Michigan Criminal Defense Lawyer Blog

Driveway DUI’s: Michigan Court Rules it Not Unlawful to Drive Drunk in Own Driveway

Published on: December 30, 2016 | by Patrick Barone

Disclaimer: This case was overruled by the more recent Michigan Supreme Court case of People v. Rea.

The Michigan Court of Appeals recently ruled that a person may drive drunk in their own driveway. The name of the case is People v. Rea, 315 Mich. App. 151 (2016), and in this case, after having “a lot” to drink the defendant decided he wanted to listen to some music. So, he drove his car from his garage to a point in his private driveway in line with his house. A neighbor didn’t like the defendant’s taste in music and called in the loud music. Thereafter, two police officers responded to the 911 call.

When they arrived, the defendant was seated in the driver’s seat, with the driver’s side door open. According to the court’s opinion, the “vehicle was parked deep in defendant’s driveway, next to his house.” One of the officers told him to turn down the music, and then left. At some point the neighbor called again, and when one of the officers returned, he could not see the defendant’s car. The neighbor called a third time and this time when the police arrived the officer observed that the garage door was opened, “and defendant’s vehicle backed out for “about 25 feet” before stopping still within the defendant’s yard and property. He then pulled the car back into the garage. He was arrested as he walked toward his house.”

Caffeine Related DUI Charges and What Constitutes An “Intoxicating Substance” in Michigan

Published on: December 29, 2016 | by Patrick Barone

An attorney in California has been charged with DUI for allegedly driving under the influence of caffeine. The officer who pulled the man over was working on alcohol enforcement when the driver pulled in front of him, cutting him off, and then driving erratically. A roadside breath test showed no alcohol was present in the driver’s body. 18 months later, a blood test was produced only showing the presence of caffeine. Apparently, a motion to dismiss was denied and the case set for trial.

While this case appears to be first of its kind, it’s not likely to be the last. In California, like Michigan, it is unlawful to drive under the influence of any drug, including alcohol. The term “drug” is very broadly defined, and therefore can include caffeine and even less “intoxicating” substances like ginseng.

This is because, as previously discussed, Michigan’s definition of drug includes even things listed in the homeopathic pharmacopoeia. Specifically, Michigan’s drunk driving statute, MCL 257.625(25) indicates that an intoxicating substance means: any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance, that is either of the following:

Michigan Saliva Drug Test Program Delayed Until Spring

Published on: December 20, 2016 | by Patrick Barone

Michigan passed a law such that beginning in September 2016 police were going to start testing a salvia drug swab. Apparently, however, the technology has not caught up with the law, and so, according to Mlive, the program is being delayed. An MSP spokesperson said the program isn’t likely to get started now until spring 2017. To read more about this new law, see:

Michigan Police to Begin Testing Intoxicated Drivers Saliva for Drugs

The reasoning behind this new law is simple: drunk driving arrests are declining, year after year, in nearly every state in the union. This presents a funding problem for many police departments and courts. This is because the police receive money directly from each drunk driving arrest they make in the state of Michigan. This money comes in the form of “costs of prosecution,” which vary from about $250.00 per arrest to sometimes 2 or three times that much. This accounting for police overtime can include an hourly accounting of the police time necessary to process the person they arrested. These costs of prosecution are added to all the other fines and court costs a convicted drunk driver is forced to pay. Courts get their money from each drunk driving arrest in the form of these fines and costs.

There are many ways to make up for this loss in revenue attributable to the declining numbers. One would be to try and increase the number back up by lowering the legal limit, thereby bringing even the most responsible drinkers into the law enforcement web. More than likely the legal limit will be reduced to .05 in Michigan, it’s just a matter of time. However, there are no bills pending in Michigan to reduce the legal limit.

Breath Testing Rules and Regulations in Michigan DUI Cases

Published on: December 8, 2016 | by Patrick Barone

Michigan’s rules and regulations for breath testing are set forth by law and by administrative rule. There are also a variety of rules and regulations contained in the DataMaster Evidential Breath Test Manual. Together these rules and regulations are intended to assure that a breath test result is reliable and admissible in a court of law. The problem is that these rules and regulations are often not followed.

The implied consent law in Michigan in Michigan Compiled Laws sec. 257.625a, provides that if you are arrested for drunk driving then you must submit to a chemical test, the purpose of which is to determine how much alcohol is in your body. Most of the time, the police will ask you to submit to a breath test. The Michigan chemical test rights provide that even if you took a breath test at the roadside, you must still submit to this second “evidentiary” breath test.

Specifically, the Michigan Vehicle Code, in section 257.625a provides:

What is Statute of Limitations for Drunk Driving Cases in Michigan?

Published on: December 6, 2016 | by Patrick Barone

According to Michigan Compiled Laws 767.24, the Statute of Limitations for a drunk driving case in Michigan is 6 years. However, under certain circumstances this time period can be extended. Also, although the limitations period is 6 years, according to Michigan case law, prejudice is presumed after only 18 months. This means if your drunk driving case is brought just 18 months after you are arrested, then it might sometimes be dismissed. This speedy trial issue is discussed in more detail below.

