Moving Violations Causing Serious Injury or Death

Moving Violations

Lansing Michigan Moving Violation Causing Injury or Death Defense Lawyer

Under Michigan law if you commit a moving violation and that results in someone having a serious impairment of a bodily function or death, you are guilty of a misdemeanor. Just like with an OWI Causing Serious Injury or Death or Reckless Driving Causing Serious Injury or Death, causation is a crucial element of the offense that must be proven. It is not enough for the prosecutor to establish that you committed a moving violation, they must prove beyond a reasonable doubt that you committed a moving violation and that was the actual and proximate cause of the other person’s serious injury or death. Also, the injury has to be something more serious than just some bruises or cuts; the injury must be severe enough that it impairs an important bodily function so that it effects the person’s ability to lead a normal life.

A moving violation is defined as any act or omission prohibited under the motor vehicle code or a local ordinance substantially corresponding to the motor vehicle code and involves operating a motor vehicle upon which fines may be assessed. Examples would be speeding, failure to stop at a stop sign, texting while driving…

Penalties for Moving Violation Causing Serious Injury

  • Up to 93 days in jail
  • Fine up to $500 plus costs
  • Six points on your driving record
  • One-year “hard suspension” of your driver’s license (no hardship appeal to circuit court)

Penalties for Moving Violation Causing Death

  • Up to one year in jail
  • Fines up to $2,000
  • Six points on your driving record
  • One-year “hard suspension” of your driver’s license (no hardship appeal to circuit court)

While it may be a misdemeanor and not a felony, it is still a very serious offense with severe penalties that can impact your freedom and your driving record. Also, just because you are charged with a moving violation causing serious injury or death doesn’t prohibit the prosecutor from charging with someone else with even worse penalties such as reckless driving or reckless driving causing serious injury or death.

Michigan Traffic Crimes Attorney

If you have been charged with a moving violation causing serious injury or death, you need an attorney with experience in handling traffic related offenses that know how to properly investigate, file the right motions, and make winning arguments to a jury. Don’t lose your ability to provide for yourself or your family by risking your freedom and driver’s license. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan moving violations defense lawyer!

Defending moving violations and other traffic crimes throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Kent, Shiawassee, Genesee in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Jackson, Howell, Brighton, Grand Rapids, Corunna, Durand, Flint.

Reckless Driving

Reckless Driving

Lansing Michigan Reckless Driving Defense Lawyer

Reckless Driving is defined under Michigan law (MCL 257.626) as operating a motor vehicle on a public roadway (including parking lots), public lake, frozen pond, or stream with a wanton or willful disregard for the safety of persons or property. The elements are rather vague and open to interpretation which means that a skillful attorney can argue that your driving does not meet the elements of the offense. Anything from weaving in and out of traffic, cutting other motorists off, excessive speeding, or even tailgating can lead to being charged with reckless driving. It can also be used as a plea option in OWI cases. If convicted, the penalties are very strict.

Penalties for Reckless Driving

  • Up to 93 days in jail
  • Up to $500 in fines plus costs
  • Six points on your driving record
  • 90 days “hard suspension” of driver’s license meaning no driving at all! (driver’s license is revoked if second conviction within seven years)
  • $1,000 in driver responsibility fees ($500 a year for two consecutive years)
  • Vehicle forfeitures or immobilization—if the vehicle is not forfeited, then the judge must order it immobilized
  • CDL Suspension—if you have a commercial driver’s license it will be suspended for one year

Reckless Driving Causing Serious Injury or Death

If your reckless driving causes someone to have a serious impairment of a bodily function or it results in their death, the penalties are increased a misdemeanor to a felony. Just like with the OWI Causing Serious Injury or Death, causation is a crucial element. It is not enough for the prosecutor to prove that you were driving recklessly. The prosecutor has to prove beyond a reasonable doubt that you were driving recklessly and that reckless driving caused the serious injury or death of the other person. Furthermore, the law states that if charged with reckless driving causing death, the jury shall not be instructed on the lesser offense of a moving violation causing death.

