It’s hard to imagine, but according to the LA Times, a San Diego man was arrested for DUI three times in a single week.  In the third arrest, the police received a call about a drunk driver, and when they arrived they had found that the man driving the car that matched the description had walked into a bar.  The police then found the man, who was drunk, and arrested him.  The police later learned that the man had been arrested for DUI twice before that same week.

The first thing that this man’s attorney will want to look at in defending the case is whether or not, based on the facts presented, the prosecutor will be able to prove that this man was actually operating the car earlier in time.  It appears that the police did not actually witness the operation, but instead used circumstantial evidence to determine that this was the man who had earlier been operating the car that was the subject of the citizen complaint.  If successful, such a defense would result in dismissal of the DUI case.

But such a defense will certainly not end this 44 year old man’s legal troubles.  Simply being in a bar drunk is undoubtedly a violation of the man’s bond, and this alone will cause him to stay in jail.  It will also be a factor when he is sentenced on either of the other two pending DUIs.

Such reckless behavior is highly suggestive that this man has a significant alcohol abuse or dependence disorder, and that he is in need of treatment.  What is likely is that this man simply cannot stop drinking without inpatient treatment.  Of course if he’s in jail he presumably will not have alcohol available to him, and he’ll end up detoxing from alcohol behind bars.  This will not however give him the tools he needs to avoid relapse as soon as he is released.   Hopefully this man will get the help he needs from his lawyer and from the judges before whom he will be appearing on each of these pending DUI cases.

Handling the DUI Homicide Case: one of the most difficult cases that a criminal defense lawyer can handle is the intoxicated driving case involving a death. These cases are difficult because in addition to usually more than one chemical test, there is also additional scientific evidence involving accident reconstruction and cause of death.  There is the additional complication in that there are significant emotional issues suffered by the victim’s family as well as the accused at fault driver.  Add to all this the highly-charged political environment within which this is all taking place; and it’s easy to see that the DUI homicide case requires a high level of expertise.

Earlier this month, Aspatore Books released its 2012 edition of Defending DUI Vehicular Homicide Cases, 2012 ed.: Leading Lawyers on Understanding DUI Cases, Developing a Thorough Defense, and Negotiating Settlements (Inside the Minds).  According to the publisher’s web site:

Defending DUI Vehicular Homicide Cases provides an authoritative, insider’s perspective on handling a vehicular homicide or manslaughter case where a client was driving under the influence. Featuring experienced criminal defense attorneys from around the country, this book guides the reader through the important legal trends and recent cases influencing this area, and what these changes mean for clients and counsel.

These top lawyers divulge tips that will be useful to both new attorneys and seasoned practitioners, as they discuss how to evaluate evidence, utilize experts, prepare an aggressive defense, and contest the prosecution’s case. Whether the focus is on achieving success in the courtroom or negotiating a settlement offer, these authors disclose advice that will help you satisfy your clients’ needs.

Additionally, these leaders examine how to deal with the challenges of these cases, including the complex scientific evidence, changing technology, stricter penalties, and emotional dynamics. The different niches represented and the breadth of perspectives presented enable readers to get inside some of the great legal minds of today, as these experienced lawyers offer up their thoughts on the keys to success within this high stakes field.

Some of the Nation’s top authors and practitioners were tapped to write the books various chapters, including:

1. Steven Oberman
2.  Robert Scott Reiff
3.  Justin J. McShane
4.  William T. Bly
5. John Hunsucker
6. Patrick T. Barone

Defending DUI Vehicular Homicide Cases, 2012 ed.: Leading Lawyers on Understanding DUI Cases, Developing a Thorough Defense, and Negotiating Settlements is an excellent book to add to the library of any DUI defense lawyer or criminal law practitioner that handles these most complex cases.

If Michigan law makers have their way there will be no difference in driving under influence of ginseng and other herbs and driving under the influence of alcohol. Why? They are both “drugs” that can cause someone to potentially violate the same law.

Michigan’s laws prohibiting driving while intoxicated or impaired are in a constant state of flux, ever moving forward toward accomplishing two goals: (1) increasingly draconian penalties for violation, and: (2) increasingly broad definitions of prohibited behavior. In the second instance the trend has been toward either lowering the “legal limit” for alcohol and/or broadening the number of substances that can be considered drugs, with the greatest law enforcement push being toward addressing the detection and arrest of so-called drugged drivers.

