Articles Posted in DUI

There is only one way to honestly and objectively develop the reputation as the best DUI lawyer in Michigan and that is to do it the hard way – earn it. It’s easy for a lawyer to post on a website  “best DUI lawyer in Michigan,” it’s quite another to spend decades doing the hard work to earn this distinction.

So how does one become the best? Considering the subject matter, earning the reputation requires dedication, focus and a commitment to excellence. Dedication is required due to the complexity of the subject matter. Most lawyers attend law school after first obtaining an undergraduate degree in a related field of study, such as political science, English or philosophy. Few lawyers have science degrees, and the old joke among lawyers is “I went to law school because I wasn’t good at math.”

A science education is helpful because DUI cases with drugs or alcohol almost always involve a chemical test of the driver’s breath blood or urine. The science behind this testing must be understood because without it a lawyer cannot adequately represent his slash her client in court. If you can’t beat the test, you can’t win the case.

Michigan drivers arrested under suspicion of intoxicated driving will have their bodily drug and alcohol levels tested by the police. When drugs including marijuana are suspected, and in some cases involving alcohol, the police will take and test a blood sample. The forensic method used for blood testing is considerably more complicated than breath testing, and many lawyers wrongly believe that DUI cases involving blood tests can’t be defended. The Michigan DUI lawyers at the Barone Defense Firm however believe that in some ways blood test cases are easier to defend. This belief is born out of a comprehensive knowledge about this complex scientific method.

To help other lawyers understand forensic blood testing in DUI cases, the Michigan Association of OWI Attorneys (MIAOWIA) periodically presents seminars on this topic. Barone Defense Firm founding attorney Patrick Barone, and Partner Michael Boyle, were both closely involved in the creation of MIAOWIA, and Mr. Boyle currently serves as an officer to the group.

As an example of Mr. Boyle’s expertise as well as his commitment to helping other lawyers get better at defending Michigan DUI cases involving blood test evidence, in early October 2021, he served as a host, moderator, and presenter for the Michigan Association of OWI Seminar on Blood Alcohol.  Mr. Boyle is an original member of MIAOWIA, which is membership dedicated to the education and training of attorneys throughout the State of Michigan in the complex litigation and representation of individuals charged with Operating Under the Influence of Alcohol and/or Drugs.

The last two articles about Michigan OWI expungement addressed how to determine if you are eligible for expungement and provided an overview of the procedures that must be followed to obtain an OWI expungement. In both articles we explained why its important for you to seek the advice and assistance of a Michigan Expungement Lawyer.  In this article we will explain some of the benefits and limitations of an OWI expungement.

What does expungement actually mean?

An OWI expungement will remove the conviction from your criminal record, and in most respects, the expungement allow you to proceed in your affairs as though you had never been convicted.  For example, with some limitations that are beyond the scope of this article, a successful OWI expungement will allow you to avoid having to answer “yes” when asked about prior convictions on job and school applications. Again, with some limitations, a successful OWI expungement will also prevent the OWI conviction from showing up on a background check.  and background questionnaires.  Consequently, a successful OWI expungement will close out that chapter of your past and give you a fresh new start.

Seeking and obtaining an expungement of your first OWI offense in Michigan will minimally require the following seven steps: (1) determining eligibility, (2) gathering all the required paperwork, (3) preparing the petition for expungement, (4) serving the petition and all associated paperwork on both the Michigan Attorney General and prosecuting attorney, (5) Filing the petition with the court and obtaining a court date, (6) Preparing for “elocution” and presenting the case to the judge at the hearing, (6) following through subsequent to the hearing to assure the OWI conviction is in fact removed from the criminal record.

Each of these steps is necessary because the new Michigan OWI expungement law sets forth very specific procedures that must be followed meticulously before an OWI expungement case can be presented before a judge. These procedures are summarized below. Understanding and following these procedures comes subsequent to your determining if your Michigan OWI conviction is eligible for expungement. Eligibility was the subject of our previous article on the new Michigan OWI expungement law. We suggest that readers begin with a review of that article before reading this one.

