Michigan Criminal Defense Lawyer Blog

How Can I Get a Breath Test Thrown Out of Evidence?

Published on: September 2, 2016 | by Patrick Barone

If you were given a breath test after being arrested for drunk driving in Michigan, then it is important to have an attorney verify that the test was given properly. This means verifying that all requirements were followed and adhered to. A failure to do so can result in the test being thrown out of evidence.

An example of such a requirement is the 15 minute observation period. If the police do not observe you continuously for 15 minutes prior to asking you to blow into the machine, then the test might be deemed invalid.

The police must also check your mouth before asking you to blow into the machine. If they fail to do so and it can be show that something was in your mouth when you blew into the machine, then the test can be deemed invalid.

911 Call May Be Sufficient Basis for Michigan DUI Stop

Published on: September 2, 2016 | by Patrick Barone

With cell phones being ever present in our society, it is becoming increasingly common for people to use their cell phones to report a Michigan driver they think might be intoxicated. If the police officer does not independently observe a traffic violation, then there may be a basis to challenge the stop. However these DUI cases are very fact-specific, and you should always have a DUI lawyer look at your case before drawing any conclusions.

A recent case will undoubtedly have an impact on how your DUI lawyer reviews your case is Navarette v. California, ___ U.S. ___, 134 S.Ct. 1683, 188 L.Ed.2d 680 (2014) a 911 caller claimed that they had just been run off the road by a pickup truck. The tipster identified the truck, the license number, and where the incident had occurred. A BOL (be on the lookout) radio message went out, and police went in pursuit of the truck. An officer pulled the truck over even though the officer failed to observe any bad driving of his own. During the traffic stop the police smelled marijuana, and upon searching the truck found four large, closed bags of marijuana in the truck bed. Navarette and his brother who was with him were charged with illegal possession and transport of marijuana. Before trial, their lawyer attempted to have the evidence suppressed on the basis that the officers had not corroborated the anonymous tip.

In a close decision the USSC found that the stop, based only on the 911 call, was lawful. Justice Thomas wrote in his majority opinion “under the totality of the circumstances, we find the indicia of reliability in this case sufficient to provide the officer with reasonable suspicion that the driver of the reported vehicle had run another vehicle off the road.” In a sort of ironic twist, the very fact that the call was a 911 call added to its reliably. The Court’s analysis and finding of reliability was based in part on the fact the 911 system uses several technological and regulatory features that safeguard against making false reports with immunity. These safeguards include the fact that 911 calls can be recorded and FCC regulations require the number of the 911 caller to be passed on to the dispatcher. Thus, this technology allows police to identify 911 callers, and go after them for false reports.

You Must Avoid These Top 11 Mistakes of Michigan DUI Clients

Published on: September 2, 2016 | by Patrick Barone

Assuming there is no defense: This mistake is number one for a reason, it is potentially the biggest mistake you can make. EVERY DUI case can and should be defended. It’s your Constitutional right. A belief that your case can’t be defended can only lead to one result – guilty: and this is the very result you should be trying to avoid. Remember that it is unlikely that you will ever regret aggressively defending your case, but you certainly might regret not defending it!

If you’ve already retained an attorney, then your attorney should be talking to you about what defenses apply in your case. If your attorney is not doing this, then chances are pretty good that he/she simply doesn’t know how to defend your case. This lack of knowledge can be fatal to your case.

On the other hand, if you are interviewing possible attorneys to represent you, discuss with him/her what defenses apply in your case, and equally important, how likely these defenses are to meet with success. Select the attorney who seems to be the most knowledgeable and who has the most positive outlook and attitude. As you go through this selection process it’s best to always remember one thing, success can only happen when you believe in your attorney and your attorney believes in your case!

New FOIA Rules Make Defending a Michigan DUI Easier

Published on: September 2, 2016 | by Patrick Barone

If you have been arrested for DUI in Michigan, and have found and retained a top DUI defense attorney to represent you, then he or she will be using a variety of tools to investigate your case. The purpose of this investigation is to help your DUI defense lawyer uncover defenses applicable to your case.

One under-utilized method of discovery is the Freedom of Information Act or FOIA. In a criminal case, the FOIA can be used to obtain documents from the police agencies involved in your DUI arrest, as well as agencies involved in the oversight of the specific police agency that arrested you for drunk driving.

Of particular interest in a Michigan DUI case is the State Police agency involved in oversight of the state’s breath testing program. In the case of a drunk driving / DUI blood test case, the agency of interest is the laboratory where the blood was tested for alcohol.

Do Judges Bend Law to Favor Law Enforcement?

Published on: September 2, 2016 | by Patrick Barone

Our country was founded on the principle of limited government. This means that police officers are supposed to be limited in their ability to do things like search your home, stop and frisk you on the street or even stop your car. The question is limited by whom? And the answer is, limited by judges.

