Articles Posted in DUI Trials

The Michigan Court of Appeals has recently held that a driver’s admission to drinking too much and trying to drive from the bar were admissible against her to establish the element of operation.

As prosecutors often say in their opening/closing arguments, a crime is made up of parts called elements. In order to prove a case, a prosecutor must be able to prove each element of the crime beyond a reasonable doubt. In a drunk driving case, one of those necessary elements is operation. Usually, an element can’t be proved just by the defendant’s admission. This is called the “corpus delicti rule.”

According to David Moritz, an assistant professor at Wayne State University Law School: the common law corpus delicti rule prohibits the introduction of an extrajudicial confession in a criminal case unless the prosecution introduces independent evidence of the “corpus delicti.” That is, the prosecution must introduce some evidence independent of the confession to establish that the crime described in the confession actually occurred.

The Barone Defense Firm recently handled a drunk driving case in Bloomfield Hills 48^th District Court.  The case involved a person who was stopped for weaving and running a red light.  According to the police officer, this driver failed the field sobriety tests, and was arrested.  He later had his blood drawn, and the result of the blood test suggested a bodily alcohol level of .136 grams of alcohol per 100 milliliters of blood.  The driver had been arrested for DUI previously, so this was his second offense.

This second offense drunk driving was prosecuted by the Oakland County Prosecuting Attorney’s office.  As is typical for this prosecutor, no deals were offered so the matter was set for trial.  A few days before the trial date the prosecutor filed a “Daubert” motion, arguing that the defendant’s expert was unqualified and should not be able to offer his opinion at trial that the blood test result was flawed, inaccurate and unreliable.  The motion was scheduled for the first day of trial.

On the first day of trial, the assistant prosecutor handling the case indicated to the judge that she had no witnesses and could not proceed.  Accordingly, she asked the judge to dismiss the case.  We had no objection to the dismissal, so long as it was “with prejudice.”  The assistant prosecutor asked that it be without prejudice.  In this context, legal “prejudice” essentially means “final determination.”  Said differently, we were arguing that jeopardy should attach so that the case could not be tried at a later date.  Jeopardy arises out of the Fifth Amendment to the Constitution, which indicates “[N]or shall any person be subject for the same offense to be twice put in jeopardy.”

Many drunk driving cases in Michigan and elsewhere rise and fall on the testimony of experts.  This is because the rules of evidence provide that only expert witnesses can offer their opinion at trial.

Was the breath or blood test reliable?  Only an expert can answer that question.  A police officer is not qualified.

Did the driver’s medical condition impact the breath or blood test? Again, only a question an expert can answer.

If you have been arrested in Michigan for drunk driving, then the police officer may have administered an eye test called the “horizontal gaze nystagmus” or HGN test.  If so, then the results of this test were probably used as part of the probable cause forming the basis of your arrest.  It is essential that this HGN test be administered properly, and experience has shown that often times it is not.

This is important because even what might seem like small deviations from police training can make the HGN test inadmissible.  If the test is inadmissible in your case, then it is possible that the arrest is bad, and this could result in the complete and total dismissal of your case.

For example, in People v. Borys, 2013 IL App (1st) 111629, 995 N.E.2d 499 (Ill. App. 1 Dist., 2013) the defendant was charged with aggravated DUI for driving under the influence of alcohol while her license was revoked due to a previous DUI.

A recent article that appeared in the Champion Magazine suggests that there are 7 rules to plea negotiations in DUI (criminal) cases.  This is an interesting article because many lawyers who “specialize” in defending Michigan DUI cases fail to follow these 7 rules.

If you’ve been arrested for DUI in Michigan, make sure your lawyer “has not become a cog in the criminal justice machine.” First and foremost, be sure your lawyer will take the time to actually represent YOU and your best interests.  A failure to follow even one of these rules can result in your lawyer allowing you to plead guilty “because it is the easier course” and because they “do not care enough about the fate of their clients.”

Rule One: One: Get to know the client as soon as possible.

As drunk drivers become less common on our roads, resulting in a loss of revenue to the government, the government has decided to focus on a new public enemy: drugged driving. Americans are becoming a society of medicated persons and many of those medications may affect driving. Soon, the anti-drunk driving commercials will be replaced with anti-drugged driving commercials, with all new catchphrases. “Drive Sober or Get Pulled Over” or “Over the Limit, Under Arrest” may soon be talking about your “Prescription for Arrest.” While no one is advocating drugged driving, knee-jerk reactions and propaganda campaigns are not always the solution. Many times, the public outcry will tip the scales of justice towards the prosecution. Unfortunately, a mob mentality can also lead to the passage of laws that are ill-considered and ill-advised. The new attempt to ensnare drugged drivers may already be so overzealous, as to have an unintended victory for the defense.

Michigan Public Act 315, of the 2014 Legislative Session, which amends MCL § 257.625a, is intended to help officers in the field make more drugged driving arrests. Whether it will help – or perhaps even hurt – these efforts remain to be shown. This Act, combining House Enrolled Bill 5385 and Enrolled Senate Bill 863, was presented to the Governor on October 7, 2014. Signed on October 14, 2014, the Act will become effective on January 12, 2015. Essentially, the new Act requires suspects to perform a “preliminary roadside analysis.” Currently, any participation in field sobriety is voluntary; however, come January it will be against the law to refuse to stand on one leg or walk a straight line.

Perhaps the biggest, and likely unintended, change in the law will be the conduct of trials in OWI cases. Specifically, the new Act changes the language from “preliminary breath test” to “preliminary roadside analysis” in MCL 257.625a(2)(b). That amended section states: