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OWI; DUI; DUID; OUIL the abc’s of avoiding bad convictions

OWI; DUI; DUID; OUIL the abc’s of avoiding bad convictions. Michael J. Nichols, Esq. The Nichols Law Firm, PLLC. Basics. MCL 257.625 OWI Alcohol OWI Schedule I Marijuana is here Other “controlled substances” Other “intoxicating substances” MCL 257.319 MCL 257.304.

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OWI; DUI; DUID; OUIL the abc’s of avoiding bad convictions

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  1. OWI; DUI; DUID; OUILthe abc’s of avoiding bad convictions Michael J. Nichols, Esq. The Nichols Law Firm, PLLC

  2. Basics • MCL 257.625 • OWI Alcohol • OWI Schedule I • Marijuana is here • Other “controlled substances” • Other “intoxicating substances” • MCL 257.319 • MCL 257.304

  3. Other Intoxicating Substances • (25) As used in this section: • (a) “Intoxicating substance” means any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance, that is either of the following: • (i) Recognized as a drug in any of the following publications or their supplements: • (A) The official United States pharmacopoeia. • (B) The official homeopathic pharmacopoeia of the United States. • (C) The official national formulary. • (ii) A substance, other than food, taken into a person's body, including, but not limited to, vapors or fumes, that is used in a manner or for a purpose for which it was not intended, and that may result in a condition of intoxication.

  4. The Stop • People v Barbarich291 Mich App 468 (2011) • United States v Freeman 209 F3d 464 (6th Cir 2000) • Reasonable Articulable Suspicion? • 392 US 1; 88 SCt 1868 (1968) • Probable Cause that a Motor Vehicle Code Provision was Violated? 517 US 806; 116 SCt 1769 (1996) • The Michigan Vehicle Code, MCL 257.601 • Loud • Too Heavy • HUNDREDS

  5. The MVC Gives Cops Rules Too • Sec. 742. (1) A police officer who witnesses a person violating this act or a local ordinance substantially corresponding to this act, which violation is a civil infraction, may stop the person, detain the person temporarily for purposes of making a record of vehicle check, and prepare and subscribe, as soon as possible and as completely as possible, an original and 3 copies of a written citation, which shall be a notice to appear in court for 1 or more civil infractions.

  6. Once Stop Made • It is a detention • 440 US 648; 99 SCt 1391 (1979) • Removal of the Vehicle is a SECOND detention with fresh PC required • People v Rizzo 243 Mich App 151 • STRONG Odor of Alcohol

  7. Roadside Evidence Gathering • SFST’s • Non-SFST’s • The 3 SFST’s • The Non-SFST’s • 2006 NHTSA Student Manual • “if the tests are not administered in the prescribed manner … the validity is compromised.” (USDOT.gov/NHTSA/DWIDetectionStudentmanual; VIII-19)

  8. Breath Testing

  9. .08g ETOH/210 L of … • “we want breath from the deepest part of the lung … that’s where the breath is most representative of the blood.” • Dave Radomski, Vice President, National Patent Analytical Systems • Alcohol Profile Display • That’s how you see the QUALITY of the breath • TURNED OFF!

  10. BREATH TESTING

  11. Blood • Pre Analytical • Preservation • Sampling Error

  12. Blood Alcohol and Drug • People v Koon No. 145259. Dec May 21, 2013 • Significantly, “under the influence” is a term of art used in other provisions of the Michigan Vehicle Code. See, e.g., MCL 257.625(1)(a) (stating that a person is “operating while intoxicated” if he or she is “under the influence of . . . a controlled substance . . .”). See also People v Lambert, 395 Mich 296, 305; 235 NW2d 338 (1975) (concluding that an acceptable jury instruction for “driving under the influence of intoxicating liquor” included requiring proof that the person’s ability to drive was “substantially and materially affected”); Black’s Law Dictionary (9th ed), p 1665 (defining “under the influence” as “deprived of clearness of mind and self-control because of drugs or alcohol”). FN 14

  13. The Recipe for Beating the Number = 3 Ingredients • The 1 page lab report does not mean guilt is proved BRD – GET THE DATA!

  14. Not Effective at Detecting Low Levels • The source is the positive controls from their own data set along with what is MISSING. • The MSP is UNABLE to demonstrate how it arrived at its Limit of Detection (seeing it) and Limit of Quantification (measuring it). 2 critical components of the Method Detection Limit. • For most processes, the thing needs to be cleaned & extracted: it is CHANGED! • Wells, Prest and Russ, “Signal, Noise, and Detection Limits in Mass Spectrometry,” Technical Note. Agilent Technologies.

  15. Don’t be AFRAID of what they say • Often the lab supervisor makes statements that are helpful • “I’m absolutely positive that this is not a false positive.” • “Our data looks very nice.” • “You see nice pretty peaks.” • “I made an administrative decision to change our cut-off level for reporting from 1 nanogram per mililiter to 3 … because I want the prosecutor to have a strong case.” Geoff A. French, September 28, 2012.

  16. Find Out More • http://www.thetruthaboutforensicscience.com • http://www.bulletpath.com • http://www.cowanlawfirm.com/attorneys/ted-vosk/ • September 21, 2013: Michigan Association of OWI Attorneys (MIAOWIA) National DUI Seminar • Justin McShane • Ted Vosk • Ronald Henson, PhD.

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