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Building a DUI Defense
It is only after this investigation is complete that we will be able to determine what defense, if any, will apply to the specific facts and circumstances of your case. Once we have completed our investigation and review of your case, then and only then will we be able to identify possible defenses. At this time we should also be able to tell you what the likelihood is for success in court.
You should also understand that the prosecutor's case will be made up of two separate parts, the circumstantial or "observation" testimony of the arresting officer, and the chemical test evidence. This chemical evidence will be either your breath or blood test results.
Each of these parts of your DUI case can be further broken down and each part lends itself to one of the two "theories" of the crime charged. In other words, you were probably charged with violating the law by operating a motor vehicle while intoxicated (OWI). The prosecutor can prove the OWI by either showing the common law OUIL (operating under the influence of alcohol) or the statutory UBAL (unlawful blood alcohol level).
It not possible to point to one defense or group of defenses for every case. There are however certain general statements or general categories of defenses that might apply, and these are listed below. Keep in mind that depending on the facts of your case, the following defenses may or may not be relevant. Nevertheless, our experience has shown that the following list comprises the most successful general defenses for many DUI / OWI cases.
If you would like to find out which of the possibly hundreds of drunk driving defenses fits your case best, please fill out our on-line form for a FREE Case Review.Best DUI Defenses
These are some of the most successful ways of building a defense:
Improper Stop – Of course the first thing to look at is the basis for the traffic stop or if there was no "stop," the original police contact. If it can be shown that the police did not have a proper cause to come into contact with you and start asking questions or performing an investigation, then all the evidence collected after this contact might be thrown out, and your case dismissed. The legal standard is that the stop must be justified by probable cause or an articulable suspicion that criminal activity was afoot. Of course, a violation of the traffic code, such as speeding or weaving, will provide a sufficient basis for the stop as well.
However, just because the report states that you were weaving does not automatically mean that you have no defense. Certain types of weaving may be permissible. Also, even if the report states that you were speeding the police still may not be able to show that the Doppler or laser radar was working properly. If they cannot show that it was, the stop may still be unlawful or impermissible. In order to evaluate this defense, it is important for your attorney to review the police reports, speak with you, and possibly also visit the scene where the stop occurred.
Improper Arrest – In Michigan, an arrest must be supported by probable cause. In other words, the officer must collect enough information during his/her investigation to properly conclude that you were probably drunk driving. This is a very low standard or burden of proof, but sometimes the police work is deficient or there is enough evidence lacking that the police cannot even meet this low burden.This arrest / no arrest determination must be based on the evidence that the investigating officer collects at the scene prior to your drunk driving arrest. Additionally, in Michigan, a drunk driving arrest can be based on the results of the roadside breath test alone. So, if you took a roadside breath test, it will be necessary for your attorney to determine if this breath test evidence was collected improperly.
Often it is not, and this can have an impact on the legal validity of the arrest in your case. Looked at somewhat differently, after a thorough investigation of your case it will be important for your DUI attorney to determine if your arrest was statutorily and constitutionally proper. This is because an improper arrest can sometimes lead to the court throwing out the evidence, and ultimately to the dismissal of charges.
Improper Police Procedures Relative to the Chemical Testing – The taking of breath and blood samples is governed by statutes and administrative rules, as is the calibration and maintenance of the testing instruments. If it can be shown that the police did not follow these statutes and administrative rules then the test results can sometimes be thrown out (what lawyers call "suppression"). Suppression can, but is unlikely to lead to a dismissal of your DUI case. Nevertheless, suppression does make the case a better candidate for victory at trial. You should understand that suppression may not be the appropriate "remedy." Some courts may look at the problems that occurred and conclude they go to "weight" rather than to "admissibility."
In other words, the breath or blood test will be allowed into evidence, and it will be up to the jury to determine if the police failures are significant enough for them to disregard the chemical evidence. It is very unfortunate that this is the state of the law in Michigan because jurors rarely have enough information to come to the proper conclusion, and many attorneys lack the knowledge necessary to educate jurors in the right way. This can lead to a wrongful conviction for drunk driving. There are also potential problems relative to the way the chemical evidence is collected, and these problems differ depending on if the chemical evidence is breath or blood. If you took a breath test then it will be up to your attorney to determine during the initial interview process whether or not the police did their jobs correctly. Of course, your attorney must both know the right questions to ask as well as be motivated enough by your case to ask them.
If there is a videotape of the breath test is administered, then your attorney must also know what to look for when viewing the videotape. Otherwise, this defense may simply be overlooked. It is also important for your attorney to learn many things about your medical background early on. This is particularly true if you gave a breath sample because some people are simply not good candidates for breath testing. The breath testing gizmo in Michigan (the DataMaster) is a machine, and machines make mistakes. Of course, machines cannot "think," nevertheless, the DataMaster does make a variety of "assumptions" in analyzing your breath. If you are not an "average" person than these assumptions simply may not apply. This can result in a falsely high breath test result. As indicated elsewhere on this web page, Mr. Barone has attended a 24-hour certification course at National Patent Corporation (the manufacturer of the DataMaster).
Consequently, he has been deemed competent by the manufacturer to operate and perform essential diagnostic verification and calibration checks on the BAC DataMaster, Michigan's breath test machine. Few lawyers have this training, and this allows Mr. Barone to point out flaws in breath test results. This skill is necessary in order to beat both the OUIL and UBAL aspects of your pending Michigan drunk driving case.
With blood evidence, it may be necessary to actually question the person that drew the blood as well as the police officer who witnessed the blood draw. As with breath test evidence, unless your attorney has a very thorough understanding of the law and science of blood testing, he or she simply won't know what to look for, and again, possible defenses will be overlooked. Mr. Barone has written articles teaching other lawyers how to defend cases that involve blood test evidence.
