Were you recently charged with driving under the influence (DUI) in Michigan? If so, you may also be facing a charge of unlawful blood alcohol level, or UBAL. This theory of OWI is applicable if your bodily alcohol content (BAC) was at or above the legal limit of .08% at the time you were driving.
DUI lawyers in Michigan call the UBAL charge a "per se" crime, which means if you are caught driving with a BAC above .08%, you are automatically considered intoxicated regardless of whether your driving abilities were actually impacted by the alcohol. As a result of the unlawful test result you can be prosecuted under the UBAL theory of OWI, which is more difficult to defend.
Penalties for UBAL ChargesThe penalties for OWI / UBAL can be life-altering. If convicted, you may face jail time, community service, alcohol education classes, expensive fines, and a driver's license suspension. In cases involving a serious injury or death, you will face felony charges and even more severe sentencing.
Your personal life will also be affected long after you serve your sentence. It may be difficult to obtain auto insurance with an OWI on your driving record, and even if you can find coverage, you can expect to pay a lot more than you did before your conviction. In addition, an OWI or UBAL conviction will permanently remain on your criminal record, which means any employer, housing provider, or educational institution that checks your background will know you were found guilty of drunk driving.
Building a DefenseEven though the UBAL charge is based exclusively on the chemical test, this does not mean this theory of OWI cannot be adequately defended. But doing so usually means finding a way to attack the precision, accuracy, or reliability of the result. There is only a very small subset of criminal defense attorneys in Michigan who possess the requisite knowledge to do this properly. Breath testing uses a methodology called "infrared spectroscopy" to measure breath alcohol, whereas blood testing uses mass spectroscopy. Defending breath or blood testing therefore requires that your lawyer possess a lucid understanding of these sciences and how they apply to the actual testing of your breath or blood. Because the stereotype that lawyers didn't go to medical school because they were bad at math and science is mostly true, many lawyers lack the training and background to fully appreciate the subtleties of breath and blood testing and the science of measurement, called "metrology" more generally.
Once a defense to the breath or blood test is identified the next step will be to leverage this information into a good plea bargain. Sometimes this is not possible because some prosecutors still will not reduce a charge. In these instances, it may be necessary for your lawyer to file a motion with the judge seeking to have the chemical test thrown out. Sometimes that effort will also fail to meet with success, and this is when you and your lawyer will discuss trial options.
In a jury trial it is up to the jury to decide whether to accept the chemical test result. If your lawyer can successfully persuade the jury that the test result in your case is flawed, then they should return a verdict of not guilty to the UBAL / OWI charge. Successful persuasion may require the assistance of an expert in the field, such as a toxicologist, who can help the jury understand the science of breath and blood testing, and why the test result in your case is flawed. Good cross-examination of the relevant witnesses is also essential.