Chapter 5: Discovery, Defenses, and Pretrial Motions

I.   Overview

§5.1   A successful drunk driving defense does not necessarily mean a dismissal or a not guilty verdict. Often, the most successful defense is one in which the client, while disappointed with the outcome, knows that their attorney did everything to protect the client from the inequities that may occur in the judicial system.

A good defense in a drunk driving case begins well before the attorney even meets the client or before the client has been arrested. Becoming an effective and successful drunk driving attorney requires research, study, and preparation. Like any other successful legal specialist, a successful drunk driving defense attorney knows and studies the law. This effort does not start or end with the principal drunk driving statute, MCL 257.625. The successful advocate reads and knows the Michigan Vehicle Code and the administrative rules pertaining to the DataMaster DMT or the Intoxilyzer 9000, blood tests, and urine samples. It is also important to read and follow the caselaw that pertains not only to drunk driving but also to criminal law in general as well as the civil and administrative rulings that can show trends in the appellate courts. A successful practitioner will know the rules of evidence and study proper techniques of voir dire and cross-examination. Most important, the skilled drunk driving attorney conducts thorough investigations, files and argues proper motions, holds hearings, and, when necessary, tries the case before either a judge or a jury. Finally, an effective defense counsel will be a creative thinker who is willing to share and discuss ideas with other attorneys in this common goal.

It is important to understand that while drunk driving is a crime and should be defended like a criminal case, it is also one of the only crimes where the police officer is often the only witness and in most cases there is no discernible victim.

Many attorneys feel that the Michigan courts and legislature have made the defense of drunk drivers an impossibility. This is not true. Some of the most powerful weapons in the defense attorney’s arsenal are the protections of state law and the federal and Michigan constitutions.

While some prosecutors and police officers stay current with changes in the laws, many do not. It is up to defense attorneys to make sure that if the police or prosecutor does not follow the law, the defendant can take full advantage of this omission. This often helps to level the playing field.

Many perceive that a drunk driving conviction, particularly a first offense, will have very little impact on a person. Again, this is not true. A conviction takes a tremendous toll on the average person. Most first-offense drunk drivers have never been arrested before, and this will be their first and, it is hoped, last experience with criminal law. There is a great deal of pressure, both emotional and financial, on a person convicted of drunk driving. It is imperative that attorneys not take these cases lightly and defend the rights of the accused to the fullest extent possible.

II.   Time Limits and Considerations

A. Misdemeanor Charges

§5.2   MCL 257.625b states that all persons arrested for misdemeanor offenses of operating while intoxicated (OWI), operating while visibly impaired (OWVI), zero tolerance or minor blood alcohol content (BAC) (see §4.20), and operating with the presence of a controlled substance (OWPCS) or other intoxicating substance under MCL 257.625(1), (3), (6), or (8), or local corresponding ordinances, must be arraigned within 14 days, have the pretrial within 35 days (or 42 days in courts with only one judge), and have the matter adjudicated in 77 days. However, the court cannot dismiss or otherwise sanction a party for failure to meet these deadlines. Some courts will still expect a defendant to waive these time lines if the case will extend past 77 days.

MCR 8.110(C)(6) requires that the chief judge of each court file with the State Court Administrator a list of all the felony cases that are over 301 days old, the reason for the delay, and all misdemeanors that have been delayed more than 126 days. Although these time lines do not appear to carry any sanctions for the court, many judges treat them like actual deadlines with sanctions. The only apparent sanction is that “if a judge does not timely dispose of his or her assigned judicial work,” the chief judge must report them to the State Court Administrator, who may initiate corrective action. MCR 8.110(C)(4).

B. Felony Charges

§5.3   MCL 766.4(1) requires that the arraigning magistrate set a probable cause conference within 14 days but not less than 7 days after the date of the arraignment. At the arraignment the magistrate must also set the date for a preliminary exam, which must be set no less than 5 days or more than 7 days after the probable cause conference. Adjournments of the examination may be granted on a showing of good cause. MCL 766.7; see also MCR 6.108, which describes the scope and requirements of the conference. A violation of this time limit can result in a dismissal of the charges. However, since jeopardy has not attached, the charge can be rewritten.

C. Motions

§5.4   MCR 8.107 imposes a 35-day deadline for decisions before a court after all documents, arguments, and evidence are presented. The courts must report any determinations not made within 56 days quarterly to the State Court Administrator.