20 Frequently Asked Questions About Michigan DUIs
In cases that are misdemeanors that are handled in the district court, an appeal would be available to a circuit court, and if it’s a felony case or a case that’s handled in the circuit court, then the appeal would be to the Michigan court of appeals.
There are different timelines on things as far as how much time there is for appealing, and if it’s a jury trial versus a plea situation there are different rules on that. And I would always recommend people to, if they’re going to appeal, to look to somebody that does appellant work to make sure that those rights are taken care of by an attorney.
A person should consult an attorney that handles this specifically, because it is a different area of the law. There are obviously criminal consequences that affect people in all different types of criminal offenses, but the science and the technicalities that go along with operating while intoxicated charges are very specific, and having a good knowledge of that can make a big impact on how the case ultimately turns out. You should consult an attorney right away.
Our firm’s goal to have a client obtain a substance abuse evaluation through a trusted and certified professional as soon as logistically possible. The evaluation typically consists of two major parts: paperwork, which includes background information and current information; and also psychological testing instruments used by that professional. It will also include an interview or one-on-one time for personal interaction to discuss a client’s history, family, education, drinking history, drinking patterns, factors in their life.
And based upon this process a report is prepared with recommendations of treatment that would be appropriate. We then recommend our client follow through with those recommendations and begin their own personalized treatment program.
Whether jail is imposed or not is often dependent upon many factors such as the client’s criminal history, facts of the case, the particular statute or law that they are charged with, and even the judge or the county that the case may be in. Jail is a possibility in every single case and it is mandatory in some other cases. However, we take every effort to eliminate or mitigate that particular punishment.
That’s a very specific question as well. The problem when we talk about cost of a drunk driving is that we have to look at lifetime impact, and there are many things that are unknowable initially. It is very important that you deal with somebody who can understand how things will impact their life, not only today but also many years from now. When you have somebody who has dealt with drunk driving, and exclusively drunk driving, over the course of many, many years, you have a firm that has a great knowledge base of how even years later a drunk driving can impact someone’s ability to find employment, to get loans, to get security clearances, or even be licensed in their particular field.
As far as specific costs, we have a variety of attorney levels at our firm, all of which are a flat fee. Each individual attorney level depends on the length of time in practice, the experience level of each attorney, and each attorney’s level of training. Whenever somebody contacts our firm, we want to make sure that they understand that they need to pick an attorney that’s going to represent them exactly the way they want to be represented, but we want to always provide people options and choices to determine for themselves what level that is.
That is a concern that a majority of our clients have, and the collateral consequences like employment are always a concern. We can never guarantee that you will not lose your job; however, we have developed a very thorough process to work with our clients and in some cases their employer to try to ensure the loss of employment is not a consequence of their case.
Michigan is based upon a 12-point system. A conviction for an OWI or operating while intoxicated, an OWI high BAC or even a reckless driving is six points. A conviction for an OWVI or impaired is four points.
They can lose both their drivers license as well as, in some instances, their professional license. And it is the professional license that is of the greatest significance in most of our client’s lives. We represent lots of doctors and lawyers, people in the mental and medical health professions, nurses, et cetera.
And then there are lots of other types of professions where you would not necessarily think immediately that they might have a professional license hanging in the balance, like financial advisors, for example. People that have a Series 7 license for financial advising; it goes on and on.
If anybody is charged, whether they are in state or out-of-state, usually they are required to appear in the court where it happened. So, whatever county court or district court that it happened, they are supposed to come. There are times when a court may excuse that person’s presence, but typically they are required to come to court, usually within a couple weeks of the arrest. So they would be charged just like anybody else—it doesn’t matter where you’re from.
One other thing though is that the license sanctions are very different from state to state. Some states might treat what happens in Michigan very lightly and other states might treat it more severely than we do in our state. So it is important to always find out which state the client is coming from so we can make sure we address the licensing concerns back in the home state.
Sometimes working with the court and explaining to the court and prosecutor that the client lives out of state can allow the client to not have to come back to Michigan unless there’s a trial at the end of the case. So sometimes it can alleviate a lot of expenses for traveling to and from Michigan. We had a recent client from Rhode Island, and that was very helpful to her to not have to come all the time. It’s of course on a case-by-case basis, and not all courts would allow that.
