Michigan OWI FAQ
The 20 Most Frequently Asked Questions About Your Michigan OWI (In no particular order)
Patrick T. Barone, Esq.
Note: The acronym in Michigan for drunk driving is OWI. Other states use different acronyms for drunk driving such as the more common and general DUI and DWI. All three acronyms are used below.
- What should I do if I'm stopped for drunk driving in Michigan?
- If I'm convicted of OWI (drunk driving) in Michigan, will I be going to jail?
- What should I expect to pay an OWI / DUI drunk driving specialist to represent me in court?
- What's the best way for me to find the top DUI defense lawyer to handle my drunk driving case?
- What are the standardized field sobriety tests, and how can Mr. Barone use his considerable expertise about them to try possibly to win my case?
- What makes the Barone Defense Firm different from other firms that defend Michigan drunk driving cases?
- Why should I hire the Barone Defense Firm and Mr. Barone to represent me for my Michigan DUI / OWI case?
- When I was arrested for drunk driving I was never read my rights. Will my Michigan OWI case be dismissed?
- Do I need a lawyer to represent me for my Michigan OWI, and if so, then does the lawyer need to specialize in the defense of drinking drivers?
- How long does a DUI conviction stay on my Michigan record?
- Can I have my drunk driving conviction expunged (set aside)?
- If I had a drunk driving (DUI / DWI / OUIL / UBAL / OUID) conviction in another state, will it show up in Michigan?
- How will an OWI / DUI arrest affect me if I'm licensed from out-of-state?
- Why am I receiving letters from attorneys seeking to represent me for my Michigan drunk driving case?
- How might the court use the SCRAM bracelet to punish me before or after I am convicted of a drunk driving (OWI) case in Michigan?
- If I'm convicted of OWI in Michigan, will my car be immobilized or forfeited?
- What are the sentencing guidelines, and do they apply in my case?
- What is the DataMaster’s “Margin of Error?”
- How Does the DataMaster Actually Work?
- Should I Find a “Local” Lawyer to Represent Me in My Drunk Driving (DUI) Case?
What to do if pulled over for suspected of drunk driving
Response: First off, you should refuse the roadside breath test (PBT). This is because unless you are a commercial driver the penalties that apply for refusing the PBT are relatively minor. Michigan Law provides that refusing a preliminary breath test is a civil infraction that carries a fine but no points. This is important because a drunk driving arrest in Michigan can be based on the results of a PBT alone.
You should also refuse the roadside maneuvers called the field sobriety tests. These tests are difficult to anyone to pass, drinking or not, and there is no penalty whatever for not submitting to them. If you do refuse these tasks, then you are preventing the police from collecting evidence that will later be used by the prosecutor when they try to prove that you were drunk driving. It is your right to refuse these tests.
On the question: Should I agree to take the breath test at the police station? - from The DUI Book:
Who should refuse to be tested? Perhaps because of prior OWI convictions, or because even a single OWI conviction on your criminal record would be so devastating to your life, the punishment for any OWI conviction may be significantly worse than anything you face as a penalty from the refusal to be tested. It is certainly tougher for the police to prove most OWI charges against you when there is no scientific testing of any kind which the prosecution can use as evidence. In almost all circumstances, however, if you are arrested in Michigan, and you refuse a chemical test, the arresting officer will obtain a warrant to draw your blood. Thus, instead of a breath test result, you will be faced with a more accurate blood test and automatic license sanctions. Not only that, but the results of your independent test are also admissible at your trial. If your independent test confirms the State’s test, then your attorney will have two test to confront and overcome at trial.
Also, keep in mind that the punishment against you for a refusal (an administrative loss of your driver’s license for a year for a first refusal in seven years) is automatic, while the punishment against you for the criminal charges of OWI must be subsequently proven in court beyond a reasonable doubt. Many other reasons may exist for the criminal charges against you to be dropped or reduced, or you might win at trial. Some case facts are so favorable that it is best for you to fight the charges against you, accepting no punishment for the OWI, while giving a blood, breath or urine sample as requested by the police.
