Articles Posted in DUI Defense

Police in Michigan continue to use unreliable chemical and field sobriety tests when investigating drivers suspected of using cannabis. This can lead to sober cannabis users being wrongfully convicted of intoxicated driving. This is because the tools used for decades to investigate drunk driving cases simply do not translate well to the investigation of drivers believed to be under the influence of marijuana.

These conclusions are drawn from a 2020 research study conducted by the National Institute of Justice. This federally funded research study resulted in the production of a final written overview which was subsequently submitted to the U.S. Department of Justice. The title of the overview is Differences in Cannabis Impairment and its Measurement Due to Route of Administration. (Hereafter “NIJ Study”).

What did the NIJ Study Conclude?

The United States Supreme Court has recently ruled that the community caretaker exception to the search warrant requirement does not apply to a person’s home. The name of the case is Caniglia v. Strom, and in a unanimous opinion the Court found that guns seized by the police after entering a home without a warrant were not admissible in evidence on the basis of the community caretaker exception.

The Caniglia case involved a married couple who had been arguing in their residence. During the fight the husband grabbed his gun and told his wife to shoot him.  The wife took possession of the gun, and put it away, hiding the ammunition. She later left the house to stay at a hotel, and because she was worried that her husband might suicide, she called the police. The wife then met the police back at their home where the husband had remained.  The police instructed the wife to stay in the car as they interviewed the husband.

The police believed that the husband posed a danger to himself and called for an ambulance to take him for a psychiatric evaluation.  He claimed the police agreed that if he went to the hospital, they would not take his guns whereas the police claimed he consented to a search of his home.  The wife, believing the officers that her husband had consented, then guided the police to where the guns were inside the home, and the police took possession of them.  No arrest was made, and no charges were brought against the husband.  The guns were eventually returned, but the Caniglia’s filed a lawsuit, nevertheless, claiming a violation of Section 1983 under the Second, Fourth and Fourteenth Amendments. In the lawsuit the Caniglia’s sought money damages as well as injunctive and declaratory relief.

It can be difficult for a marijuana user to subjectively assess their level of impairment. Even worse, there is no way for a marijuana user to objectively evaluate their level impairment. So, after consuming marijuana medically or recreationally, how can a marijuana user make a safe decision about driving?

Before we get to that question, let’s do a quick review of Michigan’s OWI laws as it relates to drugs. In Michigan, you can be charged (and potentially convicted) if you are either impaired or intoxicated by alcohol, drugs, or any combination thereof.  Specifically, Michigan’s OWI law references impairment or intoxication caused by alcohol, controlled substance or “other intoxicating substance.” See Michigan Compiled Laws Sec. 257.625.

Notably, the statute does not define either the word intoxicated or impaired, leaving that factual determination to the fact finder, which is usually a jury of 6 or 12 individuals, depending on if the case is a misdemeanor or a felony.  To assist the jury in reaching this determination they will be given several standard jury instructions.

In the case of People v. Pagano, the Michigan Supreme Court has indicated that a traffic stop based only on an anonymous 911 call is invalid. This ruling affirmed the District Court’s dismissal of both the child endangerment drunk driving and open intoxicants in a motor vehicle charges.

As the Pagano opinion indicates, the police received information from central dispatch that a woman was obnoxious and yelling at her children and appeared to be intoxicated.  The 911 caller also provided identifying information about the vehicle driven by the ostensibly intoxicated woman, including the license plate number and make and model of the car.

The Michigan Supreme Court, in the unanimous Pagano opinion, held that information provided to and by the officer failed to establish a “reasonable and articulable suspicion” either that a traffic violation had occurred or that criminal activity was afoot. While the Court acknowledged that the 911 caller was able to appropriately identify the individual involved and the car being driven by her, the tip still did not give rise to anything more than, at best, an “inchoate or unparticularized suspicion” of criminal activity. Otherwise, there was nothing in the record to suggest that the police officer making the traffic stop corroborated the 911 caller’s mere assertion that the driver was drunk.  There was no bad driving observed by the police officer, and the stop was based only on the information provided to the 911 caller.  After all, said the Court, parents can obnoxiously yell at their children without being drunk, and the 911 called also did not indicate that any bad driving was observed.

