Articles Posted in OWI

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Barone Defense Firm Partner and Senior Trial Attorney Michael J. Boyle recently was one of the guest presenters at the Criminal Defense Attorneys of Michigan (CDAM) Fall Conference at Boyne Mountain.  The annual seminar was attended by hundreds of criminal defense attorneys from throughout the State of Michigan. CDAM is one of the largest and well-respected membership groups in the State and is dedicated to the improvement of criminal advocacy across all practice areas in the criminal justice system.

Boyle accepted the invitation to speak and was the only attorney that presented on two topics.  He presented on Secure Continuous Remote Alcohol Monitoring, known as SCRAM, and he also did a presentation on Self-Defense and understanding Michigan’s Stand Your Ground and the Castle Doctrines.

Boyle has enjoyed the opportunity over the last several years to be part of the process of educating and teaching other lawyers the complex understanding and best practice techniques in representing clients on multiple disciplines. He has presented on numerous occasions for the Michigan Association of OWI Attorneys (MIAOWIA), the State Bar of Michigan Marijuana Law Section, CDAM, and the Ohio Association of Criminal Defense Lawyers (OACDL).

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As Michigan’s drunk driving laws have continued to evolve, the range and type of punishment upon conviction has continued to increase over time. In the 70s when DUI laws were just beginning to be taken more seriously by drivers, police, prosecutors, and judges alike, punishment was usually limited to a fine and points on the offender’s driving record.

In the 80s, the DUI laws of the 70s were being amended, and these amendments almost always included some new or increased penalty. Jail time began to be considered for repeat offenders and in those cases involving serious injury or death. Fines and costs began to increase, and a variety of driver license sanctions such as restricted driving and a suspension of driving privileges.

The 1990s ushered in a whole new slew of increasingly draconian DUI laws, and the current incarnation of Michigan’s DUI laws dates back to 1999. It was at this time that the definition of DUI changed in Michigan as well. Previously, an offender could be charged with OUIL, UBAL or both. Charges were frequently reduced to reckless driving or “OWI,” which prior to 1999 meant “operating while visibly impaired.”

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Michigan drivers arrested under suspicion of intoxicated driving will have their bodily drug and alcohol levels tested by the police. When drugs including marijuana are suspected, a police officer will see if that distinct marijuana smell is present. Many OWI lawyers near  me wrongly believe that DUI cases involving blood tests can’t be defended. The Michigan DUI lawyers at the Barone Defense Firm alcohol, the police will take and test a blood sample. The forensic method used for blood testing is considerably more complicated. Our law firm however believe that in some ways blood test cases are easier to defend. This belief is born out of a comprehensive knowledge about this complex scientific method.

To help other lawyers understand forensic blood testing in DUI cases, the Michigan Association of OWI Attorneys (MIAOWIA) periodically presents seminars on this topic. Barone Defense Firm founding criminal defense attorney near me Patrick Barone, and Partner Michael Boyle, were both closely involved in the creation of MIAOWIA, and Mr. Boyle currently serves as an officer to the group.

As an example of Mr. Boyle’s expertise as well as his commitment to helping other lawyers get better at defending Michigan DUI cases involving blood test evidence, in early October 2021, he served as a host, moderator, and presenter for the Michigan Association of OWI Seminar on Blood Alcohol.  Mr. Boyle is an original member of MIAOWIA, which is membership dedicated to the education and training of attorneys throughout the State of Michigan in the complex litigation and representation of individuals charged with Operating Under the Influence of Alcohol and/or Drugs.

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Yes, a DUI Michigan can be expunged (set aside). If your DUI case is not expunged, it will stay on your criminal record for life. This is true of all DUI convictions, and this means your prior criminal history can be seen by potential employers. For many people, this is one of the most serious DUI penalties. Once your record is expunged, your past DUI charges will be removed from many public records.

Stipulations do exist when looking at getting your drunk driving conviction removed from your criminal record:

  • You can only have one OWI expunged in your lifetime
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A Michigan implied consent hearing is an informal hearing where the officer that arrested you for drunk driving provides testimony to prove that you unreasonably refused a breath blood or urine test. Before we move on with a further discussion of the hearing, let’s review the concept of implied consent, and how it applies in a Michigan drunk driving case.

The Legal Fiction of Implied Consent

Both the Michigan and the United States Constitutions provide that the police can’t search you, your home or your car without a warrant. Thus, before the police may proceed with a search of your breath, blood or urine, they must first obtain a warrant. However, there are many exceptions to this warrant requirement and consent is one of them.  This is where the legal fiction of implied consent comes into play.

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Police in Michigan continue to use unreliable chemical and field sobriety tests when investigating drivers suspected of using cannabis. This can lead to sober cannabis users being wrongfully convicted of intoxicated driving. This is because the tools used for decades to investigate drunk driving cases simply do not translate well to the investigation of drivers believed to be under the influence of marijuana.

These conclusions are drawn from a 2020 research study conducted by the National Institute of Justice. This federally funded research study resulted in the production of a final written overview which was subsequently submitted to the U.S. Department of Justice. The title of the overview is Differences in Cannabis Impairment and its Measurement Due to Route of Administration. (Hereafter “NIJ Study”).