Thus, if you are someone for whom even a single OWI on your record might be devastating, or if you have prior OWI convictions on your criminal record, especially if there is a chance you may place yourself or be placed in a position where you may be stopped and questioned regarding a subsequent OWI charge, it is a good idea to sit down beforehand with a well-seasoned OWI specialist and figure out what is best for you to do in these situations. Each circumstance and every client is different, and these sometimes subtle variances may make all the difference in your future.
If you are a commercial driver, refusing a preliminary breath test is a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $100.00, and will result in a 24-hour out-of-service order. Your best bet though is to simply never drink enough alcohol before driving to place yourself in jeopardy of being convicted of drunk driving.
Response: Most people who are facing their first arrest and conviction for drunk driving will not go to jail. Having said this, there is always the possibility of jail time, so the attorney you choose to represent you for your pending OWI is very important.
Other factors that are important are your prior record and on the policy and discretion of the Judge to whom the case is assigned. If you have prior alcohol related convictions for any alcohol related crime (OWI/ UBAL/ OUIL/ DUI/ DWI/ OUID) in any state, the chances of jail time are significantly greater.
In Michigan sentencing on all alcohol or drug related drunk driving felonies will be controlled by the sentencing guidelines, and you should discuss this with your DUI specialist. Jail time for all other alcohol related (non-felony) drunk driving offenses will be discretionary with the Judge, but must be based on statutory guidelines.
For example, in Michigan, first time OWI offenders with no alcohol or drunk driving related priors offenses generally do not go to jail, although jail time is always possible for all OWI charges, even if this is your first OWI (up to 93 days). Actual jail for your OWI conviction will depend largely on the facts of the case and the particular policy of the Judge who passes sentence. Judges can give jail time even for a first drunk driving offense.
With a second alcohol or drug related DUI offense in Michigan within 7 years proceeding the prior drunk driving offense there is a mandatory 5 days - 1 year jail sentence. The statute says that not less than 48 hours served consecutively (a term of imprisonment under this section may not be suspended). There is the alternative sentence of 30 - 90 days of community service.
With a third alcohol or drug related drunk driving offense in Michigan within one's lifetime, the sentencing guidelines apply and you should discuss with your attorney how these guidelines will affect your likely sentence. The statute however provides for imprisonment for 1 - 5 years with not less than 48 hours served consecutively (a term of imprisonment under this section may not be suspended). There is the alternative sentence of 30 days - 1 year and community service for 60 - 180 days.
Response: On both the state and national level DUI defense fees vary widely for drunk driving cases (DUI / OWI). There is also a large difference in the way such DUI fees are charged. Some lawyers charge a large initial retainer that covers all aspects of drunk driving defense, while others bill in increments. When evaluating a fee, be careful to consider exactly what is being paid for and what is included. Just make sure you're comparing "apples with apples."
The actual amount charged depends somewhat on the reputation and experience of the lawyer but DUI fees also vary significantly by geographic location. Most DUI lawyers charge a flat fee for this service, and the overall fee charged is most often based on the amount of time a lawyer expects to spend defending your case. More complicated cases obviously require more time, and because of this as a general rule the better lawyers accept fewer clients. This allows him or her to spend more hours on each client's case.
A new attorney or a general practitioner in a small community who does not specialize in drunk driving or defending DUI cases might charge from between $300 and $500 while a DUI specialist with a national reputation may charge up to $15,000 or more. These fees will depend also on the specific facts of the case.
Other important factors in determining a proper fee are as follows:
- The nature of the DUI offense itself. For example, is your case a first or second drunk driving offense, or is it one of the enumerated drunk driving felonies? This preliminary determination will partially dictate how much time will be required to properly defend it.
- Are there prior alcohol or drug related drunk driving offenses that are being used for enhancement purposes? Fees are generally higher and sometimes much higher for a second or subsequent OWI offense.
