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Understanding DUI Scientific Evidence

This product provides an insider's perspective on the evolving technologies and procedures associated with the evidence associated with driving under the influence (DUI) charges. Leading defense attorneys guide the reader through the key stages and steps involved in successfully defending a client accused of driving while under the influence.

DUI/DWI Laws In Your State
DUI/DWI LAWS IN YOUR STATE:

DUI DWI Laws

Michigan Drunk Driving Defense

By Patrick Barone, Michigan Drunk Driving Lawyer        

Barone

Call 1-800-DIAL-DUI to talk with Patrick Barone!

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 TABLE OF CONTENTS


Chapter 1. The Offense of Drunk Driving in Michigan        

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 under the influence of liquor causing injury or death
1.6.1  The elements of operating under the influence of liquor causing injury or death.
1.7 Commercial driver license issues
1.8 Zero tolerance for drivers under the age of twenty-one
1.9 Right to instruction on the lesser included offense(s)

Chapter 2. The Sentence for Michigan Drunk Driving

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 under Michigan Drunk Driving Law

3.0 Understanding the problem
3.1 Defining/diagnosing alcoholism
3.1.1  Substance abuse verses substance dependance disorders
3.1.2  Substance abuse
3.1.3  Substance dependance
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 for Michigan Blood and Breath Alcohol Tests

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 for MI DUI OUIL Tests

5.0 Breath testing devices generally
5.1  The DataMaster
5..1.1.  The DataMaster result as "unreliable" evidence
5.1.2  Overestimation of true BAC from DataMaster results
5.1.3  Inherent limitations of the DataMaster
5.1.4  Tying the ‘unreliable" result to your client
5.2 Blood testing
5.2.1  The search warrant requirement
5.2.2  The blood draw
5.2.3  Chain of evidence
5.2.4  Integrity of the blood sample
5.2.5  Serum/plasma vs. whole blood
5.2.6  Overview of gas chromatography
5.2.7  Challenging the results
5.2.8  Cross-examination of the testing forensic scientist

Chapter 6. Attorney-Client Relationship for Michigan DUI OWI OUIL Laws

6.0 Information to obtain
6.0.1  Background information
6.0.1.1   Personal history
6.0.1.2   Medical history
6.0.1.2   Criminal history
6.0.1.3   Driving history
6.0.2  Circumstances of the stop
6.0.2.1   Events of the day of arrest
6.0.2.2   Route driven before the arrest
6.0.2.3   Automobile driven
6.0.2.4   Response to signal to stop
6.0.2.5   Initial questioning by Officer
6.0.2.6   Conversations before or after arrest
6.0.2.7   Field sobriety tests
6.0.2.8   Miranda warnings
6.0.2.9   Actions after arrest
6.0.2.10  Other people present
6.0.2.11  Car removal
6.0.2.12  Testing facility
6.0.2.13  Video or audio taping
6.0.2.14  Implied consent pitfalls
6.1 Educating the client
6.2 Professional conduct
6.3 The retainer agreement
6.3.1  Estimate fees based upon time commitment
6.3.2  Fees that are not "clearly excessive"
6.4 Evaluating the case
6.5 Getting client into treatment
6.6 Practice tips
6.6.1  A list of practice facilitators
6.6.1.1   Trial Notebook
6.6.1.2   Use Court directories
6.6.1.3   Create and use Database
6.6.1.4   Use a digital still camera
6.6.1.5   Use a digital video camera
6.6.1.6   Develop and use an accident reconstruction expert
6.6.1.7   Use a client intake questionnaire
6.6.1.8   Use "time" to your client's advantage
6.6.1.9   Know when "time" is your client's enemy
6.6.1.10  Organize files by use of binder or notebook method
6.6.1.11  Always be open and available for clients
     

Chapter 7. Discovery for DUI OUIL in Michigan

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
7.3 Other discovery tools
7.4 Motions to compel discovery
7.5 Preliminary hearings as discovery tools
7.6 Misdemeanor discovery in Michigan
7.7 Discovery of scientific tests
7.7.1  Generally
7.7.2  Sanction for not furnishing report
7.7.3  Independent analysis

Chapter 8. Administrative Hearings / Implied Consent in Michigan DWI OUIL

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 by Michigan DUI Lawyers

9.0 General principles of criminal defense 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 not in Motion
9.3 Validity of the arrest
9.4.0 Suppression of Evidence
9.4.1  Suppression of breath test for 15 minute rule violation
9.5 For attorney conducted voir dire
9.6 Use of motions in limine
9.6.1  Motions in limine are most common and must successful
9.6.2  Purpose of motions in limine

Chapter 10. Trial in Michigan for DUI/DWI/OUIL

10.0 Burden of Proof
10.0.1  Definition of burden of proof and use of alternative explanations
10.0.2  State's burden on chemical evidence
10.0.3  Presumptions and inferences
10.0.4  Who gets to benefit from inferences
10.0.5  
10.1 Voir Dire      
10.1.1  Purpose of Voir Dire
10.1.2  Obtaining a Pro-Defense Jury
10.1.2.1  Crafting questions to reveal inherent attitudes and biases of jurors
10.1.2.2  Looking at demographics and physical characteristics, including life experiences
10.1.2.3  Identifying leaders
10.1.2.4  Getting assurances from jurors
10.1.3  How to conduct yourself during the voir dire process
10.2 Opening Statement
10.2.1  Case law on opening statements
10.2.2  A sample opening statement
10.2.3  What not to do in an opening statement
10.3 Closing argument
10.3.1  Case law on closing statements
10.3.2  Reading law to jury on closing statement
10.3.3  Purpose and scope of closing statement
10.3.4  Appeal to bias, passion, prejudice or sympathy
10.3.5  The community will benefit by convicting the defendant
10.4 Jury Instructions

Chapter 11. The Arresting Officer - Michigan Field Sobriety 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. Michigan DUI 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 

CHAPTER ONE - THE OFFENSE

1.01  Public Perceptions and the defense of the drunk driving client - Even as the laws continue to become increasingly draconian, tens of thousands of individuals are arrested each year in Michigan alone.  Almost every attorney is at one time or another confronted with a client, friend, or family member charged with drunk driving.  Drunk-driving cases represent the single largest category of criminal infractions of all reported cases, with thousands more cases processed each year than all theft and larceny offenses combined. Even attorneys who do not generally handle criminal matters are routinely asked how an accused person should proceed in a drunk-driving case.

 In the 1960s, driving under the influence of alcohol was considered a minor offense, leading only to modest fines.  In the 1970's the legal limit in Michigan was 0.15, and somewhat later, the penalties began to increase.  Now, in the twenty first century, drunk driving is usually considered the most serious of all misdemeanor offenses. In several states including Michigan repeat offenders are considered felons.

 Nearly sixty thousand new drunk driving cases are filed by law enforcement officers in Michigan every year. These cases take up a large portion of the criminal docket and most of the District Court's time. Because the penalties for drunk driving have increased, many of those charged with this crime now must seriously consider alternatives to pleading guilty or nolo contendere. As the laws in Michigan become increasingly draconian, and as the alternatives and plea bargaining possibilities continue to diminish, more and more of these cases are resulting in trials.

 Most jurors, and many members of the Judiciary harbor myths and misconceptions about this offense, and this is due at least in part to a frequent outpouring of unfavorable publicity.  Consequently, the offense of drunk driving carries with it a significant social stigma, and this stigma can exact a severe financial and psychological toll.

 It is always astonishing to learn at trial during voir dire how many perspective jurors harbor these kinds of misconceptions.  It is also common for many perspective jurors to have either been involved in an alcohol related crash, or to have otherwise had their lives effected negatively by alcohol. There is the additional and equally harmful perception that the consequences for a conviction are not significant.  Consequently, obtaining a positive result for your client requires overcoming these perceptions, or at least shifting the focus away from them at trial.

1.1  The offense of operating under the influence of liquor (OUIL) - To prove the offense of operating a motor vehicle under the influence of intoxicating liquor, the prosecution must establish that: (1) the defendant was operating a motor vehicle on a highway or other place open to the general public; (2) while so operating, the defendant was under the influence of alcohol; and (3) as a result of the drinking, the defendant was substantially deprived of normal control or clarity of mind.  People v Kelley, 60 Mich App 162 (1975); People v Raisanen, 114 Mich App 840 (1982).
 Such evidence requires proof beyond a reasonable doubt that the consumption of alcohol substantially lessened the suspect's ability to operate the motor vehicle.

 Of course, the evidence must also show that the driver's ability was so effected at the time he or she was operating, and not at the time of the chemical test.  However, the jury will be instructed that they "may consider the bodily alcohol content at the time of test in deciding what his or her bodily alcohol content was at the time of the driving.  CJI 15.5(9).

1.1.1  Definition of "operate", vehicle in Motion - Operating essentially means driving or having actual physical control.  CJI 15.2(1). MCLA 257.26 defines an operator as "every person, other than a chauffeur, who is in actual physical control of a motor vehicle upon a highway."

1.1.2 Vehicle not in Motion- in People v Pomeroy, 419 Mich 441, 446, 355 NW2d 98 (1984), [reversed in Wood, 450 Mich 399, 538 NW2d 351 (1995), to the extent that it holds a sleeping person in a motionless car cannot be held to be operating the car], our Supreme Court interpreted this definition to include a person awake in the drivers seat of a motionless vehicle for the reason that he is in physical control of the motor vehicle. Pomeroy, supra at 447.  This element does not require that the vehicle be moving, and circumstantial evidence can be used to establish this element.

 In two older stationary motor vehicles cases in 1987 and 1988, the Court of Appeals held that a defendant can be found to be in operation of a stationary motor vehicle and/or with the engine non-operational. In both of these cases, listed as controlling today, the court of appeals held that circumstantial evidence could be utilized to prove operation of a motor vehicle while intoxicated.

 In the first case, People v Schinella, 160 Mich App 213, 407 NW2d 621 (1987), the defendant was found at 5:30 in the morning by police behind the wheel of his vehicle in a ditch. The defendant was awake and glassy-eyed when the police arrived but the vehicle was not running. Defendant admitted he drank 5 beers between 9:00 P.M. and midnight of the night before and that approximately 1:00 A.M., he was driving and missed a turn and ended up in the ditch when he attempted to turn the vehicle around. However, the officers noted when they arrived at 5:30 A.M. that the hood of the car and the rear wheels of the car were warm. There were also tree branches stuck under the tires of the car.  Defendant failed several field sobriety tests and was arrested for OUIL and was subsequently convicted.

 Defendant appealed, contending that his motion to dismiss for lack of proof that he operated the vehicle while intoxicated, was improperly denied. The Court of Appeals disagreed and affirmed his conviction, holding that the people's burden of proving operation of the vehicle while intoxicated can be satisfied with the circumstantial evidence present in that case. Specifically, the Court found strong circumstantial evidence that inferred beyond a reasonable doubt that defendant was driving while intoxicated, to wit: 1) defendant's admission that he had drank 5 beers before beginning his trip home, 2) defendant's admission he had nothing to drink while he was in the vehicle, 3) Defendant was in an intoxicated state when discovered by the police, 4) The fact that the hood and back tires were warm, showing a recent attempt to exit the ditch and 5) The fact that broken tree branches were stuck under the wheels also showed an recent attempt to extricate the car from the ditch.

 In People v Smith, 164 Mich App 767, 417 NW2d 261 (1988), defendant Smith was found unconscious by police sitting behind the wheel of his motor vehicle which had been parked on the shoulder of I-75, nearly 1/4 mile horn the nearest exit. The car was in park but the engine was running. Defendant strongly smelled of intoxicating liquor. When he was awakened, defendant was given a Breathalyzer test which showed his BAC at .25 percent. At the close of the people's case charging OUIL, defendant moved to dismiss based upon a failure to prove he had operated the vehicle while intoxicated. The trial court denied the motion but the circuit court agreed and reversed defendant's conviction. The people appealed and the Court of Appeals reversed and reinstated defendant's conviction, stating "when a challenge is made to the sufficiency of evidence, the reviewing court must examine the evidence presented by the prosecution and determine whether a rational trier of fact could find  that the essential elements of the offense were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368, 285 NW2d 284 (1979), reh den 407 Mich 1164 (1980), cert den 449 US 885, 101 S Ct 239, 66 L Ed2d 110 (1980).

 Since the release of these two (2) cases, the holding of People v Wood, 450 Mich 399, 538 NW2d 35 1 (1995), addressed the meaning of the word operating "We conclude that operating should be defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating  liquor with other persons or properly. Once a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk" (Emphasis Added) Id. at 404, 405.

1.1.3 Definition of "Under the Influence" - To prove this element, the prosecutor must show, beyond a reasonable doubt, that the driver's ability to operate a motor vehicle is substantially lessened from the consumption of alcohol. Under the influence means that as a result of drinking or taking of a controlled substance, the defendant was substantially deprived of normal control or clarity of mind.  Raisanen, supra. 

 As the jury instruction indicates, to be under the influence, a person does not have to be what is called "dead drunk", this is, falling down or hardly able to stand up.  The test is whether, because of drinking alcohol, the defendant's mental or physical condition was significantly affected and the defendant was no longer able to operate the motor vehicle in a normal way.  CJI2d 15.3

1.2. The offense of operating with an unlawful blood alcohol level (UBAL) - To prove the alternative charge of UBAL, the prosecutor must present competent evidence that while operating the motor vehicle, the driver's blood alcohol level was over 0.10.  It is important to note however that such a finding by jury the does not automatically require a conviction.  This is because the jury instruction is stated in non-mandatory language: " you may find the defendant guilty, but you are not required to do so".CJI2d 15.5

 The instructions further provide that they may find the defendant guilty of having an unlawful blood alcohol level whether or not this alcohol content affected the defendant's ability to drive.  CJI2d 15.5(8).  A prosecutor is not required to elect between charging the defendant with operating a motor vehicle under the influence of liquor or operating while having and unlawful blood alcohol level.  A prosecutor may proceed  on alternative theories for the same count. Additionally, the verdict need not be unanimous as to which of the two offenses occurred, so long as the jury unanimously agrees that one of the two violations occurred.  See People vs. Nicolaides, 148 Mich App 100, 383 NW2d 620 (1985).

1.3. The Offense of operating under the influence of drugs (OUID) - The National Highway Traffic Safety Administration (NHTSA) training manual provides that the following drugs or drug combinations impair driving: cocaine and cannabis, cocaine and heroin and PCP and cannabis.  The training manual indicates that there are several visual clues that a driver's ability may be diminished by the consumption of these drugs with or without alcohol.  The Michigan statute does not distinguish between what drugs caused the impairment in determining either if the law has been violated or what the punitive or licensing sanctions will be applied.

1.4 The Offense of operating while visibly impaired (OWI) - To prove the charge of OWI, the prosecutor must present sufficient proof only that the suspect's ability to operate was lessened to the point that it would be noticed by another person.  To prove that the defendant is driving while impaired, the prosecutor must show that the defendant's ability to operate was so weakened or reduced by the consumption of alcohol that he or she drove with less ability than would an ordinary prudent driver.  People vs. Walters, 160 Mich. App. 396, 401, 407 NW2d 662 (1987).  However, some amount of normal driving does not preclude an OWI conviction.  The statute requires a reduction, not an elimination, of the ability to drive normally.  Id. at 402.