Penalties for Reckless Driving Causing Serious Injury or Death

In both instances, six points will be added to your driving record and your license will be revoked. You may apply for reinstatement of your driver’s license after one year or five years depending on your master driving record. As with the misdemeanor reckless driving charge, your CDL (if you have one) will be suspended for one year. Reckless Driving Causing Serious Injury is a felony punishable by up to five years in prison and fines from $1,000-5,000. Reckless Driving Causing Death is a felony punishable by up to 15 years in prison with fines from $2,500-10,000.

Difference Between Reckless Driving and Careless Driving

Reckless driving is a misdemeanor offense while careless driving is a civil infraction which is a ticket. Careless driving carries a fine of approximately $125 and will add three points to your driving record but it is not a criminal conviction. It can be used effectively as a plea option in driving and traffic offense cases, particularly if the prosecution’s case is weak. The big difference is that reckless driving requires intent by the driver while careless driving is more unintentionally placing persons or property at risk by your driving.

Michigan Reckless Driving Lawyer

If you have been charged with reckless driving or reckless driving causing serious injury or death, you need an experienced criminal defense lawyer on your side to help you avoid jail, prison, and losing your license. The livelihood of many people depends on having a driver’s license so it’s important to have a lawyer with experience in defending driving charges and traffic offense. Call Austin Legal Services, PLC today to speak to a Michigan reckless driving defense lawyer at (517) 614-1983!

Defending reckless driving and careless driving charges throughout Michigan in the counties of: Ingham, Eaton, Clinton, Jackson, Livingston, Kent, Shiawassee, Gratiot, Kalamazoo, Calhoun in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Jackson, Howell, Brighton, Grand Rapids, Corunna, Durand, Ithaca, Kalamazoo, Battle Creek.  

Drugged Driving: Operating with the Presence of a Controlled Substance (OWPCS)

Drugged Driving

Lansing Michigan OWI Drugged Driving Attorney

Under the general DUI/OWI umbrella are categories of drugged driving. Not only can you be charged for operating a motor vehicle while under the influence of alcohol or driving with an unlawful blood alcohol content, but you can be charged for driving under the influence of controlled substances (cocaine, marijuana…) or prescription medicine. The standards are different in that the prosecutor does not have to prove an arbitrary amount of drugs in your system like the .08 BAC standard for OWI. Instead, the prosecutor only has to prove that you were operating a vehicle with any amount of a controlled substance.

Zero Tolerance: Driving with any Amount of a Controlled Substance

A person may not operator a vehicle on a public roadway if there is any amount of a Schedule I controlled substance under MCL 333.7212 or MCL 333.7214(a)(iv). This includes marijuana. It is a “zero tolerance” policy towards driving with any presence of a controlled substance regardless of whether it impacts your ability to drive. Even if it is a residual from a few days or even weeks prior (marijuana can stay in the system for up to a month) it doesn’t matter.

Schedule I Controlled Substances

Schedule I controlled substances include opiates, opium derivatives, hallucinogens, gammahydroxyutyic acid (GHB), ecstasy, and marijuana.

Michigan Medical Marijuana Card Patients

A licensed medical marijuana patient may drive as long as they are not “under the influence” of marijuana according to the Michigan Medical Marijuana Act (MMMA). The problem is the legislature didn’t clarify what they meant by “under the influence.” For example, Washington defined it in their DUI statute as having 10ng/THC per 100ml/blood. This created an apparent conflict with the OWI statute as it defines “under the influence” of marijuana as having any amount of marijuana in your system. The Michigan Supreme Court stepped into the role of the legislature and declared that the medical marijuana patients could drive as long as it does not substantially interfere with their ability to safely operate a car. That is what the prosecutor has to prove if a medical marijuana patient is charged with OWI or drugged driving.

Other Intoxicating Substances

On March 31, 2013 the statute was amended to include “other intoxicating substances.” That means any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance that is either of the following:

  • Recognized as a drug in any of the following publications or their supplements: official US pharmacopeia, official homeopathy pharmacopeia of US, official national formulary
  • Substance other than food, taken into a person’s body including but not limited to: vapors or fumes that are used in a manner or for a purpose for which it was not intended and that may result in a condition of intoxication

OWPCS is unique in OWI cases as it does not require proof of “under the influence”—a long-standing foundation of drunk driving law.

