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Wednesday, March 16, 2022
By Michael Nichols
Categories: OWI
It will be the first St. Patrick's Day in East Lansing that will allow for full-tilt celebrations without restrictions. Social media is blowing up. If you are out and about and have alcohol on board, there is a trick that some ELPD officers are using to "box in" people who are about to be arrested for drunk driving (OWI).
"Some of the officers are asking drivers either a 'scaled' question or, right before giving the driver a Preliminary Breath Test (PBT) they are asking 'do you know what the legal limit is? Do you think you'll be over or under?'" says East Lansing-based Mike Nichols of the Nichols Law Firm. When it comes to the "over or under" question, it is a no-win situation and very hard to explain if the driver answers "over." The right answer is either "under" or "I cannot answer that." When you think about it, "I cannot answer that" is a fair and honest answer because who really knows because there is no such thing as a human chemical test?
Nichols says: "what really bothers me about this question, is that when a person is cooperative enough to submit to a PBT, they are like putty in the hands of the arresting officer and looking for what the officer is looking-for when it comes to answering the officer's questions. Yes - there is a right to remain silent, but more people who tend to be cooperative are going to try to please the officer." Nichols points out that this especially relates to students and other younger drivers.
In addition, the scaled question is "on a scale of 1 - 10, 10 being the most intoxicated that you've ever been in your life, how intoxicated are you right now?"
That is a horrible question and officers should not be allowed to ask it because it is a trick question. If you say "1" - you are admitting at least some degree of intoxication and that is exactly what a prosecutor will and has argued at trial. Nichols adds "the way to answer that is to say "0" or "that is not fair for me to answer." Most officers find that the best evidence that they develop in an investigation to use at trial is the subject's own statements.
There are a lot of lawyers in Lansing and throughout the State of Michigan who say they practice DUI defense but they have not invested the hundreds of hours or hundreds of thousands of dollars to travel all over the country to learn how to really defend drivers accused of drunk driving - but that is exactly what we do at the Nichols Law Firm, where we are "Committed to Results."