Michigan Criminal Lawyer Blog

Articles Posted in Drunk Driving


Blood alcohol levels are related to the amount of alcohol consumed. The passage of time may mean that some of the alcohol has been eliminated from the body. A consultation with someone charged with drunk driving invariably will involve questions which pertain to these factors:

  • How many drinks were consumed?
  • What was the alcohol percentage (proof) of the beverage consumed?
  • How big were the alcohol containers/glasses, shot, 12 oz, 16 oz?
  • What time did drinking begin and when did it end?
  • What was the result of the test administered by the police (breathalyzer)?

The answers to these questions, and others, allow our attorneys to explore the accuracy of the chemical or blood test result and explain the processes of alcohol absorption and elimination to our prospective clients. This article contains a description of these processes along with various useful charts.

Alcohol absorption and elimination are processes that occur when a consumes an alcoholic beverage. Absorption refers to the passage of alcohol through the blood, while alcohol elimination is the rate at which alcohol leaves the body.

Blood alcohol content

Shot, Beer, and Wine

Blood alcohol content (BAC), or blood alcohol level (BAL), refers to the amount of alcohol in the body. Numerous factors have an influence on BAC levels. These include consumption of food, percentage of alcohol, body weight, sex, and physical activity. Furthermore, every person digests alcohol in a different way, which leads to varying absorption and elimination rates.

Alcohol absorption

Through a process known as diffusion, alcohol is absorbed through the stomach and small intestine. The rate of absorption occurs more rapidly when a person consumes a beverage with a higher proof, or percentage of alcohol.

Absorption occurs faster when a person drinks alcohol on an empty stomach because the alcohol goes directly into the stomach lining, without a barrier of food. An individual may attempt to control alcohol absorption by slowing down the ingestion of alcoholic beverages and by drinking water in between alcoholic beverages. It should be noted that recently consumed alcoholic beverages would not necessarily show up on a breath test because the process of absorption takes time to occur.

Ordinarily, it takes about 30 to 60 minutes for alcohol to be absorbed in the body. However, it may take up to two (2) hours for complete absorption to occur when someone engages in binge drinking within a short period of time. Binge drinking refers to an individual’s consumption of multiple alcoholic beverages in two hours. Generally, the amount of drinks per two hours varies between men and women; men must consume five (5) or more drinks, while women must only consume four (4) or more drinks to meet the level of binge drinking.

Alcohol elimination

Alcohol is eliminated from the body via excretion and metabolism.
Most alcohol is metabolized, or burned, in a manner similar to food; this process results in production of carbon dioxide and water. A small portion of alcohol is excreted through the individual’s breath, leaving the body as alcohol. This process allows for a breath alcohol test, or more commonly referred to as a Breathalyzer test.

Average rate of elimination


First, it must be understood that everybody eliminates alcohol from his or her bloodstream at different rates. The factor playing the most significant role in the elimination of alcohol is the passage of time. Over time, alcohol is eliminated from the body in the same manner that other toxins are eliminated. Scientific studies, however, have been able to ascertain an average rate of elimination for individuals. According to Forcon, a well-known forensic consulting firm, individuals may see a decrease in their BAC by 10-20% within the first hour, while most will only see a 13-18% decrease.

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The nature of this publication will be dedicated to the frequent talking points which arise during our consultations with clients that are charged with a Michigan drunk driving case. We admit that the drunk driving laws are convoluted. All or one of the following laws can be applicable to a person who is involved in a drunk driving traffic stop, charge or upon conviction:

Criminal laws which empower the court to impose incarceration and other penalties.
Civil infractions, such as refusing the Preliminary Breath Test (PBT).
Search and seizure laws which allow a court to issue an order for a blood test.
Implied consent laws (when a breath test or other test for alcohol or drugs is refused) which can result in points and license sanctions.
Administrative laws which empower the Secretary of State to conduct implied consent and license appeal hearings.
Appellate laws which allow a person to appeal an administrative decision to circuit court.
Insurance laws which allow insurance companies to rate individuals that are convicted of traffic tickets and drunk driving.
Immigration laws in countries such as Canada that prohibit persons from entry that have been convicted of a DUI.

Based upon our vast experience handling drunk driving in Macomb County District Courts, there is a trend in the questions that are asked by our clients. This article will focus on some of the technical aspects and laws which pertain to drunk driving cases. We hope that you will find this publication informative and help to answer questions that you may have.

Drunk Driving Terminology and Abbreviations: OWI, DUI, OUIL, OWVI, OWPD

Michigan’s drunk driving laws have evolved over the past 30 years. When the laws change, so does the terminology which is utilized by practitioners and the public. Our Macomb County lawyers find ourselves explaining the complex legal terminology to our clients that are faced with a drinking and driving offense.

Drunk Driving: Under present Michigan law, the offense of drunk driving or driving under the influence of alcohol is known as “Operating While Intoxicated” (OWI). Under prior law, the act of “driving” a vehicle, as opposed to simple operation, was necessary to sustain a conviction of Driving Under the Influence (DUI). However, the abbreviations and terms OWI (Operating While Intoxicated), DD (Drunk Driving), DUI (Driving Under the Influence) and OUIL (Operating Under the Influence) are often used interchangeably to refer to the Michigan drunk driving offense of OWI (Operating While Intoxicate). When someone is charged with Operating With the Presence of Drugs, the abbreviation most often utilized is OWPD.

Impaired Driving: The abbreviation OWVI applies to the lesser drinking and driving offense of Operating While Visibly Impaired or Impaired Driving. Under prior law, we referred to impaired driving as an OWI (Operating While Impaired). As I mentioned, the OWI abbreviation is now used to refer to the offense of Operating While Intoxicated.

