Michigan DUI Lawyer Blog

You have completed your due diligence in your quest to find a Michigan DUI attorney. You have a meeting scheduled to discuss your case. What information do you need to be prepared to discuss and what documentation should you bring?

When you were arrested, you were likely taken into custody and held until your blood alcohol level diminished sufficiently in order for you to return home, or until you were bonded out by friends or family. Before you leave, you should have a bond receipt from the jail, a paper driver's license and vivid memories of what you have experienced since you were stopped by the police.

You should come to your meeting prepared to provide as much information as you can recall involving your arrest and the events leading to your stop by the police. Your DUI attorney will want to know where you were drinking, the names of the individuals you were with, what you drank and how much you had to drink. You will be asked when you had your last drink and whether you drank on an empty stomach or whether you recently ate a meal. You may also be asked information regarding any medications you are currently prescribed. While not advisable, many of the medications you take may have warnings against consuming alcohol. These medications may have the effect of amplifying the appeared on impairment or response time. You may be asked whether you recall operating your motor vehicle. You may also be asked whether you have ever been arrested before and whether you have any prior convictions. Now is not the time to withhold information from your attorney. You need to think of your attorney as your priest, your pastor or your rabbi. The more information you can provide the better. Any information you withhold can come back to harm you and your case. Most attorneys you will speak with have represented many people over a variety of different settings. While you may be ashamed or remorseful regarding your arrest, the more information you can provide and the more honest and forthright you can be the better. Conversations you have with your lawyer are protected by privilege.

Recently, a Michigan DUI attorney from SMDA was getting ready for a jury trial on a Operating While Intoxicated (OWI) offense. In preparation for trial, he was trying to find some statistics to share with the jury during his opening arguments. He stumbled upon the following information from the Mothers Against Drunk Driving (MADD), the State of Michigan and the National Highway Traffic Safety Administration websites which he thought was quite interesting and worth sharing with our readers.

1. An average drunk driver has driven drunk 80 times before his first arrest.

2. There is considerable evidence that laws that lower the illegal BAC limit from .10 to .08 can reduce alcohol-related fatalities by an average of 7%.


3. Access to an unlimited amount of alcohol for a flat fee increases the number of drinks in a sitting by 1.6 drinks on average.


4. From 1975 through 2005, it is estimated that safety belts saved 211,128 lives, including 15,632 lives saved in 2005. If all passenger vehicle occupants over age 4 wore safety belts, 20,960 lives (that is, an additional 5,328) could have been saved in 2005.


5. A standard drink is defined as 12 ounces of beer, 5 ounces of wine or 1.5 ounces of 72-proof distilled spirits, all of which contain the same amount of alcohol - about .54 ounces.


6. The average person metabolizes alcohol at the rate of about one drink per hour. Only time will sober a person up. Drinking strong coffee, exercising or taking a cold shower will not help.


7. The rate of alcohol involvement in fatal crashes is more than 3 times higher at night than during the day (59% vs. 18%). For all crashes, the alcohol involvement rate is 5 times higher at night (16% vs. 3%).


8. This year, 10,839 people will die in drunk-driving crashes - one every 50 minutes.


9. There is evidence that heavier drinkers prefer to drink at bars and other persons' homes, and at multiple locations requiring longer driver distances. Young drivers have been found to prefer drinking at private parties, while older, more educated drivers prefer bars and taverns.


10. Among persons aged 12 or older, males were nearly twice as likely as females (16.3% vs. 8.6%) to drive under the influence of alcohol in the past year.
    


11. One in three people will be involved in an alcohol related crash in their lifetime.


12. Drunk driving costs each adult in this country almost $500 per year.

Imagine driving home from meeting a few friends for a drink. You felt OK to get behind the wheel and drive home. You had a few drinks, but you know your limit and you definitely did not cross it this time. You are purposely driving under the speed limit careful to keep your car within the lines. You are less than a mile from home. Suddenly, you look in the rearview mirror of your car and see flashing red lights and hear the sounds of a police siren. This isn't going to be pleasant. Fast forward to an arrest and a charge of Operating While Intoxicated. In Michigan, a first time offender with a blood alcohol level above .08 and below .17, will likely be charged with this ninety-three (93) day misdemeanor. Now what?

While it is never pleasant to find yourself in this position, the stress of the situation can be made more bearable if you make an important decision: hire a capable and knowledgeable DUI lawyer. Despite your desire to hire your cousin, who just got out of law school, or your neighbor, who practices primarily family law, it is important to hire an attorney competent to handle drinking and driving offenses.

