Michigan Criminal Defense Lawyer Blog

Mistakes in HGN Test Cause Suppression of Officer’s Testimony

Published on: September 2, 2016 | by Patrick Barone

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Dist., 2013) the defendant was charged with aggravated DUI for driving under the influence of alcohol while her license was revoked due to a previous DUI.

Fraudulent Breath Tests Lead to As Many as 4000 Wrongful Drunk Driving Convictions

Published on: September 2, 2016 | by Patrick Barone

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.

Innocent Owner Defense Doesn’t Apply to DUI Car Forfeiture

Published on: September 2, 2016 | by Patrick Barone

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.

Will You Lose Your Car for a DUI Forfeiture?

Published on: September 2, 2016 | by Patrick Barone

To help make up for lost revenue, more Michigan counties are seeing forfeiture of the cars driven by people arrested for DUI. Will yours be next?

If the Oakland County Prosecutor has her way, then the answer may well be “yes.” Jessica Cooper has instructed her prosecutors to seek forfeiture for repeat drunk driving offenses.

Here is what the Royal Oak Daily Tribune had to say about it:

Is Your Michigan DUI Prosecutor Only Interested in Conviction?

Published on: September 2, 2016 | by Patrick Barone

Your Michigan DUI will prosecuted by a lawyer who is supposed to be interested in one thing – to be sure that justice is done. That means that if the prosecutor knows of something that shows you are not guilty of a Michigan DUI, then he/she is supposed to let your DUI lawyer know this. For example, see: A DUI Prosecutor Must Help Prove That You Are Not Guilty.

But not all Michigan DUI prosecutors are so ethical. And Michigan is not the only place where such problems exist. The state Supreme Court in California has just suspended a former Santa Clara County deputy district attorney from his law license for 4 years. This came after a three-judge panel found that Benjamin Thomas Field had “disregarded prosecutorial accountability in favor of winning cases”. In other words, he would rather win cases than fight for justice.

Mr. Field not only abused his office but also violated the due process rights of several criminal defendants. While he was originally charged with 25 counts of misconduct, the bar court dismissed several charges as duplicative. Judge Purcell, one of the fore-mentioned three-judge panel, stated that “Field lost sight of this goal. The first, best, and most effective shield against injustice for an individual accused… must be found… in the integrity of the prosecutor.”

Breathalyzers Compromised in 1,147 Drunken Driving Cases

Published on: September 2, 2016 | by Patrick Barone

If you’ve been arrested in Michigan for drunk driving then there is an excellent chance that you were asked to take a breath test. If that breath test result was above .08, then the state can use this as the only evidence needed to prove that you had an unlawful bodily alcohol level at the time you were driving. (UBAL). In other words, you can be convicted based only on this breath test evidence.

But what if the test was wrong? A wrong breath test result can mean a wrongful conviction, and this was the major problem with cases from September 2009 to November 2010 in Philadelphia. According to reports the police found the problem and notified defense attorneys.

Furthermore:

How to Use Software to Win DUI Cases

Published on: September 2, 2016 | by Patrick Barone

Any DUI lawyer who has handled more than a couple dozen Michigan drunk driving cases knows that it is important to know how much alcohol was consumed and how this amount of alcohol impacted his client’s blood-alcohol level at the time he or she was driving.

But the driver’s roadside breath test is inadmissible, so it is only the one at the station that counts, and this test is usually 45 minutes to several hours removed (later) from the driving. Because of this, establishing blood alcohol calculations at a point earlier in time can be one of the most critical components in a drunk driving case. Such calculations involve the absorption, distribution and elimination of alcohol, or more broadly, the metabolism of alcohol.

These backwards-looking calculations are called retrograde extrapolation. This topic has been covered previously in the following blogs:

Legal Alcohol Driving Limit

Published on: September 2, 2016 | by Patrick Barone

Blood Test Drunk Driving | Michigan DUI Attorney

When investigating a possible case of driving under the influence, the police may ask you for a sample of your breath or blood. Breath testing remains the most common type of chemical testing, but DUI blood tests are becoming more common.

If your blood is taken by law enforcement the purpose is to test if for alcohol or drugs. DUI cases involving blood are considered by most DUI lawyers to be more difficult to defend because blood test results are considered to be a more reliable.

Texting While Driving Unlawful in Michigan

Published on: September 2, 2016 | by Patrick Barone

On April 29, 2010 Michigan became the 24^th state to make texting while driving illegal when Governor Graholm signed Enrolled House Bill No. 4394. This law now punishes the following behavior, as it is now illegal to:

Read, manually type, or send a text message on a wireless 2-way communication device that is located in the person’s hand or in the person’s lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle that is moving on a highway or street in this state. As used in this subsection, a wireless 2-way communication device does not include a global positioning or navigation system that is affixed to the motor vehicle.

However, there are three exceptions to the law:

Can DUI Lawyers Really Help Their Client’s Addiction?

Published on: September 2, 2016 | by Patrick Barone

I suppose the answer to this question depends in part on what one thinks is the central role of the DUI defense lawyer? I think the vast majority of those asked, lawyers and clients alike, would answer the question this way: the purpose of the DUI defense lawyer is to help the client with their legal problem. Maybe it’s the DUI lawyer’s job to try to get their client’s off. At a minimum it is the DUI lawyer’s job to get their client a better result than they would have achieved without a lawyer.

This all seems very logical and right, but is this the only answer to the question? And, is a pending criminal case the only problem a person facing a DUI has? In other words, does the DUI defense lawyer have any role in addressing any underlying addiction issues that may be present? Perhaps most importantly the question is whether or not there is a relationship between the legal issue and the addiction issues?

Clearly there is a relationship between the two. Simply stated, addressing any underlying addiction certainly will help improve the client’s legal issues. The reason this is true has already been discussed on these pages. See for example:

Michigan Criminal Defense Law Blog

Blood Test Drunk Driving | Michigan DUI Attorney