Do I need an attorney to file an expungement?

Expungement of drunk driving convictions has never been allowed in Michigan until recently. On August 23, 2021, Michigan’s Governor Gretchen Whitmer signed Enrolled House Bills 4219 and 4220.  Collectively, these two Bills amend the current expungement laws to allow the expungement of a “first violation operating while intoxicated offense.”

While this is a huge step forward for those with drunk driving convictions, the law is not perfect, and has many potential limitations, snags and pitfalls, many of which are clarified below.

When can I file for expungement of my OWI conviction?

The infrastructure spending bill now pending before the United States Senate contains a provision requiring that all manufacturers selling cars in the Unites States install technology that will preclude the vehicle from being operated by an intoxicated driver. This provision was sponsored by Michigan’s Rep. Debbie Dingell, D, among others.

According to the 2702-page bill, the Department of Transportation will be charged with the responsibility to determine the safety standards applicable to the technology and are required to do so within three years. Car manufacturers will then be given an additional two years to comply with these standards. However, if the DOT fails to finalize the rules within 10 years, the agency must report to the US Congress why they failed to comply.

There is little guidance in the bill relative to how the DOT should exercise their authority other than to say that whatever technology they settle on should “passively” and “accurately” monitor a driver’s performance and determine whether the driver is impaired.  Furthermore, the technology must “passively and accurately detect whether the blood alcohol concentration of the driver of a motor vehicle” is too high.

Your lawyer may ask you to obtain a character letter for court purposes.  This article explains how to format and write such a letter. You can share a link to this article with those you ask to write such letters. While there are many suggestions here, what’s missing is a sample character letter or a form character letter.  This is because utilization of a form will cause all character letters to look substantially the same, and this defeats the whole purpose and is counter-productive.  Use of such forms is strictly discouraged.

Also, for many people, being involved in the Michigan criminal justice system is a new experience, so let’s start with some basics and a discussion of how such letters might be used by your lawyer.

Character Letters for Use During Plea Negotiations

It can be difficult for a marijuana user to subjectively assess their level of impairment. Even worse, there is no way for a marijuana user to objectively evaluate their level impairment. So, after consuming marijuana medically or recreationally, how can a marijuana user make a safe decision about driving?

Before we get to that question, let’s do a quick review of Michigan’s OWI laws as it relates to drugs. In Michigan, you can be charged (and potentially convicted) if you are either impaired or intoxicated by alcohol, drugs, or any combination thereof.  Specifically, Michigan’s OWI law references impairment or intoxication caused by alcohol, controlled substance or “other intoxicating substance.” See Michigan Compiled Laws Sec. 257.625.

Notably, the statute does not define either the word intoxicated or impaired, leaving that factual determination to the fact finder, which is usually a jury of 6 or 12 individuals, depending on if the case is a misdemeanor or a felony.  To assist the jury in reaching this determination they will be given several standard jury instructions.

Michigan DUI law provides that if an arrest is Constitutionally invalid then dismissal is the appropriate remedy. Most drunk driving cases begin with a traffic stop. When a police officer believes that the driver may have been drinking or using drugs, the driver will be asked to step from the car for further evaluation after which the driver may be arrested.  If this arrest is invalid, then the DUI case must be dismissed.

The DUI arrest usually follows a field investigation.  This field investigation usually begins with the administration of one or more field sobriety exercises, continues with the administration of a preliminary roadside breath test (PBT), and concludes with an arrest.  Each of these steps is a “Constitutional” event subject to careful review and analysis by a skilled Michigan DUI lawyer.

To be Constitutionally valid, an arrest must be informed by probable cause.  Michigan case law provides that a PBT result above the legal limit is enough to establish probable cause.  This means that in many Michigan DUI cases where a PBT was administered, the question becomes whether the PBT itself was lawfully administered.

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.

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