Articles Posted in DUI Defense

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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.”

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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:

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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.”

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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:

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Sleep driving is a well-known side effect of Ambien.  Sleep driving is even listed as a side effect of this drug in the product literature. It is nevertheless illegal to be driving under the influence of Ambien. If you are stopped and the police believe that you are under the influence of Ambien in Michigan, then you will be arrested for DUI; just the same as if you were under the influence of alcohol.  This might be true even if you never intended to commit this crime.

In Michigan driving under the influence of Ambien is considered to be a general intent crime.  This means you do not have the specific intent to commit a DUI to be convicted of it in Michigan.  One reason for this is because intoxication is a defense to specific intent crimes.  If intoxication was a defense to DUI all persons arrested for it could raise intoxication as their defense.

However, an arrest is not a conviction.  Depending on the facts of your case, it may still be possible to raise a defense to the driving element, because even in Michigan a DUI requires the specific intent to drive.  This defense has been successful in many prior Ambien cases in Michigan. In other words, even if the totality of the crime is general intent, the driving element is specific intent.

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If you are charged with drunk driving in Michigan the prosecutor has a legal and ethical duty to provide your attorney with any evidence that might be helpful to your defense.  This includes things like police reports, witness statements, video recordings or chemical tests.

This legal obligation was affirmed in the recent USSC case of Weary v. Warden.[i]  Decided March 7, 2016, this case stands for the proposition that a prosecutor must disclose to a defendant all material evidence. Evidence qualifies as material when there is “‘any reasonable likelihood’” it could have “‘affected the judgment of the jury.’” To prevail on a claim that such evidence is material a defendant not show that he “more likely than not” would have been acquitted had the new evidence been admitted. He must show only that the new evidence is sufficient to “undermine confidence” in the verdict.

In this particular case, the defendant Michael Wearry was on death row in Louisiana. Wearry’s defense at trial rested on an alibi. He claimed that, at the time of the murder, he had been at a wedding reception in Baton Rouge, 40 miles away. Prosecutor argued in closing arguments that all three witnesses establishing the alibi were related to the defendant.

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Blood Test Drunk Driving | Michigan DUI Attorney

When investigating a possible case of driving under the influence, the police may ask you for a sample of your breath or blood. Breath testing remains the most common type of chemical testing, but DUI blood tests are becoming more common.

If your blood is taken by law enforcement the purpose is to test if for alcohol or drugs. DUI cases involving blood are considered by most DUI lawyers to be more difficult to defend because blood test results are considered to be a more reliable.

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The attorneys at the Barone Defense Firm have one goal in mind – WINNING! If we accept your case, we will try to win, and we will use all ethical means possible. Winning may mean several different things to different clients, and we don’t win every case, but we don’t lose for not trying. In fact, according the United States Supreme Court, a criminal defense attorney should, whenever possible, always do the following:

  1. Whether innocent or guilty, the most important role of a DUI defense attorney is preventing the conviction of his client. This role is above all others.
  2. Wherever possible, to fulfill this role the DUI Defense attorney should attempt to confuse the state’s witnesses, even truthful ones, and make them appear at a disadvantage and whenever possible, make them look unsure or indecisive.
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If you have been arrested for DUI in Michigan, and have found and retained a top DUI defense attorney to represent you, then he or she will be using a variety of tools to investigate your case.  The purpose of this investigation is to help your DUI defense lawyer uncover defenses applicable to your case.

One under-utilized method of discovery is the Freedom of Information Act or FOIA.  In a criminal case, the FOIA can be used to obtain documents from the police agencies involved in your DUI arrest, as well as agencies involved in the oversight of the specific police agency that arrested you for drunk driving.

Of particular interest in a Michigan DUI case is the State Police agency involved in oversight of the state’s breath testing program.  In the case of a drunk driving / DUI blood test case, the agency of interest is the laboratory where the blood was tested for alcohol.

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280 N Old Woodward Ave #200
Birmingham, MI 48009
Phone: 248-306-9158
2155 Butterfield Dr #305A
Troy, MI 48084
Phone: 248-306-9158
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Clarkston, MI 48346
Phone: 248-306-9158
The Federal Eastern District Court for Michigan has courthouses located in Ann Arbor, Flint, Port Huron, and Bay City, whereas the Western District Court also has courthouses located in Lansing, Kalamazoo, and Marquette in Michigan's Upper Peninsula. View More

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