Prosecutors Must be Ethical

Your Michigan DUI will prosecuted by a lawyer who is supposed to be interested in one thing – to be sure that justice is done.  That means that if the prosecutor knows of something that shows you are not guilty of a Michigan DUI, then he/she is supposed to let your DUI lawyer know this.  For example, see:  A DUI Prosecutor Must Help Prove That You Are Not Guilty.

But not all Michigan DUI prosecutors are so ethical.  And Michigan is not the only place where such problems exist.  The state Supreme Court in California has just suspended a former Santa Clara County deputy district attorney from his law license for 4 years. This came after a three-judge panel found that Benjamin Thomas Field had “disregarded prosecutorial accountability in favor of winning cases”. In other words, he would rather win cases than fight for justice.

Mr. Field not only abused his office but also violated the due process rights of several criminal defendants. While he was originally charged with 25 counts of misconduct, the bar court dismissed several charges as duplicative. Judge Purcell, one of the fore-mentioned three-judge panel, stated that “Field lost sight of this goal. The first, best, and most effective shield against injustice for an individual accused… must be found… in the integrity of the prosecutor.”

Mr. Field’s misconduct began not long after he gained admission to the bar in 1993 and lasted ten years. While he could have lost his right to practice law permanently, the court found extensive mitigation expressing his cooperation with the investigation, an impressive record of pro bono service, and “an extraordinary demonstration of good character.” A former Santa Clara District Attorney said “Field is not intentionally corrupt.”

Here are some of the examples from Field’s cases that led to the charges:

• Field obtained a dental examination of a minor accused of sexual assault in violation of a court order. He was attempting to try the youth, who claimed to be 13, as an adult. A juvenile court judge suppressed the evidence obtained in the examination.
• In a murder case, Field intentionally withheld a defendant’s statement favorable to co-defendants. As a result, the judge dismissed a 25-year gun enhancement against one of the co-defendants.
• He made an improper closing argument in a sexually violent predator (SVP) case, which an appellate court described as “deceptive and reprehensible.” The court reversed a judgment committing the man as an SVP.
• He intentionally withheld a witness’s statement that was favorable to the defense in a 2003 habeas corpus proceeding involving a sexual assault. The judge found that he committed a discovery violation.

Throughout his trial, Field admitted to poor judgment and viewing his discovery obligations too narrowly, and self-reported the finding of prosecutorial misconduct to the bar. He has left the DA’s office and is now chief of staff with Working Partnerships USA, a San Jose company that addresses the needs of working families in the Silicon Valley.

While the article does not mention any drunk driving cases, you can be sure that if Mr. Field prosecuted drunk driving cases, he committed misconduct with them as well.  In this regard, Mr. Field is not alone. Some prosecutors are more interested in their quest to “get drunk drivers off the road” than making sure you are actually guilty.

The California District Attorneys Association filed an amicus brief stating “Attorneys should be disciplined for conduct that violates clearly established law, or conduct so outrageous that its illegality is obvious, but should not be disciplined for conduct where the law is unsettled.”  If it was your Michigan DUI case, would this standard satisfy you?

The only way to be sure that the prosecutor handling your Michigan DUI case is ethical in every regard is if you have a Michigan DUI lawyer who is willing to hold him/her to those ethics.  Not all Michigan DUI lawyers know or care about this, so when you choose your Michigan DUI lawyer be sure you choose carefully.  Otherwise, it’s possible that justice will not be done, and you will be wrongfully convicted of a Michigan DUI.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Michigan's New DMT

If you’re charged with a Michigan DUI or OWI (drunk driving), then perhaps the strongest piece of evidence that the prosecuting attorney can use against you case is the breathalyzer results.  These will be produced at the police station after being arrested for DUI in Michigan. Without these results perhaps showing that you were over the legal limit of 0.08, the prosecutor will have a tough time charging proving a Michigan DUI. And if the breathalyzer device that produced those results is faulty, then your Michigan DUI case could be dismissed.

That is exactly what happened recently in Washington, D.C. Local police discovered that the results given by their alcohol intoxilyzer machines were not accurate. (The Washington Post, Williams and Weil) They are now working closely with the Attorney General’s office in order to immediately investigate the matter. As of now, they have not been able to pinpoint what caused the inaccurate results. Some say it could be possibly be the operators (meaning the police officers who assisted the arrestees performing the test), the solution used to calibrate the machines, or the machine itself. The problem was discovered during a police department audit.

When researching Michigan DUI lawyers, it is important to know what kind of training and certification the Michigan attorney has had with breath testing. While there are other types of evidence the prosecutor can use against you, having a Michigan DUI defense attorney who is on your side and knows how to specifically fight drunk driving cases will be most beneficial to you.

It was just such a DUI lawyer from DC (Bryan Brown) who was able to find these problems.  As reported: One defense attorney said Friday that in the past three weeks charges of driving while intoxicated were dropped in three of his cases. He said prosecutors told the court that police lacked confidence in the test results.

If you want to challenge your Michigan DUI, keep in mind that, as reported:

A Web site concerned with the defense against DWI charges said “it is critical” to contact “a lawyer that is familiarwith the errors associated with breath testing.”

Causes of error are “many indeed,” the site said.

A Florida newspaper this week reported that a vigorous challenge to breath testing machines was underway in the Palm Beach area, with results being challenged in an estimated 400 cases.

Seven judges in the Palm Beach area were sorting through technical testimony about the machines’ accuracy, the report said.

When looking for a Michigan DUI lawyer who can challenge your breath test, some questions you may ask are: has your Michigan DUI attorney been certified from the company who manufactures the breathalyzer? Is your Michigan DUI attorney a certified instructor and practitioner of the Standardized Field Sobriety Tests?

