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

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Introduction

The nature of this publication will be dedicated to the frequent talking points which arise with our clients faced 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) by the consumption of alcohol, illegal drugs or prescribed medications. Numerous laws may be involved or tied to a single OWI offense, including:

  • Criminal laws which empower the court to impose incarceration and other penalties.
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Blood alcohol content (BAC), Michigan State Police Statistics

Blood alcohol content (BAC) refers to the amount of alcohol which is estimated within a person’s blood as determined by a blood alcohol test.  Blood tests and breathalyzer tests are the most common methods for testing BAC. The Michigan State Police maintains statistics with respect to BAC testing, DUI convictions, average BAC levels and the number of convictions for those charged with a DUI offenses.  The statistics are further broken down for each county and each district and circuit court. In 2016, the Michigan State Police Drunk Driving Audit revealed the following statistics for those who submitted to a breath or blood test in Macomb County:

  • 2,182 tests were administered for breath or blood samples (breath tests accounted for 1,404)
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windsor-tunnel-sign.jpgWe 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

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

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

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

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

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

How is blood alcohol content determined?

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

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

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

Are BAC charts accurate?

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

How much does a drunk driving case cost?

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

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

The ABDO LAW FIRM has been actively representing clients charged with drunk driving in every Macomb County court since 1980.
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This is the high season for high school graduation parties, summertime picnics and 4th of July gatherings. Now through Labor Day, teens will freely drink alcoholic beverages at the homes of their friends with adults/parents consenting to the illegal conduct. Otherwise responsible adults with no criminal record will break the law and allow under-age children to consume alcohol at their homes.

Michigan Social Host Liability (Civil Liability) for Furnishing Alcohol to a Minor

In Michigan, the adults who allow persons under age 21 to consume alcohol face civil liability if the minor’s consumption of alcohol causes injury or death to another. The injured third party or the minor may file a lawsuit and recover under a social host theory! Think again if you believe that your adult friends who let their minor children drink at your home will support you if one their children is injured after consuming alcohol at your residence. The Social Host Liability law is friendly to personal injury lawyers as it imposes almost strict liability upon the adults that provide consent or lack of supervision leading to the consumption of alcohol by an under-aged person who causes the death or injury to another.

Michigan Criminal Offenses for Furnishing Alcohol to a Minor

Pursuant to MCL 436.1701, a person or retail establishment that sells or furnishes alcohol to a minor faces misdemeanor criminal charges. If the minor’s alcohol consumption causes a person’s death, the person who furnished the alcohol can be charged with a felony. An adult may also be prosecuted under the statute known as Contributing to the Delinquency of a Minor.

-A person who violates this subsection is guilty of a misdemeanor punishable by a fine of not more than $1,000.00 and imprisonment for not more than 60 days for a first offense, a fine of not more than $2,500.00 and imprisonment for not more than 90 days for a second or subsequent offense, and may be ordered to perform community service. For a second or subsequent offense, the secretary of state shall suspend the operator’s or chauffeur’s license of an individual who is not a retail licensee or retail licensee’s clerk, agent, or employee and who is convicted of violating this subsection.

-A person is guilty of a felony, punishable by imprisonment for not more than 10 years or a fine of not more than $5,000.00, or both, if the subsequent consumption of the alcoholic liquor by the minor is a direct and substantial cause of that person’s death or an accidental injury that causes that person’s death.

The police will also charge a minor who is found in possession of alcohol or who has consumed alcohol (except when the minor can prove he has legally consumed alcohol in a place like Canada). This charge is commonly known as MIP which is given coverage on the Abdo Law Firm website.