Another way that we can help is by finding out what the license sanctions would be. Sometimes when we’re negotiating with prosecutors, having knowledge of how somebody might be disproportionately affected by things just because of their state of residence can impact the way that prosecutors look at the case. Those are a couple things right there that tend to impact out of state licensees.
There are many, many reasons on that, but some general ones might be looking at the different types of evidence that they have in the case. One is the breath or blood test that’s being used. So, there could be things that bring that into question. In breath cases, there are all kinds of contamination issues, radio frequency interference issues, timing issues often as well, so there are questions about whether the test can be trusted.
And with blood cases, there are similar issues as well, but we are always looking at the way the test was performed, and looking at other tests in the case of blood cases, looking at other tests that were done on the same day to compare the way things were done and if there are other contamination issues that might be present there. So those are kind of on the blood alcohol level side of the defense. The other side is the videos, if they are available, look over that, look at how the tests were actually performed.
Often a police report and a video will reveal inconsistencies in the officer’s statements. So in the police report it may look like a slam-dunk for the prosecution, but a review of the video might show a number of defenses that we would not have known otherwise if we hadn’t requested the videos.
Suppression of evidence is basically a legal fiction that we create to protect people’s right. Many people, especially around election time, like to call them “technicalities;” but we actually have rights in America. If our rights are violated and they’re violated by the government, then we have to find a way to penalize the government for that violation. One of the ways that we penalize the government for violating someone’s rights is to take away things that are ill gotten. So in the case of evidence that the officers obtained illegally, we would say that they should not be allowed to come before a jury or a court because those would be reinforcing the negative behavior that the police officers used to obtain it.
Instead, what we would do is we would review all of the evidence, we would see if the officers conducted themselves appropriately. If not, we would motion the court—it’s a legal term for simply asking the court to take a look at the evidence—and make any notes of where the officers have violated the law. If they have, the judge will rule that that evidence—or potentially all evidence, depending on the severity of the violation on the police conduct—we would use that to try and suppress the evidence.
Now, depending on what kind of order the judge issues, the evidence could be suppressed for certain purposes but possibly not others, but it is simply an exclusion of evidence from the review of either the jury or potentially for the entire case based on police misconduct or essentially a violation of our constitutional rights.
A chemical test refusal or implied consent refusal is when someone has been offered the officer’s choice of a breath, a blood or urine test and the person has not properly complied, or as they say, “refused” that test. So if they flat-out refuse it and say, “No thank you, I’m not going to take your blood test, your breath test,” or if they try to take a test and the officer thinks they’re not trying hard enough, they’ll see that as a refusal. So after that, then they will go ahead and get a search warrant for the blood, or they’ll attempt to do so.
And the paperwork will be filled out, an affidavit for a search warrant, which will then usually be faxed over to a magistrate or judge who often has woken up to look over the details of that to see if there’s enough there to issue the search warrant, and then the search warrant is sent back to the officer who then will take the client to go get a blood draw done at a lot of different places—sometimes hospitals, sometimes we’ve seen it where they’ve done it right at the jail.
So, or in a mobile unit kind of place. So that is kind of the procedure then, once they’ve concluded that there’s been refusal, then they ask for a search warrant, they get the search warrant and then they go obtain the blood.
An ignition interlock device is a device that gets installed into a person’s vehicle, and it is a breath test machine. So, it is usually equipped with a camera so they can make sure they know the correct person is blowing into it. It is required every time you start the vehicle, and then at other times while the vehicle is running. You’ll have what they call a rolling retest. So the machine is built to measure breath alcohol, to determine if somebody has consumed any alcohol at all.
They are required in all operating with a high bodily alcohol content, or what’s nicknamed “super drunk,” every conviction for that requires that the Secretary of State order it to be installed after a 45-day suspension. So it would be in the vehicle for the next 320 days, as a requirement in order to be able to operate the vehicle at all.
So, it is required in those situations. It can also be ordered in other situations as well, but you see it very frequently, well, always in the high BAC convictions. Sometimes if things are reduced, a judge might take that into consideration, as far as whether to order that.
And it is also used in situations where people are trying to get their full license privileges back, it can be a stepping stone towards getting to that by allowing you to drive with a restricted license with an interlock device in it first, and then once a period of time has gone on beyond that, then it would be, the Secretary of State might grant total license privileges.
