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The Michigan State Police have announced that as many as 4,000 alcohol blood tests are flawed due to improper calibration.  This means that as many as 4000 people arrested for drunk driving in Michigan could be wrongly convicted of a crime they did not commit.

Here’s how the system works: if you are arrested in Michigan for drunk driving, and the police draw your blood to test for alcohol, then the blood sample taken will be sent to a Lansing Toxicology Lab for testing.  The Michigan State Police run this lab that is responsible for alcohol and drug blood testing for the majority of arrested intoxicated drivers.

The process used by the lab is called gas chromatography, and this process requires calibration.  If the calibration is flawed, and it often is, then the blood alcohol or drug level reported by the lab is worthless.

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A new Orwellian technology could be used by courts to monitor the consumption of alcohol by alleged drunk drivers.
If you are arrested for drunk driving in Michigan, then the court will almost certainly order you to stop drinking. This abstinence from alcohol will be a condition of your bond. Various methods are then used by courts in Michigan to assure that you are not drinking. These include random breath or urine tests. Some courts also order that you wear an alcohol-sensing ankle tether, which monitors the presence of alcohol in your perspiration.

A new alcohol sensing technology has just been developed in the form of a wearable skin tattoo. According to Science Daily, scientists at the University of California have developed a tattoo or “flexible wearable sensor” that also measures the presence of alcohol in a person’s sweat. These new tattoos are part of a broader category of wearable chemical sensors that have been and are currently being developed.

In the case of alcohol sensors, these devices usually use sweat as it is the most easily assessable bodily fluid. This fluid is then transported to a receptor that usually converts the alcohol present to an electric current that is then measured, and the results are then processed and transmitted.

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As originally conceived the United States Supreme Court was intended to be a final check on the police power.   And to a lesser extent, so it is with all judges, who collectively form one of our three branches of government.

The central goal behind the idea of having three branches of government is that a separation of power would exist such that each branch would keep the other from gaining too much power.

Because of this there has always been a certain amount of tension between the branches and there has also always been a certain amount of overlap between them.

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If you were arrested for drunk driving in Michigan, then you were probably asked to take either a breath or a blood test.  Michigan DUI laws require that such blood draws be performed in a “medical environment.”  This term is not defined.

In some Michigan municipalities the police will summon a person to come to the jail to draw the blood.  Is the jail a medical environment?  Common sense would suggest that it is not, but many courts have ruled that the jail is in fact a medical environment. However, this is not necessarily always true.  If you were arrested in Michigan for DUI and your blood was drawn in jail, the results may not be valid.

A California case recently addressed a similar issue.  In this case, which involved six separate cases that were consolidated, each defendant was arrested for driving under the influence, after which each was advised by the arresting officer that under California’s implied consent law he/she was required to take one of two chemical tests. All defendants opted for a blood test and were transported to either a   facility or, in one case to a hospital, to have their blood drawn.  The California court found as follows:

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If you are charged with drunk driving in Michigan the prosecutor has a legal and ethical duty to provide your attorney with any evidence that might be helpful to your defense.  This includes things like police reports, witness statements, video recordings or chemical tests.

This legal obligation was affirmed in the recent USSC case of Weary v. Warden.[i]  Decided March 7, 2016, this case stands for the proposition that a prosecutor must disclose to a defendant all material evidence. Evidence qualifies as material when there is “‘any reasonable likelihood’” it could have “‘affected the judgment of the jury.’” To prevail on a claim that such evidence is material a defendant not show that he “more likely than not” would have been acquitted had the new evidence been admitted. He must show only that the new evidence is sufficient to “undermine confidence” in the verdict.

In this particular case, the defendant Michael Wearry was on death row in Louisiana. Wearry’s defense at trial rested on an alibi. He claimed that, at the time of the murder, he had been at a wedding reception in Baton Rouge, 40 miles away. Prosecutor argued in closing arguments that all three witnesses establishing the alibi were related to the defendant.

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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.

The Many Ways a Prosecuting Attorney Can Prove You Were Driving While Intoxicated by Drugs

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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?

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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:

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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.

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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.

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