The DataMaster Breathalyzer from National Patent Analytical Systems has been utilized throughout the State of Michigan for the better part of the past 20 years.  Therefore, if you were asked to submit a breath sample you were doing so on a DataMaster whether at a local police department, county sheriff department, or a Michigan State police post.  Now, it is anticipated that a new model will be released throughout the State within the next couple of months.  Therefore, if you are facing a charge of Operating While Intoxicated or While Visibly Impaired, commonly known as drunk driving, it will be imperative that your attorney clearly understand this new machine in order to protect your rights and your future.

The DMT will be the new model used by Michigan.  Interestingly, the new DMT essentially uses the same science and theory as its soon-to-be predecessor.  The DMT also uses Infrared Spectrometry to estimate bodily alcohol content.  Infrared Spectrometry is essentially a science of deduction for this purpose.  Within the DMT, as in the DataMaster, an energy source creates wavelengths that are absorbed by hydrocarbon molecules, like the methyl group (which are a part of ethanol alcohol or common drinking alcohol), and thereby limits the amount of energy that reaches the opposite end of the Chamber.  Now, these wavelengths, with the assistance of filters, travel at two distinct microns levels of 3.44 and 3.47, which are in theory specific for drinking alcohol rather than other possible alcohols.  Therefore, based upon the amount of energy that fails to reach the opposite end of the chamber the computer computes a believed alcohol level contained within the particular breath sample analyzed.  A simple analogy would be a light exposed on your living room wall, wherein you are able to compute how big your hand is because of the size of the shadow now on the wall, or more accurately how much light is still on the wall.

The new DMT’s main differences from the old DataMaster will be first apparent when looking at the unit.  It will have a touch screen, which will be easier to use, and will allow a chart/graph graphic indicating the subject’s flow rate and believed bodily alcohol level during the test.  However, at this time, it is unknown whether that information will be made available to defense counsel, as many functions of the unit can be limited by the State.  Further, the unit will still require 3.8 Liters per minute flow rate and minimum 1.5 Liters of breath threshold before accepting a sample to be analyzed.  The DMT will use an updated, yet not necessarily modern, processing system.  Essentially, it has gone from the Atari to a Palm Pilot.  Another apparent difference will be regarding Simulator Tests, or the weekly runs on the machine.  Now, the DataMaster simulators tests are done weekly by “wet bath”.  Wet Baths use distilled water and a known alcohol concentration that are heated to create a vapor that is manually blown through the machine to simulate a human breath and reach a result between .076 to .084.  The DMT will discard the wet bath for “dry gas”, which will be housed within the unit itself.   The dry gas will stream line the process, and limit many of the errors that minimally trained officers make during simulator runs.

Similar to the old machine, there are still many reliability and accuracy issues inherent with the science and method of computing the believed bodily alcohol level.  The breath test will have a new sleek look and simply by appearance appear to be more accurate, but a skilled and knowledgeable defense attorney will still be able to tell the Real story of this Old Book with a New Cover.

The medical marijuana law has left many areas within the statute quite vague, has left many areas in contradiction with current legislation, and has left many areas to be litigated within our court system.  It is imperative for you and your attorney to understand the application process, your protected rights, and potential consequences.

Marijuana has received an overwhelming and maybe surprising acceptance in Michigan.  In fact, over 3.3 Million Michiganders voted to pass the legislation, wherein it passed in every county.  It is fair to say, “The People have spoken”.  Since April 6, 2009, there have been over 75,000 Applications for the Medical Marijuana Card and over 41,000 cards issued.  Further, only 8,700 applicants have been denied wherein most denials were because of an incomplete application and/or missing documentation.[1]

The law[2] essentially outlines the protections now afforded to the “qualifying patient”[3] and the “caregiver”[4] .  It was undisputable that possession or use of marijuana was plainly illegal prior to the passing of this legislation; however, this legislation has changed almost everything.

The Application Process is a relatively straightforward process, which includes $100 application fee, photo identification, and a Physician Certification.  The certification has come under the most scrutiny considering there are websites advertising for physician certifications, limited or no physician-patient history is required, and at least 75,000 thousand certifications have been provided.  In addition, a renewal application is also required to maintain your card, which requires the same documentation and another $100 fee.

