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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.”

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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:

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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:

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Blood Test Drunk Driving | Michigan DUI Attorney

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.

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On April 29, 2010 Michigan became the 24th state to make texting while driving illegal when Governor Graholm signed Enrolled House Bill No. 4394.  This law now punishes the following behavior, as it is now illegal to:

Read, manually type, or send a text message on a wireless 2-way communication device that is located in the person’s hand or in the person’s lap, including a wireless telephone used in cellular telephone service or personal communication service, while operating a motor vehicle that is moving on a highway or street in this state. As used in this subsection, a wireless 2-way communication device does not include a global positioning or navigation system that is affixed to the motor vehicle.

However, there are three exceptions to the law:

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I suppose the answer to this question depends in part on what one thinks is the central role of the DUI defense lawyer?  I think the vast majority of those asked, lawyers and clients alike, would answer the question this way: the purpose of the DUI defense lawyer is to help the client with their legal problem.  Maybe it’s the DUI lawyer’s job to try to get their client’s off.  At a minimum it is the DUI lawyer’s job to get their client a better result than they would have achieved without a lawyer.

This all seems very logical and right, but is this the only answer to the question?  And, is a pending criminal case the only problem a person facing a DUI has? In other words, does the DUI defense lawyer have any role in addressing any underlying addiction issues that may be present?  Perhaps most importantly the question is whether or not there is a relationship between the legal issue and the addiction issues?

Clearly there is a relationship between the two.  Simply stated, addressing any underlying addiction certainly will help improve the client’s legal issues.  The reason this is true has already been discussed on these pages.  See for example:

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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:

  1. 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.
  2. 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.
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If you are arrested in Michigan for drunk driving, and the police do not read you your implied consent rights, then under the right facts it might be possible to have the alcohol test thrown out.  To understand why, it’s important to first understand Michigan’s implied consent laws.

If you are arrested in Michigan for drunk driving then the police will be requesting that you give them a sample of your breath blood or urine.  Breath testing is the most common alcohol test in Michigan. Because an alcohol test is a search, the Constitution’s Fourth Amendment applies.

In very basic terms, the Fourth Amendment requires a warrant for any sort of search, including in the context of a Michigan drunk driving arrest.  However, there are exceptions to the warrant requirement, and the most common of them is consent.  So if the police ask you for a breath sample voluntarily, and you say “yes,” then there is no reason for the police to obtain a warrant.

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A recent article that appeared in the Champion Magazine suggests that there are 7 rules to plea negotiations in DUI (criminal) cases.  This is an interesting article because many lawyers who “specialize” in defending Michigan DUI cases fail to follow these 7 rules.

If you’ve been arrested for DUI in Michigan, make sure your lawyer “has not become a cog in the criminal justice machine.” First and foremost, be sure your lawyer will take the time to actually represent YOU and your best interests.  A failure to follow even one of these rules can result in your lawyer allowing you to plead guilty “because it is the easier course” and because they “do not care enough about the fate of their clients.”

Rule One: One: Get to know the client as soon as possible.

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In every case, the answer to this question is the same – it is an unqualified unequivocal NO!

The way this issue usually comes up in my practice is when a client or potential client calls my office and says that they received a call from police asking them to come to the station to “answer a few questions,” what should I do?

First of all, let’s remember that words mean things, and the cops know what words to use.  They will ask you to come down for an interview.  What they really want to do is interrogate you.  If they were asking you to come down for an interrogation then how would you answer?

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280 N Old Woodward Ave #200
Birmingham, MI 48009
Phone: 248-306-9158
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Troy, MI 48084
Phone: 248-306-9158
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Clarkston, MI 48346
Phone: 248-306-9158
Federal Eastern District Court for Michigan has courthouses located in Ann Arbor, Flint, Port Huron, and Bay City, whereas the Western District Court has courthouses located also in in Lansing, Kalamazoo and Marquette in Michigan's upper peninsula. View More

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