Actual Intoxication is irrelevant when blood alcohol content is greater than .08%

When a person is arrested for any driving under the influence (by alcohol or drugs) in Michigan, the police will ask the person to take a chemical test to determine the extent of alcohol or presence of drugs within the blood. A person’s blood, urine and breath may be tested to determine the person’s blood alcohol content (BAC) or drug consumption upon request by the arresting law enforcement agency. The test results are admissible in court proceedings to establish legal intoxication should the person be charged with operating while intoxicated or impaired driving. In Michigan, a person is considered to be legally intoxicated (OWI) if the blood alcohol test is .08% or greater. Elevated blood alcohol of levels of .17% or greater will support enhanced criminal charges known as “high blood alcohol content” or “super drunk”.
The legal intoxicated limits in Michigan are:

Offense Legal Limit
Zero tolerance (under age 21): .02% or greater Operating while intoxicated: .08% or greater High BAC or Super Drunk: .17% or greater
Blood Alcohol Content (BAC) Charts and Graphs

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Blood alcohol content (BAC) charts are a worthy source of information to calculate the amount of alcohol consumption that is required to be considered legally intoxicated. These charts provide a fairly accurate estimate of the amount of alcohol within a person’s blood based upon two key variables; body weight and the number of drinks consumed. However, the charts do not take individual metabolism rates into consideration. Metabolism can be affected by several factors, such as body temperature, the type of alcoholic beverage consumed, and the amount and type of food consumed.
BAC Reference Chart

ESTIMATION: How long to eliminate alcohol from your system?

The normal body will metabolize alcohol between .012 percent and .016 percent BAC per hour. Numerous other variables can influence the elimination rate of alcohol in the human body. Most charts that I have seen apply an elimination rate of .015 per hour. Therefore, a male weighing about 175 pounds who consumes 6 beers, containing 4.5% alcohol, within 3 hours would register a blood alcohol content of .08. It would take approximately 1 hour after he quit drinking to register less than .08 and it would take approximately 5 hours (0.0) to be completely sober.

Impaired or Drunk Driving May Be Charged When Test Results falling Below .08!
There is no automatic presumption that a person is “impaired” or “intoxicated” when the test results fall below .08. However, when the test results are less than .08, the police officer, or other witnesses, may provide testimony at trial regarding any conduct or objective signs of impairment or intoxication. Objective signs of impairment may include the following: odor of alcohol coming from the driver, red, watery eyes, erratic driving (weaving) and slurred speech. In addition, the police assess a driver’s ability to perform various field sobriety tests. Field sobriety tests are designed to test a driver’s balance and motor skills. Police may ask a driver to perform tasks such as walking heel-to-toe in a straight line, standing on one leg, or reciting the alphabet backwards. In addition to the testimony of the police or witnesses, the BAC test results are also admissible in evidence at trial to show alcohol consumption.

Should I refuse the blood alcohol test if I am arrested for a drinking and driving offense?

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Based upon the above information it may seem prudent to refuse any test which the police ask you to take following an arrest for operating while intoxicated. However, a person that refuses a chemical test in connection with a valid arrest faces license suspension and is also subject to a compulsory court ordered blood test. The following is a summary of consequences when someone refuses to take the chemical test offered by the police:

1. The person loses his right to have an independent blood alcohol test.
2. The police may obtain a court order for a blood sample.
3. The person faces 6 points and license suspension for 1 year.
4. The person may be eligible to appeal the refusal in a circuit court proceeding.
5. Drunk driving charges will depend upon the results of the blood tests.
6. Additional license sanctions are imposed upon conviction for OWI or OWVI.

Michigan Implied Consent Law (Michigan Compiled Law 257.625c)

Michigan’s Implied Consent law provides that a person arrested for operating a vehicle while intoxicated or impaired by an alcoholic liquor, a controlled substance, or other intoxicating substance or a combination thereof is considered to have given consent to chemical tests of his or her blood, breath, or urine for the purpose of determining the amount of alcohol or presence of a controlled substance or both in his or her blood or urine or the amount of alcohol in his or her breath.

Police May Obtain a Court Order for Blood Test

The police may obtain a court order for a blood test when confronted with a suspect that refuses a chemical test offered by the police.

Suspect’s Right to a Secondary or Independent Test

The right to take an independent test of your own choice (blood, breath or urine) is conditional upon first submitting to the test which is offered by the police. The right to an independent test is lost should a person that is arrested for operating while intoxicated refuse the test offered by the police.

Implied Consent Hearings: Sanctions for Unreasonable Refusals

As I already mentioned, the police may obtain a court order for a blood test when a person refuses to voluntarily submit to a breath, blood or urine test. This means that the person will still face operating while intoxicated criminal charges when the blood test result is returned to the police from the testing facility. In addition, the person who has refused an alcohol test faces license sanctions by the Secretary of State.

A person that refuses the chemical test offered by the police is given an opportunity to an administrative hearing (aka: implied consent hearing) before a Secretary of State referee to explain the circumstances of the refusal. MCL 257.625f limits the issues appealable at a hearing to the following:

1. Whether the peace officer had reasonable grounds to believe that you committed a crime described in MCL 257.625c(1).
2. Whether you were placed under arrest for a crime described in MCL 257.625c(1).
3. If you refused to submit to a chemical test upon the request of the officer, whether the refusal was reasonable.
4. Whether you were advised of your rights under MCL 257.625a
Refusals based upon failure to understand the law are not considered reasonable since we are dealing with an “implied consent” law. Again, the implied consent law means that you consent to the test by accepting the privilege to operate a vehicle in the State of Michigan. Other common refusals are known as technical refusals. A technical refusal usually means that the suspect gave an insufficient sample. An insufficient sample may occur when someone tries to fool the machine by not placing their lips tightly on the breathalyzer straw or by providing a soft or side blow into the machine.

