Alcohol Testing as a Condition of Bond

In many DUI cases brought in the District Courts of Macomb, Oakland and Wayne Counties, a person is ordered to submit to some kind of alcohol (and even drug) testing as a condition of being let out of Jail after their Arrest.  The requirement that someone facing a DUI comply with such testing as a condition of release is becoming increasingly common, as more Courts follow suit.  From my point of view as a Michigan DUI Lawyer, this has resulted in an equally increasing number of headaches.  Beyond being horrendously inconvenient, testing is expensive and worst of all, not always accurate.

The bottom line to any requirement that you test as a condition of Bond or release from Jail is that it is perfectly legal.  If you want to know if the whole testing thing can be eliminated just by showing up in Court and declaring "innocent until proven guilty," the answer is no, and you can skip the rest of this section.  There are, however some things that can be done to ease the burden.  If you're interested in learning more, then read on...

The requirement that a person merely charged with Drunk Driving must not only remain alcohol-free, but also prove it, seems to turn the whole notion of “innocent until proven guilty” on its head.  After all, we all “know” that a person accused of a crime (and DUI is a crime), has the right to a Trial, and the right to be presumed innocent until proven guilty beyond a reasonable doubt.  So what gives here?

First, the reader needs to understand the specifics of “innocent until proven guilty.”  There is no such language in the United States or Michigan Constitutions.  In fact, the whole concept of “innocent until proven guilty” is just that – a concept.  It arises from the Constitutional requirement that at the Trial of a person accused of a crime, he or she does not have to prove their innocence, or prove anything, and that the burden is upon the government to prove a person’s guilt “beyond a reasonable doubt.”  This means then, that a person can sit through Trial and not say a word, or do anything, and it’s up to the state to prove their guilt beyond that “reasonable doubt.”  Innocent, then, until proven guilty…

The United States and Michigan Constitutions do provide that a person may not be charged an excessive Bail, with the term “excessive” simply meaning “not expensive.”  “Excessive,” in this sense, doesn’t have anything to do with being burdensome, difficult, expensive or inconvenient.

There is no absolute “right” to Bail under the US Constitution.  Michigan’s Constitution, however, does provide a right to Bail except in certain, specified cases, and Drunk Driving charges are NOT amongst them.  Thus, a person has a right to “Bail” (or as used in the real world, “Bond”) in a Michigan DUI case, and that Bail (or Bond) cannot be excessive.

This all means that the right to be presumed innocent until proven guilty beyond a reasonable doubt doesn’t apply to being released on Bond after an OWI (Operating While Intoxicated) Arrest.  A Court has the legal right to require that a person submit to some kind of alcohol testing as a condition of their release from Jail, but that doesn’t change the fact that for most people, such a condition is a huge burden.  The question then becomes what can we do about that, or, what, at least, can we do with this?

The answer to the first part of the question is a bit disappointing:  There are practical limits to what can be done.  As a DUI Lawyer, I have to ask the Judge, at every turn, to release my Client from having to test.  While the Court isn’t going to just smile, agree, and then discontinue all testing, I can often at least persuade the Judge to reduce the frequency of such testing, or otherwise make it easier on my Client.  One thing is for sure; you won’t get any relief without asking for it.

Beyond that, it is important that I use my Client’s compliance with the testing, and the lack of any positive tests to his or her advantage at ALL stages of the case, and particularly at the time of Sentencing.  This amounts to a real life example of what’s meant by the old saying that “when life hands you lemons, make lemonade.” 

Sometimes though, things don’t go so smoothly, and a person tests positive.  Sometimes the equipment malfunctions, or the test simply produces an incorrect result.  Other times, the test is right, and just catches someone who really did drink while they weren’t supposed to.  Whatever the story, a positive result requires action.  

This is when I have to be part DUI Lawyer, part diplomat, part public relations expert, part scientist, part spin-doctor and maybe even a bit part witch-doctor.  If the test, or testing equipment, is faulty, I have to be able to prove it.  If a positive test is accurate, then I have to ease the anger of the Judge and keep my Client from getting locked up, and I can’t make any missteps along the way.  That’s where a Lawyer needs to have the tact of a diplomat…

For all of this, testing is a miserable business:  For every 10 people who don’t have any problems testing negative for alcohol, when someone tests positive, it sends a message to the Judge that he or she should test more, not less - and that goes directly against what I want to accomplish for my Clients.

Testing as a condition of Bond is a reality, albeit a newer one.  If you’re facing a DUI and you aren’t required to test, count yourself lucky.  A decade ago, very few Courts required any kind of testing as a condition of Bond.  Today, many Courts, including almost every Court in Oakland County and a growing number in Macomb and Wayne Counties, do.  In the coming years, it will likely be standard fare for DUI charges in every Court.