Despite some current summer-like temperatures the summer has ended, and the boats are being winterized and stored for the year. This is also the time some of the numbers for this past seasons boating under the influence statistics come out.

Michigan is clearly a boating destination for locals and vacationers, and many of our wonderful waterways are ‘loaded’ every weekend.

Although every state has lowered the illegal limit to .08 for operating motor vehicles – mostly based upon a conditioned agreement to receive federal highway funding – boating still remains .10 (as do ORV and Snowmobile statutes).  Frankly, not as much attention or concern was focused on boating and alcohol.  For example, literally drinking while driving a boat and drinking on a boat are commonly accepted. However, that belief may be changing although the law remains the same

This past summer efforts were quietly stepped up across Michigan, including for the Big Lake, and many inland lakes like Higgins and Houghton Lake, Mullatt, Burt, Charlevoix, Walloon and Torch Lake.  In fact, the number of BUI’s on Torch Lake increased almost 900%. Yes, almost 9 times as many ‘arrests’ this year as last year.

There are many differences in representing someone involved in a BUI vs a DUI, and its important that your representation – should you unfortunately find yourself in this situation – fully understand this scientifically and legally complex area of law.

We handle a great number of BUI cases every year, and one recent case was DISMISSED. Luckily for our out-of-state client, he talked to us after speaking with an attorney who told him “just plead guilty, the penalties are nothing”.  Now, client does not have any penalties, no misdemeanor record, and no alcohol offense on his record that has a myriad of potential direct and collateral consequences.

For more information see:

• A  Lawyer’s Guide to Drunk Boating
• Drunk Boating Defense

Senior trial lawyer at the Barone Defense Firm Mike Boyle did what few other lawyers would have the gumption to do: take a breath test result nearly four times the legal limit to trial!

Mike’s client was basically passed-out with his car stuck in a snow bank.  When the cops got there, he was stumbling around and largely incoherent.  The cop took one look at the client, immediately concluded he was drunk, arrested him, and then made him take a breath test.  The breath test ticket in this case had two test results, one was a .25 the other a .28 nearly four times the legal limit in Michigan.

The driver in this case was charged with Felony OWI 3d (priors in 93, 05) and Misdemeanor Open Intox. The Traverse City prosecutor and judge offered Sobriety Court (a 3 year commitment) on the day of arraignment, which was the first time we appeared in court. There was a lot of pressure to take the deal because Sobriety Court may have resulted in no jail.  Losing at trial would mean a minimum of 30 days, and probably a lot more.

Even though we had no police reports or other discovery, the court only gave us just one week to accept.   After consulting with Mike Boyle the client made the decision that he just couldn’t plead guilty the felony, especially when he felt like he never had any intent to commit a crime.
Mike worked for countless hours with the client to learn his story.  While the client was at first a bit reserved, using his advanced trial skills training Mike was able to get the client to open up.  Armed with a really compelling story, and a client prepared and willing to take the stand, Mike told the prosecutor he was ready for trial.

The prosecutor and the court were expecting a quick guilty verdict, but things didn’t go as planned.  When the verdict was read, the jury foreperson announced “our verdict is NOT GUILTY!”  The court and the prosecutor were shocked!  The judge even commented that it had been a very long time since a jury had acquitted on any DUI case in his courtroom, and congratulated Mike on the unimaginable outcome.

This is believed to be the first time a Michigan jury has ever acquitted an accused drunk driver with such a shockingly high breath test result and real testament to the trial skills possessed by attorney Mike Boyle at the Barone Defense Firm.

Learn More About Senior Trial Attorney Mike Boyle:

Biographical Information: Michigan DUI Lawyer Michael Boyle

Barone Defense Firm Senior Trial Lawyer Michael J. Boyle recently won another felony drunk driving. Here’s how:

The Case Facts:

Client (JD) was approached by officer as client was sitting in driver’s seat of a running car with its flashers on. Client’s girlfriend Sara was also in the car at the time in the passenger seat. Field sobriety tests were conducted, including a PBT of .095. A subsequent blood test resulted in a .14 reading. Client would be terminated from employment with a Felony on his record, but prosecuting attorney would not make any offer other than plea to charge.

