Articles Posted in OWI

Yes, Expert Witnesses and Expert Lawyers are Often Necessary for a Michigan DUI Case.

The reason this is so important is that a Michigan drunk driving arrest will nearly always involve scientific evidence such as a breath or blood test. When death or serious injury is involved, additional expertise in traffic reconstruction is necessary. Retaining a lawyer who understands this evidence is essential, and so is a lawyer who knows how to find and use appropriately qualified expert witnesses.

A new United States Supreme Court case involves just these issues[i]. Here the court took up a case involving the interplay between the requirements for effective assistance of counsel and the necessity to hire expert witnesses – just as with any Michigan drunk driving case.

The case involved a murder occurring during an after-hours robbery of a restaurant. There was a similar robbery at another restaurant, which also involved a shooting. A total of six .38 caliber bullets were retrieved from both crime scenes. A .38 caliber revolver was found at the suspect Hinton’s home, and the prosecutor sought to link Hinton to both murders. The revolver and six bullets were the only physical evidence. Thus, the state’s case turned on whether the prosecutor’s expert witnesses could match the gun to the bullets found.

If you tend to get drunk easily because you don’t drink much, have taken certain kinds of medication, or have not slept, then you are better off keeping this information to yourself. In other words, if you are stopped because an officer suspects drunk driving, you are well-advised to exercise your Fourth and Fifth Amendment rights and remain silent. Yes, you should cooperate and provide necessary information such as your identity, proof of insurance, and such. Just be sure not to make any potentially incriminating statements.

A DUI case out of Oregon addressed this issue and helped to answer this question. In this case, the defendant was convicted of driving under the influence of intoxicants after a jury trial. At trial, the court told the jury that the defendant had a physical condition that increased their susceptibility to the influence of alcohol than he or she would otherwise have under the influence of intoxicants. (Miles instruction)[i].

Although the defendant and their OWI defense attorney objected to the giving of the Miles instruction, the court reasoned that the instruction was justified because the defendant informed law enforcement officers at the time of his arrest that he had taken pain medication for a bad knee. On appeal, the defendant argued that the trial court erred in giving the Miles instruction. To provide this instruction in Oregon, the government must show that there is “evidence that the defendant’s condition made him more susceptible to the influence of alcohol.” [ii] In this case, the State admitted that there was no such evidence, and that the evidence about the pain medication for a bad knee was insufficient for the jury to make such an inference. Thus, the trial court was reversed because the trial judge should not have given the instruction.

There are three categories of consequences that can arise out of a drunk driving conviction. The punitive sanctions are those that the judge imposes after you are convicted, and include things like jail time, fines and costs, community service, etc. The driver license sanctions are those imposed by the Secretary of State.

For example, once you’ve been convicted of a high BAC/Super-Drunk case, your license will be suspended for 45 days followed by 320 of restricted privileges with an ignition interlock device.

But, the most significant consequences of a drunk driving conviction are often the collateral consequences.

Michigan has been particularly hard hit by Covid-19, and our Governor Gretchen Whitmer has responded with a series of executive orders effectively ordering residents into house arrest. Under the most recent shelter in place Executive Order 2020-42, citizens are allowed to leave their homes only for things necessary to sustain life, such as to obtain food and medicine. Even then, Michigan’s governor has ordered that citizens make maximum use of delivery services, meaning there is a near total lock down until May 1, 2020. Consequently, all bars and sit down restaurants remain closed, as are public gatherings of almost any size, even in one’s home.

While alcohol consumption in Michigan is on the rise during the pandemic meaning people are now drinking copious quantities inside their homes, often as part of a virtual happy hour with friends, they are not leaving their homes or driving their cars. As a result, the Michigan’s economy is at a near halt, and with it, so too are DUI arrests.

On top of this, police resources are strained by covid-19 personnel losses, and the already strained police forces are refocusing efforts toward enforcing the governor’s shelter in place orders, a misdemeanor punishable by up to a $1,000 fine and up to 90 days in jail. With the roadways nearly empty, and fewer police on patrol, far less traffic stops are occurring.