What does it mean to be competent? According to the Michigan Rules of Professional Conduct, "a lawyer shall provide competent representation to a client." A lawyer shall not handle a legal matter which the lawyer knows or should know that the lawyer is not competent to handle, without associating with a lawyer who is competent to handle it; handle a legal matter without preparation adequate in the circumstances; or neglect a legal matter entrusted to the lawyer.

As an aside, it is also advisable to hire an attorney who has practiced in the city or county where your arrest occurred and is willing to zealously represent your interests. There is more to the practice of law than simply knowing the law. Your attorney should also know your court, have experience appearing before your judge and that attorney should have experience handling cases with your prosecutor.

Another important factor is that your attorney should be prepared. He should have a copy of the police report, Datamaster log sheets, copies of the in-car and booking video and other documentation specific and relevant to your case. While that information may not be available to your attorney by your first hearing, usually an arraignment or an arraignment/pre-trial, every effort should be made for your attorney to demonstrate to the prosecutor and to the court that this information has been timely requested. It is important to understand that most police departments recycle their in-car videos and booking videos within a certain amount of time, usually within thirty (30) days. Therefore, it is important for your attorney to know how to request this information and how to preserve this information in his efforts to zealously and effectively represent you in your case. Videos can sometimes be made available with a simple discovery request to the prosecutor and sometimes they can be obtained by a Freedom of Information Act (FOIA) request to the police department. This is where knowledge and familiarity by your attorney of the court, the prosecution and the police department is critical. Decisions relative to entering a plea versus scheduling the matter for trial can and should only be made once all information, inculpatory and exculpatory, is thoroughly reviewed.

Imagine you are driving home. It is late at night. You had a few beers watching the game at the local bar. You were careful not to exceed "your limit." You feel fine when you pay your tab and leave the bar. You don't recall fumbling for your keys in the dark. You just want to get home safely. It doesn't occur to you that you maybe shouldn't have had that last beer. You're safe, right? The bar is only a short distance from your house. Although typically a careful driver, you are "hyper-sensitive" about obeying all traffic laws. You stay within the speed limit. In fact, you drive slightly under the speed limit so as to escape any unwanted attention by law enforcement. You spot a police car in front of you and to your right. You don't want to pass the car, but it seems the police car is practically parked in its lane. You say a small prayer and decide to pass the police car. In so doing, you look up at your rearview mirror and see lights flashing. You safely pull over to the right and fish for your license, registration and proof of insurance. A police officer slowly walks to your car. He taps on your window. You roll down your window. He asks if he knows why you were pulled over. You are truly dubious as to why the officer pulled you over. In your hesitation to respond, he asks "Have you been drinking tonight, sir?"

You are asked a series of questions. The officer will later right in his report that you appeared confused, your eyes were slightly blood shot and the officer detected a strong odor of intoxicants. After asking you more questions, you are asked to step out of your car to perform Field Sobriety Tests (FSTs). Unlike testing you are familiar with where if you study and apply yourself, you can be successful, FSTs are designed for you to fail. This isn't cynicism...this is fact.

FSTs are failure-designed tests. Nearly every motorist, regardless of sobriety levels, fails field sobriety tests. The level and degree of failure is noted by the investigating police officer. Starting any test too early is considered a failure. Performing a test too quickly or too slowly is considered a failure. Failure to follow the officer's strict instructions is considered a failure. As an example, an officer may ask a motorist on a roadway stop to count backwards from 78, stopping at 59. Inevitably, most people count backwards from 78 but forget when to stop, finally interjecting at 56 a question, "When did you want me to stop?" According to the officer, the motorist has "failed" that field sobriety test at that point.

Because Field Sobriety Tests are failure-designed, a driver should not attempt these tests. These tests are not designed to show whether a driver is sober. Performance of these tests is completely voluntary, and a motorist should not voluntarily submit to these tests.

ALPHABET RECITING

The officer asks the motorist to recite the alphabet without singing. Although people often times complain that an officer requested that the motorist recite the alphabet backwards, this is primarily a myth. More often, the officer will request that the alphabet be recited from C through T. There is no scientific basis for this test, and the test results are not designated as reliable tests for measuring sobriety.

FINGER TO NOSE

The officer asks the motorist to extend his or her arms and close their eyes, sometimes instructing the motorist to tilt their head back, touching the tip of the nose. There is no scientific basis for this test, and the test results are not designated as reliable tests for measuring sobriety.