If you have received your Marijuana Card or filed your application more than 15 days ago, you have some of the following rights:

Patient:                  Has the right to possess 2.5 ounces of “usable” marijuana, which excludes stalks, seeds, and roots.  Further, if a patient does not have a Caregiver, the patient may possess up to 12 plants, but they must be in an enclosed, locked facility.

Caregiver:              Has the right to possess 2.5 ounces as indicated above, but also is protected in cultivating marijuana for up to 5 patients.  Further, a caregiver is a person who is 21 years of age, never convicted of a felony involving drugs, and agrees to assist a patient in their medical marijuana use.

The sale, use, and possession of marijuana, and even drugged driving have been significantly impacted.  Patients and Caregivers, and physicians, will not be prosecuted as long as they adhere to the rules and regulations under the law[5].  At a recent presentation sponsored by the State Bar, presentations were provided by a defense attorney, a prosecutor, and a member of the department certifying the medical marijuana cards, and it was clear from their varied opinions that this area of law is long from settled.  However, as aforementioned, any law in its infancy is subject to new interpretation, litigation, and potential prosecution.  Therefore, it is imperative for you and your attorney to understand the application process, your protected rights, and potential consequences.

[2] MCL 333.26424

[3] MCL 333.26424(a) – Sec 4(a)

[4] MCL 333.26424(a) – Sec 4(b)

[5] MCL 333.26421, Michigan Medical Marihuana Act

New case law and Michigan’s Medical Marihuana Act[1] have caused changes in the prosecution and the defense of citizens charged with Driving or Operating Under the Influence of Drugs (Marijuana).  According to statistics, since April 6, 2009, over 41,000 Marijuana Cards have been issued[2], and it may comfortably be assumed that a majority of the 41,000 are on our Michigan roads.  Therefore, it is necessary that defense counsel understand the impact of the Act1 and recent case law in the defense of the charged, whether a marijuana card holder or not.

Under Michigan’s Operating While Intoxicated[3] – Unlawful Blood Alcohol Level (UBAL), a citizen may be found guilty on a Per Se basis, which arguably means guilt absent “impairment” if it is proven the citizen’s Bodily Alcohol Content (BAC) is at or above .08.  Similarly, there is also a per se standard of guilt for Schedule 1 drugs, which includes THC marijuana.[4] Marihuana and THC are specifically listed under the Public Health Code as a Schedule 1.[5]

However, it is important for counsel and client to understand the intricacy of the law as it stands today.  Specifically, the method or type of proof that is now required.  Recent case law[6] overruled a four- year old case[7] and held that 11-carboxy-THC, a metabolite of THC, is not a Schedule 1.  Therefore, evidence of a metabolite of marijuana is not per se proof of guilt.  Tests must reveal active THC for a Per Se conviction or must prove the driver was Under the Influence or Impaired by marijuana.

There is some evidence that active THC may be detectable between 3-8 hours after inhaling/ingesting, but it clear that our Supreme Court was clear in their intentions that the metabolite or by-product is not per se evidence of guilt.  This ruling is important overall but has an obvious impact considering 41,000 citizens will have at a minimum a by-product of THC in their system.

The Medical Marijuana Act does not permit card holders to drive under the influence; in fact, it specifically prohibits it. [8] The statute specifically does not permit any person to (4) Operate, navigate, or be in actual physical control of any motor vehicle, aircraft, or motorboat while under the influence of marihuana.[9] Therefore, consistent with Feezel, the Prosecution will need to prove the driver was in fact under the influence, or impaired, by marijuana to be successful in its efforts.

Therefore, in order to protect the rights of the accused, it is absolutely necessary to understand the impact of new case law, the changing laws, the validity and methods of chemical testing, and the factors influencing impairment and/or appearance of impairment.

