Proving Causation in OWI Causing Injury and OWI Causing Death Cases

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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result of the defendant’s operation of the motor vehicle and whether there was any intervening causes that may have superseded and severed the causal link.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.

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.

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.

 

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.

Preliminary Breath Tests (PBT)

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A preliminary breath test (PBT) is a portable, handheld device that is used a to measure a person’s blood alcohol content (BAC) by measuring the amount of alcohol you have on your breath as you exhale into the PBT. It oxidizes the alcohol in your breath as it passes over the fuel cell as it attempts to calculate the change in electrical current as it flows through the device. PBTs are normally used by police at roadside investigation where the person detained is suspected of drunk driving or DUI/OWI.
 
The device can only be used by someone trained and certified. The operator must take a training class and possess a valid Type I Operator’s certificate. The officer must also abide by the 15-minute rule which requires the officer to observe the suspect for at least 15 minutes prior to administering the PBT to make sure nothing has been placed into the mouth or that the person has not belched or regurgitated during that time period as any of those occurrences could throw the results of the machine off. The device must also be calibrated and maintenanced at least once a month.
 
The purpose of the PBT is to determine if there is probable cause to arrest the suspect. Virtually nothing good can come from submitting to the PBT as if it is .08 or above, that establishes probable cause but even if it doesn’t, the officer can still use other observations or field sobriety test results to arrest you. Refusing to take a roadside PBT is a no-point civil infraction with a fine less than $200. It is not a crime and no points will be added to your driving record. If you are under 21 and you refuse a roadside PBT, it is still a civil infraction but two points will be added to your driving record.
Do not confuse the roadside PBT with the evidential breathalyzer at the police station, known as the DataMaster. That is after you have already been placed under arrest and you will be asked to breath into the machine, usually twice. Again, the 15-minute observation period must be conducted. If you refuse to blow into the DataMaster, your license will be suspended and six points added to your driving record under the Implied Consent Law. You can contest the refusal at an Implied Consent Hearing at the Secretary of State, but those can be difficult to prevail on.
If you have been charged with OWI, consult with a Michigan OWI attorney at once.  Call Austin Legal Services, PLC at (517) 614-1983 for a free, no obligation consultation today.
Representing clients charged with OWI, DUI, and drunk driving throughout Michigan in the counties of Ingham, Eaton, Jackson, Barry, Clinton, Gratiot, Livingston, Calhoun, Kent, Shiawassee in the cities of Lansing, East Lansing, Mason, Charlotte, Jackson, St. Johns, Bath, Ithaca, Alma, Grand Rapids, Brighton, Howell, Kalamazoo, Battle Creek, Haslett, Okemos, Eaton Rapids.

Hardship Appeal: Challenging Your Driver’s License Suspension

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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.

“Operating” a Motor Vehicle Defined for OWI/DUI Cases

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One of the elements of an OWI or drunk driving offense, is that the person had to be “operating” a motor vehicle. Sounds simple enough, but the case law trail on what constitutes “operating” says otherwise. Usually the operating part is not in dispute. The issue of operating most commonly arises in situations where someone is found sleeping in a car or passed out in a car along the roadside or in a parking lot. The question now becomes can the prosecutor prove the person was “operating” the vehicle and were they “operating” the vehicle while intoxicated? These unique circumstances can lay the groundwork for a good argument on a motion to dismiss or to raise reasonable doubt at trial. The suspect must be in “actual physical control” of the vehicle. Let’s take a closer look at how the courts have defined “operating.”
 
