Articles Posted in DUI Defense

For years, a DUI was one of the only convictions you could not expunge in Michigan. Manslaughter, for example, could be expunged, but not DUI. Doesn’t make a lot of sense, does it?

Michigan lawmakers agreed. Effective February 19, 2022, the law was changed to allow for expungement of a first offense DUI. The new law covers most garden variety DUI offenses, including operating while visibly impaired, operating while intoxicated, operating with the presence of a controlled substance, operating with a high BAC (“Superdrunk”), and minor with a BAC (“Zero tolerance”). But more serious DUI offenses cannot be expunged even if they were a first offense. This includes operating a commercial vehicle while intoxicated, operating while intoxicated with a child (“Child endangerment”), operating while intoxicated causing serious impairment of a bodily function, and operating while intoxicated causing death.

Only a first DUI conviction can be expunged. Any second- or third- offense convictions cannot be expunged. And you can only ever have one DUI expunged. So, for example, if you were convicted of DUI, got it expunged, and then picked up another DUI, the second DUI (although treated as a “first” offense for other purposes) cannot be expunged.

Original Case Details

A woman was charged with operating while intoxicated with a child as a passenger and open container in a vehicle after a police officer pulled her over. The main issue in this case is how the police officer came to pull the woman over in the first place. A police officer was informed by dispatch that a 911 call was made regarding a woman who was being loud and obnoxious. The caller stated that the woman appeared to be intoxicated and was yelling at her children. The caller gave the vehicle’s make, model, color, as well as license plate number.

Within 30 minutes of the call, the officer saw a vehicle that matched the description given over the phone. The officer followed the vehicle for a bit and did not observe any illegal activity or driving infractions but pulled the vehicle over anyways. He did this “based strictly on the information” received from the 911 call. The woman was subsequently arrested and charged. She moved for a dismissal stating that the stop was unlawful.

The Current Law on DUI Expungements

Currently, in the state of Michigan, you cannot get a DUI conviction expunged from your criminal record. So, while the title of this article does give a reason for hope, it is still only a step towards the potential of DUI convictions being included in the list of convictions that you or someone you love may be able to finally expunge from a criminal record. Under current Michigan law, there are a few main categories of convictions that are not eligible for expungement, they include:

DUI and other traffic convictions

Original Case Details

Earlier this year, the Michigan State Police suspended its contract with vendor Intoximeters who issues and calibrates their Datamaster machines. A Datamaster is the breath test you take at the police station if you have been arrested on an alcohol-related offense. The Michigan State Police suspended its contract with Intoximeters due to discrepancies in their maintenance records. This resulted in all 203 statewide Datamasters to be pulled from use to be checked and re-calibrated before going back into use. Upon further investigation, Attorney General Dana Nessel has charged two technicians that work with Intoximeters with felonies for their roles in faking repairs and diagnostic testing on the state’s Datamasters. The technicians, who are both in their 50s, are Andrew Clark of Oxford, and David John of Kalamazoo. Clark faces six felony charges while John faces nine felony charges for allegedly creating fake documents made to show that certain testing and repairs were done to the Datamasters when they actually were not serviced. There are two specific Datamasters in question; one at the Beverly Hills Police Department in Oakland County, and the other at the County Sheriff’s Office in Alpena.

Community Fallout

A man who killed a woman and seriously injured her five-year old twins was sentenced to ten years in prison in Kent County Circuit Court in Grand Rapids. This sentence was outside the sentencing guidelines which called for approximately three and a half to seven years in prison for the offense. This sentence was appealed to the Michigan Court of Appeals and in a 2-1 decision they said that the Circuit Court judge abused his discretion in handing down the ten-year sentence. The case now will go back to Circuit Court so the man can be re-sentenced by another judge to either conform to the guidelines or find a legal reason to go above the guidelines.

Original Case Details

The man was driving home back in September of 2017 from a golf outing when the crash happened in Courtland Township, MI. The man was allegedly going 90+ miles an hour where he blew a stop sign and hit another vehicle. The driver of the other vehicle, a 33-year-old woman, was killed and her five-year-old twin boys were critically injured and trapped inside the car. The man then ran from the scene and hid from the police for a period of eight hours before he was apprehended. Both boys suffered severe head injuries. One of the boys now cannot talk or eat by himself and now requires a wheelchair and constant supervision and nursing care. The accident detached his retinas and he is now unable to see. The man pled no contest to OWI causing death, failure to stop at the scene of an accident, and OWI causing serious injury.

The Michigan Court of Appeals has recently ruled that the warrant issued to draw a motorcycle driver’s blood after a fatal accident was invalid and as such, the results are now excluded from evidence. This stems from a case that originated approximately two years ago. A 41-year-old Brooklyn, MI man was riding with his 39-year-old ex-wife when he lost control of the motorcycle and crashed, killing his ex-wife. A warrant was issued to draw his blood, and the results showed his blood alcohol level to be .136, well above the legal limit of .08. He was then charged in Jackson County with one count of operating while intoxicated causing death, reckless driving causing death, and an operating while intoxicated third offense. He faced up to 15 years in prison due to these charges. Neither rider was wearing a helmet at the time.