Michigan’s Super Drunk Driving law went into effect on October 31, 2010.  It created enhanced punitive and driver license sanctions for Michigan drunk drivers with a Bodily Alcohol Content (BAC) of .17 or above. It only applies to first offense drunk driving as penalties and driver license sanctions for second or subsequent offenses remain unchanged and more punitive than for super drunk driving. This is true even for repeat offenders with BACs at or above .17.

What are the Penalties for a High BAC Super Drunk Driving in Michigan?

Michigan drivers found or pleading guilty to a High BAC super drunk driving face an array of serious punishments and consequences, including potentially more time in jail and less time on the road.

Michigan DUI law provides that if an arrest is Constitutionally invalid then dismissal is the appropriate remedy. Most drunk driving cases begin with a traffic stop. When a police officer believes that the driver may have been drinking or using drugs, the driver will be asked to step from the car for further evaluation after which the driver may be arrested.  If this arrest is invalid, then the DUI case must be dismissed.

The DUI arrest usually follows a field investigation.  This field investigation usually begins with the administration of one or more field sobriety exercises, continues with the administration of a preliminary roadside breath test (PBT), and concludes with an arrest.  Each of these steps is a “Constitutional” event subject to careful review and analysis by a skilled Michigan DUI lawyer.

To be Constitutionally valid, an arrest must be informed by probable cause.  Michigan case law provides that a PBT result above the legal limit is enough to establish probable cause.  This means that in many Michigan DUI cases where a PBT was administered, the question becomes whether the PBT itself was lawfully administered.

A new law in Michigan makes it somewhat less likely that persons charged with misdemeanor drunk driving, including first and second DUI offenses, will go to jail. This is because Public Act No. 395 of 2020, which was signed into law by Governor Whitmer on January 4, 2021, creates a rebuttable presumption against incarceration for most misdemeanor offenses, including most misdemeanor drunk driving offenses.  The effective date of the new law is March 24, 2021.

The new law amends Michigan Compiled Laws Section 769.5. Subsection 3 of this law indicates that there is a rebuttable presumption that a person convicted of a misdemeanor will be sentenced to a fine, or community service, or some other non-specified non-jail and non-probation sentence. The only circumstances under which a sentencing judge may depart from this presumption is if they state on the record “reasonable grounds” for doing so. The term “reasonable grounds” is not defined.

The law also provides that if the offense in question is punishable by both a fine and imprisonment, the court can impose one but not the other, or both. However, if the court does impose both a fine and incarceration, or just incarceration, then as indicated, the Judge must articulate on the record reasonable grounds for doing so.

The Superbowl has dominated the recent headlines, but an unfortunate story involving one of the Chiefs’ coaches, and the son of Head Coach Andy Reid, has also captured national attention.  Britt Reid was involved in a car accident wherein two young children were injured including one who is listed in serious life-threatening condition with a brain injury.

According to some initial Reports, the coach was driving onto an on-ramp and struck a disabled vehicle and then collided into a car that was providing assistance.  The accident resulted in the two minor children being seriously injured.

Mr. Reid admitted to drinking 2-3 alcoholic drinks prior to the accident, and a police report and warrant indicated a moderate odor of alcoholic beverages.  If there is evidence that alcohol may have been involved, then it is common that a warrant for a blood draw will be obtained.

In January 2020 it came to light that employees of Intoximeters, the company retained by the Michigan State Police to maintain all the alcohol breath testing devices used in Michigan’s DUI investigations, had committed fraud. This fraud included the falsification of the documentation necessary to confirm that the breath test units were working properly.  Much has happened and been learned about the fraud in the ensuing 12 months, and this has culminated in the recent filing of a complaint in the Federal District Court for the Eastern District of Michigan by the Marko Law Firm.  The Firm’s Federal Complaint alleging Fraud was filed January 26, 2021.

Lawsuit Background

The device used to test a driver’s breath in every drunk driving investigation involving breath evidence in Michigan is called the DataMaster DMT. In 2006 Michigan purchased approximately 160 of these devices and paid about $6,000.00 per unit.  These devices were intended to replace the aging DataMasters then in use around the state.

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.
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