Proving Causation in OWI Causing Injury and OWI Causing Death Cases

DUI Accident 2

Michigan OWI Causing Injury or Death Attorney

Any OWI or drunk driving charge is serious. Not only can it never be expunged, you potentially face jail, probation, points on your driving record, increases insurance rates, thousands of dollars in fines, costs, and driver’s responsibility fees, as well as negatively impacting scholarships, housing, or your career. If you are charged with an OWI Causing Injury or Death, the consequences are far worse. Not only is it a felony but there is a strong likelihood, if not a guarantee, of prison time. If you are charged with any felony OWI, you need an experienced DUI attorney on your side more than ever.

The Causation Element in OWI Causing Injury and Death Charges

Proving causation is a critical element that the prosecutor has to prove in OWI Causing Injury or OWI Causing Death cases. It is not a “strict liability” crime. A defendant cannot be convicted merely because they were driving drunk and was in an accident where someone happened to get injured or killed. They have to prove your drunk driving was the “cause” of the injury or death. The prosecutor has to prove both factual and proximate cause. Although, proximate cause is the central focus rather than factual cause.

Superseding Causes

The focus is on whether the victim’s injury or death was a direct and natural result of the defendant’s operation of the motor vehicle and whether there was any intervening causes that may have superseded and severed the causal link. A superseding cause is an act of nature, gross negligence by the victim or third party, or intentional misconduct. However, ordinary negligence is not a superseding cause as it is reasonably foreseeable. The trial court must make an initial determination that a question of fact exists regarding the victim’s gross negligence before the evidence is relevant and admissible.

Evidence that the Victim was Intoxicated

Evidence that the victim was intoxicated during an OWI accident is inadmissible by itself. Mere intoxication is not gross negligence. However, extreme intoxication in People v Feezel was held by the Michigan Supreme Court to be highly probative of alleged gross negligence (victim’s BAC was .268 in Feezel). It also negated the defendant’s causation as the victim’s extreme intoxication would have affected the victim’s ability to perceive risks posed by his conduct and eliminate his capacity to react. The threshold determination before a defendant can present this evidence to the jury is whether or not a question of fact exists as to whether the victim engaged in gross negligence or a question of fact as to another superseding cause.

Michigan OWI Defense Attorney

If you have been charged with OWI Causing Injury or OWI Causing Death you need an experienced OWI attorney on your side. There are many variables that go into investigating a felony OWI case. You need an effective advocate to argue against causation to a jury. Call Austin Legal Services, PLC today at (517) 614-1983 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, Gennessee, in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Jackson, Brighton, Howell, Hastings, Corunna, Durand, Flint.

Tether and Electronic Monitoring Devices

Tether

Michigan Criminal Defense Attorney

As a condition of bail, bond, sentencing, or probation, the judge may order you to wear an electronic monitoring device, or tether. An electronic monitoring device allows pretrial services, probation, or parole the chance to closely supervise you by keeping track of where you are at or in some cases, determine if you are consuming alcohol. There are several types of electronic monitoring devices that are commonly used. Tethers are bracelets that are attached to the ankle while breathalyzers can be portable or attached to your car.

Global Positioning System (GPS) Tether

This monitors the defendant’s movement by satellite and reports his movements and whereabouts to the supervising agency. Exclusion Zones or Hot Zones (places where the defendant is not supposed to be) are programmed into a computer program that runs in conjunction with the GPS tether and alerts the supervising agency if the defendant goes someplace that he is not supposed to go such as the home or workplace of an alleged victim. The GPS tether could also be programmed so that the defendant is only allowed to be in or traveling to and from certain places such as work, home, or court. It could also be programmed to alert the supervising agency if defendant leaves beyond a certain radius.

Transdermal Alcohol Tether

This type of tether monitors (usually SCRAM tethers) the defendant’s skin to determine if any alcohol has been ingested into the body. While it is designed to monitor any alcohol from alcoholic drinks or alcohol-based products (mouthwashes, cough syrups, etc.) that the defendant may be ingesting, they are not designed to detect only ethyl alcohol (the type contained in alcoholic beverages). They will detect only forms of alcohol that can come from anything ranging from certain foods, hand lotions, body washes, or cleaning products. It also alerts the agency if the defendant has tried circumventing the tether in any way or tampering with it.

