Drunk Driving OWI Defense

DRUNK DRIVING IN MICHIGAN

By far the most likely way a person will have contact with the criminal justice system is an arrest for drunk driving.  Around 40,000 people are arrested each year in Michigan for drunk driving offenses.

Drunk driving charges are based upon the concentration of alcohol in your bloodstream (blood alcohol content, or “BAC”) at the time of the offense, in addition to the number of prior alcohol-related convictions you have.

The first step of drunk driving defense is to examine the facts and circumstances underlying the stop to see if the police officer had probable cause to pull the vehicle over.

The second step is to look at the interaction between the officer and the driver, examining what questions were asked of the driver and whether the officer conducted roadside sobriety tests and/or gave a preliminary breath test to the driver.

The final stop of the inquiry is to look at the manner in which the driver’s blood alcohol will be proven in court, be that from a breathalyzer machine or a blood draw.

The Traffic Stop

Police officers will invariably ask the driver if he or she has been drinking.  If the driver says that he or she has had anything to drink, the officer has probable cause to investigate further.  At this point, the officer, if he believes the driver to be over the limit, will have the driver exit the vehicle, which the driver is required to do.  The officer will then likely ask the driver to perform a series of roadside tests to determine if the driver is incapacitated.

After the field sobriety tests, the officer will ask the driver to take a preliminary breath test (PBT).  Refusing to take a PBT is a civil infraction, carrying a maximum penalty of $150.  There are no points added to the driver’s record, unless the driver is under 21, in which case the driver will receive two points.

The Arrest

Taking into account the driver’s physical appearance and mental state, in addition to the results, if any, of the roadside sobriety tests and preliminary breath test, the officer will make a determination of whether or not the driver is driving intoxicated or impaired.  If so, the officer will arrest the driver and take him to the station.  Note that the officer does not have to read the driver his Miranda rights. Once arrested, it is a good idea to not say anything to the officer, as you can assume that anything the arrestee says will be used against him or her.  The driver’s best bet is to simply say that he or she wants an attorney.

Booking

Once at the station, the officer will ask the driver to take an evidentiary breath test through a Datamaster breathalyzer machine.  (A copy of the breath test operator’s manual can be found here: http://www.michigan-drunk-driving.com/files/michigan-datamaster-dmt-evidential-breath-testing-manual-2011.pdf.)  The driver is not required to take the test, however refusal to do so will result in the loss of the driver’s license for a one-year period, and six points being added to the driver’s record, pursuant to Michigan’s implied consent law.  Note that a driver can still obtain reinstatement of driving privileges by appealing the suspension to circuit court.  In addition, it is likely that the officer will thereafter seek a search warrant from a magistrate to have the driver’s blood drawn.  This process usually does not take long, as magistrates are typically on call 24/7 to issue such warrants.  If and when a warrant is obtained, the officer will take the driver to the nearest emergency room and have the driver’s blood drawn.  If the driver does not obtain a warrant and the driver has refused the Breathylizer test, then the officer must determine if he has sufficient evidence to make out a case of impaired driving based on the roadside interaction between the officer and the driver, in addition to the driver’s behavior since arrest.

Detention In Jail

Once the driver is booked and charged with impaired or intoxicated driving, the driver will be detained at the police station, depending upon how intoxicated the driver is.  A general rule of thumb is that the driver will be held for a minimum of one hour for every .02 in the level of the driver’s blood alcohol.  Thus, if the driver has a BAC of .16, he or she will be held for at least 8 hours.

It is possible that the driver will be held until he or she is arraigned by a magistrate.  If this happens, the driver can be held up to 72 hours.  Whether or not the driver is arraigned, he or she may also be required to post a bond before being released.  The amount of the bond, if any, will likely be between $100 and $500, if the driver has minimal prior police contact.

It is important that you speak with competent legal counsel right away to start planning your defense in order to minimize any negative consequences. Call today for a free consultation!

THE FOLLOWING IS A LIST OF ALCOHOL-RELATED DRUNK DRIVING CHARGES AND CORRESPONDING PENALTIES:

OWVI:  Operating While Visibly Impaired.  (BAC less than .08.)

Maximum Penalties:

  • Jail:  up to 93 days
  • Fines:  up to $300
  • Michigan Driver’s Responsibility Fees:  $500, for two consecutive years
  • Driver’s License Sanctions:  4 points on driving record, restricted license for 90 days
  • Community Service:  Up to 360 hours
  • Misdemeanor offense

OWI:  Operating While Intoxicated.  (BAC greater than .08, Less than .17.)

