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20 More Frequently Asked Questions About Your Michigan OWI

Question 1: What is the 15-minute observation period in a Michigan OWI case?

The reason they call it a 15-minute observation period is, whenever you’re doing breath testing, the mouth can have contaminants in there which can throw off any kind of breath testing. So it can be other parts of the esophagus, potentially I guess you could have it in the lungs, or in the bronchioles, there could be some kind of contamination there as well, but most often it’s something that’s in the mouth. So if an officer inspects the mouth of the person he wants to test, makes sure there’s nothing in there right then, and observes them for 15 minutes, 20 minutes, somewhere in that range, they can be somewhat assured that there won’t be contamination of the breath sample and they should be reasonably sure that the test is at least somewhat accurate.

If there’s any kind of regurgitation, burping, anything that’s foreign in the mouth, like chewing tobacco is a common one I’ve seen, if there’s anything like that, then they need to remove whatever’s in there, make sure the mouth is clean, and then wait another 15 minutes from that point in time. This is where we see a lot of problems in a lot of tests. And this 15-minute observation period is both for the preliminary breath test done at the side of the road as well as the DataMaster test that’s done back at the police station. It’s supposed to be done in both instances. But we see a lot of times where it’s not actually followed, or the officer is not actually observing anything and we watch the video and the client is touching the mouth, and who knows what’s on the client’s hands, and things like that.

Question 2: What will my attorney do with the police report in my Michigan OWI case?

This is the reason that somebody would want to hire a drunk driving specialist, somebody who is exclusively in this field. They want somebody who understands not only what went on but what should have gone on from the police’s perspective. One of the big things about our firm is the ability to recognize and understand what the police officer should have done. We are trained to the same standards as the police officers. But even more importantly, we paid attention because most police officers are not doing their job the way that they were trained. So it is very important to have an attorney who understands how the understands how the police officers should be conducting any kind of investigation or arrest.

It involves a detailed review of every piece of evidence that we can get through the discovery process to discover one, potentially multiple defenses, to come to the conclusion as to whether scientifically or legally evidence needs to be excluded from consideration, whether that’s at evidential hearings or even possibly at a trial; or whether there’s enough legal or scientific justification to completely have the case dismissed.

It is very important that you hire an attorney that understands what is and is not in the evidence because that attorney is going to have to use their skill and expertise to not only defend your case, but in many ways educate the prosecutor, the police agencies, the judge and potentially the jury as to what actually is going on in these cases. Most prosecutors, judges, jurors and police officers, even though they may have some familiarity with drunk driving, much of what they know is based on speculation or misinformation. It is very important that they have somebody who understands what is really going on so that they can have the best defense available and end up with the best result available.

Question 3: What is OUIL in Michigan?

OUIL stands for operating under the influence. Operating under the influence means that because of drinking alcohol, the defendant’s ability to operate a motor vehicle in a normal way was substantially lessened. To be under the influence, a person does not have to be what is called “dead drunk”—that is, falling down or hardly able to stand up. On the other hand, just because a person has drunk alcohol or smells of alcohol does not by itself prove that the person is under the influence. The test is whether because of drinking alcohol the person’s mental and physical condition was significantly affected and the defendant was no longer able to operate a motor vehicle in a normal way.

Question 4: What is an expert witness? When is one needed in an OWI case?

An expert witness is any witness that brings a specialized or particularized knowledge to the case. Most people in drunk driving are unfamiliar with either the mechanical or technical aspects of the machines, or the scientific or medical aspects of drunk driving. With that said, many times it is important to bring in an expert when we’re talking about the reliability of the various testing methods used to try and convict people of drunk driving. Whether those testing methods are conducted field sobriety tests on the side of the road, or whether they’re breath or blood tests post-arrest, there is a variety of scientific, mechanical, physical or medical loopholes that might explain why somebody was not intoxicated but appeared to fail these tests.

