DUI Defense

Will Covid-19 Face Masks Lead to More DUI Arrests in Michigan?

Published on: July 24, 2020 | by Patrick Barone

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.

More Police Officers Trained to Use Roadside Drug Tests to Make DUI Arrests in Michigan

Published on: June 13, 2020 | by Patrick Barone

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.

How Do I Find a Top Michigan DUI Lawyer?

Published on: May 6, 2020 | by Patrick Barone

How Do I Find a Top Rated Drunk Driving Lawyer in Michigan?

Michigan DUI lawyer Patrick Barone knows Michigan DUI law and how to beat a DUI. If you’ve been arrested for operating a vehicle while intoxicated, also called DUI/OWI in Michigan, then you’re looking at potentially severe penalties. Your driving privileges can be suspended or revoked causing you to lose your drivers license and your ability to drive.

For many kinds of drunk driving cases, you’re also looking at the real possibility of jail time. Even if this is your first DUI arrest, you’ll want to find a top rated drunk driving lawyer in Michigan.

In Michigan DUI Causing Death Case Victim’s Intoxication Probably Not Relevant

Published on: May 5, 2020 | by Michael Boyle

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?

Published on: January 24, 2019 | by Patrick Barone

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

Published on: November 30, 2018 | by Patrick Barone

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.

In a Drunk Driving Investigation Must Police Read Me My Rights?

Published on: November 26, 2018 | by Patrick Barone

Yes, when you’ve been stopped for drunk driving the police must read you your rights. In fact, the police may be required to read to you three separate sets of rights; one related to the roadside or preliminary breath test (PBT), the second set of rights related to the second breath test at the station, and under certain circumstances, the police must read to you your Miranda rights prior to questioning you. Each of these sets of rights is discussed below.

Preliminary Test Rights.

According to the Michigan State Police Preliminary Breath Test Manual, the following rights should be read to a person before asking them to submit to a roadside breath test:

Michigan law requires you to submit to a preliminary breath test upon request of a peace officer. Your refusal to submit as requested shall result in your being charged with a civil infraction with a penalty of up to a $100.00 fine.

Prosecutors Stop Using Results from Improperly Calibrated Breath Test Machines

Published on: September 25, 2018 | by Patrick Barone

Prosecutors across the state of Massachusetts have stopped using breath test results obtained during drunk driving arrests for tens of thousands of motorists between 2011 and 2017. The reason is that defense attorneys representing the drivers discovered that breath test machines throughout the state were improperly calibrated. If was further discovered that state officials tried to hide this fact from both prosecutors as well as defense attorneys. During the litigation defense attorneys representing the alleged drunk drivers learned that the Massachusetts State Police Breath Testing Unit had withheld hundreds of documents showing a far higher calibration failure rate than had been reported. These documents were withheld even after they had been ordered by a judge.

Breath test and computer forensics expert Thomas Workman was involved in the case and was instrumental in helping the defense attorneys uncover the fraud, which included withholding several hundred calibration worksheets the police kept documenting their work. These calibration sheets collectively showed an unreasonably high calibration failure rate. Mr. Workman also determined that the calibration protocol the State Police claimed to operate under did not exist. Because of this ongoing litigation, an agreement was reached whereby older breath test results will no longer be used as evidence. Cases where an accused has already been convicted may pursue an appeal, but only if they can show that their plea or conviction was based only on the breath test, and not on other evidence, such as failed field sobriety tests or erratic driving. For more information, see “Tainted breathalyzer results could force new trials” Salem News, August 16, 2018.

