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result of the defendant’s operation of the motor vehicle and whether there was any intervening causes that may have superseded and severed the causal link.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

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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.

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.

Commercial Driver’s License (CDL) and DUI

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Lansing Michigan Drunk Driving Defense Attorney

 

Ordinarily a plea to a reduced charge of Operating While Visibly Impaired (Impaired Driving) or the non-alcohol related offense of Reckless Driving is acceptable to most people charged with OWI. However, for those who have a commercial driver’s license (CDL) such as: delivery persons, truck drivers, chauffeurs, bus drivers, or heavy equipment operators this will not suffice. Any sanction on a regular operator’s driver’s license will automatically result in a CDL sanction. The stakes are much higher for CDLs because unlike an ordinary driving suspension, the Secretary of State shall not issue a license to a person whose operator’s license has been suspended in any state. The Secretary of State can grant the CDL if five years has passed since the suspension period lapsed and the suspension was from a jurisdiction other than the one who issued the driver’s license.

The bottom line: if your driver’s license is suspended or restricted, you lose your CDL which means you lose your job. The only option other than a dismissal for drivers who depend on their CDL is the civil infraction of careless driving which prosecutors rarely give. That is, unless they have to or you can force their hand by making their case crumble apart.

There is also a different blood alcohol content (BAC) for those operating a commercial motor vehicle. The regular BAC of .08 does not apply. Instead, the legislators impose a more strict BAC of .04 – .08. You can lawfully operate a commercial motor vehicle only if you have a BAC less than .04. If you are charged with operating a commercial vehicle with an unlawful BAC, you face up to 93 days in jail, a $300 fine, and costs of prosecution. You may re-apply for a CDL after the suspension period of 90 days lapses. If you are convicted of such an offense two times in a seven-year period, you permanently lose your Michigan CDL. Oddly enough, the statute doesn’t address operating a commercial vehicle with a BAC above .08, but it’s safe to say the legislators were merely trying to adopt a lower threshold for those operating a commercial vehicle.

If you depend on your CDL for a living and you are charged with OWI, you have a lot to lose. That is why you need the best representation possible. Seek out an experienced Michigan OWI attorney so you can get the best possible resolve. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan DUI attorney.

 

Representing clients on DUI, OWI, and drunk driving charges throughout Michigan in the counties of Ingham, Eaton, Barry, Clinton, Gratiot, Jackson, Livingston, Washtenaw, Kent, Calhoun and in the cities of Lansing, East Lansing, Mason, Haslett, Okemos, Williamston, Eaton Rapids, Charlotte, Potterville, Hastings, St. Johns, Bath, Ithaca, Alma, Jackson, Brighton, Howell, Ann Arbor, Kalamazoo, Battle Creek Grand Rapids.

Medical Marijuana DUI: Court Rules Prosecutors Must Prove Drivers “Under the Influence”

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The conflict between Michigan’s Medical Marijuana Act (MMMA)[1] and the OWI statute has now been settled. On Tuesday the Michigan Supreme Court announced that the MMMA trumps the OWI statute[2] thus allowing medical marijuana patients to legally operate a motor vehicle unless the prosecution can prove they are “under the influence” of marijuana. This is similar to the standard for when a driver is taking prescription medication in which he cannot be guilty of drunk driving unless the medication “substantially interferes with his ability to safely operate a motor vehicle.” Furthermore, the Supreme Court noted that the state legislatures should more specifically define “under the influence” in the MMMA.
The case is People v Rodney Koon and has been a hotly discussed and debated topic in DUI circles ever since it began. Mr. Koon was stopped for speeding around Traverse City when police seized a marijuana pipe. Koon stated he was a medical marijuana patient and thus believed he was entitled to drive his car with marijuana in his system. A blood test revealed he had 10 nanograms per milliliter (10 ng/ml) of THC in his system.
Under the OWI statute, driving with any amount of marijuana in your system is against the law. However, the MMMA states a medical marijuana patient can operate a motor vehicle unless “under the influence of marijuana.” Unfortunately, the drafters of the act didn’t elaborate any further on what they meant by “under the influence.” The prosecution’s argument was that the two statutes, when read together, clearly reveal what the legislators meant; they intended any amount of marijuana in someone’s system to be considered “under the influence.” The defense’s argument was that the legislators clearly did not intend that as that would effectively make it legally impossible for a medical marijuana patient to ever drive a car, especially since it stays in the system for up to a month. They argued that the prosecution should have to show that the marijuana “substantially effected the driver’s ability to safely operate the motor vehicle.” After all, why would the legislators allow people to use medical marijuana only to prohibit them from ever driving? Both the district and circuit courts agreed with the defense’s argument. The Court of Appeals, however, did not. 
That is when the charge began from medical marijuana patients that they would never be allowed to legally drive since at least some amount of marijuana will be present in their system, even if only used semi-regularly. While the argument sounds compelling at the onset, I found it to be rather theoretical and less realistic when examined more closely. Marijuana or THC will not register on a breath test which is the most frequently used chemical test to determine intoxication. It would show up in a blood test, but unless the officer has some reason to suspect the driver of using drugs, they don’t have someone qualified to use the DataMaster, or it hasn’t been calibrated, then it’s not likely the officer would do a blood draw. From my experience, officers generally only insist on a blood draw if they believe drugs are involved or when the driver has been in an accident and they perform a blood draw out of convenience. Nonetheless their point couldn’t completely be ignored. The real question was what was the legislative intent and if there is an apparent conflict between the two statutes, who fills the gaps– the Court or the legislators?
I don’t believe that the legislature intended for medical marijuana users to never drive again. However, they created their own dilemma by not being more precise and more clearly articulating their intentions in the MMMA. This entire problem could have been avoided by merely adding one sentence (“by ‘under the influence’ we mean…”). Surely it’s not as if they couldn’t see this becoming an issue? Or maybe it was a matter of them foreseeing that the courts would eventually bail them out, thus alleviating the need to be more specific. It’s happened before after all.
 
