OWI Defenses

No Grounds for Traffic Stop: The police cannot pull you over for no reason – they must have reasonable suspicion of some type of traffic violation. This may include erratic driving, broken taillight, ignoring traffic signals, etc. However, ZAYID LAW will immediately request dash cam footage and eyewitness statements to challenge the validity of the stop. If the police did not have grounds to make the traffic stop, then the OWI charge is invalid and we will request a dismissal.

No Probable Cause for Arrest: You cannot be arrested unless the police have what is called “probable cause” to arrest you. From the moment you are pulled over until the moment you are in handcuffs, every single step by the police must be scrutinized in order to preserve your Fourth Amendment right against unreasonable searches and seizures.

There are many ways to poke holes in the police’s “probable cause,” but the most common and successful defense is the improper administration of the Standardized Field Sobriety Tests (“SFST”) and/or a Preliminary Breath Test (“PBT”). These are the two most common tests to determine whether someone is intoxicated and whether there is probable cause to arrest.

Police officers sometimes make errors or ignore protocol when administering these tests, which provides a defense in challenging whether the police had probable cause for the arrest. ZAYID LAW utilizes dash cam footage and the police report to identify potential errors in the investigation that can dismantle the prosecution’s probable cause, and, therefore, push for dismissal.

Errors in Preliminary Breath Test (PBT): This defense is particularly useful because there are many ways in which the police can make errors in administering a PBT test. There are strict guidelines in place that officers must adhere to, and ZAYID LAW can assess every detail to determine if an error has occurred. Under Michigan’s Administrative Rules, the following are examples of guidelines that ZAYID Law can attack to challenge the PBT test:

  • The PBT machine must be tested and calibrated once a month. AC, R 325.2653(2).
  • Officers are required to determine when the person last ate or drank before the administration of the PBT. AC R 325.2655(2)(b).
  • Police cannot rely exclusively on PBT to establish probable cause for arrest.

If police make any errors with respect to the administration of the PBT Test, you may have grounds to suppress the results of the test. If the PBT Test is the prosecution’s primary evidence to charge you with OWI, there is an opportunity to (1) suppress the test and (2) dismiss the case.

No Warrant to Administer Blood Test: Once you are arrested and taken to the station, you will be subjected to a Blood Test. However, this test is considered a search, and no search can be conducted without a warrant. The police will try to obtain your consent to the test, because generally if you consent, they do not need a warrant. If you refuse to give consent, the police will need to obtain a warrant that is signed by a judge. In the application for a warrant the police need to explicitly state the probable cause relied upon to prove the blood will reveal evidence of an OWI.

If there are any errors in the process of applying for or obtaining the warrant, ZAYID LAW can move to suppress the search warrant and the underlying results of the blood test.

Errors with “Datamaster” Breath Test: Unlike the Preliminary Breath Test (PBT), the Datamaster DMT taken at the police station is admissible at trial and is therefore a key piece of evidence in your OWI case. The DataMaster DMT is an evidential breath test instrument that measures breath alcohol.

Under Michigan law, anyone arrested for an OWI must be advised of the following rights before taking the Datamaster Breath test:

  • that if they take the test requested by the police officer, they have the right to demand that a person of their own choosing administer one of the chemical tests (breath, blood, or urine);
  • that the tests are admissible in all judicial proceedings;
  • that if they choose to have an independent test, they are responsible for obtaining the chemical analysis;
  • that if they refuse to take the test requested by the peace officer, they will not be forced to take the test unless the police seek and obtain a court order; and
  • that a refusal will result in a license suspension and six points on the driving record. See also MCL 257.625a(6)(d).

If you are not read your rights prior to the test, you can request the court “inform the jury of this violation [of MCL 257.625a(6)(d)] and instruct the jury that it may determine what weight to give to this fact.”

There are also two important things to review about this test.

  • The Datamaster machine must be properly maintained with documentation. The machine will run an accuracy check at least once a calendar week. The machine will check itself against a “known sample”. The machine will then provide a “ticket” which shows the results. An individual at the police station is responsible for documenting this test and logging it. A thorough review of this machine’s accuracy should be reviewed in EVERY breath case.
  • Much like the PBT, the police must observe the individual for at least 15 minutes prior to administering the test. Most police departments now have a camera positioned to capture this test. The “booking room” video should be obtained and reviewed in every case to ensure compliance with the administrative rules
  1. You Were Not Actually Operating the Vehicle: Can you be charged with an OWI if you simply pass out in the vehicle after a night of drinking? Short answer, it depends. ZAYID LAW has experience utilizing the defense that you were not actually operating the vehicle and cannot be charged with an OWI.

Involuntary Intoxication: This defense cannot be used when you simply drank more than you intended or didn’t realize how intoxicated you were. However, the defense is properly utilized in the context of an adverse reaction to medication or consumption of a substance that has been spiked. ZAYID LAW uses this defense to argue the involuntary intoxication prevented the defendant from understanding the nature of his or her actions or differentiating between right and wrong.