The National Highway Traffic Safety Administration (NHTSA) has investigated and researched several field sobriety tests since the mid-1980s. A battery of three tests has been developed as a result of this research, formally referred to as "Standardized Field Sobriety Tests" (SFSTs). Michigan does not formally recognize and has not adopted these standards, but police officers employ these tests in many jurisdictions. Michigan STORM (Sobriety Trained Officers Representing Michigan) is an organization of Michigan police officers that have received NHTSA training. The SFSTs are as follows:

WALK AND TURN

This test requires a driver to walk heel to toe and turn. It must be performed on a surface where a clean line is visible and where there is a level, non-slippery surface. Failure includes:

→Loss of balance during instructions. Be careful if you have balance problems going into this test. You may be questioned whether you have any health concerns that can affect your balance.

→Starting before officer's instructions are finished. You are nervous. This is a normal response considering your predicament.

→Stopping or pausing while walking.

→Failing to touch heel-to-toe on each step

→Stepping off of line (often times the line is imaginary)

→Using arms for balance (this is subject to broad interpretation by the officer)

→Losing balance while turning/incorrect turn (also subject to broad discretion of officer)

→Performing the incorrect number of steps

Given the strong economic relationship enjoyed between the United States and Canada, especially amongst those states bordering Canada, such as Michigan, the ability to freely cross into Canada is of paramount importance. Having said that, the Canadian government will prevent certain non-Canadian citizens from entering Canada under their restrictive immigration laws. According to the Canadian government, these individuals are members of an Inadmissible Class. The Inadmissible status prohibits an individual from entering Canada and remaining within its borders. People often confuse this concept because they believe they can enter Canada as long as they are not driving their vehicle. That is incorrect. Having Inadmissible status means you cannot enter, visit or travel to Canada.

Some criminal convictions will prevent a non-Canadian citizen from crossing the border into Canada. Including amongst those convictions is a DUI conviction.

Canada and a DUI Conviction

Canada regards a DUI as an extremely serious offense. A conviction for Driving Under the Influence (DUI or DWI) will designate you as a member of the Inadmissible Class. Those non-Canadian citizens with such convictions will not be allowed to cross the border into Canada freely.

In many cases, a DUI/OWI offense will be your first real contact with the criminal legal system. Consequently, it's easy to feel overwhelmed. In this article we're going to take a look at the basic legal process you will be going through if arrested for a DUI/OWI offense in Michigan.

Arrest and Release

The journey begins at the time of arrest.

Arraignment

The arraignment will be your first appearance in court. At this time, the judge will formally read the charges against you and give you an opportunity to enter a plea. Typically people will plead 'not guilty' at this stage regardless of how they plan to proceed.

It is important to realize that you will not be going to a trial of any type during your arraignment. In many cases it will be largely a formality, and your lawyer may elect to file paperwork waiving the arraignment meaning you will not have to appear at the court.

During the arraignment, the judge will set a bond amount and impose bond conditions, such as imposing daily preliminary breath tests.

Discovery

Discovery is a process in which both the prosecution and the defense are given the opportunity to understand all of the facts and evidence of the case. This process is usually not done in court, but rather through a series of communications between your lawyer and the prosecutor. During this phase, you will have an opportunity to written reports, video evidence, official test results and other evidence that apply to your case.

Pre-Trial Conference

Once discovery is exchanged, the next step is typically a pre-trial conference between the defense lawyer and the prosecution. While this is often done at the court, it is not done before a judge or jury. This is basically an opportunity for both sides to discuss whether or not a plea agreement can be reached without the need for a trial. So, if you're attempting to plea your case, this is when you'll find out what plea the prosecutor will accept.

Pre-Trial Hearing

Following the conference, both the defense and the prosecution will appear before the judge for purposes of either resolving the case in the form of a plea or to set the matter for hearing on pre-trial motions and/or trial.

Pretrial Motions

This is the last phase before your trial will begin. Basically, during this phase your attorney may submit written pleadings attempting to persuade the judge to dismiss the case or to suppress evidence. This can be a very complicated stage and usually requires a skilled lawyer to help navigate.

Trial

If no plea was reached and your attorney was unable to have the case dismissed, this is the next step. Typically you will have the opportunity to choose between a jury trial (which will be with six jurors, not twelve) or a bench trial (in which case there will be no jury and the judge will decide your case).

