An appeal to circuit court, following a denial in the district court of a motion to suppress evidence obtained following an OWI traffic stop, resulted in a suppression of the evidence.  The appellant was stopped after an officer saw the vehicle drift past the center of the road and turn without signaling.  So-briety tests – which included a One Leg Stand, Walk and Turn, ABCs, Counting, Months of the Year, and the HGN test – were administered.  Additionally, a PBT was administered 8 minutes (not 15 minutes) after the officer’s first contact with appellant.  The appellant passed the ABCs, Counting and Months’ portions of the tests; the officer gave incorrect instructions on performing the Walk and Turn, and the appellant satisfactorily completed a One Leg Stand.  The parties stipulated that the HGN test was administered incorrectly, so neither the district, nor the circuit judge, considered the results.

Ingham County Circuit Judge James S. Jamo found that, although not mandatory in Michigan, the National Highway Transportation Safety Admini-stration (NHTSA) Detection and Standardized Field Sobriety Testing Manual (Manual) provides a stand-ardized method of administering and interpreting sobriety tests.  Also, the Manual expressly provides that a suspect may be over the legal limit only when “two or more clues or mistakes are observed” in either the One Leg Stand and Walk and Turn tests.  The appellant made only one mistake in the Walk and Turn, but had been given incorrect instructions by the officer on how to complete that test.  The One Leg Stand revealed only some swaying; however, the officer testified that such swaying could be caused by nerves, or by the cold, windy weather.  Judge Jamo found the PBT was incorrectly administered and its results could not be considered for probable cause.

Judge Jamo concluded that “without the benefit of evidence of the improperly administered One Leg Stand, Walk and Turn test, HGN, and PBT,” the only remaining evidence the officer could rely upon were the failure to use a turn signal and the drifting over the center of the road, a smell of alcohol, a bar stamp on the appellant’s hand, and appellant’s watery eyes, and that evidence was insufficient to establish probable cause to arrest.

The defendant was represented by attorney Andrew P. Abood.  A copy of the opinion in People v. Lia Lupin O’Black, Ingham County Circuit Court No. 14-734-AR, is available at http://www.sado.org/cdn/articles/10435_Lia-Lupin-OBlack-Circuit-Court-Opinion-of-the-Mon.pdf

by Neil Leithauser
Associate Editor

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