The biggest hope of any person facing a Michigan DUI charge is for the whole thing to just go away. It’s very common for someone in that position to go online to see if there is some way to get their DUI case dismissed. People will search around in the desperate hope of finding out the police screwed up somehow. They want to discover a way to challenge some, or even all of the evidence. Of course, the best way to get out of a DUI charge is to successfully challenge the evidence. In this article, we’re going to look at the 3 most likely areas to find problems with it.
To be sure, any discussion of legal evidence can get very deep. We’re going to skip all of that here. Instead of some long, boring legal treatise that few will understand (and even less will want to read), we’ll do an overview. Our focus will be on the big picture. That means zeroing on the 3 most common areas where evidence can be successfully challenged to get a DUI charge dismissed. There are a million things that can go “wrong” with a case, but for now, we’ll confine our examination to those that come up most often in real life.
The first of them, of course, has to do with the traffic stop. Under Michigan law, the police need some kind of “reasonable suspicion” to pull someone over. Obviously, that doesn’t apply if the police show up following an accident, or if someone has slid down into a ditch. There are literally volumes of law books and hundreds, if not thousands of cases, about the legality of traffic stops. Even the most cursory examination of them would take forever, so here, we’re going to stick to generalities.
The top reason, by far, for a traffic stop that leads to an OWI (“Operating While Intoxicated,” the actual name for what every just calls a “DUI) charge is an alleged driving violation. In the DUI world, this often means it’s claimed a person literally broke a traffic law, by doing things like running red light, speeding, or making a prohibited turn. Other times, the police report will state the person was driving erratically. Many years ago, this came down to the driver’s word against the officer’s. Now, in the video age, we can often use police dash-cam video to verify (or disprove) any such claims.
We had a case not too long ago wherein the officer claimed our client was driving too close to the curb, and pulled him over for that. When we got the video, we did, in fact, see that he drove rather close to the curb. However, he did so without swerving, or otherwise driving erratically. Since there is no law regulating how far one must be from the curb, we challenged the traffic stop. As a result, our client’s DUI case was ultimately dismissed.
There are countless reasons why the police can pull someone over. Whether or not a traffic stop is legal becomes the issue. That said, it doesn’t take a rocket scientist to figure out how a person driving home at 2:30 in the morning down an empty road is going to get a lot more police attention than someone going with the flow of traffic during rush hour.
There are, of course, cases where what the officer claims to have occurred takes place outside of the view of the dash-cam. This means that, helpful as it can be in some cases, video is NOT always useful. We won’t know that until we see it (or not), however. Therefore, obtaining any relevant video is among the first things that needs to be done in order to properly handle a DUI charge.
This brings us to the second area where DUI cases can be fatally compromised – the field sobriety tests. Beyond having a valid reason for the traffic stop, or, more broadly, the first contact with a driver, the police must follow certain procedures to obtain evidence thereafter. This includes the choice and administration of field sobriety tests, and any roadside, preliminary breath test (PBT).
As noted above, this can get deep. To be sure, there are a lot of things that can go wrong here that can potentially be used to get out of a DUI charge. Rather than try to list them (an impossible task, anyway), suffice it to say that it’s the DUI lawyer’s job to evaluate each and every possible area of challenge. This isn’t something that a lawyer can learn in law books, either.
Instead, it’s a combination of knowledge of the law as well as day-in and day-out experience handling real DUI cases in court, thousands of times over, that enables him or her to do that.
There are certain kinds of field sobriety tests that are more reliable than others. Some are “approved,” while others aren’t. For example, asking a woman in high heels to walk a straight line on the gravelly and sloping side of a road is an example of how NOT to do things. So, too, is telling her that she can take her shoes off, and do it barefoot.
For the endless examples we could use, the reader simply has to understand this: On the one hand, a mistake (or mistakes) along the way doesn’t mean the whole DUI case can be dismissed. On the other hand, a mistake (or mistakes) may, at other times, be enough to do that. That’s the whole point of having an experienced DUI lawyer handle the case in a local court that he or she knows well.
Thus, it is important for anyone facing a DUI charge to put in a little time to find the right lawyer in order to get the best results in his or her case. The best attorney to defend someone for a murder charge is probably not the right choice for a DUI case, and vice-versa. People put in time before they buy a new TV or a new refrigerator, so why not do at least as much and compare lawyers to handle something as important as a DUI charge?
