Articles Posted in OWI

A study prepared by researchers from Columbia University concludes that drivers under the influence of marijuana are more than twice as likely to cause motor vehicle accidents. The report, entitled Marijuana Use and Motor Vehicle Crashes which was a metanalysis of prior studies, found:

Specifically, drivers who test positive for marijuana or self-report using marijuana are more than twice as likely as other drivers to be involved in motor vehicle crashes.

Marijuana is now legal for those persons in Michigan over the age of 21, and it is expected that more people than ever will be driving after consuming products containing marijuana. However, debate still exists as to whether and how much marijuana use actually impacts a driver’s ability.  Much more rigorous study must be done.

Depending on how you are employed, even a single drunk driving conviction can result in termination. If you keep your job, then a DUI conviction might result in being passed over for a promotion. A drunk driving conviction might also result in future employers selecting other candidates for open positions, and again depending on the circumstances, might make you entirely ineligible for certain types of employment.

Employees with current or possible future access to company cars are particularly at risk, which is quite common in Michigan with all the auto-related jobs. Other jobs highly at risk are those occupations that place someone in a position of public trust, including, for example, health care professionals, accountants, financial advisors, and lawyers. Other jobs particularly susceptible to loss include those where, through the normal course of business, you have access to alcohol or drugs, such as jobs in the hospitality industry or industries like pharmaceutical sales. At the Barone Defense Firm, we examine any employment contracts you may have signed or any employee handbooks that may apply to your current situation.

However, it should be noted that an individual whose employment is terminated subsequent to a DUI conviction may want to consider legal action. For example, in the case of A.D.P. v. ExxonMobil Research and Engineering Co., 428 N.J. Super. 518, 54 A.3d 813 (N.J. Super.A.D., 2012), the plaintiff’s employment was terminated after she failed a breath test. More specifically, the defendant ExxonMobil required the plaintiff, who had been an employee for 29 years, to sign an alcohol abstinence agreement and submit to random breathalyzer tests as a condition of her continued employment. The court indicated that her termination was unlawful. Specifically, the court found that the evidence supported a conclusion that the plaintiff was subject to these requirements and fired when a breathalyzer test revealed alcohol use because she voluntarily disclosed she was an alcoholic and enrolled in an inpatient rehabilitation program. This admission triggered ExxonMobil’s Alcohol and Drug Use Policy (the Policy), which, although facially discriminatory, ExxonMobil defended as reasonable.

Colorado was one of the first States to legalize the use of marijuana. Michigan has now followed suit and has legalized both the use of medical as well as recreational marijuana. However, in Michigan and all other states, driving under the influence of marijuana remains illegal.  If you are caught driving high in Michigan, you can be charged with operating while intoxicated (OWI), Michigan’s version of driving under the influence (DUI).

The types of PSA, public service announcements long since popular in Colorado, have not yet made it to Michigan. According to the ad campaign in Colorado, here’s what you can do in Colorado while high: grill a steak; play ball; install a TV. Here’s what you can’t do while high in Colorado: drive to get the propane you forgot; drive to see the pros play ball; drive to the store to buy a new TV.

The problem in Michigan is that there is no set standard for knowing when a person is driving high. Because of this, Michigan has considered, but so far rejected, legislation that would create standards for determining when a driver is impaired by their use of pot, such as the creation of a legal limit. This is no easy task, partly because, unlike alcohol, many drivers who are under the influence of pot are still safe on the road.

In nearly every drunk driving arrest, the police officer’s narrative report will indicate the observation of “strong odor of intoxicants.” As with all the facts, it will ultimately be up to a jury to decide the meaning of this observation, and to “weigh” it along with all the evidence in a DUI trial.

Before the case even goes to trial, the odor of intoxicating beverages can also be used by a judge in determining if there was probable cause to make the arrest, to begin with. All of this begs the question; is the odor of intoxicants a reliable indicator of anything, much less a reliable indicator of drunk driving? According to scienctific research, the answer is a resounding no!

