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Saturday, July 31, 2021
By Michael Nichols
Categories: Michael J. Nichols
"Soberlink" has become the flavor of the month for many judges in Michigan and from talking to my colleagues around the country - in many other states, too. It is a fuel cell-based device that also uses cellular technology and image-capturing technology to take the picture of the subject who is ordered to use the device. They are often ordered as a condition of bond, mainly when there is an aggravating factor to a charge like a prior conviction, an injury, even a very high bodily alcohol content.
Here are the basics from a recent successful defense of a bond violation allegation:
Expert: Al Staubus, Pharm.D; Ph.D
Term: Use Soberlink from the date of this order until sentencing
including any adjournments
Issue: Over a dozen (alleged) missed or late tests and a “positive” for .008
g/210 L of breath (etoh) at 4:57 pm on 6.28.2021 during a vacation to see family overseas.
Approach: I treat alleged bond violations as contempt of court proceedings. In Michigan, and this may be the case in other states as well, there are unique procedures that are required on a bond violation that in my opinion are jurisdictional. In other contempt proceedings, a defect in the notice provision is cured by the appearance of the alleged contemnor. I used a combination of defects in the proceedings arguments and Dr. Staubus’s preliminary observation about confounding factors in an accurate fuel cell reading plus I tried to round up as many witnesses as I could to the activities of the client on the day in question. He was out of country with his 2 young sons and staying with his sister’s family. Per Dr. Staubus’s opinion, we pursued the possibility of volatile organic compounds (VOC’s) in the petrol that our client was inhaling when he took his sons go-carting. We had not quite gotten as far as breaking down the ingredients in the fumes – because we couldn’t truly know – to see if there were any VOC’s that would cause a response in the fuel cell.
I took the time to put together a 9 page hearing memorandum in support of our motion to dismiss. Granted, the client is a professional and resources were not an issue. The judge on the case is notorious for treating DUI cases “holistically” as he put it – which means most everyone has a drinking problem and needs court intervention to make changes in their life.
When we appeared for sentencing on July 12th, I was on vacation on Mackinac Island and we were going to do the sentencing by zoom. Then, I made the mistake of disclosing to the judge's court reporter/Judicial Assistant by email that I was concerned about the soberlink readings and whether we need to adjourn the sentencing or appear in person. I did not think through whether to check with the probation department. The probation department monitors pretrial release cases BUT NOT THIS ONE. No one had any idea about the missed tests; .008. On the other hand, I surmise from the hundreds of times I’ve appeared before this judge that he would have asked about it. It was a quandry and I erred on the side of disclosure.
The judge wanted the client in-person. That’s a bad sign. A sign that he’s going to pull this classic move – ready for this one?
“You’re charged with a bond violation; Mr. Nichols would you like to be heard on bond on the bond violation? ‘Yes – he’s not guilty of contempt; it has to be shown clearly and unequivocally and he’s entitled to the presumption of innocence.’ Thank you – bond will be (name an unmakeable; unbelieveable amount for a misdemeanor – in this case $11,000.00 f-ing dollars) but it will convert to a PR bond tomorrow morning at 6am.” Problem number 1 is that the court must give written notice of the specific violation of bond before, at or after the arraignment on the violation. That did not happen.
You see what he does there? It’s a complete trampling of the bond factors and principles in order to give the person a night in jail for the transgression for which they are presumed to be innocent. Really a problem and the right case on appeal is needed in order to stop this procedure - but it requires showing all the "cards" that reflect an appellate procedure. That means the judge may be more inclined to back down to avoid an appeal.
Here, the judge pulls that stunt but I had the client ready. No I did not come home from Mackinac Island – which is 3.5 hours away – I zoomed in and my crack associate Chris Wickman was there in person. Client posts the bond of $11,000.00 but spent 3 hours in jail. I didn’t hear the end of that saga about the 3 hours but I don’t blame him.
Between this cluster of events and the hearing on 7.29 – serendipity strikes. Client is performing multiple surgeries that day. With soberlink, the primary differences between this device and a PBT is that it will capture your photo and then transmit the data using cellular transmission technology to the vendor’s computer for reporting to court; workplace; whatever. So, when we looked at the client’s picture, we see him literally delivering breath samples in his scrubs. Real Gray’s Anatomy stuff. He starts delivering positive readings of around .011 g/etoh/210 L/breath at 11:47 am. HE’S IN THE MIDDLE OF SURGERY. We listed it out in our memorandum but we had several other readings throughout the afternoon of about the same level. I was in the middle of other stuff and I get a text thread from the vendor (who has become something of an ally) advising the client and I that all of these missed tests and positive tests were happening.
On 7.21: I am in Sault Ste Marie (think tip of the upper peninsula where one of our Canadian crossings and the infamous soo locks are located). I have a prelim there the next day for a felony that I decided to take and so I’m dealing with this surgeon/client who is understandably anxious and upset. I say “go to ADAM – give a PBT and a urine sample.” ADAM is a test facility. He submits another positive on the Soberlink at 6:00 pm. He then gives a clean PBT at ADAM and drops – a sample which would be negative for etg/ets – these are the biomarkers for etoh. So we have contemporaneous negative readings to contrast the positive readings.
Dr. Staubus goes to work – trying to analyze everything in that OR that may have confounded the soberlink. We supplement our pleadings. On Tuesday of this week, the prosecutor filed a response and indicated basically, “we agree – dismiss the bond violation.” All this time, Al and I are talking about the weaknesses of our arguments – and they are far from perfect but ultimately it’s this: if we see clearly erroneous or “false positives” on July 21; that’s pretty strong proof that 6.28 was a false positive and, especially when the standard for contempt is “clearly and unequivocally proven” – the bond violation hearing is a waste of $$$ and time.
Judge asked via his JA on Wednesday for a stipulated order dismissing the bond violation and proceeding to sentencing on the OWI. The OWI was not a pretty picture, non-injury accident, client was a .14 after refusing. The client was sentenced to 6 months probation (we now have a statute that presumes a half time cut in probation is warranted if fines and costs and other obligations are paid). He is ordered to consume no alcohol but the testing regimen is eliminated – he gets to go back to status quo as in “take you at your word.” No jail and no issues with the bond violation.
Ultimately, soberlink is nothing magic. I used one for a weekend to see what it’s like for clients because it’s become so popular. I think the number 1 piece of advice for clients is “make sure you read the agreement, the test guidelines and ask questions.” You have got to wait after you give a sample and make sure it’s accepted and compliant. If something goes south – find a testing facility and provide a urine sample.