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Preparing Your Drunk Driving Defense

What Joe Cross Considers When Defending an Accused Drunk Driver

Drunk driving has been referred to a number of ways over the years, (including DUI, DWI, OUIL, etc.), but currently in Michigan it is referred to as Operating While Intoxicated (OWI).

The crime has as its corpus delicti three elements:

  1. Driving or operating a motor vehicle
  2. On a road, public way, or highway
  3. While under the influence of an intoxicating beverage or liquor.

In Michigan, the crime of DUI also has a "lesser included offense" known as Operating While Visibly Impaired, or OWVI.

The existence of a lesser included offense is extremely important because it allows the prosecutor to prove impairment while driving due to the consumption of alcohol even if he or she is unable to prove that you were at or above the limit of .08 grams of alcohol per 210 liters of breath. In other words, the statute no longer requires that a specific blood alcohol level be proven in order for the jury to find impairment. Consumption of alcohol is enough.

You must leave it to an effective attorney to save you from a conviction of impaired driving at trial.

When mounting a defense against the state in a drunk driving case, I specifically look at the corpus delicti of the crime to determine what areas of the prosecution's case should be attacked.

1. Driving

A Lawyer should never assume that the prosecutor can prove this element of the crime.

Many attorneys will immediately skip to whether the client was under the influence at the time of driving, forgetting that the state must prove every element of the crime beyond a reasonable doubt.

In many cases, an officer may arrive at the scene of an accident, or arrive at someone's home, after the act of driving has concluded. The client may be unconscious, asleep in the car, outside of the vehicle, in the house, or nowhere near the scene. Just because the officer or prosecutor assumes that the client was driving, does not mean that the driving element of the crime does not need to still be proven in a court of law. The defense attorney should look at the driving element very carefully before moving on to other defenses.

When people are stopped by police officers, they have a tendency to make certain statements which may be incriminating (ie. You admit to driving your car, or being drunk).

You may or may not recall making such statements, yet the police may have recorded the statements without your knowledge. You should be aware that just because such statements were made does not mean that the prosecutor can use those statements to prove the elements of the crime. The general rule is that admissions by a defendant, standing alone, are insufficient to prove the elements beyond a reasonable doubt.

In other words, the state must prove a prima facie case of driving independent of whatever admissions you made at the time. This may be difficult for the state to prove in a situation where you were not pulled over, but rather, the police arrived after the fact.

In raising doubts about the driving element of the offense, defense attorneys should consider the following:

  1. Was the engine running?
  2. What was the position of the car?
  3. Was the client conscious?
  4. Where was the client seated or standing when police arrived?
  5. Where were the keys?
  6. Were the headlights on?
  7. Was the vehicle parked?
  8. Does the client have a reasonable explanation for why he or she was in the vicinity of the vehicle when police arrived?
  9. Was the heater, air conditioning or radio on at the time?

Asking these questions may produce a defense not previously considered.

2. Public Road

Private associations with roads running through them, parking lots, or even driveways, are no longer a sanctuary of defense for DUI defendants.

Cases have been upheld where an individual was charged with drunk driving while on the infield of a speedway, on a private road in an association, and in driveways. The test is more focused on whether the area of the stop was open to the public, or generally accessible to motor vehicles.

This is not to say that the element of location should not be explored, but this element rarely provides relief due to the liberal reading of the statutes and the continued effort to limit relief to those accused of drunk driving.

3. Under the Influence

The prosecutor must prove beyond a reasonable doubt that the alcohol consumed impaired the defendant's ability to drive, or that the defendant was driving while at or above the limit of .08 grams of alcohol per 210 liters of breath.

In order to prove the state's case, the prosecutor will look to the observations of the arresting officer, and of course, the chemical test results including breathalyzer and/or blood test.

I have studied the legal ramifications of the failure by police to follow standardized field sobriety testing required by the National Highway Traffic Safety Administration. I have also studied Michigan's Breath Testing Rules and procedures as promulgated by the Alcohol Enforcement Division of the Michigan State Police.

These rules carry the force and effect of law in the State of Michigan, and they are often violated by local police, sheriff's deputies, and state troopers, to the advantage of the client. For example, I am often faced with a situation where a client submits to a preliminary breath test (or PBT) at the scene of the stop and arrest.

The rules on breath testing dictate that an officer must make a determination that the driver has not smoked, regurgitated, or had anything in his mouth for at least 15 minutes prior to the test. This rule is often violated by police who never make the determination whatsoever, or they have a driver blow before 15 minutes has expired.

I have successfully had the PBT results suppressed prior to trial so that he may argue a "rising blood alcohol level" defense. He recently had a .12 PBT result suppressed where the blood test came out .12 as well approximately 1 hour after driving. At the time the PBT was suppressed, the prosecutors asked him, "Why have the PBT results suppressed? They can't be used at trial anyway." My response was that the PBT results can be used at trial if the defense argues a rising blood alcohol level. The prosecutor can use the PBT results at trial to prove that the defendant's blood alcohol level was NOT rising.

In other words, I had the .12 PBT suppressed so I could argue that my client's blood alcohol rose to .12 an hour after driving. The prosecutor then could not use the PBT to show that the driver's blood alcohol was .12 minutes after driving according to the PBT. (I can explain this defense more thoroughly if you contact me directly on 1-877-OWI-LAWS.)

The prosecutor must also be capable of showing that the police had reasonable cause to stop your vehicle in the first place. Without reasonable cause (which may or may not be evident on a squad car video tape) the stop is defective.

After the police develop reasonable cause to stop your vehicle, they must further develop probable cause to arrest you. They do this through the field sobriety tests, and preliminary breath test.

If the PBT is not conducted properly, and/or the field sobriety tests are flawed, it is possible to find that the arrest violated one's constitutional rights. The case may be dismissed.

Proper analysis is critical to knowing the defenses available to you prior to deciding whether to accept a plea.

If you're facing drunk driving charges, you need to think seriously about finding excellent legal representation. Call me today, and I'll review your case free of charge and give you professional, objective, expert advice.

Call me directly at 877-Joe-Cross or complete our free, online case review. Your inquiry will be treated in the strictest confidence, and is completely risk-free and obligation-free. Your inquiry will be treated in the strictest confidence, and is completely risk-free and obligation-free.


S. Joseph Cross PC is committed to answering your questions about criminal defense, DUI/OWI defense, and traffic law issues in Michigan.

I offer a free consultation and I’ll gladly discuss your case with you at your convenience. Contact me today to schedule an appointment.