DUI Trials

Michigan’s Super Drunk Driving High BAC Laws and Penalties

Published on: April 10, 2021 | by Patrick Barone

Michigan’s Super Drunk Driving law went into effect on October 31, 2010. It created enhanced punitive and driver license sanctions for Michigan drunk drivers with a Bodily Alcohol Content (BAC) of .17 or above. It only applies to first offense drunk driving as penalties and driver license sanctions for second or subsequent offenses remain unchanged and more punitive than for super drunk driving. This is true even for repeat offenders with BACs at or above .17.

What are the Penalties for a High BAC Super Drunk Driving in Michigan?

Michigan drivers found or pleading guilty to a High BAC super drunk driving face an array of serious punishments and consequences, including potentially more time in jail and less time on the road.

Michigan Breath Test Fraud Leads to Federal Lawsuit Seeking Damages and Attorney Fees

Published on: January 28, 2021 | by Barone Defense Firm

In January 2020 it came to light that employees of Intoximeters, the company retained by the Michigan State Police to maintain all the alcohol breath testing devices used in Michigan’s DUI investigations, had committed fraud. This fraud included the falsification of the documentation necessary to confirm that the breath test units were working properly. Much has happened and been learned about the fraud in the ensuing 12 months, and this has culminated in the recent filing of a complaint in the Federal District Court for the Eastern District of Michigan by the Marko Law Firm. The Firm’s Federal Complaint alleging Fraud was filed January 26, 2021.

Lawsuit Background

The device used to test a driver’s breath in every drunk driving investigation involving breath evidence in Michigan is called the DataMaster DMT. In 2006 Michigan purchased approximately 160 of these devices and paid about $6,000.00 per unit. These devices were intended to replace the aging DataMasters then in use around the state.

Defending Drinking Drivers 2020 Update Now Available

Published on: August 10, 2020 | by Barone Defense Firm

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.

Barone Busts the Miranda Rights Myth on WUSA9 Television Appearance

Published on: July 30, 2020 | by Barone Defense Firm

Patrick Barone recently provided expert commentary for WUSA9 reporter Evan Koslof. On his Verify news series, Mr. Koslof seeks to shed light and truth on common questions, misconceptions and outright myths. After a video surfaced of a New York warrant’s division officer arresting a protestor off the street and stuffing her into a van, many on social media have questioned the validity of the police action. One contention on social media was that the police were wrong because they apparently did not the protestor her Miranda Rights before they arrested her. Mr. Koslof wanted to know if the Miranda Rights are truly necessary and how a failure to read the Miranda advisement might impact the police action. To help him with these legal issues, Mr. Koslof sought out two experts, a seasoned criminal defense attorney and law school professor. The video and article can be viewed by clicking here.

The central question raised in Mr. Kaslof’s investigation was whether the police are required to read a person their Miranda rights when they are being arrested? The answer by Mr. Barone? – A resounding “no.”

Patrick Barone’s appearance on the WUSA9 news show Verify.

Michigan’s Legalized Recreational Marijuana May Lead to More Impaired Driving Traffic Deaths

Published on: July 2, 2020 | by Ryan Ballard

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?

Michigan Breath Test Fraud Results in Multiple Felony Charges and Multiple Dismissals of Drunk Driving Cases

Published on: May 27, 2020 | by Patrick Barone

Michigan’s Attorney General Dana Nessel recently announced that two technicians, formerly responsible for the maintenance and calibration of hundreds of breath testing devices used throughout Michigan, have been charged with multiple felony counts for allegedly falsifying records. Their names are Andrew Clark and David John.

Mr. Clark and Mr. John were both “Class IV” operators of the DMT. Class IV is the highest of the four operator classes, and this level of certification allows the operator to perform 120-day inspections. During the 120-inspection the operator checks for linearity and if problems arise, it is possible for the inspector to re-calibrate the DMT. If done improperly, this could result in inaccurate breath test results, wrongful DUI arrests and wrongful DUI convictions. The criminal cases against them allege that Mr. Clark and Mr. John committed forgery in producing false documents indicating, among other things, that they had performed 120-day inspections when none had occurred.

The breath test device used to test drivers arrested for DUI in Michigan is called the DataMaster DMT. Michigan currently has more than 200 DMTs in service, and all of them are serviced by 3 technicians. The State was essentially divided in half north to south, creating an Eastern and Western side each of which was handled by a separate technician. The northern part of the State, including the upper peninsula, was handled by a third operator.

What is a Michigan DUI Breath Test 120-Day Inspection and Why Should I Care?

