Articles Posted in DUI Stops

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.

When Will Michigan Have a .05 Legal Limit for Drunk Driving?

Michigan is likely to have a .05 legal limit for drunk driving within the next five years. This is because the National Highway Traffic Safety Administration (NHTSA) has begun pushing a .05 legal limit at the national level.  Once a .05 legal limit is adopted as national policy, the federal government will use highway funds to force all states to lower their legal limits to .05.  Michigan will capitulate to this new lower legal limit, just as they did in 2003 when the legal limit was lowered from .10 to .08.

The latest round of NHTSA’s efforts toward a national .05 legal limit is contained in its publication entitled:  Getting to Zero Alcohol-Impaired Driving Fatalities: A Comprehensive Approach to a Persistent Problem.  This publication first sets forth their definition of the problem, which is alcohol-related traffic offenses, and then details their proposed solution, which includes a lower legal limit of .05 combined with increasingly aggressive law enforcement practices, including roadblocks.

NHTSA’s initial statement or premise is that:

Michigan Medical Marijuana Licensees Must Obtain Business Insurance

If you are interested in obtaining one of Michigan’s five commercial Medical Marijuana licenses, then as part of the application process you will need to demonstrate that you have the financial ability to obtain and maintain adequate premises liability and casualty insurance for its proposed marihuana facility.  See MCL § 333.27402(2)(e).  What is “adequate” is not otherwise defined by statute, though it may be set for the administrative rules when they are promulgated later this year.

LARA and the Michigan Medical Marijuana Board have the right to set rules when necessary that are related to the administration, implementation, and enforcement of the Michigan Medical Marihuana Act. Some examples of appropriate rules include setting appropriate standards for marijuana facilities and their equipment. In addition, they can establish minimum insurance levels that licensees must meet.

Also, the Medical Marijuana Act specifically requires that you obtain insurance to reimburse someone for bodily injury suffered because of the manufacture, distribution, transportation, or sale of adulterated marijuana or adulterated marijuana-infused product. The insurance must be for at least one hundred thousand ($100,000.00) dollars. However, since obtaining insurance can be difficult considering marijuana remains a “schedule 1” drug, the proof of financial responsibility may be in the form of cash or unencumbered securities or a constant value bond. You are not allowed to cancel your insurance as required unless you give 30 days’ notice to the department, and provide a reasonable and acceptable substitute. See MCL § 333.27408 Proof of financial responsibility.

Must Field Sobriety Tests Follow Standards Prescribed by the National Highway Traffic Safety Administration?

The answer is somewhat unclear because so far no Michigan court has specifically ruled that police officers must administer standardized field sobriety tests in accordance with protocol set forth by the National Highway Traffic Safety Administration (NHTSA).  However, a new law was recently passed in Michigan that suggests that the legislature wants substantial compliance with the NHTSA standards.

The new law, with an effective date of September, 2016, reads as follows:
257.62a “Standardized field sobriety test” defined.

Sec. 62a. “Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.

Michigan DUI Cases and Improperly Administered Field Sobriety Tests

The lawyers at the Barone Defense Firm are regularly astonished by how infrequently police officers actually bother to follow their advanced training when making DUI arrests.  In virtually every case we can find mistakes, and we can sometimes leverage and use these failures to obtain great results for our clients.

An example of when a failure to follow training is particularly important is in the administration of the standardized field sobriety tests (SFST).  These include the Horizontal Gaze Nystagmus (HGN), the One Leg Stand (OLS), and the Walk and Turn (WAT).  Almost three decades of trial practice has shown that Michigan’s police officers almost always make mistakes when administering the SFSTs to people they arrest for drunk driving.  This is true even of officers with a great deal of advanced training in the proper administration of these tests often fail to administer them correctly.

And the problem is not limited only to Michigan. It’s common in other states as well.  A great case that demonstrates this is State v. Browning, 458 S.W.3d 418 (Missouri App. 2016).  Here the defendant was stopped for several lane violations and for speeding.  The defendant submitted to SFSTs and the officer reported six clues on the HGN, four clues on the WAT and four clues on the OLS.  He was arrested and a breath test suggested a BAC of .103.  The defendant argued on appeal that the trial court improperly admitted the HGN test over his objection.

