Articles Posted in OWI

Yes, an unpublished Michigan Court of Appeals case suggests that you can.  The name of the case is People v. Ra[i]. In this case, the defendant, Ms. Ra, was visiting the home of her mother. Ms. Ra’s teenage niece was also at the home.  Ms. Ra and her mother were both sitting on the porch watching Ms. Ra’s two-year old daughter play in her car which was parked in front of the house. The niece’s teenage friend showed up and since it was believed that this young woman had beaten up the niece at school earlier, Ms. Ra told her to call her mother to pick her up.  The mother showed up in response to the call and proceed to create a big scene.  Ms. Ra then asked her to leave as well, and this request apparently infuriated the teenager’s mother.  At trial different versions of what happened next were presented by the two parties, but it appears that after the teenager got into her mother’s car, the mother rammed the car into the car in which Ms. Ra’s child was playing.  Ms. Ra then went to her car and retrieved a handgun from the consol.  She then pointed the gun at the other car, demanding that they leave.  The teenager’s mother got out, apparently unafraid, and took pictures of Ms. Ra holding the gun.  She then left, went to the police department, and filed a complaint.  The defendant ended up charged with two felonies; assault with a dangerous weapon (felonious assault), pursuant to MCL § 750.82, and possessing a firearm while committing a felony (felony-firearm), pursuant to MCL § 750.227b.

Ms. Ra’s was convicted of both felonies counts at trial, and on appeal her attorney that the trial court erred by refusing to instruct the jury on the use of nondeadly force in self-defense.  Her attorney argued that she used only nondeadly force by pointing her gun at the car, and that the trial court thereby unfairly restricted the circumstances justifying self-defense to whether defendant reasonably feared death or serious bodily harm.  The Court of Appeals agreed and reversed and remanded the case for a new trial.

Self-defense is an affirmative defense that justifies otherwise punishable criminal conduct, and applies when the defendant acted intentionally, but under circumstances that justified her actions. The  use  of  deadly  force  in  self-defense  requires  that  the  defendant  honestly  and reasonably believe that she or another is in danger of being killed or seriously injured, M Crim JI 7.15(3), while the use of nondeadly force in self-defense requires that the defendant honestly and reasonably  believe that  the use of force is  necessary to  protect  herself  or  others  from the imminent unlawful use of force by another.  M Crim JI 7.22(4).  Thus, the use of deadly force in self-defense requires a reasonable belief that the circumstances were more dire than the circumstances necessary to support a use of nondeadly force in self-defense.  The Michigan Self Defense Act does not define “force” or “deadly force.”  The Michigan Supreme Court, however, has applied the term “deadly force” as defined as force used in a circumstance in which the natural, probable, and foreseeable consequence of the act is death. People v Couch, 436 Mich. 414, 428 n 3; 461 NW2d 683 (1990).  In this case the Michigan Court of Appeals held that brandishing a gun, which is essentially the threat of deadly force, is itself non deadly force.  Because Ms. Ra may have honestly and reasonably believed that non-deadly force was necessary to protect her daughter from the imminent use of force by the teenager’s mother, Ms. Ra was entitled to brandish the gun in self-defense.

If you are facing a possible conviction on a misdemeanor or felony in Michigan, then you are undoubtedly wondering what the likely sentence will be for a misdemeanor or felony. Michigan judges operate on the theory of “individualized sentencing” meaning that each offender is sentenced according to their own circumstances. Accordingly, the judge sentencing you should consider all relevant and necessary information to allow him or her to fashion an appropriate and proper individualized sentence. Such a sentence should be tailored to the particular circumstances of the case and the offender and should balance both society’s needs for protection and society’s interest in maximizing the offender’s rehabilitative potential.[i] The sentencing judge should consider information that has a logical bearing on the following four sentencing goals:

1. the reformation of the offender,
2. protection of society,
3. the disciplining of the wrongdoer, and
4. the deterrence of others from committing like offenses.[ii]

To help you avoid pleading guilty without any knowledge or expectation of your actual sentence, your lawyer may ask the judge for a “Cobbs[iii] agreement.” If your judge agrees to give one, the judge will advise you before the plea is entered what the judge believes to be an appropriate sentence or sentence range will be at sentencing. In other words, the judge may tell you that the sentence will be “six months in jail” or will fall within “the lower half of the sentencing guidelines.” This preview of the judge’s sentence is supposed to be based on the specific facts of your case and your criminal history, or lack thereof. Prosecutors are not supposed to be party to the terms of this possible sentence.

