating While Intoxicated.

Meanwhile, her cousin gave the police a fake name and a fake date of birth and was ultimately charged with only Minor in Possession – due to the fact that she had consumed alcohol while underage.

Her cousin went to court and was advised by her lawyer to plead guilty to the MIP, despite the fact that she admitted to him that she had been the driver.

At the same time, we went to court with S.J. and from the very first court appearance we never wavered in her innocence. We told the prosecutor that they had switched seats. We told the police officer that they had switched seats. We presented the prosecutor with a copy of the polygraph that S.J. had taken showing that she was being truthful with regard to the switching of the seats. We tried everything we could to convince the prosecutor that S.J. had NOT BEEN THE DRIVER OF THE VEHICLE. It was all to no avail and ultimately we ended up scheduling the case for trial.

During trial prep we had to figure out how to overcome a number issues. First, we knew that the prosecutor was going to call her cousin to testify that she wasn’t driving the vehicle. Therefore, we had to make the jury believe that her cousin was a liar. This was no easy task, but we were prepared and Neil skillfully got her to admit to several lies (1. that she had violated her probation several times; 2. that she had lied to the police; 3. that she had misled judges; 4. that she had even lied in court).

After demonstrating that S.J.’s cousin was a liar and not a credible person, our next challenge was convincing the jury that the switch had actually  taken place. In order to do so, we spent several hours analyzing the in-car video from the police cruiser and eventually were able to spot some movement that had taken place inside the vehicle immediately before the officer walked up to the window. We then hired a video specialist to enhance the image and slow it down so that we could show the jury exactly when the switch had taken place. This was a key piece of the defense – because it gave the jury a piece of hard evidence that could corroborate S.J.’s claim that the switch had taken place.

Our next issue was to deal with the fact that our client was technically operating the vehicle for a few seconds after the switch had taken place. In other words, pursuant to a number of cases, if a person is sitting in the drivers seat of a running vehicle they are technically guilty of operating that vehicle. So, we had to convince the jury that S.J. had never “operated” or “taken control” of that vehicle despite sitting in the drivers seat. We did this through testimony of the cop (“I directed her to turn off the vehicle”, “She never put her foot on the gas or the break”, “She never put her hands on the steering wheel.”)

We also had to deal with the fact that S.K. was intoxicated (she blew a .12 on the Datamaster Breath Test) and the fact that she had lied to the police about the number of drinks she had consumed (she told the police it was only one drink, when in fact it was several.) We did this by addressing it head on: S.J. testified that she had intentionally tricked the police officer in order to protect her cousin, and that she had lied about the number of drinks she had consumed in order to try and convince the officer that she wasn’t drunk. No double talk, no manipulation of words, no squirming out of truth – she had to admit she lied and own up to it.

Lastly, we had to put S.J. on the witness stand to testify that she wasn’t driving and to testify that the switch had taken place, despite the contrary testimony by her cousin. This was the biggest gamble, because S.J. was going to be subject to cross-examination by the prosecutor and we were not sure how well she would hold up. Our worries were for naught: She testified beautifully. She never wavered from the truth: That she had been the passenger and that her cousin convinced her to switch seats.

Neil sealed the case with his extremely engaging opening statement that focused on a girl charged with a crime that she had not committed and a fantastic closing statement that focused on how S.J.’s loyalty to her cousin had put her in such a terrible position.

In the end, the jury believed that the switch had taken place and did not believe that S.J. had ever operated or been in control of the vehicle. It took us countless hours of preparation, but this is exactly what we needed to get the jury to believe and ultimately all of our hard work payed off.

From all of us at Neil Rockind, P.C., we wish S.J. our sincerest congratulations.

Justice once again prevails at the hands of Neil Rockind, P.C.