You should also look into any published articles or books on drunk driving the Michigan DUI lawyer may have written as well. Make sure that when you choose the Michigan DUI attorney who will try to minimize your drunk driving charge, the attorney has a passion and will for continuing education in drunk driving defense.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

DUI Job Loss?

When Michigan drivers are arrested for DUI (drunk driving), the first thing that goes through their mind isn’t “I wonder how much my fines will be for this”? Instead, it’s more along the lines of “What will my spouse and children think of me after this?” and “What will my boss have to say? Do I even have to tell him? Will I lose my job?”

Unfortunately, the answer to the last question is sometimes “yes,” and a drunk driving case can cause problems even for those employed in very high places. For example, the first woman bishop in Germany recently resigned after being pulled over for drinking and driving by local police. (Business Week, Patrick Donahue). She was the first woman to head Germany’s largest protestant church which unites 22 groups in the Lutheran, Reformed and United protestant faiths, and was elected just last year. She claims that her actions are not worthy of office. Her resignation came just days after being arrested.

But a Michigan DUI doesn’t have to ruin your life. Things can be done to prevent job loss, and to prevent dire consequences. Many DUI lawyers and DUI clients define a successful drunk driving case as a dismissal of the charges, a non-guilty verdict, or a reduction of the original drunk driving charge to a non-alcohol charge, and these things are important and excellent results, but what about those concerns that can directly affect the client’s personal and professional life?

A Michigan DUI crime cannot be expunged or removed from your record. This brings up many concerns when considering future employment options. Depending on your company’s employee handbook, a Michigan DUI could cause you to be terminated from your current job or passed over for that promotion you’ve been working so hard for. Many professional positions, such as law enforcement, medical, and even attorneys, are required to report their Michigan DUI offense to their employer.

And what about that family vacation you’ve been waiting for? While your Michigan DUI case is pending in the court system and sometimes even after your case is completed, you typically are not allowed to leave the state without permission from the court, and your request for travel could even be denied.

If you are divorced or are currently going through a divorce and have minor children, a Michigan DUI conviction can be used by a vindictive spouse to attempt to persuade a divorce court to change your custody or visitation rights.

We have had success in reducing a Michigan DUI felony charge down to a misdemeanor charge, allowing the client to keep his or her job. We will put our knowledge, trial skill and experience in defending Michigan DUI cases to work so that we can obtain the best possible result for you!

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

DUI Police

If you feel you have been wrongly accused of drunk driving in the state of Michigan, you could be right. Recently, in a Vermont court room, one judge issued an order against a state trooper who claimed that the driver’s BAC (Blood Alcohol Content) was 0.102 in order to support license-suspension citation when in fact the driver’s BAC was only 0.069, well below the legal limit of 0.08. (Sam Hemingway of the Burlington Press)

The law states that roadside preliminary breath tests like the one administered by Officer David Robillard are not admissible in court. In this case, Robillard used these preliminary results in the police report he filed, thus supporting a charge of negligent operation of a motor vehicle leading to a driver’s license suspension against 45-year old William Henn of Lowell, Vermont.

In the police report, Robillard described a sequence of events that had led him to believe Henn was driving under the influence of alcohol. He first witnessed the driver swerve across the center lane, pull over to the side of the road, and exit the vehicle without putting it in park. It was after viewing this that Robillard initiated the traffic stop. He conducted a preliminary breath test which produced a result of 0.118 percent.

Officer Robillard believed that the law allowed him to revise the driver’s breath test reading to what he thought was a scientifically valid figure. A sworn affidavit from a state chemist found that Henn’s BAC was 0.102, which is the figure Robillard had used in his accusations. However, when the driver performed the Datamaster breathalyzer test back at the station, the sixth test proved that his BAC was only 0.069. (The first five tests were invalid from Henn blowing short breaths into the device.) At this point, any and all drunk driving charges against Henn were invalid.

When reviewing your Michigan drunk driving case, it is important for you and your highly trained DUI attorney to take a look at such details related to the events of the arrest. If the arresting officer cannot prove that your blood alcohol level was over the legal limit, the charge could well be dismissed.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

DUI Lawyer Decisions

In our prior article we discussed those things over which the Michigan DUI client has total control.  In this article we discuss those issues over which the DUI lawyer has control, or at least partial control.

The DUI lawyer generally has control over those decisions relating to matters of “strategy” or “tactics”.[i] More specifically, the Supreme Court has found the following decisions to be within the control of the DUI lawyer :[ii]

