By on June 23, 2010

Motorist Paul Miller filed a federal lawsuit against Sanilac County, Michigan sheriff’s department after he was accused of driving under the influence of alcohol (DUI) despite being completely sober. The US Court of Appeals for the Sixth Circuit earlier this month ruled that his case should be tried by a jury.

On February 19, 2006, Miller had been driving home from a demolition derby at around midnight on a cold, icy evening. Miller drove through a stop sign, unable to stop because of the slick road conditions, as Deputy Sheriff Jim Wagester watched. Wagester pulled Miller over claiming that he had been driving 60 MPH without a seatbelt, that he failed to immediately pull over, that his eyes were “glassy” and that he “detect[ed] a slight odor of alcohol coming from [Miller's] breath.” Miller said that Wagester fabricated the charges.

After learning that Miller had been arrested once before for DUI, Wagester administered five standard field sobriety tests in the freezing weather, insisting that Miller failed four of them. Miller refused a breathalyzer test, saying he only trusted the accuracy of blood tests. Wagester responded by slamming Miller against his patrol car, handcuffing him and driving him to a hospital for the blood test. Wagester charged miller with: failure to use a seatbelt, no proof of registration, no proof of insurance, reckless driving, refusal to submit to a breath test, minor in possession, and 0.02 percent blood-alcohol-no-tolerance-law violation.

The lab eventually reported that Miller’s blood alcohol concentration (BAC) was 0.00 and that he tested negative for narcotics. Although police dropped the charges, Miller sued for excessive force, false arrest and malicious prosecution.

The court of appeals threw out the malicious prosecution charge as they related to the civil infractions like failure to wear a seatbelt and refusing a breath test. Only criminal charges like DUI could be considered malicious prosecution, so the appeals court found that a jury should decide whether Wagester had probable cause to arrest to determine whether the criminal prosecution was malicious.

“The fact that Miller’s blood alcohol was found to be 0.00 percent casts doubt on Deputy Wagester’s claims that Miller smelled of alcohol and failed the field sobriety tests,” Judge Gilbert S Merritt Jr wrote for the majority. “Although Wagester’s claims, if believed, would constitute probable cause to arrest for driving under the influence of alcohol, a jury could reasonably conclude, in light of the 0.00 percent blood alcohol result and Miller’s testimony, that Wagester was being untruthful generally about his observations and did not have probable cause to believe Miller was drinking. In light of the conflict in the evidence, the jury could conclude that Wagester was lying.”

The court also questioned the reckless driving charge because the icy conditions represented a mitigating circumstance. Because the reckless driving charge requires a showing of “wanton disregard for the safety of persons or property” the icy conditions create a factual question for the jury. The court found absolutely no evidence for Wagester’s filing of the minor in possession charge.

The court dismissed the claims against the county government and some of the excessive force claims but upheld Miller’s remaining points as fit for being decided by a jury.

View a copy of the decision in a 75k PDF file.

Source: PDF File Miller v. Sanilac County (US Court of Appeals for the Sixth Circuit, 6/4/2010)

[Courtesy:TheNewspaper.com]

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26 Comments on “Michigan: Man With 0.00 BAC Sues Over DUI Charge...”


  • avatar
    FleetofWheel

    Does Redflex make breath analyzers or train in their use?

  • avatar
    Tosh

    Wear your seat belt!

  • avatar
    dswilly

    Sounds like this cop would make a better mall security guard.

  • avatar
    porschespeed

    Pretty typical current cop behavior – the motorist refuse to submit to the ‘authority’ of the cop by declining the breathalyzer test.

    I’m glad the motorist is aware that the breathalyzer is a grossly inaccurate tool, about on the order of using POP mode on a radar gun.

    If you want to know how bad the paramilitarization of cops has become, I would suggest these sites. They are aggregators (mostly of vetted stories from newspapers and TV news), with some op ed additions which you can love or hate. But they do report the tip of the iceberg of the abuse that has become endemic across our nation.

    http://www.theagitator.com

    http://www.unknownnews.org

    Nothing tin-foil hat, just the stories that are usualy buried on page 8, because it is politically incorrect to critique the ‘brave public servants who put their lives on the line everyday’ mythology.

    • 0 avatar
      dankru

      I’ve found that Reason has been very good about fairly reporting these kinds of cases and any abuses of power as well. http://reason.com/blog

    • 0 avatar
      porschespeed

      dankru,

      True, Reason is a generally sound source and Balko (The Agitator) writes for them.

      I picked as I did because Reason features a wide array of content, I was just pointing out more focused sites.

  • avatar
    Power6

    Seems to me that a cop having access to criminal and civil history clouds their judgement about the present possible violations.

    I have a checkered past with traffic violations in my youth, and now having not had one ticket for years, any Mass cop can see my entire history right from his laptop in his cruiser. My insurance doesn’t even go back that far when setting my rates!