Case Preparation:

Mike Boyle spent a great deal of time with both JD and Sara, and tried to get to know them, know their relationship, relationship with the kids, and understand the dynamic of a divorced mother of two trying to balance a job, kids, and a new relationship. His last meeting was spent “putting it into action”, which consisted of setting up chairs like the seats of the car. Mike then had Sara physically hold the phone to assist her getting back to that place. By the end of their time together, Mike knew the case frontwards and backwards and had essentially walked in the shoes of his client.

Opening Statement:

Mike’s stellar opening began with him pulling two chairs into the middle of the court room to set the scene, and he began simply rubbing the imaginary leg of Sara in driver seat and quietly shushing her. The opening also included presenting the full reenactment of the phone call, exiting the car, the hug, the seatbelt, and first contact with officer. A key part of the opening was also explaining the future testimony from JD of why he never explained to the officer that Sara had driven, which was because JD whole heartedly believed that sitting in a running car made him guilty, and at that moment he shut down as a guilty person.

Result and Verdict:

The jury didn’t have to deliberate very far before returning their unanimous verdict of not guilty! This was no small task, because like most states, Michigan’s instruction on “operation” includes having the ability to control, so being in a running car certainly satisfies this requirement. Thus, in order to win, Mike needed to tell a compelling story. He was able to do so because of extensive preparation, and skillful presentation.

DUI Super Drunk Law Enforcement

On October 31, 2010 a new drunk driving law in Michigan goes into effect, and it carries some stiff penalties. Known as the “Super Drunk” bill, this legislation amends several sections of Michigan law, and most notably adds a new crime for drivers with a bodily alcohol content (BAC) of .17 or greater.  Under this new statutory definition of operating while intoxicated these high BAC drivers are required to have a breath alcohol ignition interlock device (BAIID) placed on their vehicle.

Other more punitive sanctions include:

• A first offense high BAC drunk driver’s license is suspended for one year.
• The first 45 days of this year is considered a “hard” suspension, meaning absolutely no driving is allowed.
• 320 days of restricted driving privileges, but only with an ignition interlock device placed on their car.
• Fines are increased to $200.00 – $700.00, and
• potential jail time is increased from up to a possible 93 days to as much as 180 days.

There are several other changes as well.  For example,

• The court must also order a mandatory minimum one-year alcohol treatment program.
• The new law also makes drunk driving far more expensive because it is the driver’s responsibility to pay the cost of installing the BAIID as well as the monthly fees required to maintain it.
• The new law also provides for a sanction of impoundment where a person required to have a BAIID is stopped in a non-BAIID vehicle.

At the Barone Defense Firm we intend to fight this new law and to help our clients avoid any of these penalties.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (616) 365-5780 , or filling out this consultation request form. Call now, there’s no obligation!

Only Blood Alcohol Intoxicates

One of the main scientific underpinnings of breath testing is this thing called “partition ration.”  This refers to the difference in breath alcohol verses blood alcohol.  this is an important subject because testing the breath can only tell you how much alcohol is in the breath.  And, there is always less alcohol in the breath than there is in the blood.

But breath alcohol does not impair or intoxicate.  For that to happen the alcohol must get into the brain, and this of course requires that the alcohol be in the blood.

Because of this, in order for breath alcohol to have any relevance it must be converted to blood alcohol.  To do this a ratio of breath and blood alcohol must be used.  This is where partition ratio comes in, and this is one of the dirty little secretes of breath testing.

All breath testing machines everywhere in the United States “assume” that your breath blood partition ration is 2100/1.  This means every molecule of alcohol in your breath is multiplied by a factor of 2100.   But, not everyone has a partition ratio of 2100/1.  Some people have a partition ration as low as 1784/1 to as high as about 3400/1, and anyone who has a partition ration that is different has a breath test score that is either too high or too low.

Because of this many scientists have recommended that a “safety factor” be applied to breath test scores.  The idea is that this will cause there to be fewer false convictions. For example, Kurt Dubowski suggested this “safety factor” because data from his own research showed that at least 14% of the subjects had blood breath partition ratios less than 2100:1.[i] Dr. Dubowski also stated that for states using the two decimal system, (such as Michigan), a 0.025 deduction would round off to 0.03.  This would make a .10 breath test score actually a .07 – below the legal limit!

Another top expert, A.W. Jones recomends a 0.015 g/210 liter reduction from the mean of two subsequent breath tests.  This is less than Dubowski, but can still be significant.  The highest recommendation is from Dominick Labianca who suggested a 0.055% reduction from the raw result.  This would make a .13 at .075, again, below the legal limit!

