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. When I refer to drunk driving, I am referring to the plethora of Michigan laws that cover operating a motor vehicle while intoxicated (OWI) or impaired (OWVI) after the consumption of alcohol, illegal drugs or prescribed medications. We admit that the drunk driving laws are convoluted. As I have stated in other publications, there are more laws on the books in Michigan for drunk driving than exist for the offenses of murder, kidnapping, burglary and rape combined. Here is a sample of Michigan laws presently in force that cover the offense of drunk (or drugged) 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 person charged with drunk driving invariably be asked these questions which pertain to the science of alcohol absorption and elimination from the blood:
- How many drinks were consumed (see below: 80 proof 1.5 ounce shot = 12 ounce 5% alcohol beer = 5 ounce glass of wine)?
- What was the alcohol percentage or proof of the beverage consumed?
Since the passage of Heidi’s Law in Michigan in 2007, a person is subject to felony prosecution for three (3) or more lifetime convictions for any combination of:
- OWI/operating while intoxicated-alcohol with a BAC of .08 or greater,
- OUID/operating under the influence of drugs/prescription medications,
- OWPD/operating with the presence of Schedule 1 controlled substance,
- Super drunk driving/operating with a high BAC of .17 or greater,
- OWVI/operating while impaired driving,
- Zero Tolerance/under 21 with any BAC (0nly 1 such conviction may be counted towards a felony).
Driving under the influence convictions which occur in states outside of Michigan are also counted. This law has been on the books for several years and all states have adopted this law. However, prior to the passage of this Heidi’s Law, a person could only be charged with felony drunk driving if the prior convictions occurred within 10 years of the new arrest. This blog will explore legal defense strategies, possible penalties and other ramifications associated with a felony DUI offense. For additional information: 2016-2017 Macomb County Drunk Driving Update.
Obtaining an experienced felony drunk driving lawyer is imperative at the earliest possible opportunity
A third time drunk driving, felony conviction, is a serious matter. A person will lose many rights afforded to United States citizens upon obtaining any felony conviction. For example, a person convicted of a felony, including felony DUI, may never be in possession of a firearm pursuant to both state and federal laws. There are also serious employment, educational and social stigmas and consequences associated with a felony record. Hiring a lawyer that lacks experience or confidence handling felony matters can be a dreadful mistake. Felony lawyers will first look at every possible angle to get the charge dismissed or reduced to lower offense. For example, we know from experience that a felony charge in Macomb County (including felony drunk driving) may be reduced to a misdemeanor under certain circumstances. In addition, felony lawyers also know what to expect from judges and prosecutors in the jurisdiction where they practice. There are numerous other legal proceedings applicable to felony cases that require expertise such as deviation requests, motion practice and a complete understanding of the Michigan Sentence Guidelines.
Penalties for felony-third lifetime conviction for drunk driving or any combination of OWI, OWVI, OUID, Under 21 with BAC
The penalties for a third driving conviction involving alcohol or drugs are as follows:
- 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 any felony driving offense. 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 .
- Points: 6
*There is NO ATTORNEY IN THE ENTIRE STATE OF MICHIGAN that can guarantee that you won’t get jail upon conviction for a felony drunk driving (OWI 3rd) because Michigan’s drunk driving statute requires a mandatory term of incarceration upon conviction. However, there is a safety net which our attorneys have advocated when jail (30 days minimum) is combined with probation and community service. A request can be made for work release or for jail to be served on weekends. In addition, jail is not mandatory if the felony is reduced to a misdemeanor!
Proving Drunk Driving: Actual intoxication is irrelevant when test results are .08% or greater
The elements of a drunk driving which the prosecutor must prove are:
Intoxication or Impairment by alcohol, drugs or marijuana: In Michigan “Operating While Intoxicated” (OWI) means operating a motor vehicle while under the influence of alcohol and/or drugs (OUID) to a degree that renders one unable to safely drive a vehicle. In Michigan, OWI convictions can be obtained regardless of actual intoxication if a person has a BAC of .08% or greater or tests positive for the presence of certain Schedule 1 drugs. Pursuant to MCL 257.625, “operating while intoxicated” means any of the following:
(a) The person is under the influence of alcoholic liquor, a controlled substance, or other intoxicating substance or a combination of alcoholic liquor, a controlled substance, or other intoxicating substance.
(b) The person has an alcohol content of 0.08 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine, or, beginning October 1, 2018, the person has an alcohol content of 0.10 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
(c) The person has an alcohol content of 0.17 grams or more per 100 milliliters of blood, per 210 liters of breath, or per 67 milliliters of urine.