Just a couple of years ago the issue arose of whether a homeless person had to comply with the Sex Offender Registry’s requirement of “updating his residence.” The issue was how do you comply with such a directive when you’re literally homeless and don’t have a traditional residence or address? Michigan’s SORA had no apparent provisions to deal with this issue although many other states did. Once again the Supreme Court stepped in and instead of leaving the issue to the legislators to fix, they held that a homeless person can register a residence– he can put down his address as 123 Homeless.[3]
 
Essentially, the court has done the same thing here. Without any quantifiers to fill the gap, I think the more specific language of the OWI statute trumps the vagueness of the MMMA. The legislators can (and should) easily fix the problem by attaching a measuring unit (arbitrary number?) for the amount of THC that can be allowed in a medical marijuana user’s system while driving just like they’ve done with the .08 blood alcohol threshold. Washington has recently resolved a similar conflict by allowing up to 5 ng/ml of THC in a driver’s system to lawfully operate a car.[4] Unfortunately for Mr. Koon, even if Michigan had adopted this standard, he would have still been twice the legal limit. If anything, this ruling gives a much wider degree of latitude to medical marijuana patients because prosecutors don’t have to show that alcohol impaired or substantially effected a driver’s ability to safely operate a car.  They just have to show his BAC at the magic number of .08. 
In any event, the conflict between the two acts is now resolved. The bottom line: if you are a medical marijuana user and you’re charged with OWI, now the prosecutor has to prove you were “under the influence.” Whatever that means. Is a “legal limit” forthcoming for marijuana like the BAC for alcohol? Let’s see if the legislators clean up their mess.
If you or someone you know has been charged with DUI or OWI, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI Attorney about your case.
Representing clients on drunk driving charges throughout Michigan in the counties of Ingham, Eaton, Barry, Clinton, Gratiot, Jackson, Livingston, Washtenaw, Kent, Calhoun in the cities of Lansing, East Lansing, Mason, Charlotte, Hastings, Bath, St. Johns, Ithaca, Jackson, Brighton, Howell, Ann Arbor, Grand Rapids, Kalamazoo, Battle Creek, Haslett, Okemos, Holt, Williamston, Eaton Rapids.
[1]    MCL 333.26421 [2]    MCL 257.625(8) [3]    Peo v Dowdy, 489 Mich 373 (2011) [4]    Wash Rev Code 46.61.502(1)(b)

How I Approach a Michigan DUI Case

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Lansing Michigan OWI Attorney

When a client comes into my office facing a DUI they have a myriad of concerns, especially if it is their first offense. Their fears center around if they are going to jail and are they going to lose their license. This is closely followed by concerns of losing their job, scholarship, or not getting accepted into college or graduate school. After carefully explaining the process, what they are charged with, and what penalties they are facing, I explain my approach on how I handle a DUI case.

