DUI Defense

Barone Authors Chapter in New Book Entitled “Legality of Search and Seizure in DUI Cases”

Published on: October 3, 2016 | by Patrick Barone

The Barone Defense Firm is pleased to announce that Patrick Barone has authored a chapter in the soon to be published 2016-2017 edition of “Legality of Search and Seizure in DUI Cases.” The title of Mr. Barone’s chapter is “Developing Essential Trial Skills for Defending DUI Cases.’ This new book from Aspatore’s “Inside the Minds” series will be available for purchase within the next few weeks.

Aspatore books is a division of Thomson Reuters publishing, one of the Nation’s largest publishers of law books. According to the publisher, the “Inside the Minds” series brings together leading executives and lawyers from around the world. Relative to law, the Inside the Minds series has published chapters written by the Chairs and/or Managing Partners from over 75% of the Nation’s top 200 law firms.

Mr. Barone’ Chapter includes the following sections:

Prosecutor Challenges One-Year Jail Sentence for Drunk Driving Causing Death Case

Published on: September 29, 2016 | by Patrick Barone

In Michigan, a charge of drunk driving causing death is punishable by up to 15 years in prison. This possible sentence is set forth in Michigan Complied Laws 257.625(4)(a). In determining exactly what sentence to impose for an individual case a judge will be looking at many factors, including the Michigan Sentencing Guidelines.

A recent case dealing with this issue is People v. Taylor. In this particular case the defendant Taylor was found guilty of drunk driving causing death. The facts were that Taylor admitted drinking, then while driving a car killed a person on a bicycle. He failed field sobriety tests and was over the legal limit.

The sentencing guideline range was 29 – 57 months. Taylor’s defense attorney filed a sentencing memorandum where he requested a downward departure from these guidelines. He argued that there were substantial and compelling reasons to do so, including his lack of criminal history, education, employment history, remorse and many other factors. The prosecutor, of course, argued that none of this mattered.

Delay in Prosecution Leads to Dismissal of Wayne County DUI

Published on: September 19, 2016 | by Patrick Barone

Prosecutors are loath to dismiss or reduce drunk driving cases in Michigan. This is because so many people watch DUI cases so closely, everyone from MADD to the Michigan State Police watch and track what happens to each and every person arrested for intoxicated driving in Michigan. If a prosecutor gives a non-alcohol reduction or even dismisses a case, they usually will have a pretty darn good reason for doing it.

That’s where good lawyering comes into play. A case we handled recently at the Barone Defense Firm had a significant delay in prosecution, and this eventually lead to us being able to make a deal whereby the accused drunk driver plead guilty to a careless driving as well as a disorderly person, which was taken under advisement and will be removed from this client’s record after probation. The original charge of OWI was dismissed.

The facts of this case were not good. The accused was involved in a two car accident. The dispatch indicated that she was trying to leave the area. When police arrived they noted (in the written report) a “strong odor of intoxicatingly liquor emanating from her person.”

Breathalyzers Compromised in 1,147 Drunken Driving Cases

Published on: September 2, 2016 | by Patrick Barone

If you’ve been arrested in Michigan for drunk driving then there is an excellent chance that you were asked to take a breath test. If that breath test result was above .08, then the state can use this as the only evidence needed to prove that you had an unlawful bodily alcohol level at the time you were driving. (UBAL). In other words, you can be convicted based only on this breath test evidence.

But what if the test was wrong? A wrong breath test result can mean a wrongful conviction, and this was the major problem with cases from September 2009 to November 2010 in Philadelphia. According to reports the police found the problem and notified defense attorneys.

Furthermore:

Is Your Michigan DUI Prosecutor Only Interested in Conviction?

Published on: September 2, 2016 | by Patrick Barone

Your Michigan DUI will prosecuted by a lawyer who is supposed to be interested in one thing – to be sure that justice is done. That means that if the prosecutor knows of something that shows you are not guilty of a Michigan DUI, then he/she is supposed to let your DUI lawyer know this. For example, see: A DUI Prosecutor Must Help Prove That You Are Not Guilty.

