Child Endangerment DUI

DUI 13

Michigan Child Endangerment OWI Attorney

Lansing OWI Child Endangerment Attorney

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

 

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

 

First Offense Child Endangerment OWI

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

 

Second Offense Child Endangerment OWI

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

 

OR

 

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

 

Underage Driving Child Endangerment OWI

 

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

 

First Offense Under 21 Driving Child Endangerment OWI

 

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

 

Second Offense Under 21 Driving Child Endangerment OWI

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

 

Multiple Counts for Multiple Children

 

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

 

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

 

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

 

Michigan’s High BAC aka “Superdrunk”

 

 Superdrunk              Lansing Michigan OWI Lawyer        Michigan DUI Lawyer

 

 

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

 

Penalties:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Preliminary Breath Tests (PBT)

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

Hardship Appeal: Challenging Your Driver’s License Suspension

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If your driving privileges have been suspended or revoked, you may be able to seek and get relief in the circuit court. You will have to convince the court that the revocation or suspension of your license is creating a “hardship.” I will discuss in more detail what that means and when you can ask the circuit court for relief.
 

What Types of Suspensions May be Appealed for Hardship

 

 

Under MCL 257.323(3) a petitioner may appeal to the circuit court for the following types of suspensions:
  1. points, accidents, or incompetency to drive MCL 257.320
  2. driving while the license is suspended or revoked MCL 257.904(10),(11)
  3. a first implied consent suspension MCL 257.625f
  4. probationary license suspensions MCL 257.310d
  5. physical or mental disability suspensions MCL 257.303(1)(d)
 

What Types of Hardships Cannot be Appealed for Hardship

 

  1. Suspensions listed under MCL 257.319 (e.g. reckless driving)
  2. Suspensions due to financial responsibility (however, if a procedural error led to a financial responsibility suspension, that may be appealed)
 

Filing the Claim of Appeal

 

Michigan Court Rules (MCR) 7.120 states that all claims of appeals must conform to MCR 7.104(C)(1). A claim of appeal must include:
  1. appellant’s full name, current address, date of birth, and driver’s license number
  2. state that “[Appellant] claims an appeal from the decision entered on [date] by the Secretary of State” and
  3. concise statements of the following:
    1. the nature of any determination by the Secretary of State
    2. the nature authorizing the Secretary of State’s determinations
    3. the subsection of MCL 257.323 under which the appeal is taken;
    4. and the facts on which venue is based.
The claim of appeal must be signed and you must attach as exhibits a copy of the Secretary of State’s determination and any affidavits supporting the claim of appeal.
 

Determining Venue

 

Venue is proper for a hardship restoration petition to the circuit court if it is:
  1. in the county of the arrest (if the denial or suspension was for an implied consent refusal)
  2. pursuant to the order of the district court under MCL 257.328 (proof of insurance violations); or
  3. in the driver’s county of residence for all other cases.

 

What Needs to be Filed and Paid

 

When seeking a hardship license, the following have to be filed with the circuit court:
  1. an appeal for restoration form
  2. an order to show cause
  3. filing fee
On the day of the final hearing, the appellant will need to bring an order of restoration and the judgment fee. In some jurisdictions the judgment fee is due at the time of filing so check with the court clerk before filing. Also, be sure to have at least three copies of all pleadings with you.
 

Detailing the Hardship

 

Probably the most important part of this process is convincing the court that you need a license because to do without one is causing an undue hardship. It is important to present enough evidence to convince the court of this. Here are some important points to stress during the pleadings and the hearing.
  • Describe the effect the suspension has on the appellant’s ability to earn a living or provide for his family
  • Be honest and reasonable– if your driving record is pages long of infractions and violations or the current suspension is a long one, concede that your driving privileges should not be completely restored
  • Be willing to accept that your driving privileges may be restricted to essential driving activities, such as work, medical treatment
  • If you are appealing an implied consent refusal, you must state that public transportation is unavailable and that you have no family members who can provide transportation

Deadlines for Filing

 

Hardship appeals must be filed within 63 days of the date “the determination is made” under MCL 257.323(1). The determination date is the date of the order and not the date of the hearing. The filing deadline may be extended to 182 days if good cause is shown.  While filing a hardship appeal does not stay the enforcement of the suspension, an appellant may file for a stay of enforcement under MCL 257.323a.
 

