DUI Trials

Should I Refuse the Breath Test if Stopped for DUI in Michigan?

Published on: March 29, 2022 | by Patrick Barone

Why Does Michigan’s Law of Implied Consent Exist?

The first DUI laws went in the books all the way back in the 1950’s when cars where just starting to become very common. Back then, there were no breath tests, so that law enforcement tool in a DUI investigation was not available to police officers. That only happened ten years later, in the 1960s. Technology has improved a lot since then, and the law has changed too, because the law of implied consent is younger than the first breath tests. Back in the “olden days” people could refuse a breath test in a drunk driving case without an possible sanction. That is no longer true, and today, there are serious consequences if you unreasonably refuse to to a breath test.

The Michigan Law of Implied Consent

Proximate Causation in a Michigan Drunk Driving Causing Death Case

Published on: March 7, 2022 | by Patrick Barone

A drunk driving causing death case always involves allegations that a person was driving a motor vehicle, while intoxicated, and the operation of the motor vehicle caused the death of another. As previously described, proving the “vehicle caused the death of another” involves two kinds of causation. Factual causation and proximate causation.

Of the two kinds of causation, proximate causation is the more difficult one to prove. It is also the more difficult one to understand and this is particularly true for criminal defense lawyers and prosecutors who are far less adept at utilizing these concepts than are civil lawyers handling negligence case. Also adding to the difficulty inherent in proximate causation because it is variously applied depending on the kind of case being litigated. In negligence law, proximate cause is often used to limit the otherwise limitless culpability that would inure using only the but-for test. Proximate cause is also wrapped around the concept of foreseeability.

Proximate Cause is all About Foreseeability

Factual Causation in a Michigan Drunk Driving Causing Death Case

Published on: February 22, 2022 | by Patrick Barone

The top rated Michigan Drunk Driving Lawyers at the Barone Defense Firm have handled dozens of OWI cases involving auto accidents where a death has occurred. In many of these cases the question of causation is an important one. The reason is without causation there can be no “causing death.” However, the issue of causation is not at all straightforward.

To establish causation in an OWI causing death case, the prosecutor must prove, beyond a reasonable doubt, both factual and proximate causation. See, e.g., People v. Schaefer, 473 Mich. 418, 703 N.W.2d 774, (2005). Even though drunk driving causing death is a criminal matter, both factual and proximate causation are civil concepts and come from negligence law. This is why civil cases can be consulted to better understand these concepts.

What is Factual Causation?

Michael Boyle Explains How He Will Help You Decide if Trial is Your Best Option

Published on: January 29, 2022 | by Barone Defense Firm

Being charged with a crime is most certainly one of the most traumatic events you can experience, and then attempting to retain the right attorney or law firm might also feel like a daunting task. The Criminal Defense Trial Attorneys at the Barone Defense Firm understand that difficulty and that trauma, therefore we want to address some important factors in hiring the right trial attorney for your case.

Trial is an Endangered Species

The National Association of Criminal Defense Lawyers (NACDL) recently published a report that 3% of all criminal cases in State and Federal Court are resolved through Trial compared to 20% of cases from 30 years ago. A related article lists that some of the reasons for this decrease include fear of what is known as a trial penalty or trial tax, meaning a worse sentence after a loss at trial. This is balanced against the fact that a lesser sentence can be arranged as part of a plea agreements. Certainly, another reason is the lack of ability or lack of experience of the trial attorney themselves. The very fact fewer cases reach trial every year is reason enough to seek an attorney that does not have significant trial experience, and who will not be afraid to go to trial.

What Does Michigan Law Say About Jury Nullification?

Published on: December 15, 2021 | by Patrick Barone

The black letter law in Michigan suggests that juries have the power but not the right to exercise jury nullification.[i] Nevertheless, the practice of law is all shades of gray, and the arguments made by lawyers are often in the penumbras of black letter law.

For example, some Michigan cases have indicated that nullification may be argued where nullification is a recognized legal defense. Because a trial judge may exclude a defense attorney from presenting to the jury evidence supporting a defense that has not been recognized by the legislature[ii], the judge can preclude a lawyer from arguing for nullification.

This does not mean that the power of nullification can be taken away from the jury, and a judge cannot explicitly tell a jury that they are precluded from exercising jury nullification. In one Michigan case where a judge told the jury that jury nullification was inconsistent with the recognized power of the jury, the verdict of guilty was reversed.[iii] In support of their reversal, the court indicate that:

Why Aren’t Juries Informed of Their Right to Nullification?

Published on: December 15, 2021 | by Patrick Barone

In the United States juries are not informed by the judge of their right to nullification because the case law addressing jury nullification remains oblique. It is therefore commonly said that in the United States juries are empaneled to resolve issues of fact, but when it comes to nullification, juries have the right but not the power to judge the law. Consequently, a judge will never directly instruct a jury than they judge the law. The reverse is also true; a judge will not instruct a jury that they may not judge the law. In a criminal case, the litigants are also precluded from advising the jury of their right to nullification.