Looking first at efforts toward broadening the definition of OWI, the preferred method of late is to broaden the definition of a drug. This is the goal of a bill now pending in Michigan which would amend the Michigan Vehicle Code to do all of the following: change and broaden the definition of

“Intoxicating substance” such that this would be defined as “any substance, other than alcohol or a controlled substance, that is recognized as a drug in the official United States Pharmacopeia (USP), official Homeopathic Pharmacopeia of the United States (HPUS), or official National Formulary, or any supplement to any of them. The term also would include a substance, other than food, that when taken into a person’s body may negatively affect his or her ability to operate a motor vehicle.”

In order to understand just how broad this proposed definition is, it is important to understand the difference between USP and HPUS. The USP lists and monitors those substances that are commonly thought of as medicines; the kinds of things your medical doctor might prescribe or recommend.

On the other hand, homeopathy, which is defined as the “art and the science of healing the sick by using substances capable of causing the same symptoms, syndromes and conditions when administered to healthy people, typically uses what is more commonly thought of as herbal medicine, and this is where the real expansion takes place. According to the HPUS web site:

“Any substance may be considered a homeopathic medicine if it has known “homeopathic provings” and/or known effects which mimic the symptoms, syndromes or conditions which it is administered to treat, and is manufactured according to the specifications of the Homeopathic Pharmacopoeia of the United States (HPUS). Official homeopathic drugs are those that have been monographed and accepted for inclusion in the HPUS.” The National Formulary web site indicates that (NF) was “established in 1888 by the American Pharmaceutical Association, includes standards for excipients, botanicals, and other similar products. ”

Law enforcement trained as DREs are taught using this working definition of a drug: Any substance, which when taken into the human body, can impair the ability of the person to operate a vehicle safely. It would seem that the propose change to Michigan’s OWI law would expand the definition of a drug to even further broaden was is otherwise taught in the DRE course.

The problem with such an expansive definition is that it makes anyone who exhibits signs of bad driving potentially subject to prosecution for OWI because who doesn’t take some type of traditional or herbal medication on an occasion or regular basis? After all, does your morning vitamin supplement contain any of the following:

• Acerola
• Alpha-Gpc
• Bacillus Coagulans
• Black Cohosh
• Banaba
• Beta-Sitosterol
• Bifidobacteria
• Blond Psyllium
• Branched-Chain Amino Acids
• Butterbur
• Calcium
• Catechu
• Chelated Minerals
• Chicken Collagen
• Chinese Club Moss
• Chondroitin Sulfate
• Chymotrypsin
• Country Mallow
• Cowhage
• Dibencozide
• Dmso (Dimethylsulfoxide)
• Epimedium
• German Chamomile
• Ginseng, Panax
• Glucomannan
• Glucosamine Sulfate
• Glucosamine Hydrochloride
• Glucosamine Sulfate
• Guggul
• Gymnema
• Huperzine A
• Hyaluronic Acid
• Idebenone
• Indian Long Pepper
• Inulin
• Ipriflavone
• L-Tryptophan
• Larch Arabinogalactan
• Magnesium
• Melatonin
• Msm (Methylsulfonylmethane)
• N-Acetyl Cysteine
• Niacin And Niacinamide (Vitamin B3)
• Octacosanol
• Pantothenic Acid (Vitamin B5)
• Phosphate Salts
• Phosphatidylserine
• Picrorhiza
• Poria Mushroom
• Progesterone
• Red Yeast
• Roseroot
• Saccharomyces Boulardii
• Schizonepeta
• St. John’s Wort
• Tannic Acid
• Thunder God Vine
• Trichopus Zeylanicus
• Vitamin D
• Yohimbe

If you answered “yes,” and after downing your morning pills you get pulled over on your way to work, you may just find yourself charged with OWI, with the same penalties imposed on a drunk driver!