Proof of operation of vehicle: 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 at some point in time. In other words, evidence of recent operation will suffice in cases where there is an accident or when a vehicle in a ditch or off the road).
Legal traffic stop: A traffic stop may be based upon any violation of any Michigan traffic laws. Drivers are often stopped for straddling lane markers, weaving between lanes, driving at excessive or very slow speeds, braking erratically, obstructed vision, defective equipment and coming in close contact with objects or other vehicles. The police may also approach a person that is found fixing a flat tire on the shoulder of a road although nothing illegal is occurring! Cellular phone calls to the police may also be used to give law enforcement officers with notice of a drunk driver’s whereabouts. The caller may be eventually be called as a witness.
Planning a defense strategy for felony drinking and driving
Our goals in every criminal case, including drunk driving, are always the same: avoiding of a conviction and avoiding jail! While avoiding a conviction or jail 100% of the time is not realistic even for experienced criminal defense lawyers, steps can be taken to get a case under control, reduce charges and obtain the lowest possible sentence.
Police Report: The police report can be obtained soon after we are retained for a criminal matter. By law, the prosecutor is required to provide full disclosure (known as discovery) of the report, videos and test results. Refuting the accuracy of tests, intoxication and grounds for the traffic stop are ways in which a drunk driving charge may be challenged. An aggressive drunk driving defense may also include:
- Interviewing any possible witnesses (passengers, last persons who could testify as to client’s sobriety)
- Obtaining an expert witness to challenge blood or alcohol test results (especially in close cases or cases involving prescription meds or THC levels)
- Recreating the scene of the traffic stop
Client Background: Obtaining a complete personal history of our client is essential in the preparation of a sound legal defense. In our experience, the positive background of a person can make a vast impression on the prosecutor, the probation department and the assigned judge during various phases of a criminal case.
- Education, degrees, special skills
- Employment, years at employment, position, awards
- Family situation, child support obligations
- Military duty, tours of service, decorations, honorable discharge
- Charitable service, community involvement
- Other awards, achievements, recognition
- Past and present physical health, mental health, psychological attention, medications
- Past and present substance abuse/alcohol treatment, in-patient care, attendance of AA, relapse prevention programs
Criminal History: In addition to the personal history, the lifetime criminal conviction history also plays a vital role in the criminal process of a drunk driving offense. We can usually minimize the value of extremely old criminal offenses.
- Misdemeanors (including traffic related misdemeanors)
- Juvenile record
- Drinking and drug convictions (disorderly conduct, domestic violence, MIP, possession of marijuana, etc)
Habitual Felony Offenders: For felony convictions, Michigan judges are required to follow the Michigan Sentencing Guidelines. The guidelines factor in prior convictions and felonies for purpose of scoring a sentence range. Prior felonies will be used to label an offender as a habitual offender. A person with 1 prior felony is considered a “habitual offender 1” or Hab-1st. Habitual offender status can go as high as Hab-4. The maximum penalty for a person with Hab-4th status (meaning the person has 3 prior felonies not counting the charged felony) is up to life in prison.
Other Relevant Factors: The following factors may influence the outcome or sentence of a felony drunk driving:
- Is the person charged with a *true 3rd DUI offense (meaning the offender has only 2 prior DUI lifetime convictions)?
- Are any of the prior drinking & driving offenses 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) in a close range to .08% or is it extremely high (over .17%)?
- 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 offenders with more than two (2) prior lifetime DUI offenses. Public policy, accidents involving injuries and directives by the County Prosecuting Attorney may have an impact on plea bargaining drunk driving cases.
Possible outcomes of a drunk driving felony
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 all other criminal offenses) in Michigan are resolved based upon a plea bargain. In fact, recent statistics indicate that over 90% of all criminal cases are resolved by a plea bargain and not by trial.
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. However, our attorneys will examine a case from every angle to determine the best course of action which may include:
- Scheduling the case for a jury trial
- Fling and arguing motions to dismiss because of an illegal traffic stop
- Filing and arguing improper testing procedures or equipment failures
- Plea bargaining to a misdemeanor (achieved by our firm in numerous drunk driving cases)
- Negotiating the minimum sentence (30 days with community service) to avoid prison
- Negotiating to lessen sentence enhancement of habitual offender provisions
- Negotiating delayed jail sentence, house arrest (sobriety monitoring)
Drunk driving is charged as a crime; not a traffic violation. From our experience, first offenders finding themselves in this position rarely fit the mold of someone that you would expect to get into trouble with the law. On the contrary, most clients that we see charged under Michigan’s drunk driving laws are victims of unexpected circumstances that they never anticipated. In many cases, they lack a recent experience or episode with alcohol consumption and underestimate its effects.