Standard Tether

This device records and reports when a defendant enters and exits certain locations, such as his residence. This ankle bracelet needs a landline phone in order to properly work.

Breathalyzers

Breathalyzers are either portable devices or installed to a fixed setting like a car or home. The court may require a defendant to submit to a preliminary breath test (PBT) at regular times (everyday by a certain time, each time defendant enters or leaves the residence), or when certain events occur (e.g. driving a car). These units are often equipped with cameras to verify that it is actually the defendant providing the breath sample. Breathalzyers are often ordered by the court for substance-related offenses such as DUIs, driver’s license restorations, any offense involving alcohol, or if the defendant has a history of alcohol abuse.

Ignition Interlock Devices

An ignition interlock device is a breathalyzer that is specifically designed for installation in cars to prevent defendants from operating the car until they prove they have not been drinking. They require a significant breath sample that requires the defendant to blow and hum at the same time. A breath sample of approximately 1.5 ml of breath is normally required before the car will start. The ignition interlock device also requires you to submit to “rolling tests” meaning you have to give a breath sample at spontaneous times while the car is in motion to determine you haven’t been drinking since you started the car. The slightest thing can cause them to malfunction. These are frequently required for driver’s license restorations, High BAC (Superdrunk) charges, subsequent OWI offenses (OWI 2nd, OWI 3rd) and felony DUIs (OWI 3rd, OWI Causing Injury or Death).

Lansing Michigan Criminal Defense Attorney

Tethers, breathalzyers, and ignition interlock devices as a bond or probation condition can be costly in terms of money (rental and maintenance costs) as well as convenience. It also creates another possibility for a violation if anything goes wrong. A violation could get your bond or probation revoked and land you back in jail for a long time. If you have been charged with a tether or ignition interlock violation or if you are required to have a tether as a bond condition, you need to have an experienced criminal defense attorney on your side to defend against the violation or convince the judge the requirement is too costly, burdensome, or unnecessary.

If you are facing misdemeanor or felony criminal charges call Austin Legal Services, PLC today at (517) 614-1983 for a free, no obligation consultation!

Defending misdemeanor and felony criminal charges throughout Michigan in the counties of Ingham, Eaton, Livingston, Jackson, Clinton, Gratiot, Calhoun, Kent, Kalamazoo in the cities of Lansing, East Lansing, Mason, Brighton, Howell, Jackson, St. Johns, Ithaca, Battle Creek, Grand Rapids, Kalamazoo, Jackson, Charlotte, Corunna.

Common Questions in DUI Cases

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Lansing Michigan OWI Attorney

Here some of the most common and frequent questions I get asked from people facing OWI charges.

Do I Have to Perform Field Sobriety Tests (FST)?

No! If an officer asks you to perform any of the standard field sobriety tests such as the walk-and-turn, horizontal gaze nystagmus, one-legged stand or any of the non-standard field sobriety tests such as reciting the alphabet or counting you do not and should not attempt to perform them. Most sober people, even under the most optimal circumstances can’t pass them. Factor in standing beside a dark highway, cars whizzing by, with thoughts of “Am I going to jail” or “Will I lose my job” racing through your mind. You cannot be penalized for not performing them. They are strictly voluntary. You cannot be taken to jail for not performing the field sobriety tests. The officer must cite other evidence in order to establish probable cause for an arrest. It’s possible the officer can do that, but without failing the field sobriety tests, it makes the prosecution’s case weaker and easier to challenge. You cannot be fined nor will any points be added to your driving record for not performing any field sobriety tests either.

Do I Have to Take a Roadside Breathalyzer or Preliminary Breath Test (PBT)?

No! Just like the field sobriety tests, you do not have to blow into the handheld roadside breathalyzer, also known as a preliminary breath test (PBT). The result can give the officer probable cause if it reveals a blood alcohol content (BAC) over the legal limit of .08. The only difference is if you refuse the PBT, you will be cited for a civil infraction. It puts zero points on your driving record and the fine is usually around $100-150.