In addition to the broad definintion of “drug” the law also:

• Prohibits a person from operating a vehicle while under the influence or while impaired due to the consumption of any intoxicating substance.
• Prohibits a person from allowing a vehicle to be operated by a person who was under the
  Influence or visibly impaired by the consumption of, any intoxicating substance.
• Requires a jury or court to make a finding as to whether a person charged with OWI was under the influence of an intoxicating substance or a combination of alcohol, a controlled substance, or another intoxicating substance.
• Also, if a person is charged with OUI or OWI, the court must require the jury to return a written finding as to whether the person was under the influence of a controlled substance or a combination of alcohol and a controlled substance at the time of the violation. If the court convicts the person without a jury or accepts a plea of guilty or no contest, the court must make the finding.

One may question the necessity for this change. When was the last time you heard of an accident caused by operating under the influence of ginseng? If this law passes, the next time you listen to the morning news you might just find out that the fatal accident the night before was caused by too much melatonin!

Drugged driving arrests are on the rise in Michigan.  Every year more people are arrested for OWI based on the consumption of legal or illegal drugs.  As part of a National push, police officers are being trained in the detection of drugged driving.  Police officers who have this advanced training are called “Drug Recognition Experts.”  It is important for lawyers who defend drugged driving cases to know what they’re up against, and the best way to learn this is at an advanced seminar.  If you are charged with drugged driving in Michigan, then it is essential for you to find a lawyer who has had this training.

Previously, obtaining this training was very expensive and would require travel to another state.  However, the Michigan Association of OWI Attorneys is proud to announce the April 2012 DRE seminar.  The seminar will be at the Marriot Courtyard in Detroit Michigan. Additionally, and for the first time ever, in addition to the DRE training, students will also receive training on Gas Chromatography.

Here is a run-down of the seminar agenda, as well as information about the instructors:

Please contact the Barone Defense Firm or the Michigan Association of OWI Attorneys for more information.  If you’ve been charged in Michigan with drugged driving, contact the Barone Defense Firm for your FREE case evaluation.

Tim Huey, one of the Nation’s top DUI defense Lawyers, has just announced the 2012 Advanced DUI Defense Seminar hosted by the Ohio Association of Criminal Defense Lawyers.  This is a 3 day seminar -Thursday to Saturday- with Friday being a full day and Thursday and Saturday being partial days.

Note folks can do 1 day 2 days or all 3. Folks who just want to do the Trial Skills can come in Friday, party with us Friday night and fly back out Saturday if they airlines have a late afternoon / evening flight.

Re travel arrangements the seminar is in Columbus -airport code CMH and the venue is the Westin Hotel  (310 South High Street Columbus, Ohio 43215 Phone (614) 228- 3800 www.westincolumbus.com.)….  Best to call between 9-5 EST and as for the group folks – tell them you are with the OACDL and/or Criminal Lawyers seminar.

As Tim indicates; if you come:

“You will see that there is a whole posse of talent coming in to be on the faculty. All members of the faculty are kick ass lawyers who I know I personally have and/or can learn from.”

The big innovation this year is the Trial Skills Workshop. ALL faculty members will have a role to play in that session.   Mr. Huey has been playing with this idea for this session for a while and decided to give it a runner. The basic idea was to get as many of the talented folks Mr. Huey knows together as possible just to have a chance to learn from each other.

Mr. Huey said

“My simple belief is that there is a lot of talent residing in NCDD folks and I have been looking for an opportunity to put as much of that talent together / to use as possible. If nothing else we can learn a lot from each other – and thus this gig will be a success even if no one else shows up.”

Lots of folks can benefit from this kind of workshop. Especially at the price ($250 is stand alone, $100 if combined with the DUI Sessions). No one is so green or so great that they can’t benefit from this discussion, demonstration, small group break out format.

In addition to the OACDL DUI 2012 Brochure, here is the basic seminar agenda and faculty below.

American citizens with DUI or drunk driving convictions on their records are often denied entry into Canada.  This is one reason Mike Kessler, the attorney handling Detroit Tiger Miguel Cabrera’s DUI in Florida, was concerned about a possible conviction.  According to the Detroit Free Press:

Last summer, Miguel Cabrera’s attorney said that if Cabrera had a DUI conviction, it could prevent him from traveling to Canada for games in Toronto unless he had express permission from Canadian officials.

According to the U.S. government website for customs and border protection, “As a general rule, Canada does not allow persons with DUIs to enter their country.”