    I wonder if there is a legal precedent for past history being used to indicate probable cause? In my case it has only been civil infractions with regards to discretion but I am still curious.

  • avatar
    Autojunkie

    I’ve never heard of any demolition derby, here in Michigan, that happens during the icy months…???

  • avatar
    ihatetrees

    While I respect The Newspaper for bringing these stories to light, they cheapen themselves with their headline ‘Michigan Man With 0.00 BAC Sues Over DUI Charge’. Maybe I’ve had more math and logic than the average j-skooler, but the headline is fundamentally false.

    Mr Miller was changed with a zero-tolerance violation after a (initially false) 0.02 blood test. These zero-tolerance laws are idiotic. That’s where the real outrage should lie.

    Another Reason piece on zero-tolerance whack jobs:

    http://reason.com/archives/2007/10/30/prohibition-returns

  • avatar
    mpresley

    I’m guessing that there is more to this story than is told. The guy ran a stop sign because of road conditions? That tells me he was driving too fast for conditions, and not paying attention. I also suspect he was in one way or another an ass in front of the cop. Cops (not all, of course, but many) enjoy their state sanctioned power. Some are borderline criminal, themselves, and I always suspect a personality disorder when I see one. At the same time, people who get in trouble with cops are, more than likely, borderline marginal themselves. Every encounter I’ve had with a cop has been non-confrontational, and civil. Why go out of your way to provoke someone with a gun, and someone with an ability to make your life miserable? If you read the court order, it is pretty clear that either the cop or the driver (or both) are lying. Like I said, there’s likely more to this story than we’ll ever know.

    • 0 avatar
      porschespeed

      Here’s the point: You shouldn’t have to “respect” a cop. Be civil, as one should in all interpersonal scenarios. But, kissing the ring creates a dangerous dynamic.

      But we have reached a point where simply questioning a cop and exercising your rights will get you an ‘attitude adjustment’ or at least, arrested on some specious charge.

      This is America and regardless of the propaganda to fool the public, a police officer is a citizen. Just like you or me.

      The job is law enforcement. In return for a generally easy and risk-free job, coupled with generous pensions and the ability to retire after a mere 20 years, we have the right to expect they do that job to the highest of standards.

      I have no pity or ‘understanding’. The job is less complicated than managing a McDonalds. It is safer than working at a gas station or c-store. Or doing landscaping. Or fishing.

      The back story is irrelevant and abuse of authority of this ilk should be punished. Harshly.

      The apathetic among us have allowed the nudge-nudge, wink-wink to get out of hand to the point where LEOs have their own justice system.

      For those familiar with the Stanford Prison Experiment, or Abu Ghraib, this is hardly a surprising.

    • 0 avatar
      Mark MacInnis

      @Porschespeed

      “The job is law enforcement. In return for a generally easy and risk-free job, coupled with generous pensions and the ability to retire after a mere 20 years, we have the right to expect they do that job to the highest of standards.

      I have no pity or ‘understanding’. The job is less complicated than managing a McDonalds. It is safer than working at a gas station or c-store. Or doing landscaping. Or fishing.”

      As a family member of a law enforcement officer, I respectfully disagree…been a while since I’ve heard or read about a McDonald’s manager killed in the line of duty, puked on or abused by a drunk driver, cursed at for doing their job, knifed or punched when trying to break up a domestic disturbance, or any of the other dangerous and/or unpleasant things we ask and expect our Cops to do with no room for mistakes….

      Maybe in your particular neighborhood in Mayberry, Sherriff Andy and Deputy Fife have nothing more dangerous to do than chase down the taggers that deface Floyd’s Barber Shop. If so, count your blessings. The rest of us adults in the real world observe, respect, and appreciate the difficult job our law enforcement professionals try to do, never knowing if TODAY is the day their shift turns into a deadly and dangerous confrontation. Are there bad apples out there in law enforcement who shouldn’t be cops? Absolutely. Does this mean we should follow your advice and treat them all with disdain and suspicion and question their motives? I think we all know the answer to that one. Go sell condescending and cynical somewhere else, Porschespeed. We’ve got enough of that here already….

    • 0 avatar
      porschespeed

      As a family member of a law enforcement officer, I respectfully disagree…been a while since I’ve heard or read about a McDonald’s manager killed in the line of duty, puked on or abused by a drunk driver, cursed at for doing their job, knifed or punched when trying to break up a domestic disturbance, or any of the other dangerous and/or unpleasant things we ask and expect our Cops to do with no room for mistakes….

      The US Bureau of Labor Statistics can provide you with all the jobs that are far more dangerous (deaths per 100K workers) than being a cop. One is more likely to die as a construction worker than as a cop. You are far more likely to get a gun in your face as a 7-11 worker than you are as cop in South Central. Or East St. Louis.