Important: DO NOT confuse the roadside PBT with the DataMaster breath machine at the police station. After you have been placed under arrest for drunk driving, you will asked to take a chemical test of the officer’s choosing (breath, blood, or urine). Usually it is a breath test at the police station. If you refuse that chemical test, your license will be suspended by the Secretary of State and you will have six points added to your driving record.

If I Refuse the Field Sobriety Test and the Preliminary Breath Test Will they Arrest me Anyway?

Maybe. However, without the field sobriety tests and preliminary breath test it becomes easier to attack the probable cause for the arrest because the officer will have to list other factors that he believed gave him probable cause that the driver was intoxicated.

Will I Lose My Driver’s License?

It depends on what you ultimately get convicted of. If convicted of an OWI or a High BAC (Superdrunk), you will lose your license for a period of time. If convicted of the High BAC you will not be able to get restricted driving privileges unless you install an ignition interlock device. If convicted of Operating While Visibly Impaired (OWVI or Impaired Driving) you will automatically be given a restricted driver’s license which means you can only drive to work, school, court, court-mandated activities, and medical appointments.

Will I Go to Jail?

For a first offense OWI or Impaired Driving conviction, you will probably not go to jail. Jail for first offense DUIs is still not the norm but it is more common than what it used to be. It is more common to go to jail for a High BAC (Superdrunk) than a first offense OWI. This is where having a lawyer who knows your judge and court is invaluable. For example, there is a particular county where they frequently give jail for first offense OWIs. One judge in particular is infamous for giving everyone for a first offense OWI 20 days in jail, regardless of what the facts of the case are. There are other judges in other counties where it is common to get anywhere from three to seven days in jail depending on your BAC level. Some judges may impose a jail sentence if you take it to trial and lose. That is why it is extremely important to be represented by a Michigan attorney with vast experience and who regular handles OWI cases.

Will I be Placed on Probation?

Again, this depends on the judge, the policy of the particular court, and what you are convicted of. Some judges and some counties will place you on probation for a first offense OWI or Impaired Driving conviction (usually six months to a year), while others will assess you fines and costs and order community service or other programs such as an alcohol highway safety course or a MADD Victim Impact Panel. Again, this is why you need an OWI attorney who is familiar with your particular judge or court.

Will I Have to Use an Ignition Interlock Device?

The judge has discretion on whether to order an ignition interlock device for a first offense OWI. However, it has been my experience that very few judges exercise this discretion. For High BAC or Superdrunk convictions, it is mandatory if you want to get a restricted license. Otherwise you will have a hard suspension which means no driving at all.

If my BAC is Over the Legal Limit Am I Automatically Convicted?

No! Even if your BAC is over the legal limit of .08 that does not necessarily mean you are intoxicated. It is a presumption that you are intoxicated, but that presumption can be overcome with other evidence. The reliability of the test results as well as other factors will determine if you were “under the influence” or even if the test results are reliable enough to be admitted into evidence. You need an OWI attorney who is familiar with challenging breath tests and blood draws who knows what to look for.

Should I Take my OWI Charge to Trial?

Maybe. That decision should only be made after discussing your case with an OWI attorney who has thoroughly reviewed all the evidence.

Can I be Charged with OWI if I Have a Michigan Medical Marijuana (MMMA) Card?

Yes, if you are “under the influence.” If you do not have a medical marijuana card, any amount of THC can get you charged with Operating with any Presence of a Controlled Substance (OWPCS) or drugged driving. If you are a medical marijuana patient, the prosecutor has to prove the marijuana affected your ability to safely operate the car.

Can an OWI be Expunged?

No! Any OWI or driving offense (reckless driving, fleeing and eluding) can never be expunged. It forever remains on your criminal and driving records.

Do I Need a Lawyer for a DUI?

Absolutely! Under no circumstances should anyone attempt to represent themselves on any drunk driving charge. DUIs are far too complex and the stakes are too high to go at it alone. Also, don’t go with someone who merely dabbles or occasionally takes DUI cases. You need someone who makes DUI defense a substantial portion of their practice.

Lansing Michigan OWI Attorney

If you have been charged with an OWI, High BAC (Superdrunk) or any drunk or drugged driving offense, contact Austin Legal Services, PLC to speak to a Michigan OWI attorney at (517) 614-1983 today!

