Articles Posted in DUI Penalties

Michigan statutory law provides that for every Michigan DUI case the offender must be subjected to substance use evaluation prior to sentencing. More specifically, Michigan Compiled Laws sec. 257.625b indicates that such individuals must undergo a screening and assessment to determine if the person would benefit from “rehabilitative services,” which may include such things as alcohol or drug education or treatment programs.

What is a NEEDS Survey?

Your substance abuse assessment and screening prior to your Michigan DUI sentencing hearing will be conducted by the court’s probation department. To accomplish this the probation officer will administer a 130-question mostly multiple-choice test called a NEEDS survey. The purpose of the NEEDS survey is to assist the probation officer, and therefore the judge who will be sentencing you, in determining if they believe you could benefit from substance use treatment. If so, then you will be ordered into such treatment at sentencing. This will also become a “rehabilitative aim” allowing the court to rebut the statutory assumption against jail or probation on a DUI offense. You will be charged a screening fee for this test. You can pay this in advance, and if you do not, you will be ordered to pay the screening fee when you are sentenced for your DUI.

Now that you understand the plea bargaining process in Michigan and how to prepare for court when pleading guilty, let’s now consider exactly what happens in court when you plead guilty. During the plea taking process the court will be concerned with two things. First that you understand the constitutional rights that you are giving up by pleading guilty, and second, that you are freely, knowingly and understandingly admitting to and acknowledging that you have committed the crime to which you are pleading guilty.

To confirm that you are fully aware that by pleading guilty you are giving up all your constitutional rights associated with trial, the judge will ask you a series of questions almost all of which are answered by the single word “yes”. So, for example, the judge will ask you if you understand that you have an absolute right to trial, to which of course your answer is “yes.” The judge will ask you if you understand that pleading guilty you are giving up your right to remain silent, to which again, the answer is “yes.” There are sometimes a few “no” questions as well, such as “have any promises been made other than those stated on the record, to get you to plead guilty.” The answer to the question so certainty be “no.” Another no question might be “have there been any threats, compulsion or duress used to get you to plead guilty.” Again, the answer should definitely be no. Once the court is satisfied that you are freely knowingly and understandingly giving up or waiving all your constitutional trial rights, and that no promises or threats have been made to induce the plea, then the court will move on to a establishing the factual basis for plea.

What is a Factual Basis for a Plea?

Many Michigan DUI and other criminal cases are resolved through a process called plea bargaining. A plea bargain is what happens after your attorney discusses your case with the prosecutor and explains why it is appropriate to amend or reduce the charges you are facing with the court. You will be advised of any plea(s) offered by the prosecutor even if your lawyer doesn’t think you will accept the offer or if it’s in your best interest.  This is because the rules of professional ethics applicable to criminal defense attorneys require all offers of settlement to be disclosed to you. Plea agreements are usually reached only after discovery is complete and all viable defenses to your DUI case have been thoroughly explored.

Making the Decision to Plead Guilty

In most instances, if you are pleading guilty it is because the prosecutor has offered to modify or “amend” the original charges in your case, usually by reducing them to something less serious, and you have indicated that you are willing to plead guilty to these amended or reduced charges in exchange for the prosecutor’s promise that the original more serious charges will be dismissed.  This promise is reduced to a written motion sometimes called a plea agreement which will be signed by the prosecutor, your attorney, and the judge. Collectively, this process is called plea bargaining.

The Michigan DUI Lawyers at the Barone Defense Firm had be advising our clients that if they were convicted of operating while intoxicated they should expect to be placed on a term of probation. However, in March 2021 the Michigan legislature passed new and amended laws that focused on Criminal Justice Reform, and specifically provided that non-serious misdemeanors should not be ordered to jail, nor ordered to probation.  Michigan Compiled Laws Sec. 769.5(3) further clarifies that the appropriate sentence for these non-serious misdemeanors would be a fine, community service, or other non-jail and non-probation sentence. On this basis one might assume, therefore,that a qualifying Michigan drunk driving charge would not receive probation.

This despite the fact that the statutory penalties for a first offense Michigan DUI could include a maximum fine of $700, 360 hours of community service, and other non-probation or non-jail alternatives that may include counseling or rehabilitative services, and other educational programs like a Victim Impact Panel.  The maximum period of probation would be 24 months of probation, and the maximum jail term would be 180 days if a High BAC, or 93 days in an OWI or Impaired Driving.

This criminal justice reform measure appears to address these statutory penalties to allow offenders to avoid the probation and jail aspects of the case.

On February 4, 2022, Michigan DUI Lawyers Ryan Ramsayer and Michael Boyle will present The ABC’s of OWI Expungement. The seminar his hosted by the Michigan Association of OWI Lawyers and will be presented via zoom. The cost to attend this seminar is $75.00 and is open to all lawyers wishing to learn about Michigan’s new DUI expungement law.