Some of the questions that will be covered in this article are:
- Will I lose my license if I am convicted of a drunk driving?
- Will I go to jail?
- Can the police obtain a search warrant and force me to take a blood test if I refuse the breath test?
- How long does it take for alcohol to be eliminated from my body after consumption?
- What will happen to my right to obtain or maintain my Concealed Pistol License (CPL)?
- Can I cross the border into Canada if I am convicted of a DUI?
- Can a drunk driving case ever be dismissed?
- What is a deviation request?
- Can I still drive on a temporary license and when will I get my picture license back?
- Can I be charged with DUI-marijuana?
- Do police like making DUI arrests?
- See Link: How do I find information about Sobriety Court?
- Can a drunk driving offense ever get expunged?
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!
The court process is foreign and frightening to most individuals that are charged with a drunk driving offense. I have written this article to provide updated information on the topic of drunk driving, provide answers to frequent questions and dispel any myths or rumors that may haunt individuals in this predicament. I have no doubt that those seeking information regarding drunk driving ranks consistently high as a popular topic considering that recent information compiled by the Michigan State Police in its annual drunk driving audit indicates that Macomb County and Oakland County made approximately 6700 combined drunk driving arrests in 2015! Arrests by the Macomb Sheriff Department (217), Shelby Township Police (162), Sterling Heights Police (164) and Warren Police (190), top the list for DUI arrests made by Macomb County police agencies. (MSP 2015 drunk driving audit).
What do the abbreviations mean for OWI, DUI, OUIL, OWVI, OUID, OWPD, OWI High BAC?
I would like to reduce some of the confusion that exists regarding the use of abbreviations in relation to drunk driving offenses in the legal system.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 affected 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?
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 a drinking and driving offense (or other offense as listed below). 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. As I state in various parts of this article and in our website, license action is mandatory and is imposed by the State of Michigan, not the court system. The court system is powerless to intervene or provide any relief when a person is suspended or revoked for a drinking or driving offense. However, the court does have the power to grant license restrictions for certain drug crimes involving possession or use when restrictions are otherwise allowed by statute. Sobriety court may also save a repeat DUI offender from a mandatory license revocation.
|Michigan Alcohol or Drug Crime||License Action|
|OWI/Impaired Causing Death||Indefinite revocation|
|OWI/Impaired Causing Serious Injury||Indefinite revocation|
|1st Offense OWI or OWPD||30 days suspended, 150 days restricted|
|2 OWI/Impaired in 7 year period||Indefinite revocation (sobriety court is a possibility to get restrictions with BAIID)|
|3 OWI/Impaired in 10 year period||Indefinite revocation 1 year to 5 years before eligible for license appeal|
|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|
|1st Offense Possession Drugs/Marijuana||30 days suspended, 150 days restricted|
|2nd Offense Possession Drugs/Marijuana||60 days suspended, 305 days restricted|
|1st Offense Minor in Possession of Alcohol||No action|
|2nd Offense Minor in Possession of Alcohol||30 days suspended, 160 restricted|
An indefinite license revocation may be appealed after a minimum of one (1) year (or after 5 years for a second revocation) to the Driver Appeal and Assessment Division of the Michigan Department of State. Any tickets obtained during a period of revocation will result in an additional period of revocation of one (1) year or possibly more.
Some facts about our first offender clients facing a drunk driving
Here are some of our findings regarding a majority of first offender clients, or nearly first offenders, that get hit with a drunk driving:
- Does not have any prior drunk driving history or may have a DUI offense from many years ago.
- Does not usually consume alcohol in excess.
- Was cooperative with the police.
- Is caught driving within a few miles from home, usually in the late evening hours.
- Has a good driving record.
- Was not involved in an accident.
Alcohol consumption issues, blood alcohol content, search warrant for blood, elimination of alcohol over time
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 legally intoxicated, regardless of actual intoxication. 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 are a fairly reliable source of information on the subject of blood alcohol content.
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:
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.
