If you or a loved one has been involved in a drunk driving accident that involved a death, you have my heartfelt sympathy. These are horrible cases. The accused in an OWI causing death case is frequently so overwhelmed with the emotional impact of the accident that he or she is never able to look at the case objectively. Instead, the accused suffers a giant sense of remorse and views the matter as a series of out-of-body experiences: "This can't be happening to me. I can turn back time. This isn't really real." The emotional impact when the accident involves a friend or a loved one is even more traumatic.
In a normal, injury-free accident, people remember clips and pieces of the accident. "I hit the brakes. I turned the wheel. I tried to avoid it." These are little snapshots of memory and recollection that our brain records during moments of fright and shock. It is very normal.
In a serious motor vehicle accident, however, there is often no memory at all. "I remember we left work, but then all I recall is waking up in the hospital." This loss of memory can be caused by many things, including traumatic injury. Importantly, it does not mean that the accused was so drunk that he or she lacks memory because of the consumption of alcohol. A typical OWI death case involves injuries to the accused drunk driver as well as the other people involved in the accident. This makes the case difficult to defend, but it is absolutely normal. We have seen cases where the accused honestly did not know whether he or his deceased best friend were driving, and this is extremely difficult, since there is no real sense of vindication once it is established that the person's best friend was actually driving. A dead best friend is still dead.
In drunk driving death cases, it is absolutely incredible that police will sometimes totally botch nearly every aspect of the investigation. It seems like police who respond to an OWI causing death accident scene enter a different frame of mind, so they are no longer following normal protocols. Field sobriety tests might not be conducted because of injuries, and police might also forget to ask for a PBT or ever interview a conscious suspect. On the other hand, some departments will take extra steps, performing a normal drunk driving investigation and then going beyond what is normal, passing into areas that are unlawful and violate a person's rights. The bottom-line is that police officers respond to an OWI causing death accident in a manner that is different from a normal drunk driving case.
About the only person who can be trusted to do a fair, objective job is the accident investigator, who has received special training and deals with accident scenes all the time. Unfortunately, the accident investigator's opinion is frequently tainted by the toxicology report or a snap decision made at the scene. If you could interview an accident investigator who was simply appling objective facts to road conditions, the science speaks for itself. On the other hand, however, once police experts clamp down into prosecution mode, many of the crash reconstructionists will absolutely refuse to admit something helpful to the defense. A real-life example from one of our cases: the accident reconstructionist refused to admit that the other vehicle was driving down the freeway in reverse, even though the vehicle's automatic transmission was engaged in reverse, and the reverse lights were on at the time of the crash. How could a person applying objective science refuse to admit something so fundamental? In a word, it was incredible but normal. The prosecutors had decided to convict someone, and the state police "expert" was willing to do everything in his control to help the prosecutor.
There are additional procedural protections in an OWI death case. The vast majority of drunk driving cases are prosecuted in the local district courts, but the death elevates this matter to a felony. This means that all of the procedural protections that are afforded to the accused in a felony case apply to the drunk driving causing death case.
Because of these additional procedural protections, the accused has the right to a preliminary examination within 14 days of the arrest. This is normally adjourned for a lengthy period of time, but the accused has the right to proceed within the two-week time frame. This means that the prosecutor must be prepared to prove probable cause to the district court judge that a felony was committed and that the accused is probably the person who committed that felony.
The probable cause hearing is an absolutely critical stage of the proceedings. At this hearing, officers must testify under oath, and the toxicologist can be compelled to appear at the hearing so long as the defense attorney files the appropriate demand. In essence, this means that the defense will have an early opportunity to view the substantial evidence, cross-examine witnesses, and attack any legal deficiencies in the investigation.
If the judge determines that there is probable cause (and this happens in 99.99% of cases), the matter is sent to the circuit court for an arraignment on the information. A circuit court judge will be assigned to hear the matter, and the process begins anew, as if the case had just started.
Ultimately, in a circuit court felony case, the accused is entitled to a jury of twelve people, as opposed to the six jurors who would ordinarily decide the case in a district court misdemeanor drunk driving case.
Drunk driving defense has grown extremely technical in the last fifteen years. With organizations such as the National College for DUI Defense and a variety of books and other publications, this area of law has grown extremely complex. A few years ago, drunk driving defense was formally acknowledged by the American Bar Association as a specialized area of law.
In normal misdemeanor drunk driving cases, nearly every general practitioner is willing to jump up and proclaim that he or she "specializes in drunk driving defense." There was even a non-attorney in Detroit who, while admitted under a special foreign license to the bar was not permitted to practice law, that was caught practicing law in Detroit a few years ago. He claimed to specialize in drunk driving defense. All of these so-called specialists specialize in one thing: pleading people guilty.
The defense attorney handling a drunk driving death case must be prepared to hunt down a litany of materials that could help the defense. Once obtained, the attorney must know what he or she is looking at, being able to analyze the case and all of its complexity.
For all of the case's complexity, prosecutors in the circuit court are not seasoned drunk driving prosecutors. In many jurisdictions across the nation, special prosecutors are assigned to the DUI docket, but in Michigan, the most seasoned drunk driving prosecutors are working the district court docket. Felony prosecutors normally handle violent felonies, fraud, embezzlement, drug charges, etc. These prosecutors rarely encounter a felony drunk driving charge, and usually those are enhancement cases, i.e. cases where the accused is charged with OWI 3rd offense, which normally plea out in exchange for a thirty day sentencing cap.
An experienced drunk driving defense lawyer who is a member of the National College for DUI Defense may have attended dozens of seminars that focus exclusively on defending drunk driving cases. He or she may have spent hundreds of hours reading publications that deal exclusively with drunk driving defense. Some of these lawyers may have extensive knowledge about breath and blood testing, with toxicology training in blood and urine testing. And at the end of the day, these lawyers may have tried hundreds of drunk driving cases.
For the same reason that we advocate hiring a lawyer with a great deal of knowledge, training and experience, the prosecutor's office might try to muster up their best "drunk driving prosecutor." But, in Michigan, even the most seasoned prosecutor's experience pales in comparison to a long-term member of the NCDD.