It’s important to note that most police officers and most prosecutors have extremely limited knowledge outside of what they were trained in this field, and their training is generally flawed. Because of that, bringing in the expert cannot only help aid the jury in understanding what is and is not true regarding drunk driving, but can also help the prosecutor and the police officer understand as well, which could lead to a resolution prior to a trial.

The time to bring in an expert would be whenever anybody feels that they need to have an additional level of understanding by a jury or by a judge. However, it’s also important that instead of just hiring a great expert, you focus on hiring a great attorney who has a base of knowledge that the expert can use to explain more thoroughly their case, but also that the expert can communicate with and if the expert is to be fully utilized, the attorneys themselves must also understand the underlying science of the underlying medical conditions, the underlying physical conditions that make something happen. So it has to be a combination of a good expert witness combined with an attorney who already has a solid base of knowledge within those types of fields.

Question 5: What is the first court date a person will be expected to attend in an OWI case?

The first court date in any kind of criminal matter is what they call an arraignment. An arraignment is really a fancy term for making sure that you show up at court and that they can tell you what you’re being charged with. The first part of it is making sure that you are informed of the charge, the full charge, against you so that you can appreciate what you are and are not being charged with. Additionally they will read to you the penalties that are included in that charge so that you can appreciate the severity of any charge that is leveled against you.

Additionally, they’re going to set a bond at that time. A bond is simply a period of time before the resolution of your case in which you’re not sitting in jail and you’re allowed to be out and free. However, they expect you to show up to court and so there can be some incentive to do that, such as assessing some kind of monetary bond, meaning that you would pay money down to guarantee your appearance at court at a later date. However [if] you were not to appear at court, they would take that money. Further, they are under an obligation to make sure that while you’re out, the public is protected. So in cases like drunk driving defense, we would make sure that somebody is not drinking or doing drugs because we would hate a repeat of the offense that they’re being charged with.

Depending on which court we’re in, that first initial date, the arraignment, may be something that is done before being released from jail after the arrest, or it could be an entirely separate court date. Some courts will also allow you to waive or not have to show up to that date once you’ve retained an attorney for the simple fact that an attorney can do over the phone what might take the court an hour in court time just to accomplish. So the first date usually would be an arraignment. If not and you have a lawyer, they can explain what the further process is from that point.

Question 6: How can I get a good result in my Michigan OWI case?

This is a very important question because it starts with making the right decision in an attorney. A good result in an OWI case is more than just going through the process; it’s fully understanding the process and making sure you take positive steps to demonstrate to the court a level of responsibility without ever admitting guilt. It is also important that you have somebody there to defend you and stand by your side who—more so than even the police officers, the judges and the prosecutors—understand what is in evidence. But it’s even more than that, about making sure that all of those parties understand who it is that you are as a client. They need to know that you’re a person; they need to know that you have somebody there that’s going to show them that you’re worth fighting for.

And in doing that, that is how we get to the best resolution. It is about presenting you as a person, about showing that the facts of the case are not what those parties—the judges, prosecutors and police officers—think that they are; and having the confidence and ability to go as long and as hard as they require until we get the right answer for you. And that’s what we want to provide to all of our clients. Good results can come in a variety of forms.

Each individual person needs to be fully appraised and aware of every potential penalty, every potential for negative consequence so that when they are making their decision, what could even appear to be a good decision might not be based on some unintended consequences. It’s very important that we always show our clients every last one of the consequences of any decision so that when they make their choices, that they are fully informed and they can end up with a good result for them.

Question 7: Are cops more likely to make OWI stops in Michigan during the holiday season?

Yes. The police officers actually increase the amount of drunk driving arrests around holiday seasons one, because obviously due to the holidays there’s a lot of people who are intoxicated on the roads. Parties, holiday parties, are quite common. Additionally, most people are unaware that the night before Thanksgiving is actually the busiest of all bar nights of the year and there is quite a few arrests that do transpire based on that. A lot of people come from out of town and they all get together at the local watering hole before driving home, which can lead to a lot of arrests. Further, many times there are added enforcement dollars by the federal government in order to keep police officers on the road to step up enforcement. We see this a lot more in the summer when it’s time for Memorial Day, Fourth of July, Labor Day type weekend enforcement period; but we also see it sporadically throughout the year and it does seem to coincide a lot with the major holidays here in America.