[2] www.michgan.gov/mmp

[3] MCL 257.625(b) and (c)

[4] MCL 257.624(8)

[5] MCL 333.7212(c)

[6] People v Feezel 486 Mich 184, 205 (2010)

[7] People v Derror 475 Mich 316 (2006)

[8] MCL 333.26427

[9] MCL 333.26427(4)

An interesting article was posted recently on legalnews.com entitled:  Expert Witness: Little Changes at DAAD Mean a Lot.  The article addresses the new DAAD form to be used for driver license restoration, among other things.  In his article the author, Michael G. Brock, correctly indicates as follows:

In December the DAAD made some subtle changes to their evaluation form that may not seem like a big deal, but might be the difference between a person getting his or her license reinstated and have to wait another year and try again.  The Substance Abuse Evaluation form is now the Substance Use Disorders Evaluation.  Other than the title, the only real change in the form is the order of information requested, and that the relapse history has been replaced by a section titled “Periods of Abstinence” and “Abated by What?”  Meaning the cause of the relapse; i.e., quit going to AA meetings and began hanging around drinking/using friends.

In practice, the biggest changes seem to be that the hearing officers are digging into the appellant’s background more than in the past, and they are interested in any substance the person has ever taken, including those taken for only a brief time recreationally and a long time ago.

However, the author also makes several other observations and conclusions, including:

Some people in this line of work think that the abstinence model has really not been a success and is keeping those who are not yet full fledged alcoholics from moving on into adulthood by imposing serious penalties on them for youthful indiscretions.

I don’t really see it that way.  It seems to me we are catching people earlier in the progression of the disease of addiction than we used to, and, in many cases, preventing them from irreparably damaging their lives and the lives of others.  They may go a year or two without driving, but may be spared 20 years of addictive drinking and all the fallout that entails.  And this strict enforcement of the DUI laws has been largely, if not solely, responsible for reducing drunk driving related fatalities by half in the last 27 years.

While I agree with and respect the opinion and much of what the author has stated, I am firm in my conviction that tougher enforcement is NOT responsible for any reduction in either OWI or OWI related fatalities.  I have written extensively on this topic, including the following articles, all of which are from our companion site winbackyourlife.org:

• Michigan Drugged Driving Cases to Increase
• Smoking Ban Leads to Fewer DUIs
• Michigan DUI Statistics Drop

I defy the writer to provide any reasonable statistics to support his claim.  In fact, there are none.  I am also aware of no scientific studies to support the contention that taking away a license from a DUI offender actually increases the likelihood that they will not become or continue to be alcoholics.  If this were true, and it is not, why is this not part of the recognized treatment plan of any hospital treating alcohol and drug dependence and addiction?  Let’s stop repeating the feel-good platitudes and look at real statistics and real science before we misinform the public and add to the already manic anti-drunk driving hysteria.

MI DUI & CPL

When the blue and red lights come on you immediately begin to go down a mental check list: Where is my license?  Where is my insurance and registration?  How fast was I going?  Is my seatbelt on? And for those of you with a Concealed  Pistol License (CPL) you need to revert to your initial training.

First, you need to notify the officer that you hold a CPL and where the weapon is located[i].  Further, you may be subject to a $500 fine and 6 month CPL suspension if you fail to notify the officer.[ii] Typically, the officer will have knowledge that you hold a CPL after running the license plate to inquire who the vehicle is registered to, and then running the registered owner’s license that would include notification that the potential driver is a CPL holder.  Officers are going to approach with much caution under these circumstances, therefore, it is important for you to be forthcoming and cooperative.

In some cases, these temporary traffic stops morph into indepth drunk driving investigations.  If you are arrested for drunk driving, the penalties that you may endure or the degree of the penalties depend on several variables.

First, the major distinction between the potential penalties depend on whether you physically had your pistol on your person, in the vehicle, locked in the vehicle, or at home.