When looking at the history of nullification in the Untied States, it is clear that while the breadth of jury nullification in our criminal justice system has ebbed and flowed it has never entirely gone away. Today a jury sitting on a criminal case may engage in nullification. Since nullification remains a part of our criminal justice system, the question that obtains is this; how much influence can, or should, the judiciary have in limiting or otherwise influencing the jury’s right to nullify? Said differently, as “keepers of the law,” what role do judges have in explaining or refuting nullification?

In looking at the question of whether or not jurors should be informed of their right to nullify, Irwin A. Horowitz has this to say:

What is the History of Jury Nullification?

Published on: December 15, 2021 | by Patrick Barone

In the United States, we obtained much of our initial original jurisprudence from England. This “precedence” is called the common law. Because the English common law had such an impact on the development of our law it makes perfect sense that the English common law tradition of jury nullification directly influenced early American criminal trials. In the colonies, both the right to a jury trial, and the jury’s associated nullification powers, were viewed as vital to ensuring liberty.

The Founders, all of whom had the personal experience of living under an oppressive and capricious government, also believed in the importance of the right to nullification, particularly when viewed through the lens of liberty and freedom from tyranny. As one historian observed, “The writings of Jefferson, John Adams, Alexander Hamilton, and other founders–Federalists and Anti-federalists alike–all support the belief in a jury responsible for deciding both fact and law.” Similarly, jury trials and nullification were respected throughout the early days of U.S. history.[i]

Nevertheless, as the common law developed the question remained about if and how nullification would be incorporated into our system of governance. While the right to a jury trial is mentioned repeatedly throughout our founding documents, the word “nullification” is absent from all of them. Consequently, the United States Supreme Court had to grapple with this issue, and attempt to resolve it. However, their precedent regarding nullification has never entirely resolved the role of the jury in a criminal case or even the propriety of nullification.

Why Would a Jury Choose to Nullify the Law?

Published on: December 2, 2021 | by Patrick Barone

As previously explained, jury nullification occurs when a jury fails to follow the instructions of the court and instead returns a verdict contrary to those instructions. UN Appeals judge and constitutional law expert Geoffrey Robertson suggests that an independent jury can disregard the strict letter of the law set forth in these instructions and return their verdict of acquittal due to feelings of “sympathy or humanity” or simply based on common sense.

Jury instructions themselves can be part of the problem. Jury instructions are summations of the law and reflect the litigants’ best efforts to distill often complex laws in chunks that can be understood and applied by the jurors when evaluating the facts presented to them at trial.

However, when it comes to criminal cases and the tacit but often necessary application of constitutional law principals, these “chunked summations” of the law are rife with potential pitfalls. According to Duke University School of Law Professor Brandon Garrett, the use of constitutional rights in jury instructions—and in evidentiary practice more generally—is a subject that deserves far more attention in the bar and in scholarship.[i]

Jury Nullification is Consistent with the Concept of Limited Government

Published on: December 1, 2021 | by Patrick Barone

The Sixth Amendment to the United States Constitution provides that citizens accused of crimes have an absolute right to a speedy, public, trial by an impartial jury. But this right to trial by an independant jury trial was not invented in the United States. In an article in the British Library, Author Geoffrey Robertson remarked that the modern independent jury, and their right to jury nullification, arises out of the rights and limitations originally set forth in the Magna Carta.

Notice the difference in what Robertson indicates and what the U.S. Constitution indicates. Robertson refers to an independent jury whereas our Constitution refers in Article III, Sec. 2, simply to trial by jury, and the Sixth Amendment to an impartial jury. Is this a distinction without a difference? Does the Sixth Amendment, in using the word impartial also connote independence?

In the modern age, this concept of impartiality is most often thought of in the context of the jury’s fact-finding role, in which jurors must be “free of prejudice.” But from a historical perspective, might the word “impartial” as used in the Sixth Amendment also reference impartiality to, and independence from, the law itself?

What is Jury Nullification and is it Lawful in Michigan?

Published on: November 30, 2021 | by Patrick Barone

Jury nullification occurs when a jury returns a verdict that is contrary to the law given them by the Judge. In a criminal case jury nullification occurs when the jury, while believing the accused to be guilty, nevertheless return a verdict of not guilty. Usually this happens when the jurors either don’t like the criminal law in question or don’t believe that the criminal law is being appropriately applied. When a jury does this they are thought to “judge” the law.

An example of nullification in Michigan’s recent past would be the not guilty verdicts rendered in three of the five trials against Jack Kevorkian in the late 1990s. Dr. Kevorkian was accused of helping individuals voluntarily end their lives. Called “assisted suicide,” Dr. Kevorkian had created what was referred to as a “suicide machine” that could be operated by the individual wishing to end their life. This case represents a perfect example of and instance where jurors “judged” the law unfavorably, or at least the application of that law, and returned verdicts contrary to the judge’s instructions. For a fictional portrayal of this case, with Al Pacino playing Jack Kevorkian, see: You Don’t Know Jack.

The Kevorkian cases demonstrate that in Michigan the jury has the power but not the right to nullify the law. Understanding what is meant by the statement that jurors have the “power” but not the “right” to nullify requires a much more detailed explanation of nullification, and this series of articles serves to provide this explanation.