Commonly Used Terms in Michigan OWI Cases
BOND – In criminal law, a “surety bond” is also utilized for the temporary release of such arrested/imprisoned persons. In this process, a surety puts up money or property that assures the appearance of the defendant or the payment of the defendant’s bail if the defendant fails to appear. The person who agrees to be the “surety” is financially obligated to pay the bond if the person fails to appear in court as directed. Typically, such failure to appear will result in the judge of the court requiring attendance to issue a “bond forfeiture” order, as well as a warrant for the defendant’s arrest.
BLOOD ALCOHOL CONTENT/LEVEL (BAC) OR (BAL) – These two terms are used interchangeably to label the amount of alcohol in a person’s bloodstream. The adult (age 21 and over) legal limit in drunken driving cases is .08% in Michigan. For someone under 21, the legal limit is 0.00%, 0.01% or 0.02%, depending on the state the offense is committed in. For adults driving a commercial vehicle, the legal limit is 0.04%.
BLOOD TEST – This is the form of testing used to measure the amount of alcohol present in a person’s bloodstream by drawing their blood, and is usually performed at a hospital. Blood tests are often requested where substances other than alcohol are suspected to be impairing the driver in a DUI-DWI case, or where an accident has occurred possibly requiring the person suspected of drunk driving to be taken to a hospital. In some states, refusal of a blood test is possible for a person who is capable of refusing. In other states however, forcible blood draws are authorized, making irrelevant the fact of whether or not a defendant is capable of refusing.
BREATH TEST – This is the form of testing used to measure your breath alcohol content, and is usually performed at a police station or a jail. It is important to note that you do not have to agree to perform any form of breath test, and in most cases, you should not agree to do so. Some police jurisdictions also use roadside breath tests, such as a “PBT” for example. The results of your breath test taken at the police station or jail, if you choose to submit to such tests, are admissible and can be used as evidence against you in court. However, the results of your breath test taken at the roadside, if you choose to submit to such tests, are not admissible as evidence against you in court.
BURDEN OF PROOF – This refers to the evidentiary obligation of a party to legal proceedings having to “carry” the burden to prove his or her allegations during a trial. To simplify what this means, it is helpful to break the phrase down the “who” and “what”. The term “burden” simply refers to “who” must prove the allegations in the case. The term “proof” refers to “what” must be shown in order to prove the allegations in the case. Different levels of proof are required depending on the type of case. This phrase is employed to signify the duty of proving the facts in dispute on an issue raised between the parties in a cause. In criminal cases, every person is presumed to be innocent until proven guilty., Here the burden of proof rests on the prosecutor to prove each and every element of the charges, and the level of such proof is “beyond a reasonable doubt”. After the prosecutor has presented such evidence, the defendant may need to rebut (challenge) the prosecutor’s evidence, as a practical matter, even though the burden of proof in criminal cases never shifts to the defendant.
CIRCUMSTANTIAL EVIDENCE – A type of indirect evidence that implies something occurred but does not directly prove it. For example, circumstantial evidence that it rained recently can be obtained by a witness testifying that he went into his house at 6:00 p.m. and it was not raining. Later, at 7:30 p.m., he comes outside and the ground, roadways and trees are wet. He did not SEE it rain, but circumstantial evidence says it did.
CITE – Similar to a unique web site address [URL], this is a legal shorthand method of referring to a particular criminal or civil case that has been decided by a court. Each reported (and some unreported) decisions by appellate and even trial level decisions in some states is given a unique set of alphanumeric identifiers that help attorneys refer to the case so others can look it up and review the ruling by that court. In researching these items, you will frequently see such cases used as references for legal points that are made either in the text itself or in the footnotes. By copying the case names (State v. Jones) and the numbers and words following (233 N.C. App. 456) as a whole and entering this information into either a legal search engine or into Google, you can find the entire case itself.
COMMON LAW – Law based upon previous decisions of courts or referring to the body of laws passed down from England to America. The implications and ramifications of common law vary from state to state.