- Does the fee include trial and/or evidentiary hearings, and does the fee include the lawyer's appearance at any administrative hearings, such as the Driver Assessment Appeal Division for an implied consent hearing.
- Does the fee cover any appeals, such as an appeal to the Circuit Court for the restoration of driving privileges after an unsuccessful implied consent hearing. There is also the possibility of an appeal after an adverse ruling on a defense motion or after a guilty verdict at your OWI trial.
Response: By doing exactly what you're doing right now, that is, lots of research. Look at the lawyer's background in drunk driving defense, and look also at their specialized training in defending drinking drivers. Has the lawyer candidate ever written or spoken on the subject? How many years have they been in practice, and more specifically, how many years have they been handling drunk driving cases in Michigan? How many drunk driving trials have they conducted?
Perhaps the most reliable way to find a lawyer with a good reputation is to ask other lawyers who practice criminal law for a recommendation. Friends or family might also be a good referral source. Another option is to ask the people at the Court whom they might recommend.
When you meet with the attorney, make sure of at least five things:
- He or she has extensive experience in DUI / OUIL / UBAL / OWI litigation;
- He or she keeps up on the law by attending advanced legal training seminars;
- He or she has an excellent understanding of the theory and science behind breath and blood testing (indispensable in the cross-examination of prosecution's witnesses);
- He or she has ample jury trial experience with drunk driving cases, and will not hesitate to take appropriate cases all the way to trial rather than just "copping out" his or her clients; and
- The financial terms of the DUI representation are clear and in writing.
5. What are the standardized field sobriety tests, and how can Mr. Barone use his considerable expertise about them to try possibly to win my case?
Response: Over the last twenty years societal and political pressures have turned the cause of eliminating drunk driving into the Nation's new prohibition. During this time, the Michigan Legislature has stepped up to the cause by passing increasingly draconian drunk driving laws, while the law enforcement community has stepped up by attempting to make more drunk driving arrests. To help further this detection and arrest effort, many of the State's municipalities have sent some or all of their officers for training to become certified as participants in the National Highway Traffic & Safety Administration's ("NHTSA") DWI Detection and Standardized Field Sobriety Testing Program. (Readers should note that DWI / DUI are acronyms that more broadly represents the category of crimes called "OWI" or operating while intoxicated in Michigan).
According to the NHTSA protocol, the process of detecting DWI offenses begins when a law enforcement officer suspects a potential alcohol-related traffic offense may be occurring, and does not end until the officer has made the arrest decision. Conduct which occurs during the time period from when the driver is first observed by the officer until an arrest decision is made is regulated by the NHTSA "DWI Detection and Standardized Field Sobriety Testing Manual." (U.S. Department of Transportation, National Highway Traffic Safety Administration, DWI Detection and Standardized Field Sobriety Testing, Student Manual).
As a preliminary matter it is important to note also that the administration of the SFSTs is only one part of NHTSA's protocol regarding proper DWI detection by law enforcement, and is referred to as "Phase III-Pre-Arrest Screening." The first two phases are Phase I "Vehicle in Motion" and Phase II "Personal Contact." These first two phases of the NHTSA program might not be applicable in some cases, such as where there has been an accident. Nevertheless, it is clear that there must be sufficient reasonable suspicion from the officer's observations of the driver in these initial phases to justify the officer proceeding with the administration of standardized field sobriety tests in Phase III.
From the perspective of a defense attorney specializing in the defense of drinking drivers, the SFST program presents a host of defense problems but an even larger number of defense opportunities. However, capitalizing on these numerous defense opportunities requires a thorough understanding of the NHTSA studies and the NHTSA training manuals as well as the so-called "science" that NHTSA claims supports and gives validation to this increasing popular DUI detection program.