Defending OWI, felony drunk driving, and High BAC (Superdrunk) charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Livingston, Jackson, Kent, Calhoun, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Brighton, Howell, Jackson, Charlotte, Battle Creek, Hastings, Corunna, Durand.

OWI in a Motionless Car

DUI Motionless Car

Lansing Michigan OWI Attorney

Can you be charged and convicted of Operating While Intoxicated (OWI) if your car isn’t even running? The answer is maybe. It depends on the surrounding facts.

“Operating” a Motor Vehicle

Whether or not you can be convicted of an OWI hinges on whether the prosecution can prove beyond a reasonable doubt that you were “operating” a motor vehicle on a public roadway. In 2010 we found out that “operating” doesn’t necessarily mean “driving” when Mr. Lechleitner (whose BAC was over the legal limit of .08) was attempted to push his car off an icy road when an oncoming motorist swerved and ran into a guardrail which subsequently caused another motorist to crash into that car resulting in death. Mr. Lechleitner’s defense was that pushing the car with the ignition off was not “operating” it.[1] The Michigan Court of Appeals felt otherwise. In failing to adopt the defendant’s proposed “cause to function” standard for operating, the Michigan Court of Appeals held that a defendant is “operating” a motor vehicle when it is placed is motion or in a position that poses a significant risk of causing a collision. In other words, the car doesn’t have to be motion for an OWI.

Evidence of Operating a Vehicle: Case-by-Case Basis

Foot on the Brake While In Drive

There’s no bright line rule that says is A,B, and C are present then the motorist is operating for purposed of an OWI. It doesn’t really work like that. Instead, each case is different and circumstantial, as well as direct evidence, will dictate what constitutes “operating” for purposes of the OWI statute. In People v Wood[2], the defendant was found in a vehicle, engine running, and the automatic transmission in drive. Mr. Wood’s foot was on the brake pedal which kept the car from moving. The Michigan Supreme Court held he was “operating” the vehicle. The Court defined the term in relation to the danger the DUI statute seeks to prevent—the collision of a vehicle being operated by an intoxicated person. Once a car is put into motion, it poses a significant risk of collision. Mr. Wood’s vehicle would have been set in motion had his foot slipped off the brake pedal. The Court reasoned that he had not “returned the vehicle to a position posing no risk of collision with other persons or property.”

Asleep Behind the Wheel

In People v Spencley[3], the defendant was parked partially on a highway shoulder and partially in a motel driveway. The lights were on the engine was running. Mr. Spencley was asleep sitting in the car when officers approached him and subsequently placed him under arrest for OWI. The Court analysis didn’t focus so much on the operating aspect as it did that the officer’s did not have probable cause to place defendant under arrest as Mr. Spencley did not “operate” the motor vehicle infront of them. Generally, misdemeanors have to be committed in the officer’s presence for a warrantless arrest. There is an exception. An officer may place someone under arrest for OWI even if it wasn’t committed in their presence but only if there was an accident. In this case, there was not. The remedy was to suppress the evidence of the defendant’s BAC. A defendant could very well be considered to be operating a motor vehicle while asleep behind the wheel. It’s a case-by-case basis.

Using a Car as a Shelter as Opposed to Transportation

In People v Burton[4], the defendant was found in his truck at a golf course. His seatbelt was on, the engine running, and the gear was either in park or neutral. He admitted to driving on one side of the parking lot of the golf course to the other. The Court found that there was no evidence that the defendant intended to use his truck as a motor vehicle as opposed to shelter. The mere fact that the engine was running is not enough to prove intent to put it in motion. The lack of motion in this case was due to the truck being in park or neutral, which is distinguishable from the lack of motion in People v Wood as his foot being on the brake was what kept the car motionless.

Lansing Michigan OWI Lawyer

If you have been charged with an OWI, you need an experienced OWI attorney representing you. If you are charged with a drunk driving offense while your car was not in motion, you may have defenses that could get your case dismissed. Call Austin Legal Services, PLC today to speak to a Michigan DUI lawyer for a free consultation at (517) 614-1983.

Defending OWI charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Kent, Livingston, Jackson, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Kalamazoo, Grand Rapids, Brighton, Howell, Jackson.