Drunk driving basics
The term drunk driving as used in this article means criminal charges for:
- Super Drunk Driving: Operating with a high BAC (BAC .17% or more)
- Operating while intoxicated / OWI (BAC .08% or more)
- Operating while under the influence of drugs (including prescription meds)
- Operating while impaired
Our website contains detailed information, including license sanctions, for each of the above offenses. An ignition interlock device (BAIID) is mandatory for persons convicted of super drunk driving but also may be imposed as a sentencing condition for other drinking and driving offenses! All of the above offenses contain mandatory state of Michigan sanctions. The State of Michigan sanctions include: license suspension/restrictions, driver’s responsibility fees and points. In addition to mandatory State of Michigan sanctions, a person convicted of any of the above offenses is subject to numerous court sanctions upon sentencing. Most court sanctions are discretionary and may include one or more of the following:
- Probation for up to 2 years
- Fine and court costs
- Mandatory alcohol assessment
- Imposition of substance abuse program, attendance of AA meeetings, in-patient care
- Imposition of random alcohol and/or drug testing, or require a transdermal testing monitor
- Community service
- Restrictions on travel out-of-state
- Restrictions on consumption of alcohol
- Imposition of ignition interlock device on motor vehicle (BAIID) as a condition
What about driving under the influence of marijuana? Do police need a warrant to search my vehicle?
Michigan is way behind when it comes to the issue of marijuana. The main issue is whether marijuana will be legalized for recreational use. The response to that issue will be reserved for another article. For this article, the question is whether someone can be charged with driving under the influence of marijuana. The answer to this question is YES. However, we are not seeing many cases whereby a person is charged with DUI-marijuana. Instead, our firm has been retained for several cases in the Macomb County District Courts where the police opt to charge an operator of a vehicle (usually a youthful offender), along with the occupants, with possession of marijuana and/or paraphernalia and not OWI-marijuana. I believe this to be the case because, unlike testing for alcohol (.08% = OWI), the State of Michigan lacks any standardized rules/testing for what constitutes being “under the influence” or impaired” by the consumption of marijuana. Another reason, in my opinion, is because police really do not like to make DUI arrests. A DUI arrest can keep a law enforcement officer off of the road for several hours. A DUI arrest entails compliance with several state laws as well as administrative rules in order to accomplish technical testing procedures, booking and incarceration of the offender and extensive document preparation (police report, temporary license, bond forms, etc.).
Frequent possession of marijuana scenario, consent search: Search warrants are time consuming and there is rarely sufficient justification for the officer to obtain one after a routine traffic stop. However, a search warrant is not required when the police find something in plain view, obtain consent to search or make a search incident to an arrest. This brings us to the typical scenario: After pulling over a vehicle, or seeing one parked in a dark area, the police will confront the driver and occupant(s) and claim that they can smell marijuana. The police are skilled at getting information and can usually avoid the search warrant requirement by getting the occupants of the vehicle to surrender any marijuana or consent to a search.
For the offender, getting charged with the drug crime of possession of marijuana or analogues is preferable to anything associated with a DUI and is usually resolved favorably in the Macomb County Courts with a dismissal under MCL 333.7411 or HYTA for youthful offenders (age 17 to 23).
It is another story entirely, and felony charges are likely, under circumstances whereby the operator of a vehicle tests positive for THC or other drugs and is involved in an accident causing the injury or death of another person. In this scenario, the defense attorney would obtain the blood test results and determine whether the marijuana usage was recent and examine the THC nanogram levels.
What can someone with a clean record expect?
I would assume that the answers to this question are the main reason that someone would read this article. Getting a dismissal is a top priority in every criminal or drunk driving case. This lofty goal is not always attainable. Depending upon several factors in a given case, we may recommend fighting the case at trial, seeking a deviation request or negotiating a plea bargain. Realistically, recent statistics indicate that approximately 90% or more of all criminal and drunk driving in the Untied 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. For every criminal and drunk driving case, the prosecutor, probation officer and the judge will look at the prior criminal record of the offender. Depending upon the circumstances, I am not usually concerned about an old criminal conviction from back in the 1970’s or 1980’s. However, recent prior criminal offenses may preclude an offer of a plea bargain in drunk driving cases without a formal deviation request. Other variables that are taken into consideration are:
- Whether there was an accident
- The prior traffic record of the offender
- The blood alcohol content, high or low?
- Whether there are any other egregious factors or criminal charges brought at the same time (fleeing the police, resisting arrest)
- Whether the offender mixed alcohol with other drugs or medications
If an individual is charged with first offense operating while intoxicated (OWI), plea bargaining down to an impaired driving may be the best option. For those charged with super drunk driving (.17% or more) or a repeat offense involving drinking and driving, a reduction to a lower drinking offense will take additional legal maneuvers and possibly a deviation request as I describe further on in this article. Our firm will also ask a person charged with a super drunk driving or a repeat offense to obtain a substance abuse evaluation which we will eventually utilize at various stages of the court process including pretrial conference, probation interview and sentencing.