What did the NIJ Study Conclude?

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The United States Supreme Court has recently ruled that the community caretaker exception to the search warrant requirement does not apply to a person’s home. The name of the case is Caniglia v. Strom, and in a unanimous opinion the Court found that guns seized by the police after entering a home without a warrant were not admissible in evidence on the basis of the community caretaker exception.

The Caniglia case involved a married couple who had been arguing in their residence. During the fight the husband grabbed his gun and told his wife to shoot him.  The wife took possession of the gun, and put it away, hiding the ammunition. She later left the house to stay at a hotel, and because she was worried that her husband might suicide, she called the police. The wife then met the police back at their home where the husband had remained.  The police instructed the wife to stay in the car as they interviewed the husband.

The police believed that the husband posed a danger to himself and called for an ambulance to take him for a psychiatric evaluation.  He claimed the police agreed that if he went to the hospital, they would not take his guns whereas the police claimed he consented to a search of his home.  The wife, believing the officers that her husband had consented, then guided the police to where the guns were inside the home, and the police took possession of them.  No arrest was made, and no charges were brought against the husband.  The guns were eventually returned, but the Caniglia’s filed a lawsuit, nevertheless, claiming a violation of Section 1983 under the Second, Fourth and Fourteenth Amendments. In the lawsuit the Caniglia’s sought money damages as well as injunctive and declaratory relief.

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The Michigan Court of Appeals has indicated, in the unpublished opinion of People v. Adam Robe, (COA# 355005); that a failure to wait 15 minutes before administering a roadside preliminary breath test (PBT) meant that the trial court could not consider the PBT in determining if the arrest is valid. This ruling may lead to the dismissal of the intoxicated driving causing serious injury charges pending against Mr. Robe.

The Robe case involved a two-vehicle accident. When the police arrived to assist, they immediately went to the vehicle where the driver had sustained serious injuries. Later then went to talk with Mr. Robe, and after about 3 minutes asked him to take a PBT.  He consented, and thereafter was arrested and charged with drunk driving causing serious injury.  Before trial, the defendant’s attorney filed a motion to dismiss, arguing that the PBT was not administered according to the administrative rules which require a 15-minute determination. No field tasks were administered, and the arrest was based almost solely on the failed PBT.

The trial court denied the motion, and rather than stand trial at that moment, the defense attorney asked for a “stay of proceedings” to pursue an “interlocutory appeal.”  In other words, the defense attorney wanted an answer to this legal question about the PBT before putting Mr. Robe’s fate before a jury because if the attorney was right, and the arrest was unlawful, then there would be no trial. The drunk driving causing serious injury charge would have to be dismissed.

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In the case of People v. Pagano, the Michigan Supreme Court has indicated that a traffic stop based only on an anonymous 911 call is invalid. This ruling affirmed the District Court’s dismissal of both the child endangerment drunk driving and open intoxicants in a motor vehicle charges.

As the Pagano opinion indicates, the police received information from central dispatch that a woman was obnoxious and yelling at her children and appeared to be intoxicated.  The 911 caller also provided identifying information about the vehicle driven by the ostensibly intoxicated woman, including the license plate number and make and model of the car.

The Michigan Supreme Court, in the unanimous Pagano opinion, held that information provided to and by the officer failed to establish a “reasonable and articulable suspicion” either that a traffic violation had occurred or that criminal activity was afoot. While the Court acknowledged that the 911 caller was able to appropriately identify the individual involved and the car being driven by her, the tip still did not give rise to anything more than, at best, an “inchoate or unparticularized suspicion” of criminal activity. Otherwise, there was nothing in the record to suggest that the police officer making the traffic stop corroborated the 911 caller’s mere assertion that the driver was drunk.  There was no bad driving observed by the police officer, and the stop was based only on the information provided to the 911 caller.  After all, said the Court, parents can obnoxiously yell at their children without being drunk, and the 911 called also did not indicate that any bad driving was observed.

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In this Michigan Intoxicated driving causing death, the defendant Willett entered a no contest plea thereby admitting that he was operating a motor vehicle with the presence of any amount of marijuana in his body, and that the operation of his vehicle caused the death of another, under Michigan Compiled Laws § 257.625(4)(a)and (8).

Mr. Willett was sentenced to 4 to 15 years of imprisonment. Prior to sentencing the defendant, the court questioned him about his marijuana use, and the defendant, then 21 years of age, admitted he used marijuana daily and had started using marijuana at age 14 or 15.  The court concluded the pre-sentencing colloquy by admonishing the defendant and stating to him that it was his use of the drug that lead to the horror of the accident and death. On appeal the defendant argued that the court’s sentence was based on inaccurate information, and the Michigan Court of Appeals agreed.  The case was reversed and remanded.

The facts of this case include an admission from the defendant, at the roadside, that while he was driving, he was getting sleepy and closed his eyes. He crashed into the car in front of him immediately after opening his eyes, creating a multi-vehicle accident leading to the death of one of the vehicle’s occupants.

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