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (616) 365-5780 , or filling out this consultation request form. Call now, there’s no obligation!

Trial of the DUI Case

Tonight President Obama is likely to talk to nation about the economy and what he intends to do to fix it. I suspect that he’ll say something like that fixing the economy is his number one priority.  Like someone else said a long time ago, it’s all about the economy, i.e., “it’s the economy – stupid.”

And so it is with wining a DUI trial.  Just substitute the word “preparation” for the word “economy.”  You want to know how to win a drunk driving trial?  “It’s the preparation –.”  Before you start spending lots of time figuring out exactly what you’re trying to prepare you need to understand that your preparation is for one purpose and one purpose only – to identify the theme of your case.  Everything else goes follows from there.

Let me say this differently.  Let’s say you’re handling a murder case and you learn that the state’s eye witness made a written statement that the perp had only one ear.  You know your client has two ears.  Do you cross examine the witness on this obvious mistake?  It depends on your theory of the case.  If your theory is self-defense then who cares if the witness is wrong about the ears?

The same is true of a drunk driving case.  Yes, in most DUI cases you will ask the jurors if they are members or contribute to MADD, if they drink, if they keep and/or serve alcohol in their home, do they allow people to leave their house after drinking, have they have consumed alcohol and driven, do they agree that it’s possible to do this and still drive safely, etc., etc., but these questions may not applicable, and certainly may not be the most important.

The first thing you must do, and this requires a great deal of preparation, is to figure out your theme.  Everything else, from voir dire, to opening statement, to direct (if any) to cross to closing is all based on this theme.  You use your voir dire to set up your opening statement which sets up your cross examination which sets up your close; and all of this is wrapped around a theme.  If the voir dire or cross-examination question doesn’t fit into your theme, then no matter how tempting, don’t ask it.

Ok, having said all this, we all use various sources to figure out how to approach different cases and witnesses and so forth, and Patrick T. Barone’s book Defending Drinking Drivers has lots of sample cross-examination in it and there are several detailed sections on voir dire, opening, closing and so forth.  Larry Taylor’s book is a must-read, and is simply excellent.  There are dozens of DUI defense books on the market these days, but in my very biased opinion James Publishing has several of the leading books on DUI defense, including Kapsack’s book, and the book on defending chemical tests.

With proper preparation and a powerful theme and some good story telling nearly any DUI case can be won at trial.  But, if you lose the preparation and you’ll surely lose the case!

What follows is a discussion of breath testing source-code challenges that have been brought in New Jersey.  It was written by one of the nation’s top DUI defense lawyers, Evan Levow.

New Jersey was the last to get rid of the antiquated Draeger-Smith & Wesson Breathalyzer®, replacing it with a computer-chip based machine, the Draeger Alcotest MKIII-C®.  The Alcotest is a dual measuring device, using both fuel cell and infrared technology to assess a breath sample.  No other company uses this dual technology, and the combination of the measurements, at first glance, made the machine and the process sound too good to be true.

Other jurisdictions are currently implementing the Alcotest, including Massachusetts and Connecticut, although they are using the 9510 model, which is a Windows® type format, but is essentially the same as the 7110.  Washington is about to purchase the 9510, as well.  New York State Police and some counties in California have been using the 7110 for a couple of years now.

Without the computer chips in the Alcotest®, Intoxilyzer®, DataMaster®, or Intoximeter®, the machines would be useless.  The machines run based on computer language or “source code”. 

Defendants in several jurisdictions, including Arizona, Florida and Minnesota, sought the source code from CMI, the manufacturer of the Intoxilyzer®, but actual litigation to obtain the code has not been successful.  DataMaster® has, with a non-disclosure agreement, allowed its code to be reviewed, but no litigation resulted from the review.

Only New Jersey, has undergone full source code litigation, both to obtain the code and a court based challenge on the reliability of the code.

In 2002, a pilot program was started in one New Jersey town, testing over 300 defendants on the Alcotest 7110.  Litigation was instituted in a single county, resulting in authorization to use the machine in that one county, only, in a case called State v. Foley, 370 N.J.Super. 341, 851 A.2d 123 (Law Div., 2003).  Foley resulted in some software changes to the machine.

However, appellate approval was required to use the machine state-wide, and the State failed to certify the case to the Appellate Division.  Not realizing its mistake, the State began to roll-out the machine county by county in 2005.  Several defendants began making discovery requests for the source code, and the State again certified a group of cases in a county level court, in State v. Chun.  That court declined to grant judicial notice of Foley, and the issue was eventually picked up, sua sponte, by the New Jersey Supreme Court.

