Proving Causation in OWI Causing Injury and OWI Causing Death Cases

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Michigan OWI Causing Injury or Death Attorney

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

The Causation Element in OWI Causing Injury and Death Charges

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

Superseding Causes

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result of the defendant’s operation of the motor vehicle and whether there was any intervening causes that may have superseded and severed the causal link.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

Evidence that the Victim was Intoxicated

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

Michigan OWI Defense Attorney

If you have been charged with OWI Causing Injury or OWI Causing Death you need an experienced OWI attorney on your side. There are many variables that go into investigating a felony OWI case. You need an effective advocate to argue against causation to a jury. Call Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI attorney.

Representing OWI, drugged driving, and OWPCS charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Jackson, Livingston, Barry, Shiawassee, Gennessee, in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Jackson, Brighton, Howell, Hastings, Corunna, Durand, Flint.

Drugged Driving: Operating with the Presence of a Controlled Substance (OWPCS)

Drugged Driving

Lansing Michigan OWI Drugged Driving Attorney

Under the general DUI/OWI umbrella are categories of drugged driving. Not only can you be charged for operating a motor vehicle while under the influence of alcohol or driving with an unlawful blood alcohol content, but you can be charged for driving under the influence of controlled substances (cocaine, marijuana…) or prescription medicine. The standards are different in that the prosecutor does not have to prove an arbitrary amount of drugs in your system like the .08 BAC standard for OWI. Instead, the prosecutor only has to prove that you were operating a vehicle with any amount of a controlled substance.

Zero Tolerance: Driving with any Amount of a Controlled Substance

A person may not operator a vehicle on a public roadway if there is any amount of a Schedule I controlled substance under MCL 333.7212 or MCL 333.7214(a)(iv). This includes marijuana. It is a “zero tolerance” policy towards driving with any presence of a controlled substance regardless of whether it impacts your ability to drive. Even if it is a residual from a few days or even weeks prior (marijuana can stay in the system for up to a month) it doesn’t matter.

Schedule I Controlled Substances

Schedule I controlled substances include opiates, opium derivatives, hallucinogens, gammahydroxyutyic acid (GHB), ecstasy, and marijuana.

Michigan Medical Marijuana Card Patients

A licensed medical marijuana patient may drive as long as they are not “under the influence” of marijuana according to the Michigan Medical Marijuana Act (MMMA). The problem is the legislature didn’t clarify what they meant by “under the influence.” For example, Washington defined it in their DUI statute as having 10ng/THC per 100ml/blood. This created an apparent conflict with the OWI statute as it defines “under the influence” of marijuana as having any amount of marijuana in your system. The Michigan Supreme Court stepped into the role of the legislature and declared that the medical marijuana patients could drive as long as it does not substantially interfere with their ability to safely operate a car. That is what the prosecutor has to prove if a medical marijuana patient is charged with OWI or drugged driving.

Other Intoxicating Substances

On March 31, 2013 the statute was amended to include “other intoxicating substances.” That means any substance, preparation, or a combination of substances and preparations other than alcohol or a controlled substance that is either of the following:

  • Recognized as a drug in any of the following publications or their supplements: official US pharmacopeia, official homeopathy pharmacopeia of US, official national formulary
  • Substance other than food, taken into a person’s body including but not limited to: vapors or fumes that are used in a manner or for a purpose for which it was not intended and that may result in a condition of intoxication

OWPCS is unique in OWI cases as it does not require proof of “under the influence”—a long-standing foundation of drunk driving law.

Penalties for OWPCS

The penalties for OWPCS are the same as the OWI penalties with the exception that the driver responsibility fees are lower. If convicted a defendant faces up to 93 days in jail $500 in fines plus court and police costs, one-year probation, six points on your driving record, 180 days suspended license (first 30 days a “hard suspension”—no driving, with restrictions for the remainder 150 days), and $1,000 in driver responsibility fees ($500/year for two consecutive years).

Michigan Drugged Driving Attorney

If you have been charged with drugged driving or OWPCS, you need the representation of an experienced OWI attorney who will thoroughly evaluate every aspect of the case including the initial police contact, blood draws, and administration of any field sobriety tests. If you have been charged with any DUI offense contact Austin Legal Services, PLC today to speak to a Michigan OWI attorney.

