Michigan Criminal Defense Law Blog

In Tennessee, a person convicted of DUI would be ordered to pay a “Blood Alcohol or Drug Determination Test (BADT)” fee as part of their court costs.  No BADT fee was charged where a case was dismissed, a not guilty verdict returned, or where a defendant pled to a non-DUI related offense.  Then, according to Tennessee law, the BADT fees collected were paid ultimately to the Tennessee Bureau of Investigation where they were used for all TBI agency operational costs.  The blood testing portion of these fees had recently been increased to $250.00, and the Tennessee forensic lab relied on these BADT fees, and the recent increase, to fund the largest portion of their operating expenses.  This is all written in past-tense language because a Tennessee Court of Appeals has recently ruled that this practice was unconstitutional.  Specifically, the court found:

Because the money from the $250 BADT fees is placed directly in the intoxicant testing fund which is “designated for exclusive use by the TBI,” there is no question that the TBI, an agency of the State, has a direct pecuniary interest in securing convictions. The TBI forensic scientists also have a financial interest in securing convictions because the collection of the BADT fees affects their continued employment and salary, which gives them an incentive to find that defendants’ blood alcohol content is 0.08% or higher.

There are many interesting things about this opinion, not the least of which is the fact that it lays bare the assertion by the States that their forensic labs are independent.  In Michigan for example, the lab techs that test blood samples for alcohol proudly testify that they care not what the results are because they only care about the integrity of the science they employ. In other words, they attempt to hide behind a veil of scientific objectivity. This is a great sound-bite for the jury but that does not make it true.

Michigan’s intoxicated driving laws cover intoxication by alcohol and all impairing drugs. Reliably detecting intoxication by drugs is more challenging for law enforcement than detecting intoxication caused by alcohol.  One reason for this is that there is no roadside drug test that can help officers in the field determine the cause of impairment, and to distinguish drug-induced impairment from that caused from more benign causes such as sleep deprivation or certain medical conditions.

It is well-established for example, that alcohol can cause nystagmus, which is a jerking of the eye as it moves across a horizontal plane.  Because of this correlation, the horizontal gaze nystagmus test, which looks for this jerking in the eye, is one of the three standardized field sobriety tests. This alcohol inducted jerking is easy to detect, and police officers around the country can testify in court about their observations during the HGN provided it the test is properly administered. The HGN is also part of the 12-step drug recognition protocol because some drugs other than alcohol can also cause nystagmus. However, a limitation for both prosecutors and defense attorneys is that police patrol vehicle video recording equipment is not able to record the nystagmus that officers ostensibly observe.

A novel solution to this need for a reliable roadside test for drugs, and the limitations of no HGN recording, has been developed and involves recording and analyzing the movement of a person’s eyes.  This technology is currently undergoing a new round of funding and Michigan drivers may be subjected to it in the near future.  As of the date of this article this technology is being used in Colorado, California, and Tennessee.

Existing law may be sufficient to convict an intoxicated occupant of an autonomous vehicle of drunk driving. This is because the law in most states contains a sufficiently broad definition of the term “operate.”  Public safety is likely to be the paramount concern of the courts as they grapple with this important issue.  It is also possible that state legislatures will step in with laws to cover the various scenarios that will arise in the era of autonomous driving.

It remains to be seen if this issue will be addressed by our legislatures before or after autonomous vehicles become common.  History has shown that lawmaking lags technology, so it seems likely that various test cases will arise around the country before state legislatures address this issue.  Baring specific legislation, courts in the various states will apply the existing common law, and this will dictate their decision.

Currently, relative to non-autonomous vehicles, most states have very broad definitions of the term “operate[i]” such that in most of the circumstances that arise with non-autonomous vehicles, the occupant will be found to be “operating” even if they are not literally “driving.” This broad definition arose in case law around the county to cover situations where a traditional definition of operating would otherwise fail, such as those cases involving intoxicated occupants found sleeping inside their vehicles, or in other circumstances where the vehicle is not moving. This drunk operation case law will be discussed in some detail below.