Penalties for OWPCS

The penalties for OWPCS are the same as the OWI penalties with the exception that the driver responsibility fees are lower. If convicted a defendant faces up to 93 days in jail $500 in fines plus court and police costs, one-year probation, six points on your driving record, 180 days suspended license (first 30 days a “hard suspension”—no driving, with restrictions for the remainder 150 days), and $1,000 in driver responsibility fees ($500/year for two consecutive years).

Michigan Drugged Driving Attorney

If you have been charged with drugged driving or OWPCS, you need the representation of an experienced OWI attorney who will thoroughly evaluate every aspect of the case including the initial police contact, blood draws, and administration of any field sobriety tests. If you have been charged with any DUI offense contact Austin Legal Services, PLC today to speak to a Michigan OWI attorney.

Representing OWI, drugged driving, and OWPCS charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Jackson, Livingston, Barry, Shiawassee, Genesee, in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Jackson, Brighton, Howell, Hastings, Corunna, Durand, Flint.

Ignition Interlock Devices

Ignition Interlock 2

Lansing Michigan Driver’s License Restoration Attorney

In Michigan, if you have been convicted of certain drunk driving offenses you may be required to install a breath alcohol ignition interlock device (BAIID) in your car. The judge has discretion to order an ignition interlock with a first offense OWI, although few rarely exercise that discretion. Some judges will require it with a second or third offense OWI. It is mandatory if convicted of a High BAC or Superdrunk if you want to get a restricted license. If you apply to have your driver’s license reinstated with the Driver’s Appeals and Assessment Division (DAAD) through the Secretary of State, they will require you to have an ignition interlock device if your petition is successful. You will have to drive with the ignition interlock for a year before applying for full reinstatement.

The prices for the BAIID vary depending on the company you choose. Prices for the initial installation run anywhere from $100-200 and the monthly rental fees vary from $50-100.

The BAIID and the Blow-Hum Technique

The ignition interlock device is a machine used to determine your breath alcohol content (BAC) before your car will start. Typically it is installed into the dashboard. It is similar to a portable Breathalyzer or PBT. If your BAC is over a pre-set amount, the car will not start. The BAIID are also designed to prevent tampering. The driver will have to blow into the device using the blow-hum technique. It’s just like it sounds—you blow and hum at the same time to get the device to work. This method is to prevent using an air mechanism to fool the machine. Most BAIID take about one-and-a-half milliliters of breath to start the device which usually takes around two to three seconds. To get the blow-hum technique down try practicing by blowing the word “who” with a humming sound.

Rolling Test

Once you start your car and it is in motion, you will periodically have to blow into the device at some point in order to keep the car going. This is to ensure that you haven’t consumed alcohol since your initial test and to make sure you just didn’t simply have a friend blow into the device for the initial start. If you fail or miss the rolling stop, the horn will start honking and the lights will start flashing until you turn the car off. It can be quite dangerous to perform the rolling test while the car is in motion. The safest way is to pull off to the side of the road and do the rolling test.

Every breath test is recorded. You are required to take the device in for routine maintenance. Failing or missing a breath test means the company will report it to your probation officer or the Secretary of State. If that happens, you face an ignition interlock violation and the SOS can reinstate your previous license revocation. You have to act quickly if that occurs because you only have 14 days to contest the violation and request a hearing.

If you are applying for a full license reinstatement you have to go through the same process as your initial driver’s license restoration petition but you have to add your ignition interlock report.

If you are facing an ignition interlock violation or are applying to have your driver’s license restored or reinstated, we can help get you back on the road. Contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan driver’s license appeals and restoration attorney.

Representing clients in driver’s license appeals and restorations and ignition interlock violations throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Washtenaw, Clinton, Gratiot, Barry, Shiawassee, Calhoun, Kalamazoo, Kent and in the cities of Lansing, Charlotte, Howell, Jackson, Ann Arbor, St. Johns, Ithaca, Hastings, Corunna, Durand, Battle Creek, Kalamazoo, Grand Rapids.

 

OWI Causing Serious Injury or Death

DUI Accident 2

Lansing Michigan OWI Causing Serious Injury or Death Attorney

Operating While Intoxicated (OWI) is a misdemeanor unless it is your third offense, then it is elevated to a felony. The exception to that is if there are aggravating factors, namely causing serious injury or death while driving under the influence. Even if it is your first offense, you will not find yourself facing the standard 93 or 180-day misdemeanor. Instead, you will be facing up to 15 years in prison for a serious felony. With practically no reasonable chance of a non-felony plea offer, you need to be represented by an experienced OWI lawyer. The standard OWI defenses still apply and we apply the same approach as are other OWI cases. However, these charges have the added element that the drunk driving caused someone to be injured or killed.

