Articles Posted in DUI

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.

On February 1st, 2021, Michigan governor Gretchen Whitmer allowed restaurants in Michigan to reopen at 25 percent capacity. Although the 25 percent capacity limit was initially extended, Whitmer recently announced that capacity limits will soon be further loosened.

Springtime Brings the Biggest Surge in Drinking Since the Holidays

The loosening of the Covid-19 restrictions for restaurants and public spaces comes at a time when people usually start going out more. Spring is on the way. The weather is getting warmer. Restaurants will be setting up patios. And major sporting events will be taking place.

In some drunk driving cases you will immediately know that charges are being filed. For example, there was a traffic stop, field sobriety tests and a preliminary breath test (PBT), an arrest, and a subsequent breath test at the police station. Then, when you leave the police station you’ll have all the documents reflecting that you’re being charged with DUI.

In other cases, it might not be so clear. Some confusion may arise when a blood sample was taken as opposed to a breath test. In most DUI cases in which a blood sample was obtained, no formal citation issued at the time of the arrest.  The same is true if you have one or more prior DUI offenses. Another reason you may not have received a ticket is you blow super-drunk at the roadside. In any of these cases you won’t leave the station with a ticket or any other document indicating you got a DUI, and you may wonder if you are actually being charged. This is because the police and prosecutor are waiting for the results of the blood sample to know which level, if any, of DUI crime they can charge. If you were involved in a case like this, you might be left wondering when you should hire an attorney.

How long will it take for me to find out whether charges will be filed?

If you have been charged with a crime in Michigan, you will have to decide if you should plead guilty or go to trial. You should make this decision only with the assistance of your Michigan criminal lawyer, who can explain to you the advantages of the plea offer and contrast them with the advantages or disadvantages of trial. Once you’ve made your decision to plead guilty, your case will be set for a plea hearing. This is when the court will take your plea, and after which your case will be set for sentencing.

Prior to your court hearing you may be asked to review and sign a plea form. In federal court this is referred to as a Rule 11 agreement. Most, but not all, state courts also use written plea forms. When used, plea forms set forth the terms of the plea and usually include a recitation of any possible sentence. If yours is a state case, and there is a Cobbs agreement, then this sentencing agreement will also appear on the plea form. Your signed plea agreement will be provided to the court and the judge will confirm that your signature appears on this document.

As it relates to the plea hearing itself, there are two parts to any plea; the first is the advice of rights, and the second is the factual basis. With the advice of rights, the court’s primary interest is to confirm, through question and answer, that you understand all the constitutional rights you give up by pleading guilty. Most state district courts will use standard form 213, which you are often asked to sign at your arraignment. These constitutional rights include all your trial rights and include the following:

Can Drunk Driving be Charged as Murder in Michigan Where Death Occurs?

Whenever a death occurs at the hands of another, a prosecutor must decide how to charge the wrongdoer. In several Michigan cases involving intoxicated drivers where a death has occurred prosecutors have successfully charged murder. Generally, the appropriate charge is OWI causing death, which is punishable by up 15 years in prison. See MCL Sec. 257.625, et. seq. However, if a prosecutor can show that a driver had the appropriate mindset, then this charge can be raised to second degree murder, which is punishable by up to life in prison. See MCL Sec. 750.317.

Each crime is made up of elements, and an important element in a murder charge relates to the element of criminal intent. Consequently, in a murder case, the prosecutor will be focused on evaluating any evidence suggesting the wrongdoer’s state of mind, or what we lawyer’s call “mens rea.”

After a Michigan drunk driving arrest, the first thing on many people’s minds is: will I lose my job?  A recent story in the Detroit Free Press details how for many, the unfortunate answer is yes.

As the article explains, a public safety director for a city in Michigan was placed on leave because of an Operating While Intoxicated (OWI) charge. Even though the case hasn’t concluded, the officer is already facing consequences for the OWI charge. The final “verdict” on this officer’s job status could depend not just on the result of the case but also how the officer handles himself before the case is finalized.

The Michigan DUI lawyers are the Barone Defense Firm always discuss this issue with clients immediately after they have retained the Firm. It is important to address this issue at the beginning rather than at the end of a case because getting ahead of the issue can help our client’s save their jobs. There are several things to consider including:

It is common knowledge that driving a motor vehicle while intoxicated is against the law in Michigan. But, what if you’re on an off-road vehicle (ORV) on a trail? What if you’re on an ORV on a roadway intended for motor vehicles? Well, a recent case in Michigan reminds us that, if you drive an off-road vehicle on a road intended for motor vehicles, you can be charged with the standard drunk driving charge typically reserved for traditional motor vehicles.

The case mentioned above arose out of an incident that occurred in early May. The story reported on MLive indicates that a DNR officer observed an ORV on a “public highway.”  The vehicle was swerving, and the officer observed several empty beer cans as well as an open one in the vehicle’s cup holder.  Additionally, the driver failed the standard field tasks, and a roadside preliminary breath test came back at .163, or more than twice the legal limit.

In this case, the defendant was charged with felony Operating While Intoxicated because it was his third DUI offense.  To raise a new DUI arrest from a misdemeanor to a felony, Michigan law requires two prior DUI offenses. If you get caught driving your ORV on a public road while intoxicated without prior offenses, it will typically be a misdemeanor Operating While Intoxicated charge.

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New numbers showing increases in Covid-19 illness and death suggest that infections in Michigan and the United States have not yet peaked.  In response, Governor Gretchen Whitmer has ordered bars in many parts of Michigan to close again. According to the Detroit News, Whitmer’s order says that an establishment must close if its alcohol sales make up 70% or more of its gross revenue. This means that most nightclubs, strip clubs, and bars that don’t serve food must close or change their businesses to fit the guidelines. To help make up for the loss of income, bars can offer cocktails and drinks to-go and outdoor seating instead of closing completely.

Really? Are to-go Cocktails Legal?

To-go cocktails were illegal in Michigan before a new law passed on July 1, 2020. Previously, to-go cocktails would be considered open intoxicants in a motor vehicle, which is a misdemeanor in Michigan. Under the new laws passed by the Michigan legislature and signed by Governor Whitmer, bars and restaurants may now offer to-go cocktails and customers may take them away from the establishment from which they were purchased. Presumably, the majority of people will be driving to and from the restaurant or bar to grab their to-go cocktails.

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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?

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