Articles Posted in DUI Penalties

The Barone Defense Firm is pleased to announce that the 2020 Edition of Patrick Barone’s Defending Drinking Drivers is now available from the publisher, Amazon, and wherever fine books are sold. Known as “revision 36,” the current Edition contains many new sections and model defense motions.

Regarding the defense of a DUI with a blood test, the 2020 update contains sample cross-examination of the doctor, nurse, technician, or phlebotomist.  This model cross-examination includes sample questions relative to contamination and suggestions for how to approach and perhaps discredit the creditably of this important but often overlooked prosecution witness. Also, in Chapter Six, Trial, Mr. Barone sets forth a new way of approaching voir dire and the 2020 update also contains a samle motion requesting attorney conducted voir dire. Also, in his revision of Chapter 6, Mr. Barone provides a unique and compelling explanation for why seating arrangements are an important element of trial and why the court should consider allowing the defendant to sit next to the jury rather than always cede this seat to prosecutor by default.  A sample motion for requesting that the defendant be provided with the “best” seat is also included in this 2020 update.

Other updates in revision 36 include a 2019 case law update.  For example, Mr. Barone provides an evaluation of new case law regarding when an added charge of resisting and obstructing is appropriate after a DUI accused refuses to submit to a blood draw pursuant to warrant and when and why such blood test warrants might fail judicial muster.  Also, why being placed into a patrol vehicle is considered custody for Miranda purposes, how an arrest occurred when police took keys, and why it may be error for a prosecutor to comment on a defendant’s refusal to take a blood test.

A research letter recently published in the JAMA Internal Medicine Journal examined the correlation between the legalization of recreational marijuana and traffic fatalities. The letter’s authors Kamer & Warshafsky begin with the proposition that marijuana use impairs driving ability. The authors go on to suggests that because there is a correlation between an increase in traffic deaths and the legalization of recreational marijuana, impaired driving must be the cause. The authors of the letter reviewed data collected from four states: Colorado, Oregon, Washington, and Alaska. The authors did not look at traffic deaths in Michigan because there isn’t enough data from Michigan yet.

The authors found that traffic deaths increased by 75 per year in Colorado. The authors did not find an increase in traffic deaths in Washington. Overall, the letter predicts that if every state fully legalizes marijuana, traffic deaths would increase by 6,800 every year in the United States. Time will tell whether Michigan will be like Colorado, and see a large increase in traffic deaths, or like Washington where there was no such increase.  And time will also tell if any observed increase in Michigan is actually caused by marijuana impaired drivers. The impaired driving lawyers at the Barone Defense Firm note that correlation is not causation, and that the only thing this letter has established is correlation.  The authors admit that much more research is needed on this topic, and that their findings were “mixed.”

What’s the difference between impaired by marijuana and under the influence of marijuana?

Immediately upon your arrest for DUI in Michigan the arresting officer notified the Secretary of State. This happens when the arresting officer destroys your plastic license and prepares a DI-177, which is entitled “Breath Blood or Urine Report Michigan Temporary Driving Permit.”  This document becomes your paper license and you will use it to drive until you are convicted or until your case is dismissed.  A DI-177 is only prepared if you agree to take a breath or blood test when asked by the arresting officer.

If you refused to submit to a breath or blood test then the officer will prepare a DI-93, which is entitled “Report of Refusal.” This too becomes your paper license but is only good for 14 days or until after you win your appeal hearing. Because you are not allowed to refuse a breath or blood test your license will be suspended for a year unless your Michigan DUI lawyer demands a hearing within this 14-day period.

Both the DI-93 and the DI-177 are filed with the State of State, and your driving record will reflect this fact.  This means that even before you are convicted of anything in Michigan your driving record will reflect that you have been arrested under the suspicion of drunk driving. All of this applies for any kind of intoxicated driving including driving under the influence of marijuana.

