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.

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.