Challenging the Stop

First and foremost, I always look at the initial stop to see if there are any arguments to be made that the stop is invalid. After all, the police just can’t pull you over for any reason. They have to have “reasonable suspicion” which is a lower standard than probable cause. Anything from speeding to infractions of the motor vehicle code will suffice. Sometimes the police initiate a stop based on an anonymous call that a possible drunk driver is on the road. These have to be very carefully scrutinized as the courts have held that the information given by the caller must be very specific and not too general. The officer’s observations and length of the observation will play a critical role in determining the validity of the stop. It is very important to obtain the police reports, cruiser cam videos, and any 911 tapes to properly evaluate the stop.

This is not only the most logical place to start, but it also often proves to be the most effective because if you can get the judge to rule that the reason for the stop was insufficient, then all the subsequent evidence following the stop and arrest is invalid as “fruit of the poisonous tree” and thus, your case will be dismissed for lack of evidence. Don’t let the police trample on the Fourth Amendment– make sure they have a legally articulate reason for pulling your car over.

DUI Investigation– Field  Sobriety Tests

The next phase is to look at what happens after stop. This involves your initial encounter with the police before beginning their drunk driving investigation. Usually it starts with the police asking you to step out of the car and perform one or several field sobriety tests, concluding with the preliminary breath test and then the arrest. This is often the bulk of my investigation as there are a lot of issues at play here. First of all, the police just can’t ask you to perform field sobriety tests just because they feel like it or it’s 2:30 on a Saturday morning (although that may very well be the real reason). The police will have to point to facts that give them suspicion that the driver is drunk or impaired by some substance. This can include a lot of factors including: a strong odor of intoxicants, bloodshot eyes, slurred speech, disorientation, nervousness or fumbling around, responding slowly to questions or requests, admitting to drinking… it’s a long list. I carefully examine the police report and the video to not only see if they match up, but if what they are claiming gives them adequate reason to begin the field sobriety tests such as the one-legged stand, walk-and-turn, and horizontal gaze nystagmus.

Once the field sobriety tests begin, I carefully review the video to see if they are done properly. If they are not administered properly by the officer, that can give good grounds to challenge the arrest if you can successfully eliminate the evidence that gave rise to the arrest. You would be surprised at how many times the tests are done wrong. Only someone who is trained in what to look for will be able to scrutinize the tests to check for any issues or deficiencies. Any inadequacy in either the stop or field sobriety testing can provide ammunition to either get the charge dismissed or to get a better plea offer than the standard.

The preliminary breath test is usually given at the roadside and is often the clincher in the officer deciding to make the arrest. This too must be carefully evaluated. Not only does the officer administering the PBT have to posses the proper training and certification, but there must be a 15-minute observation period prior to administering the test to make sure the subject has not regurgitated or placed anything in their mouth during that time period as it could effect the validity of the reading. It is also important to obtain the maintenance records and calibration logs for the PBT to make sure that it was properly calibrated and maintained. If not, that could possibly get the PBT results suppressed.

Chemical Test– Breath, Blood, or Urine

Next comes the chemical testing. Although the officer has a choice of breath, blood, or urine, they usually opt for the breath test by the DataMaster machine at the police station. Again, there must be a 15-minute observation period as well as the machine being maintained and calibrated and operated by someone trained and certified. Sometimes the officer chooses blood as the choice for the chemical test. Usually they only do that when they suspect the driver of having drugs in their system (the breath machine only measures breath alcohol) or the DataMaster is unavailable, not calibrated, or no one that is certified is available to operate it. Blood draws have their own unique criteria. Again, it is important that it must done by someone who is trained and qualified to do blood draws and that it was done in the prescribed manner.

Chemical Test Rights

It is also important to carefully check that the chemical test rights were given to the suspect before administering the chemical test. Usually there is a form that is checked off and signed that accompanies the police report. If these were not given or were inadequately given, there may be grounds to suppress the chemical test results. When that happens, the case is often dismissed or at least severely reduced. That is why it is critical to closely evaluate the entire police report and other information that goes along with it.

I always make sure to get all the material I need from the police department via a FOIA request. This is how you can tell a good, experienced DUI attorney from a lazy novice. The inexperienced DUI attorney will get the police report and maybe the cruiser cam video and that’s it. In order to properly evaluate the case much more is needed. Besides the police reports and cruiser cam videos, it’s also important to obtain the breath room video, calibration logs and maintenance records for the roadside PBT and DataMaster, certifications of the PBT and DataMaster operator, complaint reports and discipline records of the police officers involved with the arrest, as well as all the booking information including mugshot and fingerprints.