Penalties

OWI, OWVI, OUID Causing Serious Injury

  • Up to five years in prison
  • $1,000-5,000 in fines plus court costs
  • 180 days vehicle immobilization unless forfeited
  • License plate confiscation
  • $2,000 in driver’s responsibility fees ($1,000 for two consecutive years)

OWI, OWVI, OUID Causing Death

  • Up to 15 years in prison
  • $2,500-10,000 in fines plus court costs
  • 180 days vehicle immobilization unless forfeited
  • License plate confiscation
  • $2,000 in driver’s responsibility fees ($1,000 for two consecutive years)

Additional Felony Charges

In addition to the OWI causing injury charge, you could also face additional and more serious felony charges if the victim dies. Many prosecutors will add charges of Manslaughter with a Motor Vehicle and even Second Degree Murder. Here is what the prosecutor has to prove beyond a reasonable doubt in those cases.

Manslaughter with a Motor Vehicle Elements

1)Defendant was driving a car

2)In a grossly negligent manner

3)That substantially caused the death of another person

Second Degree Murder Elements

1)Defendant caused the death of another person

2)With malice

3)And without justification or excuse

Causation Element

Causation is a vitally important factor in both OWI Causing Serious Injury and OWI Causing Death. It is not enough that the defendant was driving with an unlawful blood alcohol level and was in accident where someone was hurt or killed. Michigan does not apply it as a strict liability crime. This was a clarified a few years ago by the Michigan Supreme Court in the case of People v Feezel, where defendant was charged with OUID Causing Death when THC was found in his system.

In Feezel, the Court held that the trial court was wrong to not allow the defense to prevent evidence of the defendant’s intoxication. The Court held that evidence of gross negligence is relevant if it tends to prove the decedent may have acted in wanton or reckless disregard for the result of his actions. Evidence of defendant’s intoxication could be an intervening cause of death thus breaking the chain of causation between the defendant and the decedent. The prosecutor still has to prove that defendant’s intoxicated driving was a substantial cause of the other person’s death and evidence that the defendant was acting grossly negligent, is relevant to determining causation.

Causation is a crucial element in these felony OWI charges. It is important that you have a lawyer that is experienced in defending these types of felony OWI cases. Expert testimony and accident reconstruction are very important as well as the computer readings of the cars involved showing when the brakes were applied, acceleration, deceleration, and speeds. If charged with OWI Causing a Serious Injury, the prosecutor has to prove that the victim has suffered a serious injury that was caused by defendant’s drunk driving.

Michigan OWI Lawyer

If you have been charged with felony OWI or OWI Causing Injury or Death, you need the best representation possible because your freedom is at stake. Contact Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan felony OWI attorney today!

Representing felony OWI cases throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Kent, Washtenaw, Kalamazoo, Calhoun, Shiawassee, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Charlotte, Jackson, Brighton, Howell, Grand Rapids, Ann Arbor, Kalamazoo, Battle Creek, Hastings, Corunna, Durand.

Felony OWI: OWI 3rd Offense

DUI 20

Lansing Michigan Felony OWI Attorney

 

An OWI charge can have a life altering impact on your future. If convicted of OWI or even Impaired Driving, you will have a criminal conviction on your record that can never be removed from your criminal or driving records. Your insurance will skyrocket, you will pay hefty fines and court costs, your car may be taken, your license suspended, probation will dictate your life for the next sixth months to a year, the college scholarship you had may be gone, and your career paths may be detoured or permanently altered. If you are charged with a felony OWI, the impact and consequences are much worse.

