Alcohol Testing as a Condition of Bond
In just about every DUI case brought in the Greater-Detroit area courts of Wayne, Oakland, Macomb, and the surrounding counties, in order to stay out of jail, a person will required to submit to some kind of alcohol (and/or drug) testing as a condition of bond, while his or her case is pending.
As Michigan DUI lawyers, my team and I have seen, first-hand, how the methods used for such testing have evolved over the years.
Nowadays, and in most cases, a person will be ordered to obtain and use a portable breath testing device that will cellularly or wirelessly transmit the results of his or her breath sample.
Urine testing, when used, is still generally done at collection centers, although the frequency of such testing is typically much less than that for breath samples.
While a person may be ordered to provide breath samples on a portable cellular-type unit several times per day, urinalysis is usually much less frequent, typically being required anywhere from once a month to a few times per week.
To be sure, nobody likes having to test, but the simple fact is that it’s pretty much universal in Michigan DUI cases. Depending on the person and his or her circumstances, testing can amount to anything from a minor inconvenience to a real burden.
The idea that merely being charged with an OWI (Operating While Intoxicated) offense results in a person being ordered to not only remain alcohol-free, but also prove it through testing, seems to turn the whole notion of “innocent until proven guilty” on its head.
Some people feel this is all unfair, but, whatever else, and as the old saying goes, “it is what it is.”
Still, that doesn’t change the fact that most people would prefer to not have to go through this.
The question then becomes, what can we do about it?
Because testing is imposed as a condition of bond, it can always be reviewed and modified, and this can be done by the Judge, on his or her own, or at the request of either the person's lawyer or the prosecutor.
When we are handling a case, my team and will always ask the Judge for relief from requirements that can’t be met, or that otherwise seem overbearing or too burdensome.
Often, we can persuade a Judge to reduce the frequency of such testing, or otherwise make it easier on the client.
One thing is sure; you won’t get any relief without asking for it.
Beyond that, it is important that we use our client’s compliance with the testing, and the lack of any positive tests, to his or her advantage at ALL stages of the case, including during our meetings and negotiations with the prosecutor, right up through the time of sentencing.
The testing situation is a real life example of what’s meant by the old saying that “when life hands you lemons, make lemonade.”
Fortunately, most people don’t consume alcohol while on bond, and therefore don’t have any problems complying with the "no drinking" order. That’s at least some good news in all of this.
Sometimes though, testing doesn’t go so smoothly, and a person misses a test, or gets a positive result. That can happen for all kinds of reasons, including a simple scheduling mistake, an equipment malfunction, or the test simply produces an incorrect result.
Often enough, however, a positive result is correct - meaning a person got caught drinking when they were supposed to be abstaining.
This is actually not that uncommon.
Whatever the story, a positive result in violation of a "no drinking" bond condition requires intelligent defensive action on behalf of the client.
This is when my team and I have to be part DUI Lawyer, part diplomat, part public relations expert, part scientist, part spin-doctor, and maybe even a bit part witch-doctor, too.
If the test, or testing equipment, is faulty, we have to be able to prove it.
If a positive test is accurate, then we have to ease the anger of the Judge and keep our client from getting locked up, and we can’t make any missteps along the way.
If a person misses a test, then we have to convince the Judge that it was NOT in order to avoid what would have otherwise been a positive result.
Just as with DUI cases in general, when it comes to a bond violation for missing a test, or for testing positive, the same standard applies - Success is best measured by what does NOT happen to you.