Michigan Criminal Defense Lawyer Blog

48th District Court Judge in Bloomfield Hills, Michigan Finds Prejudice when Drunk Driving Case Set for Trial Then Dismissed

Published on: September 12, 2016 | by Patrick Barone

The Barone Defense Firm recently handled a drunk driving case in Bloomfield Hills 48^th District Court. The case involved a person who was stopped for weaving and running a red light. According to the police officer, this driver failed the field sobriety tests, and was arrested. He later had his blood drawn, and the result of the blood test suggested a bodily alcohol level of .136 grams of alcohol per 100 milliliters of blood. The driver had been arrested for DUI previously, so this was his second offense.

This second offense drunk driving was prosecuted by the Oakland County Prosecuting Attorney’s office. As is typical for this prosecutor, no deals were offered so the matter was set for trial. A few days before the trial date the prosecutor filed a “Daubert” motion, arguing that the defendant’s expert was unqualified and should not be able to offer his opinion at trial that the blood test result was flawed, inaccurate and unreliable. The motion was scheduled for the first day of trial.

On the first day of trial, the assistant prosecutor handling the case indicated to the judge that she had no witnesses and could not proceed. Accordingly, she asked the judge to dismiss the case. We had no objection to the dismissal, so long as it was “with prejudice.” The assistant prosecutor asked that it be without prejudice. In this context, legal “prejudice” essentially means “final determination.” Said differently, we were arguing that jeopardy should attach so that the case could not be tried at a later date. Jeopardy arises out of the Fifth Amendment to the Constitution, which indicates “[N]or shall any person be subject for the same offense to be twice put in jeopardy.”

Barone Featured in September Super Lawyer’s Magazine

Published on: September 10, 2016 | by Patrick Barone

Michigan DUI lawyer Patrick T. Barone was recently featured in an article appearing on page 5 of the September 2016 Michigan Edition of Super Lawyers. This edition of the Super Lawyer’s magazine was sent to all of Michigan’s more than 33,000 lawyers and judges. For the general public searching for a Super Lawyer, there is also a digital version on line, and even an app that includes the featured list that is searchable by location.

Super Lawyers is a rating service, and each year Super Lawyer’s Magazine uses their “patented selection process” to find and report on Michigan’s outstanding lawyers and rising stars. The selected lawyers are then compiled, and the results of their research are published in a Super Lawyer’s Magazine.

In addition to the lawyer listings, the Editors of Super Lawyers Magazine also looks to write about lawyers on their Super Lawyer list who have, for example, have handled landmark cases, have innovated their firm or practice in some way or have compelling personal stories about their lives/careers. Specifically, the September Super Lawyer’s article addresses Mr. Barone’s journey toward psychodrama certification as well as his incorporation and trial use of action methods borrowed from psychodrama.

How to Avoid a False Positive on Breath Alcohol Ignition Interlock Devices

Published on: September 8, 2016 | by Patrick Barone

Michigan drivers arrested or convicted of drunk driving might be ordered to have a Breath Alcohol Ignition Interlock Device (BAIID) installed on their car. Some judges will require a BAIID to be installed as a condition of bond. Other times, a BAIID can be a condition of probation. With a high BAC case (test result at or above .17) a BAIID will be a condition of obtaining a license. Repeat offenders suffering from license revocation will be required to have a BAIID installed as a condition of later obtaining driving privileges. Sobriety courts also use BAIIDs as part of their programs.

In each of these instances, a positive alcohol test on the BAIID will result in serious consequences, ranging anywhere from jail time to additional license sanctions. A frequent question then is how does one avoid a false positive. That is, if you have a BAIID on your car, how can you avoid having a false positive reported to the court?

The best and most obvious way to avoid a “false” positive is to not drink. Sometimes a person who is ordered to stop using alcohol, but who knows when they will be tested, tries to outsmart the system by drinking only a little and hoping that when they are testing, the alcohol will have left their body. This idea is not only wrong; it’s doomed to fail.