Obviously it depends on a variety of factors, and so what we need to do is we need to take a look at, well, is this like a young, small lady, so that we could have like a smaller body size? If it is a smaller body size, then you’re talking possibly even one drink to .05. Obviously certain drinks, things like Long Island Iced Teas, those are going to put a lot of people over a .05 regardless of what kind of bodyweight they have, just simply because of the high amount of alcohol that are in these drinks, and drinks like martinis which are essentially, people think they’re mixed drinks, but they’re alcohol mixed with more alcohol.
And those kind of drinks, those can be quite alcohol intensive for smaller people or people who don’t process alcohol very readily. And so therefore, a .05 might be a single drink for a lot of people and they might be over the legal limit. It just really depends on timing, spacing, what you’re eating, but it would be very important to know that if you did go out and you were going to have one drink, having that second drink at that lower level would obviously be something you would want to strongly advise against.
Of course, this is exactly what the restaurant industry is worried about, is that they want to sell you that second drink. They want to sell you possibly a third drink if you think you can get away with it. So that is the competing interests that a lot of people do not see.
A look back period in Michigan legally or specifically does not exist. However, there are specific time periods that are noteworthy. If you have a prior conviction, not an arrest but a prior conviction, within seven years of your current arrest, you can be charged with a second offense. If a current conviction is within seven years, your license will be revoked for one year. If that current conviction falls outside of seven years, your license would be suspended like a first offense even if you pled or were convicted of a second offense.
It is very complicated but it is something that we have to look at on every single case. Now, what the look back period refers to in Michigan is where there are two prior convictions for alcohol, regardless of the amount of time that has passed. You may in fact be charged with a felony third offense. Prior to that law being amended, it required that there were two prior convictions within a 10-year period, or what we call the look back period. Now, it is your lifetime.
Upon your arrest, you will be released via bond and will be required to appear in court at the arraignment, which is the formal reading of the charge. Or in some cases, you may even be arraigned immediately after your arrest from the jail via video or in some cases be transported to the courthouse to go in front of the judge. In either case, the court will ensure that the case moves along its intended course and often much quicker.
However, after the arraignment the case is set for a pre-trial, which allows your attorney to meet with the prosecutor to discuss how to proceed or what evidence is outstanding or potentially negotiate a plea or even a sentence. After all the pre-trial efforts have been exhausted, the case would be set for a plea or be set for jury trial where, depending on the particular court, your counsel will select a jury and the trial is settled for a later date or may follow the jury selection itself.
If you have a commercial driver’s license in Michigan and you are convicted of operating while intoxicated, it would mean a one-year suspension of all your CDL privileges, regardless of what happens with your operator’s license. So typically, in an operating while intoxicated conviction situation, if someone didn’t have a CDL, they would only have to worry about having their license suspended for, a hard suspension for 30 days followed by 150 days with restricted driving privileges. Whereas if you have a commercial driver’s license, there is a whole year where you’re not allowed to drive a commercial vehicle. So it has a much more drastic impact on our CDL clients.
There is kind of an interesting break down in the law between the personal and professional use of a vehicle. For a commercial, CDL driver to operate a motor vehicle if their blood alcohol level is between .04 and .08, there is a special law that covers that. And that is also against the law as a misdemeanor. So, very specifically, .04 to .08 is also a 93-day misdemeanor.
Now, if a CDL driver is just operating a regular vehicle, not working at all, the OWI still causes the same CDL sanctions to the driver’s license. The CDL suspension happens whether you’re in a commercial vehicle or not, but the criminal sanctions can depend on what the blood alcohol level was, whether they’re going at it as a CDL driver with a .04 to .08 or if they are just driving the regular vehicle, .08 or greater, or operating while visibly impaired, the prosecution can still charge those things and still have CDL sanctions either way.
Most people receive a citation, a skinny sheet of paper, that has a spot for three different charges on there, that most of the time would say OWI, operating while intoxicated, something to that effect. Sometimes, especially in cases where a blood sample was taken, the client does not receive anything but a temporary driving permit. So they do not actually have any kind of ticket or citation to know what the charge is against them, so they are not really sure. In most cases you would see a citation ticket issued to the person being arrested for operating while intoxicated.