What is a Pretrial

A common question we receive from clients in drunk driving cases is what a pretrial is.  A pretrial is a court date where the prosecutor and defendant, through their lawyer, discuss what to do with the case.  Once it's established what's going to happen, then normally the parties tell the judge on the record what they want to do.  

Many things can happen at a pretrial.  For instance, if the police report hasn't been provided yet, the case will likely get adjourned to another pretrial down the road.  Other times people plead guilty at pretrials.  There can be an unlimited amount of pretrials in any case.  

At the pretrial, other things are also addressed.  For example, if somebody has allegedly violated their bond conditions,  then the court will likely discuss this at the pretrial.  Also, if a motion hearing is needed or the parties are setting a trial date, this also happens at a pretrial.

Warrant for Arrest

In certain circumstances in Oakland County drinking and driving cases, a warrant for arrest is issued against the defendant.  This generally happens when the case isn't immediately charged, many times in situations with more serious OWI charges.  A warrant for arrest means that the police have given the reports to the prosecutor and the prosecutor files a complaint with the court.  As part of the complaint, the court will sign a warrant for the arrest of the defendant.  At that point, the officers can go out and arrest the person, or if that person is pulled over or runs into officers in any other way, they can be arrested.

A question that we get all of the time is whether the court or cops will let the person know that they have a warrant for their arrest.  The short answer to this is generally no.  Most courts will not send any paperwork out until the defendant has been arraigned.  As far as the police go, sometimes officers are decent and will notify the defendant that a warrant for arrest has been entered, although they are under no duty to do so.  Most of the time, the cops don't do anything and it is left up to the defendant to figure everything out on their own.

What we do as drunk driving lawyers in Oakland County is to call the arresting agency up and let them know we are representing the defendant.  We request that the officer in charge of the case let us know when the charges are entered.  In addition to that, we contact the court and file all of our paperwork.  We then call every other day until they either call us or we find out that a warrant has been issued.

Once we discover an arrest warrant has been signed, we call the client up and plan a time to turn themselves in.  For the most part, the District Courts in Oakland County allow us to accomplish this simply by going to the court and appearing before a magistrate.  The arraignment is generally an easy process and we're out of there quickly.  On the other hand, courts like the Pontiac District Court require specific times and sometimes request that the arraignment process is done through the Sheriff's Department.

Getting a Bond

A very important consideration in an operating while intoxicated case in Oakland County is what the bond will be.  A bond is an assurance that the defendant will show up to court.  What normally happens in drinking and driving cases is that courts will indicate that the defendant is not permitted to drink or use drugs while on bond.  Many times in the Oakland County district court system, judges require that the defendant participate in random drug and alcohol testing.

Bond is given in a variety of ways.  For example, sometimes the police will let a person go with an interim bond that they agree to appear before the court when they are charged.  Bond can be set by a judge or magistrate at the arraignment, and the judge is always allowed to modify the bond.

Many people in Oakland County are not able to comply with the various bond conditions.  When this happens, the court will hold a bond violation hearing where the judge may simply revoke bond and send the person to jail.  Once the defendant is sentenced, the defendant is no longer on bond and some of the bond funds can be attributed to fines and costs.

Not Being Immediately Charged

One common occurrence happens routinely in Oakland County drinking and driving cases, which is that the client is not immediately charged with operating while intoxicated.  Instead what happens is that they are simply let out of the police department the next morning with no paperwork, nor instruction, for what to do.  There are numerous reasons why this takes place, but it generally happens when somebody is given a blood draw, or if the charges are more serious, such as a drunk driving felony or high bac.

Do not panic!  That is the first thing we always say to our clients when this happens.  Instead, what we do is contact the court and the police agency and let them know we are handling the case.  Then we contact the court frequently until a court date has been set.  When this happens, we take the client into the court to be arraigned, which is a short and easy process.  

One thing not to do is to wait to hire a lawyer until the charge comes back.  We have seen charges take over a year in Oakland County to be charged in operating while intoxicated cases.  The problem with waiting is that some of the best evidence, generally the police videos, are usually destroyed.   If we didn't get the opportunity to file a FOIA request prior to their destruction, then you as the client do not have a good argument to get the case thrown out and instead you are out of luck.

Getting a Paper License

Although being arrested for a drunk driving in Oakland County is usually a mortifying experience for most, one of the most shocking parts is when the officer destroys your driver license.  According to Michigan law, the officer is required to destroy your license, and this is generally done with a pair of scissors.  

When an officer destroys your license, the officer will give you a paper license.  This is a license on a regular sized sheet of paper and for all intensive purposes is a regular license.  The paper license does not create a prohibitions or restrictions on your driving.  If your license is up for renew while having the paper license, you can still renew your license at the secretary of state.

