Blood test results in a drunk driving case can often result in an even higher blood alcohol result than a breath test. Moreover, the blood is drawn by a medical professional trained in the proper methodology for blood draws. Nevertheless, it's important for your attorney to place all of his or efforts in confronting the result and coming up with creative legal ways to keep the blood test result from being used in court against you. There are many ways lawyers can challenge the science behind the result and these challenges can be very effective. However, aside from examining these options, there are many ways to keep the blood test result from being used by challenging the search warrant that authorized the blood draw in the first place. To fully understand this section, some background is important:
When you're arrested for Operating While Intoxicated (OWI) in Michigan. You may be asked to submit to a breath test after your arrest. By law, you are free to refuse the breath test; however, doing so will usually compel the arresting officer to secure a search warrant from a judge or magistrate. If the officer secures a search warrant, you will be forced to have blood drawn by a medical professional. Before a search warrant for your blood can be obtained, the arresting officer must present to the judge the facts and circumstances that he/she believes supports the belief that you are drunk, and that a blood draw will reveal the all-important blood alcohol level that supports the belief that you are intoxicated.
How does the officer present these supportive facts to the Judge? The officer can present oral testimony and written information. In other words, the officer can tell the Judge why he/she believes a blood draw will reveal you're drunk. The officer will also present an affidavit with written facts that also support the belief you were intoxicated. It's just not practical for an officer to appear before a Judge in person to swear, under oath, to the facts in support of a warrant request; after all, many drunk driving arrests happen at odd hours when the courts are closed. It's also important for a warrant to issue quickly in order for an arrestee's blood alcohol not to dissipate before the officer has a change to get the blood drawn. For these reasons, Michigan law allows an arresting officer to request a warrant by calling a judge or magistrate and his or her home. In fact, most courts have “on-call” judges assigned to take officer calls for search warrant requests on off hours.
Calling a Judge does NOT, however, do away with the legal requirement that the requesting officer be placed under oath before he or she presents facts to the judge in support of the blood draw search warrant. In Michigan, when a police officer requests a warrant electronically (i.e., by phone or fax), that officer MUST be 1) placed under oath by the Judge or Magistrate reviewing the officer's information; and 2) the officer requesting the warrant must sign the affidavit that will eventually be submitted to the “on-call” judge for review. Failure to comply with these requirements will render any warrant invalid. If the warrant is not properly obtained, then the blood results that were secured against you cannot be used in court. At 3 am, an officer's phone call to a groggy judge or magistrate can result in technical violations of the search warrant requirement that will work to your benefit.
In a recent case, Attorney Awad was retained by a client whose blood draw resulted in a .25 blood alcohol level. - more than 3 times the legal limit in Michigan! It became imperative to find a way to keep the blood test result from being used in court. Attorney Awad obtained the in-car video of the client's arrest and jail booking. After careful review of the officer's communications to the on-call Magistrate, it was clear that the Magistrate neglected to administer an oral oath to the officer on the other end of the phone. Rather than being placed under oath via telephone, the officer simply jumped into all of the reasons why the believed a warrant for blood was justified. The magistrate on the other end of the phone agreed and the officer subsequently sent a signed affidavit requesting a search warrant to draw the client's blood. The magistrate signed a search warrant authorizing the blood draw and, once the officer secured the warrant via fax, he transported the client to a local hospital and forced the client to draw blood.
When Attorney Awad demonstrated video evidence to the prosecutor that the Magistrate failed to administer an oath to the officer requesting the warrant, it became clear that the warrant was invalid, and, as such, the .25 result could NOT be used in court. Rather than conduct a trial without the ability to use the blood alcohol result, the prosecutor opted instead to dimiss the drunk driving charge against his client! An OWI legal victory for the client made possible by a lawyer's keen understanding of OWI law and an attention to detail that revealed a fatal flaw in the prosecutor's case!
If you've been arrested for OWI in Michigan and had your blood drawn by search warrant, find a drunk driving attorney with the expertise to challenge the warrant and result. If the blood test result can't be used because the warrant requirement laws were violated, your chances of successfully avoiding a drunk driving conviction can dramatically increase! Call Attorney Awad at (734) 507-1333 for a free and confidential evaluation of your drunk driving case. Finding the right lawyer with the right skill set will make all the difference. Call today.
Posted by Joseph Awad | Jan 19, 2015 |
OWI- the letters we don't want to see on any correspondence or ticket received from law enforcement. Driving under the influence of any substance, legal, or illegal, is unsafe, quite dangerous to you and others, and just plain old bad decision making.
Having an OWI on one's driving record is a r...