Articles Posted in Driving Under the Influence (Alcohol, Drugs, OWI, High BAC)

 

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Crime Classifications/Misdemeanor or Felony

In Michigan, crimes are classified as either misdemeanors or felonies. The maximum term of incarceration determines whether a crime is classified as a misdemeanor or felony. A misdemeanor is defined as a crime that carries 1 year or less in jail. A felony is defined as a crime that carries more than 1 year, up to life, in prison. Felony representation link.

There are hundreds of offenses that are classified as misdemeanors in Michigan. In our experience, the following are the most prevalent misdemeanor crimes that you will find on the dockets of Metro Detroit (Wayne, Oakland, Macomb) district courts:

Each of the above offenses constitutes a crime. Upon conviction, the offense will appear on a person’s permanent public criminal history with the Michigan State Police and the FBI. With some exceptions, most misdemeanors are eligible for expungement.

Our research indicates that there are several thousand arrests in Michigan for misdemeanor offenses. Drunk Driving cases account for roughly 10,000 arrests each year in the Counties of Macomb, Oakland and Wayne. Retail fraud and larceny crimes are also extremely common criminal offenses. In 2018, approximately 20,000 property crimes were reported in Macomb County alone. Property crimes include retail fraud, MDOP, other larceny crimes, joyriding and embezzlement.

Certain misdemeanor offenses may be more prevalent in a particular geographical area because of specific police activity. For example the following criminal offenses are targeted by the police and thus more prevalent in these areas:

Macomb County District Courts

We have dedicated this  article to give you the big picture on the topic of misdemeanors in Macomb County. This project is based upon our experience handling more than 10,000 criminal cases in Michigan. Misdemeanor cases are handled in the local district courts for each county. The district court system in Michigan is broken down based upon population. This map illustrates the jurisdictional picture of the district court system in Macomb County where misdemeanor cases are adjudicated:

District-Courts-Macomb-Map

The list below contains links to the district courts located in Macomb County:

Penalties  and Consequences for Misdemeanors

Misdemeanors are extremely serious matters. The presiding district court judge has vast power to sentence an individual following a conviction for a misdemeanor. The list of potential penalties and consequences for a misdemeanor conviction are as follows:

  • Jail: Up to 1 year incarceration.
  • Fine, court costs and cost of prosecution in the judge’s discretion.
  • No limit on restitution for any loss, injury or damage to victim(s) or third parties such as insurance companies.
  • Probation for up to two (2) years.
  • Probation for up to five (5) years for stalking.
  • Substance abuse counseling, attendance of AA meetings.
  • GPS monitoring (in cases such as stalking).
  • Loss of right to obtain a concealed pistol license (CPL) for a period of 3 years or 8 years, depending upon the offense.
  • Suspension or revocation of driver’s license for traffic misdemeanors and OWI.
  • Points added to your driving record for traffic misdemeanors and OWI.
  • No contact order as a bond condition and during the entire period of probation.
  • Alcohol and drug test testing as a bond condition and during the entire period of probation.
  • Travel restrictions as a bond condition and during entire period of probation.
  • Reporting to a probation officer at intervals to be determined by the judge.
  • Deportation for non-US citizens upon conviction of misdemeanors that constitute crimes of moral turpitude.

Getting an experienced criminal defense attorney can be the best decision that you can make if you are charged with a misdemeanor. There may be ways to avoid a conviction altogether, have the offense reduced or amended and avoid many of the penalties and consequences as listed above.

Getting a Misdemeanor Case Under Control

A misdemeanor needs to be taken seriously. Fortunately, there are distinct provisions of law in Michigan designated to obtain a dismissal of a misdemeanor without going to trial. These provisions of law afford an individual a chance to get a criminal charge dropped after completing a period of probation and complying with the terms of probation. The following is a list of provisions used extensively in every Macomb County Court with links for expanded explanations:

  • HYTA: Cases accepted pursuant to HYTA status enable youthful offenders (age 17 but under age 24) to get a criminal offense (felony or misdemeanor) dismissed and sealed.
  • Dismissal of Drug Crimes: First time drug offenses involving use or possession, but not delivery, can be dismissed pursuant to application of MCL 333.7411.
  • Domestic Violence: A domestic violence charge can be dismissed upon use of MCL 769.4a in appropriate circumstances.
  • Deferral of Case or Delaying Sentence: MCL 771.1 is a special provision of law that can be utilized to get a criminal case under control by deferring the matter (for a later dismissal or reduction in the charge) or delaying the sentence (for leniency).

Although the above provisions are widely used and have enormous benefits, they are not without consequences. Once in the system for a criminal offense, a court file and police record are generated. Even if a case is later dismissed under a special provision of law, there can be a record floating around that should have been suppressed or sealed. In addition, there are always certain government and police agencies, along with other sensitive institutions, that are able to see every entry of a person’s record, even for matters that are dismissed under a special provision of law.  An experienced criminal defense lawyer can look for ways to strategically handle a criminal matter to get the most favorable resolution to avoid a trail of negative entries on a person’s record.

Retail Fraud/Shoplifting Can be Dismissed in Macomb County

Retail fraud is the name given for the crime of shoplifting in Michigan and it is always one of the most prevalent crimes that we see in every courtroom in Macomb County. The offense of retail fraud is committed by taking something from a retail establishment with the intent to steal. The crime is accomplished by the intentional concealment of goods, changing a price tag/package or by attempting to defeat the scanning process. Retail fraud is a serious crime and constitutes a crime of moral turpitude that will result in deportation for those that do not have United States citizenship. The penalty for retail fraud depends upon the value of the goods:

  • Retail Fraud First Degree (value of goods $1,000.00 or more): Felony punishable by up to 5 years imprisonment.
  • Retail Fraud Second Degree (value of goods $200.00 up to $1,000.00): Misdemeanor punishable by up to 1 year in jail.
  • Retail Fraud Third Degree (value of goods up to $200.00): Misdemeanor punishable by up to 93 days in jail.

Virtually every major retailer (Kohl’s, Target, Walmart, Meijer, Sam’s Club) utilizes loss prevention employees to deter shoplifting and apprehend shoplifters. Once charged with this crime, an attorney’s services are crucial to find a way to avoid a conviction in the criminal justice system. First offenders almost always qualify for a plea bargain to get the matter deferred and dismissed. The terms of the probation can differ depending the court and whether the judge believes the offender needs to be supervised or non-supervised. Non US Citizens need to hire a lawyer to avoid a “theft” related conviction altogether to avoid deportation.

Avoiding Traffic Misdemeanors

Not all traffic offenses are created equal. Traffic offenses are classified as civil infractions or misdemeanors. Civil infractions, such as speeding, are considered less serious. Misdemeanor traffic offenses often carry greater points (6 in many cases), possible jail and appear on a person’s criminal record.  In Michigan, the following offenses are misdemeanors:

  • Reckless Driving
  • Leaving the Scene of an Accident
  • Driving While License Suspended

We look for ways to reduce the impact of a traffic misdemeanors by scheduling a pretrial conference with the prosecutor to seek meaningful reductions. This often can result in a misdemeanor being reduced to a civil infraction thereby saving a person from having a criminal record. In addition, getting a traffic misdemeanor reduced to a lower offense can also result in meaningful reduction in points and insurance premium savings.

Operating While Intoxicated 

As we have said, Operating while Intoxicated (OWI) is always one of the most prevalent crimes on every district court docket. Like most people, you have probably not heard of the Michigan Drunk Driving Audit. The Michigan Drunk Driving Audit is a website which compiles detailed statistics regarding drunk cases based upon  information obtained from police agencies and courts. In 2018, there were approximately 2,200 individuals tested for drugs or alcohol and most resulting a criminal charge of operating while intoxicated or under the influence of drugs. The statistics are further broken with details as to the number of individuals with a blood alcohol content of (BAC) of .17% or greater. In 2018, approximately 750 individuals in Macomb County that provided a test result were positive for alcohol at .17% or greater, constituting “Super Drunk Driving“.

There are many legal and technical aspects to a drunk driving case. At the very least, you probably have the following questions if you are facing a drunk driving offense:

  • Can the case be dismissed?
  • Can the charge be reduced?
  • Am I going to jail?
  • What will happen to my license?
  • Why did they destroy my license?
  • Was I required to give a blood test or take a breathalyzer test?
  • Can an attorney get the police in-car video and body-cam video? Continue reading ›


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41A District, Shelby Township Division

Jurisdiction over Shelby Township, Macomb Township and Utica

Macomb County, the 586 County: 9 District Courts, Over 2,000 DUI Arrests in 2018 

From our experience, those finding themselves charged with operating a motor vehicle under the influence of drugs or alcohol (DUI/OWI), rarely fit the mold of someone that you would expect to get into trouble with the law. In many situations, our clients have responsible employment, solid relationships and lead healthy lifestyles. On the other extreme, we have represented those that admit to a substance abuse problem, use alcohol as a social lubricant after a recent breakup or divorce and/or are self-medicating to numb psychological disorders, relationship problems or a significant loss. Unfortunately, once in the court system, a person can be unfairly treated and characterized as a substance abuser because of an isolated episode of alcohol consumption and lack of knowledge of Michigan’s strict DUI laws. Whatever situation you are facing, we know that you didn’t intentionally set out to get charged with driving under the influence but consider yourself in the right place to get the straight facts if your case is in Macomb County. 

There are 83 counties in Michigan with Macomb County ranking third in population size behind Wayne County and Oakland County. The cities of Warren and Sterling Heights rank third and fourth in population size among Michigan cities. Macomb County is the “586” county and home to 9 district courts which covers a diverse population and contrasting regions from Eastpointe on the 8 Mile Road border to Romeo, a community dotted with apple orchards, rural charm. Others areas in Macomb County, such as Macomb Township, Shelby Township, Chesterfield Township and Washington Township, have seen explosive residential and commercial growth.

We have dedicated this  article to give you the big picture on the topic of driving under the influence (DUI/OWI) in Macomb County based upon our experience handling 1,000’s of DUI/OWI cases and because DUI/OWI cases are consistently one of the most prevalent criminal charges in the Macomb County district courts. The list below contains links to the district courts located in Macomb County:

Michigan State Police Keep Drunk Driving Statistics 

Although I have not officially counted, there are more laws, ordinances and administrative rules on the books for drunk driving than exist for murder, kidnapping and armed robbery combined! 

Since 1999, the Michigan State Police has kept track of DUI/OWI cases in every Michigan county. This data can be found online Michigan Drunk Driving Audit. In 2018, there were approximately 2,200 arrests for operating under the influence of alcohol or drugs in Macomb County. Here are the numbers of incidents (breath/blood tests) for select police agencies in Macomb County.

  • Macomb County Sheriff: 369
  • Warren: 198
  • St. Clair Shores: 162
  • Clinton Township: 156
  • Shelby Township: 155
  • Sterling Heights: 151
  • Chesterfield Township: 127
  • New Baltimore: 90
  • Roseville: 85
  • Utica: 72
  • Eastpointe: 66
  • Fraser: 50
  • Richmond: 35
  • Centerline: 18
  • Romeo: 11

A word about these numbers: These numbers represent the total of those tested for alcohol or drugs by a breath or blood test. The ultimate charge is dependent on the test result for alcohol (.08 or .17 or greater) or drugs, whether an injury/death occurred, the prior record of the offender and other factors. Surely you are feeling unlucky if you have been charged with DUI/OWI in one of these jurisdictions considering that several thousands of individuals drive under the influence of alcohol or drugs in Macomb County on any given weekend. The Macomb County Sheriff, which provides law enforcement in several major areas (Macomb Township, Harrison Township, Washington Township), sees the greatest number of OWI incidents within Macomb County. Lastly, geographic size alone does not determine OWI activity. For example, the City of Utica, with several bars, Jimmy John’s Field, restaurants and hotels crammed into a compact geographical area of 1.776 square miles, had 72 OWI incidents in 2018, compared with Sterling Heights (151 incidents) that is almost 20 times larger.

What do the abbreviations mean for OWI, OWVI, OUID & OWI High BAC?

You can expect to be hit with confusing legal jargon and abbreviations if you are charged with driving or operating under the influence. Over the years, drunk driving laws have evolved but some of the old abbreviations have survived and are still widely used to refer to a drunk driving offense.

  • OWI=Operating while intoxicated: This offense covers charges when a person has a blood alcohol content of .08% or greater which is abbreviated as OWI. The abbreviations of DUI and OUIL mean the same thing as an OWI but are from a generation of prior drunk driving laws.
  • OWVI=Operating while visibly impaired:  This is the offense which is a lower charge than OWI . OWI is often reduced to OWVI in the court system.
  • OWPD=Operating with the presence of a Schedule 1 controlled substance: As determined by a blood test.
  • OUID=Operating under the influence of drugs: Includes situations where someone is impaired by the use of prescription medications.
  • OWI with High BAC=Operating with a high blood alcohol content: This is also referred to as a “super drunk driving” and is charged when a person has a blood alcohol content of .17% or more. OWI with high BAC carries much higher criminal and driving penalties than OWI or OWVI. Most county prosecutors have a policy and do not reduce OWI with a high BAC without policy deviation granted.

Why did the police destroy my driver’s license?

Can I still drive with a temporary license?

When will I get my picture license back?

dui 257g

The following is a directive to law enforcement officers after placing someone under arrest for a DUI:

MCL 257.625g: On behalf of the secretary of state, immediately confiscate the person’s license or permit to operate a motor vehicle and, if the person is otherwise eligible for a license or permit, issue a temporary license or permit to the person. The temporary license or permit shall be on a form provided by the secretary of state.

Once officially arrested for a drunk driving offense, the police will destroy the plastic driver’s license and issue a Michigan Temporary Driving Permit as seen above.  This permit will be provided to the offender upon release from jail along with a baggie containing the following:  breath-test result, ticket or other notification, bond receipt and towing receipt. This Michigan Temporary Driving Permit will enable the person to continue to operate a vehicle without any restrictions. Any license restrictions or suspension will not be triggered by the Secretary of State until there is a finding of guilt for  OWI/Impaired . Upon conviction or finding of guilt, the Secretary of State will issue license action by mail to the last address of the offender. The aggrieved party may obtain a new picture license after all of the license action has expired with respect to the underlying conviction offense. License action may also be imposed for alcohol/drug test refusals pursuant to Michigan’s implied consent laws.

License Suspension, Revocations, Restrictions

There are mandatory license sanctions for every OWI offense. Upon conviction, these sanctions, or action, is imposed by the Secretary of State and the court system is powerless to intervene or provide any relief when a person is suspended or revoked for a drinking or driving offense.  Sobriety court may also save a repeat OWI/DUI offender from a mandatory license revocation.

Michigan Alcohol or Drug Crime License Action
First Offense OWI (.08 or greater)  30 days suspended, 150 days restricted
First Offense OUID (drugs)  30 days suspended, 150 days restricted
Second Offense within 7 Years Indefinite revocation (minimum 1 year)
Second Offense within 7 Years (Sobriety Court) 45 days suspended, 320 days restricted with BAIID
Third Offense within 10 Years Indefinite revocation 1 year to 5 years
Child Endangerment w/Child u/age 16 90 days suspended, 90 days restricted
Super Drunk (High BAC .17% or greater) 45 days suspended, 320 days restricted with BAIID
Impaired Driving (OWVI) 90 days restricted
Zero Tolerance, Under 21 w/.02% – .07% 30 days restricted
OWI/Causing Injury Indefinite revocation
OWI Causing Death Indefinite revocation
Other Felony Convictions w/Motor Vehicle Revocation or Suspension
First Offense Drug Crime  30 days suspended, 150 days restricted
Second Offense Drug Crime  60 days suspended, 305 days restricted

A person issued a restricted license  may operate a vehicle, to and from any combination of the following places:

  • In the course of the person’s employment/occupation.
  • The person’s residence.
  • The person’s workplace.
  • An alcohol, drug or mental health education treatment program as ordered by the court.
  • AA or NA meetings.
  • An educational institution at which the person is enrolled as a student.
  • A place of regularly occurring medical treatment for a serous condition or medical emergency of the person or a member of the person’s household.
  • An ignition interlock service provider (for those required to have a BAIID device).
  • The judge has discretion to permit a minor’s custodian to drive to a day care center or educational institutional where the child is enrolled.

An indefinite license revocation may be appealed after a minimum of one (1) year (or after 5 years for a second revocation) to the Michigan Department of State. The process to regain driving privileges is known as a driver’s license restoration proceeding.

The Science of Blood Alcohol Content (BAC)

Shot, Beer, and Wine

Legal intoxication means the amount of alcohol contained in one’s blood (reported as a percentage) that will constitute drunk driving (operating while intoxicated). Law enforcement officers use breath, blood or urine tests to measure a person’s blood alcohol content (BAC). In Michigan, a BAC of .08% or more is considered legal intoxication, regardless of actual intoxication. If a person has a BAC of .17% or greater, the charge to SUPER OWI or OWI with High BAC. A search warrant for a blood test may be obtained when a chemical test is refused or under circumstances where the police are seeking a blood test for drugs or marijuana. If the Secretary of State finds that the refusal was not reasonable, the offender’s license will be suspended for a one (1) year period pursuant to Michigan’s implied consent laws.

Drink/weight BAC index charts, such as the one below, are a fairly reliable source of information on the subject of blood alcohol content.

DUI BAC CHART MALE & FEMALE

 

Unfortunately, this whole process is technical, confusing and often catches people by surprise. Seniors citizens are especially vulnerable as they usually avoid alcoholic beverages because of medications or other age related health concerns. In addition, senior citizens, like most people, rarely understand their individual tolerances to alcohol and how much alcohol consumption is required to be legally intoxicated. The science of alcohol elimination from the body also plays a role in a person’s BAC. Just as alcohol is absorbed in a person’s blood over time, it is also eliminated. Although each person has a unique metabolism rate, it is estimated that alcohol is eliminated from the body at the rate of .015% per hour after hitting a peak BAC.  At this rate, it takes an estimated 70 to 90 minutes, or longer, for the human body to eliminate a single drink. A single drink = 1.5 oz. shot of 80 proof hard liquor, a 5 oz. glass of wine (12% alcohol) or a 12 ounce beer (5% alcohol).  See hours to zero chart below:

HOURS TO ZERO

Once behind the wheel of a car after consuming alcoholic beverages, ignorance of the law is not a excuse and the law enforcement officials do not discriminate even for those individuals that have never been in trouble.

Representing OWI Offenders in Macomb County

Getting charged with an OWI is a horrible ordeal. Being arrested and spending the night in jail is something that most of our clients have never experienced and don’t easily forget. Getting past these traumatic events requires an action plan by attorneys that specialize in handling  Macomb County drunk driving cases. There are different degrees of operating while intoxicated and various factors that can result in more serious criminal charges. A simple first offense OWI can turn into a “Super DUI” if the BAC is .17% or greater. Three lifetime offenses for operating under the influence is a felony that can carry five (5) years in prison. Our initial inquiry will usually consist of the following:

  • Prior record for driving under the influence and age of prior offenses.
  • Prior record for all other crimes, felonies and offenses involving alcohol and drugs.
  • Test results for alcohol, drugs.
  • Whether there was an accident involving property damage, injuries or death.
  • Was client cooperative with the police or involved in fleeing or resisting arrest.
  • Are any other charges being pursued such as fleeing, leaving scene of accident, driving while suspended.
  • Legal issues to explore: testing protocol, proof of operation, validity of traffic stop.

The Court Process in Macomb County

Drunk driving cases are crimes and the court process is governed by the rules of criminal procedure. A person charged with a crime is entitled to protection under the United States Constitution pursuant to the Bill of Rights. Whether it is a misdemeanor or felony drunk driving, the accused is entitled to discovery of all reports, test results, witness statements, accident reports and video/photographic evidence. In addition, the accused is entitled to a trial by jury. The following is a basic framework of the court process in Macomb County for OWI cases:

  • ARREST: Misdemeanor OWI: The accused is held in jail until BAC drops and then released with legal papers after posting a bond. Attorney can waive formal arraignment in court.
  • ARREST: Felony OWI: The accused is held in jail and appearance is required for formal arraignment before a judge or magistrate.
  • Arraignment: May be waived by attorney for misdemeanor OWI in most Macomb County Courts. An appearance is mandatory for felony OWI and an attorney’s presence is required. An attorney can often save a person from having to use the services of a bondsman. Upon arraignment, bond conditions are also imposed that testing and travel restrictions.
  • Blood Draw: The accused may be formally charged pending blood results or released and later charged when the blood test results are returned. It can take several weeks and sometimes months for blood tests to be returned.
  • Discovery: The process of obtaining all evidence in a criminal case. Discovery may also include an independent investigation, accident reconstruction, obtaining witness statements and obtaining independent analysis of breath or blood samples.
  • Pretrial Conference:pretrial conference is a meeting between the  defense attorney and the prosecutor. The majority of cases in Macomb County, 90% or more, are resolved after one or more pretrial conferences.
  • Probable Cause Conference/Preliminary Examination: Probable cause conference and preliminary examination are proceedings that are scheduled for crimes that are classified as felonies. Similar to a pretrial conference, a felony can be resolved at the probable cause conference stage of a criminal case.
  • Motions: When a judge is needed to address a matter before trial, a motion is filed to make the request. These requests are often necessary when the prosecutor will not dismiss a defective case or certain evidence should be admitted or excluded.
  • Plea Bargain: A plea bargain usually means that the original charge has been amended or reduced to something much more favorable. A plea bargain can occur at any stage of a criminal case even during a trial. The prosecutor will consult with any victim and arresting law enforcement officer to get approval for certain plea bargains. A plea bargain may fall apart if the victim or law enforcement officer do not
  • Trial: The prosecutor is required to prove the accused guilty beyond a reasonable doubt (this applies to all crimes and drunk driving).
  • Substance Abuse Evaluation and /or Presentence Report: A substance abuse evaluation is MANDATORY If the accused if found guilty or pleads guilty to operating while impaired or intoxicated. A presentence report is mandatory if convicted of any felony.
  • Sentencing Phase: At the sentence stage, the court will hear from the probation department, prosecutor, defense attorney, defendant and any victim that may be involved.

What about driving under the influence of marijuana?  

The question is whether someone can be charged with driving under the influence of marijuana since it i now legal in Michigan for medical  and recreational use. The answer to this question is YES.

Unlike drunk driving which has established legal limits (OWI = .08 or greater, Super OWI = .17 or greater) and equipment (breathalyzer) to measure an individual’s blood alcohol content (BAC), no such legal limits (THC nanogram levels) or testing instrument has been approved for marijuana. Currently, police utilize blood to test for marijuana and drugs. Future testing is likely to include breath equipment capable of testing for marijuana.

Michigan laws are in a state of flux regarding the offense operating under the influence of marijuana.  The court system is left with different rules for those that have medical marijuana cards and those without. In general, the blood test results (THC nanogram levels) alone are insufficient to convict without other proof of impairment. There are a multitude of legal challenges that can be made in these cases especially when the blood test does not account for active THC or there is a lapse in time when marijuana was last used.

What can someone charged with an OWI expect in the Macomb Courts?

Getting a dismissal is a top priority in every criminal or drunk driving case. Depending upon several factors in a given case, we may recommend fighting the case at trial, seeking a deviation request (for a reduction) or negotiating a plea bargain. Recent statistics indicate that approximately 90% or more of all criminal and drunk driving in the United States are resolved by plea bargaining. Our Macomb County district courts are no exception.  Plea bargaining can result in reduction in the charges as well as recommendations for leniency at the sentencing phase of the case.

The following are the most significant variables that come into play during negotiations (plea bargaining) and sentencing:  offender’s prior criminal and drunk driving record, test result scores and whether there was an accident. Being uncooperative with law enforcement officers during the arrest process can also be a negative barrier to negotiations and the final outcome of a criminal case.

In general, those with a bad record, have scored high on drug/alcohol tests and have been in accident (especially with an injury), will have a more challenging case than someone with a clean record, low test results and no accident.