1.5 The Offense of child endangerment - This crime was added to Michigan's drunk driving statute as part of the 1999 re-write, and it is essentially an OUIL with the additional element of having a child under 16 in the vehicle when the primary offense is committed. This offense is treated as a second offense for sentencing purposes relative to the Court's imposition of the punitive sanctions.  The licensing sanctions are a hybrid between an OUIL first and second offense, with a mandatory 90 day suspension, followed by a 90 day restriction.

1.6 The Offense of operating under the influence causing injury or death - the OUIL causing death statute, MCLA § 257.625(4); MSA 9.2325(4), does not create a strict liability offense; rather, it requires proof of general intent to drink and drive, together with a causal relationship to the harm the state seeks to prevent.  Neither negligence nor gross negligence need be proven since a presumption is created that driving while intoxicated is gross negligence as a matter of law. 

1.6.1 The elements of operating under the influence causing injury or death are  1) defendant operated a motor vehicle while intoxicated; 2) defendant voluntarily decided to drive knowing that he had consumed alcohol or drugs and that intoxication might result; and 3) defendant's driving while intoxicated was a substantial cause of the victim's death.  People v Lardie, 452 Mich 231 (1996).

1.7 Commercial driver's license issues -

1.8 Zero tolerance for driver's under the age of twenty-one -

1.9 Right to instruction on lesser included offense(s) - A criminal defendant has a right to have a properly instructed jury. MCLA 768.29. See also People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967).Instructions must cover each element of each offense charged, along with all material issues, defenses, and theories that have evidentiary support. People v Daniel, 207 Mich App 47, 53; 523NW2d 830 (1994). "The determination whether a jury instruction is applicable to the facts of the case lies within the sound discretion of the trial court." People v Ho, 231 Mich App 178, 189;585 NW2d 357 (1998). A necessarily included lesser offense is one all of whose elements are also elements of the greater offense, such that it is impossible to commit the greater without also committing the lesser. People v Bailey, 451 Mich 657, 667; 549 NW2d 325 (1996), amended 453 Mich 1204 (1996). A cognate lesser offense, however, shares some, but not all, elements with the greater offense, and includes elements not found in the greater offense. People v Hendricks, 446 Mich 435, 443; 521 NW2d 546 (1994). A requested instruction on a necessarily included lesser offense, that comports with a rational view of the evidence, must be provided. People v Cornell, 466 Mich 335, 357-359; 646 NW2d 127 (2002), citing MCLA 768.32(1). However, an instruction on a cognate lesser included offense is not permitted. Id.3 See also People v Reese, 466 Mich 440, 446; 647 NW2d 498 (2002).  Negligent homicide is a cognate lesser offense of OUIL causing death.

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CHAPTER TWO - THE SENTENCE


2.0 Judicial perceptions - As with jurors and the lay public, the judiciary can be influenced by the negative portrayals in the media.  The judiciary is also exposed to a potentially large volume of information provided directly to them by law enforcement, as well as by political action committees that are staunchly anti-drunk driving, most notably, Mother's Against Drunk Driving. (MADD).  This makes the judiciary potentially susceptible to being influenced by what might, upon closer scrutiny, turn out to be highly skewed statistics, data and conclusions.  This information is often provided as a "public service" by these organizations, and is ostensibly based on verifiable and objective scientific research.

 In this legal and social environment zealous advocacy requires that the practitioner shift the focus of Judge away from the political and social issues to instead be squarely placed on the factual and legal issues of your client's case.

2.1 General requirements for lawful sentence - The modern view of sentencing is that the sentence should be tailored to the particular circumstances of the case and the offender in an effort to balance both society's need for protection and its interest in maximizing the offender's rehabilitation potential.  While the resources allocated for rehabilitation may be inadequate and some persons question whether rehabilitation can be achieved in the prison setting, this view of sentencing is the present policy of the state.  "A judge needs complete information to set a proper individualized sentence."  People v McFarlin, 389 Mich 557, 574 (1973).

2.1.1 Factors to be Considered in Determining an Appropriate Sentence - (1)  the reformation of the offender; (2) the protection of society; (3) the disciplining of the wrongdoer; and (4) the deterrence of others from committing like offenses.  People v     Snow, 386 Mich. 586 (1972). The sentence must also be "proportional".The judicial sentencing guidelines represent the actual sentencing practices of the judiciary, and the second edition of the sentencing guidelines is the best "barometer" for determining whether the trial court has violated the principle of proportionality and thus abused its sentencing discretion.  People v Milbourn, 435 Mich 630 (1990).


2.2 Misdemeanor Offenses - While the sentencing guidelines have no applicability  to misdemeanor offenses, there are other considerations relative to what is an appropriate sentence for the individual offender.  An analysis of an individually appropriate sentence begins with a review of the statutory minimums that apply, as well as a review of the statutory maximum sentence.  The Snow factors, supra, also apply, and should be brought to the court's attention.  Ideally this will be in the form of a sentencing memorandum setting forth why a minimum sentence is appropriate in your client's case.
 
2.3 Felony Offenses - Unlike misdemeanors, felonies are specifically subject to the sentencing guidelines, and all drunk driving felonies carry mandatory periods of incarceration. trial court must adhere to the sentence ranges prescribed by the legislative sentencing guidelines; thus, a judge's discretion in departing from those ranges is limited to the legislatively prescribed circumstances for a departure. People v Hegwood, 465 Mich 432, 438-439; 636 NW2d 127 (2001). A trial court may not base its departure on a characteristic of the offense or of the offender already considered by a defendant's OV and PRV scores unless the court specifically finds from the facts on record that a disproportionate or inadequate amount of weight was given the characteristic. MCL 769.34(3)(b); People v Hornsby, 251 Mich App 462, 474;650 NW2d 700 (2002). A trial court must make an oral record at the defendant's sentencing of the substantial and compelling reasons for departure, and the court must also make a written record on the appropriate form of the reasons stated at the sentencing. People v Fleming, 428 Mich 408, 428; 410 NW2d 266 (1987).

2.4 Enhancement using prior convictions - MCLA § 257.625(8) provides for enhancement to a second offense for those offenses committed within 7 years after a prior conviction, or for a new offense within 10 years after 2 or more prior convictions.  A determination of whether or not enhancement is appropriate first requires a determination of what a conviction is, and when the conviction occurred..  The Michigan Supreme Court has answered this question unequivocally: "The conviction is the finding of guilt.  Sentence is not an element of the conviction but rather a declaration of its consequences."  People v Funk, 321 Mich 617, 621; 33 NW2d 95 (1948).  See also People v Bettistea, 181 Mich App 194, 199; 448 NW2d 781 (1989). Thus, the conviction occurs either when the defendant pleads guilty or is found guilty by the Judge or jury.
  
2.5 Other sentencing issues: - expunged convictions and assignment to HYTA status are specifically included within the definition of  "conviction" and are scored as prior convictions.  Adjudications set aside under MCLA 712A.18e or expunged are specifically included within the definition of "adjudication" and are to be scored as prior adjudications.  MCLA 777.50; MSA 28.1274(60).  The guidelines definition of a "conviction" does not include charges which are dismissed after a probationary period without a sentence being imposed for a controlled substances offense, MCLA 333.7411; MSA 14.15(7411), parental kidnaping, MCLA 750.350a; MSA 28.582(1),  and domestic violence.  MCLA 769.4a; MSA 28.1076(1).  The definition of  "delayed sentence" status for purposes of PRV6 - Relationship to the Criminal Justice System, expressly includes but is not limited to assignment or deferral of sentence pursuant to those statutes as well as the Holmes Youthful Trainee Act.  MCLA 762.11 et seq; MSA 28.853(11) et seq.  MCLA 777.56; MSA 28.1274(66).

2.6 Use of out of State convictions - in order for a prior out-of-state conviction to be use, it must be "substantially corresponding"to the Michigan Statute.  For example, where the Wisconsin OUIL conviction was based on a law "substantially corresponding" to Michigan's law, its use for sentence enhancement purposes was permissible.  Johnson v Secretary of State, 224 Mich App 158 (1997).

2.7 Calculation of time periods - for sentencing enhancement periods, the anniversary dates are calculated from date of prior conviction to date of new arrest.  For driver license sanctions, the anniversary dates are calculated from date of prior conviction to date of new conviction.  See People vs. Vezina, 271 Mich App 148, 550 NW2d 613 (1996).  Thus, in some instances it can be advantageous to dely the imposition of the current conviction because this will avoid a more serious driver license sanction.

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CHAPTER THREE -SUBSTANCE ABUSE EVALUATION AND TREATMENT

3.0 Understanding the problem - defending individuals charged with drunk driving and like offenses requires that the practitioner have a thorough knowledge of both the law underlying the offense, as well as a working understanding of the psychological underpinnings of substance abuse disorders. Because substance abuse screening is mandatory under the statutes, the practitioner will benefit from having enough knowledge regarding the basic principals of psychological testing  to appropriately represent the client at a sentencing hearing when they are inevitably confronted with a clearly wrong substance abuse evaluation.  An understanding of these underpinnings will allow the practitioner to forcibly articulate their arguments to the Judge, thereby explaining why he or she should not follow the recommendation of the probation department for a higher level of intervention than might otherwise be indicated by the facts and circumstances of the case, and background of the offender

3.1 Defining/Diagnosing alcoholism - Psychologists and psychiatrists utilize the Diagnostic and Statistical Manual, Fourth Edition (1994) in categorizing and diagnosing mental conditions, including those in the substance abuse realm. The DSM - IV nosology separates Alcohol Abuse and Alcohol Dependence disorders (or substance abuse and substance dependence disorders, in general) by the following criteria (a) substance abuse and substance dependance.
3.1.1 Substance abuse versus substance dependence disorders - In both substance abuse and dependence disorders, there is evidence that genetic factors play a role in both conditions. Other theories involve the use of substances as a means to cover up or get relief from other problems (e.g., psychosis, relationship issues, stress), which makes the dependence or abuse more of a symptom than a disorder in itself.

3.1.2 Substance abuse - a pattern of substance use leading to significant impairment in functioning. One of the following must be present within a 12 month period: (1) recurrent use resulting in a failure to fulfill major obligations at work, school, or home; (2) recurrent use in situations which are physically hazardous (e.g., driving while intoxicated); (3) legal problems resulting from recurrent use; or (4) continued use despite significant social or interpersonal problems caused by the substance use. The symptoms do not meet the criteria for substance dependence as abuse is a part of this disorder.

3.1.3 Substance dependence - a pattern of substance use history which includes the following: (1) substance abuse (see below); (2) continuation of use despite related problems; (3) increase in tolerance (more of the drug is needed to achieve the same effect); and (4) withdrawal symptoms.

3.2 Substance abuse evaluations - requirements for a reliable diagnosis include reliability and validity.  Reliability refers to an test's ability to yield similar results each time it is taken. It is best to see reliability as synonymous with consistency. When measuring personality traits we would expect results to be similar each time the test is taken due to the relative stability of personality.  Validity or a valid assessment is one that measures what it is intended to measure.

3.2.1 Court ordered pre-sentence screening - According to the assessment's authors, ADE Incorporated: "NEEDS is a 130 item, comprehensive adult assessment tool, addressing"(1) Attitude and emotional stability, employment, health and education; (2) Substance abuse using DSM-IV and ASAM guidelines; (3) Relationships and support system; and (4) Criminal history and prior supervision levels. The authors claim that NEEDS very efficiently provides accurate information about the respondent and makes recommendations for intervention.  They also claim that the report can be used as an outline for a personal interview, a psycho-social history, or as a basis for referral.  Based on respondent patterns of past behavior, levels of treatment and probation supervision are identified.  However, In practice, the inherent limitations that apply to all psychological tests apply to NEEDS, for example, it may not be administered  by properly trained personnel (probation officers with limited training in psychology), it is subjective; the test requires a test subject with good English aptitude (i.e., not good for immigrants/ those speaking English as second language or those with limited education); and the test requires honesty on part of test taker.

3.3 Options for treatment - Research suggests the treatment for substance abuse and dependence is very complicated, and that some approaches that work for some clients may not help others.  Regardless, social support, including family and/or friends and others in recovery  is very important. An openness to accept the abuse or dependence and motivation to change are also paramount in successfully treating the problem. Organizations such as AA and NA have had better than average success in reducing relapse, as does psychological treatment. Detoxification treatment may need to be administered due to the dangerousness of some withdrawal symptoms.

 After you've referred your client to a competent therapist, and he or she has administered one or more psychological tests to determine what if any substance abuse problems obtain, the treatment plan that is developed might include any of the following options for treatment:

3.3.1 Alcoholics Anonymous -therapists vary regarding their acceptance of AA as a viable treatment option, but the courts seem to view this as the "preferred" treatment.  This faith in AA may not be well founded.  However, because it is ubiquitous, it is important for the practitioner to understand what AA is, what studies have shown relative to its efficacy, and the basic principals of how it work out is associated with the following results: generally produces significant reductions in substance abuse and psychiatric problems, with effect sizes from "small" to "medium" (Tonigan et al., 1996). However, most of the AA research underlying these conclusions was correlational. Few excellent research studies have been undertaken. under conditions of close monitoring and substantial coercion, AA combined with inpatient treatment leads to fewer relapses than AA alone (Walsh et al., 1991), and, being ordered to AA does not reduce likelihood of future arrest for alcohol-related offenses (Ditman et al., 1967).

3.3.2 Group Psychotherapy -

3.3.3 Individual Psychotherapy -

3.4 Using a therapist to obtain a better result for your client- regardless of what you perceive to be the strength of your case, it is probably always a good idea to refer the client early on to a therapist for An independent substance abuse evaluation. This is particularly true where there is a very real possibility of incarceration should your client be convicted.  With many Judges, having your client demonstrate a commitment to treatment will be very nearly the only way to significantly reduce the amount of time that your client will spend in jail.

3.4.1 A useful substance abuse evaluation- assists the attorney in making a persuasive argument that the client is a good candidate for continued abstinence, if relevant, and therefore, that less punishment, (usually in the form of incarceration) is required to protect society.

3.4.2 The therapist's role in driver license appeal/restoration hearings - Rule 13 of the Administrative Rules provides that the Petitioner must make a showing, by clear and convincing evidence that: (1) that the petitioner's alcohol or substance abuse problems, if any, are under control and likely to remain under control, and (2) that the petitioner represents a low or minimal risk of repeating his or her past abusive behaviors, including  repeating the act of operating a motor vehicle while impaired by, or under the       influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance.  This information will be confirmed or disconfirmed by the psychologist and these conclusions will be documented in the State evaluation form.  Preparing the final form requires data gathered during a 2 ½ hour initial evaluation, whereby some of the screening tools discussed above are administered, followed by a lengthy interview.

 Obtaining the data needed for an appropriate evaluation can sometimes be accomplished in the initial visit, but often requires more than a single visit, and sometimes extended treatment.  It is in the interest of the client and the attorney to have the client seen early for a required substance abuse evaluation. This is important as the client may be referred by the psychologist for a period of treatment. This recommendation may be offered  in order to validate the client's ability to maintain abstinence from alcohol for an extended period of time, and to assure that the client has gained insight into and control over relevant aspects of his or her alcohol disorder.

3.5 Drug Courts - In September 1998, the National Drug Court Institute (NDCI), in partnership with the National Institute of Drug Abuse (NIDA) convened a Drug Court Research Advisory Committee. The goals of the committee were twofold: to develop a prioritized scientific research agenda for the drug court field, and to begin to develop tools for drug court researchers and practitioners. The committee was comprised of five chief researchers from NIDA, two staff members from NDCI, and 40 of the nation's leading drug court researchers, professionals and policymakers.
 
