Drunk Driving is one of the most common crimes in Michigan.  Everywhere you go, you hear “Don't drink and drive” and all of the other slogans designed to persuade people not to drive drunk.  It is legal to drink and drive.  It is illegal to drive while impaired or intoxicated by alcohol or drugs.  Many people think once they have been arrested they are guilty and just need to accept their punishment.  This is not always the case.  Often there are valid defenses to a drunk driving charge.  Much is at stake.  You should always thoroughly discuss your case with an experienced drunk driving defense attorney before you go to court.  Contact Mitch Foster Law right away to discuss your legal rights and your possible defenses.

DEFENSES TO OPERATING WHILE INTOXICATED OR OPERATING WHILE VISIBLY IMPAIRED

• Not operating a motor vehicle

• Not operating a motor vehicle in an area generally accessible to motor vehicles

• Not intoxicated or impaired
  • Breath testing results are not accurate   
    • Improper maintenance of the Datamaster breath test machine
    • Improper use of the Datamaster breath test machine
    • Gastroesophageal Reflux Disease (GERD)
    • Mouth Alcohol
  • Blood testing results are not accurate
    • Contamination of blood sample
    • Exposure to air
    • Not sufficient preservative in the collection tube
    • Expiration of preservative
    • Lack of refrigeration during storage and transport to crime lab
    • Blood plasma was tested rather than whole blood, giving an artificially high result
  • Successful completion of Standardized Field Sobriety Tests (SFST's)
  • Good driving
  • Good dexterity
  • Good general appearance and demeanor

EXPERT WITNESS ASSISTANCE

A successful DUI Defense very often requires the use of an expert witness.  Expert witnesses can be expensive, but often can mean the difference between winning and losing.  Experts can do an analysis of your case, and if necessary appear in court for evidentiary hearings and trial.  Experts can testify to specialized knowledge in several areas, including:

• Standardized Field Sobriety Tests, Horizontal Gaze Nystagmus (HGN), One Leg Stand, and Walk and Turn
• Alcohol absorption rate and alcohol elimination rate
• Gastroesophageal Reflux Disease (GERD), when acid reflux or belching brings up alcohol from the stomach, leading to an artificially high breath test result that is higher than the person's actual blood alcohol content.
• The proper use and maintenance of the Datamaster breath test machine
• The science involved in the Datamaster breath test machine
• The degree of accuracy involved in the Datamaster breath test machine
• Analysis of the Datamaster maintenance records
• Blood testing and the difference between whole blood and blood plasma, and the artificially high blood alcohol content that could result from blood plasma testing
• Mouth alcohol and a breath test result that is too high because of the mouth alcohol
• Reliability of Eye-Witness identification  (operating defense)

OPERATING

Before you can be convicted of drunk or impaired driving, the prosecution must prove that you were “operating” the vehicle.  Operating is a legal term.  Understanding what is operating and what is not operating is critical to a successful DUI operating defense.  For example, merely using a vehicle as a shelter, even with the keys in the ignition and the engine running is not enough for a conviction of DUI in Michigan.  It doesn't matter how drunk you are, if you are not operating, you are not operating while intoxicated or impaired, and should not be convicted.

Often if the police are unsure who was operating the vehicle.  The police may think it was you by tracing the license plate of the car to your residence.  They may appear at your home and may question you to try to get you to admit that you were driving the vehicle.  You can and should choose to remain silent and not answer these questions.  You do not have to open the door and let them in unless they have a warrant signed by a judge or magistrate.  Contact Mitch Foster Law right away to discuss your rights.  Make sure you do not make a statement because you are pressured by the police or threatened by the police in any way.  It is always best to speak with a lawyer first about your rights.

REFUSING THE CHEMICAL TEST

Anybody that drives on the roads of Michigan gives “implied consent” to have the police check for alcohol in their system.  You can refuse to take a blood, breath, or urine test, but the police can get a warrant to draw your blood if they have probable cause to believe that you have been driving while intoxicated or impaired.  Refusing a blood, breath or urine test may result in an automatic suspension of your driver license, but you have a right to an administrative hearing.

It is critical to request a hearing before the Secretary of State, Driver Assessment and Appeal Division within 14 days of the refusal of the test.  If you do not request a hearing within these first 14 days, you will lose your right to a hearing.  Contact Attorney, Mitch Foster, immediately to discuss your rights and how to keep your drivers license.

If you are unsuccessful with the Secretary of State, you can still request a restricted license in the Circuit Court.