The odor of an alcoholic beverage is, as an indicia of intoxication, nearly meaningless because “…even under optimum laboratory conditions, breath odor detection is unreliable…” The results also cannot be used to “guess” the driver’s bodily alcohol level or quantify consumed. Both statements appear in the study entitled Police Officers’ Detection Of Breath Odors From Alcohol Ingestion by Herbert Moskowitz, Marcelline Burns, and Susan Ferguson that appeared in Accident Analysis Prevention 31 (1999) 175-180.

If you’ve been convicted of a criminal charge at some point in your life, you’ve probably asked yourself, “is there any way I can get this thing off my record?” The answer, in many cases, is yes. And there’s no better time than the current Covid-19 shutdown to improve your life by getting a Michigan criminal conviction expunged.

The benefits of getting a criminal charge expunged are many. An expungement could allow you to pursue a more rewarding career. Your successful Michigan felony expungement could also restore some or all of your firearms rights, including the ability to purchase and possess guns. Your successful expungement could also restore your right to vote. Finally, a successful Michigan felony expungement could lift that weight off your shoulders you’ve carried for years, and make you feel like the law-abiding citizen you’ve become. Don’t let one past youthful indiscretion or mistake keep you from living the life you deserve.

Am I Eligible for Michigan Felony Expungement?

The first thing you should know about Michigan’s expungement law is whether you’re eligible. You are eligible for expungement if you have never had more than one felony and two misdemeanors on your record and it has been more than five years since you were discharged from probation for the most recent charge. This includes all fines and fees being paid for a minimum of five years.

The trial of an alleged drunk driving brings out all sorts of personal biases and strong opinions. In their zeal to gain convictions, prosecutors, often without realizing it, violate their professional ethics. The most common place this happens is during opening and closing arguments. But it often happens during the jury selection question and answer period called voir dire.

The reason certain statements are considered misconduct on the part of a prosecutor is such statements have a disproportionate influence on a jury, misstate the law, or introduce something irrelevant into the process for the juror’s consideration. When a jury finds a defendant guilty or not guilty based on something other than an application of the law as given by the judge, the result is “nullification.”

A great example of this is shown in the case of DiDomenicis v. State, 49 A.3d 1153 (Del. Supr., 2012). In this case, the prosecutor’s opening statement contained the following: (1) when you get a license, and you can operate a motor vehicle, you have a great responsibility, and that responsibility is to yourself, obviously, but also to every other driver on the road. (2) Every day … we see articles and videos about people who get arrested for DUI. Sometimes their first; sometimes their seventh or more; sometimes they’ve been pulled over thanks to a citizen who called 911 or an alert police officer; sometimes because they cause property damage, or they have injured themselves or others. (3) The DUI law was created to safeguard the lives of every citizen on the roads of the State of Delaware. (4) When the General Assembly wrote the DUI law, they wrote it to encompass not just the most minimal conduct possible, driving down the road, but the broadest spectrum to provide the maximum protection to the citizens of this state, and (5) [W]hy so broad? Why not just the people driving down the road? Because the goal is to stop people who are under the influence before they drive away and cause havoc on our roads.

Perhaps one of the most tragic drunk driving accidents in recent memory involved the simultaneous death of a mother and her two boys, aged 12 and 9.  The husband and father of the boys, Mr. Gary Weinstein, was not in the vehicle, and therefore survived the crash that wiped out his family.

The man responsible for the three deaths was driving a Yukon which slammed into the Honda accord occupied by Mr. Weinstein’s family.  He was traveling nearly double the speed limit and had bodily alcohol content more than 3 times the legal limit.  As a result of his reckless disregard for human life, he was sentenced to 19 – 30 years in prison.

At the time of his sentence, Mr. Wellinger, the man responsible for the three deaths, was housed in the Oakland County Jail.  Shortly after, he was transferred to the custody of the state prison system for assignment to the location where he would serve the balance of his sentence.