How the Police and Prosecution Prove a Drunk Driving Case After an Accident: A Primer
In a drunk driving (DUI) case in Michigan, generally speaking, the prosecution must prove three main things:
(1) The driver was “operating” a motor vehicle;
(2) The driver was intoxicated while they were driving; and,
(3) The “operation” of the motor vehicle occurred on a public road or area immediately accessible to the public or a motor vehicle.
In the typical case, the police witness the “operation” of the driving firsthand, thereby satisfying the first element of a drunk-driving case. Then, the police set about to prove the second element, intoxication. They use a variety of techniques to prove intoxication, including:
(a) their own observations, e.g., the driver fumbled for their wallet; was unsteady on their feet; slurred their words; had red, bloodshot eyes; smelled like they had been drinking or of the “odor of intoxicants”;
(b) direct questioning or interrogation, e.g., they ask the driver where they are coming from; whether they have been drinking; what they have been drinking; how much they had to drink; over what period of time, etc.;
(c) the driver’s performance on the standardized field sobriety tests, i.e., the horizontal gaze nystagmus (HGN); walk and turn (WAT); and one-legged stand (OLS); as well as some non-standardized field sobriety tests like the number count or saying the ABC’s;
(d) administering a breath test on the side of the road (a preliminary breath test or PBT); and,
(e) administering a chemical test, i.e., a breath or blood test, after an drunk driving arrest.
However, in an accident, the police may not be able to gather any of the evidence the way they would in the normal case. See, e.g., the attached article discussing a wrong-way suspected drunk driving accident on the expressway in Grand Rapids. First, the police are usually not a witness to the accident, in which case they cannot not testify that they witnessed the driving or “operation” of the motor vehicle, leaving a void in their proofs. Second, the driver may not be able to answer any questions because they are already under medical care or unresponsive. Third, the fact that the driver has been in an accident means they probably cannot perform any field sobriety tests and, even if they did, the results would probably be invalid (how can you tell of the results are the accident versus intoxication?). Lastly, the police may not be able to administer a PBT either, as the person might be under medical care, unresponsive, or unable to provide a valid sample because they bit their tongue or inside of their mouth during the accident.
So, how do the police and prosecution make a drunk-driving case after an accident? In my experience, three things are critical, two of which are relatively obvious and the other somewhat surprising to the initiated. First the obvious. The police will often try and fill the gaps in their case through express questioning once the suspect is able to answer such questions. They try and establish “operation” by asking the driving whether they were driving and involved in an accident. To head off a possible defense that somebody else was driving (and fled the scene), the police will ask whether anybody else was in the car. The driver is usually eager to volunteer that nobody else was with them or injured, thinking that this lessens their relative culpability, when it actually helps establish an essential element of the crime. Of course, the police will also try and identify any eyewitnesses to the accident, who can identify the driver and eliminate the possibility that anybody else may have been “operating” the vehicle at the time of the crash. Also, other drivers may call 911 when they witness an accident.
Another critical question an astute officer will ask is whether the suspect had anything to drink after the accident. Again, the point of this question is to help prove that the driver was intoxicated at the time of the operation of the vehicle by eliminating the possibility driver only become intoxicated after the accident. While this may seem unlikely, remember, the prosecutor must prove each element of the offense beyond a reasonable doubt and a good drunk-driving defense attorney will seize on any weaknesses in the proofs. A thorough investigator will also ask the suspect all the logical questions about whether they had been drinking during the relevant timeframe.
While all of the above may seem obvious, the prosecution is still missing a key piece of evidence present in most other DUI cases: the results of a chemical test, i.e., a blood or breath test. In an accident, often times the driver is taken to the hospital as a precaution or to provide immediate medical attention. Once at the hospital, doctors and nurses routinely order blood tests to further assess the condition of their patient. The results of these tests become a critical piece of evidence in a drunk-driving prosecution. A little-known provision in the drunk-driving laws, MCL 257.625a(6)(e) makes the test admissible against the driver. It provides:
If after an accident the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver’s blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol or presence of a [*725] controlled [**214] substance or both in the person’s blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. The medical facility or person performing the chemical analysis shall disclose the results of the analysis to a prosecuting attorney who requests the results for use in a criminal prosecution as provided in this subsection. A medical facility or person disclosing information in compliance with this subsection shall not be civilly or criminally liable for making the disclosure.
Because the law presumes that the results of these tests was the driver’s BAC at the time of the operation of the motor vehicle, the admissibility of these tests is often the linchpin of such drunk-driving prosecutions.