Category Archives: Operating While Intoxicated

Another DISMISSAL at the Preliminary Examination!

In the previous post I explained how a preliminary examination works. Within a month after Neil got those felony larceny counts dismissed, he also managed to convince a different Judge to DISMISS ALL felony counts for Possession of a Controlled Substance and Operating a Motor Vehicle Under the Influence of a Controlled Substance – 3rd offense.

Our client was pulled over at night while pulling into his work parking lot. The police officer argued that it was suspicious that he would be pulling into a business parking lot at night due to some recent thefts in the area. Even though we challenged the stop of his vehicle, the Judge did not agree that the stop was unreasonable.

However, We also presented evidence and expert testimony that our client had a prescription for the drugs that he was in possession of and that the amount of the drug that was found in his system was a “therapeutic amount.” In other words, that he was permitted to possess the drug, that he was not impaired by the drug, and in fact the amount in his system was a reasonable amount given his intended usage.

Ultimately, the Judge agreed that we had presented sufficient evidence to prove that our client had not broken the law. The case was DISMISSED WITH PREJUDICE – meaning that the People are not permitted to re-file the charges. Can’t ask for anything more than that! 

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Patience Pays Off: Our 2-year OWI-Causing-Injury Battle

How would you feel if one of your friends asked for criminal charged to be filed against you and then sued you for money damages? I’m going to assume you would feel hurt and betrayed. I’m going to assume that you would no longer call that person a friend.

This is exactly what happened to one of our clients nearly 2 years ago. He went to a bar with friends, had a bit too much to drink and chose to drive home. His friends were with him in the car and while driving them home, he got into a car accident with another drunk driver (yes, two drunk drivers hit each other). One of his friends who was sitting in the back seat was a surgeon at Beaumont Hospital and during the accident she sustained a fractured cheek bone. She was also heavily intoxicated. Immediately after the accident, his friends all fled from the scene (including the surgeon) and he stayed until the police showed up. He was arrested and charged with OWI, a 93 day misdemeanor.

Later that night, the surgeon made several phone calls to lawyers trying to find a way to get our client out of jail. In addition the surgeon went back to a friends house and continued drinking until the wee early hours of the morning.

The next day our client was charged with OWI, released from the local jail and allowed to go home. While he was heading home, the surgeon went to work at the hospital. She performed multiple life-threatening surgeries (presumably hungover) and failed to mention to any of her patients that she had been in a car accident and suffered injuries the night before. Nor did she mention to any of her patients that she had been out drinking heavily the preceding night.

The next day the surgeon went and spoke to her sister, who is a personal injury attorney. Her sister told her to sue her friend (our client), his employer, and the bar that had served our client drinks. Further, the surgeon called the Detective who was handling our client’s case and told him that she had been injured in the accident, and even though she had left the scene, she wanted our client charged with a felony OWI for causing her injury. Several days later the misdemeanor charge was dismissed, our client was instead charged with a 4-year felony, and the surgeon filed a lawsuit against multiple parties, including our client (her former friend).

In sum, she gave up their friendship for a shot at some cash through a lawsuit – all because she chose to get in the backseat of a car driven by someone she knew had consumed too much alcohol to drive.

From the very beginning of the case we maintained that the only thing we wanted was for our client to be able to plead to the originally-charged OWI. However, while we were requesting that reduction, the surgeon and her personal injury attorney were pushing the prosecutor’s office to proceed on the felony. They were hoping that our client would be convicted of the felony – which would ultimately give them a chance at a larger cash settlement. In other words, they were using the criminal justice system to milk as much money as possible out of as many parties as possible.

We set the case for trial. On the eve of trial, the prosecutor asked for an adjournment. We set the case for trial again and again on the even of trial, the prosecutor asked for another adjournment. They knew their case was weak. We set the case for trial again. With only a couple of weeks to go before trial, we received word that the prosecutor’s office was considering dismissing the felony and re-charging our client with the misdemeanor. At that moment, we knew we had won. It took a good amount of massaging, but eventually the prosecutor’s office did the right thing: They [presumably] told the surgeon that they weren’t going to maintain the felony just to help her in her civil case and they DISMISSED THE FELONY.

We realize how hard it is for our clients to go through such a long and drawn out criminal process. It’s absolutely draining – not knowing (for months or even years) whether you are going to have to go through the rest of your life as a convicted felon. But, as in most aspects of life, patience usually pays off. In this case it paid off big. Felony Dismissed.

Operating with Controlled Substance Statute Struck

In a case that has been ongoing for the past two and a half years, we again convinced a judge that the Michigan statute barring anyone from driving with any amount of marijuana in their system is unconstitutional.

After the judge reached this opinion, we were contacted by Michigan Lawyers Weekly about possibly writing a story.

Here is the story, which is currently featured as the lead story on their website: Lawyers Weekly Article

Great result and great article!

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.