      Getting cursed out for doing your job? Happens to pretty much everyone – except everyone doesn’t then get to Tase them, give them a tune-up, then arrest them for resisting.

      Puked on? I don’t know a single cop that has ever happened to. Ever. (Though I do know a couple who have had to hose out the back of their car.)

      Domestics? That does identify the one truly dangerous scenario in the job, statistically speaking. Still, more likely to die as a construction worker. Or a farmer.

      Maybe in your particular neighborhood in Mayberry, Sherriff Andy and Deputy Fife have nothing more dangerous to do than chase down the taggers that deface Floyd’s Barber Shop. If so, count your blessings. The rest of us adults in the real world observe, respect, and appreciate the difficult job our law enforcement professionals try to do, never knowing if TODAY is the day their shift turns into a deadly and dangerous confrontation.

      I do currently live in a rather peaceful neighborhood. I’ve also lived in plenty of marginal ones. The police exist to investigate crime and arrest criminals. Your protection isn’t their obligation, so says common sense, and the US Supreme court. NOBODY knows if they’re gonna die at work today, but I know that being a cop is not even close to dangerous compared to what many average Americans do everyday. Perpetuating this mythology of policing being dangerous is not only pandering, it is just plain inaccurate.

      http://www.bls.gov/iif/oshwc/cfoi/cftb0232.pdf

      For those who wish the data with a narrative and some pics…

      http://www.thedailybeast.com/blogs-and-stories/2010-04-08/the-20-most-dangerous-jobs/

      Are there bad apples out there in law enforcement who shouldn’t be cops? Absolutely. Does this mean we should follow your advice and treat them all with disdain and suspicion and question their motives? I think we all know the answer to that one. Go sell condescending and cynical somewhere else, Porschespeed. We’ve got enough of that here already….

      Sure there are really bad apples, the most egregious do get plucked. Eventually. The problem remains that the rest of the tree is systemically rotting as well.

      Condescending and cynical? If by cynical you mean that after having a maternal grandfather and uncle who were Grundy county deputies, a paternal grandfather who was Chicago PD (and one of those rare cops who died as a result of wounds received in the line of duty), and having dated a coupla lawyers, a judge, a few cops, in my life, as well as having friends across that entire community, do I believe I have a clue how the game really works? I think so.

      Condescending? If by that you mean that I believe that as a citizen one has the moral responsibility to be truly informed as to what our government does, and point it out when it oversteps, then I confess.

      What kind of citizen does not question the motives of any interaction with government? What kind of citizen just follows along without question?

      What we have had more than enough of is blind acceptance of propaganda.

      I just hope you remember your animated unconditional defense of LEOs the next time you’re driving a shiny car, late at night, far away from the protection conferred upon you by having a LEO in the family. When those lights come on because you have out of state plates, and the cop doesn’t much care for your kind, enjoy that busted tail-light.

      Pray it’s not a slapjack to your skull because you didn’t drop to the gravel quickly enough.

  • avatar
    wulfgar

    I have been in law enforcement for 25 and have never seen, nor heard, of a truly sober person refusing a breathalyzer. I am not saying it hasn’t happened – I have just never heard of it. As another noted, likely a number of things we will never know here. Quite a bit of fail on both sides, in my opinion.

    • 0 avatar
      porschespeed

      Anybody who knows how inaccurate they are will never submit to a breathalyzer. It’s been known since the mid 80s that all breathalyzers are highly inaccurate – people’s body chemistry varies widely and the machines are in no way able to discern those variations, nor compensate for them.

      Field unit, station unit, they are ALL inaccurate.

      The only accurate method for determining BAC we have at this time is blood sample.

      Sort of like Luminol. There’s dozens of common chemicals that will yield a false positive. Anybody who thinks it’s accurate evidence that blood was somewhere is plain lying, or so ill-informed as to not be qualified to use the stuff.

    • 0 avatar
      ihatetrees

      The only accurate method for determining BAC we have at this time is blood sample.

      I’m just a skeptical of the government as the next person, but they are NOT that incompetent. A Breathalyzer may not be as accurate as a blood test, but they are close.

      It would be a fairly simple experiment to have several people have a few drinks and compare results between a blood test and a breath tester. The fact that no criminal apologiststrial lawyers have done so with an independent lab tells me that breathalyzer skepticism is misplaced.

    • 0 avatar
      porschespeed

      ihatetrees,

      I’m not making this stuff up. Really. Google “breathalyzer inaccuracies” or something of that ilk.

      You should have no problem finding many reputable scientific studies that explain how the breathalyzer works, and the myriad of body chemistry issues that vary from person to person. As well as how those variances produce results that are either wildly inaccurate, or just dead flat false positives.

      Ketones my friend, ketones…

      Were it as accurate as a blood test, I’d be all for it.