An attorney should be retained for representation at the implied consent hearing to fully explore all possible defenses. If the police officer fails to appear, or did not follow the testing protocol and procedure, the implied consent hearing will be resolved in favor of the petitioner.

A person that loses an implied consent hearing faces license suspension for a period of 1 year and 6 points is placed on the driving record. A second refusal within 7 years results in a suspension of 2 years. This is a separate consequence from any subsequent convictions resulting from the traffic stop.

Implied Consent Suspension May be Appealed in the Circuit Court Based Upon Hardship or Legal Grounds

Appeals based upon hardship: As I mentioned, you face suspension of your license for 1 year upon losing first implied consent hearing. A person facing a first time implied consent suspension has the right to file a circuit court appeal to request a restricted license based upon need or “hardship”. A hardship appeals requires a showing that a person needs to operate a vehicle for employment or education and both of the following exist:

-A mass transit system is not available to provide the necessities of transportation, and,
-No other person with in the household of the petitioner can supply transportation.

Upon winning a hardship appeal, a restricted license is granted for remaining duration of the implied consent suspension. Hardship appeals are filed in the circuit court where the underlying offense occurred. In addition, most circuit court judges require a substance abuse evaluation for the hardship appeal.

Appeals based upon legal grounds: Any person may appeal an implied consent suspension based upon legal grounds. An appeal based upon legal grounds means that you are asking a circuit court judge to overrule the decision of the Secretary of State referee because:

-Made upon unlawful procedure resulting in material prejudice to the petitioner.
-Not supported by substantial, material, and competent evidence on the whole record.
-Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.


There are numerous laws which apply when someone is charged with operating while intoxicated in Michigan. Even more laws kick in when there is a refusal of a chemical test. If you have refused the breath test, you may still be eligible for a restricted license based upon hardship. If you find yourself in this position, hire a lawyer that can navigate these complicated laws and get you the best results.


We have received a barrage of inquiries lately regarding the law which makes someone “criminally inadmissible” in the country of Canada with a drinking and driving conviction according to Section 19 (2) (a.1) of the Immigration Act of Canada. The law applies to foreigners (United States Citizens) who cross the Canadian border for work, education or recreation.

Persons convicted of drinking and driving (Operating while Intoxicated or Impaired) are considered “criminals” in Canada regardless as to whether it is a first offense or one which does not involve any injury or damage to property.

Criminal Inadmissibility: Ten Year Ban From Crossing the US Border into Canada

A person convicted of only one non-serious offense may be deemed rehabilitated after ten (10) years have passed since the completion of sentence and probation without making any application.

Criminal Rehabilitation Applications May Be Filed After Five (5) Years

Again, a person is deemed criminally rehabilitated after ten (10) years since completion of the sentence for the conviction. If the person wants to get into Canada between the 5 to 10 year timeframe, an application of criminal rehabilitation will need to be filed. A person with a drunk driving conviction may be deemed criminally rehabilitated and file an application to enter Canada if the person meets the all of the following requirements.

  • Committed an act outside of Canada that would constitute an offence under a Federal statute.
  • Been convicted of, or admit to committing the act.
  • Five years must have passed since all sentences have been completed, including jail, fines and probation.

If five years have not passed since the completion of the sentence, a person can apply for a Temporary Resident Permit (TRP) before he is eligible to file an application based upon criminal rehabilitation.

Temporary Resident Permit (TRP)

A Temporary Resident Permit (TRP is required to enter Canada until such time as criminal inadmissibility is removed. A TRP) allows an individual to overcome their inadmissibility for a specified purpose and time frame. The applicant is required to establish that there is a substantial reason they must enter Canada. A TRP can only be used for entry to Canada for a temporary purpose which includes foreign worker, student or visitor but not for permanent residency.

Criminal rehabilitation is a permanent solution to criminal inadmissibility, while a TRP is a only temporary.

The Canadian government encourages individuals to apply well in advance if they know they must enter Canada and are inadmissible.

Links to this Blog:

Us Customs and Border Patrol Website

Canada Citizenship and Immigaration Website

Application to Return – Checklist

Application for Criminal Rehabilitation

Temporary Residency Permit Guide

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Since September 30, 2003, the legal limit for operating while intoxicated in the State of Michigan has been .08 per cent or greater. Prior to that time, the legal limit was .10 per cent or greater.

According to a report on WXYZ, the legal limit of .08 percent reverts to .10 percent in October 2013 unless lawmakers in Lansing rule otherwise. Mother’s Against Drunk Driving (MADD) is lobbying to keep Michigan’s blood alcohol content law at .08 percent for individuals who operate a motor vehicle. The report headline is, “MADD calls on lawyers to keep Michigan’s BAC law at .08 percent to prevent drunk driving“. According to Republican Rep. Andrea LaFontaine of Columbus Township, Michigan must maintain its .08 percent law to avoid violating federal drunken driving standards and continue receiving federal funding. The .08 limit was adopted in every state as part of an initiative during the Clinton administration by the National Highway Traffic Safety Administration.

It is my opinion that Michigan will retain the BAC legal limit of .08 percent.

A person who is not physically impaired or drunk can be convicted of OWI or Super Drunk!

Under Michigan law, a person is considered to be Operating While Intoxicated (OWI) or drunk driving, if he or she has a BAC of .08 per cent or greater, regardless of actual intoxication. If the BAC is .17 percent or greater, the charge is upped pursuant to Michigan’s High BAC law, also known as Super Drunk Driving. Therefore, a person can be charged and convicted of drunk driving, or Super Drunk Driving, even though the person was not impaired or drunk!