1. To bar the prosecution from using unconstitutionally obtained evidence supporting their contention that you were drunk driving.[iii] In the context of a Michigan DUI this might include evidence that you breath or blood was over the legal limit.  It might also include evidence of drugs found in the car.
2. To dismiss the indictment because the grand jury was unconstitutionally selected.[iv] This would rarely if ever apply to a Michigan DUI charge.
3. To have the defendant wear civilian clothing during the trial.[v] If you are charged with felony drunk driving, or DUI causing death, then you may be in jail waiting for trial.  In this case the Michigan DUI lawyer has the ability to be sure you wear civilian clothing during the trial rather than jail garb.
4. To forego an objection to a jury instruction.[vi] Your Michigan DUI lawyer will want to be sure that the jury instructions are proper, but in some instances, it makes the most sense to not object to certain instructions.
5. To decline to press a particular issue on appeal.[vii] If you are convicted, your Michigan DUI lawyer will have to decide what issues to raise on appeal, and what issues not to raise.
6. To forego cross-examination, to decide not to put certain witnesses on the stand, and to decide not to disclose the identity of certain witnesses in advance of trial.[viii] This is a big area of importance for your Michigan DUI lawyer.  Rarely is cross-examination not pursued in a DUI trial, but it might be, and of course, it will be important for your Michigan DUI lawyer to decide what witnesses, if any, to put on the stand.
7. To provide timely discovery to the prosecution.[ix] Michigan DUI law requires reciprocal discovery, so anything your Michigan DUI lawyer has must be turned over to the prosecutor.
8. To allow a federal magistrate judge (instead of a district judge) to conduct voir dire and jury selection.[x] This really only applies at the federal level.  Your Michigan DUI lawyer will want to conduct all of the voir dire whenever possible.
9. To determine what evidentiary objections to raise, including whether to stipulate to the admission of evidence at trial.[xi] This is another huge and important area of discretion for your Michigan DUI lawyer.  Your Michigan DUI case can be won based on proper evidentiary and pretrial obections and motions.  This is yet another reason to pick the right Michigan DUI lawyer to represent you.

In addition, lower court decisions (federal and State) have found the following to fall within the lawyer’s purview:[xii]

1. The exercise of peremptory challenges.[xiii] These are the challenges your Michigan DUI lawyer can raise during jury selection.
2. Bringing juror misconduct to the attention of the trial court.[xiv]
3. Requesting and/or consenting to a mistrial[xv]
4. Requesting the exclusion of some members of the public from a trial;[xvi]
5. Seeking a change of venue, continuance, or other relief because of pretrial publicity;[xvii]
6. Moving for a continuance and/or waiving statutory speedy trial rights where doing so is reasonably justified;[xviii]
7. Requesting a competency determination;[xix]
8. Choosing among different lines of defense that may produce an acquittal;[xx] and
9. Deciding what evidence should be introduced, what stipulations should be made, what objections should be raised, and what pretrial motions should be filed,”[xxi]

Although these two lists of DUI lawyer-controlled decisions are short and fairly specific, it is important to bear in mind that the existence of a negative right should imply the existence of a positive one. In other words, the right not to take some step presupposes the right to take that step.

Thus, the DUI lawyer’s prerogative to forego cross-examination or put certain witnesses on the stand naturally implies that the attorney has the power to decide to cross-examine particular witnesses or call particular witnesses to testify.

Moreover, it is also logical to assume that the ability to do the specific implies the ability to do the general. Thus, the right of the DUI lawyer to decide whether to move to dismiss the indictment or bar the introduction of unconstitutionally obtained evidence implies the general right to decided whether and which pretrial motions to file.[xxii]

Likewise, the power to decide whether to forgo putting certain witnesses on the stand must, by implication, include the power to choose how many and which prospective witnesses to interview.[xxiii]

Still, the omission of a particular issue from the above two lists does not necessarily mean the DUI client has the ultimate control over how the issue is to be resolved. Indeed, courts are naturally reluctant to expand the number of matters over which a DUI defendant has control. They are reluctant because, among other reasons, waivers of such matters are usually burdensome on the court system, requiring, as they usually do, a knowing, intelligent, voluntary (and sometimes written) waiver in open court on the record.[xxiv]

Along with the power to control a particular decision comes the responsibility that the decision be well-informed. Strategic decisions that are not the product of a thorough investigation will be subject to post-trial attack regardless of counsel’s power to make the decision.

On the other hand, as the Supreme Court has remarked, strategic decisions made after a thorough factually and legal investigation “are virtually unchallengeable,”[xxv]

Put another way, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”[xxvi] Tactical decisions will not be justifiable unless defense counsel satisfies this fundamental duty to investigate.[xxvii]

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Note:  This article is based on the December 2009 Champion Magazine Article entitled Control Over the Defense: Representing Zacarias Moussaoui by Kenneth P. Troccoli.

[ii] See generally 3 LaFave et al., supra note 4 at 779-80 (2007 & Supp.2008-09).

[iii] Wainwright v. Sykes, 433 U.S. 72, 91 n.14 (1977) (motion to suppress based on a Miranda violation); see also id. (noting that Henry v. Mississippi, 379 U.S. 443, 451 (1965) and Estelle v. Williams, 425 U.S. 501 (1976) both hold that the defendant is bound by “decisions of counsel relating to trial strategy”).

[iv] Tollett v. Henderson, 411 U.S. 258, 267-68 (1973); Francis v. Henderson, 425 U.S. 536 (1976).

[v] Estelle v. Williams, 425 U.S. 501, 512-12 (1976).

[vi] Engle v. Isaac, 456 U.S. 107, 128-29, n.34 (1982).

[vii] Jones v. Barnes, 463 U.S. 745, 751 (1983).

[viii] Taylor v. Illinois, 484 U.S. 400, 418 (1988).

[ix] Id.

[x] Gonzalez v. United States, __ U.S. __, 128 S.Ct. 1765, 1770-71 (2008).

[xi] New York v. Hill, 528 U.S. 110, 115 (2000); accord Sexton v. French, 163 F.3d 874, 885 (4^th Cir. 1998). In the Moussaoui trial, the district court judge approved the entry of numerous evidentiary stipulations, none of which were approved by Moussaoui.

[xii] See generally 3 LaFave et al., supra note 4 at 780-81 (citing and digesting relevant federal and state cases), LaFave also notes that there are a number of other areas in which the courts have expressed uncertainty regarding whether the defendant or counsel has the ultimate say. These areas are: “whether to accept a jury of less than 12, whether to rely upon a partial defense (i.e., a defense that challenges only the higher level of multiple charges), whether to stipulate to the introduction of prior recorded testimony on a critical issues (or all issues), and whether to pursue an ‘all or nothing’ defense by waiving the right to a jury instruction on lesser included offenses.” Id. at 782-83 (citing and digesting cases).