The seminar will be led by Barone Defense Firm senior associate Ryan Ramsayer and will be moderated by Michael Boyle, who is a partner at the Firm.  Mr. Boyle is also a is a Board member with the seminar’s host, the Michigan Association of OWI Lawyers.

Michigan’s new DUI expungement has an effective date of February 19th, and this will allow most people convicted of a first offense drunk driving offense to request that their conviction be expunged. It is expected that winning expungement in many courts will be a daunting prospect, and not one that should be undertaken without significant knowledge of the law combined with thorough and informed preparation together with a deft courtroom presentation. Mr. Ramsayer will be covering all these topics, and more, at the OWI expungement seminar.

In this Michigan Intoxicated driving causing death, the defendant Willett entered a no contest plea thereby admitting that he was operating a motor vehicle with the presence of any amount of marijuana in his body, and that the operation of his vehicle caused the death of another, under Michigan Compiled Laws § 257.625(4)(a)and (8).

Mr. Willett was sentenced to 4 to 15 years of imprisonment. Prior to sentencing the defendant, the court questioned him about his marijuana use, and the defendant, then 21 years of age, admitted he used marijuana daily and had started using marijuana at age 14 or 15.  The court concluded the pre-sentencing colloquy by admonishing the defendant and stating to him that it was his use of the drug that lead to the horror of the accident and death. On appeal the defendant argued that the court’s sentence was based on inaccurate information, and the Michigan Court of Appeals agreed.  The case was reversed and remanded.

The facts of this case include an admission from the defendant, at the roadside, that while he was driving, he was getting sleepy and closed his eyes. He crashed into the car in front of him immediately after opening his eyes, creating a multi-vehicle accident leading to the death of one of the vehicle’s occupants.

A new law in Michigan makes it somewhat less likely that persons charged with misdemeanor drunk driving, including first and second DUI offenses, will go to jail. This is because Public Act No. 395 of 2020, which was signed into law by Governor Whitmer on January 4, 2021, creates a rebuttable presumption against incarceration for most misdemeanor offenses, including most misdemeanor drunk driving offenses.  The effective date of the new law is March 24, 2021.

The new law amends Michigan Compiled Laws Section 769.5. Subsection 3 of this law indicates that there is a rebuttable presumption that a person convicted of a misdemeanor will be sentenced to a fine, or community service, or some other non-specified non-jail and non-probation sentence. The only circumstances under which a sentencing judge may depart from this presumption is if they state on the record “reasonable grounds” for doing so. The term “reasonable grounds” is not defined.

The law also provides that if the offense in question is punishable by both a fine and imprisonment, the court can impose one but not the other, or both. However, if the court does impose both a fine and incarceration, or just incarceration, then as indicated, the Judge must articulate on the record reasonable grounds for doing so.

A package of new laws allows some of Michigan’s repeat drunk drivers to possibly avoid mandatory minimum jail sentences. As a result of these changes, mandatory minimum sentences have been modified or removed from Michigan’s drunk driving statute, and this means that Judges may now sentence a drunk driver to any term of imprisonment, from zero days up to the maximum otherwise provided for the offense.  The new law does not change the applicable fines or maximum possible terms of imprisonment, it only eliminates the mandatory aspects of the minimum sentences, making it possible for some repeat DUI offenders to avoid incarceration.

Legislative History of the New Michigan DUI Laws

These changes arose out of House Bill 5845, which was introduced in June 2020.  The proposed law went through several permutations until it was approved by both houses by a vote of 506 to 38 in December 2020.  Shortly thereafter it was introduced to Governor Whitmer. The Bill was signed into law by the Governor on January 4, 2021 and becomes effective on March 24, 2021.

The Superbowl has dominated the recent headlines, but an unfortunate story involving one of the Chiefs’ coaches, and the son of Head Coach Andy Reid, has also captured national attention.  Britt Reid was involved in a car accident wherein two young children were injured including one who is listed in serious life-threatening condition with a brain injury.

According to some initial Reports, the coach was driving onto an on-ramp and struck a disabled vehicle and then collided into a car that was providing assistance.  The accident resulted in the two minor children being seriously injured.

Mr. Reid admitted to drinking 2-3 alcoholic drinks prior to the accident, and a police report and warrant indicated a moderate odor of alcoholic beverages.  If there is evidence that alcohol may have been involved, then it is common that a warrant for a blood draw will be obtained.

If you have been charged with and convicted of a felony in Michigan, then it will be important for you to know and understand the sentencing guidelines. From a historical perspective, sentencing guidelines were intended to accomplish several things, one of which was to remove the possibility of discriminatory sentences. Because there is a certain amount of objectivity to the calculation of sentencing guidelines, a wealthy white male should be sentenced in the same range as a poor black woman.

How Do Sentencing Guidelines Work?

Generally speaking, each offense category has assigned to it a variety of offense variables and prior record variables. Points are assigned for each of these variables, tallied, and then applied to the appropriate sentencing grid. The results of both will cause your sentence to “land” within a particular cell that will dictate the appropriate minimum sentence.

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