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What Defenses Are Available To Defeat DUI Charges In Michigan?

by | Oct 3, 2022 | DUI Offenses |


There is a common misconception among many people (and even some lawyers) that DUI charges in Michigan are unbeatable.  It’s not hard to see why.  Police officers at a traffic stop usually have the driver undergo a series of field sobriety tests before making an arrest.  Afterwards, the police officer will obtain a blood alcohol content test from either the breathalyzer device at the police station or from a blood draw at the hospital.  The driver cannot refuse these tests under Michigan’s implied consent law without consequences to that driver’s operator license.  When it comes to DUI charges, it really is a stacked deck against the defendant and the vast majority of defendants go to court only to plead guilty.  Even with a reduced charge to operating while visibly impaired, a person found guilty will still have significant fines and costs, possible community service, probation, possible jail time and license restrictions, suspensions or even revocations.

However, there are defenses in a DUI case that, if the facts and circumstances apply, can result in a dismissal or acquittal of the charges against you.  Although not an exhaustive list, the following defenses can lead to a successful outcome of your case:



A traffic violation or civil infraction provides sufficient cause to justify the stop of a vehicle. People v Kazmierczak, 461 Mich 411, 420 n 8; 605 NW2d 667 (2000).  Whren v United States, 517 U.S. 806; 116 S.Ct. 1769; 135 L.Ed.2d. 89 (1996).  An actual traffic violation of the vehicle code does not be proven, but rather the police officer’s reasonable impression that a violation may have occurred is what matters for determining a proper stop. People v Fisher, 463 Mich 881, 882; 617 NW2d 37 (2000).

The police officer will likely testify as to the reasons why the traffic stop was valid, but a skilled criminal defense lawyer that obtains the dashboard camera to the patrol vehicle and finds inconsistencies in the officer’s testimony may be able to impeach his or her account of the basis for the stop.  In addition, the observed behavior may not actually amount to a traffic violation (e.g. weaving inside of a traffic lane without crossing the line is not illegal).  If the traffic stop is determined to be improper under the Fourth Amendment for lack of proper search and seizure, then any evidence obtained as a result of the traffic stop will likely be suppressed and the case will have to be dismissed.



A police officer that stops a vehicle on suspicion of intoxicated driving will need probable cause before making an arrest.  Usually, this means the police officer will make the driver perform field sobriety tests to demonstrate that he or she was not impaired by drugs or alcohol.  The Standardized Field Sobriety Test of the National Highway Traffic Safety Administration used by Michigan law enforcement actually consists of three different tests. The first is the horizontal gaze nystagmus (HGN) test where the police officer will observe the eyes of a subject as he or she follows a slowly moving object such as a pen, finger or flashlight horizontally with his or her eyes to find indicators of intoxication.  The second is the walk-and-turn test where the police officer directs the subject to take nine steps, touching heel-to-toe, along a straight line. At the end of those steps, the subject must turn on one foot and take nine additional steps, touching heel-to-toe, in the opposite direction.  The third is the one-leg stand test where the police officer directs the subject to stand with one foot about six inches off the ground for 30 seconds and then directs the subject to put his or her foot down.

The police officer uses these test to find signs of intoxication such as inability to follow directions, loss of balance, and inability of the eyes to follow a moving object.  However, if the police officer failed to administer these tests according to the standardized procedures or failed to give proper instructions, then the field sobriety tests can be determined to be faulty and negate probable cause for the basis of the arrest (leading to acquittal or dismissal).  The dashboard camera of the patrol vehicle and the video/audio of the officer’s body cam will reveal if these tests were performed according to proper procedures.



After an arrest on suspected DUI, the police officer will request that you take either a DataMaster breath test at the police station or be taken to a hospital for a blood test for the purpose of obtaining a blood alcohol content sample.  Even if the driver refuses, a police officer can obtain a warrant signed by a judge or magistrate to obtain this breath test or blood test.  Law enforcement is required to follow specific procedures for the collection of blood alcohol content evidence from a Datamaster machine at the police station.

The results of breathalyzer tests are admissible as evidence at trial provided the prosecution meets three foundational requirements: (1) the operator administering the test is qualified; (2) the proper method or procedure was followed in administering the test; and (3) the testing device was reliable. People v Kozar, 54 Mich. App. 503, 509, n 2; 221 N.W.2d 170 (1974).  There used to be a requirement that the test was performed in a reasonable amount of time after the arrest for admissibility, but this was overruled in People v Wager, 406 Mich 118; 594 NW2d 487 (1999) and any unreasonableness in the time to administer the test goes to the “weight” of the evidence, not admissibility.  Some of these procedures in administering the test include the machine having been tested for accuracy weekly and was properly calibrated, that the subject was observed for fifteen minutes before the test to ensure objects were not placed in his or her mouth, and that any error messages were properly resolved for a valid sample.

If these standards were not followed, then the defense attorney can move to have the breath testing evidence suppressed prior to trial.  If successful, the loss of the BAC evidence is usually fatal to the prosecutor’s case.



Instead of submitting to a breath test, the driver may elect to instead go to the hospital for chemical testing by having his or her blood drawn.  Only a licensed physician or an individual operating under the delegation of a licensed physician may draw blood under Michigan’s implied consent law (e.g. phlebotomist).  When a person is drawing blood pursuant to the request of a police officer (whether by consent or warrant), the person will use a blood draw kit provided by the Michigan State Police. The kits contain a non-alcohol swab, two stoppered vials containing sodium fluoride to prevent coagulation and to prevent neogeneration of alcohol in the vials, and stickers to seal the box for mailing to the Michigan State Police crime lab.  In addition to the collection procedures, the technicians at the Michigan State Police forensic laboratory must follow specific procedures for handling and testing the blood samples.

