Too often, a person charged with drunk driving believes that there is no defense to a drunk driving charge. There are many defenses, however, and it is important for your case to be reviewed by a qualified Michigan DUI Attorney to determine whether your case could be challenged. The Law Office of Gerald F. Chefalo has successfully handled thousands of drunk driving cases throughout Northern Michigan.
Often, police officers stop drivers merely because of the time of day. Extreme examples include parking outside bars and checking license plates for drivers with outstanding tickets. Others engage in stops based upon “swerving within the lane,” obstructed vision claims, and loud radios or exhausts. The pretext for the stop is designed to justify an investigation. An officer requires “reasonable suspicion” to stop a vehicle, or the officer must actually witness a civil infraction. The officer’s justification for the stop is a critical stage of the case that must be properly analyzed.
Video recording equipment exists in many police vehicles. The video tapes that we obtain regarding traffic stops have revealed many times that the police officer’s justification for the traffic stop was insufficient. Even when a legally sufficient reason exists for the traffic stop, however, the driving does not always support the officer’s conclusion that the motorist was intoxicated. Speeding, for example, is statistically inconsistent with intoxication.
Police officers across the country are trained in the National Highway Traffic Safety Administration’s “standardized field sobriety tests.” These tests consist of the one-leg stand (standing on one leg for approximately 30 seconds while counting aloud), the walk-and-turn (nine heel-to-toe paces, pivoting and nine heel-to-toe paces back), and the horizontal gaze nystagmus test (an eye evaluation, where an officer looks for an involuntary jerking in the eyes). These three tests have been subjected to various studies, and they are endorsed by the International Association of Chiefs of Police. Although the tests are subject to serious questions and criticisms, these tests are currently the “best” tests that a police officer can use to determine whether a person should be placed under arrest for drunk driving.
But Michigan police officers are generally not trained in these tests. Our state allows any so-called “test” invented by police officers or police academies to be used in the field. The hodgepodge of self-styled exercises lacks statistical validity, but those exercises may be subject to challenge. Even those officers who are properly trained typically do not follow the NHTSA standards or testing protocols, and they hurry through the administration of the standardized tests. As a result, Michigan police officers frequently decide a driver’s fate in only a few minutes. The officer’s administration of field sobriety tests and a motorist’s ability to perform those tasks are critical aspects of the case that must be properly analyzed.
A police officer will typically ask a driver to submit to a Preliminary Breath Test (PBT), a small hand-held breath testing device. Regardless of how a motorist performs on field sobriety tests, police officers rely upon the analysis of a machine because its objective. Problematically, however, PBT devices are known to be highly inaccurate, and the devices will occasionally produce very high readings that do not reflect a person’s actual blood alcohol level. Police officers are legally allowed to rely on the PBT results to determine whether “probable cause” exists to make an arrest, but police frequently fail to follow proper testing procedures. The failure to properly administer the PBT ensures inaccurate and unreliable results.
Field sobriety tests and the PBT are employed by the police to determine whether a person should be arrested. While a motorist should politely refuse both the field sobriety tests and the PBT, they rarely realize this until after they have been arrested. Nevertheless, the officer’s decision to arrest is subject to several attacks whenever the procedures deviate from established practice, protocols and procedures. Unfortunately, most attorneys are not knowledgeable enough in these areas to accurately assess the field sobriety tests and preliminary breath test results. The officer’s decision to arrest is a critical stage of the case that must be properly analyzed.
After an arrest, a motorist faces a tough decision: submit to the breath machine (known as the BAC Datamaster in our state), or face a possible one year license suspension. In rare cases, police ask to draw blood, which is the most accurate method to determine a person’s blood alcohol content but still subject to challenge. The breath machine is favored, however, because it is cheap, easy to use, and police do not have to rely upon medical personnel to establish their case. At The Law Office of Gerald F. Chefalo, we review your Datamaster breath test result in every conceivable manner. Police know there are strict rules regarding the administration of the breath test, but they oftentimes fail to follow those rules. We obtain videos to investigate whether the tests were done properly. We review the logs regarding the machine’s history of accuracy. We obtain records from the manufacturer, which are kept in Ohio, taking that extra step that is overlooked by most attorneys. The chemical test is a critical aspect of the case that must be properly analyzed. If the prosecution cannot establish that the chemical tests were properly performed, or if the prosecution cannot establish that the chemical tests are accurate or relevant, you may be entitled to suppression of those test results.
No one is obligated to tell you whether a breath test result is legally admissible, and very few testing results are closely examined. The Datamaster is simply a machine that can be inaccurate, even when the police properly administer the test. Two breath test results should be recorded on the OD-80 Datamaster ticket, and the two scores must fall within certain parameters to be legally admissible.
If you are exposed to certain industrial chemicals, paint thinners, suffer from gastroesophageal reflux disease (GERD, also known as acid reflux), or have diabetes, your breath test results may be artificially high.
Many attorneys fail to look further than the Datamaster breath score when developing a defense or, more commonly, deciding whether to accept a plea. This is a critical error. Practical defenses can be developed very simply by reviewing the right documents and the police videos. Breath test results may be inadmissible because of deviations in the Datamaster results, problems with the testing procedure, or medical issues outside your control.
The Datamaster estimates blood alcohol from the breath alcohol reading. It uses an average of 2100 to 1, multiplying the amount of alcohol detected in the breath to estimate a blood alcohol score. Scientifically, it is well-established that this estimate can be wrong. Police, prosecutors and judges routinely ignore those inaccuracies. Lawrence Taylor, a seminal author on drunk driving issues states:
“Very few people have a partition ratio of 2100 to 1. It ranges anywhere from about 1100-to-one up to 3500-to-one and higher. And there is no way of knowing at the time of testing what your partition ratio was because [it] changes within an individual all the time… It means if you blow, let’s say, a 0.11 and you have a 1300-to-one partition ratio, that 0.11 is really 0.07. You’re innocent. Your crime, unfortunately, was not being average.”