If you agree to plead guilty based on this sentencing preview and the judge determines later that a different sentence is in fact appropriate, then you may withdraw your plea.[iv]  There are some situations where this is not true, however. One example of when the judge need not follow the previewed sentence is where you violate a precondition the plea and Cobbs evaluation for a misdemeanor or felony. In such circumstances, you are not entitled to the benefit of the agreement. If this happens, you will not be allowed to withdraw your plea even if the sentence is worse the promised. [v]

OWI and OUIL are acronyms describing two different ways a prosecutor can prove the crime of drunk driving in Michigan.  The acronym OWI refers to the more general crime, while OUIL describes a specific way to prove a specific crime which is that of drunk driving.  In other words, the acronym OUIL relates to a certain kind of proof at trial. Either way, both OWI and OUIL ultimately relate to the same crime.

This crime can be found in Michigan law at MCL 257.625, which sets forth all the different ways intoxicated driving can be proved.  The general term for intoxicated driving is OWI which stands for operating while intoxicated.  The crime of OWI really consists of several different crimes depending on the type of intoxicating substance present.  Thus, OWI can describe intoxicated driving crimes involving alcohol, prescription drugs, and non-prescriptions drugs like cocaine or even marijuana.

When it comes to intoxication by alcohol, the acronym OUIL applies to one of the two ways the crime of OWI can be proved in court.  This stands for Operating Under the Influence of Liquor.  To prove this crime, the prosecutor will often use what is called the observation evidence.  This usually relates to all the evidence other than the breath or blood test.  Observation evidence is usually broken down into the parts, and these come from the three phases of the drunk driving investigation.

It is an undeniable truth that police officers have a much more difficult time detecting stoned drivers when compared with the relatively easy task of detecting drunk drivers. There are many reasons for this and first among them is that marijuana does not impact driving anywhere near the way alcohol does. It is also debatable whether marijuana impairs a driver’s ability to safely operate a motor vehicle at all.  Debate aside, with the legalization of recreational marijuana in Michigan there is little doubt that police will begin arresting more stoned drivers.  Which begs the question; how will the police know you’re too stoned to drive?

At the beginning, the stoned-driving investigation will closely mimic a drunk driving investigation.  A driver will be stopped for some identifiable violation of the traffic code, such as driving too slowly, disobeying traffic signals and so on. When the police first approach the driver, they will be looking for any signs or symptoms of marijuana use.  Like alcohol, the most tell-tale sign will be the odor of marijuana, which is obviously much more difficult to detect in the case of consumables.  The police will be looking for pupil dilation and eyes that otherwise appear stoned.  Additionally, the police will be looking for packaging or paraphernalia commonly associated with marijuana use.  If marijuana use is suspected, the police will seek an admission to the prior use of marijuana.  The next step may be either to request a preliminary breath test and/or to request the driver’s participation in the administration of field sobriety tests.  The purpose of all this is to determine if in fact the person is impaired and to rule out the possibility that alcohol is causing the impairment.

After a driver blows all zeros (or very low) on the alcohol preliminary breath test, the police officer will need to decide whether to call in a DRE (Drug Recognition Expert). The police officer will also need to decide if they have enough evidence to arrest the driver at this point, or if the DRE needs to continue the investigation at the roadside. In preparation for all of this, in 2016 Michigan expanded its definition of the Drug Recognition Expert.