Articles Posted in DUI Defense

If you were arrested for DUI in Michigan, then you were likely given either a breath or blood test. The purpose of this test is to determine if you had a bodily alcohol level at or above Michigan’s legal limit of .08. Because a breath test above the legal limit is all the prosecutor needs to prove your guilt, a successful trial defense requires a successful breath test defense.

Many lawyers see DUI cases with breath tests as not defensible. While there is little question that juries tend to give breath test results a great deal of “weight” in deciding their verdicts, all breath test cases are defensible at trial. For example, the Michigan DUI lawyers at the Barone Defense Firm have successfully used all eleven of the following defenses:

  1. Breath Test Operator Mistakes – the typical DUI officer in Michigan has only attended a single one-day course after which they become certified class II operators of the breath test machine, in Michigan called the DataMaster DMT. Only a couple hours of this one-day training actually covers the administration of the breath test. The rest of the training relates to things like how the machine works, how to fill out paperwork and other related administrative tasks and functions. There is a written test given after the training, and officers only need to score a 70% to pass.  If they don’t pass a second time, they can retake the training, after which they get two more tries. Basically, this means everyone passes. Making matters worse, after this “training” there is almost no oversight in the field to confirm that the officer is properly administering the test, and the training does not include a practicum. Because the training is so inadequate, officers often make mistakes in administering the breath test, mistakes they may be totally unaware they are making. Some of these mistakes can lead to false and unreliable test results. These mistakes can be uncovered through a careful review of the breath test being administered and/or through cross-examination at trial.

According to science, breath alcohol tests in DUI cases can be as much as 230 percent higher than corresponding blood tests. Because blood transports consumed beverage alcohol from the stomach to the brain where it can reach sufficient levels to cause impairment, a person’s blood alcohol level is what really matters. Therefore, in the context of a DUI case, breath alcohol only relevant  to the extent that it accurately reflects blood alcohol content. This is true because breath alcohol does not have the capacity to cause intoxication.

To understand just how significant this fact is, consider a hypothetical case where a driver’s breath test comes back at .18. This would likely result in the driver being charged with an enhanced DUI, or what Michigan calls “super drunk driving,” a charge applicable to drivers with a BAC of .17 or above. While this breath test evidence might look bad for the driver, it is well within the realm of scientific possibility that this same driver has corresponding or simultaneous blood alcohol level of .063, or well below the legal limit of .08. Understanding why this is so, and why breath testing can be so pernicious, requires a basic understanding of alcohol metabolism.

Pharmacokinetics and the Absorption, Distribution and Elimination of Alcohol

Attorney and Practice Magazine recently invited Patrick Barone “membership” as one of Michigan’s Top 10 Attorneys. The bar to entry?  Payment of either $295 for 2020, $295 for 2021 or $590 for both years. Subsequent to payment, Mr. Barone would have available to him a host of impressive materials, from a nice looking website badge to a all plaque to be proudly displayed on the office wall.

Lawyer Ratings Have Become Big Business

In the last decade lawyer ratings have become big business. Most of them consist of a few lawyers getting together and deciding they can get rich by offering paid-for credentials to other lawyers. Several times per month at the criminal defense lawyers at the Barone Defense Firm receive solicitations to be listed on this “top 10 list,” or that “nation’s best list,” usually with the only bar to entry a small payment of usually about $300-$500.

The Barone Defense Firm is pleased to announce that the 2020 Edition of Patrick Barone’s Defending Drinking Drivers is now available from the publisher, Amazon, and wherever fine books are sold. Known as “revision 36,” the current Edition contains many new sections and model defense motions.

Regarding the defense of a DUI with a blood test, the 2020 update contains sample cross-examination of the doctor, nurse, technician, or phlebotomist.  This model cross-examination includes sample questions relative to contamination and suggestions for how to approach and perhaps discredit the creditably of this important but often overlooked prosecution witness. Also, in Chapter Six, Trial, Mr. Barone sets forth a new way of approaching voir dire and the 2020 update also contains a samle motion requesting attorney conducted voir dire. Also, in his revision of Chapter 6, Mr. Barone provides a unique and compelling explanation for why seating arrangements are an important element of trial and why the court should consider allowing the defendant to sit next to the jury rather than always cede this seat to prosecutor by default.  A sample motion for requesting that the defendant be provided with the “best” seat is also included in this 2020 update.

Other updates in revision 36 include a 2019 case law update.  For example, Mr. Barone provides an evaluation of new case law regarding when an added charge of resisting and obstructing is appropriate after a DUI accused refuses to submit to a blood draw pursuant to warrant and when and why such blood test warrants might fail judicial muster.  Also, why being placed into a patrol vehicle is considered custody for Miranda purposes, how an arrest occurred when police took keys, and why it may be error for a prosecutor to comment on a defendant’s refusal to take a blood test.

With new cases of Covid-19 continuing to escalate in Michigan, on July 10, 2020, Governor Whitmer responded with Executive Order 2020-147, which indicates that “[A]ny individual who leaves their home or place of residence must wear a face covering over their nose and mouth.” The Order further provides that masks must be worn in any indoor public space and on all public transportation. Also, face masks are now mandatory when you are a passenger on any ride-sharing vehicle, such as Lyft or Uber, or in any private car when being used as “hired transportation.” Will this mandatory Covid-19 face mask requirement have any impact on law enforcement practices? Specifically, will a lack of a face mask by driver or a vehicle’s occupants lead to probable cause to stop a motor vehicle?

To answer this interesting legal question, we begin by noting that the Executive Order does make a failure to comply a crime.  Specifically, the order provides that a failure to wear a required face mask is a misdemeanor, though no jail time may be imposed for its willful violation. An open question in all this is how and even whether the police in the State of Michigan will enforce this Order?

