Articles Posted in DUI Defense

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.

With marijuana use on the rise in Michigan more and more drivers are found to have marijuana in their system or to even be intoxicated from using marijuana containing products. This is exactly what happened in a causing death case recently decided by the Michigan Court of Appeals. The name of the case is People v. Baase.  In this case, the driver was not intoxicated but was he was driving on a suspended license.  The victim on the other hand had THC in her system.  The defense attorney argued that the accident would not have happened but-for the victim’s diminished capacity to “react to the world around her.”

The Michigan Court of Appeals did not agree with the defense attorney’s arguments and found that the victim’s THC was not relevant.  It is not clear from the opinion if the victim had used recreational or medical marijuana. And while this case did not involve an intoxicated driver, the ruling would likely have been the same whether a DUI driver who caused death or serious injury was under the influence of alcohol, marijuana or both.

What were the Facts of this Suspended License Causing Death Case?

Supreme Court to Rule: Can Unconscious Driver Consent to Blood Draw?

On January 11th the United States Supreme Court indicated that they would hear a case arising out of the state of Wisconsin involving the constitutionality of a warrantless blood draw from an unconscious person. The name of the case is Mitchell v. Wisconsin and the State Court’s opinion is found at State v. Mitchell, 383 Wis.2d 192, 914 N.W.2d 151, 2018 WI 84 (Sup. Ct. Wisc., 2018).  This state court opinion contains the following facts and analysis; first, the defendant drank to the point of passing out, meaning he was voluntarily rendered unconscious. A roadside breath test suggested that the defendant had a breath alcohol concentration of 0.24.  The blood test came back slightly lower at 0.222. After the Wisconsin Supreme Court upheld the warrantless blood test, the defendant asked the United States Supreme Court (USSC) to hear the case.

In analyzing if the warrantless blood draw from the unconscious person was constitutionally permissible, the Wisconsin Supreme Court reviewed both prior USSC cases of McNeely and Birchfield and focused on the provisions of the state’s implied consent law. The state court found that the search was permissible because the defendant’s self-induced physical condition did not render Wisconsin’s Implied Consent presumption unreasonable under the totality of circumstances.  This was based on four factors: (1) by exercising the privilege of driving on Wisconsin highways, the defendant’s conduct demonstrated consent to provide breath, blood or urine samples if law enforcement had probable cause to believe that he had operated his vehicle while intoxicated, (2) the arresting officer had probable cause to arrest the defendant for driving while intoxicated, (3) the defendant  chose to drink sufficient alcohol to produce unconsciousness, and; (4) by his conduct, the defendant forfeited the statutory opportunity to assert that he had “withdrawn consent” he previously gave. This opinion suggests that had the driver, prior to becoming unconscious, manifested any intent to withdraw his consent, then the outcome would have been different.

By deciding to hear the case, the USSC has signaled their intention to rule on the constitutionality of the Wisconsin decision/law. This is interesting because there is a split of authority on this issue at the State Court level. In fact, Wisconsin is among 29 states that allow warrantless blood draws from persons who are unconscious.  The remaining states have either not ruled on the issue, or do not allow them.

DUI Defendant’s Constitutional Right to Confront Chemical Test Remains Clear as Mud

In the past decade, the United States Supreme Court has issued several opinions addressing a DUI defendant’s right to confront a breath or blood test used by the prosecution to prove intoxication at trial. In legal terms, the word “confront” essentially means cross-examine. An example of this confrontation right in the context of a drunk driving case would be the right to cross-examine the police officer who administered a breath test, or the forensic analyst who prepared a blood sample for testing.  This issue came before the USSC again in 2018.  The name of the case is Stuart v. Alabama.  Unfortunately, the USSC declined the opportunity to clarify this issue, and by order dated November 19, 2018, denied the defendant’s petition for review (certiorari).

However, there was a dissenting opinion written by Justice Gorsuch and joined by Justice Sotomayor.  This opinion contains some interesting information.  Perhaps picking up the cross-examination baton laid down by Justice Scalia, Justice Gorsuch refers to cross-examination as “the greatest legal engine ever invented for the discovery of truth.”  Furthermore, that:

Cross-examination is an essential guard against such mischief and mistake and the risk of false convictions.  Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.

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