OWI Category Archives — Page 14 of 15 — Michigan Criminal Defense Lawyer Blog Published by Michigan Criminal Defense Attorney

Should I Refuse the Field Sobriety Tests?

Published on: March 8, 2017 | by Patrick Barone

If you are stopped and the police smell alcohol or marijuana, then there’s a good chance you will be asked to step out of the car to perform field sobriety tests. If you fail one or more of these tests, then you will probably be arrested for OWI, or Operating While Intoxicated.

Michigan has not made it unlawful to refuse field sobriety tests, and if you refuse them, then the police will not be able to use any poor performance against you at trial. Your attorney might also argue that without field sobriety tests the police lacked probable cause to make a lawful arrest. If successful, your case could actually be dismissed. So there is a real benefit to refusing the field sobriety tests.

On the other hand, the prosecutor might argue that you refused the tests because you knew you’d fail them. This is sometimes called a “consciousness of guilt.” Much has been written about consciousness of guilt arguments, and some courts believe that these arguments violate due process. For example, if you exercise your constitutional right to remain silent, this should not later be used against you. However, other courts have held that so long as you are advised ahead of time that your refusal will be used against you, then there is no due process violation.

Repeat Drunk Drivers in Barry County, Michigan Get Minimum 30 days in Jail

Published on: March 2, 2017 | by Patrick Barone

A Barry County Judge has indicated that he’s going to start cracking down on repeat drunk drivers by giving them a minimum of 30 days in jail.

Judge Michael Shipper was appointed by Governor Snyder in 2011 and is already tough on first-time offenders. Now he says he’s ready to be even tougher on repeat drunk drivers. He’s indicated that the 30-day sentences could be spread out over 15 weekends.

In Michigan, a second offense drunk driving charge is appropriate only where the offender has a prior offense within the prior 7 years. If the prior offense is more than seven years old the new offense will be considered a first offense. However, the same is not true for those drivers with two prior drunk driving offenses on their record. Michigan has a lifetime look back for drivers with three or more total drunk driving convictions. These drivers are considered felons and may face up to five years in prison.

Trump Plan Would Place Lansing Toxicology Lab Under Federal Control

Published on: February 27, 2017 | by Patrick Barone

President Trump’s Department of Justice has proposed a new Office of Forensic Science and Forensic Science Board within the DOJ. This new board would have governing authority over all of Michigan’s forensic labs, including the Toxicology lab located in Lansing. Nearly all drivers arrested for intoxicated driving and subjected to blood draws currently have their blood tested at this Lansing Toxicology lab. Consequently, this new change could impact more than 10,000 DUI cases each year in Michigan.

The new Department would be headed by a Director, who would be appointed by the President. The Director would report to the Attorney General. According to subsection b of the proposal, the mission of the new Forensic Science Division would be: to strengthen and promote the use of forensic science within the judicial system by supporting forensic science service providers, as they continually improve the validity, quality, and practice of forensic science through innovative solutions that focus on research and development, testing and evaluation, technology, information exchange, training, and capacity building for the forensic infrastructure.

One of the duties of the Director will be to work to ensure that appropriate accreditation, certification, standards, methods, best practices, and organizations exist for forensic disciplines.

I Was Arrested for Drunk Driving, Should I go to AA?

Published on: February 20, 2017 | by Patrick Barone

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If you were arrested for drunk driving in Michigan, then you should talk to your lawyer about whether starting with a structured 12-step program such Alcoholics Anonymous, or AA, may help your case. While clearly the best known, AA is not the only 12-step program, and it may not be the best option for you.

Understanding 12-Step Programs:

A 12-step program is a structured support system designed to aid individuals in overcoming addiction, fostering personal development, and maintaining sobriety. Core principles include acknowledging powerlessness over the substance, seeking guidance from a higher power (interpreted personally), making amends, and supporting others in their recovery journey.

What it Means to “Operate” a Vehicle In the Context of a Michigan DUI Charge

Published on: February 16, 2017 | by Patrick Barone

In some situations, the police can charge you with drunk driving in Michigan even if the police never saw you driving your car. However, the legal analysis in these cases is very fact specific, and the law is quite complex. In some situations, courts have upheld convictions when the police never saw anyone operating the car. But in other cases, courts have held there was no operation. To understand why this difference exists, and why a court might allow such a non-witnessed drunk driving case to stand, you need know a few things about the drunk driving laws of Michigan.

To begin with, the crime of drunk driving is called OWI or “operating while intoxicated.” Michigan does not use the word “drive” so Michigan’s drunk driving law is not called driving under the influence (DUI), or driving while intoxicated (DWI). The word operate is much broader than the word drive. The Michigan Motor Vehicle Code defines “operate” or “operating” as “being in actual physical control of a vehicle” whether licensed or not. MCL 257.35a. Thus, the plain language of the statute requires that driver’s actions must establish “actual physical control” of the vehicle.[i] But the analysis doesn’t end there. What happens for example if a person is asleep or unconscious?