 From a single drug court in Miami, Florida in 1989, the Nation's drug court network has grown to include at least 550 drug courts that are operational or are in the planning process. Drug courts vary somewhat from one jurisdiction to another in terms of structure, scope, and target populations, but they all share common objectives: to relieve congestion in traditional criminal courts by placing nonviolent drug offenders in a cooperative, non-adversarial court setting, where they take responsibility for both their crimes and their futures. Subjected to long-term treatment and counseling, sanctions and incentives, and frequent hearings before a judge who is integral to every step of the program, offenders who take part in these innovative judicial experiments are provided the tools they need to turn their lives around.

 Michigan has 27 courts overseeing intensive treatment for nonviolent drug and alcohol offenders. Another 16 are in the planning stages, including two in Lansing and one in Mason.   There are divisions for all offenders including adult, juvenile, family, tribal and drunken driving.  The current caseload: About 1,900 offenders per year.  A significant reason why courts are moving in this direction is the costs savings.  For example, the cost for a drug court offender is $3,000-5,000 per offender vs. $28,000 a year for prison  

 Generally, the purpose of the drug court is to serve as an alternative to traditional sanctions and help nonviolent offenders stop using drugs and alcohol   To qualify, offenders must attend Alcoholics Anonymous meetings, complete full treatment, perform community service, meet with probation officers and report to a judge; jail is an option if an offender slips up.  The usual time frame an offender is involved with the program is about two years

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CHAPTER FOUR - UNDERSTANDING THE PHYSIOLOGY OF ALCOHOL
   
4.0 Physiology of beverage alcohol - With the advent of chemical intoxication evidence in the 1960s, and its continued refinement in the twentieth century, drunk driving prosecution has essentially become an exercise of providing and proving the number.  Most jurors give great weight to scientific evidence, and certainly this is true as it relates to the way most jurors view chemical intoxication evidence.  Because of this the unreliability of this evidence often becomes central to the defense of drunk driving cases.

 A successful attack on this evidence requires that the defense attorney have at least a general knowledge of how beverage alcohol (ethanol) is absorbed and used by the human body.  This is particularly true when retrograde extrapolation evidence is provided by the prosecution to further demonstrate the drivers blood alcohol level at the time of the driving.  This knowledge will also inform both the direct and cross examination of any intoxication evidence experts.

4.0.1 Alcohol's properties - alcohol is a general term denoting a family of organic chemicals with common properties. Members of this family include ethanol, methanol, isopropanol, and others. Alcohol (ethanol) is a clear, volatile liquid that burns (oxidizes) easily. It has a slight, characteristic odor and is very soluble in water. Alcohol is an organic compound composed of carbon, oxygen, and hydrogen; its chemical formula is C2H5OH. Alcohol is a central nervous system depressant and it is the central nervous system which is the bodily system that is most severely affected by alcohol (see chart below). The degree to which the central nervous system function is impaired is directly proportional to the concentration of alcohol in the blood.

 When ingested, alcohol passes from the stomach into the small intestine, where it is rapidly absorbed into the blood and distributed throughout the body. Because it is distributed so quickly and thoroughly the alcohol can affect the central nervous system even in small concentrations. In low concentrations, alcohol reduces inhibitions. As blood alcohol concentration increases, a person's response to stimuli decreases markedly, speech becomes slurred, and he or she becomes unsteady and has trouble walking. With very high concentrations - greater than 0.35 grams/100 milliliters of blood (equivalent to 0.35 grams/210 liters of breath ) - a person can become comatose and die.

4.0.2 Absorption - Alcohol is absorbed from all parts of the gastrointestinal tract largely by simple diffusion into the blood. However the small intestine is by far the most efficient region of the gastrointestinal tract for alcohol absorption because of its very large surface area. In a fasting individual, it is generally agreed that 20% to 25% of a dose of alcohol is absorbed from the stomach and 75% to 80% is absorbed from the small intestine. Because of this peak blood alcohol concentrations are achieved in fasting people within 0.5 to 2.0 hours, (average 0.75 - 1.35 hours depending upon dose and time of last meal) while non-fasting people exhibit peak alcohol concentrations within 1.0, and in extreme cases up to as much as 6.0 hours (average 1.06 - 2.12 hours).

4.0.3 Distribution - Alcohol has a high affinity for water and is therefore found in body tissues and fluids inasmuch as they contain water. Absorbed alcohol is rapidly carried throughout the body in the blood and once absorption of alcohol is complete an equilibrium occurs such that blood at all points in the system contains approximately the same concentration of alcohol.

4.0.4 Elimination - the liver is responsible for the elimination - through metabolism - of 95% of ingested alcohol from the body. The remainder of the alcohol is eliminated through excretion of alcohol in breath, urine, sweat, feces, milk and saliva. The body uses several different metabolic pathways in its oxidation of alcohol to acetaldehyde to acetic acid to carbon dioxide and water. Healthy people metabolize alcohol at a fairly consistent rate. As a rule of thumb, a person will eliminate one average drink or .5 oz (15 ml) of alcohol per hour. Several factors influence this rate. The rate of elimination tends to be higher when the blood alcohol concentration in the body is very high or very low. Also chronic alcoholics may (depending on liver health) metabolize alcohol at a significantly higher rate than average. Finally, the body's ability to metabolize alcohol quickly tend to diminish with age.

4.0.5 Body weight and body type - In general, the less you weigh the more you will be affected by a given amount of alcohol. As detailed above, alcohol has a high affinity for water. Basically one's blood alcohol concentration is a function of the total amount of alcohol in one's system divided by total body water. So for two individuals with similar body compositions and different weights, the larger individual will achieve lower alcohol concentrations than the smaller one if ingesting the same amount of alcohol. However, for people of the same weight, a well muscled individual will be less affected than someone with a higher percentage of fat since fatty tissue does not contain very much water and will not absorb very much alcohol.

4.0.6 Rate of consumption - Blood alcohol concentration depends on the amount of alcohol consumed and the rate at which the user's body metabolizes alcohol. Because the body metabolizes alcohol at a fairly constant rate (somewhat more quickly at higher and lower alcohol concentrations), ingesting alcohol at a rate higher than the rate of elimination results in a cumulative effect and an increasing blood alcohol concentration.

4.0.7 Alcohol content - The concentration of the drinks that one ingest can have a slight effect on the peak alcohol concentration due to the differences in absorption rate of different concentrations of alcohol. Alcohol is most rapidly absorbed when the concentration of the drink is between 10% and 30%. Below 10% the concentration gradient in the gastrointestinal tract is low and slows absorption and the added volumes of liquid involved slow gastric emptying. On the other hand concentrations higher than 30% tend to irritate the mucous membranes of the gastrointestinal tract and the pyloric sphincter, causing increased secretion of mucous and delayed gastric emptying.

4.0.8 Food - Food taken along with alcohol results in a lower, delayed blood alcohol concentration peak (the point of greatest intoxication). There are two major factors involved in this phenomenon. First, because alcohol is absorbed most efficiently in the small intestine, the ingestion of food can slow down the absorption of alcohol into one's system. The pyloric valve at the bottom of the stomach will close in order to hold food in the stomach for digestion and thus keep the alcohol from reaching the small intestine. While alcohol will be absorbed from the stomach it is a slower and less efficient transition. Second and equally important is the fact that alcohol elimination rates are inversely proportional to alcohol concentration in the blood. Therefore the suppressed levels of alcohol due to food ingestion cause the body to eliminate the alcohol that is absorbed at a faster rate. The type of food ingested (carbohydrate, fat, protein) has not been shown to have a measurable influence on this affect but the larger the meal and closer in time between eating and drinking, the greater the diminution of peak alcohol concentration. Studies have shown reductions in peak alcohol concentration (as opposed to those of a fasting individual under otherwise similar circumstances) of 9% to 23%.

4.0.9 Fatigue - Fatigue causes many of the same symptoms that are caused by alcohol intoxication. These and other symptoms will be amplified if alcohol intoxication is concurrent with fatigue.

4.0.10 Tolerance - Tolerance is the diminution of the effectiveness of a drug after a period of prolonged or heavy use of that drug or a related drug (cross-tolerance). There are two types of tolerance at work with alcohol. The first is metabolic tolerance in which the alcohol is metabolized at a higher rate (up to 72% more quickly) in chronic users. Because of the higher metabolic rate for alcohol lower peak blood alcohol concentrations are achieved by chronic alcohol users than the average drinker when the same amount of alcohol is ingested. The second is functional tolerance in which there is an actual change in the organ or system's sensitivity to the drug. Studies have shown that chronic alcohol users can have twice the tolerance for alcohol as an average person. It is important to note however that even in light of these tolerance factors, it has been shown conclusively that even in heavy alcohol users functional impairment is clearly measurable at the blood alcohol concentration levels that are currently used for traffic law enforcement and safety sensitive job performance.

4.0.11 Gender Differences - As outlined above in the section on Body Weight and Body Type different body types coincide with different body water percentages. In general, but by no means in all cases, women tend to have a higher percentage of body fat and thus a lower percentage of body water. Therefore, in general, if a man and a woman of the same weight ingest the same amount of alcohol the woman will tend to achieve a higher alcohol concentration. This, of course, would not be true if the woman was very fit and the man was somewhat obese, but on average, this is the case. Furthermore, total body water tends to decrease with age, so an older person will also be more affected by the same amount of alcohol.

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CHAPTER FIVE - UNDERSTANDING CHEMICAL INTOXICATION EVIDENCE

5.0 Breath testing devices generally - Breath testing devices  there are several different evidential breath testing devices used throughout the United States, and they are all based on the same scientific principles.  This principle is "Henry's Law", which states that if a gas and liquid are in a closed container, the concentration of the gas in the air above the liquid is proportional to the concentration of the gases which is dissolved in the liquid.  Relative to ethanol, if a volume of water in which a volume of ethanol is dissolved is placed into a stoppered bottle, the ethanol will evaporate until it reaches an equilibrium with the air above it.  Human lungs are composed of bronchial tubes that branch into ever smaller passageways, which eventually end with tiny balloon like spaces called alveoli.  In the deep lung it is thought that the air in these alveoli have reached the equilibrium dictated by Henry's Law, and this is way it is essentially for the subject to expel enough air into the breath testing device so that deep lung air is tested.

 The actual breath test proceeds when a sample of the subject's breath is captured in a sample chamber through which an infrared light source is passed.  The intensity of the light at the source is know, and the devices measure the decrease in the intensity at the opposite end of the sample chamber, where a detector is located.  This difference is then converted using a mathematical formula to a numerical blood alcohol concentration (Bac)..  In arriving at this Bac, a number of assumptions are made, including  that the subject being tested has a core body temperature of 37 deg Celsius, and that the subject tested has a breath blood ratio of 2100/1.  It is also assumed that the subject does not have any potential chemicals on his or her breath that "look" to the device like ethanol (in other words, contain a methyl group), and therefore, that will be measured as blood alcohol.

 There are at least three breath testing devices in use for evidential purposes throughout the United States, and these include the DataMaster, the Intoxilyzer, and the Drager 700.  Of these, the DataMaster is perhaps the least precise.

5.1 The DataMaster - The DataMaster is the trade name for the infrared spectrometer  manufactured by the National Patent Analytical Systems, Inc.  It is used exclusively throughout the State of Michigan for evidential breath alcohol detection in drunk driving enforcement.  Like all infrared spectrometers, the device produces a blood alcohol reading by passing an infrared light source through a sample chamber containing the driver's breath.  (See section 4.1).

 While there are many ways to measure alcohol in a breath sample, the manufacturer of the DataMaster opted for the faster and cheaper infrared method of analysis, hoping to minimize the problem of lack of specificity by utilizing two wavelengths. The microcomputer was integrated to control sequencing, calibration, and self-checking -- making it easier to use and less susceptible to operator error. Additionally, the software can be custom-designed to meet the requirements of a given jurisdiction or the specific needs of an agency.


5.1.1 The DataMaster result as "unreliable evidence" - there are a variety of constitutional and scientific shortcomings assignable to the DataMaster result.  For example, there are basic problems in predicting probable BAC's from breath tests, as well as specific problems related to individual differences, and sex related differences.  Most of these arise out of the fact that breath tests all must make certain assumptions in order to arrive at a probable BAC, because the blood is not being directly analyzed, but instead, a sample of breath that is assumed to have reached equilibrium with the blood, an assumption that may or may not  hold true under closer scrutiny.

 The basic equation for converting breath alcohol to blood alcohol, or the number of alcohol drinks consumed, arises out of the work done by Swedish physiologist E.M.P. Widmark.  Unfortunately, this formula is obtuse, and does not easily lend itself to court room use.  Suffice to say that any such equations assume that one is dealing with the unobtainable "average" person.  

 Individual differences include differences in absorption.  There is a great deal of variety among individuals insofar as the manner in which alcohol increases after consumption.  The rate of decline however, is relatively uniform.  Thus, it is very difficult to know, based on a single result, when full abortion has occurred. When viewed in this way, it becomes clear how a single breath test result, or even two results taken less than two minutes apart, tell the jury very little about what is actually happening with the drivers Bac.

 There are also sex related differences, and these are a result of differences in metabolism and differences in the amount of lean muscle tissue versus body fat, and the overall higher water content in women when compared with men.  One might argue that this biases the results against the female offender.

5.1.2 Overestimation of true BAC from DataMaster results - Dubowski concludes in his seminal work on alcohol breath testing (Dubowski, K., "Alcohol Analysis": Clinical Laboratory Aspects, Part I," Lab. Management 20: 43-54 (1982)) that 86% of the population would have actual BAC underestimated using infrared spectrometry.  This conclusion was based on a sample of healthy men known to be "fully post-absorptive.  This immediately suggests an overestimation of BAC in14% of the same population.  However, this later conclusion was clarified by Dubowski when he indicated that based on his study of 390 paired results (breath and blood tests collected at the same time), the actual amount of "harmfully overestimated" BAC at the 0.10% level was actually 2.3%.  Critical analysis of this data suggests that the actual overestimation is likely to be much higher than 2.3%.

5.1.3 Inherent limitations of the DataMaster - As with all measuring devices, the DataMaster has an inherent degree of  error, or stated another way, inherent degree of. unreliability. This is because no measuring device can ever be completely precise, and the range of error is directly proportional to the manner in which the device is set up, maintained or calibrated.  Consequently, it is important for the practitioner to thoroughly explore these issues during the discovery process.

 The DataMaster is also limited simply by the manner in which is attempts to measure blood alcohol.  The device is itself non-specific for alcohol.  The manufacturer attempts to compensate for this deficiency by adding two or three filers, but these are not infallible.

 Also, the DataMaster is subject to error by being subject to radio frequency inference.  Although the device does have an antenna meant to detect such interference, the device will continue to operate after this antenna is removed.

 Mouth alcohol is also a significant potential problem.  Like radio frequency interference, the DataMaster does have a "slope detector", which is meant to revel the process of mouth alcohol, but this mechanism has also been demonstrated to be unreliable.  This makes the requirement of a 15 minute waiting period all the more important from a scientific standpoint.  From a legal standpoint, in Michigan at least, the failure to observe the 15 minute observation rule is found to go to weight rather than admissibility.

 It should also be understood that the operator must rely on the DataMaster itself, and its self diagnostic mechanism to know that there is a problem.  The maintenance protocol in Michigan however does not require that these self diagnostics be tested and the ability of the device to produce a particular error message is rarely if ever confirmed independently.