Mr. Barone is trained as an instructor in the NHTSA standardized field sobriety test program. This means he has been trained to teach law enforcement officers the proper way to conduct a DUI investigation. He has also written on the topic, and has presented at a seminar where trial tips on the SFSTs were presented to several hundred criminal and DUI defense lawyers. In defending your pending OWI case, Mr. Barone will apply this expertise by reviewing the police reports and videotapes (if any) and look for mistakes that may have been made by the police in conducting your arrest. If mistakes are found, these can be used a variety of ways that benefit you, from attempting to have your case drunk driving case dismissed, to winning outright at trial.
6. What makes the Barone Defense Firm different from other firms that defend Michigan drunk driving cases?
Response: In striving to provide the highest caliber legal services we are always mindful of the fact that this is undoubtedly a difficult time in your life. As your case moves through the system, we will be here to assist you in any way we can. Not only does the Barone Defense Firm enjoy an excellent reputation across the state of Michigan, Mr. Barone is known nationally. By putting your future in the hands of a firm that not only has top credentials but one that also cares about you as a person you will reduce your stress while significantly increasing your chances of obtaining the best possible results.
7. Why should I hire the Barone Defense Firm and Mr. Barone to represent me for my Michigan DUI / OWI case?
Response: Because everyone at the Barone Defense Firm is exceptionally well trained to assist the defense of drinking drivers, and this includes support staff training to help you deal with the emotional stress and turmoil often caused from your arrest. See my dealing with stress info page. Part of the way we will help you deal these issues is by providing you with a great deal of information about how the DUI criminal justice system works. We will answer all of your questions and exhaustively explain the law of drunk driving to you. We have found that such thorough and detailed information about drunk driving removes much of the uncertainty that you now feel about what will happen if you are convicted. But of course a drunk driving conviction is something we will do our best to prevent altogether.
In addition to this general information will also provide you with a very detailed, specific and accurate assessment of your OWI case, including both the positive and negative aspects of our defense plan. In providing the highest caliber legal services we are always mindful of the fact that this is undoubtedly a difficult time in your life. As your case moves through your system, we will be here to assist you in any way we can.
Also, Mr. Barone has been practicing law since 1991, and devotes his practice exclusively to defending those accused of drunk driving. He has attended a stunningly high number of advanced training courses on DUI defense, covering such topics as "wining drunk driving cases through science", police arrest procedures and on criminal trial practice. Mr. Barone has also been certified as a practitioner in standardized field sobriety tests in accordance with the standards set forth by the International Association of Chiefs of Police (IACP) and the National Highway Traffic Safety Administration (NHTSA). He will use his unmatched expertise to challenge every aspect of your DUI arrest.
In addition, Mr. Barone is a moderator of a statewide network and he participates in a National network of other top DUI practitioners in order to exchange and share information about new DUI laws, national and local trends in the defense of DUI cases, and overall drunk driving defense trial tactics.
Furthermore, Mr. Barone has published many articles to help teach other lawyers about the DUI laws and instructing how to aggressively defend those accused of drunk driving. If you ask us, we'll be happy to provide you with copies of these articles. He has also lectured at seminars for DUI lawyers seeking to improve their trial and drunk driving defense skills. In short, through total dedication of effort to one area of law, Mr. Barone endeavors to give his clients the best representation possible.
8. When I was arrested for drunk driving I was never read my rights. Will my Michigan OWI case be dismissed?
Response: There are really two sets of rights that apply to drunk driving (OWI) arrests. These are the Miranda rights and the chemical test rights. The Miranda rights are those that apply to post-arrest statements that the prosecutor wants to use against you. Thus, if you are placed under arrest for drunk driving but not read your Miranda rights you can make the argument that any statements you made after the arrest are not admissible. In other words, if after your OWI arrest you are questioned about your drinking and indicate how alcohol you consumed, or if you admitted in response to questioning after your arrest that you were drunk, these statements cannot be used against you when the prosecutor tries to prove that you were drunk driving.
Your chemical test rights are also called your "implied consent" rights. As of July 31, 2006 the law in Michigan regarding your implied consent rights changed significantly. Prior to this change, a violation of your implied consent rights could lead to a dismissal of your case. However, this remedy was "revisited" by the current Michigan Supreme Court, and in the case of People v. Anstey it was decided that dismissal was not now and never was the appropriate remedy.
