How the prosecutor views your Michigan DUI - Big Yummy Bowl of Pasta? Watch out for that cockroach

I see it often; we open the police report, and there's a BAC of 0.16 or above.  We look at the reason for the police stop, client going 50 in a 25 MPH zone.  My first thought goes back to being a prosecutor, and how "easy" these type of cases were to prosecute. 

As a former NYC and Michigan prosecutor, I would relish the chance to get before a jury and use the phrase "double the speed limit, double the legal alcohol limit".  Straight forward, to the point and clear to the jury just how guilty the defendant is for this case.

For a DUI in Michigan, there are two elements to prove.  The prosecutor needs to show "operation" which is driving - the law defines the ins and outs of operating, but most cases, the person is moving the vehicle on the road, and not parked.

For a case like this, "double the speed limit" makes it quite clear I have the first element.  Not even the defendant disputes he was driving, but it throws in that extra little element of dangerous speeding, you can't say it, but that wording helps the prosecutor create the thought "well you shouldn't like the defendant, he's a bad dude who speeds in your neighborhood". 

Then the prosecutor needs to show the defendant is either over the legal limit of 0.08 or exhibiting evidence of intoxication.  Most cases have a BAC level, and there are many ways to challenge the Datamaster or blood results, but the majority of DUI attorneys in Michigan have no idea what they are doing or how to create the proper amount of doubt.  

As a prosecutor, I get my cop up there who gave the gave test, and he goes over the steps with the end result being something like "the defendant registered a 0.16".  It's a lot more complicated than this and a good DUI attorney in Michigan will attack "the work" on how we got there. 

The prosecutor and law enforcement must "show their work" just like in grade school; having the final answer isn't enough, because cheating or guessing aren't admissible in Michigan.  The showing the work part is boring, and a good DUI defense attorney can confuse the jury enough or get them to think about reasonable doubt.  As a prosecutor, I have the clearest story to tell "double the legal limit" implying the "he's 2x guilty, not just guilty but really guilty".  

Of course there is no such thing as REALLY GUILTY in the criminal justice system, but if the guilty cutoff point is 0.08, and you can say well he was two times that, it's quite effective.

So as a criminal defense, how the heck do I prevent this from being used against my client? Well there's three ways.

1. The prosecutor isn't any good, and doesn't do any of this, which is a break.

2. We avoid going to trial, because we know perception will be bad.  And I don't mean just roll over and accept the first deal offered and get the standard crappy judge sentence.  My clients are proactive from day one, and we create many options that may not be available in the typical case.  We also change the perception of the case with the judge.

3. We go to trial and lead with the bad.  I will play the role of the prosecutor with the jury and tell them just how bad the case is going to sound to them.  Why let the prosecutor do it? It sounds a lot worse if we appear to be on the defense, allowing the prosecutor to drop these bombs.  I tell the jury, yes my client was going double the speed limit, and yes the TEST SAYS he was double the legal limit.  

To me it doesn't matter what the BAC number is, because we're going to cast enough doubt on the "show your work" part of the case.  I am not going to fight over 0.16 or 0.14 or even try to get to 0.08, because that's asking a jury to do too much, you want to make their job as easy as possible.  If you can get them to agree to throw the whole process out and disregard the result then it doesn't matter what the machine said.  

Let's make believe the "show your work" and the prosecutor's chemical test is a big bowl of yummy pasta, with sauce, cheese, and lots of flavor.  Yum. it tastes good, and it looks even better.  I tell the jury just how good it's going to look and taste if they eat it.  I am not going to fight with the prosecutor over the type of pasta, the sauce or cheese selection or the flavor.  

People don't like drunk drivers, so fighting over just how drunk the client was doesn't make a lot of sense.  I instead force the jury to throw out that yummy bowl of pasta. How? 

I throw a big gross stinky cockroach into the pasta bowl.  Gross right? Nobody is going to salvage the bowl, or take it out then chow down.  That just doesn't happen.  There's different ways to do this, but it begins with discrediting the chemical test.  If you show a jury a reason to doubt the process, that's your cockroach, and it doesn't matter just how appealing the evidence is, you just toss it out and move on.