You can eventually get a new plastic license, generally after your operating while intoxicated case has been adjudicated.  What happens is that the secretary of state will send you notice of whatever sanction you've been given, then after, you can go in and get a new license.  In the event that you win your case, the secretary of state has to give you a new license.

If your license has been taken because of a drinking and driving charge, one short term solution is to obtain a Michigan temporary ID card while the case is pending.  That way you can avoid those embarrassing situations where you have to pull out that paper license when giving id.

Rochester Hills Oakland County Sheriff

It may come at a surprise, but Rochester Hills does not have their own police force, even though it is one of the biggest cities in Michigan.  Instead, Rochester Hills has a contract with the Oakland County Sheriff Department to police their city.  The Oakland County Sheriff has a major police presence in Rochester Hills as they have their own large substation located a block away from the 52-3 District Court.

Rochester Hills deputies generally work solely in the Rochester Hills jurisdiction, rather than being transferred throughout the County.  Because of this, they are very familiar with Rochester Hills people and places.  The deputies are all trained in standardized field sobriety testing and they know how to use a Datamaster DMT breath test.  

We have won some of our greatest operating while intoxicated jury trials against the Rochester Hills deputies.  We have found that the deputies generally attempt to be honest at trial, and we have punished those who choose to not be honest.  We have won evidentiary hearings where the deputies were less than truthful about what they witnessed in a search warrant for a blood draw, and we have had the court issue opinions against their actions.

Royal Oak Police Department

The Royal Oak Police Department handles many drinking and driving cases simply due to the fact that Royal Oak is a major destination for drinking due to its many bars and restaurants.  Having handled many Royal Oak drinking and driving cases, we have dealt with the Royal Oak Police Department in all sorts of different situations.  Royal Oak cops are hit or miss on experience in handling OWI cases and we have had issues with their tactics in the past.  A major consideration in any drunk driving case in Royal Oak is that the Royal Oak PD requests more in costs than any other city or township in Oakland County.

While the Royal Oak cops can be tough, the City prosecutor's office is a reasonable organization which is willing to make deals and work with us on our cases.  As our office is one block away from both the Police Department and the Court, we have seen it all with the Royal Oak Police.

One Leg Stand

In Oakland County, most officers administer the one leg stand as part of their sobriety test toolkit.  In the one leg stand, the suspect is instructed to stand with one foot approximately six inches off of the ground and count aloud by thousands (one-thousand one, one-thousand two, etc...) until told to put their foot down.  The officer has the suspect count to 30 seconds.  During this time the officer is looking for four factors in determining the pass or failure of the test:

  • swaying while balancing;
  • using arms to balance;
  • hopping to maintain balance;
  • putting foot down.

The one leg stand is difficult to pass, even on level ground in the daytime.  When watching in car videos, officers many times demonstrate to the suspects how to do the tests.  One thing that is noticeable in these videos is that the officer will bend their knee on the leg standing on the ground, which makes the test much easier to perform.  Although officers are taught to do this, we have never seen any officer ever tell a suspect to bend their knee, thus ensuring a failed test.

Walk and Turn Test

The walk and turn test is probably the most well known of the standardized field sobriety tests.  The walk and turn involves the suspect taking nine steps in a straight line, then pivoting and taking nine steps back along the same line.  There are numerous factors that the officer is looking for when determining whether somebody has either passed or failed this test.  The specific requirements are:

  • can't balance during instructions;
  • starts too soon;
  • stops while walking;
  • doesn't touch heel to toe;
  • steps off line;
  • uses arms to balance;
  • loses balance on turn or turns incorrectly;
  • takes the wrong number of steps.

Many times, people actually pass this test when officers indicate test failure in their reports.  Further, just because somebody wasn't able to perform the walk and turn doesn't necessarily mean that they are intoxicated.  Officers will generally testify that many people will fail this test no matter whether they have consumed alcohol or not.  Further, many times the officer doesn't know how to properly administer the test and sometimes they even require different conditions that make the test more difficult, such as counting out the steps.

Horizontal Gaze Nystagmus Test

In Oakland County, nearly every officer uses the horizontal gaze nystagmus test, better known as the HGN test,  as part of their investigations for drinking and driving.  The HGN test was devised from academics working on behalf of the National Highway Traffic Safety Administration.  What they came up with was a test that officers could supposedly detect intoxication simply from looking at somebody's eyes.  

The test itself is performed by an officer taking a pen or their finger and waiving it back and forth in front of the suspect's face.  The theory is that the eye will "jerk" as the pen goes back, much like a yard sprinkler.  In order to do this, the officer must first check the suspect's eyes for equal tracking, which means that the eyes follow the pen simultaneously.  Next, the officer checks to make sure the pupils are the same size.  Finally, the actual test begins.