At the end of a trial, you will either be found 'guilty', in which case you will proceed to sentencing, or you will be found 'not guilty', in which case you'll be free to go.

Punishment for drinking-and-driving offenses in Michigan reflect a growing national trend toward a stricter approach that picked up momentum during the early 1990s. Offenders now face losing their licenses for longer periods, stiffer fines and costs, and even the possibility of vehicle immobilization or forfeiture. The stakes are even greater for serious offenders, who may serve lengthier jail sentences or prison terms, depending on the nature of their convictions.

Major Categories

Drinking-and-driving offenses in Michigan fall into three categories. Convictions for operating while intoxicated (OWI) and operating while visibly impaired (OWVI) carry maximum penalties of up to 93 days in jail, $300 to $500 in fines and costs, license sanctions, and 45 days of community service. A blood-alcohol content of 0.08 or greater is considered legally drunk, which prosecutors can count as an additional charge.

Implied Consent

Refusing a chemical test can raise additional consequences beyond the traffic stop. Under Michigan's implied-consent law, drivers are presumed to have given their permission for such a test. Failure to do so can mean a one-year suspension, which increases to two years for second offenses. Any attempt at preventing a one-year driving suspension first requires a separate hearing with the Secretary of State. Depending on the outcome of that hearing, a hardship appeal is an option at the circuit court. However, no hardship appeals are allowed for repeat offenders.

Major Felonies

To address serious crashes involving alcohol, state lawmakers created the felony categories of OWI and OWVI causing serious injury or death. Both offenses carry maximum terms of up to five and 15 years in prison, respectively. Spending up to 20 years in prison is possible for anyone who causes an emergency responder's death. These penalties apply for first and subsequent offenses.

Other Sanctions

Forfeiture of the vehicle is a distinct possibility in Michigan, which allows the sentencing judge to decide that issue. The less severe sanction of vehicle immobilization is another possibility. Moreover, the sentencing judge isn't bound to consider who owns or uses the vehicle. Defendants may also receive a restricted license for driving to community service, probation, school, work or substance abuse treatment. Proof of destinations and driving hours must be carried at all times to satisfy law enforcement. Drive for any other reason and you run the risk of being charged with new criminal activity and/or further driving sanctions.

On January 3, 2007, a significant change in Michigan regarding driving and driving (DUI) offenses occurred. A new law took effect, Heidi's Law. Heidi's Law was championed by the parents of Heidi Steiner, a northern Michigan high school senior killed by a drunken driver.

In 1991, a man pled in a case of drunk driving causing death. He received a 10-year prison sentence. Under Michigan law at the time of his conviction, the "look back" period for DUI sentencing was limited to 10 years. That is to say, if the person had not been charged for driving while intoxicated within the previous 10 years, the offense was to be sentenced as if it were a first offense. County prosecutors in Michigan can, under Heidi's Law, now press a charge of felony DUI if the accused has had two previous convictions.

Defense Difficulties

Defense of drunk driving under Michigan's Heidi's Law focuses first on preventing a third conviction. Disputing the validity of past convictions is practically impossible. Additionally, Heidi's Law expanded the types of documentation accepted as proof of prior DUI convictions from three to seven. The law relaxed the requirements for proof of a previous record because records of DUI convictions were historically not always recorded and archived as criminal offenses. Now, prior convictions can be established by a copy of the court's register of actions and information contained in pre-sentencing reports or the defendant's driving record. The Michigan Secretary of State will also now maintain records of drunk driving convictions for the life of the driver.

Ex Post Facto Violation

The only serious challenge to Heidi's Law was People v Perkins, Court of Appeals No. 281957. The case charged that the law was an "ex post facto violation." Basically, the argument was that it increased the penalty for the first two convictions after the fact of the violations. However, this defense of drunk driving under Heidi's Law in Michigan was struck down by the Michigan Court of Appeals in September 2008.

All too often, Michigan defense attorneys fail to consider the license sanctions imposed by the Secretary of State following their client's conviction for a drinking and driving offense. Having said that, sometimes these resulting sanctions cannot be avoided. A person's license is subject to mandatory revocation for obtaining two (2) drinking and driving convictions within seven (7) years or three (3) drinking and driving convictions within ten (10) years.

The driver license restoration process is complex and lawyers with experience before the Michigan Driver Appeal and Assessment Division (DAAD) can greatly increase a revoked person's chances of getting his or her Michigan driver's license restored.

