DUI Defense

I Was Arrested for Drunk Driving, Should I go to AA?

Published on: February 20, 2017 | by Patrick Barone

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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.

Caffeine Related DUI Charges and What Constitutes An “Intoxicating Substance” in Michigan

Published on: December 29, 2016 | by Patrick Barone

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:

Breath Testing Rules and Regulations in Michigan DUI Cases

Published on: December 8, 2016 | by Patrick Barone

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:

What is Statute of Limitations for Drunk Driving Cases in Michigan?

Published on: December 6, 2016 | by Patrick Barone

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:

Barone Authors Chapter in New Book Entitled “Legality of Search and Seizure in DUI Cases”

Published on: October 3, 2016 | by Patrick Barone

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:

Prosecutor Challenges One-Year Jail Sentence for Drunk Driving Causing Death Case

Published on: September 29, 2016 | by Patrick Barone

In Michigan, a charge of drunk driving causing death is punishable by up to 15 years in prison. This possible sentence is set forth in Michigan Complied Laws 257.625(4)(a). In determining exactly what sentence to impose for an individual case a judge will be looking at many factors, including the Michigan Sentencing Guidelines.

A recent case dealing with this issue is People v. Taylor. In this particular case the defendant Taylor was found guilty of drunk driving causing death. The facts were that Taylor admitted drinking, then while driving a car killed a person on a bicycle. He failed field sobriety tests and was over the legal limit.

The sentencing guideline range was 29 – 57 months. Taylor’s defense attorney filed a sentencing memorandum where he requested a downward departure from these guidelines. He argued that there were substantial and compelling reasons to do so, including his lack of criminal history, education, employment history, remorse and many other factors. The prosecutor, of course, argued that none of this mattered.

Delay in Prosecution Leads to Dismissal of Wayne County DUI

Published on: September 19, 2016 | by Patrick Barone

Prosecutors are loath to dismiss or reduce drunk driving cases in Michigan. This is because so many people watch DUI cases so closely, everyone from MADD to the Michigan State Police watch and track what happens to each and every person arrested for intoxicated driving in Michigan. If a prosecutor gives a non-alcohol reduction or even dismisses a case, they usually will have a pretty darn good reason for doing it.

That’s where good lawyering comes into play. A case we handled recently at the Barone Defense Firm had a significant delay in prosecution, and this eventually lead to us being able to make a deal whereby the accused drunk driver plead guilty to a careless driving as well as a disorderly person, which was taken under advisement and will be removed from this client’s record after probation. The original charge of OWI was dismissed.

The facts of this case were not good. The accused was involved in a two car accident. The dispatch indicated that she was trying to leave the area. When police arrived they noted (in the written report) a “strong odor of intoxicatingly liquor emanating from her person.”

Breathalyzers Compromised in 1,147 Drunken Driving Cases

Published on: September 2, 2016 | by Patrick Barone

If you’ve been arrested in Michigan for drunk driving then there is an excellent chance that you were asked to take a breath test. If that breath test result was above .08, then the state can use this as the only evidence needed to prove that you had an unlawful bodily alcohol level at the time you were driving. (UBAL). In other words, you can be convicted based only on this breath test evidence.

But what if the test was wrong? A wrong breath test result can mean a wrongful conviction, and this was the major problem with cases from September 2009 to November 2010 in Philadelphia. According to reports the police found the problem and notified defense attorneys.

Furthermore:

Is Your Michigan DUI Prosecutor Only Interested in Conviction?

Published on: September 2, 2016 | by Patrick Barone

Your Michigan DUI will prosecuted by a lawyer who is supposed to be interested in one thing – to be sure that justice is done. That means that if the prosecutor knows of something that shows you are not guilty of a Michigan DUI, then he/she is supposed to let your DUI lawyer know this. For example, see: A DUI Prosecutor Must Help Prove That You Are Not Guilty.

But not all Michigan DUI prosecutors are so ethical. And Michigan is not the only place where such problems exist. The state Supreme Court in California has just suspended a former Santa Clara County deputy district attorney from his law license for 4 years. This came after a three-judge panel found that Benjamin Thomas Field had “disregarded prosecutorial accountability in favor of winning cases”. In other words, he would rather win cases than fight for justice.

Mr. Field not only abused his office but also violated the due process rights of several criminal defendants. While he was originally charged with 25 counts of misconduct, the bar court dismissed several charges as duplicative. Judge Purcell, one of the fore-mentioned three-judge panel, stated that “Field lost sight of this goal. The first, best, and most effective shield against injustice for an individual accused… must be found… in the integrity of the prosecutor.”

How to Use Software to Win DUI Cases

Published on: September 2, 2016 | by Patrick Barone

Any DUI lawyer who has handled more than a couple dozen Michigan drunk driving cases knows that it is important to know how much alcohol was consumed and how this amount of alcohol impacted his client’s blood-alcohol level at the time he or she was driving.

But the driver’s roadside breath test is inadmissible, so it is only the one at the station that counts, and this test is usually 45 minutes to several hours removed (later) from the driving. Because of this, establishing blood alcohol calculations at a point earlier in time can be one of the most critical components in a drunk driving case. Such calculations involve the absorption, distribution and elimination of alcohol, or more broadly, the metabolism of alcohol.

These backwards-looking calculations are called retrograde extrapolation. This topic has been covered previously in the following blogs: