Articles Posted in OWI

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.

Recreational marijuana will soon be legal in Michigan.  Known as proposal one, which passed by a large margin, marijuana won’t officially become “legal” until 10 days after the election is certified by the state board of Canvassers. This is expected to happen sometime in early December.

However, the enabling legislation has not yet been enacted, and because of this, the legalization of marijuana in Michigan raises a whole host of legal and criminal law issues.  For example, once the election result for proposal one is certified, will it then be legal to operate a motor vehicle with marijuana in your system?  What is the legal limit for marijuana?  If you operate below this legal limit, are you immune from prosecution for operating under the influence of marijuana?  Each of these questions is addressed below.

Is it now legal in Michigan to operate a motor vehicle with marijuana in your system?