Articles Posted in DUI Defense

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Many judges, prosecutors, and defense attorneys have mistaken beliefs about alcohol tolerance.  In a drunk driving trial, these mistaken beliefs can lead to misleading arguments which might further lead to wrongful convictions.  A recent article from the peer-reviewed science journal article Psychopharmacology[i] helps support a defense lawyer’s attempt to preclude a wrongful conviction based on these misleading arguments.

Generally speaking, most drunk driving trials include observations of the police leading up to the arrest and a subsequent breath or blood test, generically called a “chemical test.”  Therefore, winning a drunk driving trial requires reasonable doubt as to both.

Issue With Alcohol Tolerance

There are many ways to approach the defense of a drunk driving crime, and a defense should always be matched to the facts and science of a particular case.  However, one way to explain to jurors that there is a reason to doubt the chemical test is to show that there is a disparity between the breath or blood test result and the physical and mental condition of the driver.  This might occur in cases where the driver performs well on the field tasks, such as the one-leg stand or walk and turn.  This evidence, usually collected at the roadside, is often referred to as the “observational evidence.”

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If you have never been arrested for drunk driving before in Michigan, or anywhere else in the country, then there are three possible drunk driving charges in Michigan.  The driver’s license sanction for each offense is described below.

High BAC/Super Drunk OWI

According to Michigan’s Criminal Code, section 257.625(c) a driver is considered “super drunk,” meaning they have a high BAC (bodily alcohol content) if that person has an alcohol content of 0.17 grams or more in their blood, breath, or urine.

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Imagine you have done nothing wrong but for a minor moving violation. You have not been drinking.  You have not consumed any prescription or illegal drugs.  You tell the officer the truth.  But then you are arrested for suspicion of driving under the influence.  This was the very unfortunate circumstance for not one, not two, but three Georgia women, all arrested by the same highly credentialed, drug specific trained, experienced police officer.[1]

This was the story that Michael J. Boyle shared with a conference room full of defense attorneys and prosecutors of WHY they were all there today.  Those three women are not the only ones that end up wrongly arrested, and it is not only happening in Georgia, but in Michigan and in every other state.  The only way to protect those from wrongly arrested, and potentially wrong convicted, is to have an attorney with the experience and knowledge to know how to handle the case.

On May 12th and 13th Attorneys from across Michigan gathered in Lansing for the first ever Seminar put on in concert by the Michigan Association of OWI Attorneys (MIAOWIA) and the Marijuana Law Section (MLS) of the State Bar of Michigan.  The two-day Marijuana Criminal Law Seminar titled “Everything About Medical Marijuana in Michigan” covered a variety of current marijuana issues including Hot Topics, Search and Seizure, License Restoration, Section 4 and Section 8 Hearings, Marijuana Drug Recognition Evaluations (DRE), Chemical Testing for Marijuana, the most recent Michigan Case Law and Legislative Updates, and Marijuana and Driving in Michigan.

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Barone Defense Firm founding partner Patrick T. Barone has been asked to present at the upcoming Solo and Small Firm Drunk Driving Update.  This seminar, presented by the Michigan State Bar, will take place Thursday, May 22, 2017 from 6:00 – 8:00.  The location is at the Western Michigan University Cooley Law School’s Auburn Hills campus.  Food and light refreshments will be served, including appetizers, beer, wine and soft drinks.  The cost is a very modest $20.00 for State Bar Solo and Small Firm section members, $25.00 for all others.  Law Students are free.

This seminar will cover the basic nuts and bolts involved in the representation of those alleged to have driven under the influence of alcohol or drugs.  Topics to be covered include pretrial proceedings, driver Assessment and Appeals matters, including driver license restorations and implied consent matters and trial practice.  Patrick Barone will be presenting on the topic of trial skills.  Mr. Barone has tried 100’s of drunk driving cases and frequently lectures locally and nationally on advanced trial skills, including most recently this past March at the Advanced OWI Seminar in Columbus Ohio.

Hearing Officer Brian Longman with the Michigan Secretary of State is also among the panelists. Mr. Longman will be speaking about implied consent matters, including available defenses, and more generally, how to conduct such a hearing on behalf of a client who is alleged to have unreasonably refused a breath or blood test.

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An Oakland County Circuit Court Judge recently suppressed a DataMaster .20 evidentiary breath test result on a felony drunk driving case.  The judge suppressed the breath test because the police officer who administered the test failed to follow the laws and rules intended to assure that breath tests are reliable.  Because of the judge’s ruling, the prosecutor can no longer argue to the jury that the driver had an unlawful bodily alcohol level (UBAL).

The facts, in this case, are as follows: the driver was stopped for making an unlawful turn.  The driver had no valid driver license, smelled of alcohol and admitted drinking.  Subsequently, the driver was unable to perform to the police officer’s satisfaction on the field sobriety tasks, including the alphabet, backward count, heel to toe and horizontal gaze nystagmus.  This driver had two or more prior DUIs in his lifetime.  Based on Heidi’s law, with at least two lifetime prior DUIs, this arrest would make it a felony.  A roadside preliminary breath test indicated .123 on a “weak” sample.  Thereafter the driver was arrested for felony drunk driving.

