Dozens of books are written every year about how to plead, try, settle, dismiss, and win a drunk driving case. But the typical DUI case in Michigan can be incredibly complex; winning means implementing a multi-level approach to achieve a just result for the client. There is always one final strategy for the client: roll up your sleeves and fight. Facing a drunk driving charge can be a daunting experience; with the evolution of breathalyzers, field sobriety tests, drug recognition experts, and increased training for officers—winning the case or achieving a just result can seem impossible.

The legal limit in Michigan is .08. With vast improvements in technology and science, blood alcohol testing procedures have improved; conversely, the defendant’s odds of winning at trial are slim and none—and slim just left town. Despite the apparent infallibility of these machines, there is still hope for success. However, the .08 “limit” is something that was imposed by our legislature—they decided to lower the legal limit approximately 15 years ago due to the threat of losing highway funding from the federal government. This limit was imposed per the recommendation of the National Highway Traffic Safety Administration, whose recommendations were adopted by the federal government. As a result, state governments faced an ultimatum: either lower your legal limit to .08, or lose all your federal highway funding. Did you ever wonder where that limit came from? Do you honestly think that a 6’00” tall, 225 lb man is impaired after four beers? Give me a break. Yet it does not matter. In the eyes of the law, we are all the same. We’ve all eaten the same amount of food, drank the same amount of water, slept the same number of hours, worked the same number of hours, metabolized alcohol at the same rate, drank with the same frequency, have good knees, ankles, hips, and only have bloodshot eyes because of alcohol consumption (as opposed to being tired after working 60 hours that week, or having allergies, dry eyes, or adverse reaction to contact lenses).

THE MOTION

Filing a motion to throw out evidence can be very effective; it can serve several purposes:

  1. The evidence may be suppressed on constitutional or statutory grounds. Frequently, officers trained in making DUI arrests overstep their bounds. Some common examples: bad stop (no violation of traffic laws); lack of reasonable suspicion (where the officer is basing his arrest solely on the odor of alcohol and the accused’s admission to drinking); lack of probable cause (officer lacks probable cause to make an arrest); challenging the reliability of breathalyzer machines (also known as a Daubert hearing); and failure to adhere to regulations governing the administration of field sobriety tests.
  2. The prosecution may discover certain weaknesses in their case. Many times, the prosecutor does not know the officer who made the arrest; and even if the prosecutor does know the officer, they may not know whether the officer is a competent witness. The officer may be called to testify in a suppression motion, and may provide ample ammunition to be used at trial to impair their credibility.
  3. The prosecution may get sick of responding to your motions and settle. Frequently, many prosecutors will opt for a settlement as opposed to engaging in protracted litigation. Prosecutors have exploding dockets; their ability to handle increased caseloads is impaired by the relative lack of staffing in their offices. In short, they won’t want to spend hours pursuing a 93 day misdemeanor.

THE NEGOTIATION

When motions fail, there is still the art of negotiation. A good defense attorney, skilled in the art of negotiation, will seek to persuade the prosecution to settle a case because it is in their best interests, and in the best interests of the community. Most prosecutors care about their reputations; they don’t want to become known as the person who is being unreasonable by seeking a maximum punishment on every case. If they do seek the maximum punishment on every case, judges and defense attorneys will not respect them; prosecutors care about their reputations. Which brings me to my next point.

THE FIGHT—a.k.a., THE TRIAL

Because prosecutors care about their reputations, they don’t like to lose at trial. Your last resort is to take the case to trial. Let the jury decide what is right and just. Frequently, prosecutors and judges are unsympathetic to the defendant’s position. They feel tremendous pressure from outside interest groups—Mothers Against Drunk Driving, National Highway Traffic Safety Administration, State Court Administrator’s Office, and local elected officials—to amass countless convictions by way of a guilty plea. Additionally, the terms of probation can be so punitive, it becomes even worse than spending some time in jail. Probation agents, court staff, drug/alcohol treatment professionals—all enrich themselves at the expense of the criminally accused.

The problems continue to mount for people who have a Commercial Driver’s License (CDL), or for the unfortunate souls who are facing a second or third offense, and are forced to choose their poison between oppressive sobriety courts and a prison sentence. For the average person, and impaired driving (less serious offense to Operating While Intoxicated) can have many beneficial results. However, for the client who carries a CDL, an impaired will cause him to lose his CDL for up to 3 years, which will cost him his job. For the second or third offender, another conviction will cost them their license, their job, and their freedom.

In the end, sometimes the only thing left to do, is fight. Fight the prosecutors. Fight the government. Force them to prove their case beyond all reasonable doubt. Make them convince the jurors that the client should no longer be entitled to the presumption of innocence. Sometimes the jurors are the only persons willing to listen to us; to hear our case; to carefully weigh the evidence. When we exercise our right to a trial by jury, we exercise a right that was held sacred by the framers of our Constitution: the right to have our fellow citizens—not the government—decide our respective fates. Fighting may be your last, best hope.

-Patrick William O’Keefe