When would a blood test be taken in a DUI case versus just a breathalyzer?
Under the law, the police have the right to decide what test to administer. Now, for the vast majority of the cases, they will administer the Datamaster breath test because it’s at their station, it’s easy, and it’s what they’re used to doing. However, they can use the blood draw to determine your blood alcohol level. The usual time they do that is if the person refuses to do the blood test or the breath test and then therefore they have to get a search warrant to draw and test your blood. However, there are other cases where they’ll just choose to do a blood draw. Most of the time, that involves a suspicion that perhaps there are drugs in the person’s system as well and that they’re operating under the influence of a combination of alcohol and drugs—either prescription drugs or illegal street drugs. Those are the main times when you’ll see a blood draw used.
If an accident has occurred or something to that effect, are there automatic blood draws, especially if someone’s incapacitated or something like that?
Yes. Sometimes, if the person they suspect is the drunk driver is injured in an accident and has to go to the hospital or they have some kind of injury to their mouth or maybe they have some blood in their mouth, then oftentimes, the police will request that the person do a blood draw or get one done at the hospital when they go there. Oftentimes, if there is a fatal accident and they suspect that it could be a DUI or an OWI causing death, then they would choose to do a blood draw as well because they just feel it might be more accurate and more reliable than the breath test. Sometimes, when there are accidents involved for different reasons, they will do a blood draw instead of a Datamaster test, but that’s usually up to the police officer’s discretion and based upon the particular facts of that case.
How common are DUI checkpoints and roadblocks in Michigan? Do they happen at a certain time of the year, are they legal, and do they even happen?
In Michigan, so far, DUI checkpoints are considered unconstitutional, so they don’t happen. However, I would say that there are a lot of places where the police know that people will be drinking and driving, and they may be sitting there just waiting for someone to drive by and waiting for an excuse to pull them over. In that case, it’s not a checkpoint where they stop every vehicle, but there are definitely places where the police will be more prevalent than others.
Is it legal for police to sit outside of a bar or is that kind of an entrapment situation?
Entrapment occurs on a case-by-case basis. In Michigan, the law on entrapment is very favorable to the police; they almost have to force somebody to commit the wrongdoing. I’ve seen cases where the police will drive through a bar parking lot and run license plates, which is perfectly legal, and they’ll look for vehicles that may have been associated with prior DUIs. If they know that’s at a bar and the driver had a prior DUI, they’ll often sit out across the street from that bar and wait for that car to leave, follow them, and wait for them to commit a civil infraction so that they can investigate them as a repeat offender. The police are pretty savvy about what to look for. In some jurisdictions where they have sufficient manpower or there are only a couple of bars in the area, they’ll be more likely to sit outside those bars and wait for people to leave and see if they can bust them.
What are the laws in Michigan regarding someone sitting or sleeping in a parked car while drunk? Can you be charged with a DUI in those cases? What is Michigan’s stand on that?
Michigan’s stand is basically that if you are operating the vehicle and you’re under the influence or above the limit, you can be charged for operating while intoxicated. If you’re sitting in a parked car and the car is not running and the keys are not in the ignition and you don’t tell the officer, “Yes, I was driving the vehicle,” then you probably have a good defense. If, on the other hand, it’s cold outside and you’re parked in the parking lot and the vehicle is running and you’re asleep in the vehicle, then there is a good possibility that the officer will arrest you and charge you with operating while intoxicated even though the vehicle is not moving. It’s really a situation that each officer will kind of decide for himself, but it’s not uncommon for people to be just sitting in their car and somehow end up with a DUI. Typically, the best way to handle it if you’re going to do that is to take the keys out of the ignition and sit in the backseat or the passenger seat, not in the driver’s seat. Then it becomes a lot more difficult for them to prove that you were operating under the influence.
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