CONCURRENT SENTENCE – Upon conviction for multiple crimes, a criminal sentence can be ordered by the judge to be served at the same time as another criminal sentence, rather than one after the other. For example, let’s you were charged with armed robbery and murder and were convicted for both crimes. And the judge sentenced you to 5 years for the armed robbery, and 20 years for the murder. If the sentence was concurrent, you would only serve 20 years of sentence time. The 5 years for the armed robbery charge would be served during your 20 year sentence for the murder conviction. This is different than the below “consecutive sentence”.
CONSECUTIVE SENTENCE – Upon conviction for multiple crimes, criminal sentences that must be served one after the other, rather than at the same time, are called “consecutive” sentences. Consecutive sentences may only be imposed if there is specific statutory authority to do so. To explain, let’s use the above example in the definition of “concurrent sentence”. Here, instead of you only serving 20 years, you would serve 25 years. This is because you would serve your 20 years for the murder conviction, and after that then you would serve your 5 years for the conviction of armed robbery. In some circumstances, consecutive sentences may be imposed within the judge’s discretion (e.g., when a person is convicted of a new offense committed while on parole status). In other circumstances, consecutive sentences are mandatory under state law.
CONTEMPT OF COURT – This phrase refers to any act or conduct that shows disrespect for the court’s authority. Contempt usually means a person has failed to obey a court order. Contempt can be punished by a fine or imprisonment. Generally, contempt that can result in jail time must occur within the courtroom or in the presence of the judge. Other forms of contempt are typically punished by fines.
CONTINUANCE – This term refers to postponing or rescheduling a case or court session until another date or time. In some jurisdictions, this is called an “adjournment.” Each state’s laws control when and under what circumstances an adjournment or continuance is available to either party, and typical rules include being able to prove several criteria exist that justify the Court resetting the case to a future date.
CONVICTION – Finding by a judge or jury that a person is guilty beyond a reasonable doubt of committing a crime.
COURT-APPOINTED ATTORNEY – Refers to legal counsel assigned by the court to represent an indigent criminal defendant. A court-appointed attorney is not necessarily a “free” attorney; the court can order that some or all of the attorney’s time utilized on behalf of the client be reimbursed. If there is no chance jail time will be imposed on a defendant on a misdemeanor, the judge need not appoint an attorney.
CROSS EXAMINATION – The process of challenging the evidence presented by a witness who is testifying for the opposite side in a trial. The person cross-examining the witness may utilize a series of questions and exhibits to raise doubt as to the credibility of the witnesses testimony. Questions on cross-examination (as opposed to direct examination) can be “leading” (questions that suggest the answer to the witness). Leading questions are not permitted to be asked by the party who offers the witness for providing evidence on their behalf. In other words, you cannot use leading questions when questioning a witness that you put on the stand. They can only be used when you are questioning a witness that the opposing party put on the stand after that witness has been questioned by the opposing party.
DEPOSITION – The testimony of a witness not taken in open court, but given under oath before a court reporter pursuant to authority given by statute or court rule, to take testimony in preparation for trial. Deposition testimony may be introduced as evidence in a court proceeding. Only a few states allow deposition testimony in criminal cases, although depositions are very common in civil cases.
DIRECTED VERDICT – In criminal cases, upon motion made by the defense attorney, this is a trial judge’s directive (order) to a jury to return a specified verdict of “not guilty,” usually because the prosecutor failed to prove its case. This type of order is sometimes called an “instructed verdict of acquittal.”
DISTRICT ATTORNEY – A lawyer elected or appointed to serve as a prosecutor for the state in criminal cases. In some jurisdictions, this prosecutor’s title is “state” attorney or solicitor. The common abbreviation for the elected District Attorney in a jurisdiction is “DA,” while the assistants who work for him/her are “assistant district attorneys” (ADA).