There are three categories in the test that the officer is grading the suspect on: (1) the lack of smooth pursuit, in which the officer moves the pen slowly from the center of the face to each ear, looking for nystagmus, (2) distinct nystagmus at maximum deviation, where the officer will start at the center of the face and move the pen towards the ear until the eye cannot go anymore, then they watch to see if nystagmus occurs, (3) and angle of onset of nystagmus prior to forty-five degree, in which the officer moves the pen faster from the center of the face and attempts to see whether nystagmus occurs less than forty-five degrees from the center of the face.

Field Sobriety Test Overview

We've all watched enough COPS to know what field sobriety testing is, it is the main tool that the police use to get people to incriminate themselves for drinking and driving.  Every officer in Oakland County that deals with owi cases uses field sobriety tests.  Some better trained and smarter officers remember how to do the standardized tests, while others simply make up their own.  Everything from reciting the alphabet to standing on one leg is used by officers to prove intoxication later when you are in court.

Although most people don't realize it, you can refuse to participate in sobriety tests.  There is no law in Michigan that requires that people participate in the tests.  Further, even when operating while intoxicated suspects do well on the tests, the officers still seem to find a reason why the tests were failed.

Sobriety tests can be broken down into two types of tests, the standardized tests and the non-standardized tests.  There are only three standardized tests, the horizontal gaze nystagmus (the pen in the eye) test, the one leg stand test, and the walk and turn test.  Non standardized tests include everything else, including alphabet tests, counting tests, and many other tests the officers have developed by themselves.

Challenging the field sobriety tests is a key component to any successful owi trial.  The standardized tests have a specific set of requirements and they must be administered the same way every time.  Most officers are trained in these, yet they almost always fail to properly administer the field sobriety tests.  We have had great success in challenging officers lack of understanding of the tests.

Drunk Driving Trial Closing Argument Videos

Amberg & Amberg operating while intoxicated lawyer Jim Amberg has been lucky to obtain a few videos of his many drunk driving trials.  A very important part of any owi trial is the closing argument, which can make or break a case.  Many inexperienced lawyers generally ramble on and put the jury to sleep, while others put on a fake dramatic show which leaves jurors confused and upset.  Jim has found that being to the point and clearly explaining the facts in the context of the jury instructions is the best way to convey why his clients are not guilty of drinking and driving.

High BAC Superdrunk Driving

One of the most common operating while intoxicated charges we see in Oakland County courts is the charge of operating a vehicle with a high blood alcohol content, commonly known as superdrunk driving.  The basics of this charge are that the prosecutor must show that the defendant has a blood alcohol level of a .17 bac or higher.  This can be proven both with a breath test and a blood draw.

The superdrunk driving law was put on the books a few years ago and carries with it more severe penalties than a normal drunk driving case.  Specifically, the defendant is looking at a possible sentence of 180 days in jail, a 45 day hard license suspension, a 10 1/2 month long restricted license where the individual can only drive with an interlock device, and various other mandatory requirements.  What makes superdrunk driving such a difficult charge is that in certain Oakland County courts, like the 48th District, a first time offender is possibly looking at serving the entire 180 days.

The major problem in litigating a high bac drunk driving case is that for the most part, the Oakland County Prosecutor's Office handles these types of cases.  What that means is that for most people charged with superdrunk driving, there is no chance of a reduction to a lesser charge as the Oakland County Prosecutor does not like to make deals in these cases.  The only solution is to conduct jury trials, of which we have had all sorts of victories defending high bac cases.

The State Legislature recently enacted a law which allows cities and townships to enact their own high bac laws, which is actually good for citizens in Oakland County because most city and township prosecutors are willing to reduce these cases to avoid trials, thus saving people from the terrible interlock sanction.

Understanding the Jury Instructions

The most important part of any Oakland County operating while intoxicated trial is the jury instructions.  The jury instructions are written instructions that are read by the judge to the jury.  They consist of everything that a jury is needed to make a decision of guilt or innocence in deliberations.  Everything from the burdens of proof to the elements of the offense are included in the drunk driving jury instructions.  The judge will tell the jury that the instructions are the law, and must be followed verbatim, an extremely important concept that most inexperienced trial lawyers do not understand.

In Michigan, our Supreme Court has recently indicated that the model criminal jury instructions are now required.  In the context of a drinking and driving case, there are a multitude of instructions that cover operating while intoxicated charges.  In order to give our clients the best chance of winning their jury trial, it is imperative that we discuss the jury instructions throughout the trial with the jurors.  Many times, OWI trial lawyer Jim Amberg will have the jurors promise that they follow the instructions, no matter what they say, then cash in that promise at the end of the trial when he shows them the drunk driving instructions.

The Michigan OWI instructions include a very specific test for the element of being under the influence that the jury must apply in deciding whether the people have met their burden.  Instruction 15.3 states that "the test is whether, because of drinking alcohol, the defendant's mental or physical condition was significantly affected and the defendant was no longer able to operate a vehicle in a normal manner."  This is extremely important as many times the defendant's driving is perfectly fine and thus they are not guilty of this definition of being under the influence.