How is blood alcohol content determined?

The blood alcohol content is determined by one or more tests. The most popular test is the breath test. A common instrument to obtain a breath sample is the Datamaster. The Datamaster operator must follow complex instructions or there may be grounds to suppress the test result.

What are the consequeneces for refusal of a breath test or chemical test to determine BAC?

There are consequences when a person refuses a test to obtain his blood alcohol content pursuant to Michigan’s Implied Consent Law. A first time refusal of a chemical test will result in 6 points and license suspension for 1 year. In addition, a search warrant for a blood sample may be obtained by the police when a person refuses the chemical test offered by the arresting agency.

Are BAC charts accurate?

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From a legal standpoint, no amount of alcohol should be consumed prior to the operation of a motor vehicle. However, there are many drink/weight index charts on-line that give an estimated BAC. In addition, a portable breath test can be obtained from many sources. Again, any consumption of alcohol can be a risky proposition and is not recommended prior to the operation of a motor vehicle.

How much does a drunk driving case cost?

Here is an estimated range of fees and costs upon conviction for a first offense drunk driving:

-Attorney Fees: $2,500.00 to $25,000.00 (depending upon motions, trials, deviation requests)
-Fines/Costs: $800.00 to $2,000.00 -Driver Responsibility Fees: $1,000.00 to $2,000.00
-Substance Abuse Assessment: $150.00 -Probation Oversight Expenses: Up to $1,200.00 ($50.00 per month for max of 2 years)
-Insurance: (See Link) $3,000.00 to $6,000.00 per year for 5 years -Alcohol Counseling: $1,000.00 -Other Possible Costs: Vehicle immobilization, costs of prosecution, municipal/police response costs, vehicle forfeiture
It is imperative that a person charged with drunk driving retain a lawyer as soon as possible. An experienced lawyer will often know when a drunk driving conviction can be avoided or what action needs to be taken to get the best results and avoid many of the harsh consequences associated with a drunk driving conviction.

The ABDO LAW FIRM has been actively representing clients charged with drunk driving in every Macomb County court since 1980.
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Our experience tells us that the most prevalent misdemeanor crimes which are prosecuted in the Macomb County District Courts by crime type are as follows:

Possession of Marijuana
Domestic Violence
Retail Fraud
Driving While License Suspended
Operating While Intoxicated
Disorderly Conduct

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A recent docket of cases in a Macomb County District Court
Fortunately, these common misdemeanors are manageable from the point of view of our criminal defense lawyers. Again, our experience is based upon handling 1000’s of misdemeanor cases in all of the Macomb County District Courts.

When we refer to Macomb County District Courts, we are referring to:

In Michigan, there are distinct provisions of law designated for the crimes of Possession of Marijuana and and Domestic Violence to obtain a dismissal and suppression of the public record without going to trial. When we represent a youthful offender (age 17 but before age 24), we can petition the court to have the individual assigned to HYTA status which also results in a dismissal and sealed record upon successful completion of probation. Our blog pages and web site contain several references to these provisions of law which may be linked as follows:

Delayed Sentencing and Dismissal of Retail Fraud and Disorderly Conduct Cases (also can be used for other misdemeanors and felonies)

There is also a delayed sentence law which is found at MCL 771.1. This law is a general provision which can be used for any criminal offense with certain exceptions. Basically, it allows the Judge to delay the sentence and fashion a disposition that the offender can earn after a period of probation. Our criminal defense lawyers have utilized this provision of law extensively for numerous misdemeanor offenses including the commonly charged offenses of Retail Fraud and Disorderly Conduct. There are certain formalities to gain the benefit of a dismissal pursuant to MCL 771.1. Our criminal defense attorneys negotiate a plea bargain for application of MCL 771.1 with the prosecutor for a delayed sentence at a pretrial conference with the component of a dismissal after a period of probation. The Judge has the final say regarding acceptance of the usage of MCL 771.1 and whether dismissal will be provided at a future delayed sentencing date. For information, click here for a link to the blog page which pertains to Retail Fraud charges.

Operating While Intoxicated and Driving While License Suspended

The use or operation of a motorized vehicle is an essential element of the misdemeanor crimes of Driving While License Suspended and Operating While Intoxicated. Possession of marijuana does not require the use of an automobile for the crime to occur. However, possession of marijuana cases often are the end result of a traffic stop after the police officer smells marijuana or obtains consent to search the vehicle or the occupant. We don’t always agree with the police methods utilized to obtain consent to search which may involve subtle threats to get a search warrant or to call in the drug sniffing dogs.

Driving While License Suspended and Operating While Intoxicated do not fit neatly into a special provision of law which allows for outright dismissals after a period of probation and compliance. In my opinion, you can thank the insurance industry for legislation that does not allow an offender to obtain expungement of a traffic offense or traffic related crime such as Driving While License Suspended or Operating While Intoxicated. Nonetheless, we are often able to obtain reductions of both Driving While License Suspended and Operating While Intoxicated to minimize points, fines, driver responsibility fees, license sanctions and other sentencing consequences.
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This year, we have published several blogs dedicated to “frequently asked (criminal law) questions”. Whenever possible, we endeavor to avoid legalese by providing articles in layman’s terms. The focus of this blog is pretrial conferences in Macomb County District Courts.

What is a pretrial conference?

