(An unpublished opinion is not binding as precedent but may have persuasive value in court.)

A traffic crash occurred between defendant and another driver. The passenger front end of defendant’s vehicle hit the rear driver’s side of the other vehicle. Dr. Michele Glinn, Supervisor of Consequently, the mere sight of the dangling Tweety Bird supplied the quantum of individualized suspicion sufficient to establish probable cause to believe that Davis was violating Section 257.709(1)(c). the Toxicology unit of the Michigan State Police Crime Laboratory, was qualified as an expert and testified using retrograde extrapolation, defendant’s blood alcohol level at the time of the crash would have been somewhere between .05 and .12.

She also tested defendant’s blood for drugs. The results showed therapeutic levels of alprazolan (Xanax), diazepam (Valium), a prescription muscle relaxant, and codeine. The record revealed Dr. Glinn based her testimony on facts presented by the prosecutor regarding the crash including
defendant’s behavior at the scene, as well as the results from his blood test. Dr. Glinn gave her expert opinion defendant was under the influence of drugs. Although her testimony embraced the ultimate issue to be decided, she did not provide an opinion on defendant’s guilt. Though Dr. Glinn
stated in her opinion defendant was under the influence as a legal concept, she did not define the phrase “under the influence.”

The defendant relied on the court’s opinion in People v Lyons, 93 Mich App 35 (1979), to support his argument Dr. Glinn’s testimony went beyond merely embracing the ultimate issue to be tried because it usurped the role of the jury and was opinion testimony of his guilt.

In Lyons, a prosecution expert defined what qualified as a security under the Uniform Securities Act even though the trial court disagreed with the witness’s interpretation. The court vacated the defendant’s conviction in Lyons. Here, unlike Lyons, Dr. Glinn did not provide a definition for “under the influence.” Rather, she provided her expert opinion based on hypothetical information provided by the prosecutor and the blood test results.

The case was affirmed. People v. Bacon, case no. 282923, released May 21, 2009.

When officers arrived at the scene of the single vehicle rollover crash, there was no one at the scene. The officers performed an inventory of the interior of the truck involved in the crash. They found defendant’s wallet as well as other documents belonging to him. A license plate check revealed the truck belonged to another individual. This other individual told the officers defendant had a set of keys to the truck and had been keeping the truck at his parents’ home for the past several days. When she was advised the truck had been in a crash, she went to the home of the defendant’s
parents and found the defendant asleep in a car.

Police were dispatched and they found the defendant to be intoxicated. He had fresh scratches and cuts on his person and also had broken glass in his vest pockets similar to the glass found at the scene of the crash. Defendant’s statement to police officers, denying he had been involved in a crash,
contradicted his later claim another person was driving at the time of the crash. The court of appeals ruled that viewed in a light most favorable to the prosecution, the circumstantial evidence supported
the defendant’s convictions for OWI, third offense and operating a vehicle on a suspended license, second offense.

The case was affirmed. People v. Dean, case no. 283728, released April 23, 2009.

Defendant’s conviction of operating a motor vehicle while intoxicated causing serious impairment of a
body function arose from an automobile crash in which defendant’s passenger sustained a fractured pelvis and other injures and subsequently died of complications from prior medical problems. Defendant contended on appeal the evidence was insufficient to support his conviction based on the Kreiner standard because the prosecution did not establish his passenger sustained a serious impairment of body function under the standard applicable in civil no-fault cases.

The court of appeals disagreed. The nofault statute and the statute under which defendant was convicted do not relate to the same subject or share a common purpose. The no-fault statute provides a system of civil compensation and liability for automobile accidents, where the statute at issue here prohibits and criminalizes the operation of a motor vehicle while intoxicated.

The phrase “serious impairment of body function” is defined in the Motor Vehicle Code and includes several specific injuries, one of which is “serious bone fracture.” The record indicated the passenger sustained a fractured pelvis and would have been permanently disabled by the injury, had he survived. The fact his death resulted from complications of prior chronic conditions did not alter the severity of the injuries caused by the defendant’s intoxicated driving.

The case was affirmed. People v. Germaine, case no. 281870, released March 3, 2009.

The trial court read the language from Criminal Jury Instruction 15.2-Element of Operating Whole
Intoxicated, and then read the prosecutor’s requested addition of the definition of “Operating.” The additional instruction read as follows:

“Operating means driving or having actual physical control of the vehicle. Control means having power or authority to guide or manage the vehicle. You may determine the defendant had actual physical control over the vehicle if you find the defendant was behind the wheel of the motor vehicle and the engine was running, regardless of whether the vehicle was in motion.”

