Articles Posted in DUI Test Refusal

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.

Driving under the influence (DUI), or in Michigan Operating While Intoxicated (OWI), is usually charged using a breath test result. However, due to the recently discovered breath testing fraud, more often Michigan DUI cases are charged using a blood test result.  Breath test results are available immediately after the test is administered at the police station or jail. Blood sample results, however, can take weeks or months to be returned from the Michigan State Police (MSP) forensics lab. The prosecutor in a DUI case generally, but not always, waits for blood results to submit formal charges because if the result is over .08 then the case can be charged under Michigan’s Unlawful Blood Alcohol Level law.  And if the test result is above a .17, then it is considered a super-drunk driving.

What is the Process That My Blood Sample Goes Through?

If you have gone through a Michigan DUI arrest that involved a blood sample, you may have noticed that the police officer provided special vials to be used for the sample. These blood collection vials come from a kit that is specifically made for police agencies in Michigan to collect blood samples for criminal investigations. There should be two vials with grey caps. Sodium fluoride should be in the vials to properly preserve the blood. The vials are sent to the Michigan State Police forensics lab in Lansing for testing. Once tested, the results are sent back to the arresting agency, and the prosecutor for that agency.  The prosecutor will review the matter, and if appropriate, will file DUI charges against you in court. If the blood is being tested for alcohol only, the process usually takes three to six weeks. If it’s also being tested for drugs, it could take months. During the coronavirus pandemic, the results could take even longer to be returned.

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.

Can I Refuse Police Officer DUI/OWI Tests?

Yes, you can lawfully refuse police DUI/OWI tests without penalty. However, there are exceptions, and in some situations, it may not be in your best interest to refuse these tests.  Therefore, before you make this decision, you should discuss your options directly with a lawyer.

Generally speaking, if you are stopped by the police for drunk driving in Michigan, and the police confirm that you’ve been drinking, then the police will ask for your driver license, registration, and proof of insurance.  After the officer runs your information through their computer and confirms there are no warrants our against you, then they will return to your car and ask you to step outside for the administration of several field sobriety tests. These tests usually include the standardized field sobriety tests, such as the horizontal gaze nystagmus, walk and turn and the one leg stand.  Other tests might include the alphabet and counting backward. If the police ask you to take these tests, and you refuse, then no penalty applies.

After you have either submitted to the field sobriety tests or refused them, the police with next ask you to submit to a preliminary or roadside breath test (PBT).  This test can also be refused, however, there is a penalty associated with a refusal of a PBT.  Such refusal is a civil infraction, which means it is not a crime. The penalty is a fine only.  There are no points assessed and there is no driver license sanction.

I refused the test, now what happens?

Michigan’s implied consent law requires that you take a breath blood or urine test upon the lawful request of a police officer.  If you refuse, then you will be charged with an implied consent law violation, and will face possible license suspension for one year.  Six points will also be added to your driving record.  If you have a prior refusal in the past 7 years then your license will be suspended for two years.

The best way to know if you’re being charged with an implied consent violation is by looking at your paper license.  It will either be a DI-177 or a DI-93.  If it’s a refusal then your paper license will say “DI-93” in small letters in the upper left hand corner, and indicate on it “report of refusal.”  If your paper license does not contain this information, then you are not being charged with an implied consent violation.

How to Win the Michigan Implied Consent Hearing:

It should be well know among DUI defense practitioners that there are three kinds of breath test refusals.  The first two are “machine-based” and include those that occur when the subject blows into the DataMaster but the testing officer believes that the test subject is not making a “sincere” effort to deliver an appropriate sample, and those that occur when the machine itself “makes” this determination.  The third type is the only true refusal, and occurs when the subject simply refused to blow.

The two types of machine refusals are distinguished somewhat in the training manual, but both begin with the machine reading displaying “SUBJECT REFUSED? <Y/N>.  If the operator determines that the subject has not “made a sincere effort to provide a breath sample” then he/she may push “Y” and the evidence ticket (OD-80) will indicate “refused.” However, if the operator instead pushes “N,” then the subject can attempt to blow a second time.  This can continue for up to five attempts during the two minute time-out period, after which the machine will terminate the test sequence.  Here again, the OD-80 will indicate “refused.”  In either instance, the training manual provides that the testing officer should write on the ticket by hand either “operator” or “technical.”

After nearly two decades of practice I have learned how much stress and anxiety is caused by not having a license.  This is especially true in Michigan where there is almost no viable public transportation.

In Michigan, the law provides that when you are arrested for drunk driving your plastic license is destroyed by the arresting officer.  He or she then provides you with a paper license. Although you can still drive normally on this paper license, also called a DI-177, not having photo ID typically causes a great deal of frustration for my clients.  This is because most people’s primary source of identification is their driver’s license.

Without this identification it can be difficult to do simply everyday things like cash checks, fly on a commercial airline, use a credit card or withdraw money from your bank account. Consequently, trying to resolve this issue and getting you a photo ID can go a long way to reducing your stress.

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