I meet new clients charged with drunk driving under two different circumstances. All clients have been arrested and processed by the police, some may have a court date set, some may not; some clients may not even be charged yet due to a delay in receiving the chemical test results (usually blood).
The two different types of clients are either pre-arraignment or post-arraignment. In Michigan, a person charged with a DUI will appear before a judge or magistrate unless an attorney has waived their appearance; some courts allow this, some do not.
If my new client has not be arraigned yet, I will actually put some of our own bond conditions in place in anticipation of what a judge may order, which will make us look good when we appear before a judge with items already in place. If my client has been arraigned, we discuss following those conditions, and we usually add additional proactive elements.
When a judge in Michigan sets bond in a drunk driving case, the law requires the arraigning magistrate or judge to take into consideration the risk of flight and the potential risk of harm to the public when making a decision to release a person on bond.
Most DUI clients do not have a flight risk, but there is a risk of consuming alcohol or drugs while out on bond, and re-offending; this is a worst case scenario for a judge; a person charged with a DUI, getting another DUI while on bond with the court.
Conditions of bond requiring the defendant to refrain from the use of drugs or alcohol and monitoring the abstinence of the defendant are routine and will help alleviate the judge’s concern about public safety. The ability to monitor sobriety can justify a personal or nominal bond when risk of flight is not an issue. Most clients arrested for a DUI are issued a personal bond or a reasonable 10 percent provision on a larger amount.
Here are some common factors that a magistrate or judge would consider in assessing the appropriate bond:
(a) defendant’s prior criminal record, including juvenile offenses;
(b) defendant’s record of appearance or nonappearance at court proceedings or flight to avoid prosecution;
(c) defendant’s history of substance abuse or addiction;
(d) defendant’s mental condition, including character and reputation for dangerousness;
(e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence;
(f) defendant’s employment status and history and financial history insofar as these factors relate to the ability to post money bail;
(g) the availability of responsible members of the community who would vouch for or monitor the defendant;
(h) facts indicating the defendant’s ties to the community, including family ties and relationships, and length of residence, and
(i) any other facts bearing on the risk of nonappearance or danger to the public.
In my experience, the number one bond condition for a drunk driving case will be alcohol testing during the case. If alcohol testing has not already been ordered, my clients typically engage in their own proactive alcohol testing to make a good impression on the key players in the case, and to demonstrate sobriety. I will always try to help my client determine the best course of action for testing, which allows them to live a normal life outside of the courthouse.
I have many professional clients who would prefer to avoid the inconvenience of the standard court ordered testing. For many of my clients, we're able to setup alternative testing, which better fits their schedule, and still accomplishes the goal of the judge, if not goes beyond what a judge ordered.
Currently, the following methods are available to test for the presence of alcohol:
Sarah reaches out to me over the weekend about a recent drunk driving arrest. It is quite common for a client to be arrested on a Thursday, Friday or Saturday night and spend a night in jail before being released. We apply the three step “A-R-T” method of review, which covers arrest, release, and tracking.
For DUI’s in Michigan, most defendants are released either on a personal bond or a small cash bond; the exception would if the client has an extensive criminal record, especially prior drunk driving convictions. Along with likely release, the Defendant is given bond conditions with the most common rule being no drugs or alcohol with mandatory testing.
When a potential drunk driving client reaches out, it is important to get all the paperwork in their possession; there is a lot of valuable information to be gained. We want to be sure that there is NOT an implied consent issue, which we will get more into, and the client must understand all of their bond conditions, their ability to drive a vehicle, and when court may be. I also inquire about the status of their driver’s license, past criminal history, and if they hold a CDL or a CPL.
We also want to dive into their professional life, and if they hold any professional licenses or any licensing by the State. While most clients I work with are residents of Michigan, a decent portion of DUI clients are from out of state, or at a minimum have an out of state license. It is important for a client to understand how an out of state or in-state license differ for their case, and their ability to drive.