A pretrial conference is a meeting that is attended by the attorneys for the parties in a criminal or civil case. The major purposes of a pretrial conference are to facilitate resolution of a case, management of a case for trial or management of a case regarding pertinent issues (as listed below). A pretrial conference is scheduled after either a criminal or civil case is filed with the court, a case number and a Judge are assigned. In Macomb County, criminal pretrial conferences are held soon after the arraignment. For misdemeanors, which occur in Macomb County, the pretrial conference will always be held at the district court (click here for complete listing of links to Macomb County District Courts). Felony pretrial conferences can occur on the date scheduled for a preliminary examination and again after the case is bound over to the circuit court. A person charged with a crime (the defendant) is required to be present on the date scheduled for pretrial conference. However, he or she is usually not allowed in the conference room with the attorneys. On the other hand, police officers and victim’s rights advocates with court business are allowed in the conference room. Likewise, an alleged victim may be present at the pretrial conference as the prosecutor must obtain the victim’s consent for a plea bargain in most criminal cases.

The direction of a criminal case is often determined after a pretrial conference. Pretrial conferences are a vital tool, which a skilled criminal defense lawyer will utilize for several reasons:

  • Promote dismissal of the charge(s) under certain circumstances
  • Negotiate a favorable plea bargain
  • Address bond, bond conditions and/or release from jail
  • Adjourn the pretrial conference to seek a deviation when strict policy obstructs a plea bargain
  • Request modification of no-contact order (domestic violence cases)
  • Negotiate restitution when financial losses are claimed
  • Meet with the Judge when judicial support is needed to discuss various matters, such as sentence bargains, creative plea bargains or to simplify issues of the case when set for trial
  • Size up the prosecution’s case, witnesses and evidence
  • Request copies of discovery (police reports, videos, chemical test results)
  • Schedule one or more motion dates to attack the evidence, or to weaken the case
  • Set future pretrial conference date(s) when delay can tend to improve the defense position
  • Schedule the case for a bench or jury trial

Factoid: A person who is accused of a crime is not considered a “defendant” until that person is formally charged with a crime. Our criminal defense lawyers never refer to our clients as “defendants” when speaking to the court or prosecutor because of negative connotations. We prefer to refer to our clients by their given name or “the accused”.

What is the attorney’s role at a pretrial conference?

The best way for me to summarize an attorney’s role at a pretrial conference is by mentioning a few passages from the Michigan Rules of Professional Conduct.

A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.

As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.

As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others.

What is the defendant’s role at a pretrial conference?

Macomb County (as well as Oakland, Wayne and St.Clair), require the attendance of the defendant at the pretrial conference. If the defendant “fails to appear”, an arrest warrant may be issued. Prior to the pretrial conference, our criminal defense attorneys discuss goals and/or strategies with our clients. Even though the defendant is not present in the conference room, he or she is well informed of our intentions. We advise our clients to be punctual, dress appropriately and to refrain from discussing their case with anyone at the courthouse. We assume that our client’s conduct is “being monitored”. Therefore, we discourage any interaction with the victim or any conduct which draws unfavorable attention. Any progress towards working out a deal can be blown if a client offends certain key decision makers at the pretrial conference or at any other time while a criminal case is pending!

Is there an appearance in the courtroom after the pretrial conference?

After the pretrial conference, the defendant and his or her attorney will appear in open court and inform the Judge of the results. The Judge has the final say regarding the outcome of a pretrial conference. For example, certain plea bargains may be against the Judge’s own policy and may require some persuasion and legal authority. In addition, the Judge may show frustration when the parties are attempting to adjourn (delay) cases. Since adjournments tend to clog court dockets, the Judge will require that “good cause” be shown.

Our experience is that a pretrial conference is an invaluable opportunity to advocate on behalf of our clients. Advocacy includes elements of assertiveness and diplomacy. We often can achieve a disposition after the pretrial conference. This may result in a plea bargain, which may have the effect of dismissing the criminal charges in exchange for completion of probation. It is our job to protect our client’s rights and seek the best possible outcome, which may mean saving a client from being exposed to egregious facts and the expenses of an unnecessary trial. The defendant remains the ultimate decision-maker when presented with options after the conclusion of a pretrial conference.

Some other important things to know about pretrial conferences:

-Denial of a pretrial conference may constitute a denial of “due process” rights. US vs. Ataya, 864 F2d 1324 (1988)
-No admissions made by the defendant’s lawyer in the setting of a pretrial conference are admissible against the defendant during trial.
-Pretrial Conferences for federal criminal cases are governed by Federal Rule of Criminal Procedure 17.1

The addresses and phone numbers for all Macomb County district courts can be found at the following links:

Warren 37th District Court

Eastpointe 38th District Court

Roseville and Fraser 39th District Court

St. Clair Shores 40th District Court

Sterling Heights 41-A District Court

Shelby, Utica and Macomb Township 41-A District Court

Clinton Township, Mt. Clemens, Harrison Township 41-B District Court

Romeo, Washington Township, Armada, Bruce Township, Ray Township, Richmond, Memphis 42-1 District Court

New Baltimore, Chesterfield Township, Lenox Township, New Haven 42-2 District Court

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The Michigan Bar Association releases crime data for the state from time to time. While researching cases, we came across an informative article written by the Michigan Bar Association regarding the most frequently charged felonies in the State of Michigan. This article can be viewed here: Top 50 Felonies Most Frequently Charged in Michigan. Based upon our experience, I would agree: this list is an accurate representation of the types of cases that our Macomb County criminal defense firm handles on a frequent basis.

