In order for the police to arrest you for OWI, there must first be a valid traffic stop. Often, police only see what they want to see. A thorough review of the dash-cam footage often reveals that the officer’s recollection of the stop is wrong. Whether it is failure to use a turn signal, running a red light, or swerving, the police will often come up with a minor traffic violation to initiate contact.
However, the video may show that the light was yellow, a turn signal was used, or “swerving” was minor and within your own lane. Knowing how to properly review a dash-cam video is the key to for your case to be dismissed early on.
One of the longest standing constitutional guarantees lies in the Fourth Amendment. Unreasonable searches and seizures are unconstitutional. The standard is whether there was “probable cause” to arrest someone for a crime. In the OWI context, this means that everything leading up to handcuffs must be analyzed. The police will administer Standardized Field Sobriety Tests (“SFST”) and/or a Preliminary Breath Test (“PBT”) to determine whether there is impairment/probable cause to arrest.
The National Highway Traffic and Safety Administration (“NHTSA”) have published rules and regulations for how to administer these tests. Often, these tests are taught to the police in the academy. However, officers consistently fail to administer these field sobriety tests properly. Moreover, the police must follow rules regarding to administration of a PBT.
Reviewing the dash-cam/body cam footage will often share errors during the administration of these tests. All DUI lawyers should take an SFST course in order to properly examine the videos and effectively cross-examine the officer. Failure to properly instruct, evaluate, and document the results of these tests can infer that probable cause to arrest did not exist. This often leads to a dismissal.
According to the Michigan Administrative Rules, numerous guidelines are placed on officers regarding the administration of a PBT.
- First, officers must maintain and calibrate their PBT device regularly.
- Second, the officer must observe the individual for 15 minutes prior to administration of the PBT.
This is to ensure that no mouth-alcohol or other foreign substances interfere with the sample. Often this test is given within view of the dash-camera, so it can be viewed for compliance. Ultimately, failure to properly administer a PBT can lead to suppression of the test. Since this test can be used for some or all of the probable cause to arrest, suppression of this test is key.
In Michigan, numerous cases have discussed the admissibility of a chemical test, especially blood. The court has found that the prosecutor must show that a blood sample was “timely taken.” This ensures that the blood test results do not come from an, “unreliable blood sample.”
While the courts have given substantial leeway to the police as far as timing of the blood sample, substantial or unreasonable delays can lead to the suppression of your blood test. Suppression of your blood sample will likely lead to a dismissal. An experienced DUI attorney will review the timeline of your case and determine if the sample was timely taken.
Any blood sample taken from an individual in a criminal investigation is considered a search. As previously stated, the Fourth Amendment protects people against unreasonable searches. In order to accommodate this rule, the police have certain procedures to comply with the Fourth Amendment.
The first is consent. If consent is given to a blood test, the search is deemed reasonable. However, if consent is not given, the police must obtain a warrant (there are complicated exceptions, however). The police must present a warrant to a judge/magistrate for signing. In this document, the police must state the probable cause relied upon to prove the blood will reveal evidence of an OWI.
If this warrant is not obtained or obtained improperly, the blood sample should be suppressed. There are numerous circumstances which can invalidate a search warrant. Moreover, a thorough review of the facts may show that a warrant was needed, but not obtained.
Due to the high evidential value of the Breath Test after arrest, Michigan has adopted Administrative Rules relating to the “Datamaster” breath test machine. After arrest, the police will ask you to take a breath or blood sample. The majority of people will opt to take the breath test. Even if you took a breath test on the side of the road, you must still take this test pursuant to Michigan’s Implied Consent Law.
The Datamaster machine is housed at police departments. There are two important things to review about this test.
- The Datamaster machine must be properly maintained with documentation. The machine will run an accuracy check at least once a calendar week. The machine will check itself against a “known sample”. The machine will then provide a “ticket” which shows the results. An individual at the police station is responsible for documenting this test and logging it. A thorough review of this machine’s accuracy should be reviewed in EVERY breath case.
- Much like the PBT, the police must observe the individual for at least 15 minutes prior to administering the test. Most police departments now have a camera positioned to capture this test. The “booking room” video should be obtained and reviewed in every case to ensure compliance with the administrative rules.