5.1.4 Tying the "unreliable" result into your client - In order to successfully persuade a jury to disregard a DataMaster result, it is often necessary to specifically connect the theoretical unreliability directly to your client and the results obtained.  So for example, if it can be shown that there was an imperfect 15 minute observation period, then the jury will inevitably be more receptive to an explanation of slope detectors, and why they don't safeguard the reliability of the result.  This argument might be bolstered by the fact that your client wears dentures that might have actually trapped the mouth alcohol.

5.2 Blood testing - Drunk driving cases with blood intoxication evidence are significantly more complex to defend than are those involving DataMaster results, and if the method used in determining the ethanol concentration of the subject's blood is gas chromatography, then it is also true that the results are more reliable.  However, the trade off is that the foundational requirements imposed on the prosecutor for use of the blood test results are significantly more onerous than the relatively simple foundations requirements of the DataMaster breath test. 
5.2.1 The Search Warrant requirement - Michigan's implied consent law provides that the driver must take the test offered by the peace officer.  Most often the officer will request a breath test, but the law is non-exclusive, so the officer may initially request a blood rather than a breath test.  This seems to be the trend with certain State Police Troopers, and if the driver consents to the blood draw then no warrant required

 There is also an accident exception to the warrant requirement, and this is found at MCLA 257.625a(6)(e), MSA 9.2325(1)(6)(e).  This statute has been subject to numerous Court opinions, and a detailed explanation of it is beyond the scope of this presentation.  However, the statute does require on its face that when blood is drawn without a warrant after an accident, that the blood be drawn "at that time for medical purposes".  Id.  Thus, if there is no "medical purpose" for drawing the blood (and often times there is not), then this may be a legitimate issue as to the admissibility of the results. 

 When a warrant is obtained, the affidavit should always be reviewed to determine if it is supported by probable cause.  Probable cause to issue a search warrant exists only if the facts and circumstances warrants a person of reasonable prudence to conclude that there is a substantial basis for the determination that probable cause existed to believe that the evidence of a crime is in the stated place sought to be searched.

 A preliminary breath test (PBT) result may be used in support of a search warrant for blood.  People vs. Tracy, 435 Mich. 853 (1990).  However, the  PBT itself must be supported by sufficient "reasonable cause".  Reasonable cause is something less than probable cause, but substantially more that a reasonable suspicion. People v. Bloyd, 416 Mich. 538, 554; 331 NW2d 447 (1984). However, a police officer who seizes a person and keeps him available for arrest in case probable cause is later developed unreasonably seizes that person. People v. Bloyd, supra.  See also MCLA § 257.625a(2); MSA § 9.2325(1)(2),

5.2.2 The Blood Draw - The statute indicates that a qualified licensed health care professional or his/her delegate who is otherwise qualified by education, training, or experience may draw the blood. MCLA §333.16215.  This term is rather loosely defined, and is usually not an issue in most drunk driving cases.  It is still worthwhile to see that this person is produced at the exam/evidentiary hearing because their experience at drawing blood for forensic purposes, as well as their skill as a witness, should be accessed well before trial.  The manner in which the blood is drawn, and how it is handled after the blood draw, should also be the subject of exhaustive cross-examination, as further described below.

 Here the statute indicates that the blood must be drawn in a "medical environment".  This is potentially an issue, and is something that should be delved into during the initial client consultation, and again during the preliminary examination or evidentiary hearing.  There are situations where blood is not drawn in a medical environment, or there is a legitimate question as to whether or not the location of the blood draw reasonably fits into this category.  For example, in an accident situation, blood is sometimes drawn roadside.  Also, when the emergency room is overcrowded, the blood may be drawn in a conference room usually used for medical consultations.  Finally, in some counties it is not uncommon for the blood to be drawn at the jail. 

 In each of these examples an argument should be made that the statute was not strictly complied with, and that the blood intoxication evidence should therefore be suppressed.

 In the typical drunk driving case, that is, where there is no accident and blood is sent to the State Lab for testing, the blood is drawn using one of the standard blood draw kits provided to the police agencies by State Forensic Lab.  These kits are manufactured by an outside company, are uniform in nature, and the same kits are used throughout the State.

 The kits will contain everything needed for the blood draw, including a non-alcohol swipe, and two grey stoppered vacuum vials.  These are both important factors.  Make sure during cross-examination of the person who drew the blood that the vials were in fact "grey stoppered".  The color of the vial denotes its purpose, and only the grey stoppered vials contain the appropriate preservative and anticoagulant (sodium fluoride / potassium oxalate respectively).  See Administrative Rule 325.2675.  After the blood is drawn, the samples should be "slowly inverted several times" to mix the preservative.  If the samples are sent to an outside Laboratory for testing, then they are to be "sealed in a manner that ensures their integrity".  See FSD 93.  If there is no integrity seal, or if it was removed or broken, then it is possible that the sample might have been contaminated with air-born bacteria and/or fungi, and this can cause spoilation of the evidence.

 In drawing the blood, the individual must use a sterile dry needle and syringe expelled into a clean specimen tube containing the sodium fluoride/potassium oxalate.  Additionally, the blood draw must be witnessed to assure authentication.  The samples are to be labeled by entering the name of the subject, the date and time of the blood draw, the tube number if more than one tube is drawn, and the individual's name who drew the blood.  The samples are placed into a plastic bag, then back into the box, and the box is dispatched to the State Lab for testing.

5.2.3 Chain of Evidence -  A perfect chain of custody is not required for admission of cocaine and other relatively indistinguishable items of real evidence.  Such evidence is admissible where the absence of a mistaken exchange, contamination or tampering has been established to a reasonable degree of certainty.  The threshold question is whether an adequate foundation for admission has been laid under the circumstances of each case.  Once a proper foundation has been established, deficiencies in the chain of custody go to weight rather than admissibility.  People v Prentis Mario White, 208 Mich App 126 (1994).

 In the majority of drunk driving cases,  the blood draw takes place at a hospital where it is handled by at least two individuals.  These include the one drawing the blood, and the police officer who collects and packages it.  The next step in the chain may differ from case to case, and should be carefully investigated and evaluated.  For example, does the police officer simply take the blood kit and drop it in the nearest mail box, or does he/she bring it back to the station and lock it into an evidence locker?  This determination can be important, because the best opportunity for spoilation is between the time of the draw, and the time the blood reaches the State Lab.  If the evidence is checked into an evidence locker, then the property book (if any) should be examined for errors or omissions.

 The next link in the chain will occur at the State Lab where the Lab tech in the accession area opens the blood draw kits received that day, generated a distinct number for each sample and places all like samples into a tray.  She is supposed to inspect note the condition of the blood, and this notation is usually made on the FSD-93 form (the same form that accompanies the samples to the Lab).

 Once collated, these samples are then handed off to one of six "forensic scientists", and this election depends only on who is assigned that day to the task of ethanol determinations.  After the samples are tested, the vials will be placed into the Lab's refrigerator for storage.

5.2.4 Integrity of the Blood Sample - Like the lab tech, the forensic scientist is also supposed to inspect and make notations as to the condition of the blood.  These notations are made on the toxicology worksheet prepared by him/her.  Ultimately the question that must be raised and investigated is whether or not it is possible for coagulation or any other type of spoilation to have occurred.  If so, then it is also possible that there was the neo-generation of alcohol through microbial fermentation.  When human blood decomposes, naturally occurring microbes can change the sugars in the blood into alcohol.  This might occur with an expired kit, or if the person who drew the blood did not gently tip the vial back and forth to mix the anti-coagulant and the preservative with the sample.  If the sample was coagulated, or if it is possible for the samples to have been exposed to high temperatures during transportation and/or storage, then inquiry should be made as to whether or not the sample centrifuged prior to testing.  This procedure removes the solid portion of the blood, and thereby artificially concentrates the liquid portion.  When this concentrated liquid portion is tested, the alcohol concentration is necessarily also artificially increased.

5.2.5 Serum/Plasma vs. Whole Blood - The administrative rules indicate that it is acceptable in Michigan to test for ethanol concentration by using the direct distillation/dichromate oxidation method, the enzymatic method, or gas chromatography (GC).  Both the direct distillation/dichromate oxidation method and the enzymatic method require that the blood be placed into a centrifuge prior to testing, and the concentrated blood serum/plasma is then tested.  When evaluating a serum test, keep in mind that the reported ethanol concentration values are higher than whole blood values.  On the average serum values are about 16% higher, and may be 18 to 20% higher, or more, in some cases.  See Edward F. Fitzgerald, Intoxication Test Evidence, 2 Ed, §19:12 (1995).  If the sample is close to the "per se" limit, then this analysis can become crucial.

 The Michigan State Lab typically performs whole blood testing, i.e., the liquid portion of the blood, together with all the solid cellular components utilizing the gas chromatography method.  In preparing the samples for testing, one of the two tubes is opened and tested twice.  The unopened vial is stored for testing by the defense provided an appropriate request is timely made.

5.2.6 Overview of gas chromatography. - Gas chromatography is a type of automated chromatography in which the sample, dissolved in a solvent, is vaporized and carried by an inert gas through a column packed with a sorbent to any of several types of detectors. Each component of the sample, separated from the others by passage through the column, produces a separate peak in the detector output, which is graphed by a chart recorder. The sorbent may be an inert porous solid or a nonvolatile liquid coated on a solid support.  The Michigan State Forensic Lab uses a column packed with tiny glass beads coated with carbowax.

 In very simple terms, gas chromatography separates chemicals based on time and temperature.  In running the test, the sample is first mixed with one of two reagents, either n-propanol or t-butanol as an internal standard.  Each sample is then tested separately by two different chromatograms, and the Lab reports lower of the two results.  The result is expressed to three decimal places, but the third digit is truncated (dropped).  There may not be a difference of greater than .02 or the tests must be repeated.

 Once the sample is diluted with the reagent, it is then heated to produce a vapor.  The vapor is then removed by an injector, and passed through a glass column, together with an inert carrier gas, usually Helium.  This is called "head space analysis" (as opposed to the more precise direct injection method).

 The constituents (chemicals) in the vapor are then timed and measured as they pass out of ("elute" out of) the other end of the column.  As the vapor passes through the column, the various molecules separate by molecular weight and polarity.  In this way gas chromatography is very specific, and unlike the enzymatic method, can distinguish between different types of alcohol.  Consequently, if the blood is tested using gas chromatography, it is not significant if the wipe used to disinfect the skin contains rubbing alcohol because gas chromatography can distinguish rubbing alcohol from beverage alcohol. 

 The measurement of the different molecules takes place in the GC's "Flame Ionization Detector", where the effluent is ignited.  The flame produces ions and electrons.  The number of ions are "measured" by the Detector, and this measurement is turned into an electronic signal that is converted into a blood alcohol level by the GC's computer.  The ions themselves are non-specific, and so the molecule is identified based totally on when the molecule elutes out of the column at a standardized temperature and flow condition.  Consequently, the precise determination of both time and temperature are critical to the integrity of the testing protocol.

 The chromatograph itself produces a chromatogram, which is a readout that looks something like an EKG. The peak measurement or curve on the chromatograph is then compared with an alcohol calibration curve, and the amount of blood alcohol is determined by reading where this sample peak passes over or meets the calibration curve.  Like the precise determination of time and temperature, the precise preparation of the calibration curve, and the methodology used to confirm it, are also critical determinations.     

5.2.7 Challenging the Results - In order to mount a viable challenge to the gas chromotagrphy report, the practitioner must review and understand administrative rule requirements and State Lab's written methods or standard operating procedure. Both of these documents can be obtained from the State Lab with a Freedom of Information Act Request (FOIA), and a sample FOIA request is attached to these materials.  The rules and Laboratory protocol documents should serve as the foundation for preparing your cross-examination.  The State Lab is frequently changing their protocol so make sure you are working off of the latest incarnation.  It is also helpful to review transcripts from previous hearings.

 Once these documents are obtained, reviewed and understood, the practitioner should plan to cross-examine everyone involved in obtaining, transporting and testing the subject's blood.  This can be done either at preliminary hearing (but only if prior notice is timely made to prosecuting attorney see MCLA § 600.2167) or at an evidentiary hearing.  These opportunities should never be waived as they are the only way the practitioner can be appropriately prepared for trial. They are also the only ways that issues can be developed that might lead to either a suppression of the blood evidence, or at least a plausible challenge to the reliability of the test results at or before trial.

 The most persuasive arguments for suppression are bound to come out of the cross-examination of the person who withdraws the blood, and from the police office who witnesses the blood draw.  This is because it is the greatest likelihood for spoilation will occur prior to the sample reaching the State Lab.  Based on the current state of Michigan case law, any problems at the Lab or even a failure to strictly comply with the administrative rules and/or testing protocol might be viewed by the trial courts as going to "weight' rather than "admissibility".  However, because arguing weight is tantamount to arguing reasonable doubt, the practitioner should never stipulate to the toxicology report.

5.2.8 Cross-examining the testing forensic scientist- (add sample questions): when cross-examining the forensic scientist that testing the defendant's blood, determine the following:

   a. Education and relevant training of forensic scientist;

   b. How subject sample was handled by Lab personnel both before, during and after testing.

   c. How the calibration curve was prepared and by whom;
   d. How the test run sequence was set up, number of samples tested per run,  when the test sequence started and ended, and the specific GC used;

   e. How subject sample was labeled and by whom;
   f. How calibration curve was verified and by whom;
   g. How results are reported and by whom.
   h. How and when column was calibrated;
   i. When the column was last replaced and by whom;
   j. Maintenance history of GC used
   k. Range of error of the human blood, aqueous, and negative controls.

   l. Column, injection port, and detector temperature, and how these are determined and verified. 

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CHAPTER SIX - THE CLIENT INTERVIEW


6.0 Information to obtain -  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. 

6.0.1  Background information

6.0.1.1   Personal history
6.0.1.2   Medical history
6.0.1.2   Criminal history
6.0.1.3   Driving history

6.0.2  Circumstances of the stop

6.0.2.1   Events of the day of arrest
6.0.2.2   Route driven before the arrest
6.0.2.3   Automobile driven
6.0.2.4   Response to signal to stop
6.0.2.5   Initial questioning by Officer
6.0.2.6   Conversations before or after arrest
6.0.2.7   Field sobriety tests
6.0.2.8   Miranda warnings
6.0.2.9   Actions after arrest
6.0.2.10  Other people present
6.0.2.11  Car removal
6.0.2.12  Testing facility
6.0.2.13  Video or audio taping

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

6.3.1 Estimate fees based upon time commitment
6.3.2 Fees that are not "clearly excessive"

6.4 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.

6.5 Getting client into treatment

6.6 Practice tips

6.6.1  A list of practice facilitators

6.6.1.1   Trial Notebook
6.6.1.2   Use Court directories
6.6.1.3   Create and use Database
6.6.1.4   Use a digital still camera
6.6.1.5   Use a digital video camera
6.6.1.6   Develop and use an accident reconstruction expert
6.6.1.7   Use a client intake questionnaire
6.6.1.8   Use "time" to your client's advantage
6.6.1.9   Know when "time" is your client's enemy
6.6.1.10  Organize files by use of binder or notebook method
6.6.1.11  Always be open and available for clients

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CHAPTER SEVEN - DISCOVERY

7.0 What is Discoverable - Naturally the rules of criminal procedure address the issue of discovery, and these rules are found at MCR 6.200.  Discovery is also addressed in MCLA 7.67.94a.  However, MCR 2.601 took effect January 1, 1995.  It followed the Court's decision in People vs. Lemcool, 445 Mich. 491; 518 NW2d 437 ( 1994) and the enactment of 1994 PA 113, MCLA 767.94a.  Pursuant to Administrative Order 1994-10, discovery in criminal cases is governed by the Court Rule, and not by the Statute. 