Listed below is a selection of the top felonies charged in Michigan:
Possession of a Controlled Substance (heroin, cocaine, analogues)
• Possession of Marijuana (double penalty for second offense)
• Possession of methamphetamine (MDMA)
Possession with intent to deliver less than 50 grams (cocaine, narcotic)
• Possession of an Analogue controlled substance (pills)
• Possession with intent to deliver marijuana • Manufacturer or delivery of less than 5 kilograms of marijuana • Drunk driving – 3rd offense
• Assault with Dangerous/Deadly Weapon (“Felonious Assault”)
Assault with Intent to do Great Bodily Harm
• Resist/Obstruct a Police Officer & fleeing and eluding • Criminal Sexual Conduct – 1st, 2nd, 3rd and 4th Degree • Keeping or Maintaining Drug House • Home Invasion
• Retail Fraud 1st Degree (Retail Fraud 2nd and 3rd Degree are misdemeanors)
• Larceny in a Building, Larceny from a Vehicle
Sometimes, the amount of loss will determine whether an offense is classified as a felony. Offenses, such as embezzlement and malicious destruction of property, are also on the list of top felonies when the value is $1,000.00 or greater. If the value of stolen property was less than $1,000.00, the offense would qualify as a misdemeanor.

Pursuant to the Michigan Sentencing Guidelines, felonies are further broken down into categories that determine the accompanying sentence. Punishment for each class is listed below:

  • Class A – Life imprisonment
  • Class B – Up to 20 years in prison
  • Class C – Up to 15 years in prison
  • Class D – Up to 10 years in prison
  • Class E – Up to 5 years in prison
  • Class F – Up to 4 years in prison
  • Class G – Up to 2 years in prison
  • Class H – Jail or other intermediate sanctions, such as fines

Note: A future blog will be dedicated to the Michigan Sentencing Guidelines.

Below, you will find connections to some of our blogs that are pertinent to felony cases:

All Felony-related Posts

Drug Possession

Felony Assault – Assault with a Deadly Weapon

Fleeing, Eluding and Obstructing the Police

First Degree Retail Fraud and Larceny

Third Drunk Driving Conviction

Child Abuse and Neglect

Felony Marijuana Possession
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Since 2007, the law in Michigan is that a person with three (3) or more drinking and driving offenses in his or her lifetime may be charged with a felony! All states have now adopted this law. In Michigan, it is commonly referred to as Heidi’s Law. Prior to the passage of this law, a person could only be charged with felony drunk driving (also referred to as OWI, DUI, Operating While Intoxicated) if the prior drinking and driving convictions occurred within 10 years of the new arrest. Now, any offenses for drinking and driving in a person’s lifetime are scored to enhance the charge to a felony including out-of-state convictions and convictions for impaired driving. However, in Michigan, only one (1) prior offense under Michigan’s Zero Tolerance law (OWI by person u/21 with any BAC) counts. This blog will explore the penalties which can be imposed upon conviction for a Drunk Driving Third (Felony) and various defense strategies which we utilize to fight the case, reduce the charge or minimize the sentence.


Fines: $500.00 to $5,000.00 fine, plus costs
Jail/Community Service: Imprisonment for 1 to 5 years, or, Probation with imprisonment in the county jail for not less than 30 days or more than 1 year and community service for not less than 60 days or more than 180 days. Not less than 48 hours of this imprisonment shall be served consecutively.

License Sanctions: License revoked minimum of 1 year for 2 offenses within 7 years or 3 within 10 years. A second revocation is for 5 years. After minimum period of revocation, a person must appear before the Driver License Appeal Division satisfy several requirements before a license will be granted.

Other: Destruction of License, Plate confiscation, Vehicle immobilization from 1 to 3 years, Possible vehicle forfeiture
Driver Responsibility Fee
: $1,000.00 per year for 2 years
Points: 6
Mandatory jail is required upon conviction for a Drunk Driving Third Offense. As you will read further in this post, there is a safety net which our attorneys have advocated when jail is combined with community service or there is a house arrest release program in the applicable jurisdiction.


You may be shocked to know that to be convicted of drunk driving:

You do not have to be drunk. You can be charged with drunk driving if you are legally drunk (BAC .08% or more, with the presence of certain drugs, in the opinion of the arresting officer of impairment or even after taking prescribed medications such as pain pills.

The police do not have to witness you driving. Only probable cause to believe that you were operating the vehicle is sufficient.

You may be stopped or pulled over even though you haven’t violated any traffic law! A police officer may pull you over upon the opinion of the officer that you are operating a vehicle while impaired or intoxicated.

The elements of a drunk driving which the prosecutor must prove are:

1. Intoxication or Impairment by alcohol, drugs or marijuana. In Michigan “Operating Under The Influence” (OWI) means operating a motor vehicle while under the influence of alcohol and/or drugs to a degree that renders one unable to safely drive a vehicle. It is not necessary for one to be drunk to be arrested for or convicted of OWI in Michigan. Michigan OWI convictions can be obtained where a person operates a vehicle while under the influence of alcohol, or operates a vehicle with a blood alcohol level (BAL) or breath alcohol content (BAC) of .08 or greater
2. Operation of the vehicle or proof of operation (such as an accident, vehicle in a ditch or on the side of the road). The police do not have to witness the offender actually driving or operating the vehicle. In the cases researched, you can be charged and convicted with OWI if the police had probable cause to believe the accused was operating the vehicle.

3. A valid traffic stop. A traffic stop may be based upon a violation of any traffic law. Drivers are often stopped for straddling lane markers, weaving between lanes, driving at excessive or very slow speeds, braking erratically, obstructed vision, defective equipment, coming in close contact with objects or other vehicles, or while fixing a flat tire!


Our goals are always the same with every criminal case that we handle: Avoid a conviction and avoid jail! The question in every drunk driving is the same: Can we beat the case? Based upon our experience, there is hope even if someone gets charged with a drunk driving third offense.

