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result of the defendant’s operation of the motor vehicle and whether there was any intervening causes that may have superseded and severed the causal link.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

Common Questions in DUI Cases

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Lansing Michigan OWI Attorney

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

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

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

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

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

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

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

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

Will I Lose My Driver’s License?

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

Will I Go to Jail?

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

Will I be Placed on Probation?

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

Will I Have to Use an Ignition Interlock Device?

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

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

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

Should I Take my OWI Charge to Trial?

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

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

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

Can an OWI be Expunged?

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

Do I Need a Lawyer for a DUI?

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

Lansing Michigan OWI Attorney

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

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

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.

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.

“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)

DataMaster and Breath Test Instrument Operators for OWI Cases

0_0_0_0_250_261_csupload_58323051There are administrative rules governing evidential breath test instruments that are used in drunk driving OWI cases. Any officer administering such a test must be properly trained and such instrument shall only be operated by an appropriate class operator pursuant to 2010 AC, R 325.2658(4). There are six classes of operators for preliminary breath tests (PBT) and evidential breath tests such as the DataMaster. The class of operators are: Class I, Class II, Class IIIA, Class IIIB, Class IVA, and Class IVB. The lowest level Class I operator is only qualified to administer the PBT or the roadside breath test. Class II through Class IVB can administer the evidential breath test at the police station which is usually the DataMaster. The Class IVB operator is the only one qualified to perform the 120-day maintenance check and the calibration or any maintenance on the DataMaster.
To be classified as operators, the officers must take training on each class they wish to be qualified for. This training usually consists of one day for each one. Class I operators receive two hours of training for the PBT, Class II receives six hours of training, while the remaining classes are eight hours each. It is always important in any DUI case to verify that the operator is certified to perform the functions that he did in the case at hand and if the operator’s certification is current.
 
An evidential breath test analysis must be on specific forms that the police department approves. The OD80 is the breath alcohol content form. Your OWI attorney should carefully scrutinize for any missing detail or information on the form. The start time for the observation period should be carefully compared with the breath room video to make sure they correspond. There is a mandatory 15-minute period that the officer must observe the suspect before administering the breath test. This is to make sure that the suspect does not regurgitate, smoke, or otherwise place anything in the mouth during this time period because any of these instances could mess up the reading of the machine. That doesn’t mean the officer has to stare directly at the suspect non-stop for 15 minutes. As long as they are in his peripheral vision that will suffice. If he turns his head for a significant amount of time or leaves the room or clearly isn’t paying attention, then that is a violation that can get the results of the breath test suppressed.
 
A blank sample is done first to test that the machine is working properly. Usually two breath samples are performed although only one is necessary. The second sample is to merely confirm the first sample by making sure its variance is within the acceptable range or margin of error which is essentially 10%. In other words, if the first result was .10 and the second result .11, that is acceptable. If the first result was .10 and the second result .13, that would not be acceptable. The officer can do a third sample but at that part it’s too easy to argue the machine was not working properly. 
 
The DataMaster must also be inspected weekly on a log sheet known as the OD33 and there must be separate log sheets for each month. The supervisor must sign the logs at the end of each month. It’s important that your DUI attorney check the calibrations on the logs to make sure they are within the acceptable range. Also, only certain mixtures that are pre-certified by the department can be used to test the machine. It is important that the mixtures (lot numbers) used is an approved lot number and that it hasn’t expired as they do have shelf lives. The PBT must be calibrated monthly.
 
In order for any chemical test to be admitted into evidence, essentially the prosecution must prove three things: 1) the operator of the chemical test was qualified, 2) the proper method was used, and 3) the testing device was reliable.
 
This is a very complex and scientific area of the law and each requirement and each stage is critical. That is why it is extremely important that each procedure and rule must be scrutinized carefully to make sure everything was done properly by someone with the proper training to do so. Otherwise, the results could be inaccurate which can lead to false convictions. If you have been charged with OWI, make sure you have an experienced OWI lawyer representing you.
If you have been charged with an OWI, you need to have an experienced Michigan OWI attorney thoroughly review your case, including the calibration, maintenance of the chemical breath test and the certification of the DataMaster breath test operator. Call Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan OWI attorney today.
Representing client on OWI and drunk driving charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Barry, Jackson, Gratiot, Washtenaw, Kent, Livingston, Calhoun in the cities of Lansing, East Lansing, Mason, Haslett, Okemos, Holt, Williamston, Charlotte, Potterville, Hastings, St. Johns, Bath, Jackson, Ithaca, Alma, Ann Arbor, Grand Rapids, Brighton, Howell, Battle Creek, Kalamazoo.

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.