By GARRETT NEESE

gneese@mininggazette.com

BARAGA — Two defense motions in the Dawaun Johnson case were denied in opinions and orders issued last week in Baraga County Circuit Court.

Johnson, 22, of Highland Park, Illinois is slated to go to trial Nov. 1 on charges related to a semi crash into the Holiday station in L’Anse that killed a Baraga County resident last October. He was driving for the CR England company at the time of the incident.

Johnson sought to quash the bindover of the case from 97th District Court, while also getting one of the counts — operating while intoxicated causing serious injury — dismissed. He also sought to exclude evidence seized by police after field sobriety tests.

The serious injury charge relates to those suffered by Jessica Webb, who was working as a clerk at the Holiday station when it was hit by the semi. At a hearing in July, Johnson’s attorney, Matthew DeForge, argued her injuries don’t meet the bar set by the state’s definition of the serious injury, which gives examples such as loss of an eye or a comatose state that lasts for more than three days.

During the preliminary hearing in 97th District Court, Webb and her doctor, Todd Ingram said she had suffered shoulder and back pain from being hit by debris, as well as post-traumatic stress disorder. Ingram said Webb had reported issues including flashbacks, nightmares, and issues with concentration.

To reverse the bindover of Johnson from the district court, Bulleit would need to find there had been an abuse of discretion, Judge Brittany Bulleit wrote. She pointed to multiple definitions offered in previous state rulings including “a decision that is outside the range of principled outcomes.”

The district court ruling was within that range, she said. Bulleit relied on a standard from a Michigan Court of Appeals ruling that probable cause rulings would stand in place unless “wholly unjustified by the record.”

Instead, the district court made a reasoned argument based on Webb and Ingram’s testimony.

“Specifically, the lower court cited to testimony regarding objective testing on mental health issues and impacts on Ms. Webb’s general ability to lead a normal life, when making its findings,” she said. “Further, as cited above, both Ms. Webb and Dr. Ingram testified regarding mental and physical impacts from the incident, all of which was under consideration by the lower court. Thus, the court does not believe that the decision of the lower court violated fact or logic, nor did it fall outside a range of principled outcomes.”

Johnson also sought to exclude evidence seized after a request for field sobriety tests. Johnson’s request brought up three issues: whether the police had enough reason to suspect Johnson was drunk before making him perform field sobriety tests; whether they had probable cause to request a preliminary breath test, and whether Johnson’s blood had been properly collected at the hospital.

On each point, the answer was yes, Bulleit said. Trooper Rachel Roose testified they had smelled intoxicants on Johnson while interviewing him, while Trooper Tobin Wheeler saw him miss the door handle while entering the vehicle for questioning, according to their testimony. Roose told Johnson at the end of their interview he would undergo testing and a preliminary breath test.

During the July hearing, DeForge said there had not been sufficient cause for tests at the time. He brought up previous cases where Roose had responded to an OWI, in which she’d mentioned smelling alcohol on someone’s breath to them before they took a blood-alcohol test. Roose said in July she had avoided doing so in this case because of the seriousness of the case and to avoid agitating Johnson.

The odor alone would have been reason to request the tests under Michigan law, Bulleit said. In addition, both officers conferred after interviewing Johnson in the vehicle and determined the field test was appropriate, based also on the crash itself and Johnson’s stumbling when entering the vehicle.

“Therefore, had Trooper Roose not made the request at the moment she did, based upon Trooper Wheeler’s testimony, the request would still have been made after the two conferred, and would hold a sufficient basis for reasonable suspicion,” Bulleit said.

Reasonable cause also existed for the PBT, by that time including the troopers’ initial observations, the interview and the results of the field sobriety test, Bulleit said.

Roose performed the preliminary breath test on Johnson, but failed to read him his rights before conducting it, Bulleit said. However, the motion devoted most of its argument to lack of reasonable cause, and cited no law regarding the mention of rights. Because of that, Bulleit said, she did not rule on that specific part of the issue, only the probable cause argument.

When Johnson was taken to Baraga County Memorial Hospital, Juan Gonzales, a medical laboratory technologist working there, drew Johnson’s blood. Bulleit cited case law stating he did not need to be specifically supervised or directed to take blood. He was designated to draw blood in general; there was also another doctor present in the ER, though not with Johnson during the actual draw, she said.

“Overall, little new evidence was presented to the Court that was not already considered by the lower court judge,” Bulleit said. “Further, the lower court judge was able to witness the bulk of the testimony. Therefore, while the Court is not bound by the lower court’s opinion, the Court supports the opinion, and rules in the same manner on all issues.”

Johnson faces two felony charges — operating while intoxicated causing death and operating while intoxicated – causing serious injury — and a misdemeanor charge of having an open alcohol container in a vehicle. He could be sentenced to up to 15 years in prison.

Johnson is scheduled to go to trial starting Nov. 1.