Since the judges are stuck with minimum sentence requirements for someone convicted of a drunk driving third offense (felony), it is important for a criminal defense lawyer to explore every legal option. Our inquiry starts out with immediately when we are retained. Aside from ordering the discovery (police reports, video, etc.), our firm obtains an extensive personal history from our client:

-Dates of prior drinking and driving convictions -Prior criminal history (dates and offenses)
-Any habitual offender Issues for prior felony convictions -Employment, family, education, achievements, community involvement -Substance abuse treatment and Alcoholics Anonymous (AA)
-Compliance with bond conditions (alcohol monitoring, random testing)
-Relapse history (prior periods of abstinence)

In situations when an offender is charged with his or her third (felony) drunk driving, there may be an opportunity to fight for a misdemeanor. Our firm has negotiated the lower more favorable misdemeanor deal when various facts and circumstances are present. The following factors, among many others, may influence the outcome or sentence of a felony drunk driving:

-Is the offense a *true 3rd DUI offense (meaning the offender has only 2 prior DUI convictions)?
-Are any of the prior drinking & driving offenses used to support the felony more than 10 years old?
-Does the offender have a felony record?
-Does the pending offense involve an injury accident?
-Is the Blood Alcohol Content (BAC) is less than .20%?
-Has the offender engaged a substance abuse counselor and/or AA?
-Is the offender on probation for any other criminal matter?

*In Macomb County, our firm has advocated plea bargains to a misdemeanor if the offender is charged as a true third drunk driving offender. We have achieved this result in numerous cases; including for offenders with more than two (2) prior offenses in exceptional cases. Public policy, accidents involving injuries and directives by the County Prosecuting Attorney may have an impact on plea bargaining drunk driving cases.

We are proactive and will make recommendations to our clients after the first consultation. Within a reasonable time after being retained for a drunk driving third (felony) our attorneys set goals and can usually provide an educated prediction of the outcome based upon our experience.


Everyone likes to believe that they will win their drunk driving case at trial. This is not realistic since the vast majority of drunk driving offenses (as well as other criminal offenses) in Michigan result in a conviction based upon a plea bargain or verdict after a trial. However, our attorneys have handled drunk driving cases from every angle including:

-Trial which may result in a verdict of guilty or not guilty -Motions to dismiss because of an illegal traffic stop -Irregularities in the testing process or equipment
-Plea bargaining to a misdemeanor (achieved by our firm in numerous drunk driving cases)
-Negotiating the minimum sentence (30 days with community service)
-Negotiating to lessen sentence enhancement and habitual offender provisions -Negotiating delayed jail sentence, house arrest (sobriety monitoring)

Rarely is a client willing to roll the dice at trial when we can secure a deal to have a drunk driving felony reduced to a misdemeanor which we have achieved in several cases. In a recent St. Clair County case, our client received a minimum sentence on a drunk driving felony (1 year probation and 30 days in jail). He was released from jail after servicing 24 days (6 days credit). He called and thanked us because other offenders were sentenced to much longer periods of incarceration followed by half-way-house residency upon release from jail.
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This is one of many blogs that our law firm has posted about the Courts where our criminal defense attorneys frequently practice in Macomb County. This is an informational public service blog about the 41-A District Court.

The 41-A District Court in Sterling Heights has jurisdiction from 14 Mile Road to M-59 and from Dequindre to Hayes. This geographical area of approximately 36 square miles contains several major Macomb County thoroughfares such as Hayes, Schoenherr, Van Dyke, Mound and Dequindre. Within Sterling Heights, you will find major shopping centers, the Lakeside Mall, major automotive factories and established residential areas. According to the 2010 US census, the city of Sterling Heights boasts a population of 129,699 and is the second largest suburb in the Metro Detroit area. For these reasons, there are three (3) judges that are needed to administer justice for the City of Sterling Heights. (GOOGLE MAP, CITY OF STERLING HEIGHTS)

The 41-A District Court has jurisdiction to handle non-criminal traffic tickets (civil infractions), criminal matters such as misdemeanors, drunk driving (OWI) and criminal traffic violations. Here is a partial list of offenses which fall under these offense classifications:

Civil Infractions: Speeding, Fail to Obey Traffic Device, Improper Turn, Careless Driving
Criminal Traffic: Drive While Suspended (DWLS), Reckless Driving, Leave Scene of Accident, Fail to Merge for Emergency Response Vehicle
Drunk Driving: Zero Tolerance, Operating While Intoxicated (DUI, OWI), Super Drunk (OWI With a High BAC over .17%)

Misdemeanors: Retail Fraud, Domestic Violence, Disorderly Conduct, MIP, Possession of Marijuana, Possession of Paraphernalia, Malicious Destruction of Property (MDOP), Larceny under $200.00
Criminal Felonies: The district court handles the initial stages of a felony which include issuance of the complaint and warrant, arraignment, bond hearings and preliminary examination. Some arraignments occur after the accused receives a letter and appears voluntarily. The court also utilizes video arraignments for persons that are in custody.

Criminal Warrant Letters: Do not panic if you receive a letter from the Sterling Heights Police directing you to surrender yourself because a criminal warrant has been issued. This would be the time to hire a lawyer if you have not already done so. Our firm has positive experience with scheduling these matters or getting the job done immediately or before a holiday weekend (we don’t like to have warrants hanging over our heads over a long weekend). Ordinarily, we can get the warrant, booking, arraignment and bond addressed without any entanglements.

Legal Objectives: Civil Infractions (Traffic Tickets)
As we have mentioned in our other blogs; if you are found guilty of a civil infraction, the offense will appear on your driving record and you will receive point. The Michigan point system is used to determine high risk drivers which can result in license suspension after a person accumulates 12 or more points. In addition, points are used by insurance companies to rate drivers and raise insurance premiums. Do you think insurance companies find it in their best interest to know when a customer has a new ticket? When handling civil infractions, we attempt to reduce or avoid both points and any offense appearing on a client’s record.