In the Anstey opinion the Court ruled that even suppression would not be an appropriate remedy for an implied consent violation. The conclusion of the Court was that if the defense could prove, after an evidentiary hearing that the implied consent law was violated then the jury, not the court, should decide if this was or was not significant. It is now thus the role of the trial judge to instruct the jury that the defendant’s implied consent rights were violated and it is now up to the jury to determine what significance to attach to this fact in deciding the case. In making this determination the jury might consider the denial of the defendant’s right to a reasonable opportunity for an independent chemical test in deciding whether, in light of the non-chemical test evidence, such an independent chemical test might have produced results different from the police-administered chemical test.
The bottom line is this, because of Anstey Michigan drivers no longer really have any implied consent rights and this includes no longer having a right to independent chemical testing.
9. Do I need a lawyer to represent me for my Michigan OWI, and if so, then does the lawyer need to specialize in the defense of drinking drivers?
Response: Because drunk driving in Michigan is punishable by jail time, it is very unlikely that a judge will allow you to represent yourself for your pending OWI case.
Even if you could represent yourself, why would you want too? Certainly you would not perform surgery on yourself. Many people won't even attempt to perform comparatively simple common tasks such as learning how to change a kitchen faucet or unclog a drain. Instead they simply call a plumber. Michigan's drunk driving laws are constantly becoming more and more complex. This is particularly true with the significant changes to Michigan's OWI laws that took place in both 1999 and 2003. As a part of these revisions by the legislature of Michigan's drunk driving laws, OWI cases have become increasingly difficult to defend, requiring even more expertise, and the penalties for violation of these OWI laws have become more severe as well.
If you try to represent yourself, the judge will hold you a knowledge of the court's rules. In all drunk driving cases there are many complex procedural and evidentiary rules that apply, and as well as statutory rules that you would be expected to know. Sometimes there are even constitutional questions that need to be answered. There are also sentencing and administrative license issues.
Effective defense of drunk driving cases also requires a vivid understanding of the science behind both breath and blood test results. If you wanted to represent yourself, you would need to know both the law as well as the science of drinking and driving. This would also include knowing something about the metabolism of alcohol and how this might affect a drunk driving charge. When searching for a lawyer to represent you in your pending Michigan OWI case, make sure you select someone with this combined knowledge of science and law. Otherwise your lawyer is unlikely to know how to mount an aggressive and zealous defense to your drunk driving charge, or to be effective trying to contest your OWI case in court.
When evaluating your Michigan drunk driving case an appropriately qualified attorney will know what to look for, and will know what facts are or are not useful. He or she will do whatever is appropriate and necessary in order to suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine or blood testing equipment, have blood samples independently analyzed, negotiate whenever possible for a lesser charge or reduced sentence, obtain DUI expert witnesses for trial, and contest the administrative license suspension.
Response: In Michigan a DUI conviction stays on your record for life. Some other states have similar laws. A DUI in Michigan is always a misdemeanor, although some drivers with multiple DUI convictions are declared "habitual violators." A third drunk driving arrest within one's lifetime will be deemed a felony.
A conviction can result in possible denial of job opportunities or restrictions on credit because the conviction is a public record and is typically retrieved by credit reporting agencies. In addition, a conviction can cause an increase in premiums or cancellation of your auto insurance. In the last 10 years, many rental car companies have begun denying rental privileges to a person with a DUI conviction for as long as six (6) years after a DUI conviction. Some countries even restrict or prohibit travel by persons with a DUI conviction (e.g., Canada). All of these reasons explain why we fight for a non-DUI disposition to your case, or for an outright acquittal.
Response: No. The statute governing expungement in Michigan specifically precludes a person from even seeking to have a conviction for a "traffic offense" (including drunk driving) set-aside. The statute also precludes a Judge from setting aside such a conviction.