-No prior record, no Accident, low BAC (under .16), no substance abuse problem, cooperative with police: I would call this best case scenario. A person charged in Macomb County with an OWI in this position is likely to get a reduction to “impaired driving” with a sentence as follows:

    • Fines/costs range from $900.00 to $1500.00, depending upon the court.
    • 1 year probation (a strong argument can be made for non-reporting probation.
    • Testing is likely in most Macomb County County courts.
    • Community service is unlikely in most Macomb County courts.
    • Attending some form of counseling is likely in most Most County courts (usually a short program consisting of 1-8 sessions).
    • Most Macomb County judges will consider modification of probation and testing requirements if there has been at least 6 months or more of compliance.

-Super OWI, High BAC (.17 or greater): Getting charged with OWI with a high blood alcohol content (BAC) of .17 or greater in Michigan means stiffer penalties and being labeled a “super drunk driver”. For whatever reason, we are seeing a greater number of clients charged with “super drunk driving”. In 2018, approximately 660 individuals were tested by  the police in Warren, Shelby Township, Sterling Heights and Clinton Township with 301 registering a BAC of .17 or greater. If convicted of “super drunk driving”, the offender is required to have a Breath Alcohol Ignition Interlock Device (BAIID) on any vehicle he or she intends to operate for a period of 320 days after serving out a 45 day driver’s license suspension with no driving privileges.

The challenge in High BAC cases is to get the charge reduced to an offense with a lesser stigma and penalties, such as OWVI (operating while impaired) and to convince the judge that our client does not have a drinking problem. You increase your chances of doing so by getting an attorney that knows the local court system and has experience handling super OWI cases in Macomb County. Unfortunately, an attorney that does not know the system or lacks experience can be a costly mistake.

-OWI Second Offense within 7 Years: Along with possibility of jail, a second offender faces mandatory license revocation upon being convicted of a second drinking and driving offense within a period of 7 years or a third conviction within a 10 year period. There are NO driving privileges allowed during a period of revocation. For those facing license revocation, driving privileges can be saved if the person is accepted in a Sobriety Court program. The Sobriety Court program allows eligible individuals convicted of certain drunk driving offenses to obtain a restricted driver license with installation of an ignition interlock device (BAIID) on vehicles they drive and own. There are Sobriety Court programs in Clinton Township, Roseville and Warren and other courts that are in the process of getting grants for these programs. You may be eligible to apply for Sobriety Court in one of these courts if you are charged with an OWI second offense in a court that does not have a Sobriety Court program.

-FELONY, Third Lifetime Offense Operating While Intoxicated or Impaired: A person convicted of OWI with two prior offenses in his or her lifetime faces the following penalties:

  • $500 to $5,000 fine, and either of the following:
    • 1 to 5 years imprisonment
    • Probation, with 30 days to 1 year in jail.
  • 60 to 180 days community service.
  • Driver’s license revocation and denial if there are 2 convictions within 7 years or 3 convictions within 10 years. The minimum period of revocation and denial is 1 year (minimum of 5 years if there was a prior revocation within 7 years).
  • License plate confiscation.
  • Vehicle immobilization for 1 to 3 years, unless the vehicle is forfeited.
  • Possible vehicle forfeiture.
  • Vehicle registration denial.
  • 6 points added to the offender’s driving record.

You may think the odds are against you if you are charged with an OWI 3rd (felony) but that is not necessarily the case. If you find yourself in this position, you need to a solid action plan for the best chance to get the felony dropped down to a misdemeanor in the court system. In avoiding a felony, our clients have been able to avoid jail, retain their right to own firearms, retain driving privileges, retain valuable career licenses and not be labeled a felon!

Fighting for non-reporting probation, no testing, a limited counseling program (1 day class) and other leniency are realistic goals for individuals that qualify as isolated offenders and do not display a problem with alcohol.

Collateral Consequences of a OWI Conviction

  • CPL rights: A person convicted of a drunk driving offense (either OWI or impaired driving) will lose CPL rights for 3 years. There are no exceptions to this rule.
  • Felon may not Possess a firearm: A person convicted of a felony many not own or possess a firearm pursuant to both Federal and State of Michigan laws. Possession of a firearm by a felon constitutes a felony punishable by up too 10 years in prison.
  • Canada inadmissibility:  Based upon Canadian immigration laws, a person that has been convicted of driving while impaired by alcohol or drugs will probably be found criminally inadmissible to enter into Canada. Under certain circumstances, this harsh restriction may be overcome by showing of rehabilitation or obtaining a permit.
  • Police response costs:  In recent years, the costs incurred by the responding police agency are subject to collection for a person charged with a drinking and driving offense. I have seen these costs run anywhere from $300.00 to $600.00.
  • Expungement: The process of expungement (setting aside a conviction) is controlled by rigid rules in Michigan. Unfortunately, all traffic and drunk driving cases are ineligible for expungement. There are no exceptions to this rule.

Can a drunk driving case ever be completely dismissed?

I am sure you are wondering whether a drunk driving can be completely dismissed. There are various legal avenues that can be pursued which may result in a dismissal, major reduction or not guilty verdict of a drunk driving case which include: filing a deviation request, filing a motion to dismiss and/or proceeding to a trial.

Deviation request:  A deviation request is a formal request with supportive material to seek a favorable outcome when the policy of the prosecutor otherwise is against any plea bargain. Our firm utilizes deviation requests extensively in our criminal and drunk driving cases when a client has several positive factors and we feel that the prosecutor will consider a compassionate outcome.

Motion to Dismiss:  Many cases can be won prior to trial with a properly drafted and researched motion to dismiss. A motion to dismiss can be filed for a number of reasons including:

  • Suppression of test results (failure to follow protocol in the testing process).
  • Failure to establish an element of the crime (such as operation of the motor vehicle, parked vehicle).
  • Invalid traffic stop.

A motion to dismiss may also result in a plea bargain when the prosecutor does not want to run the risk of holding a hearing on a motion to dismiss.

Trial: Any person accused of a crime, including drunk driving offense, is afforded the right to a trial by the 6th Amendment to the United States Constitution. A trial may be held before a judge or jury. The judge or jury  is required to return a verdict of not guilty unless the case is proven beyond a reasonable doubt.

Continue reading ›

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Drug Crimes, Assault Crimes, Theft Crimes Highest on the List of Most Frequent Felonies in Michigan

Being accused or charged with any crime, misdemeanor or felony, is a serious matter requiring the expertise of a criminal defense lawyer. A crime classified as a felony is invariably worse than a petty crime or misdemeanor. A felony is defined as an offense that can carry more than 1 year in jail up to life in prison. If the offense carries 1 year or less in jail, it is classified as a misdemeanor.  In addition to the possibility of jail/imprisonment, felonies have other consequences including: loss of rights to own or possess firearms, up to 5 years probation, possible term of imprisonment, international travel restrictions and the stigma of a felony conviction.

While researching cases, we came across an  article written by the Michigan Bar Association regarding the Top 50 Felonies Most Frequently Charged in Michigan in the State of Michigan. This list of cases also is consistent with the caseload that our Macomb County criminal defense lawyers see on the dockets of courts located in Macomb, Oakland, Wayne and St. Clair counties.

With more than 40 years experience specializing in criminal defense, I can say that the majority of our clients facing felony charges have never committed a prior felony and the underlying conduct supporting the felony charge does not involve egregious misbehavior.  Nonetheless, a felony charge is possible even for offenses involving simple possession or when a theft involves property valued greater than $1,000.00.

Top Felonies in the Metro-Detroit Courts

Pursuant to the Michigan Sentencing Guidelines, felonies are 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

 

Below is a list of the most prevalent felony crimes that we routinely handle in the Metro-Detroit courts and that also that fall within the top 50 felonies in Michigan.

Crime Statistics for Macomb County

The Michigan State Police maintains annual crime reporting statistics for each county in the State of Michigan. For 2017, approximately 50,000 crimes were reported in Macomb County. As criminal defense attorneys in Macomb County, these statistics are meaningful in various ways. The economy, social influences (“me too”), crime waves and police practices are all factors that can have a bearing on crime reporting. Statistics indicate that all larcenies constitute the largest number of crimes reported. Nearly 10,000 larceny related crimes reported which include the following:

  • Larceny from a building
  • Larceny from a motor vehicle
  • Larceny misdemeanors (under $1,000) and Larceny felonies (over $1,000)
  • Theft of motor vehicle parts and accessories

Retail fraud (shoplifting) offenses are not included in the above statistic. Separately, approximately 2,500 retail fraud cases were reported in Macomb County for 2017. Retail fraud is classified as a misdemeanor when the amount involved is under $1,000 and a felony if the amount involved is $1,000 or more. The cities in Macomb County that reported the highest number of retail fraud for 2017 were: Roseville (536), Warren (463), Sterling Heights (425), Chesterfield Township (265)  and Clinton Township (209). The numbers for these cities are not surprising considering that these areas all have large retail centers and stores (Target, Meijer, Kohl’s, Costco, Sam’s, Walmart) within their jurisdiction.