If you are convicted of DUI in Michigan, then your driver’s license will either be restricted, suspended, or revoked. The exact driver license sanction will depend on the nature of your DUI conviction and your prior record. Driver license sanctions for DUI range anywhere from a 90-day restricted license to a 5-year hard revocation. These sanctions are not imposed until after you are convicted. A conviction occurs when you either plead guilty to an intoxicated or impaired driving or are found guilty by a judge or jury.

The specific driver license sanction depends on the nature of your conviction, the number of prior offenses you have, and when those prior offenses occurred.  The following is a brief explanation of these driver license sanctions:

First Offense Operating While Visibly Impaired (OWVI)

What to Expect in the 52-1 District Court Novi Michigan

52-1 District Court in Novi Michigan has jurisdiction over many kinds of criminal cases, including drunk driving. The three judges at the Novi Court preside over a very large geographical area with a corresponding large population of approximately 175,000 people. If you were arrested for a serious felony or a misdemeanor such as domestic violence or drug possession, or if you were just given a ticket for something like drunk driving, in any of the following communities, then your case will be handled in the Novi District Court:

  • Commerce Township
  • Highland Township
  • Lyon Township
  • Milford Township
  • ​Novi
  • Novi Township
  • South Lyon
  • Village of Milford
  • ​Village of Wolverine Lake
  • Walled Lake
  • Wixom

First Appearance in Court

Generally, your first appearance in the court will be an arraignment most likely along with a pretrial. The purpose of an arraignment is for you to learn of the charges against you and for the court to schedule your bond. Because of this, it’s important to hire a legal advocate before your first court date. Relative to the bond, in many instances you will be given a “personal” bond, which means you don’t have to post any money. Instead, you are giving your word that you will appear as required for all future court appearances. You will also be ordered to comply with several bond conditions such as alcohol testing and you will not be allowed to leave the state without permission of the court.

Process of a Pretrial

The purpose of the pretrial is for the court to determine if any assistance is needed in obtaining discovery on your case including things like the police reports, breath or blood testing logs and video recordings. The court will also be interested to learn whether or not there are any issues of evidence that the court needs to address or assist with before the case can be set for trial. Finally, there will be a discussion as to whether or not your case can be resolved through plea or sentencing negotiations. You will appear with your legal advocate for all scheduled pretrials.

Must a Licensed Health Care Worker Report a DUI to LARA?

Yes, Michigan law requires all licensed health care workers to self-report all criminal convictions to the Department of Licensing and Regulatory Affairs (LARA). This reporting requirement includes all intoxicated driving offenses.  Additionally, Michigan law provides that clerks of the court must also report a licensed health care worker’s drunk driving conviction to LARA. Thus, one way or the other, LARA will learn of the conviction, and will take whatever action they deem appropriate.

Specifically, Michigan Compiled Laws Sec. 333.16222(3) indicates as follows:

(3) A licensee or registrant shall notify the department of any criminal conviction within 30 days after the date of the conviction.

What are the Requirements for a Michigan Driver License Restoration?

If your license has been suspended or revoked in Michigan then you will not be able to drive legally again until you take certain steps to restore your driving privileges. The necessary steps depend on the nature of your suspension or revocation. One important  difference between the two is that with a suspension you still have driving privileges, you just can’t use them until the suspension is over. With a revocation your driving privileges have been completely taken away.  If you’re not exactly sure if you are currently serving a driver license suspension or revocation then your lawyer will be able to help clarify which applies to you.

With a suspended license, usually the only thing you need to do is to simply wait until the end of the suspension period.  At that time, you will only be required to pay a $125 reinstatement fee at your local branch office of the Secretary of State.  You will receive your full driving privileges immediately back upon their receipt of this reinstatement fee.  However, the plastic photo license will be sent to you in the mail a week or two later.  Barring any complicating factors, you will not need the assistance of a lawyer if all you are facing is a suspended license.

On the other hand, if your driving privileges are revoked they will stay that way until and unless you file a written document, called a petition, to the Secretary of State to restore your driving privileges. Before doing so however, you must wait the minimum revocation period, which is generally one or five years. The exact time period would have been stated on the notice of revocation you originally received from the Michigan Secretary of State.  If you are not sure how long you must wait, then your attorney will be able to learn of the extent of the restoration and let you know so can you can plan accordingly.

