Michigan Criminal Defense Law Blog

Colorado was one of the first States to legalize the use of marijuana. Michigan has now followed suit and has legalized both the use of medical as well as recreational marijuana. However, in Michigan and all other states, driving under the influence of marijuana remains illegal.  If you are caught driving high in Michigan, you can be charged with operating while intoxicated (OWI), Michigan’s version of driving under the influence (DUI).

The types of PSA, public service announcements long since popular in Colorado, have not yet made it to Michigan. According to the ad campaign in Colorado, here’s what you can do in Colorado while high: grill a steak; play ball; install a TV. Here’s what you can’t do while high in Colorado: drive to get the propane you forgot; drive to see the pros play ball; drive to the store to buy a new TV.

The problem in Michigan is that there is no set standard for knowing when a person is driving high. Because of this, Michigan has considered, but so far rejected, legislation that would create standards for determining when a driver is impaired by their use of pot, such as the creation of a legal limit. This is no easy task, partly because, unlike alcohol, many drivers who are under the influence of pot are still safe on the road.

In nearly every drunk driving arrest, the police officer’s narrative report will indicate the observation of “strong odor of intoxicants.” As with all the facts, it will ultimately be up to a jury to decide the meaning of this observation, and to “weigh” it along with all the evidence in a DUI trial.

Before the case even goes to trial, the odor of intoxicating beverages can also be used by a judge in determining if there was probable cause to make the arrest, to begin with. All of this begs the question; is the odor of intoxicants a reliable indicator of anything, much less a reliable indicator of drunk driving? According to scienctific research, the answer is a resounding no!

The odor of an alcoholic beverage is, as an indicia of intoxication, nearly meaningless because “…even under optimum laboratory conditions, breath odor detection is unreliable…” The results also cannot be used to “guess” the driver’s bodily alcohol level or quantify consumed. Both statements appear in the study entitled Police Officers’ Detection Of Breath Odors From Alcohol Ingestion by Herbert Moskowitz, Marcelline Burns, and Susan Ferguson that appeared in Accident Analysis Prevention 31 (1999) 175-180.

The trial of an alleged drunk driving brings out all sorts of personal biases and strong opinions. In their zeal to gain convictions, prosecutors, often without realizing it, violate their professional ethics. The most common place this happens is during opening and closing arguments. But it often happens during the jury selection question and answer period called voir dire.

The reason certain statements are considered misconduct on the part of a prosecutor is such statements have a disproportionate influence on a jury, misstate the law, or introduce something irrelevant into the process for the juror’s consideration. When a jury finds a defendant guilty or not guilty based on something other than an application of the law as given by the judge, the result is “nullification.”

A great example of this is shown in the case of DiDomenicis v. State, 49 A.3d 1153 (Del. Supr., 2012). In this case, the prosecutor’s opening statement contained the following: (1) when you get a license, and you can operate a motor vehicle, you have a great responsibility, and that responsibility is to yourself, obviously, but also to every other driver on the road. (2) Every day … we see articles and videos about people who get arrested for DUI. Sometimes their first; sometimes their seventh or more; sometimes they’ve been pulled over thanks to a citizen who called 911 or an alert police officer; sometimes because they cause property damage, or they have injured themselves or others. (3) The DUI law was created to safeguard the lives of every citizen on the roads of the State of Delaware. (4) When the General Assembly wrote the DUI law, they wrote it to encompass not just the most minimal conduct possible, driving down the road, but the broadest spectrum to provide the maximum protection to the citizens of this state, and (5) [W]hy so broad? Why not just the people driving down the road? Because the goal is to stop people who are under the influence before they drive away and cause havoc on our roads.

Perhaps one of the most tragic drunk driving accidents in recent memory involved the simultaneous death of a mother and her two boys, aged 12 and 9.  The husband and father of the boys, Mr. Gary Weinstein, was not in the vehicle, and therefore survived the crash that wiped out his family.

The man responsible for the three deaths was driving a Yukon which slammed into the Honda accord occupied by Mr. Weinstein’s family.  He was traveling nearly double the speed limit and had bodily alcohol content more than 3 times the legal limit.  As a result of his reckless disregard for human life, he was sentenced to 19 – 30 years in prison.

At the time of his sentence, Mr. Wellinger, the man responsible for the three deaths, was housed in the Oakland County Jail.  Shortly after, he was transferred to the custody of the state prison system for assignment to the location where he would serve the balance of his sentence.

Being arrested in Michigan for DUI can be a horrifying experience, and when the arresting officer tells you that if you give him kinky sex, you will not be arrested, it can become a total nightmare.

According to a Florida lawsuit, this is exactly what two Florida cops recently did. Both officers are married and have children. That did not stop them from following a vehicle from a strip bar that was occupied by two women and then demanding sex.

As reported in the Detroit Free Press:

Most police agencies in Michigan will make a video recording of their roadside investigation. Depending on where the arrest occurred, this might be either a dashcam or a body cam. As a general rule of the discovery process, the police are required to provide your local OWI lawyer with a copy of the videotape. So what happens if the video is not made or after being made is not produced?

One non-Michigan case finding that dismissal was the appropriate remedy for the lack of a video is State v. Henkel, 404 S.C. 626, 746 S.E.2d 347 (S.C. App., 2013). In this case, there was a 911 call reporting that a motorist was driving a truck erratically on a South Carolina freeway. The caller followed the truck until it hit a bridge and overturned into a ditch. She observed the driver get out of the truck and jump over a fence. Eventually, the police caught up to the driver, who was then being examined by EMS in an ambulance. The officer read the driver his Miranda rights and performed a horizontal gaze nystagmus (HGN) test inside the ambulance. From this, the officer determined that the driver was under the influence and moved him from inside the ambulance to the side of his patrol car.

There, he was asked to state the alphabet and could not, he admitted that he was the driver of the wrecked truck. He was arrested and placed in the officer’s patrol car, where the officer turned the dashboard video camera to face the driver and read him his Miranda rights again. Prior to trial, the driver moved to dismiss the indictment on the ground that neither the field sobriety tests nor the initial Miranda warning was videotaped as required by section 56–5–2953 of the South Carolina Code.

Barone Defense Firm Partner Mike Boyle recently saved his client’s dental license by persuading a judge to dismiss her case. The dismissal was final. In addition to the possible loss of her dental license, this client’s case was also complicated by her need to travel to Canada. This dismissal makes it so that the client will never have to worry about these things again.

Here’s How Mike Earned This Stunning Dismissal

This woman was stopped because the police claimed that she did not activate her headlights. After the dentist hired the Barone Defense Firm to represent her, the first thing Mike did was visit the scene with his client, and inspect the car. He soon realized that the police officer was mistaken, and that realization informed his approach to the defense of her case.

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.