The Michigan Supreme Court gave the following definition: “'[O]perating’ should be defined in terms of the danger the OUIL [operating under the influence of liquor] statute seeks to prevent: the collision of a vehicle being operated by a person under the influence of intoxicating liquor with other persons or property. Once a person using a motor vehicle as a motor vehicle has put the vehicle in motion, or in a position posing a significant risk of causing a collision, such a person continues to operate it until the vehicle is returned to a position posing no such a risk.” [1] This standard has been upheld and recently the Court of Appeals rejected replacing it with a “to cause to function” standard. [2] In other words, “actual physical control” includes scenarios where a suspect has put a vehicle in motion or in a position posing a significant risk of collision. The suspect is in “actual physical control” until that risk of collision no longer exists.
A person can be convicted of a DUI or OWI based on circumstantial evidence. The evidence would have to show that a reasonable conclusion could be reached that the suspect had been operating the motor vehicle sometime before the arrest, even if there was no testimony or video or photographic evidence that shows the suspect operating the vehicle. This can prove to be quite difficult for the prosecution as they have to prove beyond a reasonable doubt that 1) the suspect was operating the vehicle, 2) someone else was not operating the vehicle, and 3) the suspect’s blood alcohol content or BAC was above the legal limit at the time he was operating the vehicle. The last one can prove to be especially difficult if there is no way to pinpoint when the suspect was operating the car, if at all. The defendant could always claim or raise the question that he started drinking after the car was parked. These problems often come up in cases where the suspect is found sleeping in the car.
 
A case-by-case basis of the facts will determine how strong or how weak the prosecution’s case is. For example, was the car running or off? Was the car in drive, neutral, or park? Were the keys in the ignition? Did the suspect even have any keys? Was the car operable?  In one particular case, a sleeping motorist in a parked car along the roadside with no keys in hand who was arguing with another motorist when police arrived was found to not be in “actual physical control” of the vehicle. [3] In another case, the suspect was using a car as a shelter and was found to not be in “actual physical control” because he had no intentions of putting the vehicle in motion. [4]
 
How about placing a car in gear but never moving it? Yes, that counts for “actual physical control.” In that case, there was no dispute that the suspect placed a parked car in reverse, but ultimately the car never moved. The police officer saw the brake light come on. When a conscious driver places a car in gear, even if the car never is placed in motion, has placed the vehicle “in a position posing a significant risk of causing a collision.” [5]
 
Does “operating” mean “driving?” In 2010 we found out the answer to that was no! In that particular case the defendant was driving on a slippery highway with his BAC above the statutory limit when he lost control and struck a guardrail. After the collision his car was in the middle of the freeway blocking traffic in both lanes. One car came upon the incident and swerved onto the shoulder and came to a stop to avoid colliding with the defendant’s car. The defendant, with his hazard lights on, was attempting to push his car off to the side with his arms and legs. That is when another car came upon the scene and while swerving to avoid the defendant’s car, slammed into the other car on the side and killed the motorist. Defendant was charged with OWI Causing Death with the prosecutor alleging that Defendant, by pushing his car was “operating” it and that operation while intoxicated caused an accident that resulted in death. Defendant urged the court to adopt the “to cause to function” standard for “operating” but the Court of Appeals rejected the argument and concluded that the car does not necessarily have to be in motion at the time of the accident. [6]
 
This is a very complex area of the law which is why you need an experienced Michigan OWI attorney representing you, especially if your case hinges upon whether the prosecution can prove you were “operating” or were in “actual physical control” of a motor vehicle. The stakes are too high and the process too complex to do it alone. If you have been charged with OWI while in a parked car, contact a Michigan DUI lawyer today at (517) 614-1983.
Representing Clients on DUI, OWI, and drunk driving charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Barry, Gratiot, Jackson, Washtenaw, Kent, Livingston in the cities of Lansing, East Lansing, Mason, Charlotte, Hastings, Ithaca, Alma, Jackson, Ann Arbor, Grand Rapids, Brighton, Howell, Haslett, Holt, Okemos.
[1]    Peo v Wood, 450 Mich 399, 404-05 (1995)[2]    Peo v Lechleitner, 291 Mich App 56 (2010)[3]    Peo v Lyon, 227 Mich App 599 (1998)[4]    Peo v Burton, 252 Mich app 130 (2002)[5]    City v Longeway, 296 Mich App 1 (2012)[6]    Peo v Lechleitner, 291 Mich App 56 (2010)