It has been widely reported in a rather sensational story that a 6-time murderous drug dealer from the City of Detroit avoided jail by becoming a DEA informant. The big questions are what did the DEA know about their informant’s background, and did the information he provided justify the informant’s extraordinary deal?  According to Barone Defense Firm attorney Keith Corbett, the DEA knew about their informant’s dangerous criminal history and the DEA’s deal was a bad one.

This story, which was widely reported in the Detroit area news media, was eventually picked up by the United Kingdom’s Daily Mail.  The individual involved is Kenyel Brown, and according to the UK Daily Mail article “Brown was hired as an informant for the Detroit Police Department and the Drug Enforcement Administration in a joint task force.”  Our local paper, the Detroit Free Press reported that Brown was released from custody at the request of federal law enforcement officials. It was U.S. District Judge Bernard Friedman who actually signed the release.

In addition to the alleged 6 murders, Brown had other criminal legal problems.  For example, he violated the terms of his probation by failing to remain abstinent from drugs and alcohol, missing mandatory meetings, and, picking up a drunk driving charge!  Judge Freedman was aware of all this, but decided to give Brown a break because, in addition to all of his criminal wrongdoing, he was “doing some of the right things” too.

In a series of public communications, the Michigan State Police have admitted that many of the more than 200 DataMaster DMT breath test machines used in the state were fraudulently certified.  The full extent of the fraud as well as it’s meaning and impact to those arrested and prosecuted for allegedly driving drunk remains to be revealed. In the meantime, the integrity of the breath test results for all drunk driving cases throughout the State is being called into question.  Accordingly, the Michigan State Police (MSP) has ordered that all breath test DMT instruments throughout the State be taken out service immediately. While the investigation into the extent of the criminal activity is investigated, all suspected drunk drivers will have their blood withdrawn for testing. This blood can be withdrawn with the consent of the driver, or by a warrant, if the driver refuses to give blood.

Here is a chronological record of how MSP and their breath test program ended up in this tenuous situation:

1. 1. On September 1^st, 2011, Michigan entered contract # 071B1300379 with National Patent Analytic Systems (NPAS) for the purchase of 300 DataMaster DMT breath test instruments.  This contract, which amounted to over Three Million Dollars, included a three-year period of maintenance to be performed by NPAS employees.

The Michigan State Police have recently announced that they have created the “Diversion Investigation Unit (DIU)” to help combat opioid prescription fraud within the State. The newly formed DIU will investigate licensed health care professionals for possible prescription fraud.  Prescription fraud happens any time a health care professional prescribes or distributes a controlled substance for anything other than an appropriate medical purpose within a proper physician/patient relationship.

An example of this would be writing fake or fraudulent prescriptions for pain killers, including opioids, which have a high potential for abuse. This might happen when a doctor is supplied with names of people who are not his/her patients and he/she then writes them a prescription.  Another example is when a doctor sees a patient one time and writes the opioid prescription without a proper examination and in the absences of a “real” physician/patient relationship.  The patient never returns for follow-up, and the disability leading to the pain being treated is never verified.

Michigan’s DIU will generally look at four things before beginning their investigation:

Former Local News Channel Four Reporter Kevin Dietz recently interviewed Barone Defense Firm attorney Keith Corbett regarding the Medicare Fraud case of Dr. Rodney Moret.  The allegations in this salacious case included that Dr. Moret was trading prescription drugs for sex.  However, the allegations claim that the total amount of Dr. Moret’s fraud amounted to far more than a few sexual favors. Instead, in round figures, the Doctor is alleged to have been fraudulently enriched himself in the amount of 21 Million Dollars.  The video of Mr. Corbett’s interview can be viewed on the ClickOnDetroit website.

Dr. Moret’s behavior in this case, and the way he abused and took advantage of his victims, many of them women, was so egregious that he received a prison sentence of 75 years. He also lost his license to practice medicine.  According to his interview, when asked about why the sentence was so high, Mr. Corbett indicated:

When they misuse that license, when they misuse that position of trust, that’s a factor,” Corbett said. That’s going to be considered by a judge. You don’t want doctors, lawyers abusing their position and taking advantage of people when they are most vulnerable.