Scientific & Legal Defenses to a DUI Charge

The legal limit in Michigan is .08, but there are several scientific and legal defenses to a drunk driving charge. Government ad campaigns and slogans such as, "Over the Limit, Under Arrest," coupled with a misguided faith in the legal system result in many wrongful convictions. Unwittingly, innocent people accept plea agreements every day based upon faulty chemical tests. In other instances, guilty people plead guilty when legal defenses could have been successfully raised. The vast majority of DUI cases go unchallenged.

Machines, as well as police officers, make mistakes. A person accused of operating while intoxicated should never be overwhelmed by misgivings and doubt just because the government's machine claims that the driver was above the legal limit. Likewise, a guilty person should never assume that the police officer's case is rock solid. Police officers who make mistakes typically acknowledge those mistakes, and simple human error can result in a dismissal.

Blood Testing

Advantages: Blood testing is often times referred to as the "gold standard" for making a forensically sound determination of a person's blood alcohol level. Blood testing is a direct measurement of the subject's actual blood, so there is no need to extrapolate the result based upon any type of biological conversion factor.

Disadvantages: Blood testing is not convenient, and it requires additional time for the officer to transport the subject to a medical facility. The longer it takes to draw the blood sample, the less relevant that test is to the actual offense. Most forensic scientists agree that a test must be performed within 2 1/2 hours to be relevant, although Michigan courts do not exclude test results based upon time.

Blood testing requires properly trained medical personnel due to the increased risk of infection and transmission of various blood borne illnesses. Blood testing is also extremely intrusive and may be painful. If a person is really guaranteed the right to be free from unreasonable search and seizure, it seems that there can be no greater violation than drawing a person's blood to use the contents of that blood to incriminate him or her.

Blood testing is expensive. In order to properly analyze a blood test sample, the Michigan State Police employ about a dozen laboratory analysts in Lansing. Each of these technicians are paid an annual salary that adds up significantly over time. Moreover, these technicians require expensive equipment. Blood samples must be properly stored in expensive laboratory grade refrigerators. The instrument used to test for blood alcohol levels costs approximately ten times as much as a breath machine, and the state requires more than one of these devices. The instrument used to test for the presence of drugs costs ten times more than the alcohol testing instrument, and yet another instrument is used to perform preliminary drug screens.

Blood testing requires too many witnesses at increased expense. Since a person charged with a crime has the right to confront witnesses in court, laboratory technicians must travel to remote courts from Lansing every time a case proceeds to trial. The medical personnel who drew the blood must also appear at trial. Without these witnesses, the prosecutor is unable to introduce the blood test result.

The reliability of the blood test relies upon a state employed witness who is often times biased. The Michigan State Police's laboratory analysts are tagged as "experts" by prosecutors across the state, and even the Michigan State Police grant them the title of "forensic scientist" as opposed to "laboratory technician." Given that these people are frequently dragged to court at the insistence of defense counsel, they develop an adversarial relationship with the defense bar, whose job frequently involves an attack on the forensic reliability of the test. As a result, the lab is not open to inspection by the defense, and the lab is hostile to disclosure of relevant documentary evidence. The technicians have not received advanced degrees in toxicology, but they are familiar with resources that tend to support a prosecutor's argument. In other words, they are prepared to advocate a position that supports an inference of guilt, even though the underlying should be objective and dispassionate.

Blood testing takes too much time. Given that all blood samples must be transported to Lansing, the shipment of the blood sample takes time. Depending upon the number of samples received, the lab might be backed up when a sample is received. During the transportation phase and while the blood awaits testing at the lab, fermentation may occur in the sample. Glucose present in the blood may ferment and change into alcohol that is otherwise indistinguishable from alcohol that subject may have consumed.

Disadvantages of Hospital Blood: Hospital blood is introduced in only a limited number of cases, particularly when an accident requires treatment and blood is drawn for medical purposes. Nonetheless, this blood test is usually performed within a few hours of the driving, and the analysis is made available for doctors to use in deciding an appropriate form of treatment. Some of the primary problem with hospital blood involve the testing method. Hospitals do not employ the same equipment used in Lansing. Speed is more important than accuracy when it comes to hospital blood testing. The hospital forms that detail the blood alcohol test results typically contain a large, prominent disclaimer that, "These results are not for legal purposes." It seems on its face that there might be problem with using something for legal purposes when it makes these specific disclaimers.

Hospital blood is generally not intended for legal purposes because trauma can lead to bizarre alcohol readings. If a person suffers an injury, chemicals are released in the body that might be construed as if those chemicals were alcohol by the testing method employed by hospitals. Similarly, the introduction of certain fluids (known as ringers lactate) into the body by hospital staff will also result in an apparently positive alcohol reading, even if no alcohol is actually present in the body.

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