For the purposes of admissibility of the blood tests at trial, the Michigan Court of Appeals has set forth certain requirements that must be met to ensure the integrity of the blood draw and analysis.  “[T]he party seeking introduction must show (1) that the blood was timely taken (2) from a particular identified body (3) by an authorized licensed physician, medical technologist, or registered nurse designated by a licensed physician, (4) that the instruments were sterile, (5) that the blood taken was properly preserved or kept (6) and labeled and (7) if transported or sent, the method and procedures used therein, (8) the method and procedures used in conducting the test, and (9) that the identity of the person or persons under whose supervision the tests were conducted be established.”  People v Cords, 75 Mich App 415, 427, 254 NW2d 911 (1977).

If these procedures are not followed, then the defense attorney can move to have the blood testing evidence suppressed prior to trial.  Like the breath test, it is usually fatal to the prosecutor’s case if the blood test is excluded and could result in dismissal.



After you are arrested, the police may attempt to interrogate you to get more information about the DUI incident.  Specifically, the police will try to obtain confessions that you were drinking or consuming drugs shortly before driving and that you were operating the vehicle.   However, before these custodial interrogations can take place, the police have to advise the suspect of their rights as enumerated in Miranda v. Arizona, 384 U.S. 436 (1966).  In most jurisdictions, the “Miranda warnings” that police officers must make to the suspect prior to questioning looks like this:

  • “You are under arrest. Before we ask you any questions, you must understand what your rights are.”
  • “You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions.”
  • “Anything you say can be used against you in a court of law.”
  • “You have the right to talk to a lawyer and have him present with you while you are being questioned.”
  • “If you cannot afford to hire a lawyer, one will be appointed to represent you at public expense.”
  • “You can decide at any time to exercise these rights and not answer any questions or make any statements.”
  • WAIVER: “Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?”

The police must read these warnings to you before a custodial interrogation or else the information extracted may not be admissible at trial.  When you are in a “custodial interrogation”, then it means two things. First, being in custody means you are either detained or arrested by the police and not free to leave. If a police officer asks you questions on the side of the road where you could walk away at any time, you are NOT in custody and the Miranda warnings do not apply. An interrogation means that the suspect is giving answers in response to questions asked by law enforcement. An interrogation DOES NOT apply to unsolicited, voluntary statements made to police officers without being prompted. For example, if a suspect is riding in the back of the police car and screams at the top of his lungs “I DID IT” without a single word being said by police officers, then it does not qualify as an interrogation subject to Miranda warnings.

The remedy for a defendant where the police obtained a confession without the Miranda warnings given beforehand is suppression of that statement. Under the exclusionary rule, a judge can determine that the confession is inadmissible at trial and will not be heard by the jury.  If the statements made were critical to the prosecutors’ case, then it can result in a reduced charge or a possible dismissal.



Any DUI charge requires the prosecutor to prove beyond a reasonable doubt that the defendant was operating a motor vehicle.   According to MCL 257.35a(a), “operate” or “operating” means “[b]eing in actual physical control of a vehicle.”  In People v Wood, 450 Mich 399; 538 NW2d 351 (1995), the Michigan Supreme Court concluded “that ‘operating’ should be defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property… [and] [o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.” Id at 404-405.  A person sleeping at the wheel of a vehicle that is turned off is not “operating” the vehicle.

However, appellate courts have broadly defined what it means to “operate”.  In People v Yamat, 475 Mich 49; 714 NW2d 335 (2006), the Michigan Supreme Court reversed and determined that, [a]s applied to the facts of this case, defendant’s act of grabbing the steering wheel and thereby causing the car to veer off the road clearly constitutes ‘actual physical control of a motor vehicle.’” Id at 339-340.  In that case, the defendant was a passenger in the vehicle his girlfriend was driving and, as she drove, the defendant grabbed the steering wheel during an argument and turned it sharply, causing the vehicle to veer off the road and strike a jogger.  It does not necessarily mean you have to be in the driver’s seat, but you must have some kind of control over the vehicle’s movement.

If the prosecutor cannot prove that the defendant was operating the vehicle, then the case will likely result in acquittal or dismissal.



If the defendant used mouth wash or consumed cough drops, then it can result in false positive alcohol results on the DataMaster machine.  In addition, inhaling asthma spray, hairspray or even paint can produce false results because these items contain alcohol.  Finally, a defendant with diabetes will create yeast in their bodies that can artificially create a blood alcohol result.  These phenomena can be explained by the defendant’s own testimony or by expert witness analysis and could be effective where there is little evidence of bad driving.



Michigan DUI cases are difficult to fight, so it is important to consult with a criminal defense attorney as soon as possible to determine if you have a case.  Evidence such as dashboard videos, body cam footage and physical test samples must be preserved early before they are disposed of.  Police officers and other witnesses can forget important details.  Motions to suppress or exclude evidence must be filed before trial to be effective.  A strong defense showing could motivate the prosecutor to reduce or even dismiss the charges against you.  If you simply plead guilty at the first court appearance, you will never know if your case could have been resolved differently.  The decision to accept a plea bargain, go to trial, or simply plead guilty should be made after consultation with a skilled defense lawyer.

If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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