Although this litigation transpired in Massachusetts and involved a Draeger 9510 breath test machine, this does not mean that it has no relevance in Michigan. Like Massachusetts, Michigan also has no calibration protocol. There are administrative rules covering calibration checks, which must be performed once per calendar week. This rule, which can be found at Tests for Breath Alcohol Admin R. R 325.2653, which reads in part as follows: [A]n appropriate class operator who has been certified in accordance with R 325.2658 shall verify an evidential breath alcohol test instrument for accuracy at least once each calendar week, or more frequently as the department may require. Notice the word “calibration” does not appear here. A second paragraph from this administrative rule also indicates that Michigan’s breath test machines “shall be inspected, verified for accuracy, and certified as to their proper working order within 120 days of the previous inspection by either an appropriate class operator who has been certified in accordance with R 325.2658 or a manufacturer-trained representative approved by the department.” While calibration can be performed as part of this 120-day inspection, again, the word “calibration” does not appear within this administrative rule. In fact, the only place the word “calibrate” appears within the whole of the administrative rules is in Table One of Tests for Breath Alcohol Admin R. 325.2658, wherein it indicates that only Class VIB operators can calibrate evidential breath test machines. There is, however, no description of how such calibration is to be effectuated. Worksheets from the 120-day inspections can be obtained through discovery, yet such worksheets also contain no information relative to the way such calibration was conducted.

Am I Eligible for Sobriety Court?

Published on: August 2, 2018 | by Patrick Barone

Many courts throughout Michigan employ an alternative form of sentencing for drunk drivers that emphasize treatment over punishment. Collectively, this approach to sentencing is called sobriety court. Such courts utilize a 2011 Michigan statute codified in Michigan Compiled Laws § 257.304. This law established new procedures and sobriety court participation provides advantages not available with traditional sentencing. Eligibility to participate in a sobriety court program varies depending on the location of your arrest and the court where your case is presiding. Sobriety courts are only available to repeat offenders arrested after 2011. Some courts also impose residency requirements, meaning the offender must live within the jurisdiction of the court.

Sobriety courts are not available in all jurisdictions. The admission into sobriety court is at the discretion of the Judge presiding over the sobriety court. You will only be admitted into sobriety court if you are able to demonstrate a strong commitment to sobriety. If you are considering sobriety court it is best to discuss the specific requirements of your court with your lawyer.

In the sobriety court environment, the judge unofficially acts as a recovery group facilitator. In addition to the judge, who presides over the official sobriety court sessions, you will also be involved with someone from the prosecutor’s office, a defense advisor, one or more probation officers, including the probation supervisor, and a variety of treatment providers. All of this takes place in a non-adversarial context and is far less formal than typical court proceedings. Most of the courts that use this model require a minimum of 18 months of supervision. The intensity of the probation, including the amount of alcohol and drug testing, support meetings, etc., is greatest at the beginning of the probation period and is gradually reduced as you demonstrate your ability to stay in compliance with the terms of your probation and have demonstrated the ability to maintain your ongoing sobriety.

Misdemeanor and Felony Procedures in a Michigan DUI/OWI Case

Published on: August 1, 2018 | by Patrick Barone

After you’ve been arrested for DUI/OWI in Michigan the next step will be for the arresting officer(s) to prepare a narrative written police report, including any supplemental discovery materials. Depending on the nature of the office, this report and investigation will include a description of the basis for the initial police contact, usually a traffic stop, a description of the entire roadside investigation, including your performance on any field sobriety tasks, the results of any chemical tests, copies of any search warrants, one or more video recordings, and copies of any witness statements. If there was an accident, and injury or death occurred, then the police reports may include an accident reconstruction, medical records, and the coroner’s report relative to cause of death.

Once these reports and materials have been signed off on by the senior officer in charge, they will be forwarded to the prosecuting attorney. At this time the prosecutor will review your prior record, and the facts of the case, to determine what charges should be issued. If you were issued an appearance ticket, these final charges may or may not be the same. The prosecutor will then prepare an arrest warrant which will be issued by the court, and this, or the appearance ticket, will start the court-related steps.

The first court-related step will be the arraignment. The purpose of the arraignment is for you to appear before the court and learn of the charges you are facing. The court will also set your bond, including any conditions to your bond. Provided you can make bond, you will leave the courthouse with a new date to appear. At this point the steps will depend on if you are charged with a misdemeanor or felony.