[xiii] Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1434 (3^rd Cir. 1996) (quoting ABA Standard § 4-5.2(b) which recognizes within counsel’s purview the decision to accept or strike jurors); Gardner v. Ozmint, 511 F.3d 420, 426 (4^th Cir. 2007) (defense counsel’s decision not to exercise peremptory challenge was a tactical decision).

[xiv] Government of the Virgin Islands v. Weatherwax, 77 F.3d 1425, 1435-36 (3^rd Cir. 1996).

[xv] Id. at 1435; United States v. Washington, 198 F.3d 721, 724 (8^th Cir. 1999) (“Common sense… dictates that counsel make the ultimate decision to request a mistrial.”) Watkins v. Kassulke, 90 F.3d 138, 143 (6^th Cir. 1996) (finding that where “defense counsel consents as a matter of trial strategy to a mistrial, that consent binds the defendant and removes any bar to reprosecution, regardless of whether the defendant participates in the decision”).

[xvi] United States ex rel. Bruno v. Herold, 408 F.2d 125, 129 (2d Cir. 1969).

[xvii] United States ex rel. Agron v. Herold, 426 F.2d 125, 127 (2d Cir. 1970) (holding the decision to waive a pretrial publicity claim is a matter of trial strategy); State v. Hereford, 592 N.W.2d 247, 252 (Wis. App. 1999) (“[D]ecisions impacting venue are tactical decisions which are delegated to counsel when a defendant in a criminal trial appears by counsel.”)

[xviii] Townsend v. Superior Court of Los Angeles County, 543 P.2d 619, 624, 626 (Cal. 1975) (en banc) (recognizing that “the power to control judicial proceedings is vested exclusively in counsel” but also acknowledging that counsel does not possess “carte blanche … to postpone his client’s trial indefinitely”); see also New York v. Hill, 528 U.S. 110, 115 (2000) (counsel has authority to waiver Interstate Agreement on Detainers deadline).

[xix] People v. Bolden, 99 Cal. App. 3d 375, 379-80 (1979) (“[W]hen the attorney doubts the present sanity of his client, he may assume his client cannot act in his own best interests and may act even contrary to the express desires of his client.”); see also Shephard v. Superior Court, 180 Cal. App. 3d 23, 225 Cal, Rptr. 328 (1986).

[xx] Lewis v. Alexander, 11 F.3d 1349, 1352-53 (6^th Cir. 1993) (counsel’s strategic decision not to raise a medical maltreatment defense did not amount to ineffective assistance of counsel); Meeks v. Bergen, 749 F.2d 322, 327-29 (6^th Cir. 1984) (counsel’s choice of traditional self-defense over battered spouse syndrome); Hyde v. Branker, 286 Fed. Appx. 822, 832-33, 2008 WL 2611363 (4^th Cir. 2008) (counsel chose not to present a voluntary intoxication defense); see also Knowles v. Mirzayance, __ U.S. ­­__, 129 S. Ct. 1411, 1422 (2009) (“The law does not require counsel to raise every available nonfrivolouse defense.”);  cf. United States v. Kaczynski, 239 F.3d 1108, 1118 (2001) (declining to decide whether the defendant controlled the decision to present a mental health defense given that he had agreed that his counsel could control the presentation of the evidence).

[xxi] Sexton v. French, 163 F.3d 874, 885 (4^th Cir. 1998) (quoting United States v. Teague, 953 F.2d 1525, 1531 (11^th Cir. 1992)); see also United States v. Wingate, 128 F.3d 1157, 1161 (7^th Cir. 1997) (in retrial, defendant is bound to stipulation agreed to by different counsel in first trial); United States v. McGill, 11 F.3d 223, 226-27 (1^st Cir. 1993) (affirming defense counsel’s decision to stipulate to the admission of evidence over client’s objection); United States v. Kiser, 948 F.2d 418, 425 (8^th Cir. 1991) (not ineffective assistance for trial counsel to stipulate to admission of business records over defendant’s objection); Johnson v. Riddle, 281 S.E.2d 843, 846 (Va 1981) (“The decision to call or not to call a witness [is] a tactical decision to be made by counsel….”).

[xxii] See, e.g., Sexton v. French, 163 F.3d 874, 885 (4^th Cir. 1998) (holding a capital case that the decision as to what pretrial motions to file rests with defense counsel).

[xxiii] See, e.g., Lewis v. Alexander, 11 F.3d 1349, 1353-54 (6^th Cir. 1993) (affirming trial counsel’s strategic decision not to pursue certain lines of investigation); Meeks v. Bergen, 749 F.2d 322, 328 (6^th Cir. 1984) (same).

[xxiv] See, e.g. , Faretta v. California, 422 U.S. 806, 835 (1975) (allowing the waiver of the right to counsel so long as it knowing and intelligent and made on the record); Taylor v. Illinois, 484 U.S. 400, 417-18 (1988) (stating that those rights basic to a defendant “cannot [be] waive[d] without the fully informed and publicly acknowledged consent of the client”).

[xxv] Knowles v. Mirzayance, __ U.S. __, 129 S. Ct. 1411, 1420 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)).

[xxvi] Strickland v. Washington, 466 U.S. 668, 690 (1984); see also Walker v. True, 401 F.3d 574, 579-80 (4^th Cir. 2005) (same), vacated on other grounds, 546 U.S. 1086 (2006); Bell v. True, 413 F. Supp. 2d 657, 696 (W.D. Va. 2006) (same).

