Articles Posted in OWI

The Criminal Defense Attorney Association of Michigan (CDAM) has asked Michigan DUI Lawyer Patrick Barone to present a 1-hour Webinar to criminal defense lawyers seeking to learn about recent changes to Michigan law impacting how intoxicated driving cases are investigated at the roadside.

The seminar, entitled Michigan Law Update: Roadside Drug Testing – What You Need to Know, will include a detailed analysis of Michigan’s roadside saliva drug testing program. In this workshop, Mr. Barone will teach other lawyers how to address these preliminary screening tests in court, and how to avoid defense traps that may befall the unwary.

In recent years, law enforcement at all levels of government, State and National, have begun focusing on the investigation and arrest of drivers intoxicated by drugs other than alcohol. Interest in drugged driving has increased with the advent of medical and recreational marijuana, and the saliva swab roadside testing program is designed to facilitate drugged driving arrests.

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.

With new cases of Covid-19 continuing to escalate in Michigan, on July 10, 2020, Governor Whitmer responded with Executive Order 2020-147, which indicates that “[A]ny individual who leaves their home or place of residence must wear a face covering over their nose and mouth.” The Order further provides that masks must be worn in any indoor public space and on all public transportation. Also, face masks are now mandatory when you are a passenger on any ride-sharing vehicle, such as Lyft or Uber, or in any private car when being used as “hired transportation.” Will this mandatory Covid-19 face mask requirement have any impact on law enforcement practices? Specifically, will a lack of a face mask by driver or a vehicle’s occupants lead to probable cause to stop a motor vehicle?

To answer this interesting legal question, we begin by noting that the Executive Order does make a failure to comply a crime.  Specifically, the order provides that a failure to wear a required face mask is a misdemeanor, though no jail time may be imposed for its willful violation. An open question in all this is how and even whether the police in the State of Michigan will enforce this Order?

As it relates to the existing law governing when the police may stop a moving vehicle, the general rule is that they must have “probable cause.”  However, there are many circumstances when the police may lawfully stop you, including and perhaps most commonly, for a violation the traffic code such as speeding. In 2014, the United States Supreme Court, in the Navarette case indicated that a vehicle may be stopped based on an anonymous 911 call provided the caller provides enough information and detail to have the indica of reliability and therefore enough to give rise to a reasonable suspicion that criminal activity was afoot.

There are 32 new drug recognition “experts” (DRE) qualified to make DUI arrests in Michigan. Only a trained DRE may administer the saliva tests in a DRE DUI investigation. Including this new crop of  32 DREs, there are currently 157 a total of DRE trained officers in Michigan.

The use of “oral fluid” drug tests began as a pilot program in Michigan in late 2017 and lasted one year. Initially, the devices were only used in DUI investigations in five Michigan counties, including Berrien, Delta, Kent, St. Clair, and Washtenaw Counties. During this time a little more than 7 drivers per month were tested.  No information is available relative to number of Michigan DUI arrests that followed.

The DRE officers in this pilot program used a device called a SoToxa Mobile Test System.  This device tests a DUI suspect’s saliva for the presence of amphetamines, benzodiazepines, cannabis (delta 9 THC), cocaine, methamphetamines, and opiates. As such it is only used to give a yes/no answer to the question of whether a drug is present. The test does not give a number, or a quantitative drug level. Therefore, it cannot indicate if a driver is actually DUI.

Allowing the sale of pre-made cocktails and other types of alcoholic beverages to be sold carry-out may increase the numbers of drunk drivers on Michigan’s roads. However, because the answer to how carry out liquor sales will impact instances of DUI is not clear-cut, only time will tell if this potential for increased DUI becomes reality.

A good argument can be made that the new carry-out laws will have zero impact on DUI in Michigan. But these arguments assume that the bars and restaurants will be keeping a close eye on their patrons after the carry-out sale is made. If the persons consuming the alcohol are under less scrutiny from the persons selling it, and therefore less likely to get “cut off” before becoming intoxicated, then the new law may create a greater likelihood of drunk drivers.

The covid-19 restrictions imposed by Governor Whitmer have hurt the bottom line for all of Michigan’s bars and restaurants, and these new bills are intended in part to create a new stream of revenue and help these small businesses survive. For example, as quoted in the Detroit Free Press, Ben Giovanelli, who is the president of the Rochester Downtown Development Authority, believes that outdoor sales will be the key to survival for many bars and restaurants, who are still only allowed to operate at half-capacity.  Social districts can help make up the difference.

Due to Governor Whitmer’s business restrictions imposed in March, all of Michigan’s bars and restaurants were shuttered for nearly three months. That has created a lot of pent up demand, and now that they are open, patrons will be filling tables and bar stools all around the State with gusto. The police have also vowed to increase patrols, creating a potent combination for skyrocketing DUI arrests.

Additionally, Michigan’s citizens have been forced to stay at home and shelter in place since early March 2020.  For most of this time, Governor Whitmer precluded gatherings of any size outside of household residents and family members.  People tried to socialize via Zoom happy hours, but this is a pale substitute for going out and spending time with friends.  Many are ready to finally resume their normal activities, and this means patronizing local bars and restaurants.

It is helpful to know that drinking and driving is legal in Michigan, so there’s nothing illegal about going out and tossing back a few with friends. What is illegal is to drink enough alcohol to become either impaired or intoxicated. One way to know if you are intoxicated is to check your bodily alcohol level and see if you are at or near the legal limit in Michigan of .08.  The trouble is, there is no reliable way for a “civilian” to check their breath. The portable breath testers on the market all have limitations and while they make fun party favors, they can and should never be relied on for legal purposes. This is true, if for no other reason, because all measuring equipment must be routinely calibrated to assure accuracy and reliability, and this requires the use of a reference standard.  Not only are reference standards hard to obtain for non-law enforcement personnel, they are expensive and difficult to use.

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.

All drivers arrested for DUI in Michigan will have their breath tested by a breath testing instrument called the DataMaster DMT. The evidence produced by this breath test device will become crucial evidence in their subsequent drunk driving charge, so it is essential that the breath test results produced be accurate, precise and reliable. The Michigan State Police are charged with the responsibility of maintaining these breath testing instruments so as to assure their accuracy, and it was recently discovered that MSP’s quality assurance program was marred by fraud.

Important Background Information Regarding Fraud in Michigan’s Alcohol Breath Testing Program

National Patent Analytic Systems (NPAS), a corporation headquartered in Mansfield Ohio, is the manufacturer of the infrared evidentiary breath testing instrument known as the DataMaster.  These instruments began with the introduction of the BAC Verifier in 1981. The DataMaster predecessor was the BAC Verifier, which was originally manufactured by Verax  Systems, Inc. of Fairport, New York. Verax sold the rights to the BAC Verifier to National Patent Analytical Systems (NPAS), who then moved their business, including the actual manufacturing processes, to Mansfield, Ohio.

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.

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.

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