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Barone Obtains Three Careless Driving Pleas in Two Weeks!

by ptbarone on August 18, 2009

Case One:

People v. K.E.

Charge: OWI (Operating While Intoxicated)

Prior Record: One prior drunk driving in Illinois

Client was stopped for speeding 10-15 MPH over the limit by a Michigan state trooper.  The report indicates she was slow to pull over. She admited to drinking beer had the odor of alcohol, bloodshot glassy eyes and slurred speech. 

Client failed all tests, including the HGN (horizontal gaze nystagmus), the one leg stand and walk and turn standardized filed sobriety tests.  She also exhibits poor balance.

At the jail the client blows into the DataMaster which reveals a breath alcohol content (BAC) of .14/.15.

The case is set for trial and on the first trial date the trooper agrees to a reckless driving.  Case is adjourned to determine if a plea can be worked out.  Client eventually declines to accept this offer, and the case is re-set for trial.

On the new trial date we point out to the prosecutor that the jail had missed the 120 day inspection of the DataMaster that should have occurred subsequent to our client’s breath test.  We argue that without this result the judge will not allow the jury to see the breath test results.

The prosecutor offers a careless driving and the client accepts this plea.  A careless driving is a civil infraction like a speeding ticket or running a red light.

This fantastic result helped the client to avoid the imposition of any driver license sanction on this case and there was no driver responsibility fees imposed.  Also, only three points rather than six points were added to the client’s driving record.

Also, this client was an Illinois licensed driver.  She had moved to Michigan to take a management position at a large department store.  Had she been convicted of any alcohol related charge her Illinois driver license would have been suspended for at least one year.

Case Two:

People v. M.V.

Charge: OWI (Operating While Intoxicated)

Prior Record: one prior MIP and one subsequent OWI

Client is driving his truck through a subdivision when he careens off the road and crashes into a parked car.  He gets back onto the street, stops and a neighbor observes him throwing up.  He continues and hits a second car and a tree, and is observed throwing up a second time.  The neighbor calls the police then follows client across the street into the parking lot of the Middle School across the street.

When the police arrive the client is observed outside his car and is dirty and covered with leaves.  He admits drinking has a strong odor of alcohol on his breath, and when confronted about the cars he hit simply says “I’m sorry.”

The police administer a roadside breath test (PBT) which registers a .20 breath alcohol result.  Our client is arrested and at the station becomes combative and argumentative with the police.  At one point he refers to the arresting office as a “faggot.”  He refuses the breath test at the station.

The case is pending for many months, and at one point we are able to obtain a dismissal “without prejudice.”  Later, an under 21 BAC” is offered, but client refuses to accept this plea bargain.  The case continues on for trial, being adjourned several times.

On one trial date the neighbor appears and we request an evidentiary hearing so that we can obtain his testimony.  After the hearing the court reluctantly agrees to yet another adjournment so that we can obtain the transcript from the evidentiary hearing.

Shortly after the evidentiary hearing the client picks up another drunk driving case in another jurisdiction. 

On the day of trial we are able to negotiate a reduction to careless driving provided he is found guilty or pleads guilty to the second case.  The court also requires that client obtain and follow-through on alcohol treatment.  We had already recommended treatment, and client had already begun his alcohol recovery.

Original drunk driving case dismissed, client pleads guilty to the civil infraction of careless driving as well as the misdemeanor charge of open intoxicants in a motor vehicle.

The result helped the client to avoid the imposition of any driver license sanction on this case and there was no driver responsibility fees imposed.  Also, only three points rather than six points were added to the client’s driving record.

Case Three:

People v. C.H.

Charge: OWI (operating while intoxicated)

Prior record: One OWI and one MIP

What follows is a portion of our summary of the videotape in this case.  We prepared this document to assist in trial preparation and also to assist in any plea negotiations and to identify any possible legal issues:


The video is in color and there is limited audio

According to the police report the officer observed the listed vehicle disregard the stop sign. The officer then noticed the vehicle accelerate in speed and drive in the right fog lane. The officer then illuminated his emergency lights to make a traffic stop. None of the driving was captured on camera, when the video began, we observed the officer illuminate his emergency lights and the listed vehicle was stopped on the shoulder of the road.       


