0.19 BLOOD DRAW = NOT GUILTY

Originally Posted on: Nov. 03 2007,15:06 by William Maze

Even though it’s tremendously easy to add updates to this portion of the website, I almost never take the time. It’s terrible of me, but some of my biggest victories never get posted to the website because I don’t take the time to commit these cases to writing. Because of this, I’m often times asked how often do I actually go to trial. The answer is a lot!

During the week of October 22-26, 2007, I had three jury trials scheduled plus an evidentiary hearing, plus a couple of pretrials and a sentencing. There was nothing unusual about that particular week, but the three jury trials provide different perspectives of DUI cases. The first case was combined alcohol and marijuana blood draw case. The client was adamant that he was not guilty, and blood testing confirmed that he was only 0.04. Unfortunately, Michigan’s new OWPD law prohibits any amount of marijuana. Trace amounts of marijuana metabolite appeared in the client’s blood, so the prosecutors assumed the case would be an easy victory for the prosecution. (The fact that no active marijuana was found in the blood showed that the client was not under the influence of marijuana, but these are the draconian laws that have foisted onto Michigan’s citizens.) Unfortunately for the prosecution, the state lab analyst failed to appear for trial. As we started to pick a jury, the prosecutor offered to lower the charge to a reckless. The client, to his credit, was as stubborn as I am, and he said absolutely not. He wanted a dismissal and an apology! Well, he didn’t get the apology, but the prosecutor threw in the towel and offered a careless driving, which is only a civil infraction similar to a speeding ticket. With an offer that good, we couldn’t press on any more, and we called it a day.

On the second jury trial case, we had already been to trial on two or three occasions. The court continued to haul us back into court several times, but we never got to see a jury. We continued to say ready for trial, your honor over and over and over. And we kept getting put off to another date. Eventually, this wore the client down. Although she only an 0.07 with a “failure” of only one of the field sobriety tests (which was absolute nonsense), the client insisted on taking an impaired. It made me sick, but she would not go to trial. I had pulled several “0.08” posters, with slogans such as Lower Limit Tougher Law, and I was prepared to tear the officer up on his stupid field sobriety tests, but, alas, I can’t force a client to go to trial.

On the third case, the client’s options were very limited. Because she was from another state, she would have lost her license if we entered any type of plea agreement. Regardless, the prosecutor wasn’t offering much because the police officer took the case personally (having stopped her for failing to yield for emergency vehicle), and a blood draw supposedly revealed a 0.19 alcohol level. Our own independent lab had reevaluated the blood measuring 0.22 with bacteria present in the sample. Unfortunately, the lab said it was a non-fermenting bacteria, but it’s hard to imagine two different labs coming up with such different results. The client decided not to have our own lab people testify at trial. I focused on the lack of bad driving and adequate performance of the field sobriety tests, and I cross-examined the state toxicologist on various conditions that would taint the lab results. The jury deliberated for six hours and returned a stunning two word verdict of not guilty on the drunk driving charge finding her responsible only for the failure to yield charge.