Representing OWI, drugged driving, and OWPCS charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Calhoun, Jackson, Livingston, Barry, Shiawassee, Genesee, in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Battle Creek, Jackson, Brighton, Howell, Hastings, Corunna, Durand, Flint.

DUI Blood Draws

DUI Blood Draw

Lansing Michigan OWI Defense Attorney

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

Implied Consent

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

Admissibility of Blood Tests in OWI Cases

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

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

What Happens in an OWI Blood Draw

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

Scientific Testing Procedures for Blood Draws

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

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

Methods of Testing Blood Samples

There are three generally used methods of blood testing.

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

Whole Blood Versus Serum

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

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

Are Blood Draws Reliable in DUI Cases?

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

Michigan OWI Attorney

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

Representing felony OWI cases throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Kent, Washtenaw, Kalamazoo, Calhoun, Shiawassee, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Charlotte, Jackson, Brighton, Howell, Grand Rapids, Ann Arbor, Kalamazoo, Battle Creek, Hastings, Corunna, Durand.

Michigan OWI 2nd Offense

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Lansing Michigan OWI Attorney

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

Penalties of an OWI 2nd Offense

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

OWI 2nd Offense:

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

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

Mandatory Driver’s License Revocation

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

Sobriety Court

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

Michigan OWI Defense Lawyer

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

Representing felony and second offense OWI cases throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Kent, Washtenaw, Kalamazoo, Calhoun, Shiawassee, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Charlotte, Jackson, Brighton, Howell, Grand Rapids, Ann Arbor, Kalamazoo, Battle Creek, Hastings, Corunna, Durand.

Felony OWI: OWI 3rd Offense

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Lansing Michigan Felony OWI Attorney

 

An OWI charge can have a life altering impact on your future. If convicted of OWI or even Impaired Driving, you will have a criminal conviction on your record that can never be removed from your criminal or driving records. Your insurance will skyrocket, you will pay hefty fines and court costs, your car may be taken, your license suspended, probation will dictate your life for the next sixth months to a year, the college scholarship you had may be gone, and your career paths may be detoured or permanently altered. If you are charged with a felony OWI, the impact and consequences are much worse.

In Michigan, if you are convicted of drunk driving (OWI, Impaired Driving) for a third time in your lifetime, even if your previous convictions were 30 years ago, you will be a felon. Not only will you have a felony on your record, but the penalties attached to it are far worse than the OWI first and second offense misdemeanor punishments. The fines and costs are much greater, and it is all but guaranteed you will do some jail time, perhaps even prison. If you are charged as an habitual offender (previous felony convictions) the maximum penalties are even harsher. Also, being charged as a felony or third offense OWI means that it is stratospherically unlikely you will be offered a plea reduction to a misdemeanor OWI. If eligible, you may be entered into sobriety court which will usually lower the charge to a second offense OWI upon successful completion, but you will have the felony on your record in the meantime and the felony penalties that go along with it.

Penalties for an OWI 3rd Offense

You face up to five years in prison, plus $5,000 in fines and court costs, 60-180 days of community service, $2,000 in driver’s responsibility fees ($1,000 a year for two consecutive years), license plate and vehicle immobilization for one to three years (if not ordered forfeited). If you had your driver’s license suspended within the past seven years, you will lose your driver’s license for five years. Otherwise, you will lose it for a year. Even then, you are not guaranteed to get it back because you will have to be successful at a driver’s license restoration hearing for a Driver’s Assessment Appeal Division (DAAD) hearing officer.

It is important more than ever that you be represented by an experienced OWI attorney if you are facing a felony OWI. Unless they have to, prosecutors will not cut you a break during negotiations and neither will judges at sentencing. It is important that you have someone with experience and a trained eye to thoroughly review your entire case including the legality of the stop (did the police have reasonable suspicion), the administering of any field sobriety tests (were they administered correctly and under correct conditions, was the officer properly trained in how to conduct field sobriety tests and the preliminary breath test), were the observation and other rules followed with the evidential breath or other chemical test (was the officer certified to use the machine, was it properly calibrated, did it have maintenance issues, was the blood draw done properly, is there proper chain of custody). That is how we approach an OWI case. Leave no stone unturned because there are a lot of variables.