 Upon request, the prosecuting attorney must provide each defendant: (1) any exculpatory information or evidence known to the prosecuting attorney; (2) any police report concerning the case, except so much of a report as concerns a continuing investigation; (3) any written or recorded statements by a defendant, co-defendant, or accomplice, even if that person is not a prospective witness at trial; (4) any affidavit, warrant, and return pertaining to a search or seizure in connection with the case; and  (5) any plea agreement, grant of immunity, or other agreement for testimony in connection with the case.  MCR 2.601(B).

 There is no right to discover information or evidence that is protected from disclosure by constitution, statute, or privilege, including information or evidence protected by a defendant's right against self-incrimination, except as provided in subrule MCR 6.201 (C)(2).  Thus, if a defendant demonstrates a good-faith belief, grounded in articulable fact, that there is a reasonable probability that records protected by privilege are likely to contain material information necessary to the defense, the trial court shall conduct an in-camera inspection of the records. If the court is satisfied, following an in-camera inspection, that the records reveal evidence necessary to the defense, the court shall direct that such evidence as is necessary to the defense be made available to defense counsel.

7.1 What discovery should consist of - Most misdemeanor drunk driving cases begin with the issuance of a citation.  The citation will be supported by a narrative report prepared by the arresting officer, and any supplemental reports prepared by other officers.  These reports should set forth in detail what observations, including observations relative to the field sobriety tasks, were made by the arresting officer.  If a chemical test was taken, then there will be a report of the chemical intoxication test results.  With a breath test, these results will be set forth in a pink evidence ticket, also called an "OD-80", and the breath, blood, urine test report, Michigan temporary driving permit (DI-177)The practitioner should also obtain, the maintenance and calibration logs from the DataMaster used, along with the certification card for the operator.

 If there was a blood draw, then the discovery will include the warrant and affidavit (if obtained pursuant to warrant), the alcohol or drug determination report (FSD-93), the officer's report of refusal to submit to chemical test (DI-93), and the Laboratory Report (FSD-96).  If the blood was tested at the State Lab, then additional documentation should be obtained from them by use of a Freedom of Information Act request (sample attached).

 Discovery also should include videotapes of the stop, arrest, booking room and/or the DataMaster room, and the dispatch logs, and make disclosure of "other crimes" evidence a routine part of your discovery demands under MCR 6.201.

7.2 Obtaining discovery -   The procedure for obtaining the discovery varies somewhat from Court to Court and from County to County.  In some Counties most if not all of the discoverable items will be obtained from the prosecuting attorney.  In such instances, a written discovery demand need only be served by regular first class mail.  The demand such contain enough specificity that the prosecutor will reasonably know what items are being requested. 

 In those instances when the prosecuting attorney does not or will not provide any or all of the discoverable materials, then  it is necessary to obtain a discovery order and serve it on the arresting authority.  In other instances, a Freedom of Information Act request will be sufficient without the need for a discovery order.  There is also disparity among cities and counties relative to the assessment of costs for the production of discovery.  These issues should be explored soon after the client has retained your services.  Many Courts place drunk driving cases on the "fast track", making it essential to complete discovery in a timely manner. This is based on the 77-day rule.  The rule is permissive in that a trial court may, but is not required to, dismiss for violation of the statutory limits.  Like the 12-day rule for preliminary examinations in felony cases, claims of violation of these limits are preserved only when defendant makes a timely motion to dismiss in the trial court and, if this motion is denied, pursues an interlocutory appeal. See MCL § 257.625b(2); MSA § 9.2325(2)(2).

 Unless otherwise ordered by the court, the prosecuting attorney must comply with the requirements of the discovery rules within 7 days of a request, and a defendant must comply with the requirements of this rule within 14 days of a request under this rule.

7.2.1 Using the Freedom of Information Act - the Freedom of Information Act is probably the single best tool for obtaining discovery items from public agencies.  The Act itself is set forth by statute at , MCLA § 15.231 et seq.  The Act contains very specific time requirements (i.e., 5 business days, MCLA §15.235(2).  The Act also mandates that if any fee is charged, then such fee may consist only of the "actual mailing costs, and to the actual incremental cost of duplication". MCLA § 15.234(1).

7.2.2 Using the subpoena power - When the documents and things desired cannot be obtained from a public agency, then the practitioner should consider using the subpoena power to obtain these items.  Such items might include for example some of the DataMaster maintenance records kept by National Patent Labs.

 Subpoena duces tecum should also be used to secure production of necessary documents from police witnesses, or from expert witnesses relied on by the prosecution.

7.3 Other discovery tools - there are a variety of discovery tools that can be utilized in civil cases but which are specifically precluded in MCR 6.001(D).  Interestingly, the rule specifically states that  Michigan does not allow depositions for the purpose of "discovery" in criminal cases.  However, depositions probably can be used for other purposes under the rules, such as to preserve testimony, but it is probably better practice to seek leave of court prior to scheduling such a deposition.

 Obtaining other types of discovery must therefore by conducted by a third party, which usually means an investigator.  The usefulness of witness statements obtained by an investigator are limited by the hearsay rules, and the fact that the are not reduced to a writing signed by the person making the statement. Still, the use of investigators is essential to a proper work up of the contested drunk driving case.

7.4 Motions to compel discovery - Many cases can be won or lost during the discovery process.  In order to be effective, counsel must be prepared not only to request the appropriate documents, but to follow through by filing the appropriate motions to compel when needed discovery is not provided. If a party fails to comply with a discovery request or order, the court has the discretion to order the exclusion of testimony or evidence for both substantive and impeachment purposes, People vs. Turner, 120 Mich App 23, (1982); In re Bay Prosecutor, 109 Mich App 476 (1981).  The Court may also order other remedies, including dismissal, MCR 2.601(J); People vs. Owens, 74 Mich App 191 (1977).

 In cases when disclosure of "other crimes" evidence is ordered pursuant to a discovery motion, the failure to disclose may result in preclusion of the evidence.  It is also recommend pre-trial motion for discovery of expert's reports, notes, audio and/or videotapes, credentials, publications, summaries written by the expert about the case at bar and also the expert's raw notes.  In addition, counsel should seek disclosure of the expert's credentials, a list of the expert's publications, a list of the prior cases in which the expert has testified, and the data base, if any, from which the expert is drawing his or her conclusions as to the background information to be admitted.

7.5 Preliminary hearings as discovery tools - Because depositions are not allowed in Michigan in criminal cases, counsel should take advantage of every instance where a preliminary hearing is available, and use these hearings both for their substantive purpose, as well as to obtain sworn testimony.  For example, counsel should question the arresting officer in great detail about the driving that was observed at the implied consent hearing where there has been a refusal of a chemical test, or at the preliminary examination where the matter is a felony.  Where preliminary hearings do not apply, much the same type of evidence can be obtained at an evidentiary hearing, and these should be scheduled when it appears that the case will be proceeding to trial

 Counsel should also question the arresting officer at length regarding the preliminary breath test, the field sobriety tests, as well as the manner in which the chemical intoxication evidence was obtained.  These facts are all fair game because they address the issue of probable cause to arrest, a constitutional question that is nearly always at issue.  Transcripts of these hearings should always be ordered, and used at trial for cross-examination purposes when the witness testified differently.
   
7.6 Misdemeanor discovery - There is also some dispute as to whether or not the Court Rules apply in misdemeanor cases, and whether or not reciprocal discovery is required.  In addressing these issues, the Supreme Court expressly overruled People v. Sheldon in Administrative Order 1999-3 and held that MCR 6.201 (reciprocal discovery) did not apply to Misdemeanors.  However, since the Court of Appeals only ruled on the issue of whether MCR 6.201 applied in Misdemeanors, the Supreme Court Order only mentions the court rule and does not address the statute MCLA 767.94a.  MCR 6.201 also specifically sets forth was discovery is prohibited.  The continuing obligation to provide discovery is set forth in sub-rules (H) and (I), and is modeled after the similar provisions set forth in the civil rules.

7.7 Discovery of scientific tests

7.7.1  Generally

7.7.2  Sanction for not furnishing report
7.7.3  Independent analysis

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CHAPTER EIGHT - ADMINISTRATIVE HEARINGS / IMPLIED CONSENT


8.0 The implied consent law - a chemical intoxication test shall be administered at the request of a peace officer having reasonable grounds to believe the person has committed a alcohol related traffic offense.  MCLA §257.625a(6)(d).  Thus, a person who drives a car in the State of Michigan "impliedly consents" to have his or her breath blood or urine tested upon the appropriately informed request of a peace officer.  A refusal to comply with an appropriate request will result in a suspension of the driver's operating privilege for a period of six months, and six points are added to the driver's record.  The driver so charged does have a right to request an appeal hearing of the refusal determination within 14 days of his or her arrest.  If the appeal is granted, then no sanctions are applied.

8.1 The four contestable issues at an implied consent appeal -  MCLA§ A 257.625f limits the issues appealable at a hearing only to the following: (a) whether the peace officer had reasonable grounds to believe that the driver committed a crime described in MCLA § 257.625c(1), (b) whether your client was placed under arrest for a crime described in MCLA 257.625c(1), (c) if your client refused to submit to a chemical test upon the request of the officer, whether the refusal was reasonable.(d) whether your client was advised of his or her rights under MCL 257.625a.

8.2 Defenses to the implied consent determination - if the stop or arrest are unlawful, then these facts can be used to win the appeal.  Additionally, if the client requested to speak with an attorney, but was denied such request, then the refusal may have been reasonable. The leading case in Michigan providing for a limited right to seek counsel prior to the administration of an alcohol test is Hall v. Secretary of State, 60 Mich. App. 431,  231 N. W.2d 396 (1975).   Here, Appellant Hall argued at the License Appeal Board, and at the de novo hearing in the circuit court, that he had reasonably refused to submit to the Breathalyzer test, in part because he had been deprived of the opportunity to seek counsel prior to his refusal.  According to the Michigan Court of Appeals, the police testimony indicated that the refusal was arbitrarily based on a department policy to refuse prisoners a telephone call unless they signed a booking card.  After this requirement became "inoperative", Hall was allowed to call his wife.  Based on this testimony the court concluded that the department policy "appears to be coercive rather than an attempt to expedite the test". Id. at Mich. App. 436.  See also City of Ann Arbor vs McCleary __________(march 1998), which held that it was the right to make a telephone call, not the right to privacy, that Hall protects.  Id at _____. 

 If the client asserts that he or she was never read the chemical test rights as set forth in MCLA § 257.625a(6)(b), then it might be useful to have the client sit for a polygraph examination. See e.g., People v McKinney, 137 Mich App 110 (1984). The results of the polygraph are admissible at evidentiary hearings, and presumably therefore, would be admissible at the DLAD appeal hearing. This contention is based on the fact that the administrative rules provide that a hearing officer shall follow the rules of evidence as applied in circuit court so far as is practicable.  Admin R. 257.310(4).

8.3 Preparing for the implied consent hearing - because the implied consent hearing is likely to be conducted very early on in the proceedings, proper representation requires a thorough interview of client to determine which of the above issues might be contested.  This interview must be detailed because it is quite possible that the practitioner will not have received the police report prior to the hearing.  Not having discovery is not usually a valid basis to seek an adjournment of the hearing however. See Admin R 257.307.

8.4 Using the implied consent hearing as a discovery tool - because this hearing is usually the first opportunity to cross-examine the arresting officer regarding all aspects of the case, including the stop, field sobriety and other observations, and the arrest.  This opportunity should never be waived.  Utilizing this type of sworn testimony can be crucial during cross-examination of the arresting officer at the trial.

8.5 Appeals from the implied consent hearing - if the appeal is not granted after a hearing, the petitioner may make a motion for reconsideration.  This motion must be filed within 21 days of the decision of the hearing officer, and must be based on either newly discovered material evidence, or a mistake of law or fact.  The petitioner may also  appeal the determination of the hearing officer to the circuit court.  Such appeals may be based on hardship (but only for a first appeal, MCLA 257.319(17), or they may be based on a legal issue.  Hardship appeals require 20 days notice to the Secretary of State, while legal appeals require 50 days notice.  MCLA § 257.323(2), MSA § 9.2023(2)
  
8.6 Driver license restoration hearings - after the client's license is revoked, he or she may petition the Secretary of State to return the driving privilege, but such petition can only be made after the statutorily imposed time limit has expired.  Thus, once the license is revoked, there is absolutely no due process that may be utilized by the driver to attempt to regain his or her driving privilege.  He or she must simply wait out the revocation.  Once the hearing is scheduled, it will be conducted pursuant to Admin R. 257.313 (rule 13).  Rule 13 indicates that the petitioner must rebut the presumption that he or she is a habitual offender of the drunk driving laws and/or that he or she is therefore an alcoholic.  Rule 13 further requires that we present clear and convincing evidence (a very high burden of proof) that this is no longer a valid presumption, or that appropriate steps have been taken by the petitioner to address the presumption.

8.7 Preparing for the driver license restoration hearing - there are essentially three primary pieces of evidence that must be submitted at the hearing in order to rebut the presumptions se forth in rule 13.  The foundation of this evidence will a substance abuse evaluation, and these are discussed at length in chapter 3. The evaluation should contain the opinion of the therapist that the petitioner's substance abuse problem is under control and likely to remain under control, and that the likelihood for repeat behavior is low or minimal. While it will be difficult to obtain an evaluation that contains the exact language of the Rule, the practitioner should consider attempting to obtain an evaluation that at a minimum forcefully states an opinion that the petitioner is at low or minimal risk for relapse, and incorporates as many as possible of the other rule 13 standards.  If the therapist is not experienced with preparing this type of substance abuse evaluation, then the practitioner might consider giving a copy of rule 13 to the therapist prior to having them prepare the petitioner's evaluation. The substance abuse evaluation can be no more than 3 months old.

 The second piece of evidence will be letters of reference prepared on the petitioner's behalf.  These letters should all be written by close friends, family members and/or work associates, and should be signed and dated and current within three months of submission.  They should also be in a format that includes all of the following information:

 • How long have you know the petitioner?
 • What is your relationship to the petitioner?
 • How often do you see the petitioner?
 • How often do you see or did you see the petitioner drink or use drugs?
 • How much did you/do you see the petitioner drink or consume at the time?
 • When was the last time you saw the petitioner use alcohol or drugs?
 • In what activities does the petitioner participate involving alcohol?
 • What is your knowledge of the petitioner's involvement in treatment or support groups?
 • Include other information you believe is important.

 The third piece of evidence will be live witness testimony. In this regard, preparation is key, and so it will be important meet personally with the client to prepare his or her testimony. The petitioner should be prepared to corroborate the statements made in the testimonial letters, as well those made in the substance abuse evaluation.  This includes a statement that he or she has maintained complete abstinence from alcohol for either six or twelve months, depending on the circumstances.  Admin R. 257.313(1)(b).  Additionally, the petitioner should be prepared to demonstrate and prove participation, past and current, with a structured support group, and this usually means Alcoholics Anonymous. Admin R. 257.313(1)(g)(iii).  The petitioner may also submit "other relevant evidence". Admin R. 257.313(1)(g)(iv).