In Michigan, if you are convicted of drunk driving (OWI, Impaired Driving) for a third time in your lifetime, even if your previous convictions were 30 years ago, you will be a felon. Not only will you have a felony on your record, but the penalties attached to it are far worse than the OWI first and second offense misdemeanor punishments. The fines and costs are much greater, and it is all but guaranteed you will do some jail time, perhaps even prison. If you are charged as an habitual offender (previous felony convictions) the maximum penalties are even harsher. Also, being charged as a felony or third offense OWI means that it is stratospherically unlikely you will be offered a plea reduction to a misdemeanor OWI. If eligible, you may be entered into sobriety court which will usually lower the charge to a second offense OWI upon successful completion, but you will have the felony on your record in the meantime and the felony penalties that go along with it.

Penalties for an OWI 3rd Offense

You face up to five years in prison, plus $5,000 in fines and court costs, 60-180 days of community service, $2,000 in driver’s responsibility fees ($1,000 a year for two consecutive years), license plate and vehicle immobilization for one to three years (if not ordered forfeited). If you had your driver’s license suspended within the past seven years, you will lose your driver’s license for five years. Otherwise, you will lose it for a year. Even then, you are not guaranteed to get it back because you will have to be successful at a driver’s license restoration hearing for a Driver’s Assessment Appeal Division (DAAD) hearing officer.

It is important more than ever that you be represented by an experienced OWI attorney if you are facing a felony OWI. Unless they have to, prosecutors will not cut you a break during negotiations and neither will judges at sentencing. It is important that you have someone with experience and a trained eye to thoroughly review your entire case including the legality of the stop (did the police have reasonable suspicion), the administering of any field sobriety tests (were they administered correctly and under correct conditions, was the officer properly trained in how to conduct field sobriety tests and the preliminary breath test), were the observation and other rules followed with the evidential breath or other chemical test (was the officer certified to use the machine, was it properly calibrated, did it have maintenance issues, was the blood draw done properly, is there proper chain of custody). That is how we approach an OWI case. Leave no stone unturned because there are a lot of variables.

Michigan Felony OWI Attorney

If you have been charged with felony or third offense OWI, you need the best representation possible because your life and future plans are at stake. Contact Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan felony OWI attorney today!

Representing felony OWI cases throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Kent, Washtenaw, Kalamazoo, Calhoun, Shiawasse, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Charlotte, Jackson, Brighton, Howell, Grand Rapids, Ann Arbor, Kalamazoo, Battle Creek, Hastings, Corunna, Durand.

Driving Without Insurance and No Ops

Driving Without Insurance

Lansing Michigan Traffic Offense Attorney

 

Under Michigan law MCL 500.3101, a driver of a car must have valid insurance or else the driver can be charged with operating a motor vehicle without security. Believe it or not, the penalty for driving a car without security or insurance is punishable by up to one year in jail and fines ranging from $200-500. Seems harsh considering that if you drive drunk and actually place innocent people’s lives at risk the worst punishment you face is 93 days in jail. If you have valid insurance but you failed to have proof of it in your car, you can be citied for a civil infraction with a fine of $25. The court can require you to surrender your license up to 30 days until you provide proof that you have insurance. Michigan treats driving without insurance very seriously. The good news is that there are no longer driver’s responsibility fees associated with driving without insurance like in years past.

Driving Without a Valid Driver’s License (No Ops)

If you are driving a car without a valid operator’s or driver’s license you face a misdemeanor charge that carries a maximum penalty of up to 93 days in jail and/or $500 in fines. This is different than the driving while license suspended (dwls) charge. The “No Ops” charge is when you have never had a valid license. The driving while license suspended charge is when your license has been suspended, revoked, or denied. If you had a valid driver’s license but didn’t have it in your possession when you were pulled over, you face a minor misdemeanor charge that is punishable by up to 90 days in jail and/or a $100 fine. If you can prove that you had a valid license at the time you were stopped but just didn’t have it in your possession, some prosecutors will dismiss the charge or plead it down to a civil infraction.

If you have been charged with driving without insurance or driving without a valid operator’s license, you need to have an experienced Michigan traffic defense attorney representing you to mitigate the damage to your criminal and driving records. An experienced criminal defense lawyer can look for deficiencies in your case that can lead to a dismissal or can negotiate with the prosecutor to avoid costly court fines, driver’s responsibility fees, higher insurance premiums, and a permanent criminal record (remember, traffic convictions cannot be expunged).

Call Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan traffic defense attorney today!

