Michigan Criminal Lawyer Blog

Effective October, 31, 2010, Michigan's "SUPER DRUNK" law went into effect. This new law adds greater penalties to drunk drivers with high blood alcohol levels of .17% or greater. The legal limit for "operating while intoxicated" (OWI) of .08% remains the same. However, high blood alcohol cases will mean greater penalties as follows:

• Hard suspension of license for first 45 days (no driving) and restricted with the requirement of ignition interlock for the remaining 320 days. Individuals who violate their restrictions will obtain another license penalty equal to the above; another 45 days hard suspension and another 320 days on ignition interlock.
• Fine of not less than $200.00 or more than $700.00.
• Up to 180 days in Jail.
• Mandatory 1 year of alcohol/substance abuse rehabilitation.

The requirement of mandatory 1 year rehabilitation will also apply to repeat offenders who operate a vehicle while intoxicated or impaired regardless of blood alcohol level! Prior to October 31, 2010, there is no requirement of mandatory substance abuse treatment for repeat offenders.

The ignition interlock device requires a person to provide breath samples when the vehicle is started and during various periods while the vehicle is operated. The new laws require vehicle impoundment when a person is caught driving without the interlock device after being placed on restrictions.

Our criminal defense attorneys will fight for lesser charges, such as impaired driving, to avoid the expenses and penalties associated with the Super Drunk law.

We will keep you posted on our experience handling the Super Drunk cases (High BAC) as these cases filter into the court system. We have adopted an aggressive approach in the defense of all drinking and driving cases at our law firm. For those charged with the Super Drunk offense, we will be recommending substance abuse counseling and attendance of AA meetings when there is a substance abuse problem or when it will help to facilitate negotiations.

Michigan criminal law attorneys know that you can be charged with conspiracy because of your close relationship with another person or persons involved. Conspiracy involves the mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or a legal act by unlawful means. Proof of the overt act in furtherance of the conspiracy is not necessary.

A two-fold specific intent is required for conspiracy; the intent to combine with others and the intent to accomplish unlawful objectives.

Since conspiracy is complete upon formation of the agreement, subsequent withdrawal is not a defense.

Furthermore, a conspiracy does not automatically end when the object of the conspiracy becomes impossible to achieve, even when the conspirators are unaware that the government has intervened and "defeated" the conspiracy's object. Impossibility does not terminate conspiracy because the essence of the conspiracy is an agreement to commit an unlawful act and such agreements are by themselves dangerous, even where no substantive crime ensues. US v Recio, 537 US 270; 122 SCt 819; 154 LEd2d 744 (2003).

A passenger in a vehicle with a drug dealer or persons that reside with him may be charged as conspirators even though they are not actively involved in criminal activity.

Our law firm represented the girlfriend of a drug dealer in Macomb County. She was a passenger in the vehicle that her boyfriend was driving while he had a large quantity of cocaine. The vehicle was under surveillance and the police observed it stop at various locations in the City of Eastpointe. A traffic stop ensued and the police found a quantity of cocaine under the passenger seat near my client. There was no question in my mind that she was at the wrong place at the wrong time. However, there was enough evidence for the prosecutor to charge her as a co-conspirator (possession with intent to deliver cocaine) under the theory that she assisted him and was acting as a look out person. The case was dismissed after preliminary examination when the prosecutor could not establish a solid conspiracy case.

The Fourth Amendment to the United States Constitution, which is part of the Bill of Rights, guards against unreasonable searches and seizures. In general, a search and seizure of a person or his property requires a search warrant based upon probable cause. The search warrant requirement is intended to avoid random/abusive searches by government officials. However, in Michigan, the police are not required to obtain a search warrant and probable cause is not required for property which is in "plain view" or when a person "consents" to a search.

Plain View: Objects which are in plain view of an officer who has a right to be in that position are subject to seizure without a warrant and without probable cause, or his lawful observations may provide grounds for issuance of a search warrant.

Consent Searches: A person who gives a valid consent to a police officer to search his home or vehicle, may be waiving his 4th Amendment rights. The consent must be given voluntarily and courts must determine on the basis of the totality of the circumstances whether consent has been freely given or has been coerced.

I have represented several clients in Macomb County that have said that the police searched closed compartments of a vehicle or in a dwelling and found illegal contraband leading to drug related or stolen property charges. Upon review of the reports, the police will say that the seized property was in plain view or that our client gave consent to search.

Clearly, there is room for abuse by law enforcement authorities to assert that a thing was in plain view or that a party consented to a search in order to avoid inconvenience, delays or situations where there just is not any probable cause to obtain a search warrant. Of concern are situations when a person is alone in his home or vehicle and cannot produce substantiating witnesses to support inappropriate police conduct. For example, the police may pull over a vehicle on a hunch that there are drugs inside. The police may open the vehicle's closed compartments, such as the trunk or glove box. If the police make a lucky discovery of drugs or stolen property, they may attempt to validate the search under the "plain view" or "consent" exceptions to the search warrant requirement.

Our Macomb County criminal defense lawyers have been able to defeat improper searches if the consent was obtained by threats or coercion or if the traffic stop was random or pretextual. Our position in such situations is that if the initial intrusion is invalid; anything that is seized becomes inadmissible under the "fruit of the poisonous tree" doctrine. The prosecuting attorney has the burden to establish the validity of the intrusion and the voluntariness of the consent by direct and positive evidence.

Video: How to Refuse a Police Search