Michigan Criminal Defense Lawyer Blog

Role of the DUI Defense Lawyer

Published on: September 2, 2016 | by Patrick Barone

The attorneys at the Barone Defense Firm have one goal in mind – WINNING! If we accept your case, we will try to win, and we will use all ethical means possible. Winning may mean several different things to different clients, and we don’t win every case, but we don’t lose for not trying. In fact, according the United States Supreme Court, a criminal defense attorney should, whenever possible, always do the following:

Whether innocent or guilty, the most important role of a DUI defense attorney is preventing the conviction of his client. This role is above all others.
Wherever possible, to fulfill this role the DUI Defense attorney should attempt to confuse the state’s witnesses, even truthful ones, and make them appear at a disadvantage and whenever possible, make them look unsure or indecisive.

Judge Throws Out DUI Alcohol Test Due to Rights Not Being Read

Published on: September 2, 2016 | by Patrick Barone

If you are arrested in Michigan for drunk driving, and the police do not read you your implied consent rights, then under the right facts it might be possible to have the alcohol test thrown out. To understand why, it’s important to first understand Michigan’s implied consent laws.

If you are arrested in Michigan for drunk driving then the police will be requesting that you give them a sample of your breath blood or urine. Breath testing is the most common alcohol test in Michigan. Because an alcohol test is a search, the Constitution’s Fourth Amendment applies.

In very basic terms, the Fourth Amendment requires a warrant for any sort of search, including in the context of a Michigan drunk driving arrest. However, there are exceptions to the warrant requirement, and the most common of them is consent. So if the police ask you for a breath sample voluntarily, and you say “yes,” then there is no reason for the police to obtain a warrant.

7 Mistakes Lawyers Make in DUI Plea Bargaining

Published on: September 2, 2016 | by Patrick Barone

A recent article that appeared in the Champion Magazine suggests that there are 7 rules to plea negotiations in DUI (criminal) cases. This is an interesting article because many lawyers who “specialize” in defending Michigan DUI cases fail to follow these 7 rules.

If you’ve been arrested for DUI in Michigan, make sure your lawyer “has not become a cog in the criminal justice machine.” First and foremost, be sure your lawyer will take the time to actually represent YOU and your best interests. A failure to follow even one of these rules can result in your lawyer allowing you to plead guilty “because it is the easier course” and because they “do not care enough about the fate of their clients.”

Rule One: One: Get to know the client as soon as possible.

Should You Talk to the Police?

Published on: September 2, 2016 | by Patrick Barone

In every case, the answer to this question is the same – it is an unqualified unequivocal NO!

The way this issue usually comes up in my practice is when a client or potential client calls my office and says that they received a call from police asking them to come to the station to “answer a few questions,” what should I do?

First of all, let’s remember that words mean things, and the cops know what words to use. They will ask you to come down for an interview. What they really want to do is interrogate you. If they were asking you to come down for an interrogation then how would you answer?

How Can I Get a Breath Test Thrown Out of Evidence?

Published on: September 2, 2016 | by Patrick Barone

If you were given a breath test after being arrested for drunk driving in Michigan, then it is important to have an attorney verify that the test was given properly. This means verifying that all requirements were followed and adhered to. A failure to do so can result in the test being thrown out of evidence.

An example of such a requirement is the 15 minute observation period. If the police do not observe you continuously for 15 minutes prior to asking you to blow into the machine, then the test might be deemed invalid.

The police must also check your mouth before asking you to blow into the machine. If they fail to do so and it can be show that something was in your mouth when you blew into the machine, then the test can be deemed invalid.

911 Call May Be Sufficient Basis for Michigan DUI Stop

Published on: September 2, 2016 | by Patrick Barone

With cell phones being ever present in our society, it is becoming increasingly common for people to use their cell phones to report a Michigan driver they think might be intoxicated. If the police officer does not independently observe a traffic violation, then there may be a basis to challenge the stop. However these DUI cases are very fact-specific, and you should always have a DUI lawyer look at your case before drawing any conclusions.

A recent case will undoubtedly have an impact on how your DUI lawyer reviews your case is Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) a 911 caller claimed that they had just been run off the road by a pickup truck. The tipster identified the truck, the license number, and where the incident had occurred. A BOL (be on the lookout) radio message went out, and police went in pursuit of the truck. An officer pulled the truck over even though the officer failed to observe any bad driving of his own. During the traffic stop the police smelled marijuana, and upon searching the truck found four large, closed bags of marijuana in the truck bed. Navarette and his brother who was with him were charged with illegal possession and transport of marijuana. Before trial, their lawyer attempted to have the evidence suppressed on the basis that the officers had not corroborated the anonymous tip.

