Articles Posted in DUI Stops

The Barone Defense Firm is pleased to announce that the 2020 Edition of Patrick Barone’s Defending Drinking Drivers is now available from the publisher, Amazon, and wherever fine books are sold. Known as “revision 36,” the current Edition contains many new sections and model defense motions.

Regarding the defense of a DUI with a blood test, the 2020 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 creditably of this important but often overlooked prosecution witness. Also, in Chapter Six, Trial, Mr. Barone sets forth a new way of approaching voir dire and the 2020 update also contains a samle motion requesting attorney conducted voir dire. Also, 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 prosecutor by default.  A sample motion for requesting that the defendant be provided with the “best” seat is also included in this 2020 update.

Other updates in revision 36 include a 2019 case law update.  For example, Mr. Barone provides an evaluation of new case law regarding when an added charge of resisting and obstructing is appropriate after a DUI accused refuses to submit to a blood draw pursuant to warrant and when and why such blood test warrants might fail judicial muster.  Also, why being placed into a patrol vehicle is considered custody for Miranda purposes, how an arrest occurred when police took keys, and why it may be error for a prosecutor to comment on a defendant’s refusal to take a blood test.

A research letter recently published in the JAMA Internal Medicine Journal examined the correlation between the legalization of recreational marijuana and traffic fatalities. The letter’s authors Kamer & Warshafsky begin with the proposition that marijuana use impairs driving ability. The authors go on to suggests that because there is a correlation between an increase in traffic deaths and the legalization of recreational marijuana, impaired driving must be the cause. The authors of the letter reviewed data collected from four states: Colorado, Oregon, Washington, and Alaska. The authors did not look at traffic deaths in Michigan because there isn’t enough data from Michigan yet.

The authors found that traffic deaths increased by 75 per year in Colorado. The authors did not find an increase in traffic deaths in Washington. Overall, the letter predicts that if every state fully legalizes marijuana, traffic deaths would increase by 6,800 every year in the United States. Time will tell whether Michigan will be like Colorado, and see a large increase in traffic deaths, or like Washington where there was no such increase.  And time will also tell if any observed increase in Michigan is actually caused by marijuana impaired drivers. The impaired driving lawyers at the Barone Defense Firm note that correlation is not causation, and that the only thing this letter has established is correlation.  The authors admit that much more research is needed on this topic, and that their findings were “mixed.”

What’s the difference between impaired by marijuana and under the influence of marijuana?

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.

Due to Governor Whitmer’s business restrictions imposed in March, all of Michigan’s bars and restaurants were shuttered for nearly three months. That has created a lot of pent up demand, and now that they are open, patrons will be filling tables and bar stools all around the State with gusto. The police have also vowed to increase patrols, creating a potent combination for skyrocketing DUI arrests.

Additionally, Michigan’s citizens have been forced to stay at home and shelter in place since early March 2020.  For most of this time, Governor Whitmer precluded gatherings of any size outside of household residents and family members.  People tried to socialize via Zoom happy hours, but this is a pale substitute for going out and spending time with friends.  Many are ready to finally resume their normal activities, and this means patronizing local bars and restaurants.

It is helpful to know that drinking and driving is legal in Michigan, so there’s nothing illegal about going out and tossing back a few with friends. What is illegal is to drink enough alcohol to become either impaired or intoxicated. One way to know if you are intoxicated is to check your bodily alcohol level and see if you are at or near the legal limit in Michigan of .08.  The trouble is, there is no reliable way for a “civilian” to check their breath. The portable breath testers on the market all have limitations and while they make fun party favors, they can and should never be relied on for legal purposes. This is true, if for no other reason, because all measuring equipment must be routinely calibrated to assure accuracy and reliability, and this requires the use of a reference standard.  Not only are reference standards hard to obtain for non-law enforcement personnel, they are expensive and difficult to use.

Provided you did not drink enough of the wine to become impaired or intoxicated, the only potential ramifications of driving home with your unfinished open bottle is that you could be charged with possessing or transporting open intoxicants in a motor vehicle. This crime is often simply called “open intox” or “open alcohol in a car.” Avoiding this charge is easy if you know the law. So, before we discuss how to avoid picking up a charge for open intoxicants in a motor vehicle, let’s first make sure you understand the law.

Michigan Penalties for Open Intoxicants in a Motor Vehicle

In Michigan it is illegal to possess or transport alcohol that is open, or uncapped, or where the seal has been broken within the passenger area of the car. ‘Open’ most often refers to a can where the tab has been popped, or a cup that contains alcohol. ‘Uncapped’ refers to a bottle top that has been removed.  ‘Broken seal’ refers to a twist of cap, or similar top, or cork that has been opened previously and replaced. The ‘passenger area’ means any area that is readily accessible to the driver or a passenger(s) from their seats, including the glove compartment and center console.