A question sometimes raised in this context is whether a sleeping or unconscious driver can be found to be in “actual physical control.” In these cases, which often have unique facts, the Michigan Supreme Court has expanded the term “operation” such that ‘operating’ is defined in terms of the danger the OUIL statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. Accordingly, “[o]nce a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such risk.”[ii]

Driving Under Influence of Marijuana and Implied Consent in Michigan

Published on: January 24, 2017 | by Patrick Barone

If you’ve used medical marijuana in Michigan, drive your car, and are stopped by the police, you can be charged with OWI or “operating while intoxicated.” This is because Michigan’s drunk driving statute, found at Michigan Compiled Laws 257.625, indicates in part as follows:

As used in this section, “operating while intoxicated” means any of the following:

(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.

Michigan Saliva Drug Test Program Delayed Until Spring

Published on: December 20, 2016 | by Patrick Barone

Michigan passed a law such that beginning in September 2016 police were going to start testing a salvia drug swab. Apparently, however, the technology has not caught up with the law, and so, according to Mlive, the program is being delayed. An MSP spokesperson said the program isn’t likely to get started now until spring 2017. To read more about this new law, see:

Michigan Police to Begin Testing Intoxicated Drivers Saliva for Drugs

The reasoning behind this new law is simple: drunk driving arrests are declining, year after year, in nearly every state in the union. This presents a funding problem for many police departments and courts. This is because the police receive money directly from each drunk driving arrest they make in the state of Michigan. This money comes in the form of “costs of prosecution,” which vary from about $250.00 per arrest to sometimes 2 or three times that much. This accounting for police overtime can include an hourly accounting of the police time necessary to process the person they arrested. These costs of prosecution are added to all the other fines and court costs a convicted drunk driver is forced to pay. Courts get their money from each drunk driving arrest in the form of these fines and costs.

There are many ways to make up for this loss in revenue attributable to the declining numbers. One would be to try and increase the number back up by lowering the legal limit, thereby bringing even the most responsible drinkers into the law enforcement web. More than likely the legal limit will be reduced to .05 in Michigan, it’s just a matter of time. However, there are no bills pending in Michigan to reduce the legal limit.

What is Statute of Limitations for Drunk Driving Cases in Michigan?

Published on: December 6, 2016 | by Patrick Barone

According to Michigan Compiled Laws 767.24, the Statute of Limitations for a drunk driving case in Michigan is 6 years. However, under certain circumstances this time period can be extended. Also, although the limitations period is 6 years, according to Michigan case law, prejudice is presumed after only 18 months. This means if your drunk driving case is brought just 18 months after you are arrested, then it might sometimes be dismissed. This speedy trial issue is discussed in more detail below.

Relative to the statute of limitations, the most important date is the date of the arrest because this is the date used to start calculating the applicable time period. In other words, the “clock” runs from the date of the arrest to the time the charges are brought, either by the issuing of the ticket or the complaint. This is true even though the statute of limitations uses the word “indictment.” You do not necessarily have to know about the indictment, the prosecutor need only file it within the limitations period.

Also, if you are from out of state, or move out of state during the running of the limitations period, then the limitations might be “tolled” meaning paused. This means if you are arrested on January 1, 2017, then leave the state to take a new job on January 2, 2017, the statute of limitations won’t start to run again until you return to the state. Consequently, if you came back to the state of Michigan to retire on January 1, 2030, the prosecutor would have until December 31, 2037 to file the indictment/information with the court. This is because section 8 of the Statute reads as follows:

Impact of a Michigan Drunk Driving Charge on Buying or Leasing a New Vehicle

Published on: November 22, 2016 | by Patrick Barone

If you have been arrested for a first offense drunk driving in Michigan, then you are not prohibited in any way from buying, selling or leasing a car. However, if you have been arrested for a second offense drunk driving, then things get a bit trickier.

In 1999, the Michigan drunk driving set forth at Michigan Complied Laws 257.625 et. seq., changed substantially. Part of these changes included license plate confiscation for people arrested for a second offense within seven years, or a third offense within a lifetime.[i] The police replace the metal license plate with a temporary paper plate that is valid, under statute, until the charges against the person are dismissed, the person pleads guilty or nolo contendere to those charges, or the person is found guilty of or is acquitted of those charges.[ii]

These procedures bring up a whole host of potential issues including what happens if you want to sell your car, or turn in your lease, and what happens if you want to buy a new car?

The Role of Search and Seizure in The Prosecution of DUI Cases

Published on: October 19, 2016 | by Patrick Barone

What Follows is a draft excerpt from The Legality of Search and Seizure in DUI Cases, 2016-2017 ed.: Leading Lawyers on Leveraging Science and Process to Develop Winning Defense Strategies (Inside the Minds):

Evidence collected from search and seizure plays the starring role in the prosecution of DUI cases, and in fact, were it not for search and seizure there would be no DUI case. When we talk about search and seizure, we are squarely within all of the law that has arisen out of the 4^th amendment to the Constitution which provides as follows:

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”