Question 8: How will body cameras on police officers impact the way that OWI investigations are conducted in Michigan?

Well, I think that the biggest thing that we see so far when they have body cameras is the ability to get very quickly motion sick. Most cameras that are attached to the body are not designed to compensate for walking, so there tends to be a lot of jostling. Although the technology eventually will be there, the current models are not great.

However, the advantage to having a body camera is that one can actually see what the police officer is seeing. Many times, police officers stop people on the side of the road and whether intentionally or unintentionally, those people are removed from the camera view further off the side of the road. Occasionally it’s for safety purposes and occasionally it’s because the police officer wants to conduct an investigation off camera. However with the body camera, you’re actually seeing what the police officer does. That allows more information, it allows you to see things like horizontal gaze nystagmus—which is one of the field sobriety tests that is very difficult to see from a police car—but you’ll also get an opportunity to hear what the suspect has to say up close and you’ll have a perspective from what the officer is actually seeing.

Many times the officer will claim to see things that he could not but because there is no good camera angle to prove or disprove that, the officer will be believed. The use of body mics, body cameras is actually going to be a great boon for OWI defense in that it will allow us to actually see what the officer saw.

Question 9: How long does the OWI court process take in Michigan?

The OWI court process is going to take an unpredictable amount of time based on several factors. Those factors would be: which charge is it? Is it a first offense, second offense or more? Also, whether or not somebody has a breath test, a blood test or there’s some kind of drugs involved. Here in the state of Michigan, a general rule that is to be followed by the courts is that all drunk driving cases should be wrapped up within 77 days, and that’s through trial. Unfortunately, that is a very unrealistic timeframe. The true drunk driving process is going to take, from arrest to completion of the case, somewhere around five to six months. The reason for this is that there’s a delay between actually getting the case charged and then further being able to fully understand and negotiate a case and reach some kind of successful resolution. However, if there is something like a blood test, that can actually extend the time period of a case because there is specialized testing that is required.

Currently, the Michigan state testing lab is not getting a blood result for one to two months. Without that information, many prosecutors won’t even charge the case. Secondarily, if it is a drug case, in order to not only test the drugs but to verify what they are and their levels, it could take almost a year before a prosecutor could have the information to even begin charging the case. It is obviously very important to understand that these things do take time. But just like anything in life, when you’re going through it, it is going to seem like it is taking forever but the second you’re done with it, it seemed that it went by in a flash.

Question 10: What do police look for in investigating a suspected drunk driver in Michigan?

Answer: Well, officers are looking for anything that catches their eye. So sometimes they can start with just an equipment malfunction—something like a license plate light that can be out or a headlight that might be out, and then they also look for lots of different indications of bad driving as well. So they look for things like violations of any part of the motor vehicle code, so if the vehicle were to change lanes without using a signal, make too wide of a turn, lots of things that you might see on the road on a general, everyday basis. You might be doing something that would at least get someone investigating thinking, “Okay, this might be a drunk driver in front of me.”

Once they decide to make that decision to pull someone over, and this is kind of broken into three different phases, so this is kind of the original phase, which is just the vehicle in motion. Once they’ve decided to pull the vehicle over for further investigation, then they’re looking for things they see with their eyes, hear with their ears, smell with their noses, trying to find other indications that someone might be under the influence of something. And it’s alcohol usually, but it’s also drugs sometimes.

They might be smelling to see if there’s any scent of any, the odor of intoxicants as they say, the smell of marijuana, and other cover up smells, things like that that they may be smelling for. They’re also looking to see, you know, does someone look disheveled? How do they appear? Do they look like their eyes are red? Is their face flushed? Are their eyes watery or glassy? So there are a lot of things they’re looking at there. And then they’re also doing things like having them do multiple things at the same time.