Our blogs usually include an image at the beginning of the entry. I thought long and hard about an appropriate image for this blog. My ideas included cheerful graduates, backyard celebrations, car crash photos, teen alcohol consumption, images of someone in a wheelchair, a funeral, etc… In the end, I decided to use the cute July 4th plant image. I want this to symbolize all of the other images that I considered and my sincere hope that everyone has a safe graduation and summer season.
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www.abdolaw.com.jpgThe recent Court of Appeals case, People v. Koon (which can be read in its entirety here), illustrates how Michigan deals with drugged driving. Oftentimes clients are under the misguided impression that a prescription or a medical marijuana card offers them immunity from prosecution for operating a vehicle while intoxicated. However, Michigan law has two provisions to deal with this. For Schedule 1 narcotics (cocaine, heroin, ecstasy, for example) where there is ‘any amount’ of the illicit substance the driver can be convicted. Alternatively, impairment must be proven where a client is charged with driving under the influence of a prescribed medication.

The Koon case deals with 3 issues; 1) the ‘any amount’ provision of MCL 257.625(8); 2) Michigan’s Medical Marijuana Act; and 3) marijuana that was ingested hours before the defendant operated the automobile. In this instance, the defendant had a medical marijuana card and had used marijuana five to six hours before driving his automobile. Nonetheless, marijuana’s active ingredient THC, which can remain in one’s system for weeks after it’s ingested, showed up in Mr. Koon’s blood. Both the District Court and Circuit Court held that the Medical Marijuana Act was a defense to the zero tolerance law. Unfortunate for Mr. Koon and other card holders, the Court of Appeals did not.

The opinion, which I recommend those visiting this blog take the time read (it’s not too complicated), reasons that the Michigan Medical Marijuana Act does not carve out an exception to the ‘any presence’ law. The MMMA does not reschedule marijuana (it remains Schedule 1) and further specifically states there are no protections for those driving under the influence of marijuana. The issue may be taken up with the State Supreme Court in the future.

What are the takeaways from this case? Most specifically as it pertains to marijuana card holders, they remain at risk driving long after they ingest marijuana. The result does seem harsh given that THC can remain in one’s system for weeks after it is initially used. Nonetheless, this seems to shed some light on the way Courts are interpreting that law. Further, this should serve as a reminder that the State does not take lightly to drugged driving. If you are being prosecuted for operating an automobile under the influence of any drug, a marijuana card or a valid prescription does not offer blanket protection. This is likely an issue that will continue to take shape in the Legislature and Court of Appeals over the coming years.
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Michigan’s “Super Drunk” law has been on the books since October 31, 2010. If you do not already know, this law imposes harsh punishment and license sanctions for anyone convicted of a drinking and driving offense in Michigan with a blood alcohol content (BAC) of .17% or greater. The noteworthy penalties for a “Super Drunk” or “High BAC” conviction are as follows:

  • 6 points,
  • $1,000.00 per year driver responsibility fee for 2 years,
  • 1 year license sanctions as follows: 45 day hard suspension of license (NO DRIVING) followed by 320 days restricted license with ignition interlock upon approval by Secretary of State,
  • Up to 180 days in jail,
  • Any violation of the ignition interlock will result in additional mandatory license sanctions (another 45 day hard suspension followed by 320 days of restrictions.

Click for link to Michigan Secretary of State website for all drinking and driving penalties.

I never really liked the label “Super Drunk” based upon the simple truth that a person who consumes alcohol and has a BAC of .16% could be branded as a “Super Drunk” by consuming one more sip of a drink. Other factors which influence the BAC are metabolism and the passage of time. Females also tend to have higher BAC levels based upon same variables as men (body weight and number of drinks consumed).

Super Drunk or High BAC Clients Face Policy Against Plea Bargaining

Most counties now have a policy against reduction, or plea bargaining, of High BAC cases to lower drinking and driving crimes. However, we have handled several Super Drunk, or High BAC cases as I prefer to call them, since its passage in 2010. We have had success in avoiding a High BAC convictions in many cases where the factors are in our favor. Our consultations with clients charged with a drinking and driving offense includes: an analysis of the drinking and driving incident and detailed background of our client (education, employment, children, substance abuse history).