[xxvii] See Wiggins v. Smith, 539 U.S. 510, 522-23 (2003) (strategic decision not to present mitigation evidence in capital case was not justifiable given defense counsel’s failure to discharge his duty to investigate).

MI DUI Client

Many people arrested in Michigan for DUI have never been arrested before and may have never even hired a lawyer.  For people facing a Michigan DUI for the first time it may be helpful to know what a DUI lawyer can do and what a DUI lawyer cannot do when handling their Michigan DUI case.

According to case law, criminal procedure, and the rules of ethics; as a general matter, a Michigan DUI client has control over those decisions deemed “personal” or “fundamental” to his DUI case.[i]

According to the United States Supreme Court, there are five decisions which are personal or fundamental, and therefore, over which a criminal defendant has ultimate control:[ii]

1. To plead guilty or take steps tantamount to pleading guilty;
2. To waive the right to a jury trial;
3. To be present at trial;
4. To testify on his own behalf; and
5. To take an appeal

These decisions amount to “basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the DUI client”[iii] What this means is that as a DUI client, you have total decision-making power of these decisions.

So, if your DUI lawyer thinks you should plead guilty or waive a jury trial, the court must establish that this decision is made with full information.  You also cannot plead guilty to a DUI unless it is in open court and “on the record.”

In addition to these rights over which a DUI client has total control, there are five other decisions that federal and state lower court rulings have found belong solely to the DUI client:[iv]

1. Waiver of the right to attend important pretrial proceedings;
2. Waiver of the constitutional right to a speedy trial;
3. Refusal (by a competent client) to enter an insanity plea;
4. The decision to withhold a defendant’s sole defense at the guilt phase of a capital case and use it solely in the penalty phase; and
5. Waiver of the right to be charged by a grand jury indictment.

For a DUI case it is almost always only the first two that are applicable.  Just like the others listed, these rights cannot be waived without your consent.

When selecting a DUI lawyer to represent you it is important to make sure that he or she will give you all the information you need to make “fully informed” decisions.  This is especially true of a decision to plead guilty.  Many so-called DUI lawyers will convince you that you need to plead guilty to your Michigan DUI at your first meeting in court when you’ve had little or no opportunity to discuss your case.  As shown above, this is not what the law requires.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Note:  This article is based on the December 2009 Champion Magazine Article entitled Control Over the Defense: Representing Zacarias Moussaoui by Kenneth P. Troccoli.

[ii] See Jones v. Barnes, 463 U.S. 745, 751 (1983) (“It is … recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.”); Taylor v. Illinois, 484 U.S. 400, 418, n.24 (1988) ( citing with approval a decision from the U.S. Court of Appeals for the District of Columbia Circuit stating that the waiver of the right to be present during trial can only be made by the defendant and not the attorney); Florida v. Nixon, 543 U.S. 175, 187 (2004); accord 3 LaFave et al., supra note 4 at 776 (listing each of the five decisions and stating that “[t]he Supreme Court has stated, in dictum or holding, that it is for the defendant to decide whether to take each of [these] steps”); see also United States v. McMeans, 927 F.2d 162, 163 (4^th Cir. 1991) (citing Jones v. Barnes, and stating that “it is the defendant who retains the ultimate authority to decide whether or not to testify”); United States v. Lawrence, 161 F.3d 250, 255 (4^th Cir. 1998) (ruling that a defendant may waive his right to be present at his trial).

[iii] Taylor v. Illinois, 484 U.S. 400, 417-18 (1988).

[iv] 3 LaFave et al., supra note 4 at 776-79 (listing and digesting the supporting authorities).

Lohan & SCRAM Anklet

As described in the previous article, it is important for DUI lawyers to understand how transdermal electrochemical alcohol testing works, and sometimes, how it does not work.

It is also important for DUI lawyers to have a good understanding of the case law surrounding this type of alcohol testing.  In this regard, there is a new case out of Indiana that is of interest to DUI lawyers.  The caption is:

MOGG v. State, Indiana Court of Appeals, 2009, No. 29A04-0902-CR-82.

Here is a Brief Summary of the Case:

On January 16, 2007 Appellant Mogg pled guilty to operating a vehicle while intoxicated.  Her jail time was suspended pending successful completion of probation.  A condition of probation was total non-use of alcohol.  On August 27, 2007, the state brought its first allegation Mogg violated her probation by consuming alcohol.

Mogg admitted to the violation and therefore, the trial court extended her probation and imposed an addition condition.  In order to monitor compliance, Mogg was ordered to wear a SCRAM bracelet.

In January, 2008 Mogg’s SCRAM was replaced by a SCRAM II bracelet, which is an updated version.  About three months later, on March 17, 2008, Mogg admitted to a second probation violation.  This time the court simply extended the term of probation by four months.  The SCRAM II condition remained.

On June 20, 2008 the State filed what appears to have been a third probation violation, again alleging that Mogg violated the terms of her probation by consuming alcohol “as evidenced positive SCRAM events.” On November 1, 2008 the State filed a fourth violation probation alleging that Mogg had consumed alcohol four days prior.  The State’s allegation that Mogg had used alcohol was supported by positive alcohol readings from the SCRAM anklet.

Mogg did not admit to the third and forth violations so the trial court held an evidentiary hearing.  After the hearing, Mogg’s probation was revoked based on the court’s finding that she had consumed alcohol.  Mogg continued to deny consuming any alcohol.

