Common Questions in DUI Cases

DUI 19

Lansing Michigan OWI Attorney

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

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

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

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

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

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

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

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

Will I Lose My Driver’s License?

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

Will I Go to Jail?

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

Will I be Placed on Probation?

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

Will I Have to Use an Ignition Interlock Device?

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

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

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

Should I Take my OWI Charge to Trial?

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

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

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

Can an OWI be Expunged?

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

Do I Need a Lawyer for a DUI?

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

Lansing Michigan OWI Attorney

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

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

Field Sobriety Test: Horizontal Gaze Nystagmus (HGN)


Lansing Michigan OWI Attorney

FST– Horizontal Gaze Nystagmus (HGN)

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

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

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

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

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

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


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


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