12. If I had a drunk driving (DUI / DWI / OUIL / UBAL / OUID) conviction in another state, will it show up in Michigan?
Response: Yes, DUI / DWI convictions from other states usually show up in a computer search conducted by the prosecutor and by the Secretary of State. However, convictions from other states do no show up on every occasion. As a result of several national collaborations, states now share driver information. The power of the computer makes instant information of your prior driving history readily available. When we go into court on your behalf, we do not "volunteer" information about prior convictions, but probably do have an ethical duty to disclose if we are asked. Nevertheless, we must know your full record and be prepared to address this issue if the prosecutor presents it to the court.
You should also understand that the only way these out-of-state DUI / DWI convictions can be used against you in Michigan is if they are "substantially similar" to Michigan's OWI laws. If they are not, then they can not be used to enhance your current OWI to a second or subsequent offense. Your DUI specialist attorney will know how to compare your out-of-state conviction with Michigan's OWI laws to make this determination. If they do not compare, then your penalties and driver license sanctions will be reduced.
Response: As a result of a conviction for drunk driving, Michigan cannot suspend an out-of-state license; only your home state can suspend your license. Michigan can only suspend your privilege to drive in Michigan. An implied consent refusal to submit to an officer's request for a breath, blood or urine test, MAY result in a suspension of driving privileges in Michigan (if your lawyer is not successful at the administrative hearing, or if a hearing is not requested within 14 days of your arrest), but MAY or MAY NOT cause you to be suspended in your home state. The rules for processing a notification of a refusal report vary in each state. Michigan is obligated to send such notice to your licensing state. Some states take no adverse action against the license in the nonresident driver's home state for a chemical test "refusal" in Michigan.
14. Why am I receiving letters from attorneys seeking to represent me for my Michigan drunk driving case?
Response: People often come to our office with copies of several letters from lawyers asking to be their DUI lawyer. Many years ago this would have been considered unethical. Today however, the rules of ethics allow such letters. This is because the United States Supreme Court has ruled that "commercial free speech" is protected under the First Amendment to the United States Constitution. Hence, some attorneys go to each police station or court and look up the names and addresses of everyone arrested for drunk driving in a given period. Then these attorneys send out a mass mailing, hoping to "attract" potential OWI clients. Many of our clients are offended by this barrage of solicitations, especially since the majority of letters focus on pleading guilty - a resolution which we rarely consider until all other viable options are explored. In addition, these letters are sometimes misdirected to a neighbor's mailbox, or read by a client's family members, thereby causing unnecessary trouble and embarrassment.
15. How might the court use the SCRAM bracelet to punish me before or after I am convicted of a drunk driving (OWI) case in Michigan?
Response: The first two of the following paragraphs are excerpted from Mr. Barone's May 2005 Champion article:
©2005 National Association for Criminal Defense Lawyers, Inc., reproduced with permission, all rights reserved.
Because all drinking driver cases involve an at least alleged use of alcohol, it is usual for the courts to require abstinence from alcohol while the case is pending. It is also common to make continued abstinence a term of probation. The dilemma for the courts then becomes how to best monitor the offender so that there is some reasonable assurance that the court's order is being obeyed. Traditionally the courts have employed various methods for this purpose, including random or daily breath testing, attendance at Alcoholics Anonymous or even a breath alcohol tether installed at the offender's home. While each method presents its own host of problems, one common shortfall is that none of them is continuous.
To address this perceived need for alcohol monitoring generally, as well the shortfalls of all the available methods, a company that calls itself "Alcohol Monitoring Systems, Inc." (AMS) patented a device known by the acronym SCRAM (Secure Continuous Remote Alcohol Monitor). The SCRAM device is worn as an ankle bracelet, and while in place the device monitors the subject"s blood alcohol transdermally, meaning it measures the migration of alcohol through the offenders skin.