However, for your county licensing board, there is no presumption of innocense when arrested for drunk driving.  When you are arrested or more specifically charged with drunk driving the Prosecutor (who by law is typically a member of the licensing board) is required to report the drunk driving chargeto the county licensing board[iii].   When the Board receives that notice they will send Order of Suspension because of the alleged violation.[iv]

You are required then to forfeit your license in a timely manner, and failure to do so is punishable by up to 93 days in jail and /or fine of $500.[v]

This suspension will continue until the disposition of the drunk driving.  When the matter is ultimately resolved, the prosecutor again is required to report the disposition to the Board so they may take appropriate action.  The Board will then send a subsequent Notice  of suspension and possible revocaction.  Under some circumstances, you have a right to a hearing[vi] but the board is going to revoke your CPL as result of a drunk driving conviction.

When reviewing the CPL  application and renewal requirements, to be eligible for for CPL you can not have a drunk driving within the past 3 years.  Therefore, it is  anticpated that the suspension would likely continue for a minimum of 3 years.

However, these penalties are subject to whether the pistol was on person when the alleged offense occurred.  If the pistol was on person, and not locked in the trunk or not at home, and the BAC or bodily alcohol content was above a .10, then the CPL will be permantly revoked.[vii] If the the BAC was .08 or more but less than .10, then the it would  be revoked for not more than 3 years, and 1 year revocation if more .02 or more but less than .08. [viii] In addition, there are related criminal charges if the pistol is on person, which may include 93 day jail sentence and $100 fine. [ix]

Therefore, it is extremely important to notify the officer immediately of the CPL and pistol location when involved in a traffic stop.  If you are subsequently arrested for drunk driving, you may anticipate that you will be required to relinquish your license to the Board, and may have pistol forefeited.  That suspension will conitnue until disposition of the case, and notification by the prosecuting attorney to the Board.  The potential suspension will depend on the resolution of the case, but also some of the other aspects outlined above.  In addition, it is likely that you would not be eligible for renewal of the CPL for a minimum of 3 years if convicted of the drunk driving.

[ii] MCL  28.425f(4)

[iii] MCL 28.425m

[iv] MCL 28.425b(7)(i)

[v] MCL  28.425b(16)

[vi] MCL  28.428

[vii] MCL 28.425k(a)

[viii] MCL 28.425k(b)-(c)

[ix] MCL  28.425k (a)-(b)

Drunk Driving Suspects have many Rights.  However, most drunk driving suspects are unaware of the rights they have during the investigation, the arrest, and thereafter.  If you have been arrested for drunk driving, or represent someone who has been arrested for drunk driving, it is necessary to clearly understand those rights.

It is commonly understood that we all have a right to remain silent, but silence is rarely adhered to after being stopped and investigated for Drunk Driving.  In that same regard, you have a right not to perform Field Sobriety Tests (FSTs) when asked by an officer because these tests are voluntary, but the officer will not inform you that they are voluntary.

Further, an officer will often request a suspect to submit to a roadside or preliminary breath test, a PBT.  Prior to that request officers are required to read the suspect their PBT rights.  You have the right and should refuse this test, but you will be subject to a civil infraction ticket for PBT Refusal[1], which would include a fine but no points on your driving record.  Further, that test is inadmissible at Trial and is only used to establish probable cause to support an arrest.[2]

Once arrested, you will often be transported to the County Jail or arresting agency’s station for a chemical test.  Prior to any test being performed an officer is required to read Chemical Test Rights[3].  Unfortunately, under Michigan’s Implied Consent Law [4]it is not necessary for you to “understand” your Chemical Test Rights, only that they are read to you[5].  However, you may request a copy of the Chemical Test Rights to read independently.

After these rights are read the officer will request that you submit to a blood, breath, or urine test.  In a majority of cases, the officer will request a breath test on the BAC Datamaster, a breathalyzer.  This test is completely separate from a roadside breath test.  You have a right to refuse, but you will then be subject to a possible 6 points and 1 year license suspension[6] and in a majority of cases a Warrant will be obtained to have your blood drawn[7].  In addition, if you do submit to the breath test, or whichever test was requested by the officer, you have a right to have your own independent test performed[8].  Lastly, you may request to speak with an Attorney, but unfortunately again, you do not necessarily have a right to speak with one prior to submitting to a chemical test.