Because this was a felony case, the driver was entitled to a probable cause hearing.  In Michigan, this is called an evidentiary hearing.  At an evidentiary hearing, the prosecutor bears the burden of proof, but only by the standard of probable cause.  This means prosecutor need only show, through witnesses and evidence, that the crime charged was probably committed.  Because of this, an evidentiary hearing is a much-abbreviated version of trial.  Nevertheless, at the evidentiary hearing, we did ask the police officer some general questions about his observation of the driver prior to the breath test. This was to set up a motion to suppress at the circuit court.

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If you were arrested for drunk driving in Michigan, then you should talk to your lawyer about whether starting with a structured 12-step program such Alcoholics Anonymous, or AA, may help your case. While clearly the best known, AA is not the only 12-step program, and it may not be the best option for you.

Understanding 12-Step Programs:

A 12-step program is a structured support system designed to aid individuals in overcoming addiction, fostering personal development, and maintaining sobriety. Core principles include acknowledging powerlessness over the substance, seeking guidance from a higher power (interpreted personally), making amends, and supporting others in their recovery journey.

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An attorney in California has been charged with DUI for allegedly driving under the influence of caffeine.  The officer who pulled the man over was working on alcohol enforcement when the driver pulled in front of him, cutting him off, and then driving erratically.  A roadside breath test showed no alcohol was present in the driver’s body.  18 months later, a blood test was produced only showing the presence of caffeine.  Apparently, a motion to dismiss was denied and the case set for trial.

While this case appears to be first of its kind, it’s not likely to be the last.  In California, like Michigan, it is unlawful to drive under the influence of any drug, including alcohol.  The term “drug” is very broadly defined, and therefore can include caffeine and even less “intoxicating” substances like ginseng.

This is because, as previously discussed, Michigan’s definition of drug includes even things listed in the homeopathic pharmacopoeia.  Specifically, Michigan’s drunk driving statute, MCL 257.625(25) indicates that an intoxicating substance means: any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance, that is either of the following:

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Michigan’s rules and regulations for breath testing are set forth by law and by administrative rule.  There are also a variety of rules and regulations contained in the DataMaster Evidential Breath Test Manual.  Together these rules and regulations are intended to assure that a breath test result is reliable and admissible in a court of law.  The problem is that these rules and regulations are often not followed.

The implied consent law in Michigan in Michigan Compiled Laws sec. 257.625a, provides that if you are arrested for drunk driving then you must submit to a chemical test, the purpose of which is to determine how much alcohol is in your body.  Most of the time, the police will ask you to submit to a breath test.  The Michigan chemical test rights provide that even if you took a breath test at the roadside, you must still submit to this second “evidentiary” breath test.

Specifically, the Michigan Vehicle Code, in section 257.625a provides:

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According to Michigan Compiled Laws 767.24, the Statute of Limitations for a drunk driving case in Michigan is 6 years.  However, under certain circumstances this time period can be extended.  Also, although the limitations period is 6 years, according to Michigan case law, prejudice is presumed after only 18 months.  This means if your drunk driving case is brought just 18 months after you are arrested, then it might sometimes be dismissed.  This speedy trial issue is discussed in more detail below.

Relative to the statute of limitations, the most important date is the date of the arrest because this is the date used to start calculating the applicable time period.  In other words, the “clock” runs from the date of the arrest to the time the charges are brought, either by the issuing of the ticket or the complaint. This is true even though the statute of limitations uses the word “indictment.”  You do not necessarily have to know about the indictment, the prosecutor need only file it within the limitations period.

Also, if you are from out of state, or move out of state during the running of the limitations period, then the limitations might be “tolled” meaning paused.  This means if you are arrested on January 1, 2017, then leave the state to take a new job on January 2, 2017, the statute of limitations won’t start to run again until you return to the state.  Consequently, if you came back to the state of Michigan to retire on January 1, 2030, the prosecutor would have until December 31, 2037 to file the indictment/information with the court. This is because section 8 of the Statute reads as follows:

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The Barone Defense Firm is pleased to announce that Patrick Barone has authored a chapter in the soon to be published 2016-2017 edition of “Legality of Search and Seizure in DUI Cases.”  The title of Mr. Barone’s chapter is “Developing Essential Trial Skills for Defending DUI Cases.’ This new book from Aspatore’s “Inside the Minds” series will be available for purchase within the next few weeks.

Aspatore books is a division of Thomson Reuters publishing, one of the Nation’s largest publishers of law books.  According to the publisher, the “Inside the Minds” series brings together leading executives and lawyers from around the world. Relative to law, the Inside the Minds series has published chapters written by the Chairs and/or Managing Partners from over 75% of the Nation’s top 200 law firms.

Mr. Barone’ Chapter includes the following sections:

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