Mogg appealed the court’s ruling on the question of whether the trial court abused its discretion by admitting SCRAM-based evidence of her alcohol consumption. An additional question before the appellate court was whether there was sufficient evidence to support the revocation of probation.

At the hearing the following testimony was received relative to the device:

The SCRAM bracelet electronically transmits, every thirty minutes, transdermal alcohol readings through a modem in the person’s residence to an AMS central computer. An AMS technician monitors the flow of data, AMS analyzes the data, and AMS and its local service provider (here, Total Court Services, Inc.) notify the probation office supervising the person when the data indicate alcohol consumption of more than one drink per hour for an average person.

On December 18, 2008, the trial court entered findings of fact in which it found SCRAM’s theory and technique had been tested, had been subjected to peer review and publication, had a known error rate, were subject to operational standards maintained by AMS, and were accepted in forty-six states. In addition, the trial court found the testing and studies of SCRAM I applied equally to support the reliability of SCRAM II

Discussion and Litigation Tips

This is a very useful case because it contains a great deal of information about the SCRAM and some excerpts from the testimony of Jeffrey Hawthorn.  For example, the opinion indicates that (according to Hawthorne’s testimony):

Transdermal alcohol concentration (“TAC”) rises and falls on a curve that lags four to five hours behind the curve of blood alcohol concentration, as it takes longer for alcohol to be perspired through a person’s skin than to be absorbed into the bloodstream.

This 4-5 hour lag time is slightly higher than has been previously reported, and is important information to understand when defending an alleged blocking or tampering violation.  Hawthorn also testifies that the SCRAM will only report an alcohol episode if the wearer has more than one drink per hour.  Consequently, it seems clear that the SCRAM bracelet does not monitor total abstinence.  Here is how Mr. Hawthorn explained this:

The SCRAM system “does not `flag’ an event until three consecutive readings exceed [TAC of] 0.02%,” which the average person reaches only with “more than one drink in his or her system. This gives the wearer the benefit of the doubt.” Transcript at 299. When an alcohol consumption event is indicated, the person is given an opportunity to provide AMS with an alternative explanation for the positive readings, such as an environmental “interferant” or other non-beverage alcohol exposure. Id. at 312. AMS technicians are trained to distinguish the TAC curve resulting from a true drinking event from one that is the result of an interferant.

In his testimony Hawthorn also indicated that the SCRAM device is a “semi-quantitative” screening device for determining “whether a person consumed a small, moderate or large amount of alcohol.” Id. at 290.   This also comports with the scientific literature, all of which agrees that BAC and TAC are not the same, and that TAC is not a reliable quantitative measurement of BAC.

Hawthorn also testified that AMS has tested the accuracy of the SCRAM system in a study involving 839 total events, which registered 62 true positive drinking events and one false positive.

There is also a discussion in the opinion about the NHTSA.  The opinion indicates:

The second study (the “NHTSA study”) was a November 2007 report of the National Highway Traffic Safety Administration, which involved twenty-two persons who wore SCRAM I over a period averaging four weeks per person and engaged in laboratory-dosed and self-dosed drinking totaling 271 episodes. The study concluded SCRAM I had no “false-positive problems when true BAC was <.02 g / dL.” Id. at 241. The problems identified with SCRAM I were false negatives and that the bracelet’s sensitivity and accuracy declined over the duration of wear. Hawthorne testified SCRAM II involves the same technology and scientific principles as SCRAM I, the only difference between the two units being the components of SCRAM II are smaller and fit “in one case rather than in two cases.” Id. at 88.

The opinion’s conclusion that there were “no false positives” in the NHTSA is questionable.  Nevertheless, this opinion does contain a basic discussion of how the SCRAM anklet works, how AMS monitors the equipment and how a problem is determined and reported.  There is also a basic discussion of the literature on SCRAM.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Experienced Michigan DUI lawyers know the importance of establishing that their clients are alcohol free while on bond or probation.  Many choices are available, and many Michigan DUI lawyers will recommend that their clients attend AA regularly, and courts will often order that the DUI accused undergo testing.  This testing may include the SCRAM anklet.

“SCRAM” is an acronym meaning “secure continuous remote alcohol monitor”.  The SCRAM device, manufactured by AMS, is a tether worn on the offender’s ankle.  AMS claims that the device monitors the use of alcohol by measuring the presence of alcohol as it migrates with perspiration through the offender’s skin.

Michigan DUI Lawyers are consequently often faced with a dilemma – should they recommend SCRAM to their clients?  This is a dilemma because no measuring device is 100 percent accurate 100 percent of the time, and if the SCRAM says a DUI lawyer’s client was drinking when he or she was not, the DUI lawyer will have a tough fight to prove to the court that the device was wrong.

The Science of Transdermal Alcohol Testing:

SCRAM ankle bracelet

Much has been written on the science of transdermal electrochemical alcohol testing, and rather than reiterate here what has already been written, several articles are attached to these materials.  Not addressed in these materials, at least in any detail, is the November 2007 NHTSA study entitled “Evaluating Transdermal Alcohol Measuring Devices: Final Report. This study evaluated and compared the two types of currently available sweat-alcohol measuring devices, one manufactured by AMS (Alcohol Monitoring Systems) known as the SCRAM device (Secure Continuous Remote Alcohol Monitor) and the other manufactured by Giner Inc., known as the Wrist Transdermal Alcohol Sensor (WrisTAS™). This study was a comparison of performance in the laboratory and under field conditions.