Circling back, the bottom line is that every aspect of the traffic stop, initial police contact, and the investigation (including the field sobriety tests) must be carefully – as in painstakingly – examined. Only then can a lawyer know how to properly start defending his or her client.
The third most common area where a DUI charge can be successfully “fought” is the chemical (breath or blood) testing. Let’s be clear, however, that “most common” simply means that getting this evidence knocked out is still far more the exception, rather than the rule. It’s just that, if someone is going to find a way out, the 3 areas we’re examining in this piece are where that’s most likely to happen.
Just like the traffic stop, the chemical testing is governed by law and rules. However, there are also serious scientific requirements that need to be observed here, as well. The police can’t, for example, have someone blow his or her breath into a balloon, tie the end off, and then try and test it later. Nor can they take blood, dump it into an empty soda bottle, tighten the cap, and then send it off to the Michigan State Police crime lab for testing.
A DUI lawyer has to thoroughly understand the science of blood and breath testing. My team and I do, and we call upon our knowledge of that regularly.
The breath testing equipment must be maintained, and regularly calibrated. Blood tests, normally performed by the Michigan State Police crime lab, must follow a very specific protocol. There is a lot that goes into ensuring that chemical tests are accurate. This also means that there are plenty of things that can go wrong. As DUI lawyers, that’s what my team and I look for.
No Michigan DUI charge will ever be dismissed because of the things that were done right.
The lawyer’s mindset is important here. It’s a capital mistake for a lawyer to merely look over the evidence to see what “jumps out” in a DUI case. Instead, he or she must carefully examine it and start off assuming that there IS something wrong, and that it’s his or her job to keep digging until it’s found.
Obviously, the facts are the facts, and nobody’s mindset can change them, but that kind of determination will impact how hard the attorney looks. As I often point out, a DUI charge won’t dismiss itself. Neither will any Judge dismiss a DUI case unless he or she has no other choice. Our goal is to make that happen.
As with almost everything else in life, good work is the key to good results. It’s both a fact, and a motto of our firm that success in a DUI case is best measured by what does NOT happen to you.
Finding something to challenge and knowing how to properly challenge it is important, but any defense to a DUI charge must also be strategically sound. A lawyer has to have a plan. The benefits of winning a challenge to the evidence are usually quite clear, but the costs of losing must also be calculated, as well. Lawyers can challenge just about everything, and get paid to do it. However, Judges and prosecutors have no respect for that kind of tactic, and little patience for the kind of lawyers who do that type of stuff.
That said, there is no Judge or prosecutor who expects a lawyer to NOT vigorously defend his or her client. A lawyer will only gain respect by making a good-faith challenge to the evidence, even if it ultimately doesn’t succeed. The reader can take this to mean that he or she should avoid the “we fight everything” kind of lawyers. They’ll surely fight to your very last penny – but to what end?
Even if any problem(s) with the evidence don’t add up to enough to get a DUI charge dismissed outright, they can often be used to drive a better deal. Sometimes, a lawyer needs to argue loudly, while others he or she should stick to a measured silence.
There are timing considerations that make doing or saying something (or not) appropriate at different points in the legal process, as well. The best boxers don’t run into the ring and start throwing a barrage of wild punches at the first bell. Instead, they size up their opponent, look for a weakness, and then wait for the right opportunity to land a big punch.
To continue that analogy, even if the better boxer doesn’t score a knockout, by following a strategic plan, he or she can win the decision. As stated before, good work is the key to good results.
If you’re facing a Michigan DUI charge and looking for a lawyer, be a wise consumer and read around. Pay attention to how different lawyers explain the DUI process and how they break down their various approaches to it.
This blog is a great place to start. It is fully searchable and updated weekly with new, original content. To-date, I have written and published over 590 articles in the DUI section, and more will follow. There is simply no other place you can find with more useful information about DUI cases, but don’t take my word for it; search for yourself.
After you’ve done enough reading, start calling around. You can learn a lot by speaking with a live person. If your case is pending anywhere in the Metro-Detroit area (meaning Wayne, Oakland, Macomb or the surrounding counties), make sure you give our office a ring.
All of our consultations are free, confidential, and done over the phone, right when you call. My team and I are very friendly people who will be glad to answer your questions and explain things. We’ll also be happy to compare notes with anything some other lawyer has told you.
We can be reached Monday through Friday, from 8:30 a.m. until 5:00 p.m. (EST), at either 248-986-9700 or 586-465-1980.
Our consultations are free and our cases are handled on a “flat-fee” basis with upfront fees!