Driveway DUI’s: Michigan Court Rules it Not Unlawful to Drive Drunk in Own Driveway

Disclaimer: This case was overruled by the more recent Michigan Supreme Court case of People v. Rea.

The Michigan Court of Appeals recently ruled that a person may drive drunk in their own driveway.  The name of the case is People v. Rea, 315 Mich. App. 151 (2016), and in this case, after having “a lot” to drink the defendant decided he wanted to listen to some music. So, he drove his car from his garage to a point in his private driveway in line with his house.  A neighbor didn’t like the defendant’s taste in music and called in the loud music.  Thereafter, two police officers responded to the 911 call.

When they arrived, the defendant was seated in the driver’s seat, with the driver’s side door open. According to the court’s opinion, the “vehicle was parked deep in defendant’s driveway, next to his house.”  One of the officers told him to turn down the music, and then left.  At some point the neighbor called again, and when one of the officers returned, he could not see the defendant’s car.  The neighbor called a third time and this time when the police arrived the officer observed that the garage door was opened, “and defendant’s vehicle backed out for “about 25 feet” before stopping still within the defendant’s yard and property. He then pulled the car back into the garage. He was arrested as he walked toward his house.”

What Follows is a draft excerpt from The Legality of Search and Seizure in DUI Cases, 2016-2017 ed.: Leading Lawyers on Leveraging Science and Process to Develop Winning Defense Strategies (Inside the Minds):

Evidence collected from search and seizure plays the starring role in the prosecution of DUI cases, and in fact, were it not for search and seizure there would be no DUI case. When we talk about search and seizure, we are squarely within all of the law that has arisen out of the 4th amendment to the Constitution which provides as follows:

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

As originally conceived the United States Supreme Court was intended to be a final check on the police power.   And to a lesser extent, so it is with all judges, who collectively form one of our three branches of government.

The central goal behind the idea of having three branches of government is that a separation of power would exist such that each branch would keep the other from gaining too much power.

Because of this there has always been a certain amount of tension between the branches and there has also always been a certain amount of overlap between them.

On September 8, 2015, Governor Snyder signed into law House Bill 4193, making it easier for Michigan drivers to avoid a DUI arrest.

According to the new law, during a traffic stop you may now show a police officer an electronic proof of insurance on your phone.  This electronic proof of insurance would be considered prima facie evidence that you have properly insured your car.

So why does this make it easier to avoid a DUI arrest in Michigan?  Well, one of the first things a police officer will be looking for in a DUI investigation is whether or not you are able to provide a proof of insurance.  In other words, the officer will be trying to determine if you are drunk from how you respond to his/her request to provide driver license, registration and proof of insurance.

With cell phones being ever present in our society, it is becoming increasingly common for people to use their cell phones to report a Michigan driver they think might be intoxicated.  If the police officer does not independently observe a traffic violation, then there may be a basis to challenge the stop. However these DUI cases are very fact-specific, and you should always have a DUI lawyer look at your case before drawing any conclusions.

A recent case will undoubtedly have an impact on how your DUI lawyer reviews your case is Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) a 911 caller claimed that they had just been run off the road by a pickup truck.  The tipster identified the truck, the license number, and where the incident had occurred. A BOL (be on the lookout) radio message went out, and police went in pursuit of the truck.  An officer pulled the truck over even though the officer failed to observe any bad driving of his own. During the traffic stop the police smelled marijuana, and upon searching the truck found four large, closed bags of marijuana in the truck bed.  Navarette and his brother who was with him were charged with illegal possession and transport of marijuana.  Before trial, their lawyer attempted to have the evidence suppressed on the basis that the officers had not corroborated the anonymous tip.

In a close decision the USSC found that the stop, based only on the 911 call, was lawful. Justice Thomas wrote in his majority opinion “under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road.” In a sort of ironic twist, the very fact that the call was a 911 call added to its reliably. The Court’s analysis and finding of reliability was based in part on the fact the 911 system uses several technological and regulatory features that safeguard against making false reports with immunity. These safeguards include the fact that 911 calls can be recorded and FCC regulations require the number of the 911 caller to be passed on to the dispatcher.  Thus, this technology allows police to identify 911 callers, and go after them for false reports.

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