How to Prepare for Your Michigan Implied Consent Hearing

Michigan drivers suspected of intoxicated driving based on the consumption of alcohol, marijuana, or other intoxicating substances, must submit a breath, blood or urine sample upon the reasonable request of a peace officer.  A failure to provide such a sample will result in the police obtaining a warrant for your blood.  You will also be charged with an OWI along with a separate charge for an alleged violation of Michigan’s implied consent law.  This will result in the police destroying your Michigan driver’s license.  The officer will then issue you a 625g paper permit, also called a DI-93, and this will allow you to drive temporarily.

You have a right to appeal the police officer’s determination that you violated the implied consent law, and such appeals go before the Administrative Hearings Section of the Michigan Secretary of State. You or your attorney must mail the request for this appeal hearing within 14 days of the date of arrest. A failure to do so will result in your driving privileges being automatically suspended for at least one year.

According to the Michigan Implied Consent Law, there are only four issues to be resolved at the appeal hearing:

Am I Eligible for Sobriety Court?

Many courts throughout Michigan employ an alternative form of sentencing for drunk drivers that emphasize treatment over punishment. Collectively, this approach to sentencing is called sobriety court.  Such courts utilize a 2011 Michigan statute codified in Michigan Compiled Laws § 257.304.  This law established new procedures and sobriety court participation provides advantages not available with traditional sentencing.  Eligibility to participate in a sobriety court program varies depending on the location of your arrest and the court where your case is presiding. Sobriety courts are only available to repeat offenders arrested after 2011.  Some courts also impose residency requirements, meaning the offender must live within the jurisdiction of the court.

Sobriety courts are not available in all jurisdictions. The admission into sobriety court is at the discretion of the Judge presiding over the sobriety court. You will only be admitted into sobriety court if you are able to demonstrate a strong commitment to sobriety. If you are considering sobriety court it is best to discuss the specific requirements of your court with your lawyer.

In the sobriety court environment, the judge unofficially acts as a recovery group facilitator.  In addition to the judge, who presides over the official sobriety court sessions, you will also be involved with someone from the prosecutor’s office, a defense advisor, one or more probation officers, including the probation supervisor, and a variety of treatment providers.  All of this takes place in a non-adversarial context and is far less formal than typical court proceedings.  Most of the courts that use this model require a minimum of 18 months of supervision.  The intensity of the probation, including the amount of alcohol and drug testing, support meetings, etc., is greatest at the beginning of the probation period and is gradually reduced as you demonstrate your ability to stay in compliance with the terms of your probation and have demonstrated the ability to maintain your ongoing sobriety.

Misdemeanor and Felony Procedures in a Michigan DUI/OWI Case

After you’ve been arrested for DUI/OWI in Michigan the next step will be for the arresting officer(s) to prepare a narrative written police report, including any supplemental discovery materials. Depending on the nature of the office, this report and investigation will include a description of the basis for the initial police contact, usually a traffic stop, a description of the entire roadside investigation, including your performance on any field sobriety tasks, the results of any chemical tests, copies of any search warrants, one or more video recordings, and copies of any witness statements.  If there was an accident, and injury or death occurred, then the police reports may include an accident reconstruction, medical records, and the coroner’s report relative to cause of death.

Once these reports and materials have been signed off on by the senior officer in charge, they will be forwarded to the prosecuting attorney.  At this time the prosecutor will review your prior record, and the facts of the case, to determine what charges should be issued.  If you were issued an appearance ticket, these final charges may or may not be the same.  The prosecutor will then prepare an arrest warrant which will be issued by the court, and this, or the appearance ticket, will start the court-related steps.

The first court-related step will be the arraignment. The purpose of the arraignment is for you to appear before the court and learn of the charges you are facing.  The court will also set your bond, including any conditions to your bond. Provided you can make bond, you will leave the courthouse with a new date to appear.  At this point the steps will depend on if you are charged with a misdemeanor or felony.

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