Ruling out any variables that grab the court’s attention, I can say that based upon our experience, first offenders are treated extremely fair in every Macomb County Court. Although I have listed several possible court sentencing sanctions in the prior paragraphs which represents the larger picture, our experience has been favorable to the extent that we can often avoid the harshest penalties. Again, the sanctions imposed by the State of Michigan (license sanctions, driver responsibility fees, points) are inescapable. Also, every court will invariably impose fines and court costs in the range of $800.00 to $1,500.00, depending upon the district court. Fines and costs in the 41-B District (Clinton Township) and 42-1 District (servicing Romeo, Washington Township) tend to be the highest while the 41-A District (with 2 locations servicing Shelby, Macomb, Utica and Sterling Heights) and the 42-2 District Court (servicing New Baltimore, Chesterfield Township) are on the lower side. In addition to fines and costs, a person with an otherwise clean record can expect some probation, an alcohol education/counseling program and possible random alcohol testing. 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.
Additional sanctions and consequences of a DUI conviction include:
- 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.
- 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. While we are able to get extremely serious crimes (drug dealing, felony assault, theft/embezzlement) expunged, traffiic and drunk driving cases are not eligible. Personally, I am critical of this absurd exception which is contained in the Michigan expungement statute. This exception is based in part to the fact that the drunk driving laws contain sentence enhancements for repeat lifetime offenses (lifetime DUI third = felony). Also, in my opinion, the insurance industry may have had some influence in this matter to keep tabs on drivers and adjust rates accordingly.
- Insurance costs: A person convicted of any drinking and driving offense will ultimately be hit with increased insurance premiums for several years after the conviction. These higher insurance costs are in addition to hefty fines/costs imposed by the legal system, driver responsibility fees, police response costs, substance abuse evaluation and court imposed programs. Some individuals will be labeled “high risk” or terminated by their own insurance company following a DUI and will need to hunt for a coverage elsewhere.
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 a couple of legal avenues that can be pursued which may result in a dismissal or reduction of a drunk driving. Getting a not guilty verdict at trial is one way. The second way is by preparing and filing a deviation request with the prosecutor’s office assigned to the case.
Trial: Anyone accused of a crime has the right to a trial. In drunk driving cases, there may be a question regarding the legality of the traffic stop or whether the police officer followed protocol in administering the BAC test for breath, urine or blood. Trial services will cost more money with every experienced drunk driving firm. In addition, there is no guarantee that a person will win at trial. Only after evaluating a case will an attorney be able to render an opinion as to whether there are good grounds for trial and make recommendations accordingly.
Deviation request: A second way to obtain a dismissal is by filing a deviation request with the prosecutor’s office. 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 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. In addition to the prosecutor, the arresting officer’s consent is typically needed before a deviation request may be granted. For this reason, one of our first questions at an initial consultation for a drunk driving case is whether the client cooperated with the police. In our experience, when a deviation request is granted, the drinking and driving charge is reduced to careless driving (a non-criminal offense) and probation conditions may also be imposed by the court. Again, like trials, there is an additional expense to prepare and file a deviation request with no guarantee as to the outcome.
Drunk driving cases in Michigan (except felonies) are handled in the district courts
With the exception of felony drinking and driving cases, all misdemeanor drunk driving cases are handled to completion in the district courts. Felony drunk driving offenses (DUI third offense, DUI involving injury or death) are ultimately resolved in the higher court (Macomb County Circuit Court). In limited circumstances, a Macomb County DUI third offense/felony can be negotiated downward to misdemeanor in the district court.
The Macomb County district courts, along with jurisdictions covered and internet links are as follows:
- 37th District: Warren, Centerline
- 38th District: Eastpointe
- 39th District: Roseville, Fraser
- 40th District: St. Clair Shores
- 41-A District: Sterling Heights
- 41-A District: Shelby Township, Macomb Township, Utica
- 41-B District: Clinton Township, Harrison Township, Mount Clemens
- 42-1 District: Romeo, Washington Township
- 42-2 District: New Baltimore, Chesterfield Township
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
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?
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.
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:
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:
- 37th District Court: Warren
- 38th District Court: Eastpointe
- 39th District Court: Roseville, Fraser
- 40th District Court: St. Clair Shores
- 41-A District Court: Sterling Heights
- 41-A District Court: Shelby Township, Macomb Township, Utica
- 42-1 District Court: Rome, Washington Township
- 42-2 District Court: New Baltimore, Chesterfield Township
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:
- Domestic Violence (dismissal for first offenders): Michigan Compiled Laws 769.4a
- All drug crimes involving possession or use: Michigan Compiled Laws 333.7411
- HYTA (age 17 but before age 24): Michigan Compiled Laws 762.11
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.
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 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:
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.