Needless to say, Michigan and Canada share a common border.  The Detroit Bridge to Canada is one of the Nation’s busiest entry spots for business travel.  In part this is because there is so much business between Detroit’s auto companies and Canada.  Because of this, a Michigan drunk driving conviction can be particularly problematic. Here is an introduction into how the law works:

Under Canada’s Immigration and Refugee Protection Act, a person convicted of a crime may be prohibited from entering Canada to visit, work, or immigrate.  This prohibition, or “inadmissibility,” is discretionary, with the power to prohibit entry placed into the hands of Citizenship and Immigration Canada.  Canada’s criminal code divides crimes into two categories: first, indictable crimes, and second, summary conviction crimes.  Indictable crimes are considered more serious.  In making the determination of into which category a particular offense falls, the test is whether or not the foreign crime, if committed in Canada, would have been an indictable offense under Canadian law. Under this test a DUI in Michigan is considered to be an indictable crime in Canada.

If you are a Michigan resident charged with drunk driving, and you have a need to travel for business to Canada, then it is particularly important for you to be represented by a lawyer who can help you to possibly avoid this significant consequence.  The lawyers at the Barone Defense Firm deal with these issues on a regular basis.  We can explain to you what this means and explain your options.

Contact the Barone Defense Firm today for your FREE Michigan drunk driving case evaluation.

It is this writer’s opinion that our Nation’s zeal to arrest and convict drinking drivers has gotten way out of hand.  For years forced blood draws have been court sanctioned.  Thus, the police can strap you down and stick a needle in your arm to obtain blood, using pain as a way to force you to comply. In other words the courts have found that in drunk driving cases the infliction of pain by police is not unconstitutional. See for example, the Michigan DUI case of People v. Hanna.

A much more recent case has found that forced painful catheterization is also constitutional.  The case is Lockard v. City of Lawrenceburg, and here the defendant sued the City for alleging violating his civil rights when they forced a catheterization even after the defendant had submitted to a blood draw. The defendant was arrested for drunk driving based in part on the results of a portable breath test, which registered a reading of 0.07%.   The defendant was asked to submit to a chemical test but refused. The officer thereafter applied for and obtained a warrant that provided:

 “You are hereby authorized and ordered, in the name of the State of Indiana with the necessary and proper assistance to obtain and remove a blood and urine sample from Jamie N. Lockard.” The warrant therefore allowed the police to obtain both a blood as well as a urine test.

Accordingly, the police officers took Mr. Lockard to the Emergency Department and curtains were pulled around the bed to protect Mr. Lockard’s privacy.  Mr. Lockard was handcuffed to the bed; and the officer’s grabbed his ankles in order to restrain him “so he wouldn’t kick any of the nurses.” He told the nurse that he did not want to be catheterized. Nonetheless, they pulled down Mr. Lockard’s pants, exposing his genitalia, and prepared a sterile field by putting on sterile gloves and cleansing his penis with Betadine.

The nurse subsequently prepared a straight size 16 Foley catheter for insertion by applying lubrication to the catheter. She then attempted to catheterize Mr. Lockard by beginning to insert the Foley catheter into his penis. Around this time, Mr. Lockard informed Nurse Walston that he had an enlarged prostrate. For this reason (and because she was perceiving a lack of cooperation on Mr. Lockard’s part), Nurse Walston removed the Foley catheter and began preparing a Coude catheter, which is smaller and can pass through an enlarged prostrate. The procedure with the Coude catheter was completed and a urine specimen was obtained in roughly two minutes. The defendant suffered considerable pain during the procedure, describing it as “[j]ust as if somebody would take a burning hot coal and stick it up your penis” and “worse than a toochache.”

Afterwards, the defendant was taken to jail and charged with OWI, OWI Refusal, and Obstruction of Justice for refusing to consent or cooperate in the catheterization.

Mr. Lockard sued the police, yet, despite all this, the court found that the police were not liable for the pain and suffering inflicted on this individual, even after he’d given a breath and blood sample! One wonders if this had not been a drunk driving case; would the result have been different?

It is against Michigan law to carry a concealed weapon while under the influence of alcohol.  This is true whether the weapon is carried in a car or on the person.  This is essentially a zero-tolerance crime, with the level of intoxication defining or determining the seriousness and therefore the penalty.