History Repeated: The Resemblance Between Medical Marijuana and Alcohol Prescriptions During Prohibition

Published on: September 8, 2016 | by Patrick Barone

In history there’s an adage that what’s old is new again. This certainly seems to be the case with Michigan’s Medical Marijuana act which allows a caregiver to legally sell marijuana to a patient bearing a valid prescription. Otherwise, it is illegal to sell, use or possess marijuana.

During prohibition it was similarly illegal to sell, use or possess alcohol. One exception to this prohibition was the alcohol prescription. According to the Smithsonian Institution’s web site, during prohibition your doctor could write you a prescription for booze. This would allow “patients” to purchase a pint of booze every ten days!

History buffs will be interested to know that during prohibition a particularly creative lawyer by the name of George Remus took full advantage of this “loophole.” First, he used his contacts in Washington to pass laws that he could take advantage of to build a mostly legal business empire. To do this, he purchased all the standing liquor, meaning that already produced by distillers around the country. He used his connections to get “withdraw permits” and he arranged to have this withdrawn booze sold to drug companies that he also owned. This booze would then be sold to pharmacies that would fill the alcohol prescriptions. In this way Remus became both buyer and seller, thereby assuring the uninterrupted availability of alcohol to anyone who wanted it. To learn more, watch Ken Burns documentary about Prohibition.

Does Michigan’s New Law Require Police to Properly Administer Roadside Sobriety Tests?

Published on: September 8, 2016 | by Patrick Barone

Nearly all drunk driving arrests in Michigan consist of four parts; (1) some sort of bad driving leading to a traffic stop, (2) roadside or “field sobriety tests,” (3) roadside breath test for alcohol, or saliva test for drugs, and; (4) second breath or blood test to confirm roadside test.

Regarding roadside field sobriety testing, Michigan law has been moving toward requiring that field sobriety tests be administered according to the standardized protocol. For example, prior Michigan cases have indicated that the Horizontal Gaze Nystagmus (HGN) must be administered properly and that the officer administering the test must be qualified to perform it. (Berger). Another Michigan drunk driving case indicates that an officer’s incorrect administration of the HGN test will lead to an inaccurate interpretation of the results. (Mullen). So far, however, no published Michigan drunk driving case has defined “standardized field sobriety test” or required either strict or substantial compliance.

A newly amended Michigan drunk driving law changes that, at least temporarily. This new law is part of the broader package of laws creating a pilot program pilot that aims to test the use of saliva testing to screen potential drugged drivers on the road side.[i]

Michigan Police to Begin Testing Intoxicated Drivers Saliva for Drugs

Published on: September 8, 2016 | by Patrick Barone

Michigan DUI laws have recently changed, and beginning in September 2016, Michigan drivers who appear to be driving under the influence of a drug other than alcohol may be required to submit to a preliminary roadside drug test. This preliminary test will be in the form of a saliva test.

The reason for this change in the law is that for many years law enforcement has claimed that people drive under the influence of drugs 7 times more often than alcohol. They also claim that the number of fatal car accidents caused by drivers under the influence of drugs has increased 5% year after year. One of the problems law enforcement has faced relative to drugged driving cases is that they lacked a reliable inexpensive roadside test for drugs. That apparently has changed with various saliva drug tests recently coming to market.

In consideration of this newly available saliva test, Michigan has passed a couple new laws to allow it’s use by Michigan police. Thus, on June 23^rd, two separate Public Acts were signed by Gov. Snyder, both regarding a pilot program that aims to test the use of saliva testing to screen potential drugged drivers on the road side.^[i] Both of these acts will take effect on September 22^nd and are codified under MCL 257.62a, 257.625r, 257.625s, and 257.625t.

Michigan State Police Admit They Botched 4000 Alcohol Blood Tests

Published on: September 8, 2016 | by Patrick Barone

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.

Drunk Drivers May Be Ordered to Wear Alcohol Sensing Tattoo

Published on: September 7, 2016 | by Patrick Barone

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.

Drunk Driving Traffic Stops and Interlocks

Published on: September 2, 2016 | by Patrick Barone

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.

Are Jail DUI Blood Draws Valid?

Published on: September 2, 2016 | by Patrick Barone

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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