So maybe asking them to get license, registration and insurance at the same time and seeing if their finger coordination is very good trying to get it out of their wallet, or looking for or remembering where it is. So those are kind of the original things. And if enough of those details strike kind of a suspicion there, then they might ask the suspect to then get out of the car, at which point in time they would go through a different field sobriety test typically.

And there are standardized field sobriety tests, and there are non-standardized field sobriety tests, and a lot of officers will use kind of a mix of the two. And sometimes they’ll do some of the non-standardized tests while they’re still in the vehicle to determine whether they want to do the standardized ones or not, but sometimes they do those once they’re outside of the vehicle as well.

So those kinds of things would be like divided attention tasks, where they’re asking you to do a one-leg stand or a walk-and-turn test, or they’re checking the eyes to see if there’s any nystagmus in the eyes, which is an involuntary jerking of the eye, to see if there’s maybe alcohol present in the system. So they use all these different things to determine whether they should make an arrest, and then the final step usually after they’ve determined, you know, if they’re thinking about an arrest, is usually a preliminary breath test to see how much measurable alcohol might be in the system of the person they’re suspecting of drunk driving.

Question 11: What are pre-trial motions? What pre-trial motions do you file most often in Michigan OWI cases?

Pre-trial motions cover a wide range of issues. They may include motions to obtain a particular evidence, or they may seek to eliminate or suppress certain evidence, like a chemical test or field sobriety tests or even statements. A pre-trial motion may also seek to dismiss the case entirely based upon an illegal traffic stop or lack of probable cause to arrest. Whether to file a motion often depends on the strategy that we develop for each individual case. Although each case is individually specific, the most common motion is likely a motion to suppress field sobriety tests, considering many officers fail to follow the standardized requirements under the National Highway Traffic Safety Administration. Evidence is admitted into a case if it is: one, relevant; and two, reliable. The argument is that field tests are certainly relevant in most cases, but many are extremely unreliable especially if they are not conducted properly.

Question 12: Do Miranda Rights apply during an OWI investigation or arrest in Michigan? If so, when should the Miranda Warning be read?

Answer: Miranda Rights are required in any criminal investigation. However, the major caveat is that it must be in a custodial interrogation. So the first part is custody. Custody is generally thought of as the arrest. But the actual definition is: Would a reasonable person feel free to leave under the circumstances? So in an OWI stop, most people who are stopped on the side of the road are ticketed and eventually allowed to leave. Of course there is a delay, but courts have found that a reasonable person would eventually feel free to leave after being investigated on the side of the road.

Therefore, at that point you are not under custody. Instead, custody begins when the officer either places you under arrest or if you’re placed in a position where a reasonable person would not feel free to leave. Many times, this would be the rear of a police car for the simple fact that even if you were under the impression that you could leave, you are physically restrained from doing so by the fact that most police cars, the rear doors do not open from the inside.

Outside of that, you have to further be asked questions—that’s the interrogation component. Most officers have most of their evidence conducted on the side of the road before you’re in custody, so that way all of their questioning can come in without them having to read you Miranda Rights. On the other hand, some police officers will arrest you and then sit quietly in their police cars while you continue to talk.

One of the problems with intoxicated people is that sometimes they have a hard time remaining silent. They begin to talk and if there are no questions directed to them, their statements, in fact, can be used at a later point. One of the main reasons that police officers will not, in most cases, read Miranda Rights—outside of the fact that they’ve already gained most of the evidence that they believe they need—is that later you will be required to give breath tests at a police station. They have their own set of rights, in Michigan especially, called implied consent rights that must be read.

Those rights differ from Miranda Rights in that you do not have the right to speak to an attorney prior to making a decision to submit a breath sample or not. Because the reading of Miranda Rights can cause confusion among suspects, most police officers do not want to read them because they do not want to have to either violate somebody for failing to blow or, even worse in their opinion, have to go give blood and then not be able to violate that person because they had simply read Miranda Rights and not provided somebody an opportunity to speak to an attorney. Therefore, Miranda Rights generally are not read during OWI arrests, but if they are they must be read before the person is placed into custody and before any questions are asked of them regarding that case.