Police Relied On Defective Warrant

Most often, when police seek a warrant for a blood draw when they suspect someone of driving under the influence, they list factors that lead the officer to believe that the driver was intoxicated while they were driving. Typical factors include slurring of words, inability to walk straight, the smell of alcohol on their breath etc. In this case, the only factors the officer listed were factors like speeding and recklessness. There was no mention of anything related specifically to alcohol or intoxication. Police records show that the officer failed to mention witness accounts that the driver smelled like alcohol and that a homeowner found a bottle of Fireball cinnamon whiskey in his yard near the scene of the crash. A magistrate can only go off of the information provided in a warrant request, and in this case, The Michigan Court of Appeals said that the information on the warrant request simply wasn’t enough to warrant a proper blood draw. The court stated in its opinion, “nothing in the affidavit described how the fatal motorcycle accident occurred or why the circumstances of the accident suggested intoxication,” further stating that, “the affidavit consisted merely of nonspecific, conclusory allegations of speeding and recklessness.”

The Michigan State Police suspended its contract with the vendor who issues and calibrates their Datamaster machines. A Datamaster is the machine you blow into at the police station if you have been arrested for a drunk driving. The Datamaster is the considered the most accurate breath test and is the only breath test that is admissible in court against you. The roadside preliminary breath test (PBT) is only used to give an officer the right to arrest you if the PBT detects intoxication. The PBT is not admissible in court, only the Datamaster or the results of a blood draw are. The state police affirmed that their Datamaster vendor has had “performance-related issues” and, as such, will no longer be working with this vendor. As a result, all 203 Datamasters that are used across the state have been pulled from use. For the time being, the Michigan State Police has put the responsibility on themselves to properly calibrate these machines before they go back into use. They have also recommended police agencies to use blood draws instead of Datamasters to establish the intoxication element of a drunk driving charge.

Who Is Responsible?

The state police said in a statement that they are aggressively investigating the vendor for potential fraud committed by some of its contract employees. The vendor, Intoximeters, out of St. Louis, MO, has three contract employees who handle the calibration and certification of all 203 Datamasters statewide. These are the people in question according to the Michigan State Police. They believe that some certification records appear to be falsified. Because of this, an investigation has commenced with an eye towards forgery of public documents charges.

An Introduction The State Of Michigan’s Roadside Drug Testing Program:

The State of Michigan launched a roadside drug testing pilot program back in 2017. Since marijuana being legalized for medical and now recreational use, police statewide have been looking for a test to be alongside the Preliminary Breath Test (PBT). The roadside drug testing program started out only in 5 counties; Berrien, Delta, Kent, St. Clair, and Washtenaw County. Across the 12 different police agencies that are active between these counties, there are 31 “Drug Recognition Experts.” A Drug Recognition Expert is an officer who has completed 72 hours of classroom study, along with 40 hours of field study before they are certified by their respective police departments. These Drug Recognition Experts were each given a saliva drug testing device to use if they suspect driving under the influence of drugs. If there was a saliva test that tested positive for the presence of drugs, then that sample would be sent to state lab for confirmation.

What Were The Initial Results Of The Program?

In a development that has sent shock waves across the state of Michigan, the MSP has investigated potential fraud by the Datamaster DMT breathalyzer device. The state of Michigan has told law enforcement to stop using those machines in drunk driving cases because of discrepancies in maintenance and certification for vendor intoximeters. To gain insight into this issue, we spoke to leaders in the criminal law community.

Scott Grabel is the founder of Grabel and Associates and has built a firm that is known as the top defense team in the state of Michigan. When asked about the issue, Grabel stated, “This will create a floodgate of appeals. Our phones have been ringing off the wall with people wanting to investigate old plea deals. This is the type of thing that not only hurts the defendant but can also compromise the judicial economy.”

William Amadeo is a partner at McManus and Amadeo in Ann Arbor, Michigan, and a Senior Associate at Grabel and Associates. Amadeo is known as the top criminal defense lawyer in Washtenaw County and provided insight when he said, “I’ve reached out to a couple of prosecutors on this matter as Pittsfield Township is one of the police agencies that have been affected. Where this issue stands are still up in the air, but a lot of this will depend upon the degree of error. We will have to study the difference between the BAC taken from the datamaster and blood draws. The reality is that those charged with a super drunk (0.17) may not have a great appeal depending upon their plea, but those with a traditional OUI may have a fantastic opportunity to fight an issue. As for cases that went to trial, that is going to be very interesting because evidence may be tainted.”

An alcohol interlock device is quite simply a breathalyzer that is connected to your car. You blow into the interlock device and as long as you are sober then you are able to start your car. If the interlock device detects alcohol in your breath, then it will not allow you to start your car and will send out a notification of your failed breath test. One can be required to install an interlock device in their car by one of two ways: 1) If your blood alcohol content (BAC) at the time of your DUI arrest was at .17 or higher, commonly known as super drunk, or 2) If your license was revoked due to drunk driving convictions. In either situation, the interlock device must stay installed in your vehicle for a minimum of one year. In this article we examine how an interlock works, things to watch out for, and what it is like to live with an interlock installed in your vehicle.

Where is an interlock installed exactly and how does it work?

An interlock device is installed somewhere on your dash or center console. These devices can be fairly discreet but are obviously still visible within the interior of your vehicle. The device measures your breath sample by blowing into a mouthpiece attached to the device which will then measure your BAC. If a passing breath sample is not given, then the interlock device will serve as a disruption between your car starter and ignition. Some interlock devices also come equipped with a camera which will take a picture of the user blowing into the device to prove their identity. If the device detects alcohol and prevents the user from starting the car, the car is then usually “frozen” out for a period of time before the interlock will allow for another test to start the car. Note: most interlock companies do not install interlock devices on motorcycles due to the dangers involved.

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