This is how a DUI attorney earns his fee and is worth every penny. If you’re shopping around and someone says they will represent you on a DUI for $500, run for the hills from that guy because he can’t possibly do an adequate job and put in all the time necessary to represent you. He will get the police report and maybe the videos and plea you out at the first court appearance. That is not the guy you want. The only thing worse than representing yourself is being represented by a bad attorney. A good DUI attorney will more than pay for himself. The stakes are too high and the procedure much too complicated to do it alone.

After I have decided on whether there are grounds to challenge the stop or suppress the evidence, or the judge has ruled against me on such matters, my focus now shifts to a different phase.

My first objective is to see if there is any way possible that the charge can be outright dismissed. That’s always my goal right out of the shoot. If that proves to not be the case, now we move on to what I call minimizing the damage. That means I try to work out the best plea possible with the prosecutor and the best sentencing outcome as well. The standard plea in most jurisdictions for a first offense Operating While Intoxicated (OWI), is Operating While Visible Impaired (OWVI) or Impaired Driving. This may not work for some people as while it has it benefits from the OWI charge (restricted as opposed to suspended license, less points on your driving record, lower fines and driver’s responsibility fees) it is still a substance-related offense which may not help some people depending on their profession or educational pursuits. If that is the case, the tactics must switch to pursuing a non alcohol-related conviction such as Reckless Driving.

On it’s face, such a plea doesn’t look like a suitable offer considering it carries the same points and driver’s responsibility fees as the OWI charge plus a hard suspension meaning no driving for 90 days. At best it seems a lateral plea but the benefit it that it doesn’t carry the stigma of a substance-related conviction like impaired driving. Also, if you unfortunately get charged with a DUI later on, you will be charged as a first and not a second offender. In the long run, this may help some clients even if the initial pain is more severe. You would think prosecutors wouldn’t be so reluctant to the plea but due to political pressure to get a “drunk driving conviction” they consider it a concession and usually will not willingly offer it unless persuaded with good reasoning by your DUI attorney. Financially the township, city, or county will come out the same, if not better, but it’s not as big of a feather to stick in their cap as an impaired or OWI conviction. Your best bet in obtaining Reckless Driving is on your first offense and the lower your blood alcohol content the better. If it’s your second offense, it’s harder to convince them to have sympathy for the detriment it’s going to have on your career. Absent some problems with their case to use as leverage, your best bet at getting a reckless plea is for your first offense.

Once a conviction or plea has been entered, the next step before the sentencing is the mandatory alcohol assessment by the probation department. A lot of people and attorneys just don’t realize how critical this is. It is vital that your client score the lowest they can on the assessment thus demonstrating that they are a low risk. The higher the score, the higher they look as a risk which means the worse the recommendations are from the probation department. Often the higher the score the more cumbersome and expensive the recommendations too. While jail is still a rarity for first time offenders, other punishment comes in the form of reporting probation with random and/or scheduled pbts, community service, alcohol educational classes, attending a MADD Victim Impact Panel; all of which cost money on top of your fines, court costs, driver’s responsibility fees, and higher insurance premiums. That’s why it is important to get the best score you can on the assessment. I often spend an hour or more preparing the client for the assessment and sometimes have them get an assessment shortly after hiring me to 1) give me an idea as to what their assessment will reveal, and 2) if it’s good use it as leverage with the prosecutor for getting a better deal. This is an important step than many attorneys overlook or downplay.

The conclusion of your DUI case is the sentencing. This takes place last after you and the judge have read the Presentence Report completed by the probation department. Many judges strictly or at least closely follow the recommendations but there are some that can be persuaded otherwise. That is where having a good, experienced attorney comes in handy. I prepare for sentencing just like I do the other phases of the case. It’s important to not only go over the Presentence Report for errors, but on how to respond or mitigate any unfavorable comments. It’s also important to present your client in the best light possible. This can include bringing documentation of any educational or professional accomplishments, volunteer work, family support, evidence of any AA attendance or alcohol classes that they have attended, letter of support or character reference. I prepare to point out as many good qualities that my client has in order to show the court not just their redeeming qualities, but to show the occasion that gave rise to their DUI was an anomaly, uncharacteristic, and not who they truly are. I then prepare the client on how to address the court if they wish to. I encourage clients to but some don’t and I respect that as not everyone is comfortable speaking infront of the judge in a crowded courtroom. It’s better to remain silent than for them to speak and make matters worse.