The Supreme Court appointed a Special Master to conduct a state-wide reliability hearing on the machine.  The ensuing litigation lasted over three years, produced over 10,000 pages in testimony and almost 300 exhibits.  National and international experts testified for the parties, including Michael Hlastala, Ph.D., and Gerald Simpson, Ph.D.

Initially, Draeger declined to get involved in the litigation, and would not grant any realistic access to the source code.  After the Special Master issued his first of two findings of fact, Draeger intervened in the litigation because it did not like some of the Master’s rulings.  As a party to the limitation, the Supreme Court then ordered Draeger to disclose its source code under protective order

The defense team, which included Evan Levow, hired a source code analyst that found several errors and issues with the code.  Each one of these errors was opined to be enough to determine that the code is not scientifically reliable:

• The Alcotest® software would not pass U.S. Industry standards for software development and testing.  The software was not developed to any known standards, or, according to Draeger’s software engineer, no guideline standards at all.
• Actual proof of incomplete software testing.
• Catastrophic error detection in the program is disabled.  As a result, the machine would not know if critical processes failed during its operation.
• Design lacks positive feedback.  The machine cannot tell if the program is functioning correctly, and that each of the processes or calculations are occurring during operation of the program.
• Diagnostics adjust or substitute actual readings.
• Flow measurements adjust and substitute
•  No error detection logic
•  Software does not insulate/protect modules or data
• Timing problems

The most significant issue with the reliability of the Alcotest® actually came up during the cross-examination of one of Draeger’s software designers, who testified that the fuel cell measurements were actually tied in to and calibrated by the infrared measurements.  If the machine sensed an error with the fuel cell reading, it basically brought the fuel cell reading in line with the infrared reading and did not report any error.  The designer testified that, due to fuel cell drift, there was up to twenty five percent error in the fuel cell measurement.

This revelation directly contradicts Draeger’s claim that the Alcotest® is the only machine available that tests breath with two independent sources, fuel cell and infrared.

In March 2008, in State v. Chun, 194 N.J. 54 (2008) the New Jersey Supreme Court disregarded these errors and held that the machine, with certain safeguards, was reliable.  The machine tolerance between acceptable fuel cell and infrared readings was reduced by fifty percent, and the volume of air required to be emitted by women aged 60 years or older was reduced.  A twenty minute observation period prior to the breath testing was mandated.

An appeal was filed to the United States Supreme Court on confrontation issues under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).  Certiorari was denied, Chun v. New Jersey, 129 S.Ct. 158, 172 L. Ed.2d 41 (2008).

Despite the errors and issues present in the Alcotest 7110 MKIII-C, it is now used throughout New Jersey.

The case involving the lead defendant, Jane Chun, was ongoing at press time.  Ironically, the breath test results in Ms. Chun’s case were excluded from evidence, due to failure to follow protocol procedures for breath testing.  Field tests were administered while Ms. Chun was wearing high heeled shoes.

Massachusetts has also begun a scientific reliability challenge to the Alcotest.

On December 21, 2009, Michael Boyle got things rolling at the new 63^rd – 2^nd District Court with the court’s first not-guilty verdict on an OWI (Operating While Intoxicated) case. Mr. Boyle is a Senior Trial Lawyer at the Barone Defense Firm.

In this case the driver was charged with a second drunk driving case in seven years. He faced up to a year in jail and an automatic license revocation, also for one year. The not-guilty verdict allowed the client to avoid all of these consequences for this Michigan OWI case.

In addition to being charged with drunk driving based on the theory of OUIL (Operating Under the Influence of Liquor) and UBAL (Unlawful Bodily Alcohol Content), this client was also charged with Open Intoxicants in a Motor Vehicle.

According to the police report, at approximately 9:40 p.m., the Kent County Sheriff Department was dispatched to a grocery store where a man was supposed to be passed out in his truck. The deputies and emergency people arrived and just as reported, found a driver passed out in his truck. The car was parked in a parking space, but was not running. The only field sobriety test administered was the Horizontal Gaze Nystagmus (HGN), which was positive. The passed-out person also had slurred speech, a strong odor of intoxicants and was not oriented. He was arrested and his blood was drawn pursuant to a search warrant. The toxicology report came back showing a BAC of .16 grams of alcohol per 100 ml blood.