Question 13: Can I be held responsible if an intoxicated person leaves my home and is charged with OWI in Michigan?

I don’t really have any expertise in the Michigan law related to furnishing alcohol to anyone, whether it’s an adult or a minor. There may be a crime, however, for and adult furnishing…Something that’s related to that, though, is what happens if the person, whether it be an adult or a minor that you furnish alcohol to, what if they drive a motor vehicle? Are you potentially in violation of the law in that regard?

Then you come in under the statute that covers knowingly allowing an intoxicated person to drive. So if you furnish alcohol to someone in your home, whether if be an adult or a minor, and they leave your home and you have reason to know that they were intoxicated when they left, you can be found guilty of drunk driving almost just as if you were the person that committed that crime.

There are some differences in the crimes, and there are some differences in the penalties. So for example if you furnish alcohol to someone, they become intoxicated, and you knowingly allow them to drive, and they, that is the person who drives, becomes involved in an accident that causes serious injury, as the furnisher of the alcohol, you can be found guilty of a two-year felony, as opposed to a five-year felony if you are the driver of the motor vehicle. And the same is true with regard to if that person causes the death of another person.

If you furnish the alcohol and knowingly allow someone to drive a motor vehicle and they cause someone, and they are in an accident that causes the death of someone, you can be charged with a crime that is punishable by up to five years rather than 15 years, if you were the person who was actually driving the vehicle. So there’s some differences, but the point here is you can be found guilty of a felony or misdemeanor as well simply by giving them alcohol and knowingly allowing them to drive afterward.

Question 14: Is there a way to save my driver’s license after an OWI arrest in Michigan?

Answer: Drunk driving in the state of Michigan does not need to cost anybody their license. However, depending on what the final resolution to the case is, it can— at least in a limited manner. It is very important to understand that the driving penalty follows the final charge that is either pled or that someone is found guilty of. If it is a full drunk driving charge, it can include a period of hard suspension during which no driving is available, and a period of restricted driving during which somebody would be limited in their ability to go to certain locations. Unfortunately, the only way to change these driving sanctions is to change the offer.

That is why it is very important to make sure your attorney understands what your goals are in regards to driving so that they can be in the best position to get you an offer that does not implicate a negative driving sanction. Further, it’s important that you are fully informed of all of the potential driving sanctions so that you can be prepared if any driving sanction is required, and you can be prepared to make decisions based in a fully-informed environment.

Question 15: What is the state of my driver’s license after an OWI arrest in Michigan and what will happen to it?

In regards to a driver’s license, this is individualized to the individual stop for drunk driving. In most cases, those parties have a  fully valid license. In the state of Michigan, you have to take a test if offered after an arrest. If you don’t take that test, then there can be an implied consent violation. If there is a violation, a person has 14 days to request a hearing. This is something that we would do as your attorney. After that, they would schedule it for a hearing approximately a month out. At that hearing, there would be a determination as to whether or not someone has violated the implied consent statute. If so, their license could be suspended for up to a year. As for the regular OWI, no action would be taken on your driver’s license until there was a decision on the case itself.

That means that until there is a guilty plea or a finding of guilt, there would be no license sanction taken against a person. However, depending on the final resolution of a case, whether by plea or by finding of guilt at a trial, the license sanction could vary dramatically from an extensive period of suspension all the way down to possibly no suspension. It is very important to go through in detail with your attorney all of the possible penalties of each individual charge because in the state of Michigan, all driving sanctions follow specifically from the charge that is either pled or found guilty to. The Secretary of State here in Michigan does not have any authority to grant anything outside of the automatic penalties. The judge does not determine the license sanction. Therefore, it is important to get an attorney who understands not only the penalties, but also how to get different offers so that someone’s license can be protected.

Question 16: What is OWPD in Michigan?

