DUI Penalties

Am I Eligible for Sobriety Court?

Published on: August 2, 2018 | by Patrick Barone

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

Published on: August 1, 2018 | by Patrick Barone

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.

Criminal and Driver License Enhancement in Second Offense Drunk Driving Cases

Published on: July 18, 2018 | by Patrick Barone

Criminal and Driver License Enhancement in Second Offense Drunk Driving Cases

If you have been charged with a second offense drunk driving case in Michigan, then you are probably wondering about how severely you will be punished. The type of punishment will be based on both criminal enhancement and driver license enhancement. Before discussing these differences, the first thing to know is about the two is that the judge will decide your punishment whereas the Michigan Secretary of State will decide your driver license sanction.

With that in mind, let’s first look at criminal enhancement. The Michigan look-back period for second offense drunk driving is 7-years. This means that a new DUI arrest occurring within 7- years after a prior DUI will be considered a second offense drunk driving. The look-back period for criminal enhancement runs from date of conviction to date of arrest.

In this context enhanced means, the statute provides for the possibility of more jail time. For example, for a first offense DUI the maximum jail time is 93 days with no minimum period of incarceration. However, in the case of a second offense drunk driving, Michigan Compiled Laws § 257.625 provides as follows:

Should I Take My Drunk Driving Case to Trial or Just Plead Guilty?

Published on: November 1, 2017 | by Patrick Barone

If you are charged with drunk driving in Michigan, then at some point after your arraignment you will need to decide if you wish to plead guilty or stand trial. This is because all Michigan drunk driving crimes are classified as either misdemeanors or felonies. This means that all people accused of drunk driving in Michigan have an absolute right to trial. The trial can be either by a jury or by a judge. Misdemeanor cases in Michigan are tried before juries of 6 people whereas felony cases are tried by juries of 12. Verdicts in all criminal cases require that juries be unanimous, either in favor of conviction or in favor of acquittal.

The trial/no trial decision is a complex one and requires the assistance of an attorney familiar with the trial process, particularly, one familiar with drunk driving trials. However, relative to the trial option there are many things to consider in making this decision. The first is the likelihood of conviction but this likelihood is best viewed within the context of the plea offer being made on the part of the prosecutor. Has the prosecutor offered to reduce the charge in exchange for your plea of guilty? If so, then how “valuable” is that plea offer? You are the only person who can assess this value.

When there is a plea offer, or in those cases where no plea offer is made at all, and your only choice is to plead guilty as charged, it may be useful to weigh this fact against the right(s) you are giving up by foregoing trial and pleading guilty. Everyone accused of a crime has many trial rights, including the presumption of innocence, the right to call witnesses and the right to remain silent. These are valuable rights and ones that should not be lightly waived or given up.

Repeat Drunk Drivers in Barry County, Michigan Get Minimum 30 days in Jail

Published on: March 2, 2017 | by Patrick Barone

Repeat Drunk Drivers in Barry County, Michigan Get Minimum 30 days in Jail

A Barry County Judge has indicated that he’s going to start cracking down on repeat drunk drivers by giving them a minimum of 30 days in jail.

Judge Michael Shipper was appointed by Governor Snyder in 2011 and is already tough on first-time offenders. Now he says he’s ready to be even tougher on repeat drunk drivers. He’s indicated that the 30-day sentences could be spread out over 15 weekends.

In Michigan, a second offense drunk driving charge is appropriate only where the offender has a prior offense within the prior 7 years. If the prior offense is more than seven years old the new offense will be considered a first offense. However, the same is not true for those drivers with two prior drunk driving offenses on their record. Michigan has a lifetime look back for drivers with three or more total drunk driving convictions. These drivers are considered felons and may face up to five years in prison.

Must Field Sobriety Tests Follow Standards Prescribed by the National Highway Traffic Safety Administration?

Published on: February 17, 2017 | by Patrick Barone

Must Field Sobriety Tests Follow Standards Prescribed by the National Highway Traffic Safety Administration?

The answer is somewhat unclear because so far no Michigan court has specifically ruled that police officers must administer standardized field sobriety tests in accordance with protocol set forth by the National Highway Traffic Safety Administration (NHTSA). However, a new law was recently passed in Michigan that suggests that the legislature wants substantial compliance with the NHTSA standards.

