Michigan Drunk Driving Defense Book
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CHAPTER SIX
THE CLIENT INTERVIEW
6.0 Finding the issues - the client is the best source of information
when initially attempting to identify defense issues, and an appropriate
client interview will take about 1 ½ - 2 hours. An effective interview will
require a thorough knowledge of the law and of intoxication evidence. The
interview should cover the following topics: (1) drinking pattern the day or
evening prior to the arrest; (2) possible sobriety witnesses, (3) the
circumstances of stop , (4) arresting officer’s observations and field
sobriety tasks, including specifics regarding the conditions under which the
sobriety tasks were administered, (5) circumstances of the arrest, (6)
information surrounding the administration of the chemical intoxication
test, and (7) the client’s medical background.
6.0.1 Implied consent pitfalls - If there’s been a refusal of the
chemical test, then it is imperative to make a timely demand for a hearing.
It is also imperative to obtain sufficient information to represent the
client at the DLAD hearing. For example, did the client request an attorney
prior to making the decision not to take the chemical test offered? If so,
then Hall v. Secretary of State, 60 Mich. App. 431, 231 N. W.2d 396 (1975)
may apply. Additionally, were the clients chemical test rights read? For a
more detailed discussion of these issues, see section _____ below.
6.1 Educating the Client - the client needs to understand the
ramifications of a conviction, the likelihood of a favorable outcome, and
the cost of an aggressive defense. Discuss with the Client the utility and
cost of pretrial motions such as evidentiary hearings, and explain how this
might assist in the defense. Also discuss the utility and cost of retaining
an expert witness to challenge the field sobriety tests, and/or the chemical
intoxication evidence.
6.2 The Retainer Agreement - Fee agreements should always be in writing
and sufficiently detailed so that they can prevent fee disputes from
arising. The practitioner should decide whether he or she wants to assess
fees based on a flat fee arrangement or an hourly basis. If the fee is
assessed based on a flat fee arrangement, then the agreement should be clear
as to when the fee is earned. Under certain circumstances, the use of a
non-refundable retainer may be appropriate. If the fee is not earned when
paid, then there is a necessity for an IOLTA account
6.3 Evaluating the Case - naturally, the client is going to want to know
the strengths and weaknesses of his or her case, and ultimately the
likelihood for a successful outcome, although how that is defined is likely
to vary from client to client. An earnest evaluation should be performed,
and communicated to the client at the initial consultation, with the proviso
that the evaluation is preliminary, and likely to change and develop as more
is learned about the case. Such an evaluation requires assessing each aspect
of the case, from the initial police contact, to the arrest and the
administration of the chemical test if any. Each “phase” of the case should
be evaluated separately to determine whether or not the police investigation
during this phase will assist the prosecuting attorney in meeting his/her
burden of proof.
minute videotape of the defendant showed that the operator of the Breathalyzer machine observed the defendant for no more than 8 minutes before the test was given. The Boughner court concluded that the administrative rule had certainly been violated when the view of defendant was obstructed at several points, and where defendant had his hand or fingers in or near his mouth for much of the period. Consequently, the Court found that the test results were not reliable, and suppressed the results. See also People vs. Willis, 180 Mich. App 31 (1989). [Holding that compliance with AC, R325.2655 (1)(e) is critical for an accurate test, and that failure to comply should result in suppression of the test results].
Additionally, in the unpublished case of People vs. Andreason, No. 198474 (Mich. Ct. App. Nov. 21, 1997), the court of appeals examined what is the proper observation period before administering the evidentiary breath test. Here the arresting officer testified that the defendant was in his presence for more than the required 15 minutes, but that at times the defendant was only in his peripheral vision. The Andreason court suppressed the test results after reviewing the videotape recording. This tape showed, contrary to the police officer’s testimony, that there was a two minute period when the officer had his back to the defendant. Because this “non-observation” was immediately before the test was administered, the court found that a 15 minute observation period was lacking. In suppressing the test results the Andreason court specifically rejected the prosecutor’s argument that compliance with AC, R 325.2655(1)(e) only goes to the weight of the breath test results and not to the admissibility thereof.
6.6 For attorney conducted voir dire - In a court system under siege because of crowded dockets, it is becoming increasingly common for judges to conduct most or all of voir dire. Complaining that some attorneys take longer to pick a jury than to try a case, judges find it quick and efficient to examine prospective jurors themselves and to limit the scope of questioning.
This approach to jury selection seems to find support in the Michigan Court Rules. Both MCR 2.511(C) and MCR 6.411(C)(2) state: "The court may conduct the examination of prospective jurors or permit the lawyers to do so." MCR 6.411(C)(2) further states: "If the court conducts the examination, it may permit the lawyers to supplement the examination by direct questioning or by submitting questions for the court to ask." The repeated use of the word "may" in these rules appears to give trial judges discretion to shut lawyers out of the questioning phase of the jury selection process. MCR 6.411(C)(1) specifically charges judges with the responsibility of "confining" examination to its proper purposes.
In the assault case of People v Taylor, 195 Mich App 57 (1992), the
defendant maintained that she acted in self-defense when she shot her
abusive estranged husband. The judge alone questioned the prospective
jurors, and he refused to ask any of five questions submitted by defense
counsel concerning self-defense and juror attitudes toward the use of deadly
force. Defendant refused to express satisfaction with the jury that was
impaneled and specifically told the court that she was unable to exercise
her peremptory challenges intelligently because the cursory voir dire
prevented her from learning anything about possible juror biases. On appeal,
the prosecutor argued that defense failure to exhaust peremptory challenges
barred review. The Michigan Court of Appeals said that while a party usually
must exhaust peremptory challenges to preserve for appeal an issue regarding
jury selection, it would be "pointless" to impose that requirement here:
The purpose of appellate preservation requirements is to induce litigants to
do everything they can in the trial court to prevent error, eliminate its
prejudice, or at least create a record of the error and its prejudice . . .
Requiring defendant to unintelligently exercise them [peremptory challenges]
would be pointless, because it could not have prevented the error,
eliminated its prejudice, or further demonstrated the error and its
prejudice. Id. at 60. The Court of Appeals ruled that while the scope of
voir dire is left to the discretion of the trial court, that court may not
restrict questioning to the extent of preventing development of a basis for
the intelligent exercise of challenges. Citing People v Harrell, 398 Mich
384, 388 (1976) and People v Mumford, 183 Mich App 149, 155 (1990), the
court reversed Ms. Taylor's conviction.
Only the attorneys can make voir dire accomplish its intended purpose of
revealing grounds for meaningful juror challenge. This is because only the
attorneys know the case that is about to be tried. A trial judge who knows
little about a case may discover general grounds for challenge during a
cursory voir dire, but he or she is unlikely to discover the case-specific
grounds that attorneys must know in order to take advantage fully of the
jury selection process. Consequently, the motion for attorney conducted voir
dire should always be made in the drunk driving case.
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