Michigan Felony OWI Attorney

If you have been charged with felony or third offense OWI, you need the best representation possible because your life and future plans are at stake. Contact Austin Legal Services, PLC at (517) 614-1983 to speak to a Michigan felony OWI attorney today!

Representing felony OWI cases throughout Michigan in the counties of Ingham, Eaton, Clinton, Gratiot, Jackson, Livingston, Kent, Washtenaw, Kalamazoo, Calhoun, Shiawasse, Barry in the cities of Lansing, East Lansing, Mason, St. Johns, Ithaca, Charlotte, Jackson, Brighton, Howell, Grand Rapids, Ann Arbor, Kalamazoo, Battle Creek, Hastings, Corunna, Durand.

Child Endangerment DUI

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Michigan Child Endangerment OWI Attorney

Lansing OWI Child Endangerment Attorney

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

 

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

 

First Offense Child Endangerment OWI

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

 

Second Offense Child Endangerment OWI

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

 

OR

 

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

 

Underage Driving Child Endangerment OWI

 

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

 

First Offense Under 21 Driving Child Endangerment OWI

 

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

 

Second Offense Under 21 Driving Child Endangerment OWI

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

 

Multiple Counts for Multiple Children

 

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

 

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

 

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

 

Michigan’s High BAC aka “Superdrunk”

 

 Superdrunk              Lansing Michigan OWI Lawyer        Michigan DUI Lawyer

 

 

In 2010, Michigan’s Operating While Intoxicated (OWI) statute was amended to include a classification for first-time drunk driving offenders with an elevated blood alcohol content (BAC). It is called being charged as a High BAC or “Superdrunk.” Now, if you have a BAC of .17 or above the state (and now municipalities) can subject first-time DUI defendants to heightened punishment. It basically doubles the possible punishments of the first offense OWI. Essentially even though it is your first offense, you will be facing penalties as if it was your second offense OWI. Many states and jurisdictions have enacted similar statutes that are called aggravated DUIs.

 

Penalties:

 

  • 180 days in jail (93 days for OWI 1st)
  • $200-700 in fines ($100-500 for OWI 1st)
  • One-year driver’s license suspension;  restrictions after 45 days with ignition interlock (six months suspended and restricted after 30 days for OWI 1st)
  • 360 hours of community service
  • Vehicle immobilization up to 180 days
  • Six points on your driving record
  • One year alcohol rehabilitation
  • $2,000 in driver responsibility fees ($1,000 per year for two consecutive years)

 

The stakes are much higher with the High BAC charge in more ways than one. Not only are the penalties more severe and the financial costs higher, but plea negotiations are much tougher as well. If a driver was charged with OWI 1st, most jurisdictions will at least offer a reduction to Operating While Visibly Impaired (OWVI) or “Impaired Driving.” While it is still an alcohol-related offense, it does have its merits, particularly if there are no issues with the case that could get a better reduction or dismissal. Impaired Driving is less expensive, less points (which means your insurance won’t go up as much), and it automatically comes with restricted driving privileges.

 

With the High BAC charge, even if they reduce it down a notch to just a regular OWI, you still get the same amount of points on your license, same driver’s responsibility fees, and you still lose your license completely (no driving at all!) for a period of time. You have two options and neither one is good- one just isn’t quite as bad as the other one. If convicted of a High BAC, not only do you lose your license and have to install an ignition interlock or breathalyzer (which costs approximately $75-125/month) but your chances of going to jail are more likely. Plus, many prosecutors have adopted policies against plea bargains on High BAC charges thus forcing defendants to plead “on the nose” or take it trial. Even though there is strategically no reason not to take it to trial in that case, most defendants still opt for the plea due to the cost and time of trial and to merely get it over with. If there was an accident or property damage, almost assuredly no prosecutor will reduce the charge.  No matter how you look at it, your options when facing a “super drunk” charge just aren’t good.