 

[1] Peo v Lechleitner, 291 Mich App 56 (2010)

[2] Peo v Wood, 450 Mich 399 (1995)

[3] Peo v Spencley, 197 Mich App 505 (1992)

[4] Peo v Burton, 252 Mich App 130 (2002)

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.

DUI Blood Draws

DUI Blood Draw

Lansing Michigan OWI Defense Attorney

If you have been arrested in Michigan for a DUI, you will be taken into custody where an officer will request you submit to a chemical test of his choosing. It could be breath, blood, or urine. Breath tests are the most common which are done on the DataMaster machine. Blood draws are the next most common. Usually blood draws occur when the driver has been in an accident and the hospital performs one as a part of their standard procedures, the chemical breath machine is not working, hasn’t been calibrated or serviced, or a certified DataMaster operator is unavailable, or the officer suspects the driver of using drugs (because a breath test will only reveal alcohol).

Implied Consent

If you refuse to submit to the officer’s request for a chemical test, you will be in violation of Michigan’s implied consent law and your license will be suspended and six points will be added to your driving record. The police can get a warrant to do a blood draw if you refuse if they present probable cause to a judge. If you submit to the officer’s request, you may have another chemical test performed of your choosing at your expense.

Admissibility of Blood Tests in OWI Cases

In order for blood test results to be admissible in an OWI trial, the prosecution has to prove the following conditions were met:

  • The blood test was taken in a timely manner
  • The sample was from a particular person
  • The blood draw was taken by an authorized physician, medical technologist, or a registered nurse designated by the physician
  • Sterilized instruments were used
  • The sample was properly preserved and labeled
  • Proper methods of transportation were used
  • Proper methods were used in the blood sample withdrawal
  • Identity of the supervising person, under whose care the sample was withdrawn, was established

What Happens in an OWI Blood Draw

It is important that you are represented by an OWI attorney that understands the complex process of blood draws in drunk and drugged driving cases. It is important your attorney knows what to look for and file the proper motions to either suppress the blood tests results for improper procedures or call into question the reliability of the results at trial during cross examination.

Scientific Testing Procedures for Blood Draws

A proper test procedure requires use of a control sample, a test sample, and two analyses of the test sample. A test sample is a sample of a substance at a known concentration. For example, a known ethyl alcohol concentration in blood. A control sample contains all of the substances normally found in the substance to be tested, except for the substance of interest, e.g. ethyl alcohol. The purpose of the control sample is to demonstrate that the test instrument will not reveal a result based on substances common in the tested subject, thus giving a false positive. For blood draws, the control sample is blood without alcohol.

It is important to understand that it is not really the driver’s “blood” that is being analyzed. Rather, it is a comparison of known and unknown volatiles. The Michigan State Police (MSP) Forensic Lab receives a sealed kit with the subject’s blood sample contained in two separate 10ml tubes. The kits are supposed to be mailed by the participating officer via first class mail. Once received and documented by an MSP lab technician, it is placed into a temperature-controlled storage room. It is presumed the tubes contain a known amount of preservative and anti-coagulant (100 mg of sodium fluoride and 20mg of potassium oxalate) in order to preserve the integrity of the sample. One tube will be tested by the MSP and the other tube is available for testing by the defendant if he chooses to. Even at this stage the lab does not have your blood, but a mixture.

Methods of Testing Blood Samples

There are three generally used methods of blood testing.

  1. Dichromate Procedure—This is not a specific test for ethyl alcohol. It may show a reaction to acetone, acetaldehyde, wood, or rubbing alcohol. Wood and rubbing alcohol are not usually found in the bloodstream but are found in laboratories.
  2. Enzymatic Procedure—This procedure uses the same enzyme found normally in the body.
  3. Gas Chromatography—This procedure is specific for ethyl alcohol and uses separate volatile substances. Other substances during the test are not registered and is specific only for ethyl alcohol. This is the most commonly used and the most scientifically reliable. It is the method used by the MSP labs.

Whole Blood Versus Serum

The blood alcohol results can be from testing serum, plasma, or whole blood. It is important your OWI lawyer understand the difference. The administrative rules governing blood tests require that serum or plasma alcohol concentrations be translated into an equivalent whole blood alcohol concentration. The MSP forensic labs test whole blood using gas chromatography.