In my opinion, the ideal candidate for consideration of a plea bargain to a lesser offense (such as Operating While Intoxicated or Impaired Driving):

  • Does not have a criminal record, especially involving drinking and driving,
  • Was not involved in an accident, especially an accident involving injuries,
  • Is willing to attend counseling before the court orders the individual to do so,
  • Was cooperative with the arresting law enforcement agency.

Typical High BAC cases cannot be reduced without a policy deviation approved by the prosecuting attorney. A deviation request is made by exposing weaknesses in the case and by providing the prosecuting attorney with positive information regarding our client. When a deviation request is made, the case may take several court appearances before a response is obtained as to whether the deviation is approved or denied. If a deviation request is denied, the case can be set for trial or motion hearings to attack the traffic stop or other aspects of the case such as technical aspects of the blood alcohol testing equipment.
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Jet.jpgSelfridge Air National Guard Base (SANG) is one of the oldest military air fields in the United States. It is located in the Township of Harrison, County of Macomb and is situated on prime Lake St. Clair property. Approximately 6000 air and army national guard, as well as civilian employees, are employed and/or housed at the SANG base. There are numerous units assigned to SANG including the 127th Wing (Michigan Air National Guard), customs and border protection and the Coast Guard.

There are many SANG military personnel who are married, live on or off base, and are residents of a state other than Michigan. Our attorneys have represented SANG military personnel for numerous legal matters including drinking offenses (drinking and driving), domestic violence, assault crimes, drug crimes and retail fraud (shoplifting). Anyone in the military who is charged with a criminal offense faces special circumstances which we are prepared to defend. We understand that when a military person (reserved or enlisted) gets into trouble, he or she faces possible rank demotion, loss of security clearance and/or dishonorable discharge from military service upon conviction for a criminal offense.

When a military person becomes a client of our firm, we are aware of their special needs and potential consequences. Certain convictions may be detrimental to a military career. There are other ramifications such as travel restrictions and possible incarceration. When a drinking a driving (DUI or OWI) is charged, the issue may be less compelling and only involve the driver license sanctions for a non-resident. Our job is to identify the needs of our military clients and address these particular needs and concerns. For example, a recent client who was charged with domestic violence needed permission to travel out of the state and the country. The case was resolved favorably whereby the case will be deferred and dismissed after a period of probation. The Judge also granted permission for our client to travel out of state and out of the county.

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What is EtG?

Ethyl Glucuronide (EtG) is a metabolite of beverage alcohol (ethanol), which means that it is used by the body to break down alcohol in the system. According to the drugtestingnetwork.com, the presence of EtG is a conclusive sign of recent alcohol consumption.

What is an EtG Test?

The EtG test, which can be implemented by a Court for a variety of reasons, is able to detect alcohol in a person’s system when a standard breathalyzer is not sufficient. Ethyl Glucuronide is detectable for up to 80 hours after an individual stops drinking, but can vary depending upon the person’s metabolism and the amount of alcohol that was consumed.

The EtG Testing Process (provided by uatests.com, a testing facility)
EtG testing is a process similar to other lab-based drugs of abuse testing. The following steps are typically followed:
Step 1: A chain of custody form is completed
Step 2: The subject voids into a standard collection cup. The temperature of the urine is checked, using a temperature strip on the collection cup, to assure it is a valid sample.
Step 3: A urine specimen syringe device is used to collect a sample of the urine.
Step 4: The syringe device, and related paperwork are sent to the lab. This is easier, cleaner and less expensive than sending a bottle of urine.
Step 5: The test samples are shipped to the lab. The most economical and effective method of getting your sample to the lab will depend on your location.
Step 6: Results are typically reported within three days of receipt at the lab.

Why is the EtG test ordered?

Individuals on probation for a criminal offense are sometimes subjected to random alcohol testing, which dictates that they blow into a portable breathalyzer. This test will only show the alcohol (ethyl alcohol) which remains in the bloodstream and is expelled as vapor from the lungs. Therefore, this test will only give information on whether or not the individual has drank alcohol within hours of taking the test.

