Michigan Criminal Defense Lawyer Blog

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:

In Michigan DUI Cases Prosecutors have Duty to Provide Evidence of your Innocence

Published on: September 2, 2016 | by Patrick Barone

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.

Driving Under Influence Drugs Investigations Flawed

Published on: September 2, 2016 | by Patrick Barone

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

New Technology Promises to End Drunk Driving in Michigan

Published on: September 2, 2016 | by Patrick Barone

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?

Drunk Driving’s Grisly Toll Justifies Warrantless Searches of Motorist’s Breath

Published on: September 2, 2016 | by Patrick Barone

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:

Drivers with Pot in Their System up by Fifty Percent Since 2007

Published on: September 2, 2016 | by Patrick Barone

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.

Does Driving Under Influence of Ambien in Michigan Require Specific Intent?

Published on: September 2, 2016 | by Patrick Barone

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.

Five Reasons Retrograde Extrapolation Should Not Be Allowed In DUI Cases

Published on: September 2, 2016 | by Patrick Barone

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.

Wrongful DUI Convictions Resulting from Fake State Forensic “Experts”

Published on: September 2, 2016 | by Patrick Barone

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.

Michigan Criminal Defense Law Blog

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