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.

 

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.

How a Trial Works

One question that our clients all have when going into a drunk driving jury trial is how does it work?  In Oakland County, any trial starts with selecting a jury.  In misdemeanor cases, a jury consists of six citizens, while twelve jurors are chosen in felony cases.  Additionally, the courts will generally chose at least one alternate juror, because sometimes a juror cannot proceed at trial.  The jury selection process is called voir dire and consists of the Court, People, and Defendant all having a chance to ask questions to potential jurors in order to find a group of jurors who can be fair.  Some judges in Oakland County do not allow the prosecutor and defense to ask the jurors questions and instead will conduct all of the question asking themselves.  Judge Small of the 48th District Court is a good example of this.

After a jury is selected, the parties give their opening statements.  The purpose of the opening statement is for the defendant or prosecutor to inform the jury of what they believe the evidence will show.  For the defendant, giving an opening statement can either happen in the beginning of the trial, or after the prosecutor presents their entire case.  Additionally, although it rarely happens, a defendant can choose to not give an opening if they don't want to.

Once openings take place, the prosecutor will then present their proofs.  This basically consists of the prosecutor calling witnesses, normally cops, and having them testify about what they think happened.  Additionally, the prosecutor will introduce evidence of things like test results through their witnesses.  The defendant is allowed to cross examine every witness that is called by the prosecutor.

After the prosecutor rests their case, then the defendant can request that the court find in their favor.  This is called a motion for a directed verdict.  These are rarely granted, but should be requested in every trial regardless.  

The defense then has the opportunity to present their case.  Many times we don't present any witnesses and the trial then moves to closing arguments.  Other times our clients will testify at this time.  Additionally, if there are any defense witnesses such as lay or expert witnesses, this is the time they testify.

After the defense rests, the trial then proceeds to closing arguments.  This is the time where both the prosecutor and defense argues to the jury what they believe the evidence means.  The prosecutor begins with their closing, then the defense conducts theirs, and then the prosecutor gets a final chance to get back up and have the last word.

After this is concluded, the judge will read the jury instructions and after that, the jury deliberates and attempts to reach a verdict.

 

Hiring an Expert Witness

Every drunk driving trial lawyer has their own strategy for conducting a drunk driving jury trial.  Some choose to bombard the jurors with expert witnesses and a resuscitation of the science involved in drunk driving cases.  The problem with this strategy is that most jurors are skeptical of defense experts and these same jurors lose interest in the science within seconds.  Additionally, when a defense expert is placed on the witness list, the Oakland County Prosecutor's Office prosecutors will have their own expert there to contradict anything the defense expert says.  And our experience is that people tend to always believe the State expert.  What is left is an upset client who spent a ton of money on an expert, legal fees, and still gets found guilty.

Although there are times when an expert is necessary in order to bring forward a novel defense, in the vast majority of our trials in Oakland County, we have chose to not use experts and instead simply get the testimony we want the jury to hear through the witnesses of the prosecutor.

Trial Overview

A drunk driving jury trial in Oakland County is the most difficult type of trial to win.  Reasons for this include that unlike most other cases, jurors come into the courthouse hating drunk drivers.  Many times simply hearing the score of the breath test or believing an officer's tale is enough for most lawyers to tell their clients that they should plead guilty as charged.  The problem is that most "criminal defense" lawyers have never actually conducted a drunk driving jury trial, let alone actually won one.  Do you want a lawyer whose never even conducted an OWI trial in Oakland County?  Do you think that lawyer is going to have any respect or clout when it comes to the prosecutor's decision about what to do with your case?  Would you hire a doctor whose never done a heart transplant to take yours out!  The point is that you need to hire a lawyer who understands how to conduct an Oakland County jury trial who has the respect of the prosecutors and judges.

Preliminary Breath Testing

In most drunk driving cases in Oakland County, officers will administer a preliminary breath test on the side of the road prior to arresting somebody suspected of drinking and driving.  This test is for the most part prohibited from being used at trial and its sole purpose in obtaining the test is so the officer can create probable cause to arrest.  

Many times we see that the preliminary breath test, or PBT, gives a different blood alcohol level than the subsequent Datamaster or blood test.  There are trials in which we have been successful in actually admitting the PBT to show the difference between the scores of the various tests.  This is especially helpful if the PBT is much lower than the subsequent alcohol test.

There are also times you can challenge the validity of the arrest if the PBT was not administered properly.  PBT administration is governed by the Administrative Rules and are promulgated by the State Police.  Rules such as the officer establishing that the suspect has not placed anything in their mouth, regurgitated, or smoked with the fifteen minutes prior to the taking of the test come into play when arguing that the officer lacked the probable cause to arrest.