Michigan Drunk Driving Defense Book
What follows is the table of contents to an early draft of a book written by Mr. Barone to help Michigan lawyers learn how to defend drunk driving cases. Three chapters are also reproduced in their entirety. This is the first draft of a book that never reached publication so much of the detail one might expect in an actual drunk driving defense textbook is not included here. You should not rely on this information for legal advice. Only a lawyer who knows you and your case can provide legal advice to you. If you’d like to discuss any of the information contained in these pages, then please feel free to contact Mr. Barone. You might also consider ordering one of his published books on topic.
TABLE OF CONTENTS
Chapter 1. The Offense
1.0 Public perceptions and the Defense of the Drunk Driving Client
1.1 The offense of operating under the influence of liquor (OUIL)
1.1.1 Definition of “operate”, vehicle in motion
1.1.2 Vehicle not in motion
1.1.3 Definition of “under the influence”
1.2 The offense of operating with an unlawful blood alcohol level (UBAL)
1.3 The offense of operating under the influence of drugs (OUID)
1.4 The offense of operating while impaired (OWI)
1.5 The offense of operating child endangerment
1.6 The offense of operating OUIL causing injury or death
1.6.1 The elements of OUIL causing injury or death.
1.7 Commercial driver license issues
1.8 Zero tolerance
1.9 Right to instruction on the lesser included offense(s)
Chapter 2. The Sentence
2.0 Judicial Perceptions
2.1 General requirements for lawful sentence
2.1.1 Factors to be considered in determining an appropriate sentence
2.2 Misdemeanor Offenses
2.3 Felony Offenses
2.4 Enhancement using prior convictions
2.5 Other sentencing issues
2.6 Using out-of-State convictions
2.7 Calculation of time periods
Chapter 3. Substance Abuse Evaluation and Treatment
3.0 Understanding the problem
3.1 Defining/diagnosing alcoholism
3.1.1 Substance abuse verses substance dependence disorders
3.1.2 Substance abuse
3.1.3 Substance dependence
3.1.4 Treatment options
3.2 Substance abuse evaluations
3.2.1 Court ordered pre-sentence screening
3.3 Options for treatment
3.3.1 Alcoholics anonymous
3.3.2 Group psychotherapy
3.3.3 Individual psychotherapy
3.4 Using a therapist to obtain a better result for your client
3.4.1 A useful substance abuse evaluation
3.4.2 The therapist’s role in driver license appeal/restoration hearings
3.5 Drug Courts
Chapter 4. Understanding the physiology of alcohol
4.0 Physiology of Beverage Alcohol
4.0.1 Alcohol’s properties
4.0.2 Absorption
4.0.3 Distribution
4.0.4 Elimination
4.0.5 Body weight and body type
4.0.6 Rate of consumption
4.0.7 Alcohol content
4.0.8 Food
4.0.9 Fatigue
4.0.10 Tolerance
4.0.11 Gender differences
Chapter 5. Understanding chemical intoxication evidence
5.0 Breath testing devices generally
5.1 The DataMaster
5.2 The DataMaster result as “unreliable” evidence
5.3 Overestimation of true BAC from DataMaster results
5.4 Inherent limitations of the DataMaster
5.4.1 Tying the ‘unreliable” result to your client
5.5 Blood testing
5.5.1 The search warrant requirement
5.5.2 The blood draw
5.5.3 Chain of evidence
5.5.4 Integrity of the blood sample
5.5.5 Serum/plasma vs. whole blood
5.6 Overview of gas chromatography
5.7 Challenging the results
5.7.1 Cross-examination of the testing forensic scientist
Chapter 6. The Client Interview
6.0 Finding the Issues
6.0.1 Implied consent pitfalls
6.1 Educating the client
6.2 The retainer agreement
6.3 Evaluating the case
Chapter 7. Discovery
7.0 What is Discoverable
7.1 What discovery should include
7.2 Obtaining discovery
7.2.1 Using the discovery demand
7.2.2 Using the Freedom of Information Act
7.2.3 Using the subpoena power
7.4 Other discovery tools
7.5 Motions to compel discovery
7.6 Preliminary hearings as discovery tools
7.7 Misdemeanor discovery in Michigan
6.5 Preliminary hearings as discovery tools
Chapter 8. Administrative Hearings / Implied Consent
8.0 The implied consent law
8.1 The Four Contestable Issues
8.2 Defenses to the implied consent determination
8.3 Preparing for the Implied Consent Hearing
8.4 Using the Implied Consent Hearing as a Discovery Tool
8.5 Appeals from the Implied Consent Hearing
8.6 Driver license restoration hearings
8.7 Preparing for the driver license restoration hearing
Chapter 9. Pretrial Motions
9.0 General principles of criminal motion practice
9.1 Form of motions
9.2 Types of motions in the drunk driving case
9.2.1 Stop of the vehicle
9.2.2 Vehicle in Motion
9.2.3 Vehicle not in Motion
9.2.4 Validity of the arrest
9.3 Suppression of Evidence
9.3.1 Suppression of breath test for 15 minute rule violation
9.4 For attorney conducted voir dire
Chapter 10. Jury Selection and Opening Statement
10.0 Purpose of Voir Dire
10.1 Obtaining a Pro-Defense Jury
10.1.1 Crafting questions to reveal inherent attitudes and biases of jurors
10.1.2 Looking at demographics and physical characteristics, including life
experiences
10.1.3 Identifying leaders
10.1.4 Getting assurances from jurors
10.2 How to conduct yourself during the voir dire process
10.3 Opening Statement
10.4 Closing argument
Chapter 11. The Arresting Officer: Field Evidence
11.0 Observation testimony: the three phases of the officer’s
investigation
11.0.1 Phase one, initial observation of the vehicle in motion and the stop
of the vehicle
11.0.2 Phase two, face-to-face observation and interview, observation of the
exit
11.0.3 Phase three, field sobriety tests and preliminary breath tests
11.1 the “science” behind the standardized field sobriety tests
11.1.1 The National Highway Traffic Safety study
11.1.2 The Clemson study
11.2 Challenging the reliability of the arresting officer’s conclusions
11.2.1 Horizontal gaze nystagmus
11.2.2 One-legged stand
11.2.3 Walk-and-turn
11.3 Pretrial challenges to the field sobriety tests
11.3.1 The Davis/Frye challenge
11.3.2 The Daubert Challenge
Chapter 12. Defense Witnesses
12.0 The Sobriety Witness
12.0.1 Limitations and difficulties with law opinions of sobriety
12.0.2 Preparing the sobriety witness for direct and cross-examination
12.1 The Investigation Witness
12.2 The Police Expert
12.3 The Intoxication Evidence Expert
12.3.1 The toxicologist as a defense witness
12.3.2 Limitations of the toxicologist’s testimony
12.3.3 Use of a forensic scientist
12.4 Determining what experts to use
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