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Articles Tagged with “blood alcohol”

This is a very frightening question. What follows can be equally scary. The flash of the lights in the background from the squad car tells you that this is going to be a long night.

The first thing that your Michigan DUI lawyer should do when interviewing you or when reading a police report is to determine the basis for the stop by the police in the first place. The way SMDA attorneys explain this to clients is to determine from the interview whether there was an independent reason for the stop, other than suspicion that the driver was drinking and driving. In other words, would there have been a stop but for this suspicion? If not, this may form the basis for a motion to quash blood alcohol evidence based on fruit of the poisonous tree.

Specifically, was there a reasonable basis for the stop? Of course, the basis for the stop can be substantiated in a variety of different ways, including the in-car video running before, during and after the stop. Be careful in requesting the in-car video, though. It can be a double-edged sword. Most jurisdictions in Michigan cycle through in-car videos in thirty (30) days or less. In order to preserve this evidence, it is necessary to either contact the police directly through a Freedom of Information Act (FOIA) request or through the prosecutor, as part of a demand for discovery. There are circumstances where the in-car video can be very helpful to your client in that it can demonstrate sober driving when the police report indicates impaired driving, or it can reiterate and amplify impaired driving. The prosecution may have otherwise overlooked the in-car video, but when the request is made by a Michigan DUI lawyer, it can also draw curiosity and can and will be used by the prosecution during an evidentiary hearing or trial.

According to the National Highway Traffic Safety Administration, the five most common bases for police stops in drinking and driving cases are:

  1. Turning with a wide radius
  2. Straddling center of lane marker
  3. “Appearing to be drunk”
  4. Almost striking object or vehicle
  5. Weaving

Moreover, the vast majority of Michigan DUI arrests occur at night and on weekends. It is noteworthy that speeding is absent from this list. Notwithstanding, prosecutors will commonly argue that speeding is “risk taking” behavior indicating diminished judgment spurred by the consumption of alcohol. Conversely, based on the facts and circumstances, an argument can be made by the defense that the ability to speed and safely maneuver a vehicle while weaving in and out of traffic are indicative of highly sober driving demonstrating a high level of responsiveness which would be presumably absent with an intoxicated or impaired driver.
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In Michigan, it is illegal to operate a motor vehicle with a blood alcohol level exceeding .08. However, if you are under 21 years of age, it is a crime for you to operate a motor vehicle with a blood alcohol level as low as .02 or higher. That’s right, the “zero tolerance” law prohibits anyone under the age of 21 from operating a motor vehicle with “any bodily alcohol content.” Presumably, if the underage driver’s blood alcohol level exceeds 0.08, the underage driver will be charged with the more serious offense of Operating While Intoxicated (OWI). In the event that an underage driver is charged with OWI, a court is not permitted to dismiss the more serious charge, although a prosecutor maintains that ability in plea negotiations.

Oddly enough, the only exception to this strict rule is if the underage driver can prove that the presence of alcohol is from a “generally recognized religious service.”

THE CONUNDRUM
Since Windsor, Ontario is just across the Detroit River, and due to the fact that the legal drinking age in Canada is 19, the zero tolerance law is problematic for underage motorists legally consuming alcoholic beverages in Canada returning to Michigan. While crossing the border, the underage motorist transforms from a legally sober driver to a legally intoxicated driver.
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