Yes, a sleeping driving can be convicted of drunk driving in Michigan provided there is enough circumstantial evidence to establish operation.  In a recent Michigan case[i] affirming a drunk driving conviction involving a sleeping driving the court inferred that the driver operated his vehicle because did not live on the road he admitted being on and did not start his evening there.

However, on appeal, the driver argued that he was not operating the vehicle because the engine was not running, and he was asleep. When pleading guilty, the driver indicated he “got in the seat, turned the radio on, keys in the ignition, cops pulled up, knocked on the window, [he] answered the questions and that was it ….”

There are three elements necessary to an OWI conviction, as follows:

The National Academies of Sciences, Engineering, and Medicine has issued a report entitled Getting to Zero Getting to Zero Alcohol-Impaired Driving Fatalities – A Comprehensive Approach to a Persistent Problem (2018).  Reading the report, it appears that the “zero” the Academy is really calling for is zero tolerance, as in no legal limit, making any alcohol level illegal and therefore, ushering in, for all practical purposes, the new alcohol prohibition.

In this report, the Academy recommends the following eight action steps:

1. Lower legal limit to .05 nationally.  The Academy report indicates that the current .08 is ineffective at “getting to zero” because “an individual’s ability to operate a motor vehicle (including a motorcycle) begins to deteriorate at low levels of BAC, increasing a driver’s risk of being in a crash.”
2. Much higher alcohol taxes – the Academy recommends “significant increases” in alcohol taxes.
3. Reduction in alcohol availability – the report effectively recommends that alcohol advertising be illegal.  Specifically to impose content standards and limitations on advertising, and to “promote and fund counter-marketing campaigns.”
4. Sobriety checkpoints everywhere– the Academy’s report also recommends a checkpoint on every corner; specifically: “states and localities should conduct frequent sobriety checkpoints in conjunction with widespread publicity of these initiatives.”
5. Four years of an ignition interlock for all DUI offenders – the Academy is a big proponent of BAIID (breath alcohol ignition interlock devices).  Specifically, they are calling for BAIIDs “for all offenders with a BAC above the limit set by state law.”  They claim to have evidence that shows the need for a necessary minimum BAIID monitoring period of two years for a first DUI offense and four years for a second DUI offense.
6. More DWI courts – also known as sobriety courts or adult treatment courts.  The Academy is calling for an increase in their use and availability.  Also, everyone needs to get evaluated for an alcohol use disorder and treatment strategies should be employed for binge drinking.
7. More alternative transportation – Relative to this issue, the Academy is once again calling for government action to support more alternative transportation and to develop and employ policies and programs that make alternative transportation more available and more affordable, especially in rural areas.
8. Alcohol technologies in every car – And as their coup de gras the Academy is calling for alcohol interdiction technologies in every car; specifically for the National Highway Traffic Safety Administration to make a “Driver Alcohol Detection System for Safety” mandatory on all new vehicles.

It’s interesting to note that in Michigan before we had a .08 legal limit in 2003, we had .10 legal limit and before that, a .15 legal limit.  Why did the government consider a bodily alcohol level of .15 to be a “safe” limit for driving back in the 70s, yet today, in order for us to get to zero, we need to have a legal limit of one-third of this original legal limit?

On January 15, 2018, Patrick Barone became the only Michigan lawyer who is Board Certified in psychodrama, sociometry and group psychotherapy.  This certification, provided by the American Board of Examiners, is the culmination of training that he began in 2010.

Mr. Barone first experienced psychodrama in 2007 at the Gerry Spence Trial Lawyer’s College (TLC).  Gerry Spence started the TLC in 1994, and since this time the theory and practices of psychodrama have formed the foundation of what is called the “TLC” method.  Mr. Spence is considered by many to be the greatest living trial lawyer.  When Geoffrey Fieger needed representation, he turned to Gerry Spence, who successfully defending him 2008.  For more information about this trial see the ABA post entitled Spence’s No-Loss Record Stands with Fieger Acquittal.  Since 1994 the staff and students at the TLC have experimented with expanding and improving the TLC method.

While Mr. Barone was training in psychodrama and sociometry it became evident that the methods, tools, interventions, theory, and practice of psychodrama were all cross-purposeful.  They have as much application in, for example, the boardroom as they have in the courtroom, and Mr. Barone has used and continues to use them in both.