Alcohol Testing as a Condition of Bond

In just about every DUI case brought in the Greater-Detroit area courts of Wayne, Oakland, Macomb, Lapeer, Livingston, St. Clair and Washtenaw Counties, a person will required to submit to some kind of alcohol (and/or drug) testing as a condition of bond, in order to stay out of jail, while his or her case is pending. 

As Michigan DUI lawyers, we have seen, first-hand, how the methods used for such testing have evolved over the years.  

Nowadays, and in many cases, a person is 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.  

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 pain…. 

Some people feel this is all unfair, but, whatever else, and as the old saying goes, “it is what it is.”

Still 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. 

After all, don’t we “know” that a person accused of a crime (and DUI is a crime), has the right to a trial, and the right to be presumed innocent until proven guilty beyond a reasonable doubt. So what gives here?

Actually, that’s not quite accurate.

First, the reader needs to understand the broader concept of “innocent until proven guilty.” What most people don’t understand is that there is no such language in the United States or Michigan Constitutions. 

In fact, the whole notion of “innocent until proven guilty” is just that – a notion. It arises from the Constitutional requirement that at the trial of a person accused of a crime, he or she does not have to prove their innocence, or prove anything.  Instead, the burden is upon the government to prove a person’s guilt “beyond a reasonable doubt.” 

This means then, that a person can sit through his or her own trial and not say a word, or do anything, and it’s up to the state to prove the case agains them beyond any “reasonable doubt.”

Thus, a person remains innocent, as in un-convicted of any charged offense, unless and until he or she is proven guilty.

The United States and Michigan Constitutions do provide that a person may not be charged an excessive bail, but the term “excessive” simply means “not expensive.” 

“Excessive,” in that sense, doesn’t have anything to do with testing, or whether it is burdensome, difficult, expensive, or inconvenient, but rather only the amount of money one must post to get out of jail.

In fact, there is no absolute “right” to bail under the US Constitution. 

Michigan’s Constitution, however, does provide a right to bail except in certain, specified cases. DUI cases are NOT among that group, and thus, a person has a right to bail (or, as used in the real world, “bond”) in a Michigan DUI case, and the amount of that bail (or bond) cannot be excessive, which, as we have seen, means it can’t be expensive.

All legal analysis aside, the simple takeaway is that a Court has the legal right to require any person charged with a DUI to submit to some kind of alcohol (and/or drug) testing as a condition of his or her release from jail.

Still, that doesn’t change the fact that for most people, this can be a real burden. The question then becomes, what can we do about that, or, what, at least, can we do with this?

It shouldn’t come as a surprise that there are practical limits to what can be done. 

As Michigan DUI lawyers, my team and I have to ask the Judge handling a particular case for relief from requirements that can’t be met, or that seem overbearing. 

In the real world, no Judge is just going to smile, agree, and then discontinue all testing.

Often, however, we can at least 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 at the time of sentencing. 

This is a very real life example of what’s meant by the old saying that “when life hands you lemons, make lemonade.”

Sometimes though, testing doesn’t go so smoothly, and a person gets a positive result. That can happen because the equipment malfunctions, or the test simply produces an incorrect result. 

Truth be told, though, most of the time, the result is correct, and a person who really did drink while they weren’t supposed to gets caught. This happens a lot.

Whatever the story, a positive result requires intelligent action.

This is when we 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. This is where a lawyer needs to have the all tact of a professional diplomat…

Unfortunately, for all the people who don’t have any problems testing negative for alcohol, when someone does come up positive, it sends a message to the Judge that he or she should test more, not less.

Testing as a condition of bond has become the new reality over the last number of years. The simple fact is that most people who don’t drink alcohol while on bond don’t have any problems, and that’s at least some good news in all of this.

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