So what happens when a prosecutor is accused of a DUI?  Well, The Detroit News reports:

Friday, February 13, 2009

Warren assistant city attorney accused of drunk driving

Charles E. Ramirez / The Detroit News

WARREN  — An assistant city attorney has been arrested for drunk driving, city officials said today.

Officers arrested Assistant City Attorney Jeff Schroder at about 2:30 a.m. Friday in the Van Dyke and Toepfer area, said Warren Police Commissioner William Dwyer. Police do not know where Schroder was coming from or where he was heading, Dwyer said.

Officers administered two Breathalyzer tests which showed Schroeder’s blood-alcohol content at .07 percent and .08 percent, according to authorities. In Michigan, the legal limit is .08.

In addition, Schroder volunteered to have blood drawn at a local hospital for a blood-alcohol test. The sample will be sent to the Michigan State Police Forensics Laboratory in Lansing for analysis, Dwyer said.

Schroder was cooperative with police, the commissioner also said.

The City Attorney’s Office will request the Macomb County Prosecutor’s Office to handle the case, Mayor Jim Fouts and Commissioner Dwyer said.

“The decision on whether the 37th District Court for Center Line and Warren will hear the case will be made by the District Court Judges since he does appear before them as a city prosecutor,” Fouts also said.

“However, given his responsibilities concerning law enforcement, he is being disciplined commencing immediately, and his work assignments will be modified for the immediate future.”

It is immediately apparent that this case is borderline at best, with the first breath test revealing a legal breath alcohol score. What is interesting is how the police accommodated a blood test. And not just any blood test, but a whole blood sample for testing at the Michigan State Toxicology Lab.

The average motorist accused of a DUI would not get the same treatment.

Although drivers accused of DUI are informed that they have a right to an independent test if they submit to the police officer’s test, the Michigan Supreme Court ruled in 2005 that this right is merely a “statutory right.” If a police officer violates that right, jurors are informed that the right to have an independent blood test was violated by the police. No other remedy is permitted because the motorist does not maintain a constitutional right to have an independent blood test. And jurors typically say, “So what?”

Wait, it gets worse. If you exercise your right (and the police do not violate it), the hospital will refuse to permit a whole blood sample to be analyzed. Even though the Michigan State Toxicology Lab kits sit around for the police to use, an accused driver is forced to accept a serum or plasma blood analysis or no test at all. Serum and plasma tests remove all hemocrit from blood sample, so only the alcohol and water remaining in the sample are analyzed. This results in much higher alcohol readings than a whole blood sample.

In this case, we can also guess that the police took their time driving to the hospital before taking the blood sample. Knowing that the breath alcohol was borderline, an hour or two delay would result in metabolic elimination of approximately .017 to .034, reducing the blood alcohol to .06 or perhaps .05 BAC.

With a test result of .07 and .08, most prosecutors would choose to charge a driver with drunk driving, even though one of the test results reflects a legal breath alcohol content. And any time there is delay prior to chemical testing, the state toxicologist would testify that the driver’s blood alcohol was higher at the time driving, claiming expertise in “retrograde extrapolation.”

Somehow, I just don’t see that happening in this case.  Quite frankly, I’m surprised that the prosecutor was even arrested.