Operating with the presence of drugs, which is similar to UBAL in the sense that there is simply an illegal presence within your system or in your body while operating a motor vehicle. Alcohol, as we know, is .08 where drugs are zero tolerance. Any amount is illegal. That applies to marijuana, if you do not have a medical marijuana card; that applies to Vicodin if you do not have a prescription for Vicodin; that applies to Adderall if you do not have a prescription to Adderall. It is not whether or not your driving was affected, but if you had an illegal drug in your body.

Question 17: What are some misconceptions about a Michigan drunk driving charge?

Well, I think we see them on all different sides. I think a lot of times people, some people think a first offense is not a big deal and it’s not going to affect their lives that much, and a lot of times if we have somebody that we start trial with a second offense, they think to themselves, “Darn it, I wish I would have gone back and actually done something about that first case,” that may have been a really weak case or they thought, “Well, this isn’t going to hurt me too much.” So I think sometimes people underestimate the effects this can have on your life, and sometimes people overestimate the effects that something like this can have on their life as well.

You know, this is, on a first offense, if nobody’s insured or killed, there’s no prison time that’s available on something like this, and many judges around the state would not think of putting somebody even in jail on a first offense. But, so there are, sometimes I think people get maybe overly worried, and sometimes people are not worried enough as far as what those different consequences could be.

So, I think those are some misconceptions; there’s certainly misconceptions about whether or not to take sobriety tests and breath tests and blood tests and what consequences would happen there, which is not really, it’s a longer scope of questioning that we can talk about some other time. But, misconceptions about the charge itself, you know, what the consequences would be, both the legal consequences as well as the collateral consequences. So I think there’s a lot of things out there, probably could fill a few pages of different things that we’ve heard.

Question 18: Can intoxication be caused by something other than alcohol?

There are different types of medical conditions that can mimic intoxication. And then the new thing that is really becoming more and more emphasized is intoxicated driving involving drugs, particularly prescription drugs. So a person can take a prescription drug and have no clue that the side effect, the unwanted side effect, would be an intoxication that can impact their driving and then be potentially observable by the police officer. So what you have is a completely intent less crime; the person never intended to do anything wrong, other than try to treat a medical condition, and yet they find themselves in exactly the same position as someone who drank too much, maybe went off to the bar and irresponsibly drank too much and then drove. And it doesn’t seem right that those two people are in the same category, but they are.

Question 19: What is an occupational or restricted drivers license in Michigan? When would one be issued?

A restricted driver’s license in Michigan means that there are certain things you can do with your license but other things that you can’t. And typically the main things that are covered under restricted privileges are being able to drive to and from work and in the course of work, also being able to get to medical appointments, and then things that might be required by the court for treatment and things that might be required under probation.

So a restricted driver’s license can often help someone keep their job, if they’re in this kind of situation. The restricted privileges come automatically with an operating while visibly impaired conviction—it’s a 90-day period where the license is restricted. In a operating while intoxicated conviction, there’s a 30-day suspension followed by 150 day restricted period.

So, very similar to the operating while visibly impaired, the restrictions are exactly the same in either of those situations. There’s also an implied consent suspension, which can be changed by a circuit court judge to a restriction, and typically those restrictions follow very much the same. Although we have had plenty of times where judges have actually given increased restricted privileges or sometimes less than the standard restrictions and implied consent hardship appeals.

Question 20: What is the official breath test machine that is used in Michigan and what are some of its flaws?

Michigan uses a machine called the DMT Datamaster. It is a breath test that utilizes infrared spectroscopy, which means the result reported is based upon a calculation derived from light absorption, alcohol molecules, and partition ratios. What that simply means is that it is an estimate of possible alcohol. Flaws are inherent with any equation that includes variables. This machine has software that replaces the variables with a predetermined constant.

Therefore, its results are not specific to each person, but an estimate—a guess. Other flaws may be present by either the machine itself, which could be detected from our trained review of weekly accuracy logs, maintenance, and the evidence ticket itself. Or, often, the flaw is based upon the medical health or physical condition of the subject or client. It may be economical and even pragmatic to have a one-size-fits-all, but in this case, one size does not fit all subjects arrested.