Articles Posted in DUI Defense

A recent news report outlines some of the circumstances surrounding the arrest of Michigan Democratic state Rep. Mary Cavanagh of Redford, and as true with many media outlet stories it seeks more shock than substance.  To help elaborate on substance, and dispel some myths and misunderstandings about drunk driving laws, this article addresses the following three topic:

  1. A second DUI arrest does not necessarily mean enhanced DUI penalties, driver license sanctions or conviction,
  2. Being unable to stand on one leg is only a part of standard field sobriety tests, and;

Why Does Michigan’s Law of Implied Consent Exist?

The first DUI laws went in the books all the way back in the 1950’s when cars where just starting to become very common. Back then, there were no breath tests, so that law enforcement tool in a DUI investigation was not available to police officers. That only happened ten years later, in the 1960s. Technology has improved a lot since then, and the law has changed too, because the law of implied consent is younger than the first breath tests. Back in the “olden days” people could refuse a breath test in a drunk driving case without an possible sanction. That is no longer true, and today, there are serious consequences if you unreasonably refuse to to a breath test.

The Michigan Law of Implied Consent

Most of the time if you are pleading guilty it is because your lawyer has successfully engaged in plea bargaining with the prosecutor. Consequently, preparation for court when pleading guilty really begins to take place almost as soon as you first hire your lawyer. Therefore, the total preparation will take place over several weeks or months, and sometimes even years before you are set to appear in court. At a minimum the following things should have occurred before you plead guilty.

  1. You’ve reviewed all the discovery with your attorney.
  2. You’ve discussed possible defenses with your attorney.

A drunk driving causing death case always involves allegations that a person was driving a motor vehicle, while intoxicated, and the operation of the motor vehicle caused the death of another. As previously described, proving the “vehicle caused the death of another” involves two kinds of causation. Factual causation and proximate causation.

Of the two kinds of causation, proximate causation is the more difficult one to prove. It is also the more difficult one to understand and this is particularly true for criminal defense lawyers and prosecutors who are far less adept at utilizing these concepts than are civil lawyers handling negligence case. Also adding to the difficulty inherent in proximate causation because it is variously applied depending on the kind of case being litigated. In negligence law, proximate cause is often used to limit the otherwise limitless culpability that would inure using only the but-for test. Proximate cause is also wrapped around the concept of foreseeability.

Proximate Cause is all About Foreseeability

In a criminal case, after your arrest but before your conviction or acquittal, you will be on bond. There are several mandatory and many discretionary terms and conditions of bond, and these have been previously discussed. A show cause is what happens when someone does something on bond contrary to what’s been ordered.

The most common allegations of a bond violation that we see at the Barone Defense Firm related to alcohol and drug testing. Often, a client will miss a drug or alcohol test, which is the most common alleged bond violation, followed by a positive drug or alcohol test.

A bond violation is a serious matter because it is considered a contempt of court. After the court receives notice from the monitoring agency that there’s been an alleged violation, the court will issue a show cause order. The purpose of a show cause order is to require you to appear in court to show cause why you should not be held in contempt of court for violating a court order. Because the judge has ordered you to do something (test according to a set schedule), and it is alleged that you violated that order, unless you have a defense to the allegations, you will be found in contempt of court. See, e.g.,  People v Mysliwiec, 315 Mich App 414, 417 (2016).

The top rated Michigan Drunk Driving Lawyers at the Barone Defense Firm have handled dozens of OWI cases involving auto accidents where a death has occurred. In many of these cases the question of causation is an important one. The reason is without causation there can be no “causing death.” However, the issue of causation is not at all straightforward.

To establish causation in an OWI causing death case, the prosecutor must prove, beyond a reasonable doubt, both factual and proximate causation. See, e.g., People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774, (2005). Even though drunk driving causing death is a criminal matter, both factual and proximate causation are civil concepts and come from negligence law.  This is why civil cases can be consulted to better understand these concepts.

What is Factual Causation?

Being charged with a crime is most certainly one of the most traumatic events you can experience, and then attempting to retain the right attorney or law firm might also feel like a daunting task. The Criminal Defense Trial Attorneys at the Barone Defense Firm understand that difficulty and that trauma, therefore we want to address some important factors in hiring the right trial attorney for your case.

Trial is an Endangered Species

The National Association of Criminal Defense Lawyers (NACDL) recently published a report that 3% of all criminal cases in State and Federal Court are resolved through Trial compared to 20% of cases from 30 years ago. A related article lists that some of the reasons for this decrease include fear of what is known as a trial penalty or trial tax, meaning a worse sentence after a loss at trial. This is balanced against the fact that a lesser sentence can be arranged as part of a plea agreements. Certainly, another reason is the lack of ability or lack of experience of the trial attorney themselves.  The very fact fewer cases reach trial every year is reason enough to seek an attorney that does not have significant trial experience, and who will not be afraid to go to trial.

Michigan drivers are sometimes stopped under suspicion of intoxicated driving after a concerned citizen calls 911. The validity of these traffic stops are highly fact-specific, and depending on exactly what is reported to 911, the stop may or may not be sufficient to support a DUI conviction.

One case in Michigan where the DUI traffic stop was deemed to be invalid, and the drunk driving case dismissed, is People v. Pagano, 507 Mich. 26, 967 N.W.2d 590 (2021). In this intoxicated driving case the Michigan Supreme Court specifically found that the traffic stop based only on the 911 was insufficient to establish a reasonable suspicion that the driver was drunk. Because the stop was therefore legally invalid, the Court had no other choice but to dismiss the case outright.

In Pagano, the 911 caller reported that they had observed a woman driving while yelling at her kids and generally behaving in an obnoxious manner. While the caller indicated that they believed the driver was intoxicated, no other information was provided in support of this contention. However, the caller did provide much identifying information relative to the car being driven, including the license plate number, the make model and color of the car, and the direction the vehicle was traveling.

The Michigan Eastern District Court has partially ruled in favor of a Michigan resident, finding that he does have a civil rights cause of action against the Michigan State Police (MSP) for recklessly allowing breath test evidence from faulty instruments to be used in prosecuting him. Other possible civil rights violations relating the MSP breath test program were also found. The lawsuit against Intoximeter, the corporation that services the breath test instrument used by the MSP, was however dismissed.

This case arose out of an ongoing fraud investigation in the MSP DUI breath test program the began with the discovery by a defense attorney  of some questionable 120-day inspection reports relative to his client’s DataMaster DMT breath test result. The DataMaster DMT (DMT) is an infrared evidential breath alcohol test instrument used in the prosecution of drunk driving cases throughout the State.  According to Michigan law and administrative rules each DMT instrument is to be inspected by a “class four” certified technician every 120 days. These 120-day inspections are intended to ensure that the instruments are correctly calibrated and are in good working order.

These 120-day inspections are in addition to weekly self-checks the device conducts automatically using a dry-gas simulator solution. Certain error codes can be generated during these tests that may cause the instrument to be taken out of service. If that happens the instruments can only be brought back into service after further inspection by a class four operator. Around the time of the discovery of the questionable records, the Michigan State Police (“MSP”) had begun to uncover their own cadre of suspect records.

As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.

Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.

However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]

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