Drug Residue or $1.00 more than $999.00 May Lead to a Felony Charge!

DRUG CRIMES: Simple possession of drugs tops the list of felony crimes in Michigan. The drug crime of possession of marijuana is classified as a misdemeanor.  As I have stated, a felony charge may be lodged for unintended behavior. For example, a person may be charged with felony possession of drugs when a police search reveals a minuscule quantity of drug residue. Felony charges can be prosecuted even though the drug residue is unusable, un-measurable and is scraped from a pipe or from the carpet of a vehicle. In researching this matter, I found that the prosecutor in Harris County, Texas has a adopted a policy to avoid prosecuting those found with drug residue. While this is a step in the right direction, Michigan has not adopted this policy. In addition to residue cases, drug charges may be brought against an innocent passenger of a motor vehicle because drugs are found in a compartment or area of the vehicle within reach, possession or view of the passenger(s).

THEFT & PROPERTY CRIMES: Several other felony crimes fall within the theft offense, or property crime category, including retail fraud, embezzlement, credit card fraud, uttering and publishing. A crime can be elevated from a misdemeanor to a felony without any intent or deliberation to wind up in that position. For example, if a theft related offense (embezzlement, retail fraud 1st degree) involves a claim of loss of $1,000.00 or more, the prosecutor will bring a felony charge. If the amount of loss is $999.00 or less, it is a misdemeanor. The danger and concern that exists is when the alleged victim makes a claim that is greater than the actual loss. Not all property crimes are dependent upon the property value. Crimes such as uttering and publishing, credit card fraud, larceny in a building, larceny from a motor vehicle constitute felonies without regard to the value of property misappropriated. Michigan State Police statistics for 2017 indicate that more than 7,000 crimes relating to larceny were reported in Macomb County.

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Detroit Experiencing Vast Economic Growth: Destination for 4.3 Million Metro Detroiters, Canadians and Tourists

The 36th District Court is by far the busiest district court in the State of Michigan. It has a single location at 421 Madison, Detroit, Michigan 48226. There are 30 judges at this location that have demanding criminal, drunk driving and traffic dockets.

The City of Detroit is amid major economic growth.   Detroit’s growth includes a real estate boom, renovations of historic structures, updated infrastructures and housing developments.  The downtown area and surrounding neighborhoods are experiencing an influx in population which is likely to continue for several years to come.  The City of Detroit is also attracting visitors from the Metro-Detroit suburbs (4.3 million), Canada and other regions to places like the Eastern Market, Greektown, Midtown, Little Caesars Arena, Fox Theatre, Belle Isle, museums, casinos, festivals, concerts and restaurants.  In addition, all of Detroit’s 4 professional sports teams (Tigers, Lions, Red Wings, Pistons) now have stadiums in downtown Detroit.

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MAP OF MACOMB COUNTY DISTRICT COURTS

Eastpointe and Roseville Courts: Bulging Criminal, Drunk Driving and Traffic Dockets

The 38th District Court (known as the Eastpointe Court) and the 39th District Court (known as the Roseville Court), are neighboring district courts in the southeastern part of Macomb County. Districting is based upon several factors which include density and traffic. As the above map illustrates, these districts are relatively small in relation to other districts in Macomb County. They cover a combined geographic area of approximately 20 square miles, compared to the 42-1 District in Romeo which encompasses an area of 180 square miles.

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MACOMB COUNTY DISTRICT COURT MAP 

The 42-1 District Court is located at 14133 33 Mile Road, Romeo Michigan 48065

The 42-1 District Court’s physical jurisdiction covers 180 square miles in northerly Macomb County which includes the City of Romeo, Washington Township, Armada, Richmond, Memphis, Ray Township and Bruce Township. The 42-1 District Court, also called the ‘Romeo Court’ has jurisdiction over more land mass in Macomb County than any other district court. Judge Dennis Leduc is the presiding judge of the 42-1 District Court. The 42-2 District Court, also known as the ‘New Baltimore Court‘, covers the remainder of the 42nd District.

Here are a few things that you should know if you are charged with a DUI, traffic ticket or criminal charge in the Romeo Court:

  • All fines and costs are due on the date of sentence with few exceptions.
  • Alcohol and drug testing is used extensively.
  • All DUI cases are referred for a substance abuse evaluation.
  • Most criminal cases require a probation interview prior to sentencing.
  • Drug crimes and other crimes will be considered for deferrals where dismissals can be earned after a period of probation. This is discussed in more detail below.

There are several police agencies within the 42-1 District Court jurisdiction. The Macomb County Sheriff’s Department has the largest presence in the northerly region of Macomb County. Other law enforcement agencies within this jurisdiction include the Romeo Police, Richmond Police and the Michigan State Police North Post.

The northerly region of Macomb County, is a blend of rural and suburban living. It is also experiencing economic expansion at every level. Expansion is most notable in Washington Township which is on the southerly border of the 42-1 District.  The very essence of expansion equates to an increase in population, retail development and added traffic volume.

Criminal Cases in the 42-1 District Courts: Provisions of Law to Get Dismissals Available!

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 42nd District Courts in Romeo and New Baltimore. The following is list of some of the most prevalent cases that we regularly see on the 42-1 District Court docket:

 The 42-1 District is a conservative district.  Judge Leduc runs a tight ship and his Court is run very efficiently.  Judge Leduc likes to see the presence of family members in the courtroom and will ask for their input regarding those that appear before him.

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 42-1 District Court, you will appear either before a magistrate or judge.  Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at an arraignment hearing by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail. Drug and alcohol testing are common bond conditions for those charged with any crime involving drugs or alcohol. A ‘no-contact order‘ is assured in assault cases, domestic violence, sex crimes and all other crimes involving a victim. In retail fraud cases, the accused party may be instructed to refrain from entering the establishment where the alleged shoplifting occurred. A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

Misdemeanor or Felony Classification: In Michigan, the district courts have full jurisdiction to dispose of misdemeanors through sentencing. A misdemeanor is classified as an offense that carries up to 1 year in jail.  Felony cases are another matter. A felony is classified as a crime that can carry more than 1 year in jail. A felony case is initiated in the district court for the arraignment, probable cause conference and preliminary examination. A felony that is not resolved in the district court will be moved to the circuit court for further proceedings. In certain cases, a felony can be reduced to a misdemeanor and can remain in the district court. Accomplishing reduction of a felony to a misdemeanor, thus avoiding a felony conviction, is considered a huge victory.

The outcome of a criminal case in the 42-1 District Courts, as well as other Macomb County District Courts, is dependent upon many components.  The most significant factors that can have a bearing on the disposition of a case are:

  • Prior criminal history of the accused party.
  • Cooperation with the police.
  • Whether another party was injured, or property was damaged.
  • The ability of the accused party to provide restitution for damages to the injured party.
  • Whether the offense is a ‘policy case’ (crimes against senior citizens, children

We have utilized each of these special provisions of law in the 42-1 District Court which can result in a dismissal of a criminal matter:

Even individuals that have a prior criminal record will be given respect and consideration for plea deals to get a dismissal under certain circumstances.

Drunk Driving Cases in the 42-1 District Court

1st offense drinking and driving:  For most first time drinking and driving (and drugged while driving) offenders, jail is not likely absent some other aggravating circumstances. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program (discretionary)
  • Possible drug testing, alcohol testing, AA meetings (discretionary)
  • 4 points on driving record

Super Drunk Driving: If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense. Super DUI convictions will result in mandatory license suspension for 45 days followed by a restricted license for a period of 320 days with the requirement of a vehicle breathalyzer ignition interlock device (BAIID). The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of any drinking and driving offense.