A first time revocation is for a minimum period of 1 year and a second lifetime revocation is for a minimum period of 5 years. A person whose license is revoked may not operate a vehicle indefinitely until the person is granted driving privileges before the Michigan Driver Appeal and Assessment Division (DAAD) of the Michigan Secretary of State.

Upon eligibility and after waiting the minimum revocation period, a revoked party may begin the process of license restoration. The revoked party, called the petitioner, must prove by clear and convincing evidence that the alcohol or substance abuse problems are under control and likely to remain under control. If a person fails to meet this high standard of proof, the revocation is affirmed and another hearing is allowed after one (1) year. Many times, documentation which is submitted to the DAAD can actually harm a client's case and result in a continuation of the revocation. The attorneys at SMDA have obtained driving privileges for individuals with multiple drinking and driving convictions because they know the process and ensure that all documentation submitted to the DAAD will strengthen the likelihood of restoring driving privileges.

After prevailing at a license restoration hearing, a party is required to have an ignition interlock device installed in his vehicle for a period of one (1) year. An ignition interlock is an alcohol monitoring device requiring a satisfactory breath sample before a vehicle can be operated. The device information is periodically downloaded by the installer. An ignition interlock system - Breath Alcohol Ignition Interlock Device (BAIID) is a breath alcohol analyzer with computer logic and internal memory that interconnects with the ignition and other systems of a motor vehicle. The purpose of the BAIID is to measure the bodily alcohol content (BAC) of an intended driver and to prevent the motor vehicle from being started if the BAC exceeds the .025.

If the person has successfully operated a vehicle with the interlock device on the vehicle for one (1) year and again meets the burden of proof, a full license will be granted. If the person fails with an interlock device, or is unable to prove by clear and convincing evidence that the alcohol or substance abuse problems are under control, then the person's revocation may be reinstated or the DAAD may consider allowing the petitioner to drive with the ignition interlock device for an extended period.

A person who has an ignition interlock device in his or her vehicle is advised not to allow anyone else to blow into the device or to use any substances containing alcohol, such as mouthwash or cold medicines. All alcohol readings will be attributed to the petitioner.

There is a relatively "new kid on the block" in the myriad of drinking and driving violations chargeable in Michigan. This newcomer, colloquially referred to as the Michigan "Super Drunk" Law actually took effect on October 31, 2010. Under this law, Michigan drivers who are arrested for operating a vehicle with extremely high blood alcohol content (BAC) face enhanced penalties. Consequently, it is especially important for these individuals to immediately obtain legal representation in order to avoid the stiff penalties following a super drunk DUI conviction.

Nationwide, drivers are required to follow the BAC limit of 0.08%, and any person who violates this law can be arrested and charged with driving under the influence. Michigan legislators have taken the law a step further by imposing harsher penalties on "super drunk" drivers who have a BAC well above this limit.

State law defines "super drunk" as a blood alcohol content of 0.17% or more. If convicted, the penalties for a first high-BAC offense include a one-year license suspension, mandatory alcohol rehabilitation, and up to 180 days in jail. In addition, the state's new law also requires convicted super drunk offenders to have an ignition interlock device installed in their vehicles (a device that requires a driver to successfully pass a breath test in order to operate his or her vehicle). Michigan drivers, though, can breathe easy as Illinois recently enacted a law requiring that a breath interlock be installed for all offenders. The Illinois law, which went into effect last year, requires the interlock as a condition of driving even before there has been a conviction.

On top of the humiliation of losing your driving privileges and dealing with the stigma attached to drunk drivers, a Super Drunk DUI conviction can have a devastating impact on your pocketbook as well. Along with a court-imposed fine of $200 to $700, you must pay to enroll in an alcohol rehabilitation program, as well as any installation and maintenance fees associated with your ignition interlock device. This says nothing of the effect a DUI conviction can have on your auto insurance rates--at the very least, you can expect to pay two to three times more than you do now and, in some cases, you may be unable to obtain coverage at all.

On top of the penalties associated with the Michigan Super Drunk Law, the expenses of a conviction can really add up. With fines, alcohol treatment, the cost of public transportation (since you will be unable to drive for a while), and everything else, the cost of hiring an attorney is often less than what a conviction can cost you in the long run. When you consider the fact that an experienced DUI defense attorney can substantially increase your chances of reducing or avoiding a conviction, obtaining legal representation just may be the best investment you've ever made.