It is essential in any drunk driving defense to have an Attorney represent you. For every Drunk Driving case that I undertake I do a thorough investigation to determine that your rights were not violated. First I look at whether the police officer had a reason to stop you. In the absence of a traffic violation an officer must have a reasonable and articulable suspicion of ongoing criminal activity to stop you. Second, I look at whether the officers had a reason to force you to submit to chemical testing. Officers must have reasonable cause to administer a breath test. This is accomplished by determining whether the officer administered Field Sobriety Tests in accordance with National Highway Traffic and Safety Administration guidelines. Third, I will determine if administrative rules were followed in administering the actual chemical test. Any deviation from approved methods of administering the Breathalyzer test will call the BAC results into question and provide you with a defense to drunk driving charges. I will often request in-car videos, 911 tapes, and dispatch tapes from the police department to bolster your drunk driving defense. The results of the investigation will assist in mounting a proper defense against charges for drunk driving .Michigan Drunk Driving Defenses Unconstitutional Stop
The Fourth Amendement requires that a police officer must have a reason to stop you. A police officer can pull a vehicle over if a traffic violation occurs in the presence. In the absence of a traffic violation an officer must have a reasonable and articulable suspicion of ongoing criminal activity to stop you. This means that the officer is going to have to state a reason why he formed a belief that you were driving your car under the influence of alchol or drugs. An careful review of the officer's in-car video and effective cross-examination can be the key to having the court suppress breath tests and officer observations obtained by an illegal stopUnconstitutional Arrest
A police officer must have reasonable cause to believe that a person was operating a vehicle and the consumption of alcoholic liquor may have affected his or her ability to operate a vehicle to require a Preliminary breath test. An Officer must have probable cause to arrest you. Probable Cause requires that the officer have a reasonable and articulable suspicion that it is more likely than not that you were driving under the influence. Probable Cause can be established by the results of a preliminary breath test. Absent a preliminary breath test there must be an analysis of the facts and circumstances surrounding the arrest. Police agencies generally have policies and procedures on how to administer field sobriety tests ("FSTs"). To see the Michigan State Police procedures regarding FSTs click on the Field Sobriety Tests link. If an Officer fails to properly administer the field sobriety test you can call the reliability of the officer's observations into question.Unreliable Chemical Testing
Administrative rules must be followed in administering and properly maintaining chemical testing devices. Any deviation from approved methods of administering chemical tests or maintaining testing equipment will allow you to argue the reliability of the Blood Alcohol test results. There are two (2) types of breath tests. A Preliminary Breath Test is administered on the scene of the stop. An evidential or "Datamaster" test is conducted after you are arrested and while you are at the police station
A person may be administered a breath alcohol analysis on an evidential breath alcohol test instrument only after being observed for 15 minutes by 1 or more appropriate class operators before collection of the breath sample, during which period the person shall not have smoked, regurgitated, or placed anything in his or her mouth, except for the mouthpiece associated with the performance of the test. The observation may be conducted by more than 1 operator working in concert. The operator need not stare continuously at the subject, but must be close enough to be aware of the person's actions and conditions. The operator may complete paperwork, enter data into the breath test instrument, or conduct other reasonable tasks during the observation period provided the subject is within the operator's field of vision. Breaks in the observation lasting only a few seconds do not invalidate the observation if the operator can reasonably determine that the subject did not smoke, regurgitate, or place anything in his or her mouth during the break in the observation.
An evidential breath alcohol test instrument shall be verified for accuracy at least once at any time during each calendar week, or more frequently as the department may require, by an appropriate class operator. For the instrument to meet the requirements for accuracy, a test result of .076 to .084 shall be obtained when using a controlled device that delivers an alcohol vapor concentration of .080 grams of alcohol per 210 liters of vapor.
A preliminary breath alcohol test instrument must be verified for accuracy at least monthly, or more frequently as the department may require"Operating"
State of Michigan case law requires that you are "Operating" a vehicle under the influence. "Operating" is defined as once a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk. Michigan law provides that a person may be arrested if they are found in the driver's seat of a vehicle parked or stopped on a highway or street within this state if any part of the vehicle intrudes into the roadway that you are Operating. Further, a person may be arrested if an officer who has reasonable cause to believe that a person was operating a vehicle upon a public highway or other place open to the public or generally accessible to motor vehicles, including an area designated for the parking of vehicles, within this state and that the person by the consumption of alcoholic liquor may have affected his or her ability to operate a vehicle, or reasonable cause to believe that a person was operating a commercial motor vehicle within the state while the person's blood, breath, or urine contained any measurable amount of alcohol or while the person had any detectable presence of alcoholic liquor, This comes up most when someone is found sleeping in a car on private property. If you are sleeping in the driver's seat with the keys in the ignition the prosecution will argue that you intended on putting the vehicle in motion.Michigan "OWI" Jury Instructions
A Jury is instructed on how to weigh evidence regarding an allegation of drunk driving. It is a common misconception that a breath test of .08 requires a finding of guilt. However, In regards to breath tests and evidence presented they are instruced that in considering the evidence and arriving at their verdict, they may give the test whatever weight they believe that it deserves. The results of a test are just one factor they may consider, along with all other evidence about the condition of the defendant at the time he or she was operating the motor vehicle. The jury instruction for Operating while intoxicated follows.
As you consider the possible verdicts, you should think about the following:
- What was the mental and physical condition of the defendant at the time that [he / she] was operating the motor vehicle? Were the defendant's reflexes, ability to see, way of walking and talking, manner of driving, and judgment normal? If there was evidence that any of these things seemed abnormal, was this caused by drinking alcohol?
- You may also consider bodily alcohol content in reaching your verdict. In that regard, were the tests technically accurate? Was the equipment properly assembled and maintained and in good working order when the tests were given?
- Were the test results reliable? Was the test given correctly? Was the person who gave it properly trained? Did the circumstances under which the test was given affect the accuracy of the results?
- One way to determine whether a person is intoxicated is to measure how much alcohol is in [his / her] [blood / breath / urine]. There was evidence in this trial that a test was given to the defendant. The purpose of this test is to measure the amount of alcohol in a person's [blood / breath / urine].
- If you find that there were 0.08 grams or more of alcohol [per 100 milliliters of the defendant's blood / per 210 liters of the defendant's breath / per 67 milliliters of the defendant's urine] when [he / she] operated the vehicle, you may find the defendant guilty of operating a motor vehicle with an unlawful bodily alcohol content, whether or not this alcohol content affected the defendant's ability to operate a motor vehicle.
- You may infer that the defendant's bodily alcohol content at the time of the test was the same as [his / her] bodily alcohol content at the time [he / she] operated the motor vehicle.
- In considering the evidence and arriving at your verdict, you may give the test whatever weight you believe that it deserves. The results of a test are just one factor you may consider, along with all other evidence about the condition of the defendant at the time [he / she] was operating the motor vehicle.