Here’s how the Michgan CPL with BAC law works:

1.  An individual carrying a concealed pistol with any BAC is subject to immediate seizure of their pistol and the following penalties:

• BAC of .02 – .07 = State civil infraction, $100 fine, and up to 1-year CPL license revocation.
• BAC of .08 – .09 = 93-day misdemeanor, $100 fine, and up to 3-year CPL license revocation.
• BAC of .10 or more = 93-day misdemeanor, $100 fine, and permanent CPL license revocation.

It should also be noted that a person who takes or has a CPL gives implied consent to submit to a breath test upon the request of a police officer.

If you have a CPL and have been drinking, then it is recommended that you transport your weapon in the locked trunk of your car and if the vehicle does not have a trunk, then put the unloaded weapon in a locked compartment or container that is separated from the ammunition.

If you are charged with this crime then you should know that there are many possible defenses.  Of course your ability to defend the case will be less if it is a civil infraction simply because there are less due process rights associated with a civil infraction, and this includes the right to discovery.

For many people it is the loss of the CPL that will represent the greatest punishment.  This is particularly true where the BAC is .10 or more because a conviction for this offense will result in a permanent loss of the CPL.

One big problem in the enforcement of laws aimed at stopping driving under the influence of drugs has been the lack of a roadside testing device to help police determine if a person is driving under the influence of drugs.  Starting in 2012, that may all change.  According to Forensic Magazine:

UK technology company Intelligent Fingerprinting has created a prototype hand-held fingerprint drug testing device which detects drugs and other substances from the sweat contained in fingerprints, enabling mobile testing with instant results.

The device will enable testing of fingerprints for illegal drugs and other substances using disposable cartridges. The samples are quick and easy to collect and do not require specialist handling or biohazard precautions. Because of the imaging of the fingerprint, they have an in-built watertight chain of evidence continuity and are almost impossible to cheat.

Like preliminary alcohol testing using a PBT (portable breath testing device), these drug testing devices are likely to be used only for premlinary screening and not for use in court.  In order for a person to actually be convicted, a more accurate test, such as a blood test for drugs, will need to be obtained.

However, like the PBT, the portable drug test might be useful in helping the police officer obtain probable cause to make an arrest, or to obtain probable cause to obtain a search warrant for the driver’s blood.  This second test would then support the charges beyond a reasonable doubt.  That is, unless a knowledgeable DUI defense lawyer can mount a defense to the test results.

This new device will be particularly welcome in the United States where declining driving under the influence or DUI arrests has caused declining revenue for various courts.  This new device is likely to allow for more frequent arrests for driving under the influence of drugs.  The convictions on these new cases will help to make up for the decline in alcohol related arrests.

Attorneys Don Crook and Harold McCall of the law firm Wayne Wright LLP just announced a combined $2,709,656.31 verdict from a jury in a trial against a drunk driver who almost killed their client.

The defendant in the case was Stephanie Cerda, age 25. She was driving drunk in April 2010 and going the wrong way on Interstate 35 in downtown San Antonio, where she crashed into another vehicle and injured a man. She was charged with intoxication assault. Two months later, Cerda was arrested on suspicion of drunken driving. Official reports showed she had a toxic mix of alcohol, cocaine, Xanax, Valium, and Vicodin in her body at the time of the collision.

The plaintiff in the case required many rods, pins, and significant rehab to learn to walk again. The car he was in was a mangled mess. The three day trial took place in Bexar County District Court (San Antonio) in front of Judge Victor Negron.

The plaintiff’s lawyers both worked at a personal injury law firm. Personal injury lawyers are a much maligned group in our society, and often derogatorily called “ambulance chasers.” Certain political parties have done and continue to do whatever possible to limit or stop such lawyers from being able to collect large verdicts. This is especially true when such verdicts are against large corporations or the government itself.

What is interesting about this case is that the same groups that hold such views on personal injury lawyers often also believe in being tough on crime, especially drunk drivers. Will such persons hold this verdict in similar disdain, or will it be heralded for its deterrent effect? Perhaps in this instance such persons will hold the personal injury lawyers in high esteem and viewed by them as champions rather than villains.  As usual, one’s view point on such things all depends on whose ox is being gored.