Along with gathering this background information, it is important for a client to layout their recollection of the what happened with the police; the information is most fresh immediately after the arrest. The only issue with a DUI case is the alcohol and potential lack of memory or a false sense of what happened. Some clients remember it all, some remember parts, some nothing, and some remember, either intentionally or unintentionally the wrong thing.
After gathering background on Sarah, it turns out she is a schoolteacher in Michigan, has no prior criminal history, does not have a CDL or CPL, but tells me that she refused the breath test. This last piece of information is extremely important for an attorney to know. Sarah also sends me copies of all her paperwork, which includes a ticket, a temporary license, refusal paperwork and an inventory of her property. She also has paperwork with a TBD for her court date.
I ask Sarah to walk me through her version of the arrest as I now have access to her paperwork and can begin to piece together the evening. This will cover the ARREST portion of the A-R-T method.
Sarah tells me that she was speeding on a residential road with a speed limit of 35 MPH; she estimates she was going around 55 and was lost. She had been out with work friends celebrating the end of the school year and was trying to find her way back to the freeway; while trying to find her way, she was pulled over by the police.
Within the A-R-T approach, we also want to use three windows of inquiry. The first thing we examine in an arrest is the reason for being pulled over, stopped by the police, or how the heck did you end up interacting with a police officer, and does it meet the legal standard in Michigan.
Here we have a traffic stop by a police officer; some cases involve accidents where a police officer arrives after the “driving”, a civilian may call 911, or a driver may be parked somewhere with the car not in motion. A traffic stop like Sarah is the most common. For a police officer in Michigan to make a traffic stop, the officer must have reasonable suspicion that the driver of the vehicle has committed a violation of the traffic code.
Even if in the end the driver did not, the standard is a reasonable suspicion, not probable or beyond a reasonable doubt. To challenge a traffic stop, it is an uphill battle which is helped if video is available that contradicts the officer’s reason. Here we have speeding, and if the officer reasonable believed Sarah was speeding, the traffic stop is a good stop, and would unlikely be cause for inquiry.
The good news for Sarah is speeding alone is NOT a basis for impaired or intoxicated driving; sober people speed all the time, but it is a reason to be pulled over. Once on the side of the road, the officer will not interact with Sarah. Under the law, Sarah is not required to speak or perform any tests for the officer; she must comply with providing her license, registration and insurance; her name is listed on this information, and she has the option of keeping her mouth closed and handing over this information.
That never happens, and clients are very chatty with the officer, because that officer is trained to elicit information and make observations to assist in determining if an arrest should be made. This is now our second window of inquiry; once the stop is examined, we must now determine if the officer has probable cause to arrest the driver for a crime committed. Speeding is not a crime, so an arrest cannot be made based on that observation.
The officer will now make observations, elicit statements, and push for field sobriety tests to support the need for probable cause. It means how it sounds, is it probable that Sarah in this case committed the crime of drunk driving, which requires operation of a motor vehicle, and either impairment or intoxication. It is probable Sarah was driving as he pulled her over, there was only one person in the car, and Sarah admits to leaving a work party and getting lost.
The probability of driving comes into question if an officer first observes the vehicle parked, on the side of the road etc. The person may be inside or outside the vehicle, and a police officer and prosecutor need to lean more heavily on circumstantial evidence than in Sarah’s case.
So, let us move onto an examination of the impairment or intoxication of Sarah. Speeding alone is not enough to arrest someone for drunk driving, but as Sarah continues to speak and exits the vehicle, the officer builds his case. It should be noted that the officer does not need to offer Miranda warning at this point as it is still an ongoing roadside investigation; as long as evidence of a possible crime continues to present itself, the officer can carry-on.
Only when Sarah is in police custody would statements, she makes be protected by the law. In many cases drunk driving cases, the statements of the Defendant are not the main evidence; the main evidence is usually seeing the person driving and the chemical tests to follow. The one type of case where it may be more relevant is when a Defendant eventually admits to driving if there is not an independent eyewitness to the driving.