Finally, an officer is not required to provide you Miranda Rights[9] unless the officer intends on asking you further questions, or interrogating you, after you have been arrested.  Typically, an officer feels he or she has sufficient evidence and information obtained during the investigation wherein it is not necessary to interrogate a suspect.  However, you should always elect your right to remain silent, request an Attorney, and not answer any questions if the officer does provide you Miranda Rights.

If you feel any of these rights have been violated it is imperative to inform your attorney, so they may better represent you and protect your rights .

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!

[2] 257.625a(2)(b)(i)

[3] 257.625a(6)(b)

[4] 257.625c

[5] 257.625f(4)(d)

[6] 257.625a(6)(b)(v)

[7] 257.625d

[8] 257.625a(6)(b)(i)

[9] MIRANDA v. ARIZONA, 384 U.S. 436 (1966)

Fleeing Eluding Michigan

Michigan DUI lawyers are sometimes faced with over-zealous prosecutors who want to pile on to the drunk driving charge.  One way to do this is to add an additional “count” (charge) of Fleeing and Eluding.  Fleeing and Eluding in the 4^th Degree is a 2 Year Felony and the “count” most commonly added to a Charging Complaint.

As some Michigan DUI lawyers know, the reason that adding Fleeing and Eluding to a Michigan drunk driving charge is so significant is because this additional crime is classified as a Felony, whereas most Michigan drunk driving charges are misdemeanors.

If you are charged with this crime, or if you are a DUI lawyer trying to help a client so charged, then it is important to understand the differences and similarities of Fleeing and Eluding under the Michigan Motor Vehicle Code(MMVC)[1], and Fleeing and Eluding under the Michigan Penal Code(MPC)[2].

The two codes, also called “statutes” are essentially identical in their statutory construction and how they are prosecuted.  Further, the license sanctions are also identical.  However, the monetary penalties and how the matter is potentially resolved are very different.

For example, as shown below, there is a significant difference in the fine that may be imposed under the two statutes.

MMVC                         MPC

257.602a v          750.479a

*4^th Degree                   2 yrs/ $500                  2 yrs/ $2,000

3^rd Degree                   5 yrs/ $1,000               5 yrs/ $5,000

2^nd Degree                   10 yrs/ $5,000             10 yrs/ $10,000

1^st Degree                    15 yrs/ $10,000           15 yrs/ $15,000

The most significant difference between the two charges/codes is that if the charge is brought under MPC, then the prosecutor has the ability to amend or reduce the charge to ATTEMPTED Fleeing and Eluding, which would allow the conviction to be a Misdemeanor.

In many cases, attorneys seek a plea offer to an Attempted Fleeing and Eluding because they believe it will then be a Misdemeanor, however, that is not always the case.  If the Fleeing and Eluding charge is under the Motor Vehicle Code then it CAN NOT be reduced to a Misdemeanor.

The reason this charge cannot be reduced a Misdemeanor as an “Attempt” is because under the MMVC’s “Conviction of an ATTEMPT”Statute[3] it requires the Court to impose the same penalties as if the offense were committed.  Therefore, a District Court does not have jurisdiction and can not sentence because the penalty requires more than a 1 year jail sentence.

Conversely, under MPC, there is no similar statute that prevents the charge from being reduced to an Attempted Fleeing and Eluding.  However, this alternative to a Misdemeanor is only available under 4^th Degree .  Fleeing and Eluding 3^rd – 1^st Degree still prohibit the District Court jurisdiction because the penalty would be greater than a 1 year jail sentence.  Therefore, only  Fleeing and Eluding 4^th Degree under the Penal Code may be reduced to a Misdemeanor.

When considering this information, keep in mind that there are many similarities as well so that with a conviction for Fleeing and Eluding under the Motor Vehicle Code, or Attempted Fleeing and Eluding or Fleeing and Eluding under the Penal Code, the Secretary of State will impose an identical 1 year license suspension with no Hardship Appeal, 6 points, and a two-year $1,000 driver responsibility fee.  Further, if the conviction is under 1^st or 2^nd degree, the Secretary of State will impose a 1 year revocation rather than a suspension.

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!

[2] MCL 750.479a

[3] MCL 257.204b