At the Driver Appeals and Assessment Division of the Michigan Secretary of State (DAAD) hearing Mr. Boyle got the officer to admit that he know nothing about when the driver got to the parking lot or how long he had been there before the Deputies arrived. Also that the Deputy collected no information during his investigation of about alcohol consumption (other than an admission) how much was consumed or over what period of time

The Deputy did claim that a half of Fifth of Crown Royal was in the vehicle and believed a 32oz cup had a mixture of coke and crown with approximately 1/8 to 1/10 was left in the cup.

At trial, Mr. Boyle cross-examined the witnesses to show that the state had no evidence of operation. Specifically, that there was no real evidence that the driver was under the influence of alcohol (OUIL) or above the legal limit (UBAL) while driving. Mr. Boyle was able to support this argument through cross examination of the State’s Expert who admitted that there was insufficient evidence. After a very brief period of deliberations, the jury found our client NOT GUILTY of OWI.

Ignition Interlock Device in Car

MADD is at it again, this time the goal is to put an ignition interlock device into every drunk driver’s car. A bill has been introduced to make such a law mandatory in every state.

They intend to do it the old fashioned way – by withholding federal highway money. This is the same insidious method that was used to make 0.08 blood-alcohol content the law in every state. MADD intends to use this method to compel states to require alcohol ignition interlocks for all convicted drunk driving offenders.

The threat of losing federal highway funds has proven to be a powerful inducement to pass increasingly draconian drunk driving laws. Recently, two U.S. senators, Frank Lautenberg of New Jersey and Tom Udall of New Mexico, joined MADD representatives Monday to announce their bill will use this tactic for ignition interlocks.

Accordingly to OHSonline:

Lautenberg wrote the law that lowered the legal blood-alcohol limit to 0.08 from 0.10 in all 50 states and also the law that set 21 as the legal minimum drinking age. He said U.S. House Transportation and Infrastructure Committee Chairman James Oberstar, D-Minn., has included language to accomplish the bill’s goal in the transportation reauthorization bill. Lautenberg and Udall serve on the Senate Commerce, Science, and Transportation Committee.

In passing the super drunk law, Michigan recently joined ten other states that currently have laws that require an ignition interlocks for all drunk driving offenders. The other states include Alaska, Arizona, Arkansas, Hawaii, Louisiana, Nebraska, New Mexico, New York, Utah, and Washington. Michigan’s law will go into effect on October 31, 2010.

For more information on ignition interlocks see:

• Drunk Driving Traffic Stops and Interlocks
• Will Ignition Interlocks End Drunk Driving?
• Ignition Interlocks – BAIID

Michigan law provides that drivers convicted of drunk driving can have their cars forfeited.  This means that upon conviction the state can take the convicted drunk driver’s car.  In those cases where the car was used without the permission or knowledge of the owner the “innocent owner” defense would apply.  If successful this defense would keep the state from grabbing the car. 

The Minnesota courts have significantly lessened the applicability of this defense.

According to the Newspaper.com, the Minnesota Supreme Court recently upheld the right of police to confiscate vehicles from owners who have done nothing wrong. The decision narrowed the applicability of an “innocent owner” defense in cases where a vehicle is jointly owned. The high court considered the case of David and Jean Margaret Laase whose then-brand new 2007 Chevrolet Tahoe was confiscated in 2006.

Although David Laase was the Tahoe’s primary driver, Jean Laase was driving the SUV alone on May 17, 2007 when she was pulled over and accused of drunk driving. Because Laase refused to submit to a breath test, the $40,000 vehicle was permanently confiscated as punishment for “second-degree criminal test refusal.

The 4-3 majority on the court, led by Justice Lorie Gildea, concluded that it is sufficient for one owner to be guilty to nullify the innocent owner defense. It did so by construing the statute to mean that “all owners” must be innocent in order to block forfeiture.

The United States gets much of our forfeiture law from ancient English cases.  Back in the old days of kings and queens all of the property in the kingdom was thought to be owned by the crown.  If you lived back then, and you used property to commit a crime, then the crown had the right to take back that property.  This was called forfeiture because by committing the crime you “forfeited” your possession of the property back to its true owner - the crown. 

Forfeiture is often abused and is really just legalized extortion.  Here is a video about a particularly terrible case of forfeiture.  Although this is not a drunk driving case, the idea behind the video is still the same.