Supreme Court to Rule: Can Unconscious Driver Consent to Blood Draw?

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.

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

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.

Police Car Dash-Cam Video and DUI/OWI Cases

Most police agencies in Michigan use dash-cams to record citizen interactions. This means that if you’ve been arrested for DUI/OWI in Michigan, there is an excellent change that a dash-cam video exists.

Every drunk driving arrest is different, and not every video recording is the same.  However, this video may capture all the interaction you had with the police, beginning with an audio of the officer’s first words to you as you were sitting in your car after being stopped. Next, the video may show you stepping out of the car and then walking to the rear and waiting for the officer to give you instructions on the field sobriety tasks.  If the officer asked you to state the alphabet, count backwards, pick a number, etc., then your responses these requests may also be captured on the audio portion of the video recording.  Also, it may be possible to determine how well you performed on the walk and turn and the one leg stand tasks.  Finally, a careful observation of the video recording will allow your attorney to determine if the officer followed his or her training regarding these tests, and particularly, if the officer properly administered the horizonal gaze nystagmus test.

This video recording could be the most important piece of evidence in your case, so it is important to be sure that your attorney requests that it not be destroyed and that a copy of it be provided to you.  A failure to do so could result in the video recording being destroyed.  Because many departments have policies regarding how long video records are kept, a failure to make a timely request could also result in the destruction of this important evidence.

Common Police Officer Tests/Requests in DUI/OWI Arrests

Most people arrested for drunk driving in Michigan first encounter the police as part of a traffic stop.  The traffic stop might be for something unrelated, such as speeding, or it might be because of something more commonly associated with intoxicated driving, such as weaving.  Either way, the police investigation in a DUI/OWI case begins as soon as the officer begins to observe your car.  Law enforcement thinks of this as the “vehicle in motion” phase of their investigation.  During this phase the officer will be taking notes about your driving so that they can justify the stop, and will also take notes relative to how you respond to the stop signal.  In other words, what did you do when the police activated their flashing lights?  Did you pull over normally?  Or were you slow to respond?  Were any other traffic violations observed?  Did you stop inappropriately, or try to flee, etc.  All of this will be noted in the police officer’s narrative written report, and this report will be provided to your lawyer as part of the discovery process.

The next part of the police officer’s investigation is call the face-to-face contact phase of the investigation.  At this juncture the police officer is trying to decide if he or she should ask you to step out of your car for further investigation.  Common factors during this phase of the investigation include odor of alcohol and/or admission to drinking, flushed face, bloodshot glassy eyes, disheveled cloths, inability to find and/or provide driver license, registration, proof of insurance, handing the wrong documents over, answering distracting question inappropriately, and forgetting to put car in park are all things officers are trained to look for during this part of the investigation.  If the officer does ask you to step out of the car, then he or she will observe you as you step out and walk toward the back of the car.  Do you lose your balance getting out of car?  Do you stagger or use your car for balance as you walk toward the rear of your car?  As with the first phase of the investigation, the officer will note all these observations in the official police report.

The final phase of the investigation is called the pre-arrest screening.  Here the officer is trying to determine if probable cause exists to arrest you for drunk driving.  During this phase of the investigation you may be subjected to many different field tasks.  These include both the standardized and the non-standardized field sobriety tests.  Non-standardized tests include counting backward, stating the alphabet or a portion of the alphabet, finger count and pick a number, such as a number between 15 and 17.  Standardized tests include only the one-leg stand, the walk and turn and the horizontal gaze nystagmus test.

Police Caught Falsifying More Than a Quarter Million Breath Tests

Victoria Police was caught falsifying more than a quarter million roadside breath tests over a five-year period.  The claim is that the officers did this to meet quotas or to highlight their productivity.  At the end of the month, when quotas had not been met, officers would set up ad-hoc roadblocks to test motorist’s breath or make as many traffic stops as possible.  Another option for police officers was to fake a series of tests.  They would do this one of three ways, either by blowing into the handheld roadside breath testing unit (PBT) themselves, holding the unit outside a window of a moving car, or even simply placing a finger or thumb over the inlet to “trick” the PBT into believing a breath sample was being received.  The claim is that none of the fake tests were involved in any drunk driving arrests and that the results of such fake tests were not used in court.

A spokesperson for the Victoria Police claimed that they do not set quotas for officers. They acknowledged however that local managers may set their own targets.  The police union claims all this faking occurred due to overly demanding workloads and expectations.  In some instances, police were expected to collect as many as 50 breath samples in a single shift.

The Independent Broad-based Anti-Corruption Commission (IBAC) had a part in uncovering this and other abuses with Victoria Police and expressed deep concern that Victoria Police had developed a culture where such abuses were not only commonplace but unofficially sanctioned.

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