Relative to the statute of limitations, the most important date is the date of the arrest because this is the date used to start calculating the applicable time period. In other words, the “clock” runs from the date of the arrest to the time the charges are brought, either by the issuing of the ticket or the complaint. This is true even though the statute of limitations uses the word “indictment.” You do not necessarily have to know about the indictment, the prosecutor need only file it within the limitations period.

Also, if you are from out of state, or move out of state during the running of the limitations period, then the limitations might be “tolled” meaning paused. This means if you are arrested on January 1, 2017, then leave the state to take a new job on January 2, 2017, the statute of limitations won’t start to run again until you return to the state. Consequently, if you came back to the state of Michigan to retire on January 1, 2030, the prosecutor would have until December 31, 2037 to file the indictment/information with the court. This is because section 8 of the Statute reads as follows:

Impact of a Michigan Drunk Driving Charge on Buying or Leasing a New Vehicle

Published on: November 22, 2016 | by Patrick Barone

If you have been arrested for a first offense drunk driving in Michigan, then you are not prohibited in any way from buying, selling or leasing a car. However, if you have been arrested for a second offense drunk driving, then things get a bit trickier.

In 1999, the Michigan drunk driving set forth at Michigan Complied Laws 257.625 et. seq., changed substantially. Part of these changes included license plate confiscation for people arrested for a second offense within seven years, or a third offense within a lifetime.[i] The police replace the metal license plate with a temporary paper plate that is valid, under statute, until the charges against the person are dismissed, the person pleads guilty or nolo contendere to those charges, or the person is found guilty of or is acquitted of those charges.[ii]

These procedures bring up a whole host of potential issues including what happens if you want to sell your car, or turn in your lease, and what happens if you want to buy a new car?

The Role of Search and Seizure in The Prosecution of DUI Cases

Published on: October 19, 2016 | by Patrick Barone

What Follows is a draft excerpt from The Legality of Search and Seizure in DUI Cases, 2016-2017 ed.: Leading Lawyers on Leveraging Science and Process to Develop Winning Defense Strategies (Inside the Minds):

Evidence collected from search and seizure plays the starring role in the prosecution of DUI cases, and in fact, were it not for search and seizure there would be no DUI case. When we talk about search and seizure, we are squarely within all of the law that has arisen out of the 4^th amendment to the Constitution which provides as follows:

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Michigan Court Finds Search Producing Marijuana is Unlawful

Published on: October 13, 2016 | by Patrick Barone

If you are charged in Michigan with possession of Marijuana and/or Possession of Marijuana with Intent to Deliver, and the search producing the drugs is unlawful, your case can be dismissed. That’s effectively what happened in the case of People v. Mahdi, where Mr. Mahdi was convicted of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii).

In investigating this crime, the police found out where Mr. Mahdi lived, then tricked his mother into giving them consent to search her house where he lived. The police did this because consent is an exception to the Fourth Amendment search warrant requirement. In searching the home, they did not find any drugs but did find keys, a cell phone and a wallet. This led the police to the apartment where they did find the drugs that became the basis of the felony drug charges. Also, while in possession of the phone, the police were able to retrieve calls from individuals ostensibly attempting to purchase drugs.

The court held that Mr. Mahdi’s mother had the authority or ability to consent, but because the police said they were going to search for drugs, but found keys, wallet and phone, the search exceeded the consent given. Her consent was for the limited purpose of uncovering drugs. Thus, the wallet, keys and phone were not lawfully seized by the police.

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:

Habitual Time Limits No Longer Apply to Repeat Felony Offenders

Published on: September 30, 2016 | by Patrick Barone

If you are charged with a felony in Michigan, and have another felony conviction anywhere in the country, then the state will file a habitual notice to seek an enhanced sentence. In other words, if you have a prior felony conviction then the state will attempt to have that used against you at sentencing.

Basically, the way it works is this; felony cases in Michigan start at the district court. After the preliminary hearing is either held or waived, the case is sent to or “bound over” to the circuit court. The first thing that happens at the circuit court is the arraignment. If you have another felony conviction, then at the circuit court arraignment your attorney will be provided with a habitual notice. The purpose of the notice is to let you know that the maximum sentence on your charge will be raised depending on the number of your prior felony convictions. You can be a habitual second or third and so forth, all the way up to fourth. No matter how many priors you have, the habitual can only go up to fourth.

Each time your habitual goes up, the underlying maximum sentence goes up with it. So, for a second habitual offense the maximum sentence is raised to one and half times the underlying maximum. Here’s how it works; let’s say you are charged with a five-year felony, like a drunk driving third offense. If you have a prior felony, then the maximum possible sentence is not five years but seven and a half years.

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