Improper Police Procedures – Many police officers have specialized training relative to the investigation of driving under the influence cases. In some states this training is "standardized," meaning all officers are required to be trained the same. Currently, there is no such requirement in Michigan, and this tends to be a bad thing for the drunk driving accused. As a result of this lack of standardization, in Michigan, there is considerable dispute about what is and what is not proper police procedure when administering field sobriety tests. Regardless, it is often true that whatever and however the officer was trained, he or she did not follow this training. There can be many reasons why the officer did not follow his or her training but it is our opinion that an officer should be expected to follow his training.
While there are no standardized rules applicable to the taking of field sobriety tests, there are police training manuals and the like that can be used in cross-examination to show that a police officer did not administer the field sobriety test(s) properly. There are also scientific studies that show how inaccurate the field sobriety tests really are. While these facts and circumstances will almost certainly not lead to a dismissal, they should help to persuade the jury to view things more favorably for the defendant, and hopefully, result in a not-guilty verdict.
Mr. Barone has been certified as an instructor and practitioner of the Standardized Field Sobriety Tests in accordance with the standards set forth by the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA). This affords him the ability to excel in both the review of your OWI case as well as in the defense of drinking drivers generally.
Defects in the Charging Documents – Any irregularities in the charging documents and police reports can sometimes be used to call the police officer's credibility into question. The argument to the jury is if the police officer is mistaken as to the direction your car was traveling then perhaps he/she is mistaken as to other facts as well. This is critical since the prosecutor's case usually turns on the testimony of the arresting officer(s).
Suppression of Incriminating Statements – While the courts seem less and less inclined to suppress incriminating statements based on a police officer's failure to read a defendant his/her rights, "non-Mirandized" statements are still sometimes suppressed. If you made admissions regarding how much you had been drinking then ask your attorney to determine if Miranda applies and if these statements can be suppressed. There are also cases that state that certain types of field sobriety tests are inadmissible without Miranda warnings. In order for this to be true in your case, the field sobriety tests must have been administered after an arrest but before Miranda warnings are given.
Increasing Blood Alcohol – Michigan's drunk driving laws were changed in 2003 so that there is not an "inference" that the blood alcohol level was the same at the time of driving as it was at the time of the test. This is really just another example of how the state legislature drafts drunk driving laws that are contrary to science (meaning contrary to reality), but this is nevertheless the law in Michigan. This does not however totally do away with a rising blood alcohol defense. In an unlawful blood alcohol case (UBAL) the prosecutor must show that your blood alcohol was over the legal limit at the time you were driving. Thus, if the chemical testing (breath/blood/urine) in your case was not performed until long after the actual arrest (and presumably the act of driving) then you can argue to the jury that these chemical test results should be given less weight. Expert testimony is usually helpful to drive this point home to the jury. Again, with the proper underlying facts, this might help persuade the jury to view things more favorably for the defendant, and hopefully result in a not-guilty verdict.
Inaccurate Chemical Test Instruments – The machines used by the police to test a person's breath, blood or urine are all subject to inherent inaccuracies. It is simply not possible for any testing instrument to be 100% accurate all the time. Blood testing is probably more accurate overall than breath testing, which is again probably more accurate than urine testing. Still, simply because you tested over the limit this does not mean that you have no defense. Talk to your attorney about how the specific facts of your case may have caused an inaccurate test result. Keep in mind also that it is usually necessary to retain an expert to help educate the jury regarding these inaccuracies.
No Evidence of "Operation" – In rare instances, it may be possible to have a case dismissed because there is insufficient proof of operation. To "operate" a motor vehicle, a person must be in "actual physical control" over the vehicle. This means that if you are behind the wheel and the car is running, you are probably operating the vehicle.
However, this determination will depend on the specific facts of your case because the Michigan Courts have indicated that "once a person using a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of harm, this person continues operating the vehicle until it is returned to a position posing no such risk." Consequently, if your car is running, but does not pose a risk, then your attorney might be able to argue that you were not "operating." There is also a recently decided case in Michigan where an individual was found in a parking lot of a golf course, asleep at the wheel, with the engine running.
For some reason, this individual was charged with an attempt to drive while drunk, rather than the general crime of drunk driving. Here the Court concluded: "that this evidence fails to establish that defendant possessed the requisite specific intent. This conclusion was based on the court’s belief that the prosecutor had not proved that the defendant was using his truck as anything other than shelter.
The mere fact that the engine was running does not sufficiently establish that defendant had or was intending to put the vehicle in motion. As one of the arresting officers conceded, it was possible that defendant was simply keeping the truck warm while he slept." This case is a bit of an anomaly, however, because the intent requirement for an attempt (specific intent) is different than for the general intent required for a typical drunk driving offense. Keep in mind though that the facts of your case must be carefully scrutinized by your attorney because circumstantial evidence can also be used to prove this element of the crime.
What this means is that if the police find you in a motionless car, but there is sufficient circumstantial evidence to show that the car must have been driven by you to that location at some point earlier in time (such as the mere location of the car, tire tracks, warm hood, etc.), then the charge can sometimes be sustained using this evidence of prior operation. Sometimes a case with an issue of "operation" must be taken to trial so that the jury can make the final determination of these fact questions. The jury might not want to convict where the driver did the "right thing" and tried to sleep it off.Contact a Michigan DUI Lawyer Today
This list is not exhaustive, and there may be different or additional defenses specific to your case. The point is that you should not simply walk into court and plead guilty without first having your case evaluated by competent counsel . This is because almost all cases can be defended in some manner. This is not to say that all defenses lead to a dismissal or even a substantial reduction in the charges, nor does it mean that it makes sense to vigorously fight every case. However, you should have every opportunity to make fully informed decisions about all of these things, and this decision-making process will most likely require the advice of legal counsel.