Articles Posted in OWI

On February 4, 2022, Michigan DUI Lawyers Ryan Ramsayer and Michael Boyle will present The ABC’s of OWI Expungement. The seminar his hosted by the Michigan Association of OWI Lawyers and will be presented via zoom. The cost to attend this seminar is $75.00 and is open to all lawyers wishing to learn about Michigan’s new DUI expungement law.

The seminar will be led by Barone Defense Firm senior associate Ryan Ramsayer and will be moderated by Michael Boyle, who is a partner at the Firm.  Mr. Boyle is also a is a Board member with the seminar’s host, the Michigan Association of OWI Lawyers.

Michigan’s new DUI expungement has an effective date of February 19th, and this will allow most people convicted of a first offense drunk driving offense to request that their conviction be expunged. It is expected that winning expungement in many courts will be a daunting prospect, and not one that should be undertaken without significant knowledge of the law combined with thorough and informed preparation together with a deft courtroom presentation. Mr. Ramsayer will be covering all these topics, and more, at the OWI expungement seminar.

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.

On November 15, 2021, President Biden signed into law the bipartisan Investment Infrastructure and Jobs Act (IIJA). This new law contains a provision requiring that all passenger vehicles eventually be equipped with technology that will stop drunk drivers. New cars may start utilizing such technology immediately, but the law won’t require this advanced impaired driving technology any sooner than 2 years from now, though it’s likely to take far longer.

What is the Timeline for Requiring Advanced Impairment Detection Technology?

As previously indicated in our previous article entitled Infrastructure Bill to Combat Drunk Driving by Requiring Alcohol Monitoring Technology the new law does not, with any degree of specificity, indicate what technologies are to be utilized for this purpose.  Instead, the law sets forth a timeline for the Secretary of Transportation to write the specific motor vehicle safety standard. Section 24220(c) indicates that not later than 3 years after the date of enactment of the IIJA, the Secretary of Transportation (SOT) shall issue a “final rule” requiring that a motor vehicle safety standard be added to the relevant section of the federal code.

The bipartisan Investment Infrastructure and Jobs Act (IIJA) seeks to combat drunk driving by requiring all new passenger vehicles be equipped with Advanced Alcohol Monitoring Technology. The drive behind this section of the 2702-page IIJA was led by Michigan Congresswoman Debbie Dingell. MADD also played a significant role in the development of this law.

However, until now, their efforts have focused on requiring all first-time drunk driving offenders to use Breath Alcohol Ignition Interlock Devices (BAIID). The IIJA instead focuses on different type of technology and this technology will be required in all passenger vehicles, regardless of whether the driver has ever been charged with drunk driving.

Congresswoman Dingell and MADD’s combined efforts bore fruit on November 15, 2021, when President Joe Biden signed into IIJA into law. Section 24220 of the Act is entitled “Advanced Impaired Driving Technology” (AIDP) and requires that “drunk and impaired driving prevention technology” become standard equipment in all new passenger motor vehicles.

The number of High BAC Superdrunk OWI and Child Endangerment Cases are on the rise in Michigan. This is due to a variety of factors, including an increase in binge drinking among college educated, divorced or separated males, pandemic isolation and school closures.

One recent study published in Science News[i] suggests that between 2015 and 2019 binge drinking among men 65 and older increased by about 20% from 12.8 percent to 15.7 percent. The study suggests that binge drinking did not increase for older women during the same period. College educated women and separated or divorced men were both also at higher risk of binge drinking. The use of marijuana or tobacco increased risk of binge drinking for both men and woman alike. The study had a sample size of 18.794.

Another study, this one published by Journal of Environmental Research and Public Health, supports the proposition that the pandemic has had a great influence on the recently higher prevalence of both Super Drunk Driving and Child Endangerment OWI.

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:

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:

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.

Note: what follows is a summary recapitulation of Michigan DUI Lawyer Mike Boyle’s CDAM presentation.  Lawyers wishing to know more about how to defend an alleged SCRAM violation may wish to review these materials for more in-depth information:

Secure Continuous Remote Alcohol Monitoring, or SCRAM, is an alcohol monitoring tether that is used throughout the State of Michigan by courts, judges, and probation officers to monitor abstinence of defendants and probationers from alcohol consumption.  There are mixed views regarding the use of SCRAM as a tool to assist in sobriety and for abstinence, but more concerning is the reliability and usefulness of this device.

What is a SCRAM?

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