Published on: May 25, 2020 | by Patrick Barone

The breath test is the most common chemical test given to drivers in Michigan arrested for DUI. The device used by police throughout the State is the DataMaster DMT. Like all breath testing devices, this instrument uses infrared spectroscopy to measure the amount of beverage alcohol in a driver’s breath. To assure accuracy, however, like all measuring instruments, the DMT must be properly calibrated and maintained. Otherwise, drivers can be wrongfully accused of driving drunk, and worse than that, wrongfully convicted of drunk driving.

To assure this breath test accuracy, the Michigan State Police, who are charged with the responsibility of maintaining nearly all of the State’s DMTs, has promulgated administrative rules for breath testing. These rules provide that each DMT must undergo a weekly “dry gas” calibration check. These dry gas calibration checks are run automatically. In addition to this, every 120-days a Class IV operator must inspect the device. During this 120-day inspection necessary repairs can be made, and the breath testing device can be re-calibrated.

The 120-day Inspections

Breath Test Results Not Admissible in Many Kent County DUI Cases!

Published on: May 24, 2020 | by Michael Boyle

If you get caught driving drunk in Kent County Michigan the police officer will ask you for a breath blood or urine sample. Most of the time the officer will pick breath, and the breath test device used in Michigan DUI enforcement is called the DMT Datamaster. The breath alcohol level reported by the DMT is an estimate of the amount of alcohol in your body. The majority of the State’s DMTs are maintained by the Michigan State Police.

A recent letter in a Kent County DUI case indicates as follows:

Due to what has been described to us as a “scheduling error”, none of the accuracy check tests between April 1 and May 2 were recorded into the Accuracy Check Log at the department. Therefore, there are no accuracy logs regarding the DMT instruments at the Sheriff’s Department during this period, and the Kent County Sheriff’s Department will not be able to have anyone testify in court to the results of these accuracy checks for this time frame.

What to Expect in the 52-3 District Court in Rochester Michigan

Published on: May 24, 2019 | by Patrick Barone

What to Expect in the 52-3 District Court in Rochester Michigan

If you’ve been arrested for drunk driving, or any other crime in the cities of Rochester and Rochester Hills, then your case will take place in the 52-3 District Court in Rochester Michigan. The Rochester District Court also serves the communities of Auburn Hills, Lake Angelus, Lake Orion, Addison Township, Orion Township, Oakland Township, and Oxford Township. The court is located at 700 Barclay Circle, Rochester Hills, MI 48307 and can be reached via telephone at (248) 853-5553.

Process of Arraignment

The judges in the 52-3 District Court in Rochester Michigan require that all felony cases, drunk driving cases and most misdemeanor cases begin with a “walk-in” arraignment that usually takes place before a magistrate. This means that no specific date will be set and you and your attorney can walk into the court on a date and time that is convenient for you. At the arraignment, the magistrate will tell you exactly what your charged with and you will be asked to enter a plea. Because of this it is a good idea for you to find and hire a lawyer before your walk-in arraignment.

Two things will be decided at the arraignment. The first thing is the dollar amount of your bond. This dollar amount can be anywhere from “personal recognizance,” where no money is necessary, all the way up to a very high cash bond. The second thing to be decided are the conditions of your bond. For a drunk driving case conditions will include abstinence from alcohol and drugs, and you will be required to undergo testing to prove that you are following this condition. As a condition of bond you will also be ordered to stay in Michigan and not the leave the state without permission of the court. For people who are required to travel this can sometimes very problematic as the judges are intransigent at times relative to the enforcement of this condition.

DUI Defendant’s Constitutional Right to Confront Chemical Test Remains Clear as Mud

Published on: November 30, 2018 | by Patrick Barone

DUI Defendant’s Constitutional Right to Confront Chemical Test Remains Clear as Mud

In the past decade, the United States Supreme Court has issued several opinions addressing a DUI defendant’s right to confront a breath or blood test used by the prosecution to prove intoxication at trial. In legal terms, the word “confront” essentially means cross-examine. An example of this confrontation right in the context of a drunk driving case would be the right to cross-examine the police officer who administered a breath test, or the forensic analyst who prepared a blood sample for testing. This issue came before the USSC again in 2018. The name of the case is Stuart v. Alabama. Unfortunately, the USSC declined the opportunity to clarify this issue, and by order dated November 19, 2018, denied the defendant’s petition for review (certiorari).

However, there was a dissenting opinion written by Justice Gorsuch and joined by Justice Sotomayor. This opinion contains some interesting information. Perhaps picking up the cross-examination baton laid down by Justice Scalia, Justice Gorsuch refers to cross-examination as “the greatest legal engine ever invented for the discovery of truth.” Furthermore, that:

Cross-examination is an essential guard against such mischief and mistake and the risk of false convictions. Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process.