The judges are members of the judicial branch of government, while the police are members of the executive. Thus, when judges limit the power of the police they are doing what the constitution says they are supposed to do. But when they expand the power of the police, they are abnegating their constitutional role.

This is a problem at all levels of government, but is a gigantic problem when we are talking about the court of final authority, the Supreme Court. That’s why it’s so significant when a Supreme Court Justice complains that the United States Supreme Court is bending the rules to favor the police and prosecutors.

New Law Makes it Easier for Michigan Drivers to Avoid a Drunk Driving Arrest

Published on: September 2, 2016 | by Patrick Barone

On September 8, 2015, Governor Snyder signed into law House Bill 4193, making it easier for Michigan drivers to avoid a DUI arrest.

According to the new law, during a traffic stop you may now show a police officer an electronic proof of insurance on your phone. This electronic proof of insurance would be considered prima facie evidence that you have properly insured your car.

So why does this make it easier to avoid a DUI arrest in Michigan? Well, one of the first things a police officer will be looking for in a DUI investigation is whether or not you are able to provide a proof of insurance. In other words, the officer will be trying to determine if you are drunk from how you respond to his/her request to provide driver license, registration and proof of insurance.

The Changing Face of Drinking and Drugged Driving Trials

Published on: September 2, 2016 | by Patrick Barone

As drunk drivers become less common on our roads, resulting in a loss of revenue to the government, the government has decided to focus on a new public enemy: drugged driving. Americans are becoming a society of medicated persons and many of those medications may affect driving. Soon, the anti-drunk driving commercials will be replaced with anti-drugged driving commercials, with all new catchphrases. “Drive Sober or Get Pulled Over” or “Over the Limit, Under Arrest” may soon be talking about your “Prescription for Arrest.” While no one is advocating drugged driving, knee-jerk reactions and propaganda campaigns are not always the solution. Many times, the public outcry will tip the scales of justice towards the prosecution. Unfortunately, a mob mentality can also lead to the passage of laws that are ill-considered and ill-advised. The new attempt to ensnare drugged drivers may already be so overzealous, as to have an unintended victory for the defense.

Michigan Public Act 315, of the 2014 Legislative Session, which amends MCL § 257.625a, is intended to help officers in the field make more drugged driving arrests. Whether it will help – or perhaps even hurt – these efforts remain to be shown. This Act, combining House Enrolled Bill 5385 and Enrolled Senate Bill 863, was presented to the Governor on October 7, 2014. Signed on October 14, 2014, the Act will become effective on January 12, 2015. Essentially, the new Act requires suspects to perform a “preliminary roadside analysis.” Currently, any participation in field sobriety is voluntary; however, come January it will be against the law to refuse to stand on one leg or walk a straight line.

Perhaps the biggest, and likely unintended, change in the law will be the conduct of trials in OWI cases. Specifically, the new Act changes the language from “preliminary breath test” to “preliminary roadside analysis” in MCL 257.625a(2)(b). That amended section states:

Travel to Canada Not Allowed After Michigan Drunk Driving Conviction

Published on: September 1, 2016 | by Patrick Barone

Michigan shares a rather large border with Canada and so it is very common for Michigan residents to travel to Canada for both business and pleasure. Being convicted of even a single instance of drunk driving can complicate such travel.

According to an excellent In and Out of Canada Article written by top DUI lawyer Wayne R. Foote:

Canadian inadmissibility is governed by the Immigration and Refugee Protection Act. It states that a Michigan resident is inadmissible if he or she committed a single “indictable” offense. This includes drunk driving.

Use of Breathalyzer Phone Apps Might Cause a DUI Arrest

Published on: September 1, 2016 | by Patrick Barone

It is well known that the legal limit in Michigan is .08. This means if the police breath, blood or urine test show that you are at or above .08, you can be convicted of DUI in Michigan – even if you are driving perfectly well!

It is not unlawful however, in Michigan or any other state, to drink and drive. Drinking and driving becomes unlawful only if the prosecutor can show that the alcohol caused you to become impaired or intoxicated.

In order to drive safely, some people buy breath testing machines or breathalyzer apps to test their breath before they hit the road. Trouble is, these apps can be wrong. So wrong in fact, that they will say you are safe to drive when you’re really more than twice the legal limit.

Are Breath or Blood Tests in DUI Cases Ever Wrong?

Published on: September 1, 2016 | by Patrick Barone

How to Beat a DUI in Michigan

If you are facing drunk driving charges in Michigan, you might wonder if it is even possible to beat a DUI charge. The best defense attorneys know that the answer to this question is an enthusiastic yes!

Facing a DUI/OWI is never fun. The penalties can be severe, and include loss of driving privileges and even jail time. OWI charges are very hard to win, and if you’re serious about how to dismiss a DUI charge, then you’ll need to hire a top Michigan OWI Lawyer.

Michigan Criminal Defense Law Blog

How to Beat a DUI in Michigan