Repeat DUI Offender: A repeat drinking and driving offender may be looking at a longer period of probation, up to 2 years, with the possibility of some jail time.  There are many steps that we can recommend to those charged with a repeat offense to reduce the likelihood of incarceration in almost every Macomb County court.

Third Lifetime DUI = Felony: DUI 3rd is a felony/with a maximum penalty of 1-5 years in prison.  Felony matters begin in the district court and can remain in the district court for purpose of sentencing and probation if reduced to a misdemeanor. Felonies that are not resolved in the district court are handled in the Circuit Court after the probable cause conference or preliminary examination. We evaluate every DUI 3rd for opportunities to get it reduced to a misdemeanor by filing strategic legal motions, negotiations and filing a deviation request.

The 42-1 District Court Probation Department: 14133 33 Mile Road, Romeo Michigan 48065

The 42-1 District Court has its own probation department located in the courthouse.

It is within the judge’s discretion whether to place an individual on probation after being convicted of a criminal or drunk driving offense. In many cases that qualify as isolated incidents, we may be able to convince the judge that probation, also known as community supervision, is not necessary. When probation is imposed, the judge may require reporting or non-reporting probation.  The maximum period of probation that can be imposed in the district courts is 2 years. However, our experience is that probation is rarely imposed for more than 1 year for most first-time offenders.

Traffic Violations in the 42-1 District Court: Reduced to Avoid Points and Record of any Conviction!

Several police agencies have an active presence monitoring the activity of vehicular traffic within the jurisdiction of the 42-1 District Court.  Like other district courts in Macomb County, I would say that traffic tickets are on the top of the list of types of cases that are litigated at the 42-1 District Court. When resolving a traffic matter in the 42-1 District Court, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer and wind up with a record and points that will have an impact on insurance premiums for several years. The path of least resistance, paying the ticket, can be much costlier in the long run.

Court Personnel are Forbidden to Give Legal Advice: Yet most courts are making it easier than ever to just pay your traffic ticket by visiting the court’s website and giving offenders the convenient option to pay by credit card.  What they won’t tell you on their website is that you will get points on your driving record and that you may will wind up with higher insurance premiums for several years. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer. The path of least resistance, paying the ticket, can be much costlier in the long run.

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St. Clair County borders Macomb, Lapeer and Sanilac Counties and is just a short distance (via the Blue Water Bridge) to Sarnia, Ontario, Canada. There are several recreational attractions in this area, major events (Port Huron to Mackinac Race, Port Huron Float Down, Jobbie Nooner) and many that choose to live in St. Clair County because of its charm and proximity to the St. Clair River and Lake Huron. If you are charged with a crime, get in trouble at the border (Blue Water Bridge or ferry crossing) or are caught driving under the influence (DUI, OWI)  in St. Clair County, your case will be heard at 72nd District Court with locations in Port Huron and Marine City.  The 72nd District Court bench are protective of their communities.

Google Maps Link for Directions to 72nd District Courts

The 72nd District Court has 2 locations in St. Clair County with jurisdiction to handle criminal and drunk driving matters which occur in this region.

72nd District Court (Port Huron)
201 McMorran Blvd.
Room 2900
Port Huron MI 48060

72nd District Court (Marine City)
2088 South Parker (M-29)
Marine City, MI 48039

St. Clair County Serviced by State, Local and Federal Law Enforcement Agencies

There are several active law enforcement agencies in St. Clair County (St. Clair County Sheriff’s Department, Michigan State Police, Department of Natural Resources, Homeland Security, US Coastguard, US Customs) which have the responsibility of keeping order in an area with an international border with Canada, miles of waterfront property and that hosts recreational activities which often involve boating, crowds and alcohol.

72nd District Courts: Resolution of Criminal & Drunk Driving Cases in Court with Jurisdiction for the Entire County of St. Clair

Dealing with any court proceeding can be an intimidating experience without the guidance of an attorney. By saying the wrong thing without proper representation, you could end up having your case scheduled for jury trial and miss an opportunity to get out of the system.  If you find yourself in this position, getting experienced attorney is crucial to navigate you through the maize of options in the judicial system.

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 72nd  District Courts. The following is list of the most prevalent cases that we regularly see on courts’ dockets:

Getting out on bond, bond conditions: If you are arrested or arraigned for a criminal matter in the 72nd District Court, you will appear before either a magistrate or judge.  Insofar as possible, it is always advisable to have an attorney present for an arraignment hearing to advocate for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. In addition to the cash component of bond, the Court can also impose bond conditions and restrictions which can include: travel restrictions, no-contact order, drug and alcohol testing. A no-contact order is assured in domestic violence, stalking, assault and sex crime cases.

Misdemeanor or Felony Classification: In Michigan, the district courts have full jurisdiction to dispose of misdemeanors through sentencing. A misdemeanor is classified as an offense that carries not more than 1 year in jail.  Felony cases are another matter. A felony is classified as a crime that can carry more than 1 year in jail. A felony case is initiated in the district court for the arraignment, probable cause conference and preliminary examination. A felony that is not resolved in the district court will be moved to the St. Clair County Circuit Court in Port Huron for further proceedings. In certain cases, a felony can be reduced to a misdemeanor and then remain in the district court. Accomplishing reduction of a felony to a misdemeanor, thus avoiding a felony conviction, is considered a huge victory.

The outcome of a criminal case in the 72nd District Courts is dependent upon many components.  The most significant factors that can have a bearing on the disposition of a case are:

  • Prior criminal history of the accused party.
  • Cooperation with the police.
  • Whether another party was injured, or property was damaged.
  • The ability of the accused party to provide restitution for damages.
  • Whether the offense is a ‘policy case’ (crimes against senior citizens, children)

All these special provisions of law are possible in the 72nd District Courts which can result in the ultimate dismissal of a criminal matter:

Non-Resident or Canadian: If you reside outside of Michigan, consider getting an attorney that is experienced with the 72nd District Court system and will provide you with efficient representation.

High Number of Drunk Driving Cases in the 72nd District Courts

Based upon 2016 statistics, the St. Clair County Sheriff administered 118 breath tests and 86 blood tests for operating under the influence of alcohol or drugs. The Port Huron police were in second place with 107 breath tests and 43 blood tests. Blood tests are administered to determine the presence of drugs, as a primary test for alcohol in lieu of a breath test or court ordered when a party refuses to give a breath sample. From a total of 354 tests reported by these police agencies (not including other agencies from Clay, Marysville etc.), 131 tests registered a blood alcohol content (BAC) of .08 or greater (OWI) and 108 test results scored a BAC .17 or greater. Operating with a BAC of .17 or higher constitutes a more serious offense commonly referred to as Super Drunk Driving.

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ESTIMATION OF BLOOD ALCOHOL CONTENT (BAC)

1st offense drinking and driving:  For most first time drinking and driving offenders, jail is not likely absent some other aggravating circumstances in the 72nd District Courts. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less (non-reporting is possible)
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days (mandatory by Secretary of State)
  • Possible alcohol or substance abuse program
  • Possible drug testing, alcohol testing, AA meetings
  • 4 points on driving record (mandatory by Secretary of State)

Super Drunk Driving: If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense. Super DUI convictions will result in mandatory license suspension for 45 days followed by a restricted license for a period of 320 days with the requirement of a vehicle breathalyzer ignition interlock device (BAIID). The Court can also order installation of a BAIID on any vehicle driven by a person convicted of any drinking and driving offense, not just a Super DUI.

Repeat DUI Offender: A repeat drinking and driving offender may be looking at a longer period of probation, up to 2 years, with the possibility of possible  jail time.  There are many steps that we can recommend to those charged with a repeat offense to reduce the likelihood of incarceration in the 72nd District Courts

Third Lifetime DUI = Felony: DUI 3rd is a felony/with a maximum penalty of 1-5 years in prison.  Felony matters begin in the district court and can remain in the district court for purpose of sentencing and probation only when reduced to a misdemeanor. Felonies that are not resolved in the district court are moved up to the St. Clair County Circuit Court after the probable cause conference or preliminary examination.

Felony cases are evaluated on a case by case basis in the early stages to determine whether a legal course of action can improve the prospects negotiating a reduction to a misdemeanor.