Hospitals use an enzymatic method when analyzing blood alcohol. It tests serum, not whole blood that contains cellular material and clotting proteins. The results using serum may not correlate to the results using whole blood because serum contains approximately 1.6 times more alcohol than whole blood. Some scientific studies and journals have concluded that the blood alcohol concentration in serum can be as 10-30 times higher than whole blood. Thus, serum can yield a much higher blood alcohol content (BAC). While there is no Michigan appellate decisions directly on point, the trend in other states is to preclude using serum or plasma results as evidence unless a conversion method is used demonstrating the blood alcohol equivalent in whole blood.

Are Blood Draws Reliable in DUI Cases?

Of the three chemical tests (breath, blood, and urine), blood tests are the most reliable. No one disputes that. However, there is a whole lot more that can go wrong with blood tests than any of the other chemical tests. It is important that you have an OWI attorney that is familiar with the testing procedures and forensic science to properly evaluate your case. An experienced and trained eye will know what to look for. There may be chain of custody issues where numerous people are checking out the test tubes or there are periods of time that the whereabouts of the test tube cannot be accounted for. This is especially important if they cannot prove that the test tubes were in a certain temperature controlled environment as required by the administrative rules. This can lead to a suppression of the evidence or can be used to cast serious doubt in the jury’s minds as to the reliability and accuracy of the test results.

Michigan OWI Attorney

If you have been charged with an OWI offense, it is important that you are represented by someone that devotes a substantial part of their practice to drunk and drugged driving defense. It is too complex and the consequences too serious to go with a lawyer who merely “dabbles” in DUI defense. Contact Austin Legal Services, PLC today at (517) 614-1983 for a free consultation with our Michigan OWI attorney.

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.

Michigan OWI 2nd Offense

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Lansing Michigan OWI Attorney

If you have been convicted of any drunk driving or drugged driving offense (OWI, Impaired Driving, High BAC “Superdrunk”,) and receive a new drunk or drugged driving offense within seven years, you will be charged with OWI 2nd offense. This changes the game in many ways. First, the penalties are much harsher. Second, the prospect of jail is a great likelihood. Third, plea negotiations are more difficult. Essentially, the stakes are higher and your options aren’t that great. That is why you need an experienced Michigan OWI attorney representing you more than ever.

Penalties of an OWI 2nd Offense

The penalties are far more severe for a second offense OWI. The maximum jail sentence is increased from 93 days to one year, fines doubled from $500 to $1,000, and there is a mandatory vehicle immobilization for 90-180 days unless it is forfeited. The judge could order you to install an ignition interlock device. In addition, you will face six points on your driver’s license, $2,000 in driver’s responsibility fees, and your license plate will be confiscated.

OWI 2nd Offense:

  • Five days to one year in jail
  • Two years probation
  • $1,000 fine plus court costs
  • 30-90 days of community service
  • Six points on your driving record
  • Possible ignition interlock
  • Mandatory vehicle immobilization for 90-180 days, unless forfeited
  • License Plate confiscation
  • Driver’s License revocation for one-year
  • $2,000 in Driver’s Responsibility Fees ($1,000 for two consecutive years)

With most judges, if you are convicted of an OWI second offense, jail is almost a given. How much jail you receive will depend on your judge. An OWI attorney who is experienced with your particular judge will be able to tell you what to expect. Some judges may sentence you to as little as five days, while others will incarcerate you for 45 or 60 days. Sometimes even longer.

Mandatory Driver’s License Revocation

If convicted of a second OWI offense within seven years of the first one, your driver’s license will automatically be revoked. That is a separate penalty that the Secretary of State imposes. The court, the judge, and the prosecutor have no power or authority to change or alter it. That will happen. The bad news is that you don’t automatically get your driver’s license back after a period of time. You will have to wait at least one year and petition the Driver’s Assessment and Appeals Division (DAAD) through the Secretary of State for a hearing. Even if you are successful, you will only get a restricted license with an ignition interlock device. Then you will have to wait another year and petition the DAAD again to have your full driving privileges restored. That is another hurdle that I would advise no one to attempt without an experienced driver’s license restoration attorney. One wrong misstep, one inaccuracy or discrepancy and your petition will be denied. You cannot re-apply until you wait at least one year. Getting convicted of an OWI second offense is serious business.

