Michigan DUI with .12 Breath Test Set for Trial Later Reduced to Reckless Saving Client One Year License Suspension

In this case our client was a young financial professional who had been arrested while visiting in Michigan. He was just starting out in his career and lived and worked out of State, specifically, Illinois. He had contacted several law firms and attorneys but based upon the connection we had, the overall approach we wanted to take, our experience, and the serious nature of his collateral consequences, he hired the Barone Defense Firm to help him win back his life.

Representing people facing significant collateral consequences is at the core of our practice. There is good reason to be concerned with potential incarceration, probation requirements, and driving sanctions from the Secretary of State. They can all impact someone's life and career in different ways. However, most common is the potential loss of driving privileges that can cost someone their livelihood. The driving sanctions in Michigan by the Secretary of State are certainly severe, however, it can often be even more severe for our out-of-state clients.

In the State of Illinois, any Michigan conviction for Operating While Intoxicated (OWI) or even Operating While Visibly Impaired (OWVI) will result in a 1-year suspension of driving privileges once the conviction is abstracted, or electronically reported, to the Illinois Secretary of State. The Michigan DUI Attorneys at the Barone Defense Firm have had significant experience with out-of-state clients, and Illinois is certainly one of the most consequential.

To address this Illinois driver license issue for our client in this case we created a plan that included steps to mitigate any potential impact back home and placed him with a reputable counselor and counseling program that also had extensive experience with Illinois license issues. We next asked him to provide us his company handbook and a description of his job requirements and professional licensing so we can better understand the potential impact. We wanted to use the time before the case officially began to best understand our client and his personal and professional situation. We also used this time to understand each detail of his recollection and experience leading up his arrest, the investigation, and after.

We requested and were approved to waive his physical appearance at the Arraignment, and successfully waived his appearance until the Final Court date. We wanted to limit the impact on his job and avoid the necessity of taking time off from his new job to appear in Court. We conducted an extensive investigation on our behalf that included the Discovery, which is evidence within the prosecution's case file that includes the Police or Incident Report and Dash Cam and Body Cam video. But we also requested evidence through Freedom of Information Act (FOIA) and records of data regarding the DMT Datamaster, or breathalyzer, which is the device used throughout every jurisdiction in Michigan. It was alleged in this case that our client's breath test sample was .12 (the illegal limit is .08).

The Michigan DUI attorneys at the Barone Defense Firm all have extensive forensic science training and in this case our understanding of the Datamaster helped us to uncovered significant reliability issues that called into question the accuracy of the machine and therefore the alleged results. In Michigan, the Administrative Rules require that once per week an automatic internal ‘accuracy check' be conducted and recorded, and they require a 120-day check, which must be performed by a Class IV Certified Operator once every 120 days. Until recently (January 2020), this was performed by technicians (and employees) of the Manufacturer of the DMT Datamaster, Intoximeters. These technicians have all been relieved of their position, and at least 2 of 3 technicians are being investigated by Michigan State Police who oversee the Datamaster.

We had had multiple unscheduled meetings and communication with the Prosecutor on the case. We feel it is most effective to have an open line of communication with the Prosecution and not just on scheduled court dates, like a Pretrial. From the very outset, even before obtaining all the evidence in the case we expressed our goal was to avoid the OWI or OWVI due the harsh consequence in Illinois. As the case progressed, and our client actively completed his counseling and education, we outlined the issue with the Datamaster Test results and our intention to seek suppression of the alleged results. We also documented and explained some of the behavior and ‘possible signs of intoxication' noted in the Police Report were due to an underlying mental health condition of our client. In the Jury Instructions, a jury is assisted in understanding whether someone is under the influence by being asked to consider the following: "were any of these actions abnormal? Were they abnormal due to the consumption of alcohol? Or something else?" Our intent was to explain that the actions of our client were due to a medical condition, rather than alcohol.

The case was scheduled for a Jury Trial, and a date for a Motion Hearing to address our issues. The persistence of our client in his efforts in counseling and education, the persistence of seeking a result that would protect his job and his career, the persistence of reviewing every aspect of our of our client and his case, resulted in the Prosecutor stipulating to Dismiss the OWI and allow our client to plea to a Reckless Driving. A Reckless Driving in Michigan is a 90-day Hard Suspension, which means 90 days of no driving. This is a very harsh sanction, and had our client been a Michigan Resident we would have proceeded to the Motion Hearing, and Trial if necessary. However, because he was an Illinois Resident, there would be No driving sanctions because Illinois will not suspend or restrict driving privileges on an out-of-state (Michigan) Reckless Driving.

Our client accepted the plea happily and was sentenced to a fine so small he returned home with more money in his pocket than when he came to court because the Court owed him money after applying his Bond to the Fine. Further, the Judge applauded him for his efforts during the case and wished him well in his career.