Court Personnel are Forbidden to Give Legal Advice: Court employees will not tell you if you are eligible to get a criminal charge or drunk driving reduced to a lower offense.  If you plead guilty without a lawyer, you will not be told that the matter could have been handled with a special provision of law to get it dismissed. The path of least resistance, pleading guilty without a lawyer, can be much costlier in the long run.

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‘Fleeing & Eluding’ and ‘Resisting or Obstructing’ the police are crimes that are classified as felony offenses in Michigan. These laws are meant to discourage conduct that endangers the public and the police who are engaged in the lawful performance of their duties. Our firm has seen an increase in fleeing and eluding cases, as well as resisting and obstructing cases, in Macomb and Oakland Counties. There are many reasons that are given by clients charged with these offenses. Some of the most prevalent reasons are as follows:

  • The offender is under the influence of alcohol or drugs, or a combination of both, and engages in risky behavior or irrational conduct.
  • The offender suffers from psychological disorders (PTSD, bi-polar disorder, ADHD), needs treatment or had an adverse reaction to medications.

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A Qualified DUI Lawyer Should Know the Law and the Science

Qualified DUI lawyers know the laws and the science that can make the difference in the defense of a DUI case. On the legal side, there are hundreds of complex laws, administrative rules, rules of evidence and trial procedure that are involved in the defense of a DUI case. An understanding of the science requires a working knowledge of alcohol and drug interaction with the body.

In this publication, we key in on aspects of the law and the science that comes into play with respect to DUI testing.

Michigan’s Implied Consent Law: Testing for drugs or alcohol if suspected of operating under the influence

Under Michigan’s Implied Consent Law, all persons with a Michigan driver’s license are considered to have given their consent to submit to testing upon the request of a law enforcement officer. Blood, breath or urine chemical tests are utilized to determine blood alcohol content (BAC) or the presence of drugs. Positive test results for illegal drugs, marijuana and prescribed medications are all fair game to support a charge of “operating under the influence of drugs” or “operating while impaired”.  Commonly, the police utilize the breathalyzer to determine a person’s BAC. If a person is extremely inebriated or incapacitated, a blood draw at a medical facility is often utilized and also to allow for medical treatment and detoxification if deemed necessary.

Michigan’s Implied Consent Law pertains to the chemical test offered by the police when you are arrested for a drinking or drugged while driving offense, such as:

  • Zero Tolerance for those Under Age 21 Operating with a BAC of .02 – .07
  • Operating while Intoxicated (OWI), BAC .08 or more
  • Operating with a High Blood Alcohol Content – BAC .17 or more (Super DUI)
  • Operating with any Presence of Drugs (OWPD) (cocaine, heroin, marijuana)
  • Operating Under the Influence of Other Drugs, including prescribed medications
  • Operating while Impaired

Michigan Drunk Driving Laws make the offenses of Zero tolerance (.02-.07), OWI (.08 or more) and Operating with a High BAC (.17 or more) presumptive crimes whereby intoxication is presumed based solely upon blood alcohol content, regardless of actual intoxication.

Search Warrant for Blood Test: If you refuse the chemical test offered by the police, the police may obtain a search warrant for a blood test. If a search warrant for blood is approved, you will be transported to a facility, such as a hospital, for a blood draw by a qualified person.

Your Right to a Second Test: If you take the test offered by the police, you are entitled to request a second test of your own choosing and expense. This right to a second test of your choice is forfeited if you have refused the test offered by the police. In some cases, a second test may be used as evidence to refute the first test obtained by law enforcement officers.

Sanctions for Refusal: If you refuse a test, six (6) points will be added to your driver record license will be suspended for one year. A suspension of a license, or non-resident operating privilege, is automatic for any refusal to submit to the test. This is a separate consequence from any subsequent convictions resulting from the traffic stop or drinking and driving charge. If you are arrested a second time in seven (7) years and again unreasonably refuse the test, six (6) points will be added to your driver record and your license will be suspended for two years. If you refuse to take the test under the Michigan Implied Consent Law, or if the test shows your BAC is 0.08 or more (Operating While Intoxicated) your Michigan driver’s license will be destroyed by the officer and a 625g paper permit to drive will be issued until further action by the State of Michigan as to your license.

Appeal Rights: The Implied Consent suspension may be appealed to the Driver Assessment and Appeal Division (DAAD). The request for hearing must be mailed within 14 days of the date of arrest or your operator’s or chauffeur’s license and vehicle group designation or operating privilege will be automatically suspended without a hearing. You are entitled to have an attorney present for this hearing. However, if you lose at this hearing, you have a right to appeal a first time implied consent suspension to the circuit court where the offense occurred and request a restricted license based upon hardship and need. You may also appeal based upon the merits of the decision of the DAAD hearing officer.

The Science of Blood Alcohol Content: Consumption, Absorption and Elimination

Both math and chemistry are at play in the determination of blood alcohol content (BAC).  Alcohol consumption is the first step in the process of alcohol entering the human body.  After taking a drink, alcohol first enters the digestive system. From the digestive system, it is absorbed into the blood. The process of elimination occurs over time whereby alcohol is dissipated from the blood. Alcohol absorption and elimination are influenced by several factors including weight, sex, metabolism, medications and consumption of food. For purposes of calculating blood alcohol content (BAC), most graphs consider a standard drink to be equal to:

  • Wine: 5 ounces with 12% alcohol content
  • Beer: 12 ounces with 5% alcohol content
  • Liquor: 1.5 ounces with 40% alcohol content (80 proof)

Alcohol testing (in connection with DUI cases) is accomplished by testing the blood, breath or urine of an individual. Analysis of blood is a direct method of testing for alcohol, while breath and urine tests are indirect methods. Alcohol graphs take three (3) major factors into consideration for purposes of estimating blood alcohol content (BAC). Those factors are number of drinks (based upon the above measurements) the body weight and the gender of the individual.

Gender: In general, women have less body water than men of similar body weight, so the result is higher concentrations of alcohol in the blood after drinking. In addition, women have a higher concentration of body fat than men. Body fat does not absorb alcohol, which results in a higher concentration of alcohol in the bloodstream as well.

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Absorption: The process of alcohol being absorbed into the blood from the digestive system can occur over a period of 30 to 60 minutes but can take up to 2 hours. The recent consumption of food prior to drinking alcoholic beverages can slow down the rate of absorption. In addition, the absorption rate is faster when higher alcohol content beverages are consumed.

Elimination: Like absorption, time is the major factor which has an influence on the elimination of alcohol from the blood. The average elimination rate for most drinkers is .010 to .015 per hour. Consumption of water does not have an impact on the elimination rate of alcohol. Ninety (90%) of alcohol is broken down or eliminated by the liver. The remainder is eliminated by breath, sweat and urine.

CLICK HERE: For additional information on the topic of alcohol absorption and elimination.

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41-A District Courts: 2 Courts Cover 108 Square Miles of Macomb County

Jurisdiction of the 41-A Districts: Sterling Heights, Shelby Township, Macomb Township, Utica

The 41-A District Court corridor encompasses the cities of Sterling Heights, Utica, Shelby Township and Macomb Township. These areas are in a period of strong economic growth and expansion. In these areas you will find industry, major retail shopping centers, Jimmy John’s Field, 7 Class A high schools, numerous bars and restaurants.  In this area you will also find the M-53 Expressway, Hall Road and other major roads which handle a massive amount of local, commuter and connector traffic. These areas have a reputation for being safe places to live and visit. However, the 41-A District Courts cover a huge area, growing population and a high volume of criminal, drunk driving and traffic matters on their dockets as I will discuss in this publication.

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MACOMB COUNTY DISTRICT COURT MAP

STERLING HEIGHTS DIVISION: 41-A District: 40111 Dodge Park, Sterling Heights, Michigan 48313:  The Sterling Heights Division of the 41-A District Court covers an area of 36 square miles with its borders from 14 Mile Road to Hall Road, and its east to west borders from Hayes to Dequindre Road. According to 2010 census records, the City of Sterling Heights has a population of approximately 130,00. The Sterling Heights court docket is managed by 3 elected judges. The Honorable Michael S. Maceroni, Stephen P. Sierawski and Kimberly A. Wiegand have long held these positions.