Shortly after consuming alcohol, while alcohol is still being absorbed into the body, your breath-to-blood correlation can be as low as 900-to-one, even though the Datamaster machine assumes a ratio of 2100-to-one! This raises doubts about the prosecutor’s case against you. You need an attorney who understands these issues and will communicate them effectively to a jury.
The BAC Datamaster suffers from several problems. Although the device is supposedly accurate to 0.004, that accuracy is premised on laboratory conditions using controlled samples. Introducing a police officer as the breath test operator and a live person as the test subject, test results can reveal wildly deviating results. The Michigan Breath Test Operator Training Manual provides an example of three test results produced registering a 0.17, followed by 0.11, followed again by 0.17. That’s a range of inaccuracy of 0.06, nearly the legal limit itself.
The BAC Datamaster can also display several error messages, and the police are specifically instructed not to take the unit out of service. This includes temperature error, which can dramatically alter a breath test score, calibration errors that obviously undermine the integrity of the breath test results, and even an error message FATAL SYSTEM ERROR. Without knowing whether the BAC Datamaster displayed a FATAL SYSTEM ERROR on the date of a breath test, judges, prosecutors and most defense attorneys accept the Datamaster results as reliable.
Undoubtedly, drunk drivers cause some serious and fatal accidents, but the average blood alcohol level of a drunk driver causing an accident is 0.17. And advocacy groups such as MADD distort the number of accidents, while politicians continue to lower the legal blood alcohol limit, arresting more drivers rather than directing resources at stopping the seriously drunken drivers. This isn’t being tough on crime; it’s avoiding the problem.
At one time, the legal blood alcohol limit was 0.15 percent, a level at which most people are intoxicated based upon studies by the American Medical Association. Later, it was lowered to 0.10 percent, and a driver is now “presumed” to be intoxicated at 0.08 percent, nearly half the prior level. The National Highway Traffic Safety Administration has suggested that the legal limits be reduced to 0.05. Using the same logic that if it’s dangerous to driver over 100 mph and the speed limit is 70 mph, we ought to reduce the speed limit to 35 mph so we can catch more people driving over 100 mph.
A good rule of thumb is that one drink is metabolized to the point of elimination from the blood stream each hour. Therefore, typically, if you have one drink, waiting one hour before driving is a good idea. Other factors influence and can increase or decrease one’s BAC such as fatigue, having eaten, and the type of drink it is, so the best way to avoid OWI is to avoid driving after drinking anything at all.
Even if your blood alcohol level is only 0.03 or lower, the police can still charge you with Operating While Intoxicated. The charge is left to the prosecutors discretion, leaving you to challenge their decision in court. Even the police officer lacks discretion once the decision to arrest has been made. Police officers are instructed that, “[u]nder no circumstances should you charge the suspect with a lesser offense instead of DWI if there is probable cause to believe that DWI has been committed. Any reduction of DWI to a lesser charge is the responsibility of the prosecutor or judge.” [NHTSA DWI Detection and Standardized Field Sobriety Testing, VII-10; underline in original.]
The ever decreasing permissible blood alcohol level was intended to “crack down” on drunk drivers. Instead, it has criminalized thousands of otherwise law abiding citizens, threatening them with steep fines and costs, probation, mandatory counseling and alcohol “awareness” programs, community service and even jail. Meanwhile, alcohol-related traffic fatalities have actually increased during the last few years.
Police Destroy Evidence – At The Law Office of Gerald F. Chefalo, we start fighting for you from the moment you hire us, before it’s too late. Other attorneys won’t do anything for weeks or months, after police have destroyed evidence that could have helped you.
Convictions don’t disappear – Alcohol-related offenses cannot be expunged. Even if you finish probation, the charge stays on your driving record.
Time is short – Video tapes are often destroyed within two to four weeks, and if you refused to take a breathalyzer test, you only have 14 days to contact the Secretary of State to challenge a mandatory one year suspension of your license.
If you have been charged with an alcohol related crime, you may feel helpless and uncertain of your rights. At The Law Office of Gerald F. Chefalo, our attorneys have extensive experience defending alcohol related crimes throughout Northern Michigan. We know the courts, we know the judges and we know how to help you. The first thing you must do, is contact an attorney immediately. We are available 24/7 just for this reason. We have someone answering the phones to assist you.
Trust our experience. You need a legal team familiar with the court system to ensure the best results for your case. There are many different alcohol-related offenses in Michigan. Our comprehensive knowledge of Michigan drunk driving law is your best defense. We can be your legal advocate. CALL TODAY.
Let us start working on your defense including seeking a dismissal, negotiating a lesser charge, minimizing penalties, aggressively defending you in court, pursuing the most lenient sentence possible, limiting court appearances, and arranging for one time appearances for out-of-state clients.
You have a right to defend yourself. Make the police and prosecutors prove their case beyond a reasonable doubt. But to challenge the government’s case, you need attorneys that understand the law and the science involved in drunk driving cases. WE ARE PROVEN FIGHTERS!
Our web site is intended to be used for general information only. The purpose of our site is to inform visitors of the nature of legal services offered by Michigan Attorney Gerald F. Chefalo. The information contained herein is not intended as specific legal advise. We caution that use of our web site or attempting to contact our office via e-mail will not establish an attorney-client relationship. An attorney-client relationship is established by the express written consent of Gerald F. Chefalo by means of a retainer agreement.