 

That is where having an experienced OWI attorney comes in to the picture. With the stakes higher and the options fewer, you need someone experienced in defending against drunk driving charges more than ever. The stop of the vehicle needs to be reviewed to determine if the police had reasonable suspicion to pull you over. Then the police reports and cruiser cam videos must be thoroughly reviewed to see if the police had probable cause to arrest you. Often this is done after the officer has observed so-called behaviors or mannerisms indicating intoxication or administering field sobriety tests. Usually the last thing the officer does is give the driver a roadside PBT giving an approximation of the driver’s BAC. Then the driver is taken to the police station where an evidential breath test is given. Sometimes a blood draw is taken instead if the DataMaster operator is not available or the driver has been in an accident and taken to the hospital for treatment.

 

There are many rules governing the procedures of how these critical tests are administered and can only be administered by someone trained and certified to do so. Certification credentials should always be requested as well as calibration records and maintenance logs for the evidential breath test. The breath test room video is critical as well because there must be a 15-minute observation period to make sure the driver has not regurgitated or placed anything inside the mouth.

 

A lot of variables factor into a DUI case. It is of the utmost importance that they be thoroughly scrutinized, especially with a High BAC charge. Only an experienced OWI attorney can determine the best course of action—whether it’s forcing the prosecutor to offer a better plea bargain, get the case dismissed with a motion, or take the matter to trial. You should always consult with an attorney before making a decision on any DUI charge, especially a super drunk charge. Look for an attorney that makes DUI defense a substantial part of their practice. What you don’t want is the general practitioner, someone who occasionally “dabbles” in DUI defense, or even worse the lowest bidder who will do nothing than look at the police report and plead you out the first chance he gets regardless of whether it’s in your best interests or not.

 

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

 

Defending High BAC and other OWI charges throughout Michigan in the counties of Ingham, Eaton, Clinton, Shiawassee, Lenawee, Jackson, Barry, Livingston, Kent, Washtenaw in the cities of Lansing, East Lansing, Mason, Holt, Okemos, Delta Township, Lansing Township, Jackson, Bath, St. Johns, Jackson, Hastings, Howell, Brighton, Grand Rapids, Ann Arbor, Corunna.

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.

First Offense OWI in Michigan

DUI 1Lansing Michigan OWI Attorney

If This is Your First Drunk Driving Offense in Michigan You Can be Charged With:

 

  • Operating While Intoxicated (OWI) 1st
  • Operating While Intoxicated with a High BAC, or “Super Drunk”
  • Operating While Visibly Impaired (OWVI), aka Impaired Driving
  • Under 21 Operating with any BAC

 

Operating While Intoxicated (OWI) is when you are operating a motor vehicle on a public roadway with a blood alcohol content (BAC) of .08 or greater, the presence of any Scheduled I Controlled Substance or Marijuana, or if any medication has substantially impacted your ability to safely operate the car.

 

The High BAC or “Super Drunk” is the most recent drunk driving legislation which took effect Halloween 2010. It has the same elements of the OWI except the BAC must be .17 or greater which effectively doubles the penalties.

 

Operating While Visibly Impaired, or Impaired Driving, does not require any particular BAC. The prosecution would instead have to prove that it was evident upon viewing that the driver was intoxicated or too impaired to safely drive a car. This can be quite difficult to prove which is why it is rarely used as the original charge. It is most often used as a “lesser include offense” option at jury trials and is the most frequent plea bargain for first offense OWI.

 

Under 21 Operating With any BAC is part of Michigan’s “zero tolerance” for dealing with anyone who drives a car under the age of 21 with any amount of alcohol in their system.