SHELBY TOWNSHIP DIVISION: 41-A District Court: 51660 Van Dyke, Shelby Township, Michigan 48316: The Shelby Township Division of the 41-A District Court also covers a 72 square mile area with jurisdiction over criminal, drunk driving and traffic cases that occur within Shelby Township, Macomb Township and the City of Utica.  Shelby Township and Utica have their own police departments. Macomb Township utilizes the Macomb County Sheriff Department to patrol its roads and provide law enforcement services. There is only 1 elected judge appropriated to the Shelby Township Division of the 41-A District which encompasses jurisdiction over a population of approximately 160,000. This is somewhat of an anomaly given the fact that 3 judges are assigned to the Sterling Heights Division which has a significantly lesser population and is half the size geographically. The Honorable Douglas P. Shepherd presides over the Shelby Township Division of the 41-A District Court. A new court building, which is long overdue, has been recently approved for the Shelby Township Division of the 41-A District Court.

Criminal Cases in the 41-A District Courts: Provisions of Law to Get Dismissals Available!

Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 41-A District Courts. The following is list of some of the most prevalent cases that we regularly see on the 41-A District Courts dockets in both Sterling Heights and Shelby Divisions:

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 41- A District Courts, you will appear either before a magistrate or judge.  Insofar as possible, it is always advisable to have an attorney present for arraignment purposes. An attorney can make a considerable difference at arraignment by advocating for a personal bond (where no money needs to be posted) or a for a low cash/10% bond arrangement. Most judges will listen to an attorney’s remarks regarding bond which can save potentially thousands of dollars that a bondsman would otherwise take.  In addition to the cash component of bond, the Court can also impose bond conditions upon a person’s release from jail. Drug and alcohol testing are common bond conditions for those charged with any crime involving drugs or alcohol. A ‘no-contact order‘ is assured in assault cases, domestic violence, sex crimes and all other crimes involving a victim. In retail fraud cases, the accused party may be instructed to refrain from entering the establishment where the alleged shoplifting occurred. A motion for a hearing can always be filed to modify bond conditions, remove a no-contact order or eliminate travel restrictions.

Misdemeanor or Felony Classification: In Michigan, the district courts have full jurisdiction to dispose of misdemeanors through sentencing. A misdemeanor is classified as an offense that carries up to 1 year in jail.  Felony cases are another matter. A felony is classified as a crime that can carry more than 1 year in jail. A felony case is initiated in the district court for the arraignment, probable cause conference and preliminary examination. A felony that is not resolved in the district court will be moved to the circuit court for further proceedings. In certain cases, a felony can be reduced to a misdemeanor and can remain in the district court. Accomplishing reduction of a felony to a misdemeanor, thus avoiding a felony conviction, is considered a huge victory.

The outcome of a criminal case in the 41-A District Courts, as well as other Macomb County District Courts, is dependent upon many components.  The most significant factors that can have a bearing on a case are:

  • The prior criminal history of the accused party.
  • Whether another party was injured or property was damaged.
  • Whether the accused party can provide restitution for damages to the injured party.
  • Whether the offense is a ‘policy case’ (crimes against senior citizens, children).

In our experience, criminal cases can be resolved favorably at the 41-A District Courts. Whenever possible, the judges in both divisions will accept dispositions to allow an offender the opportunity to get a dismissal under these special provisions of law: HYTA for youthful offenders (age 17 to 23), MCL 333.7411 for first time drug offenders and MCL 769.a for domestic violence. The court will also utilize a provision of law known as a deferral or delayed sentence which allows an offender leniency or a dismissal after a period of probation. Even individuals that have a prior criminal record will be given respect and consideration for plea deals to get a dismissal under certain circumstances.

Drunk Driving Cases in the 41-A District Courts: 215 DUI cases in 2016

Hall Road (M-59), M-53, Van Dyke, Dequindre, Schoenherr and Hayes are just a few of the major roads that are within the 108 square miles of the 41-A District Court’s territory. Statistics for 2016 reveal a high number of drunk driving arrests in this region with approximately 170 arrests in Shelby Township, 60 arrests in Utica and 193 arrests in Sterling Heights. Over 120 of the test results in Shelby Township and Sterling Heights alone registered a blood alcohol content of .17 or greater to support a charge of ‘Super DUI‘ or ‘OWI with a high BAC’.

DUI_Image

APPROXIMATE BLOOD ALCOHOL CONTENT (BAC) CHART

1st offense drinking and driving:  For most first time drinking and driving offenders, jail is not likely absent some other aggravating circumstances in the 38th and 39th District Courts. A person without any prior drinking and driving offenses can expect to get an OWI reduced to ‘operating while impaired’. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. In addition to probation, a person convicted for a first drinking and driving offense (operating while impaired) is looking at:

  • Probation for 1 year or less
  • Fines and costs approximately $1,200.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program (discretionary)
  • Possible drug testing, alcohol testing, AA meetings (discretionary)
  • 4 points on driving record

Super Drunk Driving: If a person is charged with Super DUI (BAC .17 or greater) a deviation may need to be filed to get a plea bargain to a lower offense. Super DUI convictions will result in mandatory license suspension for 45 days followed by a restricted license for a period of 320 days with the requirement of a vehicle breathalyzer ignition interlock device (BAIID). The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of any drinking and driving offense.

Repeat DUI Offender: A repeat drinking and driving offender may be looking at a longer period of probation, up to 2 years, with the possibility of some jail time.  There are many steps that we can recommend to those charged with a repeat offense to reduce the likelihood of incarceration in almost every Macomb County court.

Third Lifetime DUI = Felony: DUI 3rd is a felony/with a maximum penalty of 1-5 years in prison.  Felony matters begin in the district court and can remain in the district court for purpose of sentencing and probation if reduced to a misdemeanor. Felonies that are not resolved in the district court are handled in the Circuit Court after the probable cause conference or preliminary examination. We evaluate every DUI 3rd for opportunities to get it reduced to a misdemeanor by filing strategic legal motions, negotiations and filing a deviation request.

The 41-A District Court Probation Department: 40111 Dodge Park, Sterling Heights, Michigan 48313

The 41-A District Courts share the probation department located at the Sterling Heights Division. I expect the Shelby Township Division to have its own probation department once the new court building is up and running.

It is within the judge’s discretion whether or not to place an individual on probation after being convicted of a criminal or drunk driving offense. In many cases that qualify as isolated incidents, we may be able to convince the judge that probation, also known as community supervision, is not necessary. When probation is imposed, the judge may require reporting or non-reporting probation.  The maximum period of probation that can be imposed in the district courts is 2 years. However, our experience is that probation is rarely imposed for more than 1 year for most first time offenders.

Traffic Violations in the 41-A District Court: Reduced to Avoid Points and Record of any Conviction!

The Sterling Heights Police, Shelby Township Police, Utica Police, Macomb County Sheriff Department and Michigan State Police all have an active presence monitoring the activity of vehicular traffic within the 108 square miles of the 41-A District Courts.  Similar to other districts, I would say that traffic tickets are on the top of the list of cases that are litigated at the 41-A District Court.


HALL-ROAD-MAP

Shelby Township, Utica, Macomb Township and Sterling Heights share roads with the heavy traffic volume in Macomb County

When resolving a traffic matter in the 41-A District Courts, we are often able to negotiate a reduction or avoid points. A substantial reduction in a traffic ticket occurs when it is reduced to an offense such as impeding traffic or double parking. A traffic ticket that is reduced to impeding traffic or double parking does not carry any points and will never appear on a person’s driving record! We are also able to get favorable results for individuals charged with misdemeanor traffic offenses such as driving while suspended, reckless driving and leaving the scene of an accident.

Court Personnel are Forbidden to Give Legal Advice: Yet most courts are making it easier than ever to just pay your traffic ticket by visiting the court’s website and giving offenders the convenient option to pay by credit card.  What they won’t tell you on their website is that you will get points on your driving record and that you may will wind up with higher insurance premiums for several years. Unfortunately, most individuals that receive a traffic ticket do not hire a lawyer. The path of least resistance, paying the ticket, can be much costlier in the long run.

Link to Sterling Heights Points and Fine Schedule

Link to Shelby Township Points and Fine Schedule

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