The Length of the Blow Defense

An often overlooked, but great nonetheless, defense to a drinking and driving charge is that the Datamaster DMT has accuracy issues when it comes to how much breath somebody blows into the machine.  Published academic studies have scientifically shown that the longer the suspect blows on the Datamaster machine, the higher the blood alcohol score is going to register.  According to the article by Dr. Dennis Simpson, this increase has been shown to be in upwards of 25%.

Even though this is a known issue with the Datamaster alcohol breath test, the prosecutor is not required to present any expert testimony to the jury regarding this, and instead are allowed to simply make it seem like the breath test is infallible.  Of course the reality is that it is not and this issue must be hammered to the jury.

The Fever Defense

In drinking and driving cases that take place in Oakland County, it is believed that many people who are innocent plead guilty because of really bad advice from their lawyers. Generally, most lawyers will look at a Datamaster DMT breath test result over the legal limit and indicate to their client that the operating while intoxicated case is unwinnable because the result of the test is higher than a .08.  Of course this is not true at all as drunk driving trial attorney Jim Amberg has received dozens of not guilty verdicts when the breath test score was at a .08 or higher. 

One great argument to make is that the officer never inquired as to whether the defendant was sick at the time of the taking of the breath test.  Scientific studies have shown that having a fever can throw off the results of the breath test by up to 23%.  This means that somebody who blows a .10 could actually have been below the legal alcohol limit in Michigan and is innocent of drunk driving. 

Of course, unless your lawyer actually has experience with conducting drinking and driving trials in Michigan, chances are nobody on your defense team even thought of this as a possibility. This is why it is so important that your attorney actually understands the science behind the breath testing.

Mouth Alcohol Affecting the Breath Test

A great defense that our drunk driving trial lawyers have used with great success in Oakland County is to argue that the defendant had alcohol in their mouth when they blew into the Datamaster DMT machine.  This argument is far from far-fetched as most of us have probably experienced the feeling that you have thrown-up into your mouth.  Not to be disgusting, but when that happens, you can taste the contents of your stomach.  When you consume alcohol and this happens, the reason why you can taste your last beer is because your last beer is actually coming back up into your mouth.  And when there is alcohol in your mouth, there's a good chance that the result of the breath test machine is not correct.

This phenomenon is so important that the Michigan State Police have taken numerous protective measures in the Administrative Rules in order to prevent this from happening.  The Administrative Rules require that officers actually sit there and watch the suspect for fifteen minutes prior to the administration of the breath test.  If the suspect regurgitates, sticks something in their mouth, or if the officer can smell alcohol, then they are required to clear the mouth and restart the observation period.  As the officers will testify at trial, the reason for this is that if alcohol enters the mouth, then the Datamaster DMT can be inaccurate.

Drunk driving trial lawyer Jim Amberg recently had a hung jury in the 48th District Court before Judge Baron where Jim's client blew a .12 on the Datamaster DMT.  However, in watching the video of the stop, Jim noticed that his client had complained about a cheese pizza he had ate prior to driving home from the bar.  After a tough trial with a very skilled prosecutor, Jim was able to convince multiple jurors that the cheese that was stuck in his client's throat caused the breath test machine to be off.  The jury then was unable to reach a verdict and the prosecutor eventually offered Jim's client a disorderly person.

Not Operating the Vehicle Defense

The best argument a lawyer can make is that their client was not operating the vehicle regardless of whether they are intoxicated or not.  Many times cases in Oakland County are taken to trial when the defendant argues that they were not driving the vehicle.  This issue comes up all the time as many cases involve officers arriving to a crash scene and nobody saw the defendant drive.  

A good example of this is a jury trial Jim Amberg once won where Jim's client called the police after his friend in the backseat of his vehicle kicked out the back windshield and strode out into the night.  When the officers questioned Jim's client, he responded by indicating that he "traveled" from the bar to the gas station where he had called the cops.  Because there was another person involved, Jim argued that traveled didn't mean the same thing as drove.  The jury came back in five minutes with a not guilty verdict and the judge almost fell out of his chair in shock!

Another argument involving operating a vehicle is when somebody is discovered in their vehicle intoxicated.  Jim has successfully argued in Oakland County at jury trial that somebody on the side of the road, even if their foot is on the brake and the car is running, is not operating and instead the prosecutor has to prove that at some point prior, the person must have driven.