In summary, some of the findings in the report relative to the SCRAM (only one now commercially available) are as follows:

• The authors were concerned about incidences of false negatives, that is, circumstances under which alcohol was known to have been consumed, but no alcohol alerts were received (devices failed to detect the drinking).
• The devices(s) displayed an inability to read at low levels of alcohol. (less than .02 BAC).
• It was noted that the sensitivity decreases over time (this may have been due to the water accumulation in the devices or because of continued exposure to alcohol, and could be improved in the future).
• A “sophisticated” user of the device can circumvent the technology and “hide” drinking.
• Both units performed more poorly than “expected” accuracy and sensitivity.
• The SCRAM was found to be uncomfortable (especially for women) but was thought to be an “acceptable alternative to jail.”

False Positives:

According to the NHTSA study, “the concept of false positives has two different meanings with transdermal detection: (1) we can say with some confidence that there are few or no events that the devices created that look like drinking but were really not drinking because with drinking logs of well-compensated subjects and BAC results we knew definitively when real drinking occurred, but (2) we also know that there are external sources of ethanol signal that are unrelated to drinking that can cause a transdermal response.”

The study found that:

“We detected one clear TAC event related to shaving cream containing an ethanol product, and there was one event that may have been related to perfume in the environment but we could not definitively identify the source. The shaving cream example did not look like a drinking event since it decayed too rapidly, whereas the other did look like a drinking event and had no clear cause.”

Interesting there were 14 other occasions were the data relative to false positives was literally tossed (disregarded).  In these 14 instances, according to the report, these were instances of self- dosed drinking when no BAC test information was provided by the subjects.

“We know from the drinking logs that these were not genuine false-positive transdermal responses; drinking did occur, but we do not have the corresponding BAC values. Rather than log these as false positives, it was more valid to exclude these from the sample. In the majority of these cases, there was drinking, but the subject did not use the PBT to evaluate the BAC level. Reasons included forgetting to bring the PBT, did not have a breath tube, or as per our instructions, claimed to have had only one drink (the instructions called for logging BAC anytime two or more drinks were consumed in temporal proximity). In a few of those cases, elevated SCRAM™ TACs were an artifact of the initialization process, where voltages may result in artificially high TAC readings until the SCRAM™ ankle bracelet establishes a baseline reading for a non-drinking subject. Actual false positives among the subjects we studied were rare, and when false positives did occur, it was attributable to an undetected external source of alcohol.”

While it would be appropriate to disregard questionable data in a study such as this, it is a bit curious that this data all related to incidences of false positives.  By way of further explanation, or at least, further caution, the NHTSA report indicates:

External sources of alcohol are all around. Many personal hygiene, home, and automotive products contain ethanol, and people who use or are around these products may show positive for exposure to ethanol even though they consumed no alcohol. For example, aerosol Lysol has between 79 and 85 percent ethanol, and dozens of body sprays, such as Avon Naturals, have between 60 and 98 percent ethanol. The National Library of Medicine has a searchable database with product ingredient information (http://householdproducts.nlm.nih.gov). Restricting a search to ethanol-containing ingredients yields 447 consumer products that fall into eight categories, but of these products, 265 (59%) fall into one category: personal care products that are used on or near the skin. The issue of false positives is revisited in a later section dealing with the calculation of ROC curves. The recent paper by Sakai et al. (2006) reported no evidence of false positives in their SCRAM™ research. However, external sources of alcohol can and do result in positive transdermal responses because ethanol or ethanol-like ingredients are in many consumer products. It is important for vendors of this technology to adequately train their staff and customers to appreciate this.

For NHTSA that last sentence is pretty strong language, and in so many words, NHTSA is saying that it important for SCRAM vendors to understand that the possibility of false positives is very real.

Time Delays:

As noted elsewhere, there is a significant time delay between the actual drinking and the expression of the alcohol in the wearer’s perspiration.  This can be as much as four hours (see below).  In this regard the report indicates:

It may be that the delayed peak responses between BAC and TAC reflected residual alcohol laden moisture inside the SCRAM™ unit, leading to a continuing positive alcohol signal and/or a dilution effect of any new alcohol-laden sweat vapor coming in from the skin. This might explain the time delay found with the SCRAM™ units.

This statement is very interesting and helps to explain the sometimes bizarre SCRAM TAC readings, which suggest that the wearer had a very low level of BAC over very long periods of time, such as 12 hours or more.

Discussion:

There is no doubt that the NHTSA study did not give the SCRAM bracelet rave reviews. In addition to the issues identified above, the report indicates:

There were two significant problems with the SCRAM™ bracelets uncovered in this evaluation. These are a higher-than-expected false-negative rate and the possibility that sensitivity and accuracy of the devices decline over time.

If there is such a high incidence of false negatives the DUI lawyer is left to wonder why this device should even be used.  If it is not truly a 24/7 device that will always catch the wearer’s drinking, then why should the court not use the much less expensive (and more “comfortable”) alternatives that exist?

Then there is the problem of the device becoming less effective over time.  This should come as no surprise to experienced DUI lawyers who well know that fuel cell devices fatigue over time.  Here we have an attenuated admission by NHTSA of this fact.

Gender Differences:

As is known to DUI lawyers, breath testing “discriminates” against women.  In this report we find that the SCRAM device also discriminates against women.  The NHTSA report indicates:

On the whole, female TAC accuracy was low, certainly lower than with males, and more female discomfort. A clear false-positive was found during use of “Skintimate” shave cream, a product that contains triethanolamine. These spikes following brief external exposure to alcohols are easily distinguished from elevated BAC (and are not flagged by the automated alert system due to the rapid rise and fall), but there is the larger problem of detecting exposure to various alcohols or industrial chemicals on a regular basis if such substances are in someone’s work environment. AMS is aware of these problems and handles them on a case-by-case basis when they occur.