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CHAPTER NINE - PRETRIAL MOTIONS

9.0 General principles of criminal defense motion practice - a motion is simply a written request for the Court to order something that cannot otherwise be obtained without the Court's order.  The goal of motion practice in a criminal case should always be to obtain a dismissal, further a particular defense, or further preparation for trial.  A motion should never be filed for frivolous or vexatious reasons, but instead, motion practice should only be undertaken as part of a larger scheme or defense. 

9.1 Form of motions - a pretrial motion must be in writing, and state in particularity the grounds and authority on which it is based, and well as the relief sought.  It must also be signed by the party or attorney.  MCR 2.119(A)(1).  If the motion presents an issue of law, it must be accompanied by a memorandum or brief citing the authority on which it is based.  The memorandum or brief cannot be more than 20 pages, double spaced and exclusive of exhibits, and a copy of the motion and brief or memorandum must be served on the prosecuting attorney, and copy marked "judge's copy" provided to the presiding Judge. MCR 2.119(A)(2).  Affidavits in support must be based on personal knowledge, and show that the affiant can testify competently as to the facts set forth within it.  MCR 2.119(B).

9.2 Types of motions in the drunk driving case - motion practice in a drunk driving case is not particularly different from what would be expected in any other type of criminal matter.  Thus, motions might address issues of evidence, the propriety of the stop and arrest, bond motions, motions requesting assistance with investigative or expert expenses, for evidentiary hearings, to suppress statements of the defendant, dismissal of the charges, adjournments, to compel discovery, for attorney conducted voir dire, and for special jury instructions.  If the practitioner can think of a valid, good faith basis upon which to file a motion, the motion should be filed.

9.2.1 Stop of the vehicle - Most drunk driving case begin with a traffic stop.  In this regard, the practitioner should evaluate whether or not the stop was informed by a reasonable and articulable suspicion that criminal activity is afoot, or by the witnessing of a violation of the traffic code. Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief. Delaware v. Prouse, 440 US 648, 653 (1979).  The reasonableness of the stop is evaluated under a two prong test set forth in Terry v. Ohio, 392 US 1 (1968), by asking first, "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 20.

9.2.2 Vehicle not in Motion - issues here will either be whether or not the vehicle is being operated.  For a discussion in this regard, see chapter 1.  If there is insufficient evidence of operation, then a motion to dismiss should be brought.  Sometimes however, the preliminary issue is not whether or not the prosecutor can prove beyond a reasonable doubt that the defendant was driving, but rather, whether or not the police had a lawful basis to approach and search the vehicle occupied by the defendant.  This issue might arise when the defendant is found to be asleep in his or her vehicle, and the police open the door in order to awaken the driver.  This essentially is a search of the vehicle, and must be based on a lawful purpose.  A citizen has absolutely no duty to open his car door for the police or even acknowledge their presence.  See People v Davis, 442 Mich 1; 497 NW2d 910 (1993) (noting that there were many possible explanations for the defendant's decision not to open her motel door for the police, including that she was "simply . . . unwilling to open the door.").

 While the Michigan courts have not addressed the specific factual case of a citizen sleeping in his car, other jurisdictions have held that sleeping in a car alone does not demonstrate probable cause.  For instance, in Ohio v Cooper, 120 Ohio App3d 416, the court held that while the officer had reason to investigate, there was no probable cause for the officer to arrest the defendant even when he observed the defendant sleeping in his car in a private parking lot at three o'clock in the morning and detected and odor of alcohol.  The officer in Cooper did not have to open the car door to detect the odor of alcohol.  In the instant case, the officers did not allegedly detect the odor of alcohol until after they had already violated Defendant's rights by opening his car door. Therefore, the officers had less reason to suspect Defendant than the officers in the Cooper case.
 
 In cases in which the courts have found probable cause based on the citizen sleeping in his car, there are invariably additional facts not present in the instant case that justified the arrest.  For instance, in Wisconsin v Peterson, 116 Wis.2d 696; 343 NW2d 827 (1983), the court held that there was probable cause to arrest the defendant who was found asleep in his car with the motor running.  However, key to that court's decision was the fact that a citizen had witnessed "an intoxicated person . . . driving around the trailer court."  The complainant in this case did not witness Defendant driving his car, but specifically informed the police only that he considered Defendant's car to be "suspicious".  Likewise, in Stewart v Alaska, 763 P.2d 515 (1988), the court held that the officer was justified in opening the car door to check on a man who was "apparently unconscious" with the car running.  However, in that case, the officer had observed the exact same citizen, one hour earlier, "slumped over the wheel of his car approximately twenty-one miles further away."  Officer Hoffman had made no similar previous contact with Defendant in this case and therefore did not have the additional facts necessary to justify his search.
 
 In response to this argument, the prosecuting attorney is likely to raise "the community caretaker exception" to the warrant requirement.  See e.g., City of Troy vs. Ohlinger 438 Mich. 477 (1991).  For an excellent out of State case discussing when the community caretaker exception does not apply, see Washington vs. Cerrillo ___Wash. App ___(2002).

9.3 Validity of the arrest - the validity of the arrest is rarely an issue in the typical drunk driving case because it will be based on possibly bad driving, many observations of the arresting officer, including odor of intoxicants and failure to properly perform field sobriety tasks, and most often the arrest decision will also be informed by the results of a preliminary breath test (PBT). In fact, an arrest decision can be based entirely on the results of a PBT. When based on the PBT however as a matter of law the arresting officer's decision to require a driver to submit to a PBT must be informed by reasonable cause to believe (a) that the driver had been operating a vehicle, and (b) that the consumption of intoxicating liquor may have affected his ability to operate his/her vehicle. People v. Bloyd, 416 Mich. 538, 554; 331 NW2d 447 (1984).  indicates that reasonable cause is something less than probable cause, but substantially more that a reasonable suspicion.  Id. at 548. A recent case discussing the reasonable cause standard is People vs. Rizzo, 243 Mich. App. 151 (2000). Results of preliminary chemical breath analysis are admissible in the prosecution of crimes enumerated in MCLA 257.625c(1) to assist the court in determining a challenge to the validity of an arrest.  MCLA 257.625a(2)(b); MSA 9.2325(1)(2)(b).

 However, there are cases when some or even all of this evidence is missing, such as when the driver simply refuses all the tests requested, or where there is an accident.  In these cases, the propriety of the arrest should always be reviewed and evaluated.  A warrantless arrest is lawful if the facts before the police at the time of the arrest would warrant a reasonable belief that the person has committed a felony.  MCLA 764.15; MSA 28.874; People v Kuntze, 371 Mich 419 (1963).  The arresting officer must actually "believe," rather than merely "suspect," that the person arrested has committed the felony.  People v Major, 34 Mich App 405 (1971).  The facts which form the basis of the belief must be present at the moment of arrest.  People v Oliver, 417 Mich 366 (1983).  When there is an accident, the officer may arrest on the basis of the "accident exception", which is found at MCLA § 257.625(1)(a).  In evaluating the arrest, the practitioner should also consider the and 93 day misdemeanor exception which is found at MCLA § ___________.
 
9.4 Suppression of Evidence - Based on the case of People vs. Wujkowski, 230 Mich App. 181 (1998) it appears that the trend in Michigan is for courts to conclude that proof of a failure to strictly comply with the administrative rules and/or testing protocol goes to "weight' rather than "admissibility".  However, because arguing weight is tantamount to arguing reasonable doubt, the practitioner should never stipulate to the admission of a chemical test, and wherever possible, should seek suppression of the chemical tests, and request an evidentiary hearing pursuant to People vs. Krulikowski, 60 Mich. App. 28, 230 NW 2d 290 (1975) and MCLA 764.15 and MCLA 257.625 a(I).

9.4.1 Suppression of breath test for a 15 minute rule violation - The Rules governing the administration and admissibility of the DataMaster test are found at AC, R325.2655.  Those Rules read in pertinent part:

 (1)(e)  A person may be administered a breath alcohol analysis on an evidential breath alcohol test instrument only after being observed for 15 minutes by the operator before collection of the breath sample, during which period the person shall not have smoked, regurgitated, or placed anything in his/her mouth, except for the mouthpiece associated with the performance of the test.
 
 The language of the Administrative Rule is clear, and it is stated in mandatory language (only after), meaning that the observation period must be followed in order to have a valid and admissible test result.  In theory, the administrative rules were promulgated to ensure the integrity of the breath testing.  In the journal article, K. M. Dubowski, Quality Assurance in Breath Alcohol Analysis, 18 Journal of Analytical Toxicology 306-311 (1994), Dr. Dubowski indicates that there are four necessary scientific safeguards for breath testing; (1) a pretest deprivation-observation period of at least 15 minutes (2) a blank test, (3) analysis of at least two separate consecutive breath samples, and (4) an appropriate control test to accompany each subject test. [emphasis supplied].

 This position is supported by the case of People vs. Boughner, 209 Mich. App. 397 (1995) where a 35 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.

9.5 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.

9.6 Use of motions in limine

9.6.1  Motions in limine are most common and must successful
9.6.2  Purpose of motions in limine

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 CHAPTER TEN -  TRIAL

10.0 Burden of Proof

10.0.1  Definition of burden of proof and use of alternative explanations
10.0.2  State's burden on chemical evidence
10.0.3  Presumptions and inferences
10.0.4  Who gets to benefit from inferences

10.1 Voir dire

10.1.1 Purpose of voir dire - Ostensibly at least, the purpose of voir dire is to discover grounds necessary to the proper exercise of challenges for cause and also for gaining knowledge to facilitate an intelligent exercise of peremptory challenges.

 There is of course a secondary purpose, and this is to communicate your theory of the case to the jury.  This secondary goal is crucial to the success of the drunk driving trial.  Consequently, the practitioner should craft voir dire questions that will both uncover juror bias, but also communicate to the jury the defense attorney's role, the prosecutor's role, and the prosecutor's burden of proof.  What the law does and perhaps more importantly, does not say, should also be communicate to the jury during voir dire, and the defense attorney should endeavor to communicate the perceived limitations in the evidence to be presented to them by the prosecutor.  Voir dire questions should almost never capable of being answered with single work.  Instead, the goal should be to get jurors to talk, to open up and express themselves.

 Voir dire is governed by MCR 6.412.  Judges have wide latitude in the control of voir dire, may limit it as they see fit, or not allow voir dire at all.  See section _____.  Jury selection is really a process of de-selection.  In the single defendant misdemeanor case the defendant will have only three peremptory challenges, and with the single defendant felony case, only five.  Thus, squandering them is the surest way to lose the case.  Voir dire requires a type of preparation and skill that is different from those exercised at any other time in the case.  However, doing it well is as critical as anything else the lawyer will do for his or her client.  While it may be said that a case has never been won during jury voir dire, it is probably true that many cases have been lost during voir dire.

10.1.2 Obtaining a pro-defense jury - While the judge may instruct the jury that the purpose of voir dire is to select a fair and impartial jury, the parties (and frankly most jurors) understand that the goal is to obtain a jury that is predisposed to return a verdict favorable to their side.  In the defense case, this of course means a not guilty verdict.  As with all other aspects of trial, this requires a great deal of  preparation.

 Most jurisdictions will allow attorneys to review the questionnaires submitted by the individual jurors in advance of jury selection.  Defense attorneys should never miss this opportunity to begin learning about the prospective jurors.  A great deal of valuable information is contained in the questionnaires, such as occupation of the juror and that of his or her spouse.  Prior convictions, and involvement in alcohol related accidents is also included in the standard questionnaire form.  Answers to these questions can and should be followed up on during voir dire.A pro-defense jury will result only from careful preparation combined with probing questions that address all aspects of the client's case.

10.1.2.1 Crafting questions to reveal inherent attitudes and biases of prospective jurors - jurors come to court with any number of biases, and this is particularly true of the drunk driving case.  Lawyers can probably do nothing to change these attitudes, so it is important to try to learn of them during the voir dire process. For example, it is always surprising to learn how many perspective jurors seem to believe that the simple act of drinking alcohol and driving is unlawful.  Thus, the practitioner should endeavor to craft voir dire questions that will bring out the prospective jurors attitudes toward alcohol, and perhaps more specifically, to the act of drinking and driving.  It is also useful to craft questions that address the prospective juror's opinions about the right to counsel and the right to present a defense.  Thus, a juror might be asked if they have ever been wrongly accused of something, or more specifically, what they would do if they were. Jurors should also be questioned about their attitudes toward a criminal defendant who does not take the stand in his or her behalf.

  If there is chemical intoxication evidence, then juror should be asked about their faith in science, and about the inherent limitations of all measuring devices.  It is also useful to question the jurors about how two people can observe the same thing, and come to two different conclusions.  This question might act as a springboard to ask additional questions to individual jurors about how they might feel and act if their opinion, after listening to all the testimony, differed from the arresting officers. 

  Additional questions should also be crafted that will help to explain to the jurors their roles as the fact finders.  This includes of course determining the weight to be given to evidence, specifically the chemical evidence.  Jurors should also be told, through voir dire, that just because the judge has allowed the chemical test result into evidence, that does not mean he or she believes that it is reliable.

10.1.2.2 Looking at demographics and physical characteristics, including life experiences - Perhaps the juror is a non-drinker, an alcoholic, or comes from an abusive family where alcohol was the culprit.  Perhaps the juror has been affected adversely in some other way by alcohol.  Unless the defense attorney learns of these life experiences, he or she can never excuse them, either peremptorily or for cause.  While you can't come right out and ask how a juror will vote (this would be an impermissible commitment question), well crafted voir dire questions ought to revel how a juror is likely to vote.  Perhaps the most important goal of voir dire is toe gather information about what life experiences the jurors have had, and then to determine how these experiences might effect their view of the specific facts of the case. 

  Demographics and physical characteristics are also important to learn, but are probably less reliable than specific life experiences in determining how a juror might vote.  Still, they are useful, and might otherwise serve as a starting point for further questioning.  For example, learning someone's occupation will help you to understand a great deal about someone without knowing anything more.  But the process of voir dire is precisely to do just that, learn more.  If a juror is a social worker, it be helpful to know what specialized training he or she has had, and whether or not they have any specialized knowledge relative to drugs and alcohol.  Simply assuming that a social worker is liberal, and therefore will make a good defense juror, is insufficient.

10.1.2.3 Identifying leaders - Again, the first step here is to look at the juror's occupation.  Certain occupations are either leadership positions or require leadership skills.  Such occupations might include business owners, or business executives.  If a juror is suspected of being a leader, it may be helpful to learn more about their day to day activities, and how many persons they supervise.  Even if the person is not a leader in the strictest sense, they still might become a leader if they have specialized knowledge of the offense, as with the social worker who conducts group therapy for alcoholics, or the several time drunk driving defendant.  People with a great deal of charisma, or who are particularly well spoken might also end up leading jury deliberations.  The same is true of celebrities, or persons hoping to become celebrities.  Thus, it might be helpful to know what a persons spare time activities are. It is also helpful to come right out and ask the simple question, i.e., whether or not the juror views him or herself as a leader.  Identification of leaders is important because these jurors will exert an inordinate amount of influence over the deliberations and eventual verdict.

10.1.2.4 Getting assurances from the jurors - Certain types of commitment questions are not allowed, and even when they are, such questions should be asked with great deftness.  Jurors are likely to be offended if you ask them to commit to a verdict before they have heard the evidence.  While it may seem innocent enough to ask "Mr. Jones, if the prosecutor fails to prove to you that my client was intoxicated, will you agree to find him not guilty", the question can later alienate this juror when they find out how strong the prosecutor's evidence seems to be.  In this case, the defense attorney will have lost significant credibility.

