Criminal Evidence

Michigan Roadside Saliva Testing for Marijuana Use Now in Use Statewide

Published on: May 5, 2020 | by Patrick Barone

A localized pilot program to allow Michigan police officers to test a driver’s saliva for the presence of marijuana has been expanded statewide. If you have used marijuana or cannabis containing products and then drive a motor vehicle in Michigan, you should be aware that roadside testing for marijuana use is now available to all law enforcement officers throughout the state.

An example of the kinds of units used in Michigan include the Alere™ DDS®2 Mobile Test System. According to the manufacturer’s website, the handheld unit is easy to use and produces accurate results. It can also analyze for up to six different drugs, including Marijuana.

In evaluating a driver, a police officer would correlate the results of a saliva test with all of the other observable signs of impairment, such as any observations made at the roadside, the driver’s performance on field sobriety testing, and any admissions made. If the officer believes, based on a combination of all of the evidence acquired at the roadside that probable cause exists to make an arrest, then the driver will be taken into custody and charged with DUI. While many people refer to these charges as DUI, in Michigan the crime is called OWI or operating while intoxicated.

How to Win a Drunk Driving Case Without Trying

Published on: December 12, 2017 | by Patrick Barone

Can You Really Win a Drunk Driving Trial Without Even Trying?

Sometimes, winning a trial or a contested hearing comes down to knowing what not to do! In drunk driving cases, nowhere is this truer than with administrative hearings held on appeal from an alleged implied consent violation. To understand why this is true, it’s helpful to know a little bit about the Michigan Implied Consent Law and about administrative hearings.

If you have been charged with drunk driving in Michigan and refused to take a breath or blood test at the request of the police officer, then you will be charged with a violation of Michigan’s Implied Consent Law, pursuant to MCL § 257.625f. A violation of the implied consent law will result in the suspension of your driver’s license for up to 2 years.

Role of Defense Lawyers in the Mitigation of Collateral Consequences

Published on: February 13, 2017 | by Patrick Barone

Role of Defense Lawyers in the Mitigation of Collateral Consequences

Collateral consequences are the loss of rights a person suffers after being convicted of a crime. They have previously been described as having the potential to cause “civil death.” Such consequences are different from the punishments that might be imposed by a judge as part of a criminal case. This is because collateral consequences are not found in criminal statutes. Instead, they often arise out of the myriad civil statutes or civil consequences that are triggered by the criminal conviction. This means that most collateral consequences require no judge to impose them, and they afford no opportunity for due process.

Most crimes are punishable by a statutorily allowed maximum period of prison or jail time. For example, a standard, first offense drunk driving in Michigan, carries with it the possibility of up to 93 days in jail. However, for cases involving a test result of .17 or above, the maximum penalty increases to 180 days. In a drunk driving causing death, charged as second-degree murder, is punishable by life in the state prison, or any term of years. These specific statutory maximums are significant because a criminal lawyer advising her client about a conviction can usually predict, at least within a range, the actual time a client will spend behind bars. The same is most certainly not true of collateral consequences.

A case addressing this is United States v. Nesbeth, 188 F.Supp.3d 179 (2016). Nesbeth was convicted of importation of cocaine and possession of cocaine with intent to distribute. The advisory guidelines would have allowed a sentence of between 33 and 41 years in prison, but because of the significant collateral consequences, the judge saw fit to give him no jail at all, meaning straight probation. The opinion explaining why should be required reading for all criminal defense attorneys.

Facebook Posting Admissible as Evidence in Michigan Criminal Case

Published on: September 16, 2016 | by Patrick Barone

According to the Michigan Court of Appeals, Facebook postings are admissible as evidence against a person accused of a crime in Michigan. In a recent case involving assault with intent to commit murder, felony firearm and other charges, the prosecutor found and presented to the jury evidence obtained from the defendant’s Facebook page. The defendant objected, and the Court of Appeals opinion says this:

Defendant contends that the trial court abused its discretion when it admitted a Facebook posting into evidence without sufficient foundation. At issue is a page purportedly from defendant’s Facebook page on which is a picture of McKinley, the initials “RIP,” and a post reading, “Shuldd I let em kill me or turn myself ndd. I’m facing life nd da gtt dam pin…rest -6- in peace Ne-Ne, catch me nd traffic.”

The defendant also objected to admission of gang-related photographs also obtained from Facebook.

Legal Alcohol Driving Limit

Published on: September 2, 2016 | by Patrick Barone

Blood Test Drunk Driving | Michigan DUI Attorney

Blood Alcohol drunk driving, BAC legal limit 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.