If you are stopped under suspicion of drunk driving, and your breath test proves you’re not under the influence of alcohol, you still might be arrested for DUI based on drug impairment. This can include prescription medications.
It is illegal to drive a vehicle while under the influence of any drug in Michigan. This includes legal drugs like marijuana, and illegal drugs like meth and many prescription drugs.
A recent USA Today article describes two different technologies that promise to end the occurrence of drunk driving in Michigan within 5 to 8 years. These include a breath monitoring system that does not require the driver to breathe into a tube, and a sort of fingerprint monitor that measures alcohol through the skin.
The first technology measures the breath of the driver by drawing it into a chamber that compares the amount of carbon dioxide in the breath to the amount of ethanol. Once the ratio passes a certain point, the car won’t start. According to the article the device uses infrared light to make the measurements, the same type of technology used to determine a driver’s bodily alcohol content through breath testing in a drunk driving case in Michigan.
Relative to this particular technology the article is silent relative to how the monitoring device “knows” that it is measuring the driver’s breath alcohol rather than a passenger’s breath alcohol. The article also fails to address what will happen if the ration is below when the car starts but gets above as the car is being operated. Will the car make the driver pull over and stop operating? If so, then can a sober passenger take over?
Citing the “grisly toll on the Nation’s roads,” and by opinion dated June 23, 2016, the United States Supreme Court has ruled that the police are not required to obtain a warrant in order to obtain a breath sample. The same is not true of blood test where warrants are still required. Fundamental to the Court’s analysis is their finding that breath testing is non-invasive, and can therefore be conducted as a “search incident to arrest.” The name of the case is Birchfield v. North Dakota.
The Court’s opinion begins with a brief history of drunk driving and the evolution of breath testing to its current incarnation – infrared spectroscopy. Included in this history is the fact that the Nation’s first “legal limit” was 0.15%. The legal limit was later dropped to 0.10% and then dropped again to the current National standard of 0.08%.
The Birchfield opinion embraces and discussed three separate but related cases as follows:
According to the Government statistics, (National Highway Safety Administration), in the last forty years, the number of drunk drivers on the road is down by more than 70%! However, based on statistics from the last seven years, the number of driver with pot in their system is up by 50%!
With DUI alcohol arrests significantly down everywhere the government and police agencies, including those in Michigan, are turning their attention to arresting DUI drug drivers; particularly those drivers who are “under the influence of marijuana.”
There are many problems with the plan to arrest more Michigan DUI marijuana cases. First, there is no reliable method to determine, at the roadside, if someone is under the influence of marijuana. Still, this was the basis for the recent change in Michigan DUI law that changed the law of roadside testing.
Sleep driving is a well-known side effect of Ambien. Sleep driving is even listed as a side effect of this drug in the product literature. It is nevertheless illegal to be driving under the influence of Ambien. If you are stopped and the police believe that you are under the influence of Ambien in Michigan, then you will be arrested for DUI; just the same as if you were under the influence of alcohol. This might be true even if you never intended to commit this crime.
In Michigan driving under the influence of Ambien is considered to be a general intent crime. This means you do not have the specific intent to commit a DUI to be convicted of it in Michigan. One reason for this is because intoxication is a defense to specific intent crimes. If intoxication was a defense to DUI all persons arrested for it could raise intoxication as their defense.
However, an arrest is not a conviction. Depending on the facts of your case, it may still be possible to raise a defense to the driving element, because even in Michigan a DUI requires the specific intent to drive. This defense has been successful in many prior Ambien cases in Michigan. In other words, even if the totality of the crime is general intent, the driving element is specific intent.
I have written previously in this blog about the unreliability of retrograde extrapolation in drunk driving cases.
This is an important topic because state experts in drunk driving cases often will come into court and try to convince the jury that the driver’s blood alcohol at the time of the driving was higher than at the time of the test.
This practice is very common in OWI Causing Death cases because the blood evidence is usually several hours old.
Many drunk driving cases in Michigan and elsewhere rise and fall on the testimony of experts. This is because the rules of evidence provide that only expert witnesses can offer their opinion at trial.
Was the breath or blood test reliable? Only an expert can answer that question. A police officer is not qualified.
Did the driver’s medical condition impact the breath or blood test? Again, only a question an expert can answer.
If you have been arrested in Michigan for drunk driving, then the police officer may have administered an eye test called the “horizontal gaze nystagmus” or HGN test. If so, then the results of this test were probably used as part of the probable cause forming the basis of your arrest. It is essential that this HGN test be administered properly, and experience has shown that often times it is not.
This is important because even what might seem like small deviations from police training can make the HGN test inadmissible. If the test is inadmissible in your case, then it is possible that the arrest is bad, and this could result in the complete and total dismissal of your case.
For example, in People v. Borys, 2013 IL App (1st) 111629, 995 N.E.2d 499 (Ill. App. 1 Dist., 2013) the defendant was charged with aggravated DUI for driving under the influence of alcohol while her license was revoked due to a previous DUI.
The lynchpin of Michigan drunk driving prosecution is a reliable breath testing program. Prosecutors have big problems when this reliability is legitimately called into question.
This is exactly what has happened recently in Texas where it is reported that between 1200 and 4000 breath tests were fraudulently verified.
According to the Houston Chronicle a Department of Public Safety contractor by the name of Deetrice Wallace fraudulently manipulated the state’s breath testing machines causing thousands of wrongful DUI convictions. Instead of changing the reference sample every month as required Wallace instead falsified the tests and pocketed $146,000 in profit.
Michigan law provides that drivers convicted of drunk driving can have their cars forfeited. This means that upon conviction the state can take the convicted drunk driver’s car. In those cases where the car was used without the permission or knowledge of the owner the “innocent owner” defense would apply. If successful this defense would keep the state from grabbing the car.
The Minnesota courts have significantly lessened the applicability of this defense.
According to the Newspaper.com, the Minnesota Supreme Court recently upheld the right of police to confiscate vehicles from owners who have done nothing wrong. The decision narrowed the applicability of an “innocent owner” defense in cases where a vehicle is jointly owned. The high court considered the case of David and Jean Margaret Laase whose then-brand new 2007 Chevrolet Tahoe was confiscated in 2006.
Michigan Criminal Defense Lawyer Blog