It is Mr. Barone's opinion that the SCRAM bracelet works pretty well most of the time, but also that it is sometimes prone to false alcohol readings. This opinion is shared by many attorneys, and at least one judge. That judge presided over a hearing conducted by Mr. Barone dealing with an allegation of drinking. The ruling, which is believed to be the first in the country to result in a finding that the SCRAM is not reliable, came after two days of testimony from Jeffrey Hawthorn, the patent holder, and Dr. Michael Hlastala a nationally known physiologist from the University of Washington.
At the hearing Mr. Jeffery Hawthorn testified that his company's SCRAM bracelet has never had a false positive. Mr. Hawthorn also testified that the disputed readings clearly showed not only a pattern associated with a drinking episode, but also that the wearer had attempted to block or tamper with the device during this same time period.
Dr. Michael Hlastala testified that the readings from the device looked more like instrument drift than drinking. Dr. Hlastala also testified that there may have been other causes for the SCRAM readings, such as food converting to alcohol inside the body, and that the SCRAM device uses alcohol measuring technology that has been shown to be nonspecific for beverage alcohol.
If the court where your Michigan drunk driving case is pending places you on SCRAM, then you should discuss these issues in some detail with your DUI specialist.
Response: With a first OWI / DUI conviction you face possible vehicle immobilization for up to 6 months. With a second OWI / DUI conviction you face mandatory immobilization for 3 to 6 months, and possible vehicle forfeiture. With a third OWI / DUI conviction you face mandatory vehicle immobilization for 1 to 3 years; possible vehicle forfeiture and beginning June 2000, registration denial. Some counties in Michigan, such as Wayne and Livingston counties, are regularly seeking forfeiture for those convicted of multiple drunk driving offenses.
Response: The sentencing guidelines are just that, guidelines that the judge must follow in determining the appropriate sentence. The goal of the guidelines is to produce relatively consistent sentences for all offenders based on his or her prior record and the specific facts of his or her offense. If you are charged with one of the drunk driving felony offenses, such as OWI 3rd, Driving while License Suspended Causing Death, a 15-year felony, etc., then the guidelines will apply in your case. Ask your attorney about this when you first meet with him or her so that you can learn what the possible sentence range will be if you are convicted of an enumerated drunk driving offense.
Response: This depends on who you ask and how this is calculated. The manufacturer of the DataMaster will argue that the margin of error is extremely low, perhaps as low as .004. Other experts might argue that it's between 5% and 20%. What is beyond dispute however is that all measuring instruments have some degree of error associated with their measurements, and these numbers are based on the range of error that can be expected in a “best case scenario.”
There are however, a number of things that can contribute to a false high result. A small number of these include GERD, volatile organic compounds, trapped mouth alcohol, hard blows, expired breath temperature, or the errors encountered during the absorptive stage. For instance, G. reported in 1987 that during the absorptive phase the breath test might be as much as+230%!
None of these problems are specific to the DataMaster however, and all breath testing machines have their share of problems. However, the DataMaster used throughout Michigan has only two filters here in Michigan, whereas the Intoxilyzer 5000 (used in many other states) has five. There are other machines with more "filters", such as the Draeger (7 filters). There is a third optional filter that can be added to the DataMaster, but our state law enforcement community was satisfied with the two filter unit.
The DataMaster also doesn't measure temperature, as does the Draeger 7110. Also, in Michigan the state is required to only run simulators every calendar week, whereas in other states the rules require a simulator confirmation before each test. Also, unlike Washington, Michigan does not use the DataMaster’s data collecting features. This is particularly interesting because such data collection would help verify that the machine is actually working properly.
The DataMaster uses an infrared light source to measure the amount of alcohol in a breath sample. (For a more detailed description see Mr. Barone's Article: The Sauce on Source Codes: Obtaining DUI Dismissals from Software Non-Disclosures). As it turns out, organic molecules like ethanol (beverage alcohol) have an infrared signature that looks sort of like an EKG with various peaks and valleys. The trouble is that similar molecules have a similar signature. What the DataMaster does is measure infrared absorption at the two peaks that are most pronounced for ethanol.
