Articles Tagged with 41b district court drunk driving lawyer

OWI-DUI-Breath-Test

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.

men-woman-drink-weight-bac-chart

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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The 41B District Court located at 22380 Starks Drive, Clinton Township, Michigan 48038, phone: 586-469-9300.  It has jurisdiction to handle civil, traffic and criminal cases arising in Clinton Township, Harrison Township and Mount Clemens. Clinton Township has its own police department while Harrison Township and Mount Clemens are policed by the Macomb County Sheriff’s Department. The Court is served by Judge Sebastian Lucido, Judge Linda Davis and Judge Carrie Lynn Fuca.

As I state in this publication, it is my opinion based upon several years of experience, that the 41B District Court will give a person a second chance and has a philosophy to encourage rehabilitation rather than impose jail. 

41B District Court has an expansive jurisdiction that covers Macomb County from Lake St. Clair in Harrison Township to Hayes Road on the Sterling Heights border, and from 14 Mile Road to Hall Road. The area has a diverse mixture of established and newer real estate, shopping centers, Macomb County Community College, county government offices and the Partridge Creek Mall. The Macomb County Sheriff’s Department and the Clinton Township Police are the predominant law enforcement agencies in the area.

Criminal Cases in the 41B District Court: Provisions of Law to Get Dismissals Available!

The 41B District gets a wide range of the criminal cases that occur within Macomb County.  Our firm has represented clients charged with just about every imaginable misdemeanor and  felony crime in the 41B District Court. The following is list of some of the most prevalent cases that we regularly see on the 41B District Court’s docket:

Getting out on bond, bond conditions: If you are arrested or arraigned on a criminal matter in the 41B 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. I have found that the judges and the magistrate 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 41B 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).

In our experience, criminal cases can be resolved favorably at the 41B District Court. All these special provisions of law are possible in the 41-B District Court which can result in a dismissal of a criminal matter:

  • HYTA for youthful offenders (age 17 to 23)
  •  MCL 333.7411 for first time drug offenders
  • MCL 769.a for domestic violence.
  • Delayed Sentence or Deferral

Drunk Driving Cases in the 41B District Court

1st offense drinking and driving: The 41B District Court is known for imposing hefty fines and costs for first time drinking and driving offenders.  For most first time drinking and driving offenders, jail is not likely in the 41B District Court 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‘ in the 41B District. It is extremely difficult and rare, but not impossible, to get a drinking and driving offense reduced to a non-criminal offense. Non-reporting probation, reporting probation and counseling may also be imposed depending upon the circumstances. Those with a history of alcohol or substance abuse, or that register a high blood alcohol content (BAC), can expect a longer period of counseling. Fortunately, the judges in the 41B District Court have a sentencing philosophy that encourages rehabilitation rather than incarceration.  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 $1,500.00
  • Restricted license for 90 days
  • Attend an alcohol or substance abuse program
  • Possible drug testing, alcohol testing, AA meetings
  • 4 points on driving record

There are other mandatory and discretionary sanctions associated with a drinking and driving conviction including: driver responsibility fees, probation oversight expenses and vehicle immobilization. The Court can also order installation of an ignition interlock system on any vehicle driven by a person convicted of a drinking and driving offense.

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. In 2016, there were approximately 140 arrests for operating while intoxicated related offenses in Clinton Township and 50 registered a BAC of .17 or more.

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 District Court.

The 41-B District Court Probation Department: 22380 Starks Drive, Clinton Township, Michigan 48038

The 41-B District Court has its own probation department located inside of 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. 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.

Isolated Incidents, Not Likely to Re-offend: There are many instances where we have advocated for ZERO probation, or for an abbreviated period of probation, on behalf of clients that are not likely to re-offend.

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

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 41B District Court. Gratiot Avenue, Metro Parkway, a stretch of I-94 and Hall Road all contribute to the traffic volume in the 41B District Court.  When resolving a traffic matter in the 41B 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

The court staff and judicial officers are forbidden by law to provide you with legal advice. Yet many courts are now making it easier than ever to just pay your traffic ticket by visiting the court’s website and conveniently providing an option to pay by credit card.  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.  Another publication by our firm explains why you should fight every traffic ticket.

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