But not all Michigan DUI prosecutors are so ethical. And Michigan is not the only place where such problems exist. The state Supreme Court in California has just suspended a former Santa Clara County deputy district attorney from his law license for 4 years. This came after a three-judge panel found that Benjamin Thomas Field had “disregarded prosecutorial accountability in favor of winning cases”. In other words, he would rather win cases than fight for justice.

Mr. Field not only abused his office but also violated the due process rights of several criminal defendants. While he was originally charged with 25 counts of misconduct, the bar court dismissed several charges as duplicative. Judge Purcell, one of the fore-mentioned three-judge panel, stated that “Field lost sight of this goal. The first, best, and most effective shield against injustice for an individual accused… must be found… in the integrity of the prosecutor.”

How to Use Software to Win DUI Cases

Published on: September 2, 2016 | by Patrick Barone

Any DUI lawyer who has handled more than a couple dozen Michigan drunk driving cases knows that it is important to know how much alcohol was consumed and how this amount of alcohol impacted his client’s blood-alcohol level at the time he or she was driving.

But the driver’s roadside breath test is inadmissible, so it is only the one at the station that counts, and this test is usually 45 minutes to several hours removed (later) from the driving. Because of this, establishing blood alcohol calculations at a point earlier in time can be one of the most critical components in a drunk driving case. Such calculations involve the absorption, distribution and elimination of alcohol, or more broadly, the metabolism of alcohol.

These backwards-looking calculations are called retrograde extrapolation. This topic has been covered previously in the following blogs:

Does Driving Under Influence of Ambien in Michigan Require Specific Intent?

Published on: September 2, 2016 | by Patrick Barone

Sleep driving is a well-known side effect of Ambien. Sleep driving is even listed as a side effect of this drug in the product literature. It is nevertheless illegal to be driving under the influence of Ambien. If you are stopped and the police believe that you are under the influence of Ambien in Michigan, then you will be arrested for DUI; just the same as if you were under the influence of alcohol. This might be true even if you never intended to commit this crime.

In Michigan driving under the influence of Ambien is considered to be a general intent crime. This means you do not have the specific intent to commit a DUI to be convicted of it in Michigan. One reason for this is because intoxication is a defense to specific intent crimes. If intoxication was a defense to DUI all persons arrested for it could raise intoxication as their defense.

However, an arrest is not a conviction. Depending on the facts of your case, it may still be possible to raise a defense to the driving element, because even in Michigan a DUI requires the specific intent to drive. This defense has been successful in many prior Ambien cases in Michigan. In other words, even if the totality of the crime is general intent, the driving element is specific intent.

In Michigan DUI Cases Prosecutors have Duty to Provide Evidence of your Innocence

Published on: September 2, 2016 | by Patrick Barone

If you are charged with drunk driving in Michigan the prosecutor has a legal and ethical duty to provide your attorney with any evidence that might be helpful to your defense. This includes things like police reports, witness statements, video recordings or chemical tests.

This legal obligation was affirmed in the recent USSC case of Weary v. Warden.[i] Decided March 7, 2016, this case stands for the proposition that a prosecutor must disclose to a defendant all material evidence. Evidence qualifies as material when there is “‘any reasonable likelihood’” it could have “‘affected the judgment of the jury.’” To prevail on a claim that such evidence is material a defendant not show that he “more likely than not” would have been acquitted had the new evidence been admitted. He must show only that the new evidence is sufficient to “undermine confidence” in the verdict.

In this particular case, the defendant Michael Wearry was on death row in Louisiana. Wearry’s defense at trial rested on an alibi. He claimed that, at the time of the murder, he had been at a wedding reception in Baton Rouge, 40 miles away. Prosecutor argued in closing arguments that all three witnesses establishing the alibi were related to the defendant.

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.

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.