If you are facing a DUI in almost any Oakland County District Court, or a growing number of Macomb or Wayne County District Courts, there is a good chance that, as a condition of your release from Jail after your Arrest, you are required to submit to some form of alcohol testing. No one likes this, as it places a huge burden on the person having to test. It is costly, and always inconvenient. Worse yet, the results are sometimes wrong, tossing innocent people into hot water for “false positives.” By the same token, the presumption that a missed test would have produced a positive result can be a nightmare for those who have a legitimate excuse for not being able to make it to a scheduled test.
While it has always been my intent to publish blog articles that are more factual and informative than opinionated, I can feel my blood pressure rising as I begin to broach this topic, and sense that my rather strong feelings about alcohol testing in general, and Pre-Trial alcohol testing in particular, will spill out into this article. I hope the reader will agree with my position, although I doubt that anyone who is under Orders to test is happy about it in the first place, and I might just be “preaching to the choir.”
I began Practicing Law in 1990. Back then, although DUI’s were already considered serious, the societal shift against Drunk Driving was just getting underway, and the impact of things like Mothers Against Drunk Driving (MADD) was just beginning. In the early 90’s, a person dealing with the fallout of a 1st Offense DUI would most likely have been Sentenced by the Judge to simply NOT consume ANY alcohol and drive a motor vehicle while on Probation. In other words, the terms of Probation back then allowed a person to have a glass of wine with dinner; they just could not drink and drive. There was no such thing as any kind of “alcohol-testing” until after a person was put on Probation, and even then it was only done on an infrequent and random basis.
Everything changes, though. Soon enough, Judges began Ordering that a person not drink at all while on Probation. To back that up, they’d order “random” PBT’s (Portable Breath Tests). Thus, a person on Probation could be called at any time and required to come to the Probation Office and provide a breath sample. But the momentum of the MADD and other anti-alcohol advocates had just begun. (In fact, MADD has transitioned so far away from its original mission that its founder resigned, noting that the group had adopted a message of abstinence and temperance, and had gone way above and beyond just preventing people from driving drunk). The Court system has followed MADD, however, and seems intent on doing far more than just stopping drunk driving. While it makes sense that you can limit drunk driving by simple preventing people from drinking, you could also reduce theft crimes by cutting off everyone’s hands at birth…
Then, one day in the not too distant past, some Judge got the idea that it wasn’t good enough to just require DUI Driver’s to not drink while on Probation. By some jump of logic, an idea was born that things would be better if anyone Arrested for DUI was not only forbidden from drinking anything at all, but that they should have to prove their compliance with that requirement by testing regularly. From this questionable logic we now have an entire testing industry in place to ensure compliance, and the list of Courts that DON’T require such testing is shrinking faster than the Lance Armstrong fan club.
That’s where we find ourselves today. I’ll skip over the arguments about rights and freedoms and Judicial activism; they all have some merit. There is one theme, however, that comes up again and again whenever the subject of alcohol testing as a condition of Bond is raised, and that’s the concept of “innocent until proven guilty.” Unfortunately, this notion has to be explained away as legally unfounded, especially when it comes to setting conditions of release after Arrest. This means that there is no actual presumption of innocence, at least as most people think they know it. As we’ll see, this means that the alcohol testing as a condition of release is on solid legal ground, however much we don’t like it.
Pretty much everyone thinks they’re familiar with the Constitutional right to be presumed innocent until proven guilty. Well, the problem with that there is no such Constitutional right. The long and short of it is that at a Criminal Trail, a person has a right against self-incrimination and the right to remain silent. They also have the right to have the government prove their guilt of any crime charged “beyond a reasonable doubt.” When you bundle the right against self-incrimination, the right to remain silent and the right to have one’s guilt proven beyond a reasonable doubt, it gives rise to a kind of concept of the presumption of innocence. A person accused of a crime doesn’t have to prove anything, least of all their innocence. If the government brings a Criminal charge against them, then it has the burden of proving its case.
