OWI Category Archives — Page 5 of 15 — Michigan Criminal Defense Lawyer Blog Published by Michigan Criminal Defense Attorney

What Happens at a Michigan Implied Consent Hearing?

Published on: June 29, 2021 | by Patrick Barone

A Michigan implied consent hearing is an informal hearing where the officer that arrested you for drunk driving provides testimony to prove that you unreasonably refused a breath blood or urine test. Before we move on with a further discussion of the hearing, let’s review the concept of implied consent, and how it applies in a Michigan drunk driving case.

The Legal Fiction of Implied Consent

Both the Michigan and the United States Constitutions provide that the police can’t search you, your home or your car without a warrant. Thus, before the police may proceed with a search of your breath, blood or urine, they must first obtain a warrant. However, there are many exceptions to this warrant requirement and consent is one of them. This is where the legal fiction of implied consent comes into play.

How Sober Cannabis Users are Wrongfully Convicted of Intoxicated Driving

Published on: June 16, 2021 | by Patrick Barone

Police in Michigan continue to use unreliable chemical and field sobriety tests when investigating drivers suspected of using cannabis. This can lead to sober cannabis users being wrongfully convicted of intoxicated driving. This is because the tools used for decades to investigate drunk driving cases simply do not translate well to the investigation of drivers believed to be under the influence of marijuana.

These conclusions are drawn from a 2020 research study conducted by the National Institute of Justice. This federally funded research study resulted in the production of a final written overview which was subsequently submitted to the U.S. Department of Justice. The title of the overview is Differences in Cannabis Impairment and its Measurement Due to Route of Administration. (Hereafter “NIJ Study”).

What did the NIJ Study Conclude?

Community Caretaker Search Warrant Exception Not Applicable to the Home

Published on: May 21, 2021 | by Patrick Barone

The United States Supreme Court has recently ruled that the community caretaker exception to the search warrant requirement does not apply to a person’s home. The name of the case is Caniglia v. Strom, and in a unanimous opinion the Court found that guns seized by the police after entering a home without a warrant were not admissible in evidence on the basis of the community caretaker exception.

The Caniglia case involved a married couple who had been arguing in their residence. During the fight the husband grabbed his gun and told his wife to shoot him. The wife took possession of the gun, and put it away, hiding the ammunition. She later left the house to stay at a hotel, and because she was worried that her husband might suicide, she called the police. The wife then met the police back at their home where the husband had remained. The police instructed the wife to stay in the car as they interviewed the husband.

The police believed that the husband posed a danger to himself and called for an ambulance to take him for a psychiatric evaluation. He claimed the police agreed that if he went to the hospital, they would not take his guns whereas the police claimed he consented to a search of his home. The wife, believing the officers that her husband had consented, then guided the police to where the guns were inside the home, and the police took possession of them. No arrest was made, and no charges were brought against the husband. The guns were eventually returned, but the Caniglia’s filed a lawsuit, nevertheless, claiming a violation of Section 1983 under the Second, Fourth and Fourteenth Amendments. In the lawsuit the Caniglia’s sought money damages as well as injunctive and declaratory relief.

Court Ruling Could Lead to Dismissal of Drunk Driving Causing Serious Injury Charge

Published on: April 26, 2021 | by Patrick Barone

The Michigan Court of Appeals has indicated, in the unpublished opinion of People v. Adam Robe, (COA# 355005); that a failure to wait 15 minutes before administering a roadside preliminary breath test (PBT) meant that the trial court could not consider the PBT in determining if the arrest is valid. This ruling may lead to the dismissal of the intoxicated driving causing serious injury charges pending against Mr. Robe.

The Robe case involved a two-vehicle accident. When the police arrived to assist, they immediately went to the vehicle where the driver had sustained serious injuries. Later then went to talk with Mr. Robe, and after about 3 minutes asked him to take a PBT. He consented, and thereafter was arrested and charged with drunk driving causing serious injury. Before trial, the defendant’s attorney filed a motion to dismiss, arguing that the PBT was not administered according to the administrative rules which require a 15-minute determination. No field tasks were administered, and the arrest was based almost solely on the failed PBT.

The trial court denied the motion, and rather than stand trial at that moment, the defense attorney asked for a “stay of proceedings” to pursue an “interlocutory appeal.” In other words, the defense attorney wanted an answer to this legal question about the PBT before putting Mr. Robe’s fate before a jury because if the attorney was right, and the arrest was unlawful, then there would be no trial. The drunk driving causing serious injury charge would have to be dismissed.

Michigan DUI Case Based on Anonymous 911 Call Dismissed

Published on: April 25, 2021 | by Patrick Barone

In the case of People v. Pagano, the Michigan Supreme Court has indicated that a traffic stop based only on an anonymous 911 call is invalid. This ruling affirmed the District Court’s dismissal of both the child endangerment drunk driving and open intoxicants in a motor vehicle charges.

As the Pagano opinion indicates, the police received information from central dispatch that a woman was obnoxious and yelling at her children and appeared to be intoxicated. The 911 caller also provided identifying information about the vehicle driven by the ostensibly intoxicated woman, including the license plate number and make and model of the car.

The Michigan Supreme Court, in the unanimous Pagano opinion, held that information provided to and by the officer failed to establish a “reasonable and articulable suspicion” either that a traffic violation had occurred or that criminal activity was afoot. While the Court acknowledged that the 911 caller was able to appropriately identify the individual involved and the car being driven by her, the tip still did not give rise to anything more than, at best, an “inchoate or unparticularized suspicion” of criminal activity. Otherwise, there was nothing in the record to suggest that the police officer making the traffic stop corroborated the 911 caller’s mere assertion that the driver was drunk. There was no bad driving observed by the police officer, and the stop was based only on the information provided to the 911 caller. After all, said the Court, parents can obnoxiously yell at their children without being drunk, and the 911 called also did not indicate that any bad driving was observed.