Here again we have a pretty remarkable statement by NHTSA, which is that workplace exposure can actually cause false positives.  The DUI lawyer should take little comfort in knowing that their clients are protected by AMS taking this issue on a “case-by-case” basis, whatever that may mean.

TAC is NOT BAC:

The journey of alcohol from the stomach to above the skin is variable among individuals, that it is widely acknowledged that sweat-alcohol (transdermal alcohol or TAC) is not the same as blood alcohol (BAC) content.  In fact, TAC can never be thought of as quantitatively accurate.  The NHTSA report puts it this way:

As discussed in more detail elsewhere, the attainable accuracy, however, may only be an approximation of BAC due to subject-specific factors that influence ethanol gas concentration at the skin surface. There is no doubt that the transdermal concept is valid as long as expectations of quantitative parity with BAC are moderated.

Similarly, TAC is not BAC, and the expectation of parity is an impractical expectation to place on this nascent technology. Both interlocks and transdermal sensing need to be judged first on their potential contributions to public safety. Moreover, just as interlock devices have improved in the 20 years since their first adoption, it is reasonable to expect that the transdermal-sensing equipment will also improve. These devices warrant further development and further study.

Final note:

At the end of the report, as a sort of post-script, the NHTSA report has this to say:

In general, the sensitivity and accuracy of these devices were poorer than we expected. But if they are not yet perfected, further product improvement is likely to get them closer. It may be impossible to ever expect the alcohol signal at the skin surface to be a precise estimate of BAC if Anderson and Hlastala (2006) are correct. Their model suggests that the stratum corneum, the outer most layer of skin, and other systemic factors importantly affect the measurable ethanol gas concentration near the skin. Individual differences or state differences within individuals in hydration, temperature, and other factors theoretically affect the transdermal alcohol signal strength greatly.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Drunk Driving

As a Michigan DUI lawyer I know first-hand that drunk drivers are reviled by juries.  And for good reason;  drunk drivers kill and maim people.  This also makes drunk drivers good targets for plaintiff’s lawyers.

According to LawyersUSA on line, Plaintiffs’ lawyers using Gerry Spence’s trial methods and a theme of “win with truth and love” have won a $31 million verdict from a jury in a conservative California farming community on behalf of two sisters injured by a drunken driver.

What is particularly interesting about this story is the fact that, as indicated in the story, “a large percentage of the jury pool had close relatives who had been harmed by drunken drivers, so the issue had the potential to inflame the jury and spoil the verdict.”

It is not unusual for juries on Michigan drunk driving cases to have similar experiences and therefore carry a disdain for drunk drivers.  Just as these experiences could have inflamed the jurors on the civil case, they can be similarly impassioned against the defendant in a drunk driving trial.

Another interesting fact is this: [T]he chief toxicologist for the county testified that based on a breath test taken hours after the accident, the driver would have had a blood alcohol level of 0.16 (twice the legal limit) and was more likely than not an “experienced drinker,” because otherwise he would not have been able to drive at all.

This testimony contains several misstatements of science.  First, though not specifically mentioned, the toxicologist testified about retrograde extrapolation.  This “science” is nothing more than guesswork, as has already been explained in these articles:

• Five Reasons Retrograde Extrapolation Should Not Be Allowed In DUI Cases
• Retrograde Extrapolation in Michigan Drunk Driving Cases
• Using Software to Assist the Jury in Understanding Alcohol Metabolism Calculations

Also, the testimony of defendant being an “experienced drinker” should never have been admitted because again, it is merely guesswork, not scientific fact.  There is no doubt that, assuming the test was correct, a person at a .16 can certainly drive a car.  Not only is contrary testimony speculative, it is scientifically specious.

DUI lawyers have to contend with this type of false testimony from state toxicologists on a regular basis.  Unfortunately, few lawyers have the scientific knowledge or litigation skills to keep bad science out of the courtroom.  As a result, drinking drivers are sometimes wrongfully convicted.

There is no doubt that drunk drivers can cause the kind of tragedy demonstrated by the plaintiff’s lawyers in this case, and I have nothing but empathy for the plaintiff’s and their families. It is also unfortunate however that cases like this make the defense of drinking drivers so much more difficult than other criminal cases; and that the anti-drunk driving fury caused by sensational facts and verdicts cause judges, prosecutors and police officers to be blind to the fact that drinking and driving is lawful, and that many people are wrongfully arrested and convicted because of overzealous law enforcement and bad public policy.

Finally, it is interesting to note that the plaintiff’s lawyers were both trained and are instructors at the Gerry Spence Trial Lawyer’s College.  I have attended the Spence Trial Lawyer’s College and know personally the power of the skills taught there.

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!

Michigan DUI lawyer Patrick Barone was recently interviewed by award winning journalist and former Court TV reporter Lisa Bloom.  The interview took place in Georgia, and Ms. Bloom asked Mr. Barone about the Barone Defense Firm, and how the Firm handles DUI cases in Michigan.

During the interview Ms. Bloom asked the following questions:

1. Tell me a little bit about your Firm.
2. Why did you choose this area of practice?
3. So, if I were to get arrested for DUI in Michigan, and call your Firm, what can I expect?
4. Times are tough right now, people are concerned about fees, maybe they should just plead guilty; what would you say about that?
5. When we talk about driving under the influence we usually talk about alcohol, but it can be drugs and even prescription drugs, is that right?

Watch the entire interview here:

Get a FREE confidential CASE EVALUATION on your Michigan OWI/OWVI/DUI by calling (248) 306-9159 , or filling out this consultation request form. Call now, there’s no obligation!