Defending traffic charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Livingston, Jackson, Shiawassee, Kent, Washtenaw in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Brighton, Howell, Jackson, Grand Rapids, Ann Arbor, Corunna, Durand.

No Ops

Lansing Michigan No Ops Defense Attorney

Reckless Driving

 

Reckless Driving 1

 

Lansing Michigan Traffic Defense Attorney

Reckless driving is a traffic misdemeanor with severe consequences. Under MCL 257.626, a person is guilty of reckless driving when operating a vehicle upon a highway or frozen public lake, pond, or other place open to the public in a willful or wanton disregard for the safety of persons or property. A motorist can also be charged with reckless driving for driving excessively over the speed limit.

It has maximum penalties of 93 days in jail, $500 in fines, $2,000 in driver’s responsibility fees ($1,000 for two consecutive years), six points on your driving record, and 180-day suspended license with the first 90 days being a “hard suspension” meaning no driving at all.

Felony Reckless Driving—Causing Serious Injury or Death

Reckless Driving causing serious injury of a bodily function to another person is a felony punishable by up to five years in prison and fines ranging from $1,000-5,000. Reckless Driving causing the death of another person is a felony punishable by up to 15 years in prison and fines ranging from $2,500-10,000. In both instances if the vehicle is not ordered forfeited, it must be immobilized.

Consequences and Plea Options

Reckless driving, like any traffic offense, can never be expunged. It forever remains on both your criminal and driving records. Ideally, a successful plea negotiation will involve a plea to a non-traffic related offense or a civil infraction such as careless driving. Careless driving is a three-point civil infraction meaning it is a ticket and not a crime. Sometimes reckless driving will be used as a plea in OWI cases because it is a non-alcohol related offense.

If charged with reckless driving causing injury or death, prosecutors are unlikely to offer a reduction in the charge. In those instances, you may have to go to trial and contest one or more of the elements of the charged offense. If charged with any type of reckless driving, you need an experienced criminal defense attorney on your side to negotiate with the prosecutor, advocate to the judge on your behalf, or try the case.

If you or someone you know is facing reckless driving charges, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan reckless driving defense lawyer.

 

Defending reckless driving and other traffic offenses throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Shiawassee, Jackson, Barry, Livingston, Kent, Washtenaw in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Charlotte, Corunna, Hastings, Durand, Jackson, Brighton, Howell, Grand Rapids, Ann Arbor. 

Michigan’s High BAC aka “Superdrunk”

 

 Superdrunk              Lansing Michigan OWI Lawyer        Michigan DUI Lawyer

 

 

In 2010, Michigan’s Operating While Intoxicated (OWI) statute was amended to include a classification for first-time drunk driving offenders with an elevated blood alcohol content (BAC). It is called being charged as a High BAC or “Superdrunk.” Now, if you have a BAC of .17 or above the state (and now municipalities) can subject first-time DUI defendants to heightened punishment. It basically doubles the possible punishments of the first offense OWI. Essentially even though it is your first offense, you will be facing penalties as if it was your second offense OWI. Many states and jurisdictions have enacted similar statutes that are called aggravated DUIs.

 

Penalties:

 

  • 180 days in jail (93 days for OWI 1st)
  • $200-700 in fines ($100-500 for OWI 1st)
  • One-year driver’s license suspension;  restrictions after 45 days with ignition interlock (six months suspended and restricted after 30 days for OWI 1st)
  • 360 hours of community service
  • Vehicle immobilization up to 180 days
  • Six points on your driving record
  • One year alcohol rehabilitation
  • $2,000 in driver responsibility fees ($1,000 per year for two consecutive years)

 

The stakes are much higher with the High BAC charge in more ways than one. Not only are the penalties more severe and the financial costs higher, but plea negotiations are much tougher as well. If a driver was charged with OWI 1st, most jurisdictions will at least offer a reduction to Operating While Visibly Impaired (OWVI) or “Impaired Driving.” While it is still an alcohol-related offense, it does have its merits, particularly if there are no issues with the case that could get a better reduction or dismissal. Impaired Driving is less expensive, less points (which means your insurance won’t go up as much), and it automatically comes with restricted driving privileges.