Also, the US Constitution’s Eight Amendment provides that a person cannot be charged an “excessive” Bail. Curiously, there is no “right” to Bail in the first place, but simply a limitation that where it is given, it cannot be excessive. Michigan’s Constitution, however, does provide a right to Bail (or, as used in the real world, “Bond”) except in certain, specified cases, none of which involves DUI. Thus, a person charged with a DUI in the state of Michigan has a right to Bail (Bond), and it cannot be excessive. “Excessive,” though, means “expensive.” The idea that a person must submit to alcohol testing might seem “excessive” as a condition, but it has nothing to do with the Bail amount, which is the ONLY thing that cannot be excessive. This means that alcohol testing, as a Bond condition, is legal, and a person charged with a DUI is, quite literally, at the mercy of the Court in terms of the kind and/or frequency of such testing.
Testing most often means either PBT, or breath testing, or urine testing. Of particular interest in this field is what’s known as EtG testing. EtG testing is somewhat scientifically complex, but is supposed to allow the detection of alcohol over a period of multiple days. It is not nearly as scientifically complex as it is unreliable, however, and is really not much better than voice recognition software: It gets some things right most of the time, most things right some of the time, but never gets everything right all of the time. Accuracy is NOT one of its strong points. This is really unfortunate when a person’s liberty is at stake, and a test so demonstrably unsound can result in their being incarcerated.
Another questionable testing method requires a person to wear a kind of ankle bracelet called a S.C.R.A.M. tether. This contraption supposedly tests the skin underneath to detect the presence of alcohol in the body. It certainly detects alcohol, all right, but it also “detects” a warehouse full of other stuff as alcohol and is singlehandedly responsible for loads of false positives and illegitimate reports of “tampering.”
In the next article, I will take up some of the problems caused by having to submit to alcohol testing as a condition of Bond. Part and parcel of my Practice involves helping people who have missed a scheduled test, or who’ve tested positive for alcohol; some of those results are accurate, some aren’t…
For purposes of this article, however, we can leave it that, dreadful as it may be, testing as a condition of Bond is a growing reality in DUI cases. That’s not to say that, as a Michigan DUI Lawyer, I simply accept it. I’m always getting my Clients relief from having to test, or at least getting the Judge to allow them to test less frequently. I have seen every imaginable scenario, from demanding work schedules that make testing all but impossible, allergies to the plastic on the S.C.R.A.M. tether, faulty equipment, flawed testing, inexplicable but undeniable false positive results all the way to vials of urine broken during shipment to the lab.
Still, my job as a DUI Lawyer is to make things better for my Client. Anyone can make a lot of racket and just come out swinging if there is an allegation of a missed test, or a positive result. Sure, you’ll get your 2 minutes in front of the Judge, but just complaining loudly won’t get much done, and certainly nothing that will make anything “better.” Instead, a good Lawyer has to proceed like a good diplomat, and turn the Judge, if possible, into an ally, rather than an adversary. Many Judges are not fully aware of all the science refuting the accuracy of the tests they Order, so it becomes my job to explain that to them. It’s also my job to NOT argue with a Judge. However wrong a Judge may be, that’s an issue for an Appeal. Just like you’ll never meet anyone who argued their way out of a Traffic Ticket, you’ll never meet anyone who successfully argued with a Judge.
Alcohol testing as a condition of release, or Bond, has become a reality in Metro-Detroit Drunk Driving cases. While the fact of testing is becoming a fixed reality, the shape of this kind of testing, meaning the kinds of tests and the frequency and timing of those tests, is still not set in stone, and it is incumbent upon Lawyers like me to help soften the expense, inconvenience and negative consequences occasioned by them. It is important that, as the whole “landscape” of testing does begin to take shape, Judges are made aware of the problems with the methods and results of any kind of particular test. And most of all, it is important to make things better, as much as possible, for a Client having to deal with alcohol testing as a condition of Bond.