Supreme Court signals blood tests protected by Fourth Amendment

Justices indicated Wednesday that the dangers of drunken driving don’t trump the Fourth Amendment, peppering lawyers for the state of Missouri with objections to their request that the Supreme Court allow law enforcement to order blood tests for DUI without suspects’ consent.

The case, Missouri v. McNeely, is seen as a landmark that could clear up almost 50 years of uncertainty over the constitutionality of blood tests that are conducted without a warrant. Legal scholars say it could rewrite drunken-driving laws in all 50 states.

The case hinges on how you interpret a 1966 opinion by then-Chief Justice William Brennan, whowrote (.pdf) that law enforcement should get a warrant before taking a blood draw without a suspect’s consent, except in a few very limited circumstances that rise to the level of an emergency.

Missouri wants the court to declare that the dissipation of alcohol in the bloodstream is, on its face, an emergency allowing officers to get a blood test immediately and without a warrant.

But justices indicated that they firmly believed that taking someone’s blood was an intrusion that in most cases constituted a government “seizure” subject to protection of the Fourth Amendment and requiring the subject’s permission or prior approval from a judge.

“How can it be reasonable to forgo the Fourth Amendment in a procedure as intrusive as a needle going into someone’s body?” Justice Sonia Sotomayor asked John Koester, a prosecutor in Jackson, Mo., who represented the state Wednesday.

Related: Full preliminary transcript of Wednesday’s arguments (.pdf)

Sotomayor said that if the court ruled Missouri’s way, it would be giving law enforcement free rein to “use the most intrusive way you can to prove your case,” which wouldn’t always be the most constitutionally sound way.

The officer who arrested Tyler McNeely acknowledged that he didn’t seek a warrant when he told a hospital lab technician to draw McNeely’s blood after a DUI stop in 2010 because he believed he didn’t need to, not because he didn’t think he couldn’t get one in time.

That troubled several justices, who wanted know how a suspect’s fundamental Fourth Amendment rights could be overshadowed for the convenience of law enforcement.

“Why should the Fourth Amendment permit the search to take place without the warrant when it could have been obtained?” Justice Samuel Alito asked Nicole Saharsky of the U.S. solicitor general’s office, who joined Koester in arguing Missouri’s side.

Justice Ruth Bader Ginsburg said, “It was and I think still is the main rule that if you can get a warrant, you must do that.”

Even Antonin Scalia, the court’s most law-and-order justice, questioned Missouri’s argument, telling Koester, “Once we say that you don’t need a warrant, you know, even if things improve, the game’s up, right?”

“Why don’t you force him (McNeely) to take the Breathalyzer test, instead of forcing him to have a needle shoved in his arm?” Scalia asked.

Justices’ questions during arguments don’t always signal how they will vote; the justices often pose hypotheticals designed to crystallize or clarify a contrary position.

But Lyle Denniston, a Supreme Court expert writing on Scotusblog, said it seemed clear that “the court is not going to let police across the nation order — on their own authority — the taking of blood samples from those suspected of drunk driving.”

“Two impressions were dominant throughout the argument: the Justices generally do regard the use of a needle to take a blood sample as quite an intrusive gesture by the government, and the Fourth Amendment warrant requirement should not be cast aside for all cases of drunk driving when officers decide to order a blood draw,” he wrote.

via NBC News

Scanning for Drunks With a Thermal Camera

ScienceDaily (Sep. 4, 2012) — Thermal imaging technology might one day be to identify drunks before they become a nuisance in bars, airports or other public spaces. Georgia Koukiou and Vassilis Anastassopoulos of the Electronics Laboratory, at University of Patras, Greece, are developing software that can objectively determine whether a person has consumed an excessive amount of alcohol based solely on the relative temperature of different parts of the person’s face.

Writing in the International Journal Electronic Security and Digital Forensics, the team explains how such a system sidesteps the subjective judgements one might make based on behaviour and so allow law enforcement and other authorities to have definitive evidence of inebriation.

The team explains how they have devised two algorithms that can determine whether a person has been drinking alcohol to excess based on infrared thermal imaging of the person’s face. The first approach simply involves measuring pixel values of specific points on the person’s face, which are the compared to values in a database of scans of sober and inebriated people. Given that alcohol causes dilation of blood vessels in the surface of the skin hot spots on the face can be seen in the thermal imaging scans, which can be classified as drunk or sober regions. Similar technology has been used at international borders and elsewhere to ascertain whether a person was infected with a virus, such as flu or SARS.

In their second approach, the team assesses the thermal differences between various locations on the face and evaluates their overall values. They found that increased thermal illumination is commonly seen in the nose in an inebriated individual whereas the forehead tends to be cooler. This second system relies on the algorithm “understanding” what different parts of the face are present in the thermal image. The two techniques working in parallel could be used to quickly scan individuals entering public premises or attempting to buy more alcohol, for instance. The team points out, however, that the second technique does not need a thermal image of the sober person to determine whether that individual has been drinking.

via Science Daily