 

With the High BAC charge, even if they reduce it down a notch to just a regular OWI, you still get the same amount of points on your license, same driver’s responsibility fees, and you still lose your license completely (no driving at all!) for a period of time. You have two options and neither one is good- one just isn’t quite as bad as the other one. If convicted of a High BAC, not only do you lose your license and have to install an ignition interlock or breathalyzer (which costs approximately $75-125/month) but your chances of going to jail are more likely. Plus, many prosecutors have adopted policies against plea bargains on High BAC charges thus forcing defendants to plead “on the nose” or take it trial. Even though there is strategically no reason not to take it to trial in that case, most defendants still opt for the plea due to the cost and time of trial and to merely get it over with. If there was an accident or property damage, almost assuredly no prosecutor will reduce the charge.  No matter how you look at it, your options when facing a “super drunk” charge just aren’t good.

 

That is where having an experienced OWI attorney comes in to the picture. With the stakes higher and the options fewer, you need someone experienced in defending against drunk driving charges more than ever. The stop of the vehicle needs to be reviewed to determine if the police had reasonable suspicion to pull you over. Then the police reports and cruiser cam videos must be thoroughly reviewed to see if the police had probable cause to arrest you. Often this is done after the officer has observed so-called behaviors or mannerisms indicating intoxication or administering field sobriety tests. Usually the last thing the officer does is give the driver a roadside PBT giving an approximation of the driver’s BAC. Then the driver is taken to the police station where an evidential breath test is given. Sometimes a blood draw is taken instead if the DataMaster operator is not available or the driver has been in an accident and taken to the hospital for treatment.

 

There are many rules governing the procedures of how these critical tests are administered and can only be administered by someone trained and certified to do so. Certification credentials should always be requested as well as calibration records and maintenance logs for the evidential breath test. The breath test room video is critical as well because there must be a 15-minute observation period to make sure the driver has not regurgitated or placed anything inside the mouth.

 

A lot of variables factor into a DUI case. It is of the utmost importance that they be thoroughly scrutinized, especially with a High BAC charge. Only an experienced OWI attorney can determine the best course of action—whether it’s forcing the prosecutor to offer a better plea bargain, get the case dismissed with a motion, or take the matter to trial. You should always consult with an attorney before making a decision on any DUI charge, especially a super drunk charge. Look for an attorney that makes DUI defense a substantial part of their practice. What you don’t want is the general practitioner, someone who occasionally “dabbles” in DUI defense, or even worse the lowest bidder who will do nothing than look at the police report and plead you out the first chance he gets regardless of whether it’s in your best interests or not.

 

If you are facing a High BAC charge, contact our Michigan OWI lawyer today at Austin Legal Services, PLC at (517) 614-1983.

 

Defending High BAC and other OWI charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Shiawassee, Lenawee, Jackson, Barry, Livingston, Kent, Washtenaw in the cities of Lansing, East Lansing, Mason, Holt, Okemos, Delta Township, Lansing Township, Jackson, Bath, St. Johns, Jackson, Hastings, Howell, Brighton, Grand Rapids, Ann Arbor, Corunna.

Hardship Appeal: Challenging Your Driver’s License Suspension

0_0_0_0_250_188_csupload_58435808Lansing Michigan DUI Attorney
If your driving privileges have been suspended or revoked, you may be able to seek and get relief in the circuit court. You will have to convince the court that the revocation or suspension of your license is creating a “hardship.” I will discuss in more detail what that means and when you can ask the circuit court for relief.
 

What Types of Suspensions May be Appealed for Hardship

 

 

Under MCL 257.323(3) a petitioner may appeal to the circuit court for the following types of suspensions:
  1. points, accidents, or incompetency to drive MCL 257.320
  2. driving while the license is suspended or revoked MCL 257.904(10),(11)
  3. a first implied consent suspension MCL 257.625f
  4. probationary license suspensions MCL 257.310d
  5. physical or mental disability suspensions MCL 257.303(1)(d)
 

What Types of Hardships Cannot be Appealed for Hardship

 

  1. Suspensions listed under MCL 257.319 (e.g. reckless driving)
  2. Suspensions due to financial responsibility (however, if a procedural error led to a financial responsibility suspension, that may be appealed)
 

Filing the Claim of Appeal

 

Michigan Court Rules (MCR) 7.120 states that all claims of appeals must conform to MCR 7.104(C)(1). A claim of appeal must include:
  1. appellant’s full name, current address, date of birth, and driver’s license number
  2. state that “[Appellant] claims an appeal from the decision entered on [date] by the Secretary of State” and
  3. concise statements of the following:
    1. the nature of any determination by the Secretary of State
    2. the nature authorizing the Secretary of State’s determinations
    3. the subsection of MCL 257.323 under which the appeal is taken;
    4. and the facts on which venue is based.
The claim of appeal must be signed and you must attach as exhibits a copy of the Secretary of State’s determination and any affidavits supporting the claim of appeal.
 