Marijuana Use Not Relevant to Sentencing in Michigan Intoxicated Driving Causing Death Case

Published on: April 21, 2021 | by Patrick Barone

In this Michigan Intoxicated driving causing death, the defendant Willett entered a no contest plea thereby admitting that he was operating a motor vehicle with the presence of any amount of marijuana in his body, and that the operation of his vehicle caused the death of another, under Michigan Compiled Laws § 257.625(4)(a)and (8).

Mr. Willett was sentenced to 4 to 15 years of imprisonment. Prior to sentencing the defendant, the court questioned him about his marijuana use, and the defendant, then 21 years of age, admitted he used marijuana daily and had started using marijuana at age 14 or 15. The court concluded the pre-sentencing colloquy by admonishing the defendant and stating to him that it was his use of the drug that lead to the horror of the accident and death. On appeal the defendant argued that the court’s sentence was based on inaccurate information, and the Michigan Court of Appeals agreed. The case was reversed and remanded.

The facts of this case include an admission from the defendant, at the roadside, that while he was driving, he was getting sleepy and closed his eyes. He crashed into the car in front of him immediately after opening his eyes, creating a multi-vehicle accident leading to the death of one of the vehicle’s occupants.

Incarceration for Second Offense DUI Now Less Likely in Michigan

Published on: March 22, 2021 | by Patrick Barone

A new law in Michigan makes it somewhat less likely that persons charged with misdemeanor drunk driving, including first and second DUI offenses, will go to jail. This is because Public Act No. 395 of 2020, which was signed into law by Governor Whitmer on January 4, 2021, creates a rebuttable presumption against incarceration for most misdemeanor offenses, including most misdemeanor drunk driving offenses. The effective date of the new law is March 24, 2021.

The new law amends Michigan Compiled Laws Section 769.5. Subsection 3 of this law indicates that there is a rebuttable presumption that a person convicted of a misdemeanor will be sentenced to a fine, or community service, or some other non-specified non-jail and non-probation sentence. The only circumstances under which a sentencing judge may depart from this presumption is if they state on the record “reasonable grounds” for doing so. The term “reasonable grounds” is not defined.

The law also provides that if the offense in question is punishable by both a fine and imprisonment, the court can impose one but not the other, or both. However, if the court does impose both a fine and incarceration, or just incarceration, then as indicated, the Judge must articulate on the record reasonable grounds for doing so.

Repeat Drunk Drivers Can Avoid Mandatory Minimum Jail Sentences Under New Michigan Law

Published on: March 17, 2021 | by Patrick Barone

A package of new laws allows some of Michigan’s repeat drunk drivers to possibly avoid mandatory minimum jail sentences. As a result of these changes, mandatory minimum sentences have been modified or removed from Michigan’s drunk driving statute, and this means that Judges may now sentence a drunk driver to any term of imprisonment, from zero days up to the maximum otherwise provided for the offense. The new law does not change the applicable fines or maximum possible terms of imprisonment, it only eliminates the mandatory aspects of the minimum sentences, making it possible for some repeat DUI offenders to avoid incarceration.

Legislative History of the New Michigan DUI Laws

These changes arose out of House Bill 5845, which was introduced in June 2020. The proposed law went through several permutations until it was approved by both houses by a vote of 506 to 38 in December 2020. Shortly thereafter it was introduced to Governor Whitmer. The Bill was signed into law by the Governor on January 4, 2021 and becomes effective on March 24, 2021.

How to Beat an Breath Alcohol Test – A Comprehensive Guide

Published on: January 11, 2021 | by Patrick Barone

Breathalyzer tests are frequently used by law enforcement to measure blood alcohol content (BAC) and determine if a driver is impaired. However, there are numerous ways these tests can be challenged. This comprehensive guide will explore various strategies and insights into beating a breath test.

How to Beat a Breath Test – Know More than the Police About How They Work

Michigan DUI attorney near me Beating a breathalyzer is all about technique, and this method might work regardless of the amount of alcohol in your system. It’s based on the theory of breath testing, and knowing about breathing patterns. And this technique for beating a breath test reveals a little secret about just how bad breathalyzers really are a measuring blood alcohol content (BAC) levels. This technique will work with any breath testing instrument, including the Intoxilyzer 9000, Michigan’s new breath test instrument.

Barone Selected as Top 10 Attorney in Michigan DUI Defense

Published on: November 18, 2020 | by Barone Defense Firm

Attorney and Practice Magazine recently invited Patrick Barone “membership” as one of Michigan’s Top 10 Attorneys. The bar to entry? Payment of either $295 for 2020, $295 for 2021 or $590 for both years. Subsequent to payment, Mr. Barone would have available to him a host of impressive materials, from a nice looking website badge to a all plaque to be proudly displayed on the office wall.

Lawyer Ratings Have Become Big Business

In the last decade lawyer ratings have become big business. Most of them consist of a few lawyers getting together and deciding they can get rich by offering paid-for credentials to other lawyers. Several times per month at the criminal defense lawyers at the Barone Defense Firm receive solicitations to be listed on this “top 10 list,” or that “nation’s best list,” usually with the only bar to entry a small payment of usually about $300-$500.