I meet new clients charged with drunk driving under two different circumstances. All clients have been arrested and processed by the police, some may have a court date set, some may not; some clients may not even be charged yet due to a delay in receiving the chemical test results (usually blood).
The two different types of clients are either pre-arraignment or post-arraignment. In Michigan, a person charged with a DUI will appear before a judge or magistrate unless an attorney has waived their appearance; some courts allow this, some do not.
If my new client has not be arraigned yet, I will actually put some of our own bond conditions in place in anticipation of what a judge may order, which will make us look good when we appear before a judge with items already in place. If my client has been arraigned, we discuss following those conditions, and we usually add additional proactive elements.
When a judge in Michigan sets bond in a drunk driving case, the law requires the arraigning magistrate or judge to take into consideration the risk of flight and the potential risk of harm to the public when making a decision to release a person on bond.
Most DUI clients do not have a flight risk, but there is a risk of consuming alcohol or drugs while out on bond, and re-offending; this is a worst case scenario for a judge; a person charged with a DUI, getting another DUI while on bond with the court.
Conditions of bond requiring the defendant to refrain from the use of drugs or alcohol and monitoring the abstinence of the defendant are routine and will help alleviate the judge’s concern about public safety. The ability to monitor sobriety can justify a personal or nominal bond when risk of flight is not an issue. Most clients arrested for a DUI are issued a personal bond or a reasonable 10 percent provision on a larger amount.
Here are some common factors that a magistrate or judge would consider in assessing the appropriate bond:
(a) defendant’s prior criminal record, including juvenile offenses;
(b) defendant’s record of appearance or nonappearance at court proceedings or flight to avoid prosecution;
(c) defendant’s history of substance abuse or addiction;
(d) defendant’s mental condition, including character and reputation for dangerousness;
(e) the seriousness of the offense charged, the presence or absence of threats, and the probability of conviction and likely sentence;
(f) defendant’s employment status and history and financial history insofar as these factors relate to the ability to post money bail;
(g) the availability of responsible members of the community who would vouch for or monitor the defendant;
(h) facts indicating the defendant’s ties to the community, including family ties and relationships, and length of residence, and
(i) any other facts bearing on the risk of nonappearance or danger to the public.
In my experience, the number one bond condition for a drunk driving case will be alcohol testing during the case. If alcohol testing has not already been ordered, my clients typically engage in their own proactive alcohol testing to make a good impression on the key players in the case, and to demonstrate sobriety. I will always try to help my client determine the best course of action for testing, which allows them to live a normal life outside of the courthouse.
I have many professional clients who would prefer to avoid the inconvenience of the standard court ordered testing. For many of my clients, we're able to setup alternative testing, which better fits their schedule, and still accomplishes the goal of the judge, if not goes beyond what a judge ordered.
Currently, the following methods are available to test for the presence of alcohol:
Preliminary breath tests (PBTs). The most common and least expensive method used to ensure sobriety is to require a defendant on bond to appear at a testing facility for a breath test on a PBT machine. The judge may order the test to be performed daily or a random number of times per week. Because alcohol is fairly quickly metabolized, the defendant is usually directed to appear before 9:00 a.m. to submit to a test and sometimes for an evening test as well. Daily testing is often required if the defendant is charged with a second or subsequent offense or if there are other indicia of a substance abuse disorder. The time for testing may vary based on a defendant’s work schedule, with the idea being to conduct the test at a time most likely to detect a drinking incident.
Transdermal alcohol tethers.
These devices have the ability to detect the use of alcohol around the clock. The units contain sensors that test the concentration of alcohol present in the insensible (evaporates before it is perceived) perspiration that is constantly given off by the skin and tests and stores data obtained every 30 minutes, 24 hours per day. In addition to the sensor that tests for the presence of alcohol, other sensors monitor vital signs to ensure that the unit remains on the defendant and to verify that there is no obstruction between the skin and the unit. These units present an option that may be preferable to breath tests for both the defendant and the judge. For the defendant, it eliminates the potentially time-consuming need to report to a testing facility.
From the judge’s perspective it is a far superior means of monitoring abstinence and provides a measure of assurance that the risk of harm to the public is being diminished. While outfitting the defendant with a transdermal unit is more expensive than appearing for once-a-day testing, it becomes more cost neutral if testing is required twice a day after the payment of the initial installment fee. The convenience of these devices is worth the expense for certain individuals and can be used as a rationale for a personal or nominal bond.
In-home Breathalyzers. These devices, equipped with a camera to verify the identity of the user, plug into a regular wall socket and do not require a telephone line. Data is stored and downloaded at the provider’s offices weekly or biweekly as directed by the court. As the technology has advanced, some providers offer devices with cellular connectivity so results are constantly transmitted, eliminating the need for downloading data. Having an in-home unit alleviates the requirement for the defendant to appear at the testing agency and can be a valuable and practical option for many defendants. These units are more expensive than regular testing but allow for more flexibility with work and family scheduling.
Ignition interlock devices. Installed in a vehicle, these devices require the driver to perform a breath test before the vehicle can be started. Interlock devices now come equipped with a camera to identify the person performing the test.
Ethyl glucuronide (EtG) or Ethyl sulfate (EtS) alcohol testing. These tests measure the amount of EtG or EtS metabolites of alcohol in urine. Depending on the amount of alcohol consumed, the test may be able to detect the presence of alcohol consumed for up to 72 hours before the test is performed. The cost of this test is more than a breath test; however, a judge will usually order the defendant to test less frequently than with PBTs. This test may be beneficial to a defendant who works odd hours or travels as part of his or her schedule.
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