Sobriety Court

You may be eligible for sobriety court. This is a Michigan specialty court for habitual drunk driving offenders. The admission criterion depends on what jurisdiction or court you are in. Some will only take OWI 3rd offenses (felony drunk driving), while others will accept OWI 2nd offenders. It is a special probationary program that usually lasts anywhere from 12-18 months. The probation is divided into phases and involves a lot of hard work. A lot of hard work. The end result is what makes it worthwhile. The carrot that sobriety court dangles infront of you is a charge reduction. You will plead upfront to the charged offense (OWI 2nd or 3rd) and upon successful completion (at a graduation ceremony nonetheless) you charge will be reduced. Also, with sobriety court you will have a restricted license so you can attend all the necessary court dates, recovering meetings, alcohol and PBT testings, etc. Ask your OWI attorney if sobriety court is an option for you.

Michigan OWI Defense Lawyer

If you are facing an OWI 2nd offense, you need a lawyer who will thoroughly review every aspect of your case. That is how we approach an OWI case. If you are facing an OWI charge contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI defense lawyer.

Representing felony and second offense 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.

OWI Causing Serious Injury or Death

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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

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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.

Child Endangerment DUI

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Michigan Child Endangerment OWI Attorney

Lansing OWI Child Endangerment Attorney

If you are charged with OWI in Michigan, the penalties are tough including up to 93 days in jail, $500 in fines plus costs of prosecution and arrest, 180 days suspended license with the first 30 days being a “hard suspension” (no driving at all), six points on your driving record, 45 days community service, and possible ignition interlock. Defendants charged with a High BAC or “Superdrunk” face heightened punishment.  If you are driving while intoxicated with a child in the car, the penalties are much worse.

 

If convicted of driving while intoxicated with a passenger in the vehicle that is under 16 years of age, the driver faces the following penalties:

 

First Offense Child Endangerment OWI

  • A minimum of five days in jail up to one-year (all but two days can be suspended)
  • $200-1,000 in fines
  • 30-90 days community service
  • 180 days suspended license; 90 days “hard suspension”
  • $1,000 in driver responsibility fees ($500 for two consecutive years)
  • Possible vehicle immobilization up to 180 days

 

Second Offense Child Endangerment OWI

  • One to five years in prison
  • $500-5,000 in fines
  • 30-365 days community service
  • Vehicle immobilization one to three years unless forfeited

 

OR

 

  • 30 days to one year in jail plus probation
  • $500-5,000 in fines
  • 60-180 days community service
  • Vehicle immobilization one to three years unless forfeited

 

Underage Driving Child Endangerment OWI

 

As part of Michigan’s “zero tolerance” laws, if someone under 21 is driving a car with a blood alcohol content (BAC) of .02 or greater or any amount AND has a passenger under 16 years of age, he faces the following penalties:

 

First Offense Under 21 Driving Child Endangerment OWI

 

  • Up to 93 days in jail
  • $500 in fines
  • 60 days community service

 

Second Offense Under 21 Driving Child Endangerment OWI

  • Five days to one years in jail (at least two days are mandatory and cannot be suspended)
  • $200-1,000 in fines
  • 30-90 days community service

 

Multiple Counts for Multiple Children

 

If there is more than passenger under the age of 16, the driver can be charged with multiple counts of Child Endangerment OWI because it passes the “multiple harms test” meaning there are no Fifth Amendment violations against double jeopardy.

 

Any OWI charge is serious, but if there are underage passengers, the stakes get even higher and negotiations a lot tougher. If you have been charged with Child Endangerment OWI, you need to have an experienced DUI attorney on your side to review your case and fight for the best possible outcome. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to our Michigan OWI attorney.

 

Representing OWI child endangerment charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Barry, Shiawassee, Genesee, Washtenaw, Kent in the cities of Lansing, East Lansing, Mason, Charlotte, St. Johns, Ithaca, Jackson, Brighton, Howell, Hastings, Corunna, Flint, Ann Arbor, and Grand Rapids.