Acetone is interfering substance that is relatively common in human breath, and that has the IR signature that is most similar to ethanol (same two pronounced peaks), and there is a "filter" for acetone (these are not actually filters as such). There are many other molecules that may occur in human breath also, and there are no filters for these compounds.
A plausible argument against more specificity (more filters) however is that the other possible interferants are unlikely to occur in human breath so its not necessary or cost effective to include filters for them, and this underlines the ultimate problem. Breath testing makes a variety of assumptions that are based on population averages. This almost certainly leaves out a percentage of our clients who are not within these averages.
So, if there can be a 90% degree of reliability assigned to the test result (thereby leaving out breath temp, blow pattern, etc), is this proof BRD? In other words what percentage of proof is proof BRD, is it: 70%......80%...... 90%........?? We know only that it's not 100% but we also know that the DM (or any) breath test result is NOT 100% correct! The ultimate question is this; is justice served if we can only be really sure that our client's test result is 85% reliable and accurate? This is exactly the question a properly educated jury may be called upon to decide.
Some of you may be interested to know that there is a new DM that is undergoing the approval process in Michigan as well as many other states. This new "DataMaster Transportable" is described and discussed in one of my new sections in the 2006 supplement for the treatise "Defending Drinking Drivers".
Here is some additional information on the details of the Datamaster Breath Test Machine.
There are advantages and disadvantages to hiring "local" counsel. The advantage of course is that presumably the local lawyer will know his or her "way around the courthouse" better than an "out-county" lawyer. Such familiarity will help you feel at ease because you'll see (hopefully) the court staff responding positively to your attorney. It will also help you feel at ease when the judge greets your lawyer warmly by name. Finally, having "connections" or being known locally can help in the negotiation process, particularly when it comes down to plea and/or sentence bargaining. Otherwise, with few exceptions, there are uniform rules of procedure that apply to all lawyers, judges and attorneys, and these do not change from location to location.
There are also some potential negatives to hiring a well known "local" lawyer because these lawyers are sometimes will be less willing to "make waves" or "push the envelope" when defending your case. Instead such a lawyer may want to make the judge like him or her by helping the judge "move the docket" meaning by persuading the client to plead guilty even when it may not be in the client's best interest. In these cases the lawyer is really more concerned about his or her own well being than that of the client.
In my view you don't want someone who knows the judge really well, you want someone who knows the law really well, and this is why you want the best lawyer you can afford. Properly and effectively defending alcohol related crimes requires a huge amount of specialized knowledge, and often means doing things that are creative or unorthodox, the kind of things judges may view as a waste of time. Truth be told, there are judges that view trial, or any other kind of contested hearing, (any kind of a defense really) as a big waste of time. These judges are, like the attorneys that share their court rooms, simply self-interested. The only person who will be genuinely interested in the outcome of your case will be an attorney who is completely "independent" of the system, and whose self interest is in winning cases not making or being friends with the judge.
At the Barone Defense Firm we spend huge sums of time, effort and frankly money to maintain the highest level of continuing education. Very few lawyers or law firms can devote such resources to this endeavor, and this includes all the time I spend personally in writing about the law. The books and articles I have written and continue to write are intended to help educate other lawyers and the general public about all the many facets of defending alcohol related crimes. The bottom line is that this type of specialized knowledge helps the Barone Defense Firm defend and win these cases. No one in Michigan knows more ways to win a DUI case than we do.
Our office is located in Birmingham, Oakland County Michigan, but I recommend that you find the best lawyer you can afford, regardless of location. You should be also be aware however that although we do not charge extra for travel, our fees are already much higher than many other lawyers. This is particularly true in smaller communities where local lawyer may charge fees that are many times lower than ours.
My suggestion is that you interview different lawyers, and when comparing fees make sure you compare "apples with apples," After doing so, decide who has the type of training, knowledge and desire to aggressively and appropriately represent you in your case. Keep in mind however that the best lawyers consistently get the best results, and at the Barone Defense Firm, results and winning is what we're all about.