Determining Venue

 

Venue is proper for a hardship restoration petition to the circuit court if it is:
  1. in the county of the arrest (if the denial or suspension was for an implied consent refusal)
  2. pursuant to the order of the district court under MCL 257.328 (proof of insurance violations); or
  3. in the driver’s county of residence for all other cases.

 

What Needs to be Filed and Paid

 

When seeking a hardship license, the following have to be filed with the circuit court:
  1. an appeal for restoration form
  2. an order to show cause
  3. filing fee
On the day of the final hearing, the appellant will need to bring an order of restoration and the judgment fee. In some jurisdictions the judgment fee is due at the time of filing so check with the court clerk before filing. Also, be sure to have at least three copies of all pleadings with you.
 

Detailing the Hardship

 

Probably the most important part of this process is convincing the court that you need a license because to do without one is causing an undue hardship. It is important to present enough evidence to convince the court of this. Here are some important points to stress during the pleadings and the hearing.
  • Describe the effect the suspension has on the appellant’s ability to earn a living or provide for his family
  • Be honest and reasonable– if your driving record is pages long of infractions and violations or the current suspension is a long one, concede that your driving privileges should not be completely restored
  • Be willing to accept that your driving privileges may be restricted to essential driving activities, such as work, medical treatment
  • If you are appealing an implied consent refusal, you must state that public transportation is unavailable and that you have no family members who can provide transportation

Deadlines for Filing

 

Hardship appeals must be filed within 63 days of the date “the determination is made” under MCL 257.323(1). The determination date is the date of the order and not the date of the hearing. The filing deadline may be extended to 182 days if good cause is shown.  While filing a hardship appeal does not stay the enforcement of the suspension, an appellant may file for a stay of enforcement under MCL 257.323a.
 

The Final Hearing

 

The Secretary of State will be represented by an assistant Attorney General or an assistant local prosecutor. This is essentially when you get to orally make an appeal to the court. All positive points should be emphasized such as a successful alcohol assessment, AA attendance, rehab completion as well as detailing the hardship such as not being able to get to work and no reasonably alternative means of transportation are available.
If the court grants your appeal, make sure you have an order of restoration ready. If the court does not grant your appeal, request another one in approximately three months.
 

Implied Consent Appeals

 

If you appeal is from a refusal to submit to a chemical test such as breath, blood, or urine, the judge is limited to determining whether the implied consent hearing officer’s findings were supported by substantial, material, and competent evidence on the whole record and the findings were not contrary to law. For these hearings the Secretary of State must be given at least 50 days notice. Also make sure you get the transcript from the hearing because they are only kept for 182 days.
 

Do I Need a Lawyer?

 

Losing your driving privileges is very difficult and stressful and it provides a hardship not only on your but on those around you who are either counting on you to be their provider or those who now become your defacto chauffeurs. The process is very tedious and cumbersome. While you can represent yourself, it is not recommended. You need someone with experience who can walk you through the process and who knows the ins and outs as to what works and what doesn’t. A lawyer will also help you be prepared for the day of the hearing. The stakes are too high to risk losing. Consult with a driver’s license appeals attorney in your area to handle your appeal.
If you need to challenge your driver’s license suspension or implied consent refusal, call Austin Legal Services, PLC today to speak to a Michigan driver’s license appeals attorney about your hardship license.
Representing clients and helping them get their driver’s license restored and appealing driver’s license suspensions throughout Michigan in the counties of Ingham, Eaton, Jackson, Clinton, Barry, Shiawassee, Washtenaw, Kent in the cities of Lansing, Mason, St. Johns, Charlotte, Grand Rapids, Jackson, Hastings, Corunna, Ann Arbor, Brighton, Howell.