DUI Defense

How Sober Cannabis Users are Wrongfully Convicted of Intoxicated Driving

Published on: June 16, 2021 | by Patrick Barone

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?

Community Caretaker Search Warrant Exception Not Applicable to the Home

Published on: May 21, 2021 | by Patrick Barone

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.

How Long Should a Marijuana User Wait Before Safely Operating a Car?

Published on: May 7, 2021 | by Patrick Barone

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?

This uncertainty is what makes marijuana-related DUI charges in Michigan so complicated. You may feel fine to drive, but under the law, it’s not how you feel—it’s how your behavior is perceived and how well you can perform critical driving tasks. Unlike alcohol, where we have clear BAC limits, marijuana impairment is subjective and varies from person to person. That means two people could consume the same amount of cannabis, and one could be legally impaired while the other may not be—yet both could be arrested depending on how they appear during a traffic stop.

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.

Michigan DUI Case Based on Anonymous 911 Call Dismissed

Published on: April 25, 2021 | by Patrick Barone

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.

Incarceration for Second Offense DUI Now Less Likely in Michigan

Published on: March 22, 2021 | by Patrick Barone

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.

Super Bowl Coach Facing DUI Causing Serious Injury Charges

Published on: February 9, 2021 | by Michael Boyle

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.

How to Beat an Breath Alcohol Test – A Comprehensive Guide

Published on: January 11, 2021 | by Patrick Barone

Breathalyzer tests are frequently used by law enforcement to measure blood alcohol content (BAC) and determine if a driver is impaired. However, there are numerous ways these tests can be challenged. This comprehensive guide will explore various strategies and insights into beating a breath test.

Facing a DUI Charge in Michigan? Here’s What You Need to Know About Beating the Breath Test

Let’s get real — seeing that breathalyzer result print out a number above the legal limit is terrifying. But here’s something most people don’t know: that number isn’t always right. In fact, it’s often wrong. Breath tests aren’t flawless, and they’re not the end of the story — they’re just one piece of evidence. At Barone Defense Firm, we’ve helped countless clients challenge these results successfully.

Breathalyzer Tests in Michigan DUI Cases Can be 230 Percent Too High!

Published on: January 1, 2021 | by Patrick Barone

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

Barone Selected as Top 10 Attorney in Michigan DUI Defense

Published on: November 18, 2020 | by Barone Defense Firm

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.

Defending Drinking Drivers 2024 Update Now Available

Published on: August 10, 2020 | by Barone Defense Firm

Defending Drinking Drivers, written by DUI defense attorney Patrick Barone

2024 Edition – Defending Drinking Drivers

The Barone Defense Firm is pleased to announce that the 2024 Edition of Patrick Barone’s Defending Drinking Drivers is now available from the publisher, Amazon, and wherever fine books are sold. Known as “revision 40,” the current Edition contains many new sections and model defense motions.

Regarding the defense of a DUI with a blood test, the 2024 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 credibility of this important but often overlooked pr0secution witness. In Chapter Six, Trial, Mr. Barone sets forth a new way of approaching voir dire, and the 2024 update also contains a sample motion requesting attorney-conducted voir dire. Additionally, 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 the prosecutor by default. A sample motion for requesting that the defendant be provided with the “best” seat is also included in this 2024 update.