That is how I prepare for and approach a DUI case. Hopefully you can see the value in hiring someone experienced in this complex area of practice. It can be a lot of work, but the results can also be very rewarding and my goal is to always strive to get the best possible resolve for my client whether that is a dismissal, a good plea deal, or go to trial. Whatever the outcome, it all starts with preparation.

If you have been charged with DUI, OWI, or drunk driving, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan DUI lawyer to review your case.

Representing clients on charges of DUI and OWI throughout Michigan in the counties of Ingham, Eaton, Clinton, Barry, Gratiot, Jackson, Livingston, and Shiawassee in the cities of Lansing, East Lansing, Mason, Holt, Williamston, Okemos, Eaton Rapids, Charlotte, Hastings, Ithaca, St. Johns, Bath, Brighton, Howell, Corunna, Durand.

Field Sobriety Test: Walk and Turn

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FST– Walk and Turn (WAT)

This is the second of the three field sobriety tests that we will be discussing in detail. This one requires standardized instructions. The subject is instructed to perform nine steps touching heel-to-toe and is then told to turn around and perform the nine heel-to-toe steps again. However, a demonstration by the officer only consists of three heel-to-toe steps.

 

The officer is taught to look for eight clues which can off the score of the subject. They are:

  1. Unable to keep balance while listening to instructions
  2. Starting before the instructions are finished
  3. Stopping while walking
  4. Not touching heel-to-toe
  5. Stepping off the line
  6. Using arms to balance
  7. Making an improper turn
  8. Performing an incorrect number of steps

If the driver exhibits two or more clues, they fail, thus indicating intoxication.

This test requires a straight line and a reasonably dry, hard level and non-slippery surface and enough room to turn. Often a burm line or parking space line will be used if available. If the driver is wearing two-inch heels, they should be given a chance to take them off. Take as many mental notes as possible to relate to your DUI lawyer about the surrounding area. It is also best to view the place in the daytime for a more accurate observation. Again, the police report and cruiser cam videos should be carefully scrutinized to make sure the instructions were given properly and the test was administered correctly.

 

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

 

Defending 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.

Field Sobriety Test: Horizontal Gaze Nystagmus (HGN)

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Lansing Michigan OWI Attorney

FST– Horizontal Gaze Nystagmus (HGN)

The HGN supposedly detects an involuntary jerking of the eye (nystagmus) while the eyes attempt to follow a stimulus. In other words, it involves the eye following an object to determine characteristic eye movement. Police officers across the county have been trained to use this as a means of determining if a driver is inebriated even though there are more than three dozen potential causes of nystagmus other than intoxication. This is among the longest and most complex FST. Here’s how it goes.

First, the officer must check the eyes by holding a stimulus (usually a pen) 12 to 15 inches from the nose slightly above eye level and then move it smoothly across the field of vision checking for resting nystagmus, equal pupil size, and equal tracking. The test must begin with the left eye and then right at a rate of two seconds per each eye per pass. Then, the officer must check for distinct and sustained nystagmus at maximum deviation, tracking each eye separately starting with the left eye. He must hold the stimulus at least four seconds once the stimulus is at the farthest point and the eye is at maximum deviation. This is repeated to check for heavy or distinct, sustained nystagmus.

The next step is to check for an onset of nystagmus prior to 45 degrees for the stimulus to reach the edge of the driver’s shoulder. The officer must stop if he sees any signs of jerking to see if it continues. This is repeated so that each eye is checked twice. The full four seconds must be used because if the stimulus moves too fast, the officer may go past the point of onset or miss it altogether.

Officers are trained to look for three clues when evaluating the nystagmus in each eye:

  1. An inability to follow a moving object smoothly
  2. A distinct and sustained nystagmus at maximum deviation
  3. An onset of nystagmus at prior to 45 degrees

There must be a total of 14 passes for approximately 84 seconds. If the officer does a different number of passes than this or the time if significantly above or below 84 seconds, you know they’ve done it wrong. It is very important that the police report and cruiser cam videos be carefully examined to scrutinize the administration of this test.

 

If you have been charged with an DUI, call Austin Legal Services, PLC at (517) 614-1983 to speak to our Michigan OWI Attorney about your case.

 

Representing OWI Clients throughout Michigan in the counties of: Ingham, Eaton, Jackson, Livingston, Shiawassee, Kent, Clinton, Barry, and Gratiot and in the cities of: Lansing, East Lansing, Mason, St. Johns, Bath, Ithaca, Charlotte, Jackson, Brighton, Howell, Corunna, Grand Rapids.