 

Various Penalties for First Offense Michigan Drunk Driving Charges

 

Operating While Intoxicated (OWI)

 

  • 93 days in jail
  • One-year probation
  • $500 fine plus court costs
  • 45 days of community service
  • Possible ignition interlock or vehicle immobilization
  • Six points on your driving record
  • 30 days suspended license, 150 days of restrictions
  • $2,000 in Driver’s Responsibility Fees ($1,000 for two consecutive years) for OWI
  • $1,000 in Driver’s Responsibility Fees ($500 for two consecutive years) for OWPD

 

Operating While Visibly Impaired (OWVI)

 

  • 93 days in jail
  • One-year probation
  • $300 fine plus court costs
  • 45 days community service
  • Possible ignition interlock or vehicle immobilization
  • Four points on your driving record
  • 90 days restricted license (180 days if impaired by a controlled substance)
  • $1,000 in Driver’s Responsibility Fees ($500 for two consecutive years)

 

High BAC or Super Drunk

 

  • 180 days in jail
  • $200-700 in fines plus court costs
  • 45 days community service
  • One-year suspended license with eligibility for a suspended license after 45 days if an ignition interlock is installed
  • Six points on your driving record
  • $2,000 in Driver’s Responsibility Fees ($1,000 for two consecutive years)

 

Under 21 Operating With Any BAC

 

  • $500 fine plus court costs
  • 45 days community service
  • 30 days restricted license
  • Four points on your driving record
  • $1,000 in Driver Responsibility Fees ($500 for two      consecutive years)

 

When to Accept a Plea Offer

 

  • The case against you is strong and the likelihood of conviction is great
  • The plea offer will reduce or lessen the penalties against you (ex. Impaired Driving as opposed to OWI will allow you a restricted as opposed to a suspended license, less points on your driving record, less driver’s responsibility fees)
  • The plea offer is a non-alcohol related offense such as Reckless Driving or Careless Driving (even though Reckless Driving monetarily hurts more, the stigma is not as great as it relates to future employers, housing, and college applications)

 

When to go to Trial

 

  • The case against you is weak and you believe the prosecutor will have a difficult time proving one or more of the elements beyond a reasonable doubt (especially if you have gotten some key evidence suppressed)
  • The offer isn’t good (when charged with High BAC or Super Drunk, often the offer is to plead to the charge or to regular OWI, both of which result in an automatic suspended license)
  • There is no plea offer (some jurisdictions refuse to plea bargain even first offense OWIs so essentially you have nothing to lose by going to trial)
  • Any plea offer will negatively impact your career (i.e. driving is your career or an essential part of your job)
  • The plea offer will negatively impact your schooling (your scholarship may be revoked or you may be denied acceptance into certain schools or graduate studies)

 

Collateral Consequences of a DUI

 

Aside from the penalties opposed by statute, there are a lot of collateral consequences to DUIs as well such as:

 

  • Higher insurance premiums
  • Getting fired or demoted from certain jobs or careers
  • Restricted traveling—some countries may not allow you entrance if you have been convicted or are currently on probation for a DUI
  • Schooling—you may be denied admittance to certain professional schools or your scholarships may be revoked
  • Citizenship—a DUI conviction could have an effect on your citizenship status or your VISA

 

 

Any decision on whether to go to trial or accept a plea offer should only be made after consulting with an experienced Michigan DUI attorney who has thoroughly reviewed your case and discussed all possibilities and pros and cons of your options. Too much is at stake to take the matter lightly or to handle it on your own. The money you spend on a good DUI or OWI attorney will be a wise investment that pays dividends.

 

If you have been charged with OWI, call Austin Legal Services, PLC at (517) 614-1983 today to discuss your case with a Michigan OWI attorney.

 

Representing DUI 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. 

Michigan OWI Charges and Penalties

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In Michigan there are four types of drunk driving offense which carry various penalties. The four types of offenses for drunk or impaired driving that you can be charged with in Michigan are: 1) Operating While Intoxicated (OWI), 2) Operating With Any Presence of a Schedule 1 Drug or Cocaine, (OWPD), 3) Operating While Visibly Impaired (OWVI) aka Impaired Driving, and 4) Operating Under the Age of 21 with any trace of alcohol. I will discuss each of these in detail. Keep in mind that there are other more serious offenses such as OWI Causing serious Injury or Death and others that are beyond the scope of this article. This only covers the basic OWI charges.

Operating While Intoxicated (OWI)– This is the most common and is Michigan’s main DUI charge. There are three situations where you can fall into this category.

 

  • Alcohol or drugs substantially affects or impairs your ability to safely operate a motor vehicle on a public roadway.
  • Operating a motor vehicle on a public roadway with a blood alcohol content (BAC) of .08 or above.
  •  Operating a motor vehicle on a public highway with a BAC of .17 or above. This is known as High BAC or Super Drunk.

