Defending a DUI

Driving under the influence of alcohol, or more commonly known as DUI or “drunk driving”, is one of the most common offenses in our country and our courtrooms. Driving under the influence or DUI is also one of the most difficult charges to defend. DUIs or “drunk driving” is one of the only crimes in America that is not afforded the constitutional safeguards we have all come to know and appreciate. The evidentiary, scientific and procedural processes of defending DUIs has grown so complex over time as a result of continuing to lower the “legal limit” and placing harsher penalties on people charged with and convicted of DUI.

The most noticeable change to our DUI laws was the inclusion of the per se law. This law fundamentally states that it does not matter whether or not you were impaired or under the influence, but rather if your chemical test was above our magic number. In Michigan, if a driver has a bodily alcohol content (BAC) of .08 or above they are presumed to be intoxicated. This makes the prosecution’s job much easier and the defense’s much more difficult. The prosecution now relies upon the “science” of the chemical test and not whether or not you were truly intoxicated.

As pressure to arrest and convict more DUIs increases so does the monetary gain for the State and third party businesses who supply the State with the tools and machines to test suspected drunk drivers. Thus, our need for more complex and “accurate” testing devices increases. As we continue to make the methods of testing more complex, the level of error continues to increase as well.

In Michigan, you have expressly consented to submitting to a chemical test by driving on our public roadways. You have a choice of a blood or a breath test. If you choose breath, you will be required to blow into a device known as the BAC Datamaster. A well-trained Michigan DUI defense lawyer will be trained and certified in the operation and functionality of this machine and know how to attack the validity of its results.

An aggressive and well-trained DUI defense lawyer will understand and embrace the challenges in DUI defense and will investigate and exploit issues with every test result. Because of the complexity and difficulty in preparing successful defenses, you must select your DUI defense attorney carefully and ensure that their level of knowledge is superior to that of other defense attorneys. Do not hire based on price alone. Remember, you often get what you pay for when it comes to criminal defense attorneys.

Chemical analysis is not the only aspect that your DUI defense lawyer should attack. Along with chemical analysis, other evidentiary changes have evolved in recent years. One of these areas is field sobriety tests. Your Michigan DUI defense attorney should be trained in standardized field sobriety tests and must understand the validity of each test and how these tests can be compromised by instructor error.

Attorney Barton Morris will attack and identify errors in each of the following areas and others:

Sufficient reason for traffic stop or police contact

Sufficient evidence or probable cause for arrest

Proper administration and evaluation of field sobriety tests

Proper administration and evaluation of all breath testing

Proper administration of all blood collection

Proper protocals used in blood testing

Proper analysis of the supporting documentation (chromatagrams) of blood test results.

Within each of these phases will be dozens of different evidentiary items that need to be evaluated and exploited. An aggressive and knowledgeable DUI defense attorney will attack each phase of your arrest to prepare a solid and reputable defense.

What does all of this mean to the Michigan DUI defense attorney representing a client charged with driving under the influence? It means that education, experience, specific knowledge and preparation are more important than ever. The field of DUI defense has always been a difficult one and only continues to become more difficult as laws change and political pressure to crack down on drunk drivers increases. The complexity of defending DUIs has exponentially increased in the last decade. At the same time, the damage that can be suffered by the DUI client has been increased substantially.

Yet despite the vastly more sophisticated nature of DUI litigation, the client accused of this offense is likely to be defended by counsel who normally does not focus on DUI defense and has a very rudimentary understanding of DUI criminal and administrative law. DUI is unique in that it is committed primarily by individuals who are respectable citizens who have never been in trouble before and have no prior criminal record. These individuals often feel as though they made a mistake and that the “system” will understand this, and that they will receive the minimum penalties and thus do not need to spend money on DUI attorneys but rather can hire any criminal defense attorney. As a result, this highly complex case is handled routinely by attorneys with insufficient knowledge of the extensive scientific, evidentiary, procedural, and tactical considerations involved. The result is often less than desirable and often very predictable.

Reasonable Suspicion for Contact

Below is a list of the most common reasons for officers to stop or contact individuals who they subsequently arrest for DUI. This list is based upon over 1,000 DUI cases defended by Barton Morris. The reasons for contact are listed from the most to least prevalent.

Careless Driving
Wide Turn
Failure to Signal
Defective Vehicle
Wrong Way on a One-Way Street
No Headlights
Disobeying a Traffic Signal/Device
Illegal Turn
Hit & Run
Expired/Fraudulent Tags
Following Too Closely
Welfare Check
Almost Striking a Vehicle or Object
Reckless Driving
Illegal U-Turn

Probable Cause for Arrest

After the officer has made initial contact, he/she must establish probable cause for arrest and to require you to submit to a chemical test. The officer will look at and assess the following:

The Stop
Did you immediately recognize the officer attempting to stop you and how quickly, smoothly and safely did you pull over or come to a stop?
Did you use your turn signal to pull over?
Did you leave your turn signal on upon pulling over?
Did you forget to put your vehicle in park and accidentally roll forward or backward?
Did you light a cigarette immediately or roll all your windows down to allow the smell of alcohol to escape?
Initial Observation
Did you have bloodshot, watery, glassy or pink eyes?
Did you have a strong, moderate or slight odor of alcohol emitting from your person or breath?
Did you have thick-tongued, slurred, or mumbling speech?
Did you admit to consuming or drinking alcohol?
How was your finger dexterity? Were you able to remove your license from your wallet without struggling?
Were you aware of your surroundings or disoriented?
Were you able to identify documents such as license, registration, proof of insurance, etc?
Were you able to multi-task? Can you retrieve your insurance and registration documents while answering questions?
Pre-Arrest Screening
The officer will now request you perform voluntary roadside maneuvers
HGN- Horizontal Gaze Nystagmus- This test will look for the involuntary jerking of the eyes. The officer will observe your eyes to determines if they pursue smoothly, have nystagmus prior to 45 degrees and if you have nystagmus at maximum deviation.
WAT- Walk and Turn- The officer will ask you to take a series of heel to toe steps on an actual or imaginary line and to conduct a turn as demonstrated and instructed and then to come back walking heel to toe.
OLS- One Legged Stand- The officer will ask you to stand on one leg and count out loud to 30 seconds or until he tells you to stop.
The officer may ask you to perform other roadside maneuvers such as the following:
Modified Rhomberg
Finger to Nose
PBT (Portable Breath Test)
The officer will use this evidence against you in support of an arrest. At this point the officer will believe he/she has gathered enough evidence to support an arrest and establish probable cause to request you submit to a chemical test.

Evidential Breath or Blood Test

The officer has now placed you under arrest and must advise you of your Michigan Chemical Test Rights which requires any driver to consent to a chemical test if a police officer has reasonable grounds to believe the person is driving under the influence or their ability to operate a motor vehicle is impaired because of alcohol, drugs or both. The rights that must be communicated to every person arrested for DUI before a breath or blood test is requested include the right to have a reasonable independent test of your BAC from a person of your own choosing immediately after submitting to the officer’s chosen test.

The officer will take you to the appropriate facility to conduct a breath test on the BAC Datamaster or to have a blood draw completed for analysis. Each of these tests has very strict guidelines on proper procedure, time lines, and protocol. If these tests are not conducted within substantial compliance of the Michigan State Police Administrative Rules, the validity of your test results may be compromised. A knowledgeable Michigan DUI lawyer will look into all of these stages to find any and all errors and prepare your defense.