Alcohol is Created Naturally in the Vial Defense

One of the greatest defenses Amberg & Amberg attorney Jim Amberg has ever argued in the context of fighting the validity of a blood draw is to challenge what the effect on a blood test is when the various anticoagulants and preservatives are not present in the vial or when they are not properly mixed.  On one occassion, Jim recalls conducting an Oakland County jury trial in the Clarkston court where the arresting officer was adamant that nothing was in the vials, "he made sure of it."  Not knowing what had been testified to, the forensic scientist from the State Lab then testified that if the powders were not present, then alcohol could be created naturally through the process of blood decaying.  The jury was out five minutes and came back with a not guilty verdict on a high blood alcohol content superdrunk driving case.

The science behind this argument is that if the various powders are not present in the vacuum seal tubes provided in the Michigan State Lab kit which all Michigan officers use, then when alcohol decomposes in the tube, alcohol is a byproduct of that decomposition process.  This effect can happen even if the powders are in the vial if the person drawing the blood doesn't properly mix the vial once the blood is placed in the tube.

If the forensic scientist from the lab testifies that the tubes always have the powders, Jim is quick to point out that the lab doesn't test for the presence of these powders, even though they have the capability to do so.  Additionally, the State scientists have no knowledge of where the tubes come from or whether they are even manufactured in the United States.  Would you trust a Chinese blood vial when it's your freedom on the line?

Challenging the Blood Test

Nothing intimidates so called drunk driving lawyers more than a blood test result.  For reasons we don't understand, lawyers will see a blood alcohol result over the legal limit resulting from a blood draw, and simply tell their clients that they have no chance.  Quite to the contrary, we have won many trials simply by successfully challenging the validity of the test.

The first issues that we are extremely familiar with is how the blood draw was performed, who performed the draw, what was their experience, and where did the draw take place.  Any issues with that must be scrutinized in front of the jury.  The next issue is where did the blood drawer get the needle, was it sanitized in alcohol?  We find that most blood drawers have no idea what the needles they used were sterilized in.

Another attack on the blood draw is to determine whether the Oakland County officer checked to see the expiration date of the blood test kit.  All of the blood test kits used in Michigan and in Oakland County have an expiration date for a very specific reason, which is that the vacuum sealed tubes and their contents, much like a gallon of milk, lose their quality after a period of time.  As Amberg & Amberg attorney Jim Amberg always asks the jury at closing arguments: "would you drink a gallon of milk that was sitting in your fridge for six months?"

A powerful attack aimed at the self-named Michigan State forensic scientists is always in play in blood draw cases which is what happens when the vacuum seal tubes do not contain anticoagulant and preservative powders that should be present.  The forensic scientist must testify that if the powders are not present, then alcohol can be created naturally in the vial!

There are many more case specific challenges to the blood draw that we have used with great success before Oakland County juries.  The one thing we never do is tell our clients that the blood test cannot be beat!

Rising Blood Alcohol Defendant

A defense that our OWI lawyers have successfully used in operating while intoxicated cases in Oakland County is the rising blood alcohol defense.  The heart of the rising blood defense is in the understanding that alcohol can take time to absorb into the body.  This is crucially important in situations where somebody stops drinking, drives shortly thereafter, is pulled over, and then about an hour later, given a breath or blood test.  The key argument in the rising blood defense is that the driver's blood alcohol level at the time of the driving was lower than at the time of the alcohol test.  

There are two ways to make this argument before a jury.  The first way is to hire an expert toxicologist to testify about how alcohol is absorbed into the body.  Knowing the size of the person, what they drank, how much they ate, and other factors can give the expert enough information to give their opinion on the driver's blood alcohol level at the time of the driving.  The problem with hiring an expert is that it can be an expensive experience and having a defense expert will likely cause the prosecutor to get their own expert from the Michigan State Lab.

The second method, which is the method that has been proven successful at trial on numerous situations by Amberg & Amberg attorney Jim Amberg is to discuss the concept of rising blood alcohol through the officers who have to testify in the case.  Officers are trained in this concept to a certain extent and their experience in the field generally will also show that alcohol levels rise, sometimes over lengthy periods of time.  In one jury trial in the 52-3 District Court in Rochester Hills, Jim Amberg was able to secure his client a not guilty verdict in a situation that the client had a .19 blood alcohol content.  Jim used the argument that the client's blood alcohol level had risen from the time of the driving to the time of the Datamaster breath test.