The defendant argued the instruction erroneously allowed the jury to find he was operating the truck when he entered the driver’s seat simply to confirm the clutch was not working before he turned off the power. The court of appeals noted that the Michigan Supreme Court in People v Yamat , 474 Mich 49 (2006), adopted the definition of “control” incorporated in the trial court’s instruction, and concluded the latter part of the instruction adequately reflected the holding in People v Wood, 450 Mich 399 (1995). The trial court’s instruction was proper. The fact the truck was not traveling
forward or backward at the time the police officer came upon him did not change the result.

The case was affirmed. People v. Siler, case no. 281527, released February 3, 2009.

The defendant argued the jury had no reason to disbelieve his brother’s testimony that he was driving the car, not the defendant. However, defendant admitted several times to the police he had “messed up.” There were no footprints or other physical evidence that indicated another person might have driven the car and left the scene.

Further, the defendant’s brother admitted on cross-examination he originally told the police he was not driving the car and had loaned it to defendant. Defendant asked to call his brother to tell him where the car was located, which led to the reasonable inference he was not with defendant when
the car became involved in a crash. It was for the jury to determine the credibility of defendant’s brother’s testimony and the testimony of other defense witnesses.

Additionally, all three police officers who came in contact with defendant at the scene testified he exhibited signs of intoxication. He failed all sobriety field tests and his blood test showed he had a BAC of .26. The evidence also showed the defendant was found alone on the side of the road in the driver’s seat with the car running. Additionally, the defendant also admitted driving the car. He was convicted of OWI, third offense and DWLS. He was sentenced as a habitual offender, second offense to 28 to 90 months’ imprisonment for the OWI and to time served for the DWLS.

The court also rejected defendant’s claim the trial court was vindictive in sentencing him because he chose to exercise his right to trial. Since he was only sentenced once for his convictions, the "presumption of vindictiveness” was not raised. The court held the trial court did not commit plain
error in sentencing defendant since this was his third felony conviction and his fourth conviction for driving while impaired. His sentence was within the recommended minimum sentence range under the
properly scored guidelines and thus, was presumed to be proportionate.

The case was affirmed. People v. O’Brien, case no. 280670, released January 15, 2009.

The case arose from an early morning single car crash. As the police officer approached the scene, he saw defendant standing about 50 yards away. He looked as though he was having difficulty with his balance. The officer stopped him and asked if he was all right from the crash. Defendant said he was not aware of the crash.

At this time, the officer noticed his words were slurred, his eyes were bloodshot, and he had a strong odor of intoxicants. When asked what he was doing in the area, defendant told him he was trying to walk home from a pub, which the officer knew was many miles away. The officer told defendant he would be detained while the police investigated the crash. After finding the crashed vehicle was unoccupied and locked, the officer asked defendant if he had keys. He replied he only had his house
keys. The officer asked for and received the keys, one unlocked the car’s door and started the engine.

Defendant then changed his story and stated a friend named “Tool” had driven the car and after crashing it, left the keys with defendant before going to get help. The vehicle was registered to a woman. The woman was the defendant’s mother and she was as an emergency contact on booking sheets for prior arrests. The officer then arrested defendant, read him his chemical test rights, and obtained a search warrant to test his BAC.

The defendant argued his arrest was not supported by probable cause and the stop and search were illegal. The court held a reasonable person in defendant’s position would not have felt he was seized within the meaning of the Fourth Amendment at the time of the officer’s initial questions.

The record showed the questioning occurred within minutes of the stop at a time when the officer had an insufficient basis for concluding defendant had operated the vehicle while under the influence. When the officer told him he was being detained, he was not told he was under arrest or that he
was going to be questioned. He also was not handcuffed or unlawfully confined when initially questioned. The trial court properly denied the motion to suppress.

The case was affirmed. People v. Hatfield, case no. 280940, released January 8, 2009.

Consult Your Prosecutor Before Adopting Practices Suggested by Reports in this Article.

The statutes and court decisions in this publication are reported to help you keep up with trends in the law. Discuss your practices that relate to these statutes and cases with your commanding officers, police legal advisors, and the prosecuting attorney before changing your practices in reliance on a reported court decision or legislative change. This material was developed through a project funded by the Michigan Office of Highway Safety Planning and the U.S. Department of Transportation.