Illegal Arrest Motion

Although the appellate courts in Michigan have significantly reduced our rights as Michigan citizens, you still have a right to not be arrested without probable cause.  What probable cause is can be thought of as a situation where a crime occurred and that you probably did it.  In the context of a drinking and driving case, in Oakland County, the officer must have probable cause that you were operating a vehicle while intoxicated or impaired.   

The officer's probable cause to arrest can be challenged in many cases.  For example, if somebody passes all of their sobriety tests, but fails a preliminary breath test that is ultimately found to be inadmissible, then there is a great argument that the officer didn't have the probable cause to arrest the suspect.

 In order to make these arguments, many times other motions, such as put or field sobriety test motions must be filed and argued at the same time.

Chemical Test Rights Motion

An overlooked challenge to breath and blood testing in Oakland County is the argument that the defendant's chemical test rights were not properly read to them prior to the taking of the alcohol test.  In Michigan, MCL 257.625c, the Implied Consent Statute, requires that a person take an alcohol test if they are suspected of drinking and driving.  If they refuse, then the Secretary of State will suspend their license for a whole year.  In order for this process to happen, the officer must read the suspect their "chemical test rights."  The form read by the officer basically discusses the various rights and consequences that a person has in deciding whether to take the test.  These rights are very important as by agreeing to taking a test, the suspect give sup their constitutional 4th amendment right to privacy.  On the other hand, if refused, then the suspect's license is ultimately suspended.

 Many times officers fail to read the rights at all to the suspects, other times the rights are read at the improper time.  If the chemical test rights are improperly discussed with the suspect, then there is a very good argument to have the subsequent alcohol test suppressed.  In order to determine whether this has happened, a good Oakland County drunk driving lawyer will obtain the various videos, such as the squad car and breath test room videos, which many times will show what really happened.

We have been successful in arguing these types of motions with situations that include everything from clients who don't speak english, to clients who were improperly read the rights.

 

The Bad Stop Motion

The most common type of motion in a drinking and driving case in Oakland County is the bad stop motion.  A bad stop motion is warranted when an officer chooses to pull somebody over for no reason or an unlawful reason.  This happens more often than most people realize as there is no coincidence that African American citizens are stopped at a higher rate than others.  Bad stops are not always racially based, as officers tend to stop younger people, especially when they are travelling with others in their car.  All an officer has to do is trump up some excuse and the next thing you know is that you are in jail.  

We have had tremendous success with challenging the stops of officers.  For example, Amberg & Amberg attorney Jim Amberg recently was able to get a drunk driving case thrown out in the 52-4 District Court in Troy when he was able to show the Court that the officer was untruthful when she testified about Jim's client's alleged swerving.  Jim's client got his life back and the officer learned a very valuable lesson about the Constitution!

Your Right to Remain Silent

In the groundbreaking decision of Miranda v Arizona, 384 US 436 (1966), the United States Supreme Court ruled that statements obtained through custodial interrogation are inadmissible to prove a defendant's guilt if the officer did not first advise him of his or her rights.  Of course, we have come to know these rights as Miranda Rights.

You have a right to remain silent, right to an attorney, and anything you say can and will be used against you is a phrase that through government class, word of mouth, and episodes of Law and Order, has become a central part of our understanding of your rights and a police officer’s duty to tell you those rights when you are arrested.   However, even though the cops are supposed to tell you your rights, most of the time in drunk driving cases, the police officer will conveniently forget to mention this to you as you confess that you have been drinking.

A question I get in many driving while intoxicated cases is what happens if the police didn’t read the client their rights.  The answer to this is that if you made a confession or other types of statements while you were in custody and weren’t read your rights, then those statements are suppressed at your trial.  This means that at your DUI trial, the prosecutor couldn’t bring in to evidence any statements you made to the cops about how you drank 15 beers two hours before.  However, in order for your Miranda Rights to kick in, the statements have to be a result of custodial interrogation.

In the context of a Miranda argument, the Michigan Supreme Court has found that “custodial interrogation is a questioning initiated by law enforcement officers after the accused has been taken into custody or otherwise deprived of his freedom of action in any significant way.”   People v Zahn, 234 Mich App 438, 449 (1999)  To determine whether a defendant was in custody at the time of the interrogation, the Court must “look at the totality of the circumstances, with the key question being whether the accused reasonably could have believed he was not free to leave.”  This determination of custody “depends on the objective circumstances of the interrogation rather than the subjective views harbored by either the interrogating officers or the person being questioned.” 

I have successfully argued the Miranda issue many times as it pertains to the sub-issue of whether you were free to leave.  For instance, I have won this issue in a Felony Drunk Driving case where the Defendant was placed in the back of the cop car and then given sobriety tests in the car.  The Court held that the Defendant was not free to leave and that Miranda applied.  Also, in a murder case, I won an issue where the police walked up to the house and detained my client, who allegedly stated that she had killed the other person.  This very important statement was also suppressed. 

Miranda is a very important issue in Oakland County drunk driving cases.  For instance, sometimes the prosecutor’s major piece of evidence is that you told the cops you drank six long island iced teas three hours before.  If this statement was made while you were not free to leave, then a motion to suppress this statement must be filed.  Once you win, watch how quick the prosecutor offers you a reckless driving.