While still inside the car, Sarah provides her information to the officer, and admits to leaving a restaurant with friends; she admits to having 2 mixed drinks, but she feels fine. She admits she was lost and should not have been speeding, but she wanted to get home.
At this point an officer can ask Sarah to exit the vehicle. The officer has evidence she was driving and had consumed alcohol prior to driving. The officer will observe Sarah exit the vehicle and note any trouble exiting, leaning on the vehicle. Officer is observing her speech and her appearance; common remarks are slurred speech, watery and red eyes; you see those in most reports by default.
Once Sarah is out of the vehicle, the officer had her do three field sobriety tests; he performed the horizontal gaze nystagmus test, the walk-and-turn and the one-leg stand; those are the three recognized standardized tests; any tests outside of those are not standardized and should not be a basis of determining the arrest.
Sarah believes she did OK on the tests but had sandals on and was nervous; I explain to her that its rare for anyone to do well on those tests and to not worry about it too much. We will be able to get the officer’s report and review any associated audio and video from the tests. While the field sobriety tests can be hit or miss, they are typically used as the basis of the arrest, and most judges would uphold the arrest if the officer followed protocol on the tests.
Officers vary in how well they administrator the tests, and I have found the horizontal gaze nystagmus to be the most fruitful to challenge as officer’s rush the test and do it wrong. The audio and video allow us to see and hear what happened; the video can be helpful for the other two, but sometimes they are performed off camera or it is hard to see the feet of my client.
The most important part of the client being outside of the vehicle is whether they performed the Preliminary Breath Test or as it is referred to as the PBT. Clients get confused about the different tests and if they need to take them. Some officers push the PBT on the client and make them think they MUST take the test. Technically by law you do need to take a PBT if an officer believes you were driving and drinking alcohol, but failure to do so is merely a civil infraction, punishable by a fine and 0 points. For those under 21, there are 2 points attached.
Either way, a PBT result for Sarah could make or break the officer’s ability to arrest her. While the PBT is not admissible at trial, it can be used as a basis of arrest to examine the probable cause. The PBT test is not deemed reliable enough to be used to determine guilty or innocence, but prosecutors use it as the main tool to uphold an officer’s decision to arrest. In Sarah’s case, she agreed to take the PBT and the result was 0.14 which is over the legal limit.
The one benefit of the PBT is if you believe you will pass, an officer may send you on your way if under the limit; he/she can still arrest you for being under the limit based on the totality of the evidence, but that case would certainly be open to scrutiny. I believe the upside is low if you are not sure if you’ll pass; by being over the limit on the PBT, you’re going to be arrested, and the cop/prosecutor have very strong evidence of probable cause. Based on what Sarah tells me, it sounds like the basis of arrest was there at the time.
Finally, we move onto the post-arrest and additional chemical tests. Sarah mentioned that she refused the test; when arrested for a DUI in Michigan, there is something called an implied consent, which means by law you must submit to breath or blood; failure to do so could result in 6 points and loss of license for a year. The officer must follow protocol in this situation and make Sarah aware of these consequences and give her an opportunity to agree or refuse.
Sarah tells me that she remembers the officer reading those rights, but she was confused and was not sure; she felt it best not to take the test. Some officers are better than others in helping clients understand that it is usually in their best interest to take the test, because the officer is going to get results one way or another. By refusing it adds an automatic license suspension to your case. As you will find a ton of information on my website and videos, an implied consent is not the end of the world; there are options, but it certainly complicates the case for Sarah.
Because the officer had to get a warrant for blood, we do not know the result of the BAC and cannot determine what level of charge we will have (Impaired, Intoxicated or High BAC). It is also why her court date is TBD because a date is unlikely to be set before the blood result is back. This could take 10 days or 4 months, it depends on the capacity of the testing lab, how quickly the officer follows up etc.