    • 0 avatar
      Mark MacInnis

      Wolfgar…thank you for your service. Porschespeed….sounds like you speak from long experience in dealing with the Police? “Everyone knows” is usually the last bastion of a losing argument…..but here’s a couple of obvious ones for you…
      “Everyone knows” the best way to avoid a confrontation with a police officer is to live life in such a way as to not give them the need to be interested in you. “Everyone knows” the way to avoid being in the position of having your future freedom and livelihood placed in jeopardy by a breathalyzer test of debatable accuracy is to simply not ever get behind a wheel after having more than one drink….the situation described in the article happened. Sounds like it is being handled reasonably well in the courts. So what are you so angry about?

    • 0 avatar
      porschespeed

      Wolfgar…thank you for your service. Porschespeed….sounds like you speak from long experience in dealing with the Police? “Everyone knows” is usually the last bastion of a losing argument…..but here’s a couple of obvious ones for you…
      “Everyone knows” the best way to avoid a confrontation with a police officer is to live life in such a way as to not give them the need to be interested in you. “Everyone knows” the way to avoid being in the position of having your future freedom and livelihood placed in jeopardy by a breathalyzer test of debatable accuracy is to simply not ever get behind a wheel after having more than one drink….the situation described in the article happened. Sounds like it is being handled reasonably well in the courts. So what are you so angry about?

      I never used the phrase “everyone knows”, you, however, did.

      I should live my life so as not to give the “need to be interested in me?” Not sure where you’re from, but you landed in America. There’s nothing illegal about being simply being on the road at 3 am. But it can get a bored cop making his production numbers to stop you. No probable cause, but he’s gonna make his numbers.

      The case in question has had every valid scientific test giving this guy a 0.00 BAC and no narcotics. So tell me how you somehow “know” that this guy had anything to drink, which then turns this into something he would have had some culpability for?

      There’s no debating breathalyzers are inaccurate anymore than there is debating that the Earth is (roughly) a sphere. The science has been around for 25 years, a good DUI attorney, or anyone who does any tacit research can find it. Any good cop, or ER doctor will also tell you the same thing.

      That a clearly innocent man is still involved in the court system over a travesty such as this is the issue. Which, by the way, is probably cost him more than a few dollars.

      Angry? As an American citizen it is my responsibility to hold my government to account. Someone has to.

  • avatar
    jacksonbart

    If there was a red light camera on the area he was pulled over in I am sure it would have solved the conflict.

  • avatar
    silverkris

    One can argue about the inaccuracy of breathalyzers, but the fact is many state laws stipulate that refusing breathalyzer tests can subject a motorist to penalties, particularly if they’ve been convicted of previous DUI offenses. Ignore this at your risk.

  • avatar
    obbop

    Looking at a “larger picture” I fear that too many law enforcement bureaucracies have been trained and encouraged to become a “distancing force” to isolate ruling elites from the masses of commoners below them.

    Obey authority no matter what, even if that authority is not worthy of being obeyed by a supposedly free citizenry.

    Fear the power held over you.

    Obey.

    Do not question.

    Obey.

    Fear the power wielded by those wanting to defend the status quo.

    Free thinkers no longer wanted within the USA; even those civil-minded and a benefit to the society and the common good.

    It is more important to obey.

    Follow the “party line.”

    Simply obey.

    It is a new era in the USA and dissidence from what our ruling class wants and desires is not allowed or tolerated.

    OBEY without question for if you are not for the ruling class and their minions you surely must be against them.

  • avatar
    Jim K

    +1000% to everything Porschespeed has said.

    I’ve known quite a number of excellent police officers in my time, but as a whole I believe they abusive, power hungry bullies whose authority, badges and guns give them the feelings they can do whatever they want without recourse.

    I always thought they had to obey the same laws we do? The majority of them believe they are above the law.

    I have no idea how we reverse this trend…..but the escalating police state of this country worries me for our future.

    • 0 avatar
      porschespeed

      Thanks Jim,

      ‘Positions of power’ do tend to disproportionally attract those with issues – but, that does not make all cops bad people. But any bad system will corrupt most, and eventually run out those that they can’t corrupt.

      I’m with you, I’m not quite sure what the solution is. But I do know that acceptance is not the answer.

      I am pretty damn sure about the cause though. With nomenclature of “war on drugs/crime/dwi/whatever” we have suddenly turned police into soldiers.

      Between that and Gates spurring the development of paramilitary policing it looks like you’re kicking ass and taking names. Sadly, it doesn’t produce long-term positive results.

      For those who didn’t catch it in school, or just have forgotten, please go back and checkout the Stanford Prison Experiment.

      The ‘above the law’ part is truly the most troubling. We all know about professional courtesy, but when a cop is finally taken down for an offense that would land an average white guy in prison for 10 years, the judge will often give them 5 years unsupervised probation.


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