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ABDO-LAW-CY-MATT-JOE-AT-41A

41A District, Shelby Township Division

Jurisdiction over Shelby Township, Macomb Township and Utica

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

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

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

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

Michigan State Police Keep Drunk Driving Statistics 

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

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

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

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

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

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

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

Why did the police destroy my driver’s license?

Can I still drive with a temporary license?

When will I get my picture license back?

dui 257g

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

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

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

License Suspension, Revocations, Restrictions

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

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

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

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

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

The Science of Blood Alcohol Content (BAC)

Shot, Beer, and Wine

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

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

DUI BAC CHART MALE & FEMALE

 

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

HOURS TO ZERO

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

Representing OWI Offenders in Macomb County

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

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

The Court Process in Macomb County

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

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

What about driving under the influence of marijuana?  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Collateral Consequences of a OWI Conviction

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

Can a drunk driving case ever be completely dismissed?

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

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

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

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

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

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

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