The new law, with an effective date of September, 2016, reads as follows:
257.62a “Standardized field sobriety test” defined.

Sec. 62a. “Standardized field sobriety test” means 1 of the standardized tests validated by the National Highway Traffic Safety Administration. A field sobriety test is considered a standardized field sobriety test under this section if it is administered in substantial compliance with the standards prescribed by the National Highway Traffic Safety Administration.

Impact of a Michigan Drunk Driving Charge on Buying or Leasing a New Vehicle

Published on: November 22, 2016 | by Patrick Barone

If you have been arrested for a first offense drunk driving in Michigan, then you are not prohibited in any way from buying, selling or leasing a car. However, if you have been arrested for a second offense drunk driving, then things get a bit trickier.

In 1999, the Michigan drunk driving set forth at Michigan Complied Laws 257.625 et. seq., changed substantially. Part of these changes included license plate confiscation for people arrested for a second offense within seven years, or a third offense within a lifetime.[i] The police replace the metal license plate with a temporary paper plate that is valid, under statute, until the charges against the person are dismissed, the person pleads guilty or nolo contendere to those charges, or the person is found guilty of or is acquitted of those charges.[ii]

These procedures bring up a whole host of potential issues including what happens if you want to sell your car, or turn in your lease, and what happens if you want to buy a new car?

Prosecutor Challenges One-Year Jail Sentence for Drunk Driving Causing Death Case

Published on: September 29, 2016 | by Patrick Barone

In Michigan, a charge of drunk driving causing death is punishable by up to 15 years in prison. This possible sentence is set forth in Michigan Complied Laws 257.625(4)(a). In determining exactly what sentence to impose for an individual case a judge will be looking at many factors, including the Michigan Sentencing Guidelines.

A recent case dealing with this issue is People v. Taylor. In this particular case the defendant Taylor was found guilty of drunk driving causing death. The facts were that Taylor admitted drinking, then while driving a car killed a person on a bicycle. He failed field sobriety tests and was over the legal limit.

The sentencing guideline range was 29 – 57 months. Taylor’s defense attorney filed a sentencing memorandum where he requested a downward departure from these guidelines. He argued that there were substantial and compelling reasons to do so, including his lack of criminal history, education, employment history, remorse and many other factors. The prosecutor, of course, argued that none of this mattered.

Minimizing the Impact of a Michigan DUI on Pilot Licenses

Published on: September 9, 2016 | by Patrick Barone

Many people don’t realize that a drunk driving picked up on their “own time” can sometimes affect their jobs. This is particularly true for nearly anyone who carries a professional license, be it a pilot license, medical license, insurance license, real estate license or even a cosmetology license. In almost every instance the license holder must report the drunk driving arrest or conviction to the licensing authority, usually the Michigan Licensing Authority and Regulatory Affairs. Pilots who pick up a drunk driving have very stringent reporting requirements, and a failure to report in a timely manner can be devastating. With pilots however, it’s more of a federal issue rather than a state issue.

For the past several decades, the Federal Aviation Administration (FAA) had required pilots, that is anyone who holds an FAA license, to report each motor vehicle action (MVA). This FAA reporting requirement includes even a first drunk driving arrest. Because pilot licenses generally don’t expire, this reporting requirement holds true for both active and non-active pilots.

The FAA sets forth the following definitions of a MVA, all of which must be reported within 60 days:

Innocent Owner Defense Doesn’t Apply to DUI Car Forfeiture

Published on: September 2, 2016 | by Patrick Barone

Michigan law provides that drivers convicted of drunk driving can have their cars forfeited. This means that upon conviction the state can take the convicted drunk driver’s car. In those cases where the car was used without the permission or knowledge of the owner the “innocent owner” defense would apply. If successful this defense would keep the state from grabbing the car.

The Minnesota courts have significantly lessened the applicability of this defense.

According to the Newspaper.com, the Minnesota Supreme Court recently upheld the right of police to confiscate vehicles from owners who have done nothing wrong. The decision narrowed the applicability of an “innocent owner” defense in cases where a vehicle is jointly owned. The high court considered the case of David and Jean Margaret Laase whose then-brand new 2007 Chevrolet Tahoe was confiscated in 2006.