As it relates to the existing law governing when the police may stop a moving vehicle, the general rule is that they must have “probable cause.”  However, there are many circumstances when the police may lawfully stop you, including and perhaps most commonly, for a violation the traffic code such as speeding. In 2014, the United States Supreme Court, in the Navarette case indicated that a vehicle may be stopped based on an anonymous 911 call provided the caller provides enough information and detail to have the indica of reliability and therefore enough to give rise to a reasonable suspicion that criminal activity was afoot.

There are 32 new drug recognition “experts” (DRE) qualified to make DUI arrests in Michigan. Only a trained DRE may administer the saliva tests in a DRE DUI investigation. Including this new crop of  32 DREs, there are currently 157 a total of DRE trained officers in Michigan.

The use of “oral fluid” drug tests began as a pilot program in Michigan in late 2017 and lasted one year. Initially, the devices were only used in DUI investigations in five Michigan counties, including Berrien, Delta, Kent, St. Clair, and Washtenaw Counties. During this time a little more than 7 drivers per month were tested.  No information is available relative to number of Michigan DUI arrests that followed.

The DRE officers in this pilot program used a device called a SoToxa Mobile Test System.  This device tests a DUI suspect’s saliva for the presence of amphetamines, benzodiazepines, cannabis (delta 9 THC), cocaine, methamphetamines, and opiates. As such it is only used to give a yes/no answer to the question of whether a drug is present. The test does not give a number, or a quantitative drug level. Therefore, it cannot indicate if a driver is actually DUI.

Michigan’s Attorney General Dana Nessel recently announced that two technicians, formerly responsible for the maintenance and calibration of hundreds of breath testing devices used throughout Michigan, have been charged with multiple felony counts for allegedly falsifying records.  Their names are Andrew Clark and David John.

Mr. Clark and Mr. John were both “Class IV” operators of the DMT. Class IV is the highest of the four operator classes, and this level of certification allows the operator to perform 120-day inspections. During the 120-inspection the operator checks for linearity and if problems arise, it is possible for the inspector to re-calibrate the DMT. If done improperly, this could result in inaccurate breath test results, wrongful DUI arrests and wrongful DUI convictions. The criminal cases against them allege that Mr. Clark and Mr. John committed forgery in producing false documents indicating, among other things, that they had performed 120-day inspections when none had occurred.

The breath test device used to test drivers arrested for DUI in Michigan is called the DataMaster DMT. Michigan currently has more than 200 DMTs in service, and all of them are serviced by 3 technicians. The State was essentially divided in half north to south, creating an Eastern and Western side each of which was handled by a separate technician.  The northern part of the State, including the upper peninsula, was handled by a third operator.

The breath test is the most common chemical test given to drivers in Michigan arrested for DUI. The device used by police throughout the State is the DataMaster DMT.  Like all breath testing devices, this instrument uses infrared spectroscopy to measure the amount of beverage alcohol in a driver’s breath.  To assure accuracy, however, like all measuring instruments, the DMT must be properly calibrated and maintained.  Otherwise, drivers can be wrongfully accused of driving drunk, and worse than that, wrongfully convicted of drunk driving.

To assure this breath test accuracy, the Michigan State Police, who are charged with the responsibility of maintaining nearly all of the State’s DMTs, has promulgated administrative rules for breath testing.  These rules provide that each DMT must undergo a weekly “dry gas” calibration check. These dry gas calibration checks are run automatically.  In addition to this, every 120-days a Class IV operator must inspect the device. During this 120-day inspection necessary repairs can be made, and the breath testing device can be re-calibrated.

The 120-day Inspections

If you get caught driving drunk in Kent County Michigan the police officer will ask you for a breath blood or urine sample. Most of the time the officer will pick breath, and the breath test device used in Michigan DUI enforcement is called the DMT Datamaster. The breath alcohol level reported by the DMT is an estimate of the amount of alcohol in your body. The majority of the State’s DMTs are maintained by the Michigan State Police.

A recent letter in a Kent County DUI case indicates as follows:

Due to what has been described to us as a “scheduling error”, none of the accuracy check tests between April 1 and May 2 were recorded into the Accuracy Check Log at the department.  Therefore, there are no accuracy logs regarding the DMT instruments at the Sheriff’s Department during this period, and the Kent County Sheriff’s Department will not be able to have anyone testify in court to the results of these accuracy checks for this time frame.

For many people, finding a top Michigan DUI lawyer can be a confusing and difficult task. A task made no easier by the multitude of available choices. For example, a Google search for “top Michigan DUI Lawyer” returns over ten million hits. When including lawyer directories such as Justia and AVVO, there are many dozens of so-called top Michigan DUI lawyers on the first page alone. How is it possible to pick the right lawyer?

To begin with, there is no substitute for a professional referral. If you have used a lawyer in the past for something like drafting a will or the sale or purchase or your home, then you might think about contacting them for a referral. Even though you might be embarrassed, remember that everything you discuss with your lawyer will be held in strict confidence. Once your referral source has provided you with one or more names, you can then cross-check them by looking on Google. The DUI lawyers at the Barone Defense Firm obtain most of their clients from referrals.

If you’re not able to obtain a professional referral, then after doing your initial Google search, and narrowing it down to a few names, be sure to cross-check the lawyer’s names on the various lawyer review sites. The most reliable lawyer review site is AVVO, and this is partly because they carefully inspect all reviews before they are posted to confirm they are legitimate.  Also, AVVO allows anonymous lawyer reviews, which increases the likelihood that a DUI client will post a review for their lawyer. However, AVVO reviews are only anonymous on one side. A person must provide identifying information to AVVO before they are allowed to post a review.  This way AVVO can vet the review and determine if the person was a “real” client before they will allow the post.

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