1:51:16            We observed the officer exit his patrol vehicle and walk up to the driver’s side window to speak with the driver, soon to be known as our Client. We are not able to hear the conversation between the two because there is no audio at this time.   


1:52:01            Client stepped out of his vehicle.

1:52:08            The officer searched Client.                                                                           


Note:   It is unknown whether Officer #1 was/is a certified SFST practitioner. Please refer to the video review addendum to learn how the standardized field sobriety tests should be properly administered.

(1) Horizontal Gaze Nystagmus: 1:52:48 to 1:53:02             

We observed the officer make 2 vertical passes across Client’s eyes. Please note that the test began off screen and half way through the camera angle changed allowing us to view the test being administered, there also was no audio. According to the police report, the officer found all 6 clues in Client’s eyes, lack of smooth pursuit, distinct nystagmus at maximum deviation and onset of nystagmus prior to 45 degrees.

(2) One Leg Stand: 1:53:10 to 1:53:22

We observed Client attempt the one leg stand task three times, each time he used his arms for balance, swayed, and put his foot down after a few seconds. Please note there was no audio during this test. This is consistent with the police report.

(3) Walk and Turn: 1:53:34 to 1:53:50

We observed Client take 8 steps forward, turn, and take 8 steps back, with his arms at his sides. Client had trouble maintaining his balance after his first turn. We were unable to observe Client’s feet on camera walking heel to toe. Please note that there was no audio during the test. According to the police report the officer observed Client take 9 steps forwards, turn, and take 9 steps back. We were unsure if the officer counted an extra step when Client made his turn, and are also unsure how many steps the officer asked Client to take.

1:54:20            The audio begins and we hear the officer ask Client to take a PBT test. The officer never read Client his PBT rights. The officer asked Client if he was correct in stating that he had consumed 2 beers tonight, Client stated he had more then 2 beers.

(4) Preliminary Breath Test (PBT): 1:55:09

1:55:09            We observed Client take the PBT test, which resulted in a .14 BAC level.            

ARREST: 1:55:09

1:55:09            The officer informed Client that he was under arrest for OWI.

1:55:44            The video ends with Client seated in the back of the patrol vehicle.

VIDEO SUMMARY                         

Client was arrested on the evening of March 25, 2009 for OWI 2nd.  The officer stated that the initial reason for the stop was due to Client’s erratic driving. The driving was not captured on camera.Through the video, we observed Off #1 conduct 4 different FST’s:

                        1) HGN

                        2) OLS

                        3) W & T

                        4) PBT       

All of the FST’s take place on camera.  Client had trouble completing the field sobriety tests that were administered. The officer noted he found all 6 clues in Client’s eyes during the HGN test, and Client blew a .14 on the PBT machine. Client admitted to the officer that he had been drinking earlier that night. Client was arrested for OWI and taken to jail; there he agreed to take a chemical breath test resulting in a .14/.14 BAC level.

Again, in this case, like the others, we set the case for trial and there were several adjournments.  Ultimately a careless driving with open intoxicants was offered.  In part this was due to the fact that the arresting officer had been laid off from the state police.

The client decided a final resolution would be better than a dismissal “without prejudice” meaning the case could be brought again if and when the officer was rehired.

Clearly we are not able to obtain these plea reductions for all of our clients.  The point of this is that if you’re facing a drunk driving charge in Michigan then you should call us today to learn how we may be able to obtain similarly spectacular results for your case.

There are many reasons why, in these cases, we were able to obtain such great results.  In part it is due to our Firm’s reputation and experience.  In part it is also due to our tenacity, and our refusal to take “no” for an answer. 

Also, we don’t ever hesitate to set a case for trial.  At the Barone Defense Firm we take many really bad OWI cases to trial, and yes, we lose many of these really bad cases.  But even in losing the prosecutor learns they will have a battle on their hands.

Now, how much of this boils down to shear luck?  Our favorite saying is “luck happens when preparation meets opportunity.”  There is simply no substitute for a well prepared case!

Thus, as we like to say, “wonderful things happen when you answer ready for trial.”


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