 

Operating While Visibly Impaired (OWVI)– AKA Impaired Driving. This is when alcohol or drugs make your inability to safely operate a motor vehicle visibly apparent. This is frequently offered by prosecutors as an initial plea bargain for first-time OWI charges.

 

Operating With Any Presence of a Schedule 1 Drug or Cocaine (OWPD)– This is just what it sounds like. If you are driving a motor vehicle on a public road with any trace of the above in your system, regardless of whether your show signs of visible impairment or intoxication, you are guilty of this offense. Some drugs, like marijuana, can stay in your system for a long time– up to a month. Drivers need to be especially careful of this because that blunt you smoked at the frat party three weeks ago can come back to haunt you in a very serious way. You don’t get a break for medical marijuana either. If you are driving with marijuana in your system, even if you have a Medical Marijuana Card, you are guilty of this offense.

 

Under 21 and Operating With Any BAC– If you are under the age of 21 and are operating a motor vehicle with a BAC of .02 or greater or with any trace of alcohol (unless it was consumed as part of a religious ceremony) you cannot lawfully drive on a public road. This is part of Michigan’s “zero tolerance” policy.

 

Now that we know what the charges are, let’s go over the penalties.

 

OWI or OWPD 1st Offense:

 

  • 93 days in jail
  • One-year probation
  • $500 fine plus court costs
  • 45 days of community service
  • Possible ignition interlock or vehicle immobilization
  • Six points on your driving record
  • 30 days suspended license, 150 days of restrictions
  • $2,000 in Driver’s Responsibility Fees ($1,000 for two consecutive years) for OWI
  • $1,000 in Driver’s Responsibility Fees ($500 for two consecutive years) for OWPD

 

OWI or OWPD 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)

 

OWI or OWPD 3rd Offense:

 

  • Five years in prison
  • Probation with jail 30 days to one year
  • $5,000 fines plus court costs
  • 60-180 days of community service
  • Six points on your driving record
  • Possible ignition interlock
  • Mandatory vehicle immobilization for one to three years, unless forfeited
  • Possible vehicle forfeiture
  • Driver’s License revocation: one-year if two convictions within seven years, five-years if three convictions within 10 years
  • $2,000 in Driver’s Responsibility Fees ($1,000 for two consecutive years)

 

OWVI:

 

  • 93 days in jail
  • One-year probation
  • $300 fine plus court costs
  • 45 days community service
  • Possible ignition interlock or vehicle immobilization
  • Four points on your driving record
  • 90 days restricted license (180 days if impaired by a controlled substance)
  • $1,000 in Driver’s Responsibility Fees ($500 for two consecutive years)

 

 

High BAC or Super Drunk

 

  • 180 days in jail
  • $200-700 in fines plus court costs
  • 45 days community service
  • One-year suspended license with eligibility for a restricted license after 45 days if an ignition interlock is installed
  • Six points on your driving record
  • $2,000 in Driver’s Responsibility Fees ($1,000 for two consecutive years)

 

Under 21 Operating With Any BAC 1st Offense:

 

  • $500 fine plus court costs
  • 45 days community service
  • 30 days restricted license
  • Four points on your driving record
  • $1,000 in Driver Responsibility Fees ($500 for two consecutive years)

 

Under 21 Operating With Any BAC 2nd Offense:

 

  • 93 days in jail
  • 60 days community service
  • 90 days suspended license
  • Four points on your driving record
  • $1,000 in Driver Responsibility Fees ($500 for two consecutive years)

 

If you have been charged with an OWI Offense, call Austin Legal Services today to speak to our Michigan DUI Lawyer at (6=517) 614-1983.

 

Defending OWI charges throughout Michigan in the counties of Ingham, Eaton, Jackson, Clinton, Gratiot, Shiawassee, Livingston, Washtenaw, Calhoun, Kent, Barry in the cites of Lansing, East Lansing, Mason, Charlotte, St. Johns, Bath, Ithaca, Corunna, Brighton, Howell, Ann Arbor, Grand Rapids, Battle Creek, Kalamazoo.