In a close decision the USSC found that the stop, based only on the 911 call, was lawful. Justice Thomas wrote in his majority opinion “under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road.” In a sort of ironic twist, the very fact that the call was a 911 call added to its reliably. The Court’s analysis and finding of reliability was based in part on the fact the 911 system uses several technological and regulatory features that safeguard against making false reports with immunity. These safeguards include the fact that 911 calls can be recorded and FCC regulations require the number of the 911 caller to be passed on to the dispatcher. Thus, this technology allows police to identify 911 callers, and go after them for false reports.

New FOIA Rules Make Defending a Michigan DUI Easier

Published on: September 2, 2016 | by Patrick Barone

If you have been arrested for DUI in Michigan, and have found and retained a top DUI defense attorney to represent you, then he or she will be using a variety of tools to investigate your case. The purpose of this investigation is to help your DUI defense lawyer uncover defenses applicable to your case.

One under-utilized method of discovery is the Freedom of Information Act or FOIA. In a criminal case, the FOIA can be used to obtain documents from the police agencies involved in your DUI arrest, as well as agencies involved in the oversight of the specific police agency that arrested you for drunk driving.

Of particular interest in a Michigan DUI case is the State Police agency involved in oversight of the state’s breath testing program. In the case of a drunk driving / DUI blood test case, the agency of interest is the laboratory where the blood was tested for alcohol.

Do Judges Bend Law to Favor Law Enforcement?

Published on: September 2, 2016 | by Patrick Barone

Our country was founded on the principle of limited government. This means that police officers are supposed to be limited in their ability to do things like search your home, stop and frisk you on the street or even stop your car. The question is limited by whom? And the answer is, limited by judges.

The judges are members of the judicial branch of government, while the police are members of the executive. Thus, when judges limit the power of the police they are doing what the constitution says they are supposed to do. But when they expand the power of the police, they are abnegating their constitutional role.

This is a problem at all levels of government, but is a gigantic problem when we are talking about the court of final authority, the Supreme Court. That’s why it’s so significant when a Supreme Court Justice complains that the United States Supreme Court is bending the rules to favor the police and prosecutors.

New Law Makes it Easier for Michigan Drivers to Avoid a Drunk Driving Arrest

Published on: September 2, 2016 | by Patrick Barone

On September 8, 2015, Governor Snyder signed into law House Bill 4193, making it easier for Michigan drivers to avoid a DUI arrest.

According to the new law, during a traffic stop you may now show a police officer an electronic proof of insurance on your phone. This electronic proof of insurance would be considered prima facie evidence that you have properly insured your car.

So why does this make it easier to avoid a DUI arrest in Michigan? Well, one of the first things a police officer will be looking for in a DUI investigation is whether or not you are able to provide a proof of insurance. In other words, the officer will be trying to determine if you are drunk from how you respond to his/her request to provide driver license, registration and proof of insurance.

The Changing Face of Drinking and Drugged Driving Trials

Published on: September 2, 2016 | by Patrick Barone

As drunk drivers become less common on our roads, resulting in a loss of revenue to the government, the government has decided to focus on a new public enemy: drugged driving. Americans are becoming a society of medicated persons and many of those medications may affect driving. Soon, the anti-drunk driving commercials will be replaced with anti-drugged driving commercials, with all new catchphrases. “Drive Sober or Get Pulled Over” or “Over the Limit, Under Arrest” may soon be talking about your “Prescription for Arrest.” While no one is advocating drugged driving, knee-jerk reactions and propaganda campaigns are not always the solution. Many times, the public outcry will tip the scales of justice towards the prosecution. Unfortunately, a mob mentality can also lead to the passage of laws that are ill-considered and ill-advised. The new attempt to ensnare drugged drivers may already be so overzealous, as to have an unintended victory for the defense.

Michigan Public Act 315, of the 2014 Legislative Session, which amends MCL § 257.625a, is intended to help officers in the field make more drugged driving arrests. Whether it will help – or perhaps even hurt – these efforts remain to be shown. This Act, combining House Enrolled Bill 5385 and Enrolled Senate Bill 863, was presented to the Governor on October 7, 2014. Signed on October 14, 2014, the Act will become effective on January 12, 2015. Essentially, the new Act requires suspects to perform a “preliminary roadside analysis.” Currently, any participation in field sobriety is voluntary; however, come January it will be against the law to refuse to stand on one leg or walk a straight line.

Perhaps the biggest, and likely unintended, change in the law will be the conduct of trials in OWI cases. Specifically, the new Act changes the language from “preliminary breath test” to “preliminary roadside analysis” in MCL 257.625a(2)(b). That amended section states:

Michigan Criminal Defense Law Blog