Under certain circumstances the Court will order an EtG test for someone who is prohibited by law from consuming alcohol, based on an alcohol-related offense (usually drunk driving). The test is also used to screen for drinking problems, intervention evaluation, employment purposes and to motivate changes in drinking behavior.

Is the EtG Test reliable?

According to the Substance Abuse and Mental Health Service Administration, the EtG test is inaccurate and may actually be unreliable. The SAMHSA discusses the test’s sensitivity to even small amounts of alcohol that can be present in daily-use items. Examples include hand sanitizer, hair spray, laundry detergent, aftershave and even some cosmetic items. The information provided in the SAMHSA advisory notice led the U.S. Department of Health to deem the test “experimental”. The EtG test can produce positive results when an individual is simply exposed to any number of products which contain ethanol.

Despite EtG testing’s scientific unreliability, the test continues to be widely-used across the country. For this reason, our law firm is against the use of EtG tests.
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In Michigan, a common sanction by both the courts and the Secretary of State is the required installation of an interlock ignition device on the defendant’s (or petitioner’s) automobile. Colloquially referred to as a ‘blow and go’, these devices can be a tremendous headache for those required to install them. In our experience, there are a number of situations where these devices are compelled to be installed on our clients’ vehicles. These scenarios include;

– A ‘superdrunk’ conviction,
– Certain drunk driving convictions with aggravating circumstances,
– As a mandatory condition of a restricted license upon a successful license appeal,
– And certain crimes which may have resulted from an underlying drinking problem.

1) What is an interlock ignition device?

The cell-phone sized device is installed so it connects to an automobile’s ignition system, usually inside of the glove compartment. After installation, the driver is must blow into the device before the car will start.

2) Where can these devices be installed and how much do they cost?

Many locations in Southeast Michigan offer install services for the ignition interlock device:

American Interlock 800.580.0504 Michigan Interlock, LLC 888.786.7384 National Interlock Service 888.294.7002
New Horizon Interlock, Inc 800.597.5054 Smart Start Michigan 888.234.0198
Prices vary from company to company, but range from $50 to $200, based upon the make and model of the car. The device also holds a monthly rental fee, which can be as high as $100.00.

3) How do these devices work?

According to igntioninterlockdevice.org, the driver blows about 1.5 litres of air into the device, which is located on the car’s dashboard. Drivers can also be subjected to “rolling tests”, which require the driver to use the device once the car is moving. If the driver fails one of these “rolling tests” the device sounds a warning, which may consist of flashing lights or honking horn and will sound until the ignition is turned off (the ignition will not automatically shut off while moving). Each device contains a computer chip, which requires monthly downloads. The information is sent to the overseeing court and analyzed for blood alcohol content levels as well as attempts at tampering with the device.

4) When required by the State in a driver’s license restoration case, what will result in a violation?

The State of Michigan has divided violations into two main categories:

Minor Violations

-After the trial period, the driver fails three start-up tests (car will not start)
-If the driver fails to have the device serviced within 7 days of his/her scheduled date
Major Violations

-Failure of a “rolling test”, which is either failing to take the test when prompted or the result is greater than 0.25% and a subsequent sample is greater than 0.25%
-An arrest or conviction for drunk/drugged driving -Tampering with the Blood Alcohol Ignition Interlocking Device -Circumventing the device, by allowing a passenger to blow into the device -Three minor violations within the monitoring time (required time for device to be installed)
-Removing the device without having it re-installed within 7 days (unless Secretary of State approves)
-Operating a vehicle without a properly installed device
In the State of Michigan, a minor violation will result in a three-month extension before another driving license appeal can be requested. Major violations will cause the original driver’s license revocation to be immediately reinstated, which means the driver will no longer be able to operate any vehicle, even with an ignition interlock device installed.

5) Are these devices reliable?

Despite widespread implementation of ignition interlock devices many have doubts as to their reliability. Significant issues arise out of false positive results, which could be caused be a number of daily-use products. They include mouthwash (because of its minimal alcohol content), some medicines, and even some beverages.
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