When we weigh ourselves on a scale, we count on the scale being accurate. However, how do we know that “150” is actually 150lbs? The failure to establish traceability defense falls along the same lines. How do we know that the machine has been accuracy checked properly?
Once a calendar week, a canister releases a sample of air into the machine with a known concentration of alcohol. For example, the machine will release the gas and do a reading. The canister may say that 0.078 grams of alcohol per 210 liters of breath was released. The machine reads the sample and states that it believes the reading should be 0.077 grams of alcohol per 210 liters of breath.
While this may sound accurate, how do we do that the canister actually released a sample of 0.078? The prosecutor must be able to trace the canister back to some known standard. This requires extensive review of Datamaster logs and maintenance records.
This defense requires an attorney who has a scientific background. Luckily, Barton Morris is Michigan’s only ACS-CHAL Forensic Lawyer-Scientist. This defense attempts to explain that a person, while having a BAC over .08 at the time of a chemical test, may not have been over the legal limit at the time of actual operation of the vehicle.
For example, a person could have finished a drink and left dinner. Soon after leaving, that person is pulled over by the police. The alcohol would not have had time to metabolize at the time of the traffic stop. However, due to the administration of SFST’s, travel to the police station, 15 minute wait period, and finally a breath test, the person’s BAC has risen above .08. Hence the term “rising alcohol” defense.
This requires calculations of alcohol consumption, time, weight, and other factors. Only an experienced DUI law firm can effectively present this defense.
While most people might not be familiar with GERD, you are familiar with the more common term, Acid Reflux. Acid Reflux is not only painful, but it can cause an unreliable breath sample. Acid Reflux (GERD when it occurs more than twice a week) is when stomach acid or bile flows back into the food pipe or all the way up into the throat.
If a person has consumed alcohol, that means alcohol has also been re-introduced into the throat. A breath test is meant to obtain a sample of air from the lungs, not the regurgitated contents of the stomach. If a person has an episode of GERD before the breath test, which occurs more frequently when alcohol is consumed, the sample is unreliable.
An experienced DUI lawyer can demonstrate this to a judge, or even more importantly, a jury. It is imperative that you sit down with your attorney and go through a thorough review of your medical history.
We often hear of someone passing out in their vehicle after a night of drinking. Depending on the facts of the case, this can be a very convincing defense. As a society, we should hope that someone would pull over or choose to sleep in their car if they are too intoxicated.
While Michigan law keeps this defense fairly narrow, a dedicated DUI attorney can review the facts of the case to determine if you meet the criteria for operating. If you were not operating the vehicle at the time of police contact, you cannot be found guilty of OWI.
A person who is diabetic may be set up to fail on a breath test. When the body lacks enough insulin, the body goes into ketosis. This means the body is burning fat cells for energy and naturally produces ketones. When ketones are eliminated from the body by breath or urine, they convert to alcohol. Therefore, a person could have consumed no alcohol, but they could still register an alcohol level on a breath test.
Moreover, if a person has consumed alcohol, the level could be artificially higher due to these ketones. It is important to make your attorney aware of this condition, so they can obtain medical records. A person with diabetes should avoid taking a breath test if possible.
In order to properly administer a breath test on Michigan’s Datamaster machine, the person must be certified by the State. Due to the nature of the machine and the specific ways in which the test must be administered, only trained individuals are allowed to give the breath test.
These records are easily obtained, but they are rarely used. If the prosecutor is going to use a breath test against you, the person administering the test must be properly trained.
Michigan law requires that a blood sample be taken by someone under the supervision of a physician. Therefore, the blood draw cannot be performed by just anybody. By reviewing the medical records from the blood draw, along with the chain of command in place by the person drawing the blood, a defense can be made that the blood sample was drawn improperly.
The defense of involuntary intoxication is a strong, but difficult defense to present. Clearly, if a person has knowingly consumed alcohol or a controlled substance, they should be held responsible for their ingestion of those substances.
However, what if the person didn’t know they consumed those substances? For instance, was their drink spiked with something? Did they take the wrong medicine? These issues can provide an effective defense if the circumstances surrounding the individual’s ingestion of the substance can be called into question.
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