  On the other hand, it is valuable to ask the jurors to commit to their roles as fact finders.  In other words, remind the jurors through voir dire that they are the sole finders of fact and that this is their job alone.  Ask the jurors to commit to hold the prosecutor to his or her high burden of proof, and to carefully evaluate and weigh the evidence, rather than simply assume its accuracy because it has been admitted by the judge.

10.1.3 How to conduct yourself during the voir dire process - The guiding principle here must be to sufficiently ingratiate yourself with the jury that they no longer associate you with the crime your client is alleged to have committed, maybe even to the point where your professionalism and affably reflect positively on your client.  Be careful not to come across as a sycophant, or as overly self-serving in this regard.  Be genuine, and of course, smile frequently.  If you have the gift of humor, never miss an opportunity to make the jury laugh.

 Self effacement or deprecation often works to immediately break the tension, and show you in a more personal light.  It is helpful to sincerely welcome them to the court room, and to express how important you believe they are.  Take charge of the court room.  Don't swagger, but do convey a presence of mind that shows you are in command.  Introduce yourself and your client to the jury, and anyone else in the court room who has not been introduced.  Make the jurors feel as if you are their host.  Because the act of being publicly asked personal questions is inherently an uncomfortable process, the practitioner must seek ways to make the jurors feel relaxed and more at ease.  It is critical that you convey to the jury how important they are to you, and how  much you and your client appreciate their being part of the process.

10.2 Opening statement - Use the opening statement as your first opportunity to influence the jury, and explain to them what you want the jurors to do.  Now that voir dire has been completed, this is the second opportunity to persuade the jury.  This opportunity should be used to first educate the jury as to the burden of proof and how it applies to your client's case.  The opening statement should be based on what you believe the evidence will show, and should not include any form of argument.  The most persuasive opening statements are presented in the form of a story, and should therefore include a beginning, a middle, and an end.. Think in terms of using the opening statement to tell your client's story.  To do so, first decide what your client's case (his or her story) is about, and what you want the jurors to think and do about it.  Obviously, this should be part of a bigger picture, which is what your client's defense.  The story should then be cultivated so that it tacitly expresses this defense.. To the extent possible, the opening statement should be used as an attempt to seize the moral high ground.

10.2.1  Case law on opening statements
10.2.2  A sample opening statement
10.2.3  What not to do in an opening statement

10.3 Closing argument - Now is the time to explain to the jury, in form of an argument, why they should, or even must, return a verdict of not guilty.  This is also the time to reiterate what a reasonable doubt is.  Whenever possible, closing arguments should be made in the language of the jury instructions.  This helps to establish credibility with the jury because it helps put you on par with the person who has the most creditably with every jury, that is of course the Judge.

 How the argument is formulated will depend on what your defense is, and how well this defense was expressed by the testimony.  The best closing arguments are the "see I told you so" variety.   While these words ought never be uttered, the essential meaning should be expressed, because what you're essentially doing is conveying to the jury that you were honest with them during the opening statements, and therefore, that you are credible.  These arguments should be catered as much as possible to the individual juror.  For example, for the undecided juror the goal should be to make them understand why they should return a not guilty verdict based on the evidence or lack of evidence.  For the adverse juror the goal is to make them at least keep an open mind, and to understand the plausibility of your arguments, and with the favorable juror the goal of closing argument is to ensure that they won't back down during deliberations, even if the going gets tough. 
 During closing arguments, the central theme of the case should be continually underlined without being repetitive.  The defense attorney should endeavor to reduce this theme to as few words as possible.  Consider the brilliant "if it doesn't fit, you must acquit".  It is important to express emotions during closing, but don't yell at the jurors.  Don't fight every battle, and wherever possible turn the prosecutor's position or arguments to your own use.   On the other hand, never engage in battles that can only hurt you.  Don't draw conclusions for the jury as if they are irrefutable, because this only serves to belittle the jury.  Always use plain language and avoid legalese.

10.3.1  Case law on closing statements
10.3.2  Reading law to jury on closing statement
10.3.3  Purpose and scope of closing statement
10.3.4  Appeal to bias, passion, prejudice or sympathy
10.3.5  The community will benefit by convicting the defendant

10.4 Jury instructions

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CHAPTER ELEVEN - THE ARRESTING OFFICER -  FIELD EVIDENCE

11.0.0 Observation Testimony: the three phases of the officer's investigation - The successful defense of the drunk driving case will rise and fall on the strength of the arresting officer's testimony, and the defense attorney's ability to successfully cross-examine him or her.  It is helpful to think of the drunk driving case as three separate phases, and to prepare cross-examination to follow these phases.  It is also helpful to carefully consider the strength of the evidence supporting each of these phases when evaluating your client's case.

11.0.1 Phase One - initial observation of vehicle in motion/observation of the stop - The officer's investigation begins when the officer first notices the vehicle and/or the driver.  If the initial observation discloses vile maneuvers or human behaviors that may be associated with alcohol influence, the officer may develop an initial suspicion that the driver is operating under the influence.  Well trained officers will look for signs of impairment such as slowed reactions, increased risk taking and poor coordination.

 In this context the officer is looking for certain driving clues such as drifting during a turn or curve in the road, turning with a wide radius, weaving, driving into opposing or crossing traffic, flowing too closely, and slow response to traffic signals.  These observations correlate to an impaired ability to divide one's attention among various tasks, an ability that is linked to safe driving. 

 Once the stop decision has been made, the officer will be looking for additional evidence of intoxication.  This includes the stop sequence.  Here the officer is looking for how quickly the driver responds to the signal to stop, and the manner in which the driver brings the vehicle to the stop.  For example, the officer will be looking to see if the driver pulls sharply onto the grass (front wheels on grass shoulder), if the vehicle abruptly veers onto the shoulder without signaling, or makes and abrupt, hard stop.  Also, the officer will be looking to see of the driver parks at an angle to the roadway.  During cross-examination it is important to bring out what your client does correctly, and if relevant, the weather, traffic and road surface conditions.

11.0.2 Phase Two - face-to-face observation and interview/observation of the exit -  The next part of the officer's investigation will be the observations of the exit from the vehicle, and observations made during the initial personal contact.  This phase of the officer's investigation begins with the face-to-face observation and interview of the driver while still in the vehicle.  The officer will be looking for additional signs of impairment such as flushed face, bloodshot glassy eyes, odor of intoxicants.  The officer will also be looking for slurred speech.  Additionally, the officer will be looking for general signs of confusion, such as lower the rear window first, then the front window part way, or a failure to place the vehicle's transmission into park.

 During the interview, the officer will be looking for the manner in which the requested documents are produced.  Are the wrong documents provided, does the driver fumble through the wallet, purse or car looking for the documents.  Are the documents dropped when being handed to the officer.  Does the driver forget to resume looking for the documents when distracting questions are asked, such as where the driver is coming from or going to?

 The exit from the vehicle may provide additional clues to intoxication.  Does the driver climb out of the vehicle, use the vehicle for balance, or stumble or stagger getting out from the vehicle.  What is the driver's gait like when walking toward the rear of the vehicle.  Does the driver become argumentative, or apologetic when asked to exit the vehicle?  As with the initial phase of the officer's investigation, it is important during cross-examination it is important to bring out what your client does correctly, and if relevant, the weather, traffic and road surface conditions.

11.0.3 Phase Three - field Sobriety tests / preliminary breath tests - With the advent of the Breathalyzer and its offspring, the DataMaster, Field Sobriety Tests ("FSTs") have taken a back seat in Drunk Driving Prosecution.  However, since defense counsel is ever vigilant in finding ways to have the DataMaster test results excluded, FSTs have come back in vogue with prosecutors who are attempting to salvage their cases rather than offer a plea to a lesser offense.  Much of that effort has been in attempts to equate performance on the FSTs to a blood-alcohol number.  Because prosecutors are becoming increasingly bold in their attempts to equate FST performance with a blood-alcohol percentage, defense counsel must be knowledgeable with both the procedures for performing the FSTs and the "science" behind them.

 Prosecutors are also making a greater effort to either find a way for the court to allow the preliminary breath test (PBT) into evidence, or at least to allow into evidence the fact that the test was given.  Defense counsel must sufficiently understand the law relative to PBT results to guard against this.
 
11.1.0 The "science" behind the standardized tests - One of the biggest problems for defense counsel in dealing with FSTs is that most of the time, they are not videotaped.  Thus, there is no way to objectively challenge them.  Unfortunately, most officers think the tests are merely something they have to perform before they can require the PBT.

 On the other hand, the biggest problem facing the prosecuting is their subjectiveness and therefore the non-standard manner in which the tests are administered.  In effort to increase the perceived reliability of the arrest decisions made after FST's are administered, and also to increase the impact of this testimony, there is a move toward standardization of the tests.  Studies have been done relative to the reliability of these standardized tests, and officers often try to testify as to the very high reliability factors that have been assigned to them.  In this way, prosecutors are now attempting to use the results of the FSTs as further proof of a defendant's unlawful blood alcohol level.

11.1.1 The NHTSA study - n the late 1970's the National Highway Transportation Safety Administration (NHTSA) commissioned a study by the Southern California Research Institute (SCRI) to determine which FSTs were best out of the dozens being used around the country.  SCRI narrowed the list to six tests that it thought were the most feasible.  It then recruited ten police officers to observe a couple hundred people who were given varying amounts of alcohol in a double-blind study (neither the officers nor the subjects knew how much alcohol they had been given).  The officers' only task was to determine whether each subject had a blood-alcohol level greater than .10 percent.  That study resulted in NHTSA recommending use of the three tests considered standard today:  (1) the horizontal gaze nystagmus; (2) the walk and turn; and (3) the one-legged stand.

 Although that first NHTSA study recommended that police departments begin to use only the three standard tests, NHTSA itself admitted that the error rate of the officers in the study was 47%!  In other words, the officers ability to detect which subjects had blood-alcohol contents greater than .10 percent was almost no better than flipping a coin.

 Because of this enormous error rate, NHTSA commissioned SCRI to do another study in 1981.  In that study, NHTSA's goal was to standardize the procedures for each test to see if the error rate could be lessened.  According to NHTSA, standardizing the procedures improved the "success" rate in the laboratory.  NHTSA claims that the laboratory test data found that the HGN by itself was accurate at detecting those whose blood-alcohol level was greater than .10 percent 77% of the time; the walk-and-turn was accurate 68% of the time; and the one-leg stand was accurate 65% of the time.  When using all three of the tests, NHTSA claimed that the officers were correct 82% of the time.

 SCRI then took the tests out of the laboratory and put them into the field. NHTSA concluded that the field test data would not support the laboratory analysis, but it decided the tests were good enough based on the following "favorable trends":  (1) after training on the test battery, officers tended to make more DWI arrests; and (2) trained officers were more accurate in identifying suspects whose BACs are above 0.10.

 Based on this sloppy science, NHTSA hired SCRI to conduct a more in depth field study.  This resulted in a 1983 report that concluded that the HGN was 77% accurate, the walk-and-turn was 68% accurate, and the one-leg stand was 65% accurate.  Amazingly enough, these were the exact same percentages found in the laboratory study in 1981!  However, even SCRI concedes that there are limitations on the data collected in the field study.  For example, in nearly every case, the subject was given a PBT before the arrest decision was made, so the officers' evaluation of the FSTs were likely affected by their knowledge of the subjects' BACs.

 Even more troubling are problems discovered by Dr. Spurgeon Cole, a researcher at Clemson University.  In an article in The Champion, Dr. Cole discusses the "dosing differential" of the subjects in the 1981 NHTSA study.  Nowacyk, R.H., Dr. and Cole, S., Dr., Separating Myth From Fact: A Review of Research on the Field Sobriety Tests (The Champion, August 1995).  The dosing differential is the amount of alcohol given to each subject.  In the 1981 NHTSA study, two-thirds of the subjects were given either a very high amount of alcohol or a very low amount of alcohol (.15 % versus .05%).  Subjects with those amounts of alcohol should have been relatively easy to pick out as either really drunk or really sober.  The officers were only asked to determine whether an individual was above or below .10%, so the error rates should have been much better because two-thirds of the subjects should have been obviously above or obviously below the threshold.  Since the number of people in the easy-to-detect ranges (above .15% or below .05%) went up in the 1981 study compared to the 1977 study, the accuracy rate should have automatically gone up.  Thus, even though the accuracy appeared to improve between the two studies, the increase in accuracy may be entirely explained by the dosing differential.

 Dr. Cole also points out that in both the 1977 and 1981 studies, 80% of the test subjects were between 21 and 34 and nearly 70% were male.  Dr. Cole argues that the study has little use for anyone who is not a male in his twenties.
 
11.1.2 The Clemson Study - Because of his utter contempt for the NHTSA studies, Dr. Cole performed his own study and published his findings.  Nowacyk, R.H., Dr. and Cole, S., Dr., Field Sobriety Tests: Are They Designed For Failure? (Perceptual and Motor Skills, 1994, 79, 99-104).  Dr. Cole's findings are astonishing.

 Dr. Cole videotaped 21 completely sober people performing six FSTs: (1) walk-and-turn; (2) the alphabet; (3) one-leg stand; (4) one-leg stand with head tilted backward, eyes closed and finger touching nose; (5) one-leg stand while counting; and (6) one-leg stand with leg extended outward.  When 14 police officers with a median experience level of 11.7 years were asked to view the tapes, they identified the subjects as too drunk to drive 46% of the time.  All of the officers had completed a state-mandated DUI detection training program and all had field experience in DUI detection.

 The subjects were also given four "normal ability" tests to perform: (1) counting from 1 to 10; (2) reciting one's social security number, driver's license number, or date of birth; (3) reciting one's home address and phone number; and (4) walking in a normal manner, turning around, and walking back to the starting point.  When the officers viewed the video tapes of the normal ability tests, they incorrectly identified subjects as too drunk to drive 15% of the time.

 Dr. Cole concludes from this study that FSTs which require subjects to perform unfamiliar and unpracticed motor sequences puts the subject at an unfair disadvantage.  He advocates studying the relationship between the FSTs and the subjects' actual ability to drive, rather than simply the correlation between the officer's perception and the individual's BAC.  In a nutshell, Dr. Cole believes that the "science" justifying the use of FSTs in court is junk science and needs to be thoroughly reexamined.


11.2.0 Challenging the reliability of the arresting officer's conclusions - As stated earlier in this text, establishing that the prosecutor's evidence is unreliable is tantamount to establishing a reasonable doubt.  However, perhaps the only way to effectively challenge the conclusions of the arresting officer, namely that your client was intoxicated, is to challenge the observations that informed this conclusion.  To do this, the defense attorney must show that the arresting officer is not properly trained, or that he did not following his or her training in administering the field sobriety tests, that is, administered t hem in a non-standardized fashion.  Alternatively, it may be demonstrated to the jury that the officer did not administer the tests under the appropriate conditions, or that there is a reason, either unidentified or ignored, as to why your client may have exhibited signs of intoxication.  These might include fatigue, medication or a medical condition effecting balance and/or memory.

