Common Questions in DUI Cases

DUI 19

Lansing Michigan OWI Attorney

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

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

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

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

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

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

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

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

Will I Lose My Driver’s License?

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

Will I Go to Jail?

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

Will I be Placed on Probation?

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

Will I Have to Use an Ignition Interlock Device?

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

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

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

Should I Take my OWI Charge to Trial?

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

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

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

Can an OWI be Expunged?

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

Do I Need a Lawyer for a DUI?

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

Lansing Michigan OWI Attorney

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

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

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.

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

0_0_0_0_250_187_csupload_57880497Lansing Michigan DUI Lawyer
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

0_0_0_0_250_137_csupload_54758312HOW I APPROACH A MICHIGAN DUI CASE

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.