November 30, 2023

ALLEGAN COUNTY — The Michigan Court of Appeals in a split decision reversed a man’s operating while intoxicated conviction from Allegan County’s 48th Circuit Court.

The COA reversed the conviction for Benjamin Scott Urbanski in a 2-1 decision, issuing an unpublished opinion Aug. 31. The case is remanded to Allegan County for additional proceedings.

Urbanski was originally sentenced for operating while intoxicated after a traffic stop in June 2019. He was sentenced as a second offense habitual offender and charged with third-degree fleeing and eluding — but the jury found him not guilty of that charge.

During the traffic stop, police suspected Urbanski of drunk driving. He submitted to blood testing two hours later, according to the COA opinion. Blood testing found his BAC was 0.064 percent, which is below the 0.08 percent legal limit.

A driver’s BAC is presumed to be the same at the time of the testing as when he or she operated the vehicle, according to the opinion. There was no evidence presented at trial to rebut that presumption.

And yet, the opinion said, the prosecutor urged the jury during closing arguments to find that Urbanski’s BAC exceeded 0.08 percent at the time he drove. The court didn’t instruct the jury to presume the defendant’s BAC was the same when he drove as when he tested.

It cannot be ascertained from the record whether the jury impermissibly deduced that Urbanski’s BAC was higher than 0.08 percent when he drove.

COA Judges Allie Greenleaf Maldonado and Michelle M. Rick, in their majority opinion, reversed Urbanski’s conviction and sentence. They wrote Urbanski’s defense counsel “failed to object to the prosecutor’s improper argument, failed to object to the court’s erroneous instructions and failed to request an instruction regarding the presumption that (Urbanski’s) BAC was only 0.064 when he was driving.”

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Maldonado and Rick also said the circuit court erred in sentencing Urbanski as a habitual offender because an OWI is a misdemeanor. If Urbanski is retried and convicted, the circuit court cannot sentence him as a habitual offender.

In her dissenting opinion, Judge Elizabeth L. Gleicher affirmed Urbanski’s conviction. Gleicher agreed the prosecution produced insufficient evidence that Urbanski’s BAC was 0.08 percent and the defense counsel performed ineffectively by not objecting to the jury instruction.

However, Gleicher said, she parted ways with the majority regarding prejudice. She believed there was sufficient evidence to support the conviction “on the alternative theory that he drove while under the influence of alcoholic liquor.” Gleicher said no probability exists that the defense counsel’s errors would’ve led to a different result.

— Contact reporter Evan Sasiela at Follow him on Twitter @SalsaEvan.

This article originally appeared on The Holland Sentinel: COA reverses drunk driving conviction in Allegan County

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