The public generally does not understand Michigan’s drinking and driving laws. Mother’s Against Drunk Driving and our own government have flooded us with messages and PSAs. Every few years, the messages change in an attempt to alter our perception of drinking and driving. The message began in the early 1980s as “Don’t Drive Drunk.” Eventually, this message turned into “Don’t Drink and Drive.” Lately, the message has been “Buzzed Driving is Drunk Driving.” What began as an uncontroversial message has transformed itself. “Drunk” became affiliated with merely drinking, ultimately ending with the idea that feeling the slightest affect of alcohol is wrong.
Jurors are frequently surprised when the judge explains that it is perfectly legal to drink and drive.
Although the human body hasn’t changed during last 70 years, politics have overwhelmed biology and rational discussion. In 1938, the American Medical Association created a “Committee to Study Problems of Motor Vehicle Accidents,” and through that committee, the AMA recommended that a 0.15 blood alcohol level should be the level at which drivers are legally presumed to be intoxicated. During the 1960s, Michigan adopted chemical testing laws regarding drunk driving. The law stated that a person was presumed to be sober with a blood alcohol limit under 0.05 and presumed to be intoxicated if they were over 0.15. If a person’s blood alcohol was greater than .05 but less than .15, no presumption could be made by jurors.
By 1975, Michigan had lowered the legal presumption of intoxication from 0.15 to 0.10 blood alcohol content. Under this law, a driver was presumed to be intoxicated if the breath or blood measured over 0.10, but the driver could introduce evidence in his or her defense to establish that the driver was not intoxicated.
In 2003, Michigan lowered the drunk driving legal limit to 0.08 and removed legal presumptions regarding whether the driver was or was not intoxicated. For the first time since breath and blood testing had been employed in the state, the Legislature made it a crime to have a certain bodily alcohol concentration irrespective of evidence regarding sobriety. And now, the message is “Over the Limit; Under Arrest.”
For the same reasons why lower limits have been enacted into law, police officers are trained to aggressively pursue all drinking drivers. The days when police officers would drive a drunk home are long dead. Police officers are rewarded for large numbers of DUI arrests with federally funded overtime pay and attend special dinners sponsored by MADD where they receive achievement awards. Officers who would rather focus on other crimes are subject to quotas described as “performance standard reviews.”
Aggressive enforcement sacrifices our rights and taxes our liberties. The City of Westland, for example, allows police officers to sit outside bar parking lots, stopping vehicles at random. Although this is completely unconstitutional, if the officer claims to have seen weaving, the local judge will declare that the stop was lawful. This is true even if the officer’s video contradicts the claims. Jurors, meanwhile, are told that the legality of the traffic stop is an issue to be decided solely by the judge. NOTE: Jurors have the ability to say “Not Guilty” for any reason that they deem fit, but as a defense attorney I am not allowed to suggest this in court.
Meanwhile, Michigan police officers employ field sobriety tests that are scientifically useless, but the courts have been slow to respond to challenges. Judge Oakley in the 34th District Court recently ruled that an officer’s opinion that a driver was intoxicated ended further analysis, despite uncontroverted testimony from the officer that the motorist had passed all field sobriety tests. Judge Nykiel in the 33rd District Court similarly ruled that a motorist who acted oddly could be placed under arrest for driving under the influence of drugs. (Obviously, since the PBT reading was 0.00, odd behavior must be caused by drugs, right?)
And lastly, the dirty little secrets that our government doesn’t want you to know: Breath testing doesn’t work, and our blood testing labs are sloppy.
Breath testing was never meant to be used as evidence in court. The original breath testing machines were designed to determine whether a person ought to be given a blood test. Unfortunately, one day a police officer failed to get a blood test. Appearing in court, he explained how he was busy and couldn’t get the blood test done. He described why he felt that the motorist was drunk and suggested that the breath test confirmed his observations. Overnight, breath testing replaced blood testing!
The problem with breath testing is that it doesn’t actually measure blood alcohol. Instead, it uses a conversion formula and gives a general idea of what the blood alcohol might be. But the formula only works for four out of five people! Twenty percent of people subjected to breath testing blow higher than their true blood alcohol level when the machine is working flawlessly. Worse still, the range of error is incredible. Every time a forensic study is done comparing breath and blood testing, at least a few people reflect a conversion formula that is incredibly out of the normal expected range. Based upon that conversion factor, these people would provide a breath sample of .15 even though their true blood alcohol level is .04.
The only accurate way to truly test blood alcohol is to . . . test the blood for alcohol. Unfortunately, our state labs are guided by special rules that are far more relaxed than private laboratories. Incredibly, state toxicologists testify to these special rules claiming these as credentials, describing these protocols as rigorous. If they were rigorous, the Detroit lab wouldn’t have taken decades to close its door.
Blood is not refrigerated until it reaches the lab. It frequently sits around the police station for days, and it is then shipped by regular US mail. Often times, our state lab uses dirty equipment. The handling procedures for ensuring that blood samples are not confused for others are poor. The lab never tests to ensure that required chemical components are contained in the blood sample. And once a sample is received through the mail, it typically takes weeks for a blood sample to be analyzed, while the glucose levels are permitted to spoil and convert into alcohol.
If you have the opportunity to sit on a drunk driving jury trial, keep these facts in mind. Set yourself apart from the prevailing advertised messages to view the case rationally, and ask yourself this single simple question in light of the information you’ve reviewed: Has the prosecutor proven the case beyond and to the exclusion of a reasonable doubt?
Just Kidding, you can’t beat the breathlyzer test. But, you can take precaucions to make sure that you mitigate the chances that the breathlyzer can be used against you in court for a DUI charge. If you find yourself being pulled over by a police officer, and he suspects you’re under the influence of alcohol and drugs you can simply reject the officer’s request to perform field sobriety tests. What will this mean? It depends from state to state. Could it be implied consent? Consult your lawyer.
In Iowa, however, rejecting the field sobriety tests means you will most likely not get a DUI charge. You WILL however, lose your license for up to a year.
TIP: If you get asked to take the Preliminary Breath Test (PBT), DENY IT. Deny it on the grounds that it’s inaccurate. This will buy you time, until you get back to the station and take the breath test that usually holds up in court.
I remember, when I received my DUI long ago, I was advised by my lawyer that I should NOT have submitted to the field sobriety tests.