11.2.1 Horizontal Gaze Nystagmus - Of all the FSTs, the Horizontal Gaze Nystagmus poses the most problems for defendants.  First, no defendant can see his own eyes, so he has no idea whether he passed" or not.  Second, even if the stop is being video taped, there is no way to see the defendant's eyes, so the jury cannot make an independent evaluation.  Moreover, most officers are barely trained in how to administer the HGN and at least one study has shown that officers in the field perform the test incorrectly 90% of the time. Booker, End-position Nystagmus as an Indicator of Ethanol Intoxication, 41 Science & Justice 113 (2001).

 In Michigan, the Court of Appeals has ruled that the HGN is admissible without any expert testimony to determine the presence of alcohol (but not the amount) so long as the test was properly performed and the officer was properly qualified to administer it.  People v Berger, 217 Mich App 213, 551 NW2d 421 (1996).  However, courts in other states are starting to look again at HGN and wonder whether it really does meet generally accepted scientific principles.  For a great case with an in-depth examination of how each of the states treat FSTs, see United States v Horn, 185 F Supp 2d 530 (D. Md. 2002).  In fact, one author suggests it may be malpractice not to be fully informed on Horn, which ruled that an officer may not testify as to the results of FSTs as "pass" or "fail" or state that a subject "exhibited a certain number of clues"; may not attempt to predict a specific BAC level; may not try to suggest that the FSTs are scientific tests, but may testify as to his personal subjective opinion about a person's level of intoxication.  A court may take judicial notice of the relationship between HGN and alcohol intoxication, but it must also take judicial notice of many other causes of nystagmus.  If there is a video tape of the stop, a challenge to the HGN is easier because you can observe how the officer performed it, even though you cannot see the subject's eyes. 

 There are a number of mistakes officers make when performing the HGN.  The most common are not taking the correct amount of time, and underestimating the 45 degree angle of onset.  A quick test that you can perform is the 14 X 82 Test.  There must  be a total of 14 passes and they should take a total of at least 82 seconds.  If the officer is done in 30 or 45 seconds, he screwed up.

 As for the angle of onset, the manual states, "Because the 45-degree angle is a key factor in assessing a suspect's degree of alcohol influence, it is important to know how to estimate that angle."  The old manual advised officers to "check yourself monthly with (a template) to be sure that your accuracy is sustained."  It is interesting to note that in the 1981 NHTSA study, officers were deemed proficient in the HGN if they could estimate the 45-degree angle of onset to within 3 degrees using a protractor.  Thus, there could be a 6-degree variation (3 degrees either way), or a whooping 13%, among officers who had just minutes ago been trained in how to estimate the proper angle!  Horn, supra, acknowledged that HGN is not generally accepted among psychologists, primarily for this reason.

 Another common mistake is moving the stimulus up or down at maximum deviation.  If this occurred, the administration of the test is not reliable.  Finally, counsel should be aware that there are numerous causes besides alcohol that cause nystagmus.  In fact, the court in Schultz v State, 106 Md App 145, 664 A2d 60 (1995) found 35 other causes of nystagmus, including drowsiness.

11.2.2 One -legged stand - The instructions for the walk and turn are contained in the NHTSA manuals.  First the officer requires the subject to place his left foot on the line and then place the right foot on the line in front of the left foot, while he reads the instructions and asks if the subject understood the instructions.  The purpose of this portion of the test is "divided attention."  The officer must then demonstrate the test, but only a few steps and the turn.  The officer then tells the person to take 9 heel-to-toe steps, turn on the line, and take 9 heel-to-toe steps back.

 The most common mistake officers make with the walk and turn is not providing a designated straight line to walk.  The manual specifically says, "Walk-and-Turn test requires a designated straight line . . . ."  Moreover, the manual notes, "some people have difficulty with balance even when sober.  The test criteria for Walk-and-Turn is not necessarily valid for suspects 65 years of age or older, persons with injuries to their legs, or persons with inner ear disorders."  The old manual also said, "People . . . over 50 pounds overweight . . . should not be given this test."

11.2.3 Walk-and-turn - The last of the standard FSTs is the one-leg stand.  In this exercise, the subject is instructed  to raise one leg approximately six inches off the ground, keeping it straight with toes pointed, and count out loud for thirty seconds using "one thousand and one, one thousand and two" until told to stop.

 The most common mistakes with the one-leg stand are not providing a smooth, level surface and not providing adequate lighting for the suspect to have a visual frame of reference.  The manual states: "Some people have difficulty with the One-Leg Stand even when sober.  The test criteria for the One-Leg Stand is not necessarily valid for suspects 65 years of age or older, or 50 pounds or more overweight.  Persons with injuries to their legs, or inner ear disorders, may have difficulty with the test."

11.3.0 Pretrial challenges to the field sobriety tests - The fist question is whether to challenge the evidence in a pretrial motion.   While this might be a good tactic where there is a video tape and the practitioner can use it to help the Court see and understand all of the deficiencies, it may not be a wise choice when there is no video tape.  The officer is holding himself out as an expert on intoxication.  That means he can be impeached with all of the various studies to "test the limits of his knowledge." 

 The practitioner can essentially read the Cole studies (or the good parts of the NHTSA studies) into the record by asking him, "Officer, surely you are familiar with the study by Dr. Spurgeon Cole out of Clemson regarding field sobriety tests?"  When he responds that he is not, the practitioner can follow up, "You are not aware that Dr. Cole presented officers with video tapes of completely sober subjects performing the same tests you performed and the 46% of the officers determined the subjects were under the influence despite having BACs of 0.00%?"  This gets the study in without an expert and it makes the officer look like he does not know what he is talking about.  By impeaching the officer with the NHTSA studies, his own handbook, and the other independent studies, it is likely that the practitioner will have more success with getting the jury to return the not guilty verdict.

11.3.1 The Davis/Frye challenge - Depending upon the circumstances, the practitioner may want to file a pretrial challenge to the FSTs.  It is extremely unlikely that the judge will not let the officer testify as to his observations, but the Court may be persuaded to rule that he may not discuss the FSTs in terms of "tests" "pass" or "fail."  The Court may also order that the officer may not attempt to equate the tests with a BAC level above .10 or from talking about the "predictive value" of the tests.   

 In Michigan, such pretrial motions regarding the admissibility of expert testimony will be governed by the "Davis-Frye" test, which comes from two cases: People v Davis, 343 Mich 348, 72 NW2d 269 (1955), and Frye v United States, 54 App DC 46, 293 F 1013 (1923).  The test holds that expert opinion based on a scientific technique is admissible only if it is shown that the technique is "generally accepted" as reliable within the disinterested and impartial scientific community. In People v Beckley, 434 Mich 691, 719, 456 NW2d 391 (1990), the Michigan Supreme Court noted the following about the goals of the Davis-Frye test: "The Davis-Frye test seeks to ensure that the jury is the ultimate fact finder and that it will not ‘abandon its responsibility' to decide the critical issues and simply adopt the judgment of the expert [because of] an inability to accurately appraise the validity of the underlying science."

 A successful challenge to the FSTs might require defense counsel to gather a number of studies like those cited above, obtain an expert witness such as Dr. Cole and attempt to convince the court that, despite the fact that courts have been allowing FSTs into evidence for decades, new science, along with NHTSA's own studies show that FSTs are inherently unreliable.  In fact, not only are they unreliable, they are actually designed to make a subject fail. 

 Using the Michigan Supreme Court's own words in Beckley, supra, "The Davis-Frye test seeks to ensure that the jury is the ultimate fact finder and that it will not ‘abandon its responsibility' to decide the critical issues and simply adopt the judgment of the expert [because of] an inability to accurately appraise the validity of the underlying science."  If the jury is to be able to "find the facts," it must not be dazzled by the officer's training and experience into thinking that the FSTs have solid scientific backing.  While the officer may be able to state what he observed, he should not be able to claim that the FSTs have the imprimatur of the scientific community, especially since NHTSA's own studies show the limitations of such tests.

 Moreover, since the Davis-Frye test requires the prosecution to show that the officer was properly trained to administer the tests and that they were correctly administered, if you have video tape, you may be able to demonstrate all of the myriad ways that the officer did not administer the tests correctly, and perhaps have all of the FST evidence excluded.

11.3.2 The Daubert challenge - In 1993, the United States Supreme Court decided Daubert v Merrell Dow Pharms, Inc, 509 US 579 (1993).  This decision changed the way federal courts were required to look at evidence.  Daubert was further refined in Kumho Tire Co v Carmichael, 526 US 137 (1999). Although Michigan has not yet adopted Daubert, the court has continually flirted with its provisions, and it is important to understand the standards set forth in Daubert. 

 Under Daubert, a court must make the following inquires before an expert opinion may be offered into evidence:  (a) whether the opinions offered are testable; (b) whether the methods or principles used to reach the opinions have been subject to peer review evaluation; (c) whether a known error rate can be identified with respect to the methods or principles underlying the opinion, and, finally, (d) whether the opinion rests on methodology that is generally accepted within the relevant scientific or technical community.

 The difference in approach between the Daubert and the Frye-Davis tests has been described as ironic because the Frye-Davis test had been criticized as being too "rigid" because evidence that had not yet gained general acceptance because it was the result of new scientific discovery, even if factually sound and methodologically reliable, would not be admissible. However, under Daubert, general acceptance was only one of the factors to be considered, so it was expected that it would be easier to admit evidence that was the product of new science or technology under Daubert.

 In practice, just the opposite has happened.  The federal courts have exercised their role as gate-keepers in a much more strict fashion than previously.  This irony is explained by the difference in methodology used by the federal trial courts when assessing proposed evidence under Daubert, as opposed to Frye-Davis.

 Under Daubert, the parties and the trial court go through a much more rigorous inspection of the evidence, focusing on the tests used to develop the evidence, the error rates involved, what the treatises and studies in the field have said when evaluating the scientific method used, and then, as in Frey-Davis, whether it has come be generally accepted.  Since this is all done up front,  it tends to expose weaknesses that otherwise would be overlooked under Frye-Davis.  Using the Frey-Davis standard,  all that is needed to admit the evidence is the testimony of one or more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted.

 If FSTs are held up to the Daubert standard, they would face a much stiffer chance of being ruled admissible because the courts would look behind all the studies and their flaws would be exposed.  If you are contemplating a pretrial motion, it is worth a couple of extra paragraphs to address the evidence under the Daubert standard.  Perhaps a court will adopt it as the new standard.

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CHAPTER TWELVE - DEFENSE WITNESSES

12.0 The Sobriety Witness - The arresting officer will testify that in his or her opinion, the defendant was intoxicated.  Often times there are no other competent witnesses as to the condition of the defendant, and if there are such witnesses, the value of their testimony is often compromised with the fact that they were also intoxicated.  Finding sobriety witnesses will require carefully interviewing the client during the first interview.  Sobriety witnesses may include persons with the defendant at any time prior to the arrest, but the ideal witness would be one who was with the defendant at the time of the stop, investigation and arrest.

12.0.1 Limitations and difficulties with lay opinions of sobriety - The sobriety witness's testimony will be limited by the witness's own lack of sobriety,  the perceived lack of experience or expertise in evaluating sobriety, as well as the possibility of the witness's bias.  These issues should be addressed head on in the direct examination in an effort to diminish the effect of the cross examination on these topics by the prosecuting attorney.

12.0.2 Preparing the Sobriety witness for both direct as well as cross-examination - Preparation should be conducted as if it were the dress rehearsal of a play.  Depending on the size of the firm, the witness preparation might also include a mock judge and jury, but should always include a mock prosecutor to conduct sample cross-examination.  In addition to the mechanics of the questioning, the witness should be coached on how to appear persuasive and use convincing words and phrases.  Such preparation should include instruction both in the manner of dress, as well as manner of the delivery of testimony.  This would include instructing the witness not to argue with the prosecuting attorney, and to maintain eye contact with the jury.

12.1.0  The Investigation Witness - Unlike the prosecuting authority, overall case preparation will nearly always be limited by the client's finances and willingness to devote resources to the defense of the case.  It will be necessary therefore to determine what witnesses will best assist in preparing and presenting the best defense for each case.

 There will be omissions or misstatements in the police report relative to the conditions under which the stop and arrest occurred. An investigation witness can be helpful in presenting testimony relative to the roadside conditions where the field evaluations where conducted, and can then present testimony to rebut the arresting officer's testimony that the surface was "reasonably level" or "well lit".  It might also be helpful for such expert to note the volume of traffic in the area of the stop, and the general conditions of the road, at least to the extend that this information might mitigate an officer's testimony that the defendant was observed weaving.  The same is true of many other aspects of the police officer's investigation.

12.2.0 The Police Expert - This type of expert witness can provide testimony relative to police procedures as can also provide a "second" opinion as to the intoxication of the subject.  The biggest potential drawback to an appropriately qualified witness will be the possible perception that his or her testimony is less objective to the arresting officer who was there with your client at the time of the arrest, and this perceived lack of objectivity might also be the result that the expert is being paid for his or her testimony. 

 The appropriate witness will either have a great deal of field experience or teaching experience, or perhaps both.   This experience might help to reduce the perception of bias.

12.3.0 The Intoxication Evidence Expert - use of a witness to attack the "credibility" of the chemical test results is crucial.  Most jurors will accept the "number" simply because it has been admitted into evidence by the Judge, and because it is very easy to understand.  A good intoxication evidence expert can help the jury to understand why their job is not quite that simple.  Such explanation might include an analysis and critique of the maintenance or testing protocol employed in Michigan along with an explanation of the limitations of the breath or blood testing devices.  The most persuasive witness will be able to tie this testimony into some specific facts in your client's case.

12.3.1 The toxicologist as a witness - A toxicologist can testify as to the manner in which a suspect's medical condition may have effected his or her test results, and can also comment on issues like retrograde extrapolation.  A toxicologist may also have a great deal of knowledge relative to the issues that an intoxication evidence expert might address.  A toxicologists training however is most applicable to the manner in which alcohol is absorbed utilized and broken down in the human body, and can speak to such issues as the breath blood ratio and why the 2100/1 ration that a DataMaster assumes may or may not be applicable in your client's case.

12.3.2 Limitations of the toxicologist's testimony - a toxicologist's expertise is typically limited to a certain extent to the physiology of alcohol, and the typical toxicologist does not have a great deal of "hands on" experience with either breath or blood testing devices.  A toxicologist's testimony can also sometimes help support the prosecutor's case, as for example, when the prosecutor asks the expert to testify regarding certain hypothetical situations.  This would include a hypothetical question containing as many of the facts of your client's drinking as are available to the prosecutor, with the expert asked to conclude whether or not there would be impairment with this "hypothetical" amount of alcohol consumption.  A toxicologist might also be asked by the prosecutor to comment on just how much (or how little) alcohol is needed to produce impairment, and specifically ask the toxicologist to explain to the jury how ethanol effects the central nervous system.

12.3.3 Use of a forensic scientist - As distinguished from the toxicologist, a forensic scientist often does not have a doctoral degree, and therefore cannot testify relative to the effects of ethanol, but does have a great deal of practical experience running and or maintaining breath or blood testing devices.  These witnesses are often the most persuasive at helping the jury understand the inherent limitations of the breath or blood testing equipment.

12.4 Determining which experts to use - The determination of which experts to use will depend on the client's budget, but also on the exercise of professional discretion based on the specific facts and circumstances of the case.  If the client has a particular medical problem or condition that could have had a significant impact on the chemical test results, or if significant time passed before the chemical evidence was collected, then a toxicologist might be the better witness.  On the other hand, if your client does not have something specific to him or her that might have effected the test results, then a more general attack on the inherent limitations of the breath or blood testing devices might be more effective.

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