Maximum penalties:

  • Jail:  up to 93 days
  • Fines:  $100 – $500
  • Michigan Driver’s Responsibility Fees:  $1,000, for two consecutive years
  • Driver’s License Sanctions:  6 points on driving record, suspended license for 180 days, possible restricted license after first 30 days
  • Community Service:  Up to 360 hours
  • Misdemeanor offense

OWI – Superdrunk:  Operating While Intoxicated – Superdrunk (BAC greater than .17).

Maximum penalties:

  • Jail:  up to 180 days
  • Fines:  $200 – $700
  • Michigan Driver’s Responsibility Fees:  $1,000, for two consecutive years
  • Driver’s License Sanctions:  6 points on driving record, suspended license for one year, possible restricted license after 45 days, with ignition interlock device
  • Community Service:  Up to 360 hours
  • Misdemeanor offense

OWI, 2nd:  Operating While Visibly Impaired, 2nd Offense (OWI or OWVI) within seven years.

Maximum penalties:

  • Jail:  5 days to 1 year
  • Fines:  $200 – $1,000
  • Michigan Driver’s Responsibility Fees:  $500, for two consecutive years
  • Driver’s License Sanctions:  4 points on driving record, license revocation for 1 year (5 years if prior revocation in previous 7 years), possible vehicle forfeiture, vehicle immobilization for 90 to 180 days (if not forfeited)
  • Community Service:  30 to 90 days
  • Misdemeanor offense

OWI, 2nd:  Operating While Intoxicated, 2nd Offense (OWI or OWVI) within seven years.

Maximum Penalties:

  • Jail:  5 days to 1 year
  • Fines:  $200 – $1,000
  • Michigan Driver’s Responsibility Fees:  $1,000, for two consecutive years
  • Driver’s License Sanctions:  6 points on driving record, license revocation for 1 year (5 years if prior revocation in previous 7 years), possible vehicle forfeiture, vehicle immobilization for 90 to 180 days (if not forfeited)
  • Community Service:  30 to 90 days
  • Misdemeanor offense

OWVI, 3rd:  Operating While Visibly Impaired, 3rd Offense (OWI or OWVI) in lifetime.

Maximum penalties:

  • Prison: 1 to 5 years
  • OR, Probation, with 30 days to 1 year in jail
  • Fines:  $500 – $5,000
  • Michigan Driver’s Responsibility Fees:  $500, for two consecutive years
  • Driver’s License Sanctions:  4 points on driving record, license revocation for minimum of 1 year (5 years minimum if prior revocation in previous 7 years), possible vehicle forfeiture, license plate confiscation, vehicle registration denial, vehicle immobilization for 1 to 3 years
  • Community Service:  60-180 days
  • Felony offense

OWI, 3rd:  Operating While Intoxicated, 3rd Offense (OWI or OWVI) in lifetime.

Maximum penalties:

  • Prison: 1 to 5 years
  • OR, Probation, with 30 days to 1 year in jail
  • Fines:  $500 – $5,000
  • Michigan Driver’s Responsibility Fees:  $1,000, for two consecutive years
  • Driver’s License Sanctions:  6 points on driving record, license revocation for minimum of 1 year (5 years minimum if prior revocation in previous 7 years), possible vehicle forfeiture, license plate confiscation, vehicle registration denial, vehicle immobilization for 1 to 3 years
  • Community Service:  60-180 days
  • Felony offense

Zero Tolerance:  Operating with BAC over .02, under 21 years of age.

Maximum penalties:

  • Fines: $250
  • Probation
  • Michigan Driver’s Responsibility Fees:  $500, for two consecutive years
  • Driver’s License Sanctions:  4 points on driving record, restricted license for 30 days
  • Misdemeanor offense

OWPD:  Operating with the Presence of Schedule I Drugs.

Maximum Penalties:

  • Jail:  up to 93 days
  • Fines:  up to $300
  • Michigan Driver’s Responsibility Fees:  $500, for two consecutive years
  • Driver’s License Sanctions:  4 points on driving record, restricted license for 90 days
  • Community Service:  Up to 360 hours
  • Misdemeanor offense

Open Intox:  Open CONTAINER in Motor Vehicle.

Maximum penalties:

  • 1st offense – no license sanctions
  • 2nd offense – driver’s license suspended for 30 days, then restricted for 60 days
  • 3rd offense – driver’s license suspended for 60 days, then restricted for 305 days
  • 2 points on driving record
  • Possible alcohol screening
  • Misdemeanor offense

Minor in Possession:  Person Under 21 Purchase/Possess/Consume Alcohol.

Maximum Penalties:

  • 1st Offense: $100 fine, with no driver’s license sanctions, possible alcohol screening and community service.
  • 2nd Offense: $200 fine, driver’s license suspended for 30 days and restricted for 60 days, possible alcohol screening and community service.
  • 3rd Offense: $500 fine, driver’s license suspended for 60 days and restricted for 305 days, possible alcohol screening and community service.