1. Tell me where you were before being approached by the police? Most clients are somewhere consuming alcohol. This could be your home, a bar, restaurant, party or another venue. This information will give your attorney a starting point in determining your alcohol consumption and time frame, which the alcohol was consumed.
2. What were you drinking, and how much? Drinking beer, wine or liquor makes a difference, and of course the amount of alcohol you consumed. You may not remember exact amounts, but even a good guess or estimation will give your attorney a lot of valuable information to assess your case.
3. When and how long ago did you consume alcohol prior to being approached by the police? I always use this example with clients. If you’re stone cold sober, and you do a quick shot of alcohol, and jump behind the wheel, your blood alcohol content is going to be at 0.00 for a short period of time. Only after some time passes, will your body absorb the alcohol, and you will register a blood alcohol content. This important information will allow your attorney to compare the test results to what you actually consumed.
4. How did the police approach you? I don’t use the phrase “traffic stop” because some Michigan drunk driving cases don’t start with a true traffic stop. Some clients are approached while parked in a parking lot or after a car accident. Depending upon this answer, the law will view your case in different ways, and present you with different options.
5. What was the conversation like with the police officer? Some interactions begin with a calm and polite inquiry by a police officer, and some start off as an immediate interrogation. The officer may ask for your driver’s license and registration, and inquire to your whereabouts prior to this conversation. You have a right not to speak to the police officer, but most people will cooperate and provide some information.
6. What did you tell the police about driving? This seems like an odd question, but in a case where you’re not observed driving a vehicle by a witness, the prosecutor may have difficult proving that you were driving, which is one of the two elements of Michigan drunk driving cases. This could be the case if you’re observed outside of a car, after a traffic accident or you’re found parked on the side of the road. If you make a statement about driving the car then it may make the prosecutor’s case a lot easier to prove.
7. Did you tell the police you consumed alcohol? While a police officer is trained to detect consumption of alcohol, and you may take tests that show you consumed alcohol, your own statements about alcohol could be important evidence. There’s a big difference between telling a police officer you drank a beer an hour ago, versus you just polished off ten beers at the pub. Believe it not, recent consumption of alcohol could be more favorable for your case.
8. Did the officer have probable cause to arrest you? Now you may not be familiar with this term, but your attorney will flush out whether or not the officer made a legal arrest. Police officers in Michigan need probable cause to make an arrest. Officers need a certain level of evidence that you violated one of the drunk driving statutes in order to legally arrest you. This evidence will come from your statements, along with field sobriety tests, observations by the officer and a portable breath test.
9. What field sobriety tests were performed? This could be reciting the alphabet, counting, the one-legged stand, the walk-and-turn, and a number of other tests. The results of these tests will help or hurt your case. I also find it interesting, which tests are offered to certain people in different situations. Most clients fail these tests, because police officers will find any reason to fail a subject.
10. What sort of observations did the officer make? While this information will be contained in the police report, it’s important to hear from the source.
11. Was there an odor of alcohol? Alcohol has no odor! At trial, when the officer is questioned on cross examination of whether the smell was from beer or wine or mixed drink, it is clear that they have no independent recollection of what they smelled.
12. Did you have bloodshot or watery eyes? The officer will have to admit that they do not know what your client's eyes normally look like. They will have to admit that they don't know how long a client had been awake that day or what sort of eyestrain they may have experienced during the day. If a photo was taken of your client by the officer or at the jail, try to take a look at it to see if the eyes look normal in the picture. Also, at trial, sometimes the client’s eyes will look bloodshot and it is a not a waiver of the Fifth Amendment right to remain silent by having the officer observe the client's eyes at trial and testify that they are bloodshot.
13. Did you have slurred speech? Again, the officer will have to admit that they do not know your client's normal speech pattern. The officers have forms which have checkmarks to fill in for these observations and field sobriety test results. On cross examination, it is often clear that the officer has no independent recollection other than what was checked on this form. Thus, an effective way to attack testimony about slurred speech is to ask the officer whether he understood what the client was saying. Then the officer should be asked whether the client slurred every word or just some words. Very often, the only slurring was the client rapidly saying the letters LMNOP while doing the alphabet.
14. Did you take a portable breath test, and were you read your rights? These test results can help form the basis of probable cause for arrest, but generally (minus a few exceptions) are not admissible at your trial. A police officer cannot force you to take this test; you should have been read your rights, and been informed that failure to take this test will result in a civil infraction. THAT IS ALL! You will not lose your license if you refuse this test. The officer may say that you will go to jail if you refuse, technically this might be true, but its not because you didn’t take the test, it’s because you’re going to jail already, unless you can show your blood alcohol content is below the legal limit. Even then the officer may still arrest you.
15. Once arrested, were you read your chemical test rights? Like the portable breath test, a police officer must read you your chemical test rights, and inform you of the consequences of not taking the officer’s choice of test. Failure to take a chemical test results in an automatic one year suspension of your license and 6 points on your master driving record. From there, the police officer can seek a warrant to draw blood, which could provide for evidence to be used against you.
16. Assuming you took a DataMaster test, did the officer observe you for 15 minutes, and check your mouth for foreign objects? The DataMaster training manual states that the operator of the machine, must observe a subject for 15 minutes prior to administering the DataMaster test, and check the subjects mouth for foreign objects, which might affect the results of this chemical test. It may be possible to obtain a video of this test, but usually the client can provide this important information.
17. Assuming you had blood drawn instead of the DataMaster test, who drew the blood, and were certain procedures followed? There are very strict protocols for drunk driving cases where the police obtain blood evidence from your person. One major red flag is the use of rubbing alcohol on the skin prior to drawing blood. Another issue is whether two vials of blood were taken, and sealed in a Michigan State Police blood kit.
18. How were things left with the police officer? Most clients charged with a DUI will be released within a short period of time. You be granted a cash bond by the police officer, and given a court date or told that you will be receiving something in the mail with your first court date. This could give your lawyer more information about how your case is scheduling going forward.
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