You can find many articles on my website about challenging breath and blood, but for purposes of this story, we are now going to focus on the Release and Tracking portion of the A-R-T.
As mentioned above Sarah was released on bond by the court. Without prior criminal history, she had to post $300 and promise to come to court when scheduled. She received alcohol testing as a condition of her bond which she must call every morning to determine if its her random day. Sarah must understand the conditions of her release, so she complies from day one. The release portion of a case becomes more complicated when a client cannot post bond, or the judge holds the client to put a tether on their alcohol or some sort of monitoring. Sarah’s release was straight forward, and she appears to understand her obligations.
An especially important part of Sarah’s case is now the tracking portion; I explain to Sarah that she may not have court for a few weeks, maybe even a month or two. She can sit back and check her mailbox every day; she is likely to lose sleep, be anxious and miserable and she waits for the bomb in her box to show up. This is not a healthy approach to a drunk driving case. Not only is she out of the loop on information, she would waste valuable time doing nothing for her case.
I explain to Sarah that if we work together, we will get things filed with the court, police, and prosecutor; we want to preserve and request all evidence. We do not want video and audio to be deleted or lost, and we want the police and prosecutor to know someone is working with Sarah and keeping her organized and informed. We want to track the status of the blood result and be on top of any warrants or case updates. It is our goal that no warrant for arrest goes into play, and we can simply ask the court to cancel any warrant, and/or waive any arraignment date.
It is our goal to know what is going on, and not to be afraid of the daily trip to the mailbox. It is possible that Sarah misses something, a letter does not arrive, and she sits in limbo as the court begins looking for her; mail and notices get lost all the time. It is better to have a professional tracking the case daily.
Along with information, we want to maximize our time. With a drunk driving case, we will need to overcome the perception that the client is a dangerous drunk driver. It is likely not the first time the person was driving while drunk, but simply the first time they were caught. If a potential client has prior DUI cases, then it is really an uphill battle for the client to overcome that perception.
Our words mean truly little in court, our actions speak louder than anything we can say. I explain to Sarah that if we work together, she would be expected to be proactive from day one. This means likely obtaining a portable alcohol testing device; it would be our goal to test 2x daily and go above and beyond the testing put in place by the court. We would want to change her testing as well, as the portable device will allow a much more convenient method and more dependable and comprehensive.
If we want to change the perception of Sarah, testing 14 times a week, 13 more times than ordered is a good start. We also want to be screened and assessed from a professional in substance abuse; get a basis of where we stand in the present and where we can go moving forward; we usually begin counseling and alcohol education and insight. If a client has prior DUI’s, we usually push for intensive treatment, and begin to put in place jail alternatives.
My DUI proactive program is really tailored specifically for each client, with the average client adopting 5 to 6 steps; this will vary by the court, judge, type of charge, prior history and what comes back on the substance abuse evaluation.
Sarah agrees that she wants to take control of her case. She feels terrible about her choice that night; she knows it was NOT a mistake, but a choice. She is motivated by the fact that she could make a positive impact on her case daily with my proactive plan. The alternative sounds unproductive and frankly makes her anxious to think she would be waiting around for the case to smack her on the head. She would lose valuable time and would feel very unprepared.
Sarah did not know that this type of approach was possible, but it makes so much sense to be on top of things, and if you want someone to believe in you, you need to earn that from the prosecutor and judge.
I explain to Sarah that if she follows my program and works hard, that she has a major opportunity to change the perception of her case with the prosecutor and judge, and work toward an exceptional result.
As a side note, the Implied Consent refusal must be addressed immediately by my office. Failure to appeal this within 14 days would suspend her license for a year subject to the possibility of applying for a hardship license, which I cover in other writings. Our proactive approach helps tremendously in this issue as well; it may take us into the Circuit Court before a judge who we must request to overturn a Secretary of State license suspension. The weight of that decision should not be taken lightly by a judge, and we must provide the justification for that decision.