My client, DW, was stopped for failing to use a turn signal while driving in a remote, dark location outside of Harrisville, Michigan. A police officer was parked off of the roadway with his lights off watching the intersection. The officer followed my client's car for a lengthy period of time and claimed to see weaving and swerving over lane markers. After the car was stopped, my client was arrested for drunk driving and suspected marijuana was found in the car. My client waived his Miranda rights, agreed to make a statement, and told the officer that he did not know that marijuana was in the car.
A breath test revealed a .13 BrAC, but there was no second test. Michigan law dictates that an officer must offer a second breath test to confirm the results of the first breath test. This was not done.
In-car video showed no weaving, and it did not show my client touching any lane markers.
I argued at a motion hearing that the officer's traffic stop was unlawful because 1) the turn signal statute requires the presence of other vehicles before a person is obligated to use a turn signal 2) the weaving and swerving over lane markers was not recorded by the officer's in-car video equipment. I also argued that the arrest decision was not supported by probable cause because the client passed all admissible field sobriety tests, and the horizontal gaze nystagmus test was performed improperly. The judge denied my motion and refused to permit my expert, Tony Corroto, to testify regarding the proper administration of the HGN test. Mr. Corroto is a retired police officer from Atlanta Georgia who frequently travels to Michigan to testify for me as an expert witness.
I appealed this decision to the circuit court, and the circuit court judge entered a very brief order, denying the appeal on its merits. Refusing to give up on this issue, I proceed to file an appeal with the Michigan Court of Appeals. The Michigan Court of Appeals agreed with me, holding that Mr. Corroto was qualified to present expert testimony, my expert should have been permitted to testify, and the prosecutor must establish that the HGN test was performed properly before the test may be admitted.
Despite my best efforts and powerful testimony by Mr. Corroto following the remand from the Court of Appeals, the lower court judge reserved judgment on all of my motions until trial. At trial, the court continued to rule adversely, forcing me to argue this issues to the jury.
Despite a .13 breath test result, I was able to persuade the jury to return not guilty verdicts on both counts. My only defense to the marijuana charge was my client's professed lack of knowledge. Since this was a work vehicle, however, I presented testimony that workers for the company had access to the vehicle, so there was no direct evidence that my client knew the marijuana was in the car.
This case took over two years and several hearings. By the end of those two years, I had become pretty good friends with the prosecutor, and I was able to get the arresting officer to admit that he made mistakes during the investigation.