The Final Hearing

 

The Secretary of State will be represented by an assistant Attorney General or an assistant local prosecutor. This is essentially when you get to orally make an appeal to the court. All positive points should be emphasized such as a successful alcohol assessment, AA attendance, rehab completion as well as detailing the hardship such as not being able to get to work and no reasonably alternative means of transportation are available.
If the court grants your appeal, make sure you have an order of restoration ready. If the court does not grant your appeal, request another one in approximately three months.
 

Implied Consent Appeals

 

If you appeal is from a refusal to submit to a chemical test such as breath, blood, or urine, the judge is limited to determining whether the implied consent hearing officer’s findings were supported by substantial, material, and competent evidence on the whole record and the findings were not contrary to law. For these hearings the Secretary of State must be given at least 50 days notice. Also make sure you get the transcript from the hearing because they are only kept for 182 days.
 

Do I Need a Lawyer?

 

Losing your driving privileges is very difficult and stressful and it provides a hardship not only on your but on those around you who are either counting on you to be their provider or those who now become your defacto chauffeurs. The process is very tedious and cumbersome. While you can represent yourself, it is not recommended. You need someone with experience who can walk you through the process and who knows the ins and outs as to what works and what doesn’t. A lawyer will also help you be prepared for the day of the hearing. The stakes are too high to risk losing. Consult with a driver’s license appeals attorney in your area to handle your appeal.
If you need to challenge your driver’s license suspension or implied consent refusal, call Austin Legal Services, PLC today to speak to a Michigan driver’s license appeals attorney about your hardship license.
Representing clients and helping them get their driver’s license restored and appealing driver’s license suspensions throughout Michigan in the counties of Ingham, Eaton, Jackson, Clinton, Barry, Shiawassee, Washtenaw, Kent in the cities of Lansing, Mason, St. Johns, Charlotte, Grand Rapids, Jackson, Hastings, Corunna, Ann Arbor, Brighton, Howell.

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

0_0_0_0_250_179_csupload_58406052Lansing Michigan OWI Attorney
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.

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

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

National Transportation Safety Board (NTSB) Recommends States to Lower BAC to .05 for DUIs