Legal Objectives: Criminal Cases (Misdemeanors)
If you are found guilty of a criminal offense, it will stay on your permanent criminal record. Our goal is to avoid convictions or to obtain dismissals under special provisions of Michigan laws. While nobody can insure or guarantee that a criminal record will completely disappear after the case is concluded, we will aggressively seek the best case scenario by employing delayed sentence dispositions which result in dismissals for offenses like retail fraud, HYTA for youthful offenders (age 17 but under age 21) and statutory first offender deals such as MCL 333.7411 for drug crimes and MCL 769.4a for domestic violence. Since our firm practices extensively in the 41-A District Court (Sterling Heights and the location in Shelby Township), I can say that the Judges are very receptive to outcomes which are consistent with our objectives based upon several years of experience in this jurisdiction.

The Court also has limited jurisdiction over the initial stages of felony cases which include: authorization of criminal charges, issuance of warrant, arraignment (bond) and preliminary examination. However, felony cases are ultimately resolved in the Circuit Court unless reduced to a misdemeanor in the District Court.

The 41-A District Court is located at 40111 Dodge Park, Sterling Heights, Michigan 48313, Phone: 586-446-2500. The Presiding Judges for the 41-A District Court are Judge Michael S. Maceroni, Judge Stephen S. Sierawski and Judge Kimberley A. Wiegand.
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Many of our blogs explore criminal and drunk driving issues within the realm of our law firm’s expertise. Others are about the Courts where we frequently practice law. This blog is about the 37th District Court where we regularly provide legal services to our clients who are charged with traffic offenses, criminal (felony or misdemeanor) and OWI cases arising out of Warren and Centerline.

The 37th District Court has two locations which are located in the cities of Centerline and Warren. (MAP OF WARREN) The jurisdictional boundaries of these Courts covers 36 square (from 8 Mile Road to 14 Mile Road and from Hayes to Dequindre). South of 8 Mile Road is the City of Detroit and West of Dequindre is the County of Oakland. Within the boundaries of the 37th District Court are major Macomb County roads, the I-696 expressway, industrial centers, General Motors Tech Center, Automobile Dealers, over 100 restaurants and retail establishments.

The Warren Police Department (WPD) is located directly behind the 37th District Court. The WPD is one of the most active law enforcement agencies in Macomb County with a major detective bureau, air force (helicopter) motorcycle and traffic patrol squad. The detective bureau has a drug enforcement team as well as other units which engage in various undercover operations including cracking down on prostitution. The Michigan State Police also have a presence in Warren as the law enforcement entity responsible for patrolling I-696 expressway.

Our firm has represented clients charged with just about every imaginable misdemeanor and/or felony crime in the 37th District Court including drunk driving (OWI), drug crimes, disorderly conduct, prostitution, offer to engage or solicit sex from another, domestic assault, assault crimes, retail fraud, larceny, fraud, breaking and entering, child abuse, criminal sexual conduct, indecent exposure, malicious destruction of property, traffic violations, DWLS and probation violations.

As experienced criminal defense attorneys in Macomb County, I can say that the 37th District Court is a just and fair place to practice law. What I mean is that Judges are willing to listen to arguments and fairly dispose of criminal, drunk driving and traffic cases. I have found that the Judges are willing to give a criminal defense attorney some leeway when a case goes to trial or preliminary examination. In addition, most criminal cases handled by our firm are resolved without trial (90% or more are resolved by aggressive plea negotiations).

Criminal Cases in the 37th District Court

We set various goals when a client is charged with a criminal or drunk driving offense. Avoidance of a criminal conviction and jail are on the top of our list of goals. Some of our success stories include reducing a felony to a misdemeanor or having a case taken under advisement with a dismissal after a period of probation and compliance with the Court’s conditions. We have utilized every special provision of law in the 37th District Court to obtain dismissals of retail fraud, domestic violence, possession of drugs/marijuana, MIP and many other criminal offenses. The Court will also consider petitions to have youthful offenders (age 17 but under age 21) placed on a special status where the public record will be sealed and the offense dismissed for eligible offenders.

Drunk Driving Cases in the 37th District Court

I have found the Judges in the 37th District Court to take some mercy on first offenders whether they are charged with a criminal offense or drunk driving (OWI). Drunk driving cases rarely get dismissed. However, by aggressively defending our clients, an OWI charge can often be reduced to a lesser offense which will save a client money, points and driver responsibility fees. I have represented two (2) clients in July 2012 who had BAC (Blood Alcohol Content) results of .17% or greater. In both cases, I was able to have the charges reduced to impaired driving. (A chemical test result of .17% or greater is known as a “Super Drunk” case and the policy is usually against any reduction in the charge).

Traffic Violations in the 37th District Court

When resolving a traffic matter in the 37th District Court, we are often able to have traffic tickets amended and avoid points. A traffic ticket can be reduced to a Michigan civil infraction known as “impeding traffic” which does not appear on a person’s driving record and does not carry any points.

We take every precaution to know the strengths and weaknesses of our cases, set realistic goals and formulate strategies to achieve favorable results. In doing so, we will obtain discovery (police reports, videos, test results), witness statements and make recommendations to our clients for counseling whenever this is an appropriate course of action.

37th District Court Locations:

Warren: 8300 Common Road, Warren, MI 48093 Phone: 586-574-4910
Centerline: 7070 East 10 Mile Road, Centerline, MI 48015, Phone: 586-757-8333
37th District Court Presiding Judges:

John Chmura, Matthew Sabaugh, Jennifer Faunce, Dawn Gruenburg
Soon, Judge Dawn Gruenburg will be leaving the 37th District Court for a Federal Judicial Appointment. She will be dearly missed. Her replacement will be appointed by Governor Rick Snyder. Our firm has sent letters to Governor Snyder in favor of qualified candidates.