Articles Posted in DUI

A recent news report outlines some of the circumstances surrounding the arrest of Michigan Democratic state Rep. Mary Cavanagh of Redford, and as true with many media outlet stories it seeks more shock than substance.  To help elaborate on substance, and dispel some myths and misunderstandings about drunk driving laws, this article addresses the following three topic:

  1. A second DUI arrest does not necessarily mean enhanced DUI penalties, driver license sanctions or conviction,
  2. Being unable to stand on one leg is only a part of standard field sobriety tests, and;

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

Michigan statutory law provides that for every Michigan DUI case the offender must be subjected to substance use evaluation prior to sentencing. More specifically, Michigan Compiled Laws sec. 257.625b indicates that such individuals must undergo a screening and assessment to determine if the person would benefit from “rehabilitative services,” which may include such things as alcohol or drug education or treatment programs.

What is a NEEDS Survey?

Your substance abuse assessment and screening prior to your Michigan DUI sentencing hearing will be conducted by the court’s probation department. To accomplish this the probation officer will administer a 130-question mostly multiple-choice test called a NEEDS survey. The purpose of the NEEDS survey is to assist the probation officer, and therefore the judge who will be sentencing you, in determining if they believe you could benefit from substance use treatment. If so, then you will be ordered into such treatment at sentencing. This will also become a “rehabilitative aim” allowing the court to rebut the statutory assumption against jail or probation on a DUI offense. You will be charged a screening fee for this test. You can pay this in advance, and if you do not, you will be ordered to pay the screening fee when you are sentenced for your DUI.

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

In a criminal case, after your arrest but before your conviction or acquittal, you will be on bond. There are several mandatory and many discretionary terms and conditions of bond, and these have been previously discussed. A show cause is what happens when someone does something on bond contrary to what’s been ordered.

The most common allegations of a bond violation that we see at the Barone Defense Firm related to alcohol and drug testing. Often, a client will miss a drug or alcohol test, which is the most common alleged bond violation, followed by a positive drug or alcohol test.

A bond violation is a serious matter because it is considered a contempt of court. After the court receives notice from the monitoring agency that there’s been an alleged violation, the court will issue a show cause order. The purpose of a show cause order is to require you to appear in court to show cause why you should not be held in contempt of court for violating a court order. Because the judge has ordered you to do something (test according to a set schedule), and it is alleged that you violated that order, unless you have a defense to the allegations, you will be found in contempt of court. See, e.g.,  People v Mysliwiec, 315 Mich App 414, 417 (2016).

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?

Michigan drivers are sometimes stopped under suspicion of intoxicated driving after a concerned citizen calls 911. The validity of these traffic stops are highly fact-specific, and depending on exactly what is reported to 911, the stop may or may not be sufficient to support a DUI conviction.

One case in Michigan where the DUI traffic stop was deemed to be invalid, and the drunk driving case dismissed, is People v. Pagano, 507 Mich. 26, 967 N.W.2d 590 (2021). In this intoxicated driving case the Michigan Supreme Court specifically found that the traffic stop based only on the 911 was insufficient to establish a reasonable suspicion that the driver was drunk. Because the stop was therefore legally invalid, the Court had no other choice but to dismiss the case outright.

In Pagano, the 911 caller reported that they had observed a woman driving while yelling at her kids and generally behaving in an obnoxious manner. While the caller indicated that they believed the driver was intoxicated, no other information was provided in support of this contention. However, the caller did provide much identifying information relative to the car being driven, including the license plate number, the make model and color of the car, and the direction the vehicle was traveling.

The Michigan Eastern District Court has partially ruled in favor of a Michigan resident, finding that he does have a civil rights cause of action against the Michigan State Police (MSP) for recklessly allowing breath test evidence from faulty instruments to be used in prosecuting him. Other possible civil rights violations relating the MSP breath test program were also found. The lawsuit against Intoximeter, the corporation that services the breath test instrument used by the MSP, was however dismissed.

This case arose out of an ongoing fraud investigation in the MSP DUI breath test program the began with the discovery by a defense attorney  of some questionable 120-day inspection reports relative to his client’s DataMaster DMT breath test result. The DataMaster DMT (DMT) is an infrared evidential breath alcohol test instrument used in the prosecution of drunk driving cases throughout the State.  According to Michigan law and administrative rules each DMT instrument is to be inspected by a “class four” certified technician every 120 days. These 120-day inspections are intended to ensure that the instruments are correctly calibrated and are in good working order.

These 120-day inspections are in addition to weekly self-checks the device conducts automatically using a dry-gas simulator solution. Certain error codes can be generated during these tests that may cause the instrument to be taken out of service. If that happens the instruments can only be brought back into service after further inspection by a class four operator. Around the time of the discovery of the questionable records, the Michigan State Police (“MSP”) had begun to uncover their own cadre of suspect records.

A new comprehensive study on the effects of marijuana use and driving has demonstrated that the use of marijuana has far less impact on driving than does the use of alcohol. Despite the fact that the emerging science suggests that drivers can use marijuana and operate their vehicles safely, the DUI laws in Michigan treat marijuana as being equal to or even more dangerous than alcohol.

Part of the reason for this disparity is that the public policy behind Michigan’s DUI laws are mired in many of the archaic misapprehensions that historically existed about marijuana and its impact on driving. Now that recreational marijuana is legal in Michigan for those above 21 years of age, a rational discussion of what, if any, effect marijuana has on driving is long overdue.  To address this issue, Michael A. White and Nicholas R. Burns, preformed a meta-analysis on over 17 available marijuana studies to clarify the actual relationship between marijuana, specifically active THC, and driving.

Their study: The risk of being culpable for or involved in a road crash after using cannabis: A systematic review and meta-analyses, published in Drug Science, Policy and Law, concluded that it is likely that marijuana does not actually cause more accidents than the normal rate of accidents occurring by all drivers.  To get to this determination, they used a process called meta-analysis, which is the review of previously published studies to obtain a more comprehensive result than any single study is capable of.  For this analysis, they used 17 studies conducted between 1982 and 2020.  These studies were conducted in several countries by different researchers with differing results.  White and Burns then their own testing methodology in an effort to control for inherent biases in the prior studies.

While President Bidens Investment and Infrastructure and Jobs Act (IIJA) does require automakers to incorporate advanced impairment detection technology, and sets a timeline for doing so, it is soley up to the Secretary of Transportation to define what the specific technology solution will be. The only guideline in the IIJA is that the technology be “advanced” and “passive” and that it either measure driver impairment through driver performance, measure driver intoxication by analyzing the driver’s blood alcohol level, or both.

MADD Has Already Made Suggestions

MADD was instrumental in the drafting and passage of this legislation, and have indicated that such AIDP will:

Contact Information