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Recently the National Transportation Safety Board (NTSB) announced that they are recommending that all states lower the blood alcohol content from .08 to .05 to constitute drunk driving. They claim that drivers are impaired at that level and in order to reduce the number of alcohol-related crashes, the qualifying threshold needs to be lowered. But where have we heard this rhetoric before? Oh yeah, back in the 1980s when Congress practically coerced states to lower the BAC for drunk driving offenses to .10 less they lose a portion of their highway funds. The Supreme Court says Congress can pressure states to change or enact laws by withholding federal money under Congress’s “spending power” (although it would be more appropriately characterized as their extortion or coercion power). The battle cry was that states needed to lower the BAC in order to save more lives and keep the roads safer. Apparently, it wasn’t good enough because in the 1990s they embarked on another successful campaign to get states to lower the BAC requirement to .08 under the same battle cry. Now, in 2013 they are recommending it go even lower to .05 because .10 and .08 just isn’t keeping us safe enough (although they told us at the time it would). Would lowering the BAC to a point where perfectly safe social drinkers could face criminal conviction actually save more lives and keep dangerous drivers off the road? I think not.
As a Michigan OWI attorney, the problem I have always had with these DUI standards is that they never take into consideration the quality of the driving. Legislators enact these arbitrary figures which keep getting pushed lower and lower instead of focusing on whether the driver was actually impaired or not. Instead, with the BAC threshold, the driver is presumed to be under the influence regardless of whether they are or not. These standards don’t take into consideration that many people are perfectly capable of safely operating a motor vehicle at .08 or .10 or even higher. Instead, by lowering it 37.5% states will only be criminalizing responsible drinkers who will now have to bear the shame and expense of a DUI charge as well as potentially having their career and educational opportunities go up in smoke all because they had a couple drinks at the bar and drove home.
Another problem I have with this constant clamor of “we need to change the DUI laws” is that they never seem to conduct a cost-benefit analysis. Their usual response is the clichéd “you can’t put a price tag on safety” but will these new enactments actually make us safer? First of all, alcohol-related deaths are at an all-time low since 1982 while non-alcohol related traffic accidents have sky-rocketed by 78% during that same time span according to the National Highway Traffic Safety Administration (NHTSA). Furthermore, the NHTSA further states that texting while driving is now the leading cause of death and accidents among teens. Texting drivers are 23 times more likely to be in a crash that non-texting drivers. Texting is responsible for 3,000 deaths and 330,000 injuries a year according to a study by the Harvard Center for Risk Analysis.
Are drivers with a low BAC really the problem? The statistics resoundingly scream no. In 2011 less than 1% of traffic fatalities were caused by drivers with a BAC of .05-.08. The majority of crashes and fatalities involved drivers with a BAC of .15 or above. These are the drivers that legislation should be targeting and most states do with “Super Drunk,” “High BAC,” and “Aggravated DUI” charges with increasingly stiff penalties and many prosecutors have policies against plea bargaining on.  If you are intoxicated and have an accident that causes an injury or death, prison is all but a guarantee. Ignition interlock and vehicle immobilization are imposed by many judges on High BAC cases or repeat offenders. These measures make sense. Criminalizing social drinkers doesn’t.
Among their list of recommendations, the NTSB wants an “automatic administrative suspension of your driver’s license” upon being charged with a DUI. In other words, when you are merely accused and (supposedly) presumed innocent, they want the government to automatically yank your driving privileges. Sounds like something that would happen in a totalitarian state doesn’t it? Whatever happened to “innocent unless proven guilty beyond a reasonable doubt?” I guess that Constitutional safeguard doesn’t matter. Michigan already confiscates and destroys your license upon being charged with an OWI offense and replaces it with a “paper license” until your matter is resolved which is tantamount to convicting you by being charged.
The NTSB and other drunk driving advocate zealots, don’t seem to realize (or care?) that the average DUI stop, investigation, and arrest can take over an hour, and often an hour-and-a-half to two hours. That’s time that law enforcement could have spent on the road tracking down impaired drivers who are an actual threat to the safety of others, instead of going after the 110-lb. female who had a couple glasses of wine with dinner. Not to mention clogging up the court dockets prosecuting people who are little to no threat to fellow motorists or pedestrians.
While implementing these recommends would probably be years down the road, it’s scary to think that it’s even a possibility being considered. If states want to protect the roadways, they should crack down on drivers with High BACs, repeat offenders, and drunk drivers who cause damage or injury to property or others. Better yet, enact stricter laws against texting while driving. If I had the choice of sharing the highway with someone with a BAC of .05 or a distracted texting driver, I’d opt for the former any day.
What are your thoughts?
If you or someone you know have been charged with OWI or drunk driving, contact Austin Legal Services, PLC today at (517) 614-1983 to speak to a Michigan OWI attorney.
Representing clients on DUI, OWI, and drunk driving charges throughout Michigan in the counties of Ingham, Eaton, Barry, Clinton, Gratiot, Jackson, Shiawasse, Livingston, Washtenaw, Kent, Calhoun in the cities of Lansing, East Lansing, Mason, Charlotte, Haslett, Okemos, Williamston, Eaton Rapids, Corunna Durand, Hastings, St. Johns, Bath, Ithaca, Alma, Jackson, Brighton, Livingston, Ann Arbor, Grand Rapids, Kalamazoo, Battle Creek.

First Offense OWI in Michigan

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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. 

Field Sobriety Test: Walk and Turn

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FST– Walk and Turn (WAT)

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

 

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

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

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

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

 

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

 

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