DIVERSION – Also known as adjournment in contemplation of dismissal or conditional
dismissal. A program in which a defendant is put on probation for a set period of time and his or her case does not go to trial during that time. If the defendant meets the conditions set by the court, the charge will be dismissed. Diversion is generally only allowed for first offenders, as that term is defined by state law. Some jurisdictions have no statutes authorizing diversion in DUI-DWI cases.
OPERATE – A person is found to “operate” or to “have operated” a vehicle, if the person is: (1) found in the driver’s seat of a vehicle; (2) whether the vehicle is moving, parked, or stopped; (3) on a highway or street within this state; (4) if any part of the vehicle intrudes into the roadway; and (5) the peace officer has reasonable cause to believe the person was operating the vehicle while under the influence of alcohol. It is important to note that if the officer did not actually see your vehicle in motion, because it was parked/stopped or otherwise, circumstantial evidence can be used to prove prior operation.
VEHICLE – This term is broadly defined and applied loosely. The term “vehicle” excludes those objects that are propelled by “human power”. For example, the term applies to most mopeds but does not apply to things such as bicycles. Additionally, the term “motor vehicle” includes some devices that are propelled electrically, but does not always include all of them. With the evolution of the auto industry and its groundbreaking construction of electric cars, this will likely change the definition to include those vehicles as well.
OPERATING WHILE INTOXICATED (OWI) – In Michigan, the typical and more serious “umbrella” charge for the crime of drunk driving is known by the acronym “OWI”. The reason I call this an umbrella charge is because, in the context of drunk driving, the prosecution can prove this more serious charge in one of the two ways listed below.
1. OPERATING UNDER THE INFLUENCE OF INTOXICATING LIQUOR (OUIL) – The first way for the prosecutor to prove you guilty of OWI is to establish that you were “OUIL.” This is Michigan’s form of common law drunk driving. To establish your guilt for this crime, the prosecutor must prove beyond a reasonable doubt that, because of drinking alcohol, your ability to operate a motor vehicle was “substantially lessened.” To prove their case under this theory, the prosecution does not need to present any chemical evidence, such as a breath or blood test. Though a chemical test result can be used by the judge or jury to determine your guilt, such evidence is not required or necessary. Rather under this theory, the prosecutor mainly relies upon circumstantial evidence to prove that your ability to operate a vehicle was substantially lessened. What is troublesome is that there is no clear definition of what constitutes “substantially lessened.” In other words, the determination of whether or not a person’s ability was substantially lessened will be made by judge or jury on a case by case basis. Some forms of circumstantial evidence the prosecutor will use here are the results of your standardized field sobriety tests, as well as all other officer observations and facts surrounding your arrest. (see other glossary terms to define the terms common law, chemical tests, and circumstantial evidence).
2. UNLAWFUL BLOOD ALCOHOL LEVEL (UBAL) – The second way for the prosecutor to prove you guilty of OWI is to establish that you were operating a vehicle with an unlawful bodily alcohol level(UBAL). This is Michigan’s statutory form of the crime of drunk driving, and is what is known as a “per se offense.” This means that the prosecutor need not prove that the alcohol impaired your ability to drive in any way, but rather only that you were above the legal statutory limit. To help explain this better, the statute in Michigan governing the unlawful blood alcohol of a person operating a vehicle at the legal limit of .08. As a result, for the prosecution to establish your guilt under this theory, the prosecutor must prove beyond a reasonable doubt that your blood alcohol level was at or above the legal limit WHILE YOU WERE DRIVING. It is important to note that, although this offense does not require the prosecutor to prove that the alcohol impaired your ability to drive as with the OUIL offense, it does however provide that the prosecutor prove other extremely important elements. Since this offense is proven strictly based upon complex scientific chemical evidence, the prosecutor must prove any/all chemical testing evidence in your case to be both admissible and reliable. However, even if the prosecutor succeeds in admitting and establishing the chemical evidence